#### Smith Crane, Appellant, v. William Graves, Appellee.

APPEAL FROM ST. CLAIR.

Where a copy of a note on which suit is brought is filed with the declaration, and an amendment of the near, allowed, by changing the word “ 20" to “ 25" and adding the words “ promise to pay,” the defendant is not entitled to a continuance.

This was an action brought by Graves in the St. Clair circuit court, on a note executed by Crane to him. The defendant demurred to the declaration, which the court sustained, and thereupon the plaintiff asked and obtained leave to amend, which he did instanter, by changing the words “ twenty” to “ twenty-five,” and adding the words “ promise to pay.” The defendant contended, that the amendment was a substantial one, and entitled him to a continuance, and accordingly moved for a continuance, which the court overruled, and rendered judgment for the plaintiff. According to the requisitions of the statute, a true copy of the note was filed with the declaration. The defendant appealed, and assigned for error here, the refusal of the court to grant the continuance.

Opinion of the Court by

Justice John Reynolds.

Although the amendment allowed may be one of substance, nevertheless, as a true copy of the note was set out in the declaration, it is considered that the defendant had sufficient notice of the cause of action, so that he could not be surprised *67in his defense. This being the case, there was no reason to grant a continuance. The judgment must be affirmed. (1)

Judgment affirmed,

(1)

Upon principles universally sanctioned by our courts, we think this decision can not be sustained. The doctrine in every case where the question has arisen is, that if the amendment is a mere formal one, it 'does not entitle the opposite party to a continuance; but if it is of substance it works a continuance when applied for, without any other cause being shown. See note to Scott v. Cromwell, ante, p. 25. Questions frequently arise as to whether an amendment is one of form or substance; but here it is admitted by the court that this is a substantial amendment. The fact that a copy of the note sued on was filed with the declaration can not affect the question ; for it has been repeatedly decided that the copy of the instrument sued on, filed with the declaration, is no part of the declaration. Sims v. Higby, post. Bogardus v. Trial, 1 Scam., 63. Harlow v. Boswell, 15 Ill, 56. The copy of the note not being a part of the declaration, and without it the declaration being admitted substantially defective, the case ought to have been continued. Brown v. Smith, 24 Ill., 196,