#### Merritt L. Covell, Ortogrul Covell, and Jesse W. Fell, appellants v. Jacob Marks, appellee.

Appeal from McLean.

Where an amendment to a declaration is of a matter of substance, it entitles the defendant to a continuance of the cause.

Judgment was rendered in this cause, in the Circuit Court of McLean county, in the year 1838, the Hon. Jesse B. Thomas presiding.

Stephen A. Douglass, for the appellants.

L. Davis and F. Forman, for the appellee.

Wilson, Chief Justice,

delivered the opinion of the Court:

The plaintiff in this action declared upon a promissory note for four hundred dollars. Upon the calling of the cause, the plaintiff asked and obtained leave to amend his declaration, which he did instanter by adding to the description of the note, the words “ with twelve per cent, interest from the date until paid.” The defendants thereupon moved the Court for a continuance of the cause, which was refused, and judgment rendered against the defendants. The refusal of the Court to continue the cause, and the rendition of the judgment are assigned for error. The rule is, that where the amendment to the declaration is a substantive one, it entitles the defendant to a continuance. The amendment in this case is clearly of this character. It made the note a different one from that at first declared on, by increasing the defendants’ liability to the extent of the interest that might be due on the note. This in effect made the amended declaration a new one, which the defendants could not be called on to answer without ten days’ notice preceding the commencement of the term of the Court.

The copy of the note upon the back of the declaration, was no notice to the defendants of the one declared on. They were different not only in terms, but in their legal effect; and the one copied could not be given in evidence under the declaration.

*526The judgment of the Court below is reversed with costs, and the cause remanded.

Judgment reversed.

Note. See Vickers v. Hill et al., Ante 307; The People v. Pearson, Ante 473.