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.

Whether the parties understood that the defendant promised to pay the amount of the bank note on demand before the plaintiff paid the bank, or whether upon any ground there was at the commencement of the suit a breach of the contract on which the *Page 421 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.

Case discharged.

All concurred.