Opinion of the Court by
Justice John Reynolds.
Although the amendment allowed may be one of substance, nevertheless, as a true copy of the note was set out in the declaration, it is considered that the defendant had sufficient notice of the cause of action, so that he could not be surprised in his defense. This being the case, there was no reason to grant a continuance. The judgment must be affirmed.
Judgment affirmed,
Upon principles universally sanctioned by our courts, we think this decision can not be sustained. The doctrine in every case where the question has arisen is, that if the amendment is a mere formal one, it does not entitle the opposite party to a continuance; but if it is of substance it works a continuance when applied for, without any other cause being shown. See note to Scott v. Cromwell, ante, p. 25. Questions frequently arise as to whether an amendment is one of form or substance; but here it is admitted by the court that this is a substantial amendment. The fact that a copy of the note sued on was filed with the declaration can not affect the question ; for it has been repeatedly decided that the copy of the instrument sued on, filed with the declaration, is no part of the declaration. Sims v. Higby, post. Bogardus v. Trial, 1 Scam., 63. Harlow v. Boswell, 15 Ill, 56. The copy of the note not being a part of the declaration, and without it the declaration being admitted substantially defective, the case ought to have been continued. Brown v. Smith, 24 Ill., 196,