By the Court

This was an action of covenant brought by Moffattvs. Porter & Brazelton to April term, 1839. On the 14th of March, 1839, a declaration was filed by plaintiff, to which a plea of non est factum with notice of special matter was filed at the April term, 1839. At the same term the defendants 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 attornies, and by the 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 the defendants for want of a plea, which default was confirmed at the March term, 1840, ana an assessment of damages by a jury. .At the same term a motion in arrest of judgment was made, which was withdrawn, and judgment rendered on the verdict.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 plaintiffs 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 Where a declaration which is pleaded to is withdrawn for amendment, is amended and refiled, it is viewed as a new declaration, and the withdrawal of it would seem to render a nullity any plea to it.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 narr. the parties appeared and by the 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; for which non-compliance the defendants were in default, and in the confirmation of which we see no error.