
    *Couch v. Fretwell’s Adm’r.
    February, 1840,
    Richmond.
    (Absent Brooke and Parker, J.)
    Declaration-Leave to Amend — Proceeding Afterwards. —when an order of court has been entered, granting the plaintiff leave to amend his declaration, and remanding the cause to rules, the case, after the amended declaration is filed, ought to be regularly proceeded in at the rules to an issue or office judgment, unless by consent an issue be made up in court; aud if, without such proceedings at the rules, judgment be entered np in court against a defendant because he has not appeared and pleaded to the amended declaration, such judgment will be erroneons.
    On the 21st of December 1828, Janies B. Fret-well, administrator of Alexander Fret-well deceased, sued out of the superior .court of law for Buckingham county h .writ of capias ad respondendum against Anderson & Woodson and John Couch. The return of the sheriff was as follows: “Executed on Geo. Woodson and John Couch, and Curtis C. Nunnally their bail, Anderson is not an inhabitant of this county.”
    At the rule day to which the writ was returnable, the suit was abated as to Aijderson, arid the plaintiff having filed hisdecláration, a conditional judgment was entered against Woodson and Couch, which was confirmed at the succeeding rule day.
    At the next term, the judgment obtained in the office against the defendants Woodson and Couch was set aside, upon their filing a plea in writing to the following effect : “ that the said George Woodson, in the declaration mentioned, had no lawful power and authority to seal and deliver the alleged bond in the declaration mentioned, as the act and deed of the said Edmund Anderson', - and the said writing is not the act and deed of the said Anderson ; and so the defendants say that the said alleged writing in the declaration is not the act and deed of the defendants.”
    579
    ^During the same term, leave was given the plaintiff to amend his declaration, and the cause was remanded to the rules.
    At June rules 1829, the plaintiff filed his amended declaration. It was in the name of James B. Fretwell (sometimes called administrator of Alexander Eretwell deceased) against George B. Woodson (who sometimes styles himself Anderson & Wood-son) and John Couch, and set forth, that the said George B. Woodson and John Couch, on the 19th March 1827, by their certain writing obligatory, sealed with the seal of the said John Couch and the seal of the said George B. Woodson, (which said seal or scroll of the said George B. Woodson is affixed to the name" of Anderson & Woodson, but in truth and in fact is the signature and seal of the said George B. Woodson,) promised to pay said plaintiff, on or before the first of January next after the date of the said writing obligatory, the ■ sum of 90 dollars, for the payment of which they bound themselves in the penal sum - of 180 dollars.
    No rule was given the defendants to plead, nor any other proceeding had at the rules, after this amended declaration • was filed. But final judgment was entered 'as of the succeeding term : the entry stating that “ the defendants not appearing and'pleading to the amended declaration, on the motion of the plaintiff by his attorney, it is considered” &c.
    A supersdeas was awarded on the petition of Couch, assigning- as error, that the writ is against Anderson & Woodson and John Couch, and the declaration against George B. Woodson, and John Couch.
    Robertson for plaintiff in error.
    
      
      See monographic note on “Amendments'’ appended to Snead v. Coleman, 7 Gratt. 300.
    
   TUCKER, P.

The judgment in this case is altogether irregular. The cause having been remanded to the rules, to enable the plaintiff to amend his declaration, *ought to have been there regularly proceeded in, upon the filing of the declaration, by rule to plead &c. to an office judgment or an issue. Parties indeed may amend their pleadings in court, where they are willing and consent to make up an issue there ; but there can be no judgment by default for want of a plea, except at the rules. This judgment is not then a judgment by default, but it is altogether an irregular judgment, taken against the defendants as if they were really in default, when they were not so. It must therefore be reversed.

The entry in the court of appeals was as follows :

“The court is of opinion that the judgment is erroneous in this, that after the cause had been remanded to the rules, it ought to have been regularly proceeded in there, to an issue or office judgment, unless by consent an issue had been made up in court; and it was altogether irregular to enter up the judgment in court without such previo'its proceeding.” Therefore, judgment reversed with cost. “And this court, not deciding upon the sufficiency of the declaration, as that question does not properly arise in the present state of the case, doth order that the cause be remanded to the circuit superior court, to be sent back to the rules for further proceedings to be had therein.”  