
    Macomb vs. Smith and others.
    An amended narr. cannot be served without a previous rule to amend.
    Motion to set aside a default. The declaration, served on the defendant’s attorney, omitted to state the court in which the suit was prosecuted ; for which cause a special demurrer was put in. The declaration on file was correct, and the plaintiff’s attorney served a new narr. conformable to that on file, together with a notice of the rule to plead, but omitted to enter a rule to amend. Not receiving a joinder in demurrer, the defendant entered the plaintiff’s default, to set aside which this motion is made.
    Hubbell, for plaintiff.
    
      Jlverill, for defendant.
   By the Court,

Sutherland, J.

The defendant was not bound to look to the declaration on file. Parties must be governed by the papers served, and not by those on file. Not receiving notice of a rule to amend, and none being in fact entered, the defendant was not obliged to take notice of the amended declaration served on him. The proceeding of the defendant, therefore, in entering the plaintiff’s default, was regular, but it is set aside on payment of costs; the declaration last served to be considered as an amended declaration, and the defendant to plead in ten days after notice.  