#### Alexander Hawthorn, Appellant, v. Jonathan K. Cooper et al., Appellees.

APPEAL PROM PEORIA COUNTY COURT.

A party is entitled to a continuance if a plaintiff does not file an account ten days before the term, if he has common counts in his declaration.

If the plaintiff desires to avoid a continuance, he can stipulate against using the common counts, or enter a nolle prosequi as to them.

The plaintiffs filed a declaration in assumpsit, containing one special count and the common counts.

The first count sets out the execution of a note by the defendant, dated September 19,1857, for $478, payable in thirty days to R. W. Jorden, at the Bank of N. B. Curtiss & Co., and an assignment to the plaintiffs below, and a presentation of the note on the twenty-second of October, 1857, at the said bank, and the same was not paid.

The common counts set forth that the defendant below, on the day and year last aforesaid, (meaning Oct. 22,1857,) was indebted to the plaintiffs in $600 for work and labor, etc.

The defendant below, Dec. 10,1857, filed a plea of the general issue, and also a plea of payment.

•The defendant below filed a motion for a continuance of the cause, on the ground that no copy of the indorsement of the note, nor of the account, had been filed by the plaintiffs.

The motion came on to be heard, and the court gave the plaintiffs below leave to amend.

The plaintiffs below then filed an amendment in these words :

“ The note, of which the above is a copy, contains the name of JR. W. Jorden on the back of it as indorser.”

The defendant below then renewed the motion to continue the cause for the same reason, but the court refused to continue the cause, and the defendant excepted.

The court then called the case on for trial, and the plaintiffs below offered their note in evidence.

To which the defendant objected, but the court admitted the note in evidence, and the defendant excepted.

*226This was all the evidence in the case.

The court found for the plaintiffs for $484.07; and the defendant appealed.

H. Grove, for Appellant.

J. K. Cooper, for Appellees.

Walker, J.

The defendant below entered a motion for a continuance, because an account was not filed under the common counts, ten days before the commencement of the term. The court overruled his motion, which is assigned for error. This was a failure to comply with the express requirements of the statute, and by its terms the defendant below was entitled to a continuance. The plaintiffs below, however, might have avoided a continuance by filing a stipulation that they would rely alone on the note sued on as evidence on the trial, or they might have entered a nolle prosequi to the common counts, which would have produced the same result. But having failed to do either, it was error to overrule the motion for a continuance, for which the judgment must be reversed, and the cause remanded.

Judgment reversed.