
    Porter & Brazelton vs. Hosea Moffett.
    
      Error to Henry.
    
    Where, after plea, the declaration is amended and then refiled, the old plea is no longer a plea to the new declaration without being refield, especially after the defendant has been ruled to plead anew.
    The facts of this case are set forth in the opinion of the court.
    Hail, for plaintiffs in error.
    J. B. & G. W. Teas, for defendant in error.
   By the Court,

Wilson, Justice.

This was an action of covenant, brought by Moffett against Porter & Brazelton, to April term, 1889. On the 14th of March 1839, a declaration was filed by plaintiff, to which a plea of non est fot turn with notice of special matter was filed at the April term 1839. At the same time the plaintiffs 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 attorneys, and 'by 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 defendants fur want a of plea, which dt fault was confirmed at the March term 1840, and an assessment of damages by a jury.— At the same time a motion in arrest of judgment was made, which was withdrawn, and judgment rendered on the verdict.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 plaintiff 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 Where a declaration which is pleaded to, is withdrawn for amendment, is amended and rpfiled, it is viewed as a new declaration, and its withrawal would seem to render a nullity any plea to it.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 declaration, the parties appeared, and by 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, on which non-compliance the defendants were in default, and in the confirmation of which, we see no error. Judgment affirmed.  