
    Samuel Bell agt. Hiram Judson.
    Where plaintiff’s attorney offers to pay all costs defendant’s attorneys are entitled to (before making motion), to be allowed to add a special count to his declaration upon a promissory note; where it is against a surety, defendant’s attorneys will not be allowed costs, if they resist the motion.
    
      December Term, 1845.
    Motion by plaintiff for leave to amend his declaration, by adding a special count.
    This action was brought upon a joint and several promissory note, signed by “ D. W. Barker & Co.,” and “ Hiram Judson security for the above,” the suit was commenced in April last, the declaration contained the common money counts only, with a copy of the note, and notice that it was the only cause of action; defendant appeared and pleaded general issue. Plaintiff’s attorney stated that after the commencement of the suit, the decision in Butler agt. Rawson, im'd, &c., in May term last, was made by this court, by which he was advised he could not give in evidence the note declared on, he also stated he had called on one of defendant’s attorneys and offered to pay him the costs of his plea, to be allowed to add a count, upon the note in the declaration, defendant’s attorney declined to accept it, or to allow it upon any terms.
    A. P. Thompson, plaintiff's counsel and attorney.
    
    Forbes & Sheldon, defendant's counsel and attorneys.
    
   Jewett. Justice.

■ Granted the motion without costs.  