
    *Squires and Wife against Mallory.
    Where the defendant pleads a special plea, to which the plaintiff replies, and takes issue, and gives notice for trial at the next circuit, the defendant cannot, though within twenty days after service of the plea, amend it, of course, without costs, under the 8th rule of April f 1796,
    THIS was an action of debt, on a judgment in the Court of C. P. of Genesee county, to which the defendant pleaded satisfaction, setting forth certain proceedings in the suit material to the plea; among others, the issuing of the capias ad respondendum in the original action, which was alleged to have been sued out on the 5th of February, 1819. The plea was served on the 13th or 14th of June, and a replication was put in on the 15th of June, taking issue on the averment in the plea, and denying, that the capias ad respondendum issued on the 5th of February, 1819. A notice of trial for the next Genesee circuit, was, at the same time, served on the defendant’s attorney. On the 1st of July, and within twenty days after service of the plea, the defendant’s attorney, discovering his mistake, amended his plea, by stating the suing out of the capias ad respondendum to be on the 6th of February, 1819, and served an amended plea, accordingly, on the plaintiff’s attorney , who, disregarding the amended plea, took an inquest by default, on the issue as joined, at the circuit, on the 2d of July. The defendant’s attorney, conceiving it to be irregular, declined to appear on the trial.
    
      Parker, for the defendant,
    now moved to set aside the inquest taken at the circuit, and all subsequent proceedings, with costs.
    
      T. Sedgwick, contra.
   Per Curiam.

Unless there was a demurrer to the plea, the defendant could not have amended, under the 8th rule of April term, 1798. Here the plaintiff had taken issue on the plea, and the defendant could not, under the rule, amend, as of course, without costs. The motion must be denied,

Motion denied. 
      
       The only authority for amending, of course, is the 8th Gen. Reg. of April tinder this rule, a plea, unless it is demurred to, cannot be ; Term, 17’Hi. Under this rule, a plea, unless it is demurred to, cannot be amended ; anti even then, a new plea cannot be added. Benedict v. Ripley, 5 Cowen, 37. Wiley v. Moore, 2 Wendell, 259. Silver v, North, 18 Johns, Griswold v. Sedgwick, 1 Wendell, 126. Rep. 310.
     