
    Samuel Frost and Lyman A, Jacobus vs. Jacob B. Flint, impl’d with Adam A. Nestell.
    Where a joint suit is commenced under the statute (2 R. S., 2d ed,, 2U) against makers and endorsers of a promissory note or bill of exchange, the plaintiff cannot be allowed to amend his declaration by adding a special count against one of the endorsers, where he has given notice that the bill of exchange or promissory note is the only cause of action.
    
      September Special Term, 1846.
    
      Motion by Plaintiffs for leave to amend declaration by adding a special count.—This suit was brought to recover the amount of a bill of exchange, drawn by JSTestell on Frost and Jacobus, and payable to the order of Flint, and endorsed by him. The Plaintiffs declared on the money counts only, and annexed a copy of the bill of exchange to the declaration accompanied with a notice that it was the only cause of action. The declaration had been served on Flint only, who had appeared and pleaded the general issue.
    : The Plaintiffs moved for leave to amend the declaration, by adding a special count against Flint, and to strike out the bill of particulars.
    P. Cagger, Plffs Counsel. H. C. Adams, Plffs Atty.
    
    D. Wright, Defts Counsel. J. Wendell, Defts Atty.
    
   Bronson, Ch. Justice.

Denied the motion upon the ground that under the Statute (2 B. S. 2d ed. 274,) authorizing a joint suit against makers endorsers of promissory notes and bills of exchange, the Plaintiffs could only maintain their action on the bill of exchange, and as they had commenced their action under that statute, they could not be allowed to amend' the declaration by adding a special count, "'

Motion denied with costs.  