KENNEDY VS. DEAR, 4 Port. 423

HOPKINS, G. J. — The pleadings and proceedings in this case, in the Court below, appear in the record in the following order, namely — a declaration, a demurrer, a plea, an order of the Court, at the autumn term, eighteen hundred and thirty-five, which was subsequent to that of which the declaration is entitled, giving the plaintiff in that Court leave to amend his declaration, and a final judgment of the next term afterward, overruling the demurrer to the amended declaration, and for the damages assessed by a jury.

The first error assigned here, and upon which all the others depend, is, that the judgment was rendered without a declaration. The argument in support of this assignment is, that the original declaration only appears in the record, which shows that the judgment was rendered upon an amended declaration. That as such a declaration as the judgment was expressly given upon, does not appear, the legal conclusion is, that none such was filed; and the judgment is therefore, as erroneous as if there were no declaration.

It has been contended, that an amended declaration is a new one, and ought to appear in the record, in addition to the original declaration which is abandoned, by obtaining leave to amend it. The truth of the last branch of this proposition will depend upon the course a plaintiff may pursue, after leave to amend lias been obtained. He is not bound to exercise the privilege, and if he would decline it, a Court must act upon the cause of action set out in the declaration which he had filed.

That the effect of an amended declaration is that of a new one, so far as the rights of a defendant can be-affected by it, we admit. After an amendment has been made, the defend* ant in the action has- the same right to plead or demur to the amended declaration, that he had to answer the original. But the rights of defendants are as well protected, by permitting the amendments au-thorised by the Court tobe made by additions, or an alteration in any other respect, of the declaration upon file, as to require a second declaration.

An amendment frequently consists-in the addition or' omission of a few words at most; and it would be unreasonable to require such an amendment to be; made by filing a new declaration. If a Court should give leave to make amendments-which it had no power to authorise, the matter of them can be made to appear in a bill -of exceptions to the opinion that allowed them. The Court of Appeals of the state of Kentucky has decided, that a plaintiff, with leave to amend, has his election, either to file a new declaration, or to amend the one he had previously filed.

In the case of Cosby’s Ez’or vs Hite, the declaretion on file had been amended, and no objection for that cause was made in the Court of Appeals of Virginia. The objection there, (and the Court sustained it,) was that the defendant had been denied the right to plead de novo, to the amended declaration.

The English cases which have been cited, maintain this right of defendants; but they do not determine, whether a plaintiff shall make amendments by filing a new declaration, or by altering the one which he had delivered The practice in this State has been regulated by. the rule which was recognised by the Court of Appeals of Kentucky, in the case that has been referred to, in Hardin’s Reports, (p. 85;) and the rule, we think, needs no amendment.

The right of a defendant to plead de novo to an amended declaration is clear, but he may waive it, and rely upon his demurrer or plea to the declarátion, as it was first delivered. The legal presumption is, that the declaration in this case, was amended by making alterations in it. After it was amended, the defendant in the action must have relied upon the demurrer and plea he had filed to the declaration, as it was first delivered.

We come to the conclusion, that he did so, because there is no other demurrer or plea in the case; and it appears, from the record, that his demurrer to the amended declaration, was overruled, and an issue between the parties was afterward tried by a jury. It seems that the demurrer and plea of not guilty were both filed at the same time, but the demurrer first in order. The plaintiff was not bound to take notice of the plea, till after the issue in law was disposed of. The irregularity in filing them together, has no effect upon the case.

It became necessary to determine both issues, and both were disposed of in the order which the law prescribes. No assignment of error questions the sufficiency of the declaration — and the view we have taken of the case, disposes of all the points which were made at the bar. The judgment is affirmed. Reps. W 36^ashai iWilson, ra’dvpr! 6S4- is Cali'sr i.