
    Porter & al. vs. Moffatt.
    A plea put in before an amendment to declaration cannot be considered as answering amended declaration. Where a declaration which is pleaded to is withdrawn for amendment, is amended arid refiled, it is viewed as anew declaration: and the withdrawal of it would seem to render any plea to it a nullity.
    Action of covenant brought by Moffat vs. Porter & al. in the District Court, demurrer and joinder — plea non est factum at the same term — demurrer sustained — declaration amended, and filed May, 1839 —rule on defendant to plead 1st January following. — Default for want of plea — assessment of damages and judgment. And the case is now here by writ of error brought on behalf of defendants below.
    Browning & Henry W. St arc, for plffs. in error.
    J. B. &G. W. Teas, for dft. in error.
    Browning. The defendant had put in his plea of general issue and had a right to the benefit of it and to avail'himself of his defenóe under it. If a party does not plead anew under the new rules he is considered as abiding by his former plea, but that could not deprive him of the benefit of his plea of general issue. While that was in he could not he in default, ilreese’s III. R. 43.
    
    It was necessary under the old rule to file» a plea in twenty days after the return of the writ.
    Teas. Five points are assigned for error. The first only has been argued and we shall reply only to that. The position taken by the plaintiff depends on his bare assertion — nothing has been produced to prove it. It has been formerly decided that the rules of Court should not be in force till recorded. The rules have not been practised under in Henry county. The practice there was to obtain a- rule to plead in- a given time. The rules therefore can avail nothing.
    The plaintiff under leave to amend filed a declaration differing materially from the first. lo. Slat. — Dunlap’s Prac: 1, 372,373. Where plaintiff amends after plea, defendant is entitled to twenty days to plead. Bacon’s Mr. 6,367— 1 Johns. Cas. 248 — 3 Johns. Cas. 91 — 2 Saund. R. 175 — 4 T. R. 617 — 8 T.R. 281 — 2 Ch.pl. 368 — 11 East 633 — 7 Wend. 281 — 1 Bay 256 — 1 MCord 121 —5 Bin. 355 — 2 T. R. 746.
    Starr, in reply. The Court will take notice of the rules of theDist. Court. It has been the practice for the defendant to file allhis.pleas at once. According to the rule, if the plaintiff amend and take no rule on-the defendant to plead in a given time, he may plead as many pleas as he chooses. The defendant was ruled to plead by the 2d January. The effect of this rule was that if the defendant did not put in a new plea by the time ruled, he was bound by the plea already in. The entry of default was incorrect
   By the Court

Wilson, J.

This was an action of covenant brought by Moffattvs. Porter & Brazelton to April term, 1839. On the 14th of March, 1839, a declaration was filed by plaintiff, to which a plea of non est factum with notice of special matter was filed at the April term, 1839. At the same term the defendants asked and obtained leave to amend their declaration upon the payment of all costs, and filed an amended declaration on the first of May, 1839. At the August term, 1839, the parties appeared by their attornies, and by the consent of parties the cause was continued, and the defendants ruled to plead by the first of January following. Default was entered in. vacation against the defendants for want of a plea, which default was confirmed at the March term, 1840, ana an assessment of damages by a jury. .At the same term a motion in arrest of judgment was made, which was withdrawn, and judgment rendered on the verdict. There are five errors assigned, but they are all contained substantially in the fifth. It is contended by the plaintiffs in error that there was no default; that the plea filed to the first declaration should have been considered as answering the amended declaration. We cannot come to this conclusion. Where a declaration which is pleaded to is withdrawn for amendment, is amended and refiled, it is viewed as a new declaration, and the withdrawal of it would seem to render a nullity any plea to it. The foundation being removed the superstructure must fall. But further, it appears from the record that at the term subsequent to the one at which the plaintiff filed his amended narr. the parties appeared and by the consent of parties the cause was continued and the defendants ruled to plead by the first of January then next ensuing. Here was a peremptory rule of the Court, which was not complied with; for which non-compliance the defendants were in default, and in the confirmation of which we see no error.  