¶1(dissenting.) As there was a special term running with the circuit, I have no doubt the circuit judge might in his discretion entertain the application as in special term'to amend the complaint, at the circuit, and that the order for that purpose, amending said complaint, cannot be reviewed and is not the.basis of an exception. But the amendment was clearly not such as could have been made in the circuit or by a referee, if the case had been on trial before a referee. ( Union Bank v. Mott, 19 How. 267. Ford v. Ford, 35 id. 321.) On a trial at the circuit the court tries the issues made in the pleadings as the circuit judge formerly did upon the circuit or nisi prius roll. It may disregard a variance between the allegations in a pleading and the proof, in the same manner as a referee may do, and not otherwise; or it m"ay amend the pleading at the time, to obviate such variance. But this case was not one of such variance. There was no variance between the pleadings and proof. The amendment allowed inserted an entire new cause of action upon the record which could only be allowed by the court at special term. The amendment, if it had been actually put in form at the time, would have placed upon the record a second count. The complaint originally contained one count upon a qiromissory note, against Charles Roderick and Samuel J. Roderick, as ¡Dartners. Charles alone defended, and denied the complaint, and Samuel suffered default. Upon this count the plaintiff,' if he recovered in the action, was bound to recover on the note as the joint note of the defendants, and could take no other judgment. *631The amendment, when made, would have introduced upon the record an indebitatus or quantum valebat count for goods sold and delivered. The complaint in that shape would consist of a count upon the note sued or count for goods sold and delivered. The note was for $240.62, and was given for part of a hill of goods amounting to $690.62. The new count must be for a bill of goods amounting to $690.62. The complaint in that shape had never been served upon either of the defendants. Judgment might pass against Samuel for the amount of the note, because he had suffered default, but not on the second count for the amount of the goods sold and delivered. The defendant Charles Roderick, in answering the complaint, had simply denied the making of the note, but.he had never had an opportunity to answer or deny the amended complaint consisting of two counts. He had an absolute right to have the amended complaint served upon him and have time given to answer or demur to it. Of this right the court had no power to deprive him. (Union Bank v. Mott, 19 How. 267.) He had committed no default, and the court could not impose terms upon him, or deny his right to answer the amended pleading and to take twenty days’ time in which to do so after service of such amended pleading. After the amendment was made at the circuit the cause was not in a condition to proceed with the trial. There was no issue. There was no answer on the record to the amended complaint, and certainly none to the new count. The defendant might doubtless have waived this objection and have consented to let his answer stand as an answer to the amended complaint and to proceed immediately to trial; but he did no such thing. He objected to the amendment, and insisted that he was not read to try the new issue. It seems to me the case was clearly one of a mistrial. The court, in my opinion,- has no power at the circuit to amend a complaint by inserting a new count in it and proceed to trial *632upon the original answer, without express consent on the part of the defendant. Causes must be tried upon distinct issues taken in formal pleadings, and these pleadings cannot be made ore terms at the circuit, except with and by the clear, explicit consent of both parties aside from clear cases of variance. I think, for these reasons, there should be a new trial, with costs to abide the event.
¶2M. D. Smith, Johnson and J. C. Smith, Justices.]
¶3Judgment affirmed.