
    Wright v. Basye.
    Ymendment or Peeadings—Continuance.—If in a suit on a sealed note, the declaration be so amended as to describe a different note from that previously described, the defendant is entitled to a continuance.
    Iamb.—The defendant’s objection to the refusal of a continuance is not •v."ived by a subsequent withdrawal of his plea.
    I KROR to the Spencer C rcui; C >uri.
   .Blackford, J.

This was an action of debt brought by Basye against Wright.

The declaration first filed stated that the defendant, on, &c., at, &c., by his writing obligatory, &c., promised the plaintiff to pay him, one day from and after the day and date of said writing obligatory, the sum of $274.31, together with interest on said sum of $274.31 from the day and date of said writing obligatory, at the rate of six per cent, per annum till paid, yet, Ac.

The plaintiff, by leave of the Court, amended the declaration by striking out the following words, “ together with interest on said sum of $274.31 from the day and date of said writing obligatory, at the rate of sis per cent, per annum till paid.” *The defendant, on account of said amendment, moved for a continuance of the cause, but the motion was overruled.

J. Lockhart, for the plaintiff.

J. Pitcher, for the defendant.

The defendant, afterwards, withdrew the pleas he had pre^ viously filed, and the plaintiff withdrew his replications.

There was judgment by default for the plaintiff.

The error assigned is the refusal of the Court to continue the cause.

If the amendment was in matter of substance, the defendant was entitled, by statute, to a continuance. R. S., 1838, p. 451. The note, according to the first declaration, drew interest from the day of its date-; but according to the amended declaration, it drew interest from the nest day after its date. The amended declaration, therefore, describes a different note- from that described in the original declaration; and-the amendment was, consequently, a substantial one.

■The plaintiff contends that the subsequent withdrawal of the pleas was a waiver of the objection to the decision refusing a continuance; but we do not think so.

Per Owriam.—The judgment is reversed, with costs. Cause remanded, &c.  