Assumpsit, upon the common counts. Facts found by the court. The defendant was defaulted. Subsequent attaching creditors appeared, and objected to the allowance of a bank note for |500, which the plaintiff had signed as surety for the defendant, but on which he had paid nothing at the time of the trial.
Cited by 1 later decisions — most recently December 1886
1 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
The amendment contained in the new counts on the special contract could not be allowed against the defaulted defendant without notice. Although it is found that it was “ agreed that the writ should be made large enough to cover all the indebtedness of the defendant to the plaintiff, including the bank note,” yet, so far as appears, the defendant was not a party to the hearing upon which the finding was made, and is not affected by it.
¶2
Whether the parties understood that the defendant promised to pay the amount of the hank note on demand before the plaintiff paid the bank, or whether upon any ground there was at the commencement of tbe suit a breach of tbe contract on wbicb the
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counts could be maintained, are questions upon which the reserved case is not explicit or satisfactory, and on this point a new trial is granted.
