
    Cabanne and Soulard, executors of Clamorgan, v. Lavallee, executor of Lavallee.
    A judgment on a demurrer to a declaration, after leave to amend, and when the plaintiff refused to join in demurrer, is erroneous.
   Pettibone, J.,

delivered the opinion of the Court.

This was an action of covenant, brought in the New Madrid Circuit Court. At the return term of the writ, the plaintiff obtained leave to amend his declaration. At the same term, before any amended declaration was filed, the defendants filed a demurrer to the original declaration. The plaintiff’s attorney refused to join in the demurrer 5 and thereupon, the Court gave judgment against the plaintiffs, in the form following: It is, therefore, considered by the Court, that the declaration be adjudged insufficient, and that the defendant recover of the plaintiffs his costs about the demurrer in this behalf expended. This judgment is clearly bad. If a plaintiff failed to join in a demurrer, or to file his replication, or other pleading, the only judgment which can be taken against him, is a judgment of non pros. Such is the English practice, and such is the rule prescribed by our statute, which says, that if, at any time, a plaintiff shall fail to file his replication, or other pleading, within the time, &c., judgment of non pros, may be signed for such omission, &c.: Vide acts of Nov. session, 1821, p. 82, sec. 25.

The judgment of the Court below must be reversed, with costs; and this Court, proceeding to give such judgment as the Court below ought to have given, do give a judgment of nonpros, against the said plaintiffs, and that the defendant recover his costs in the Court below.  