April 29.

delivered the opinion of the court. The judge’s order, giving the plaintiff leave to amend his declaration, by the insertion of an averment, that the writing declared on was published concerning the plaintiff, in his character or profession of a merchant and dealer in cotton, did not authorize the substitution of a new declaration, materially variant in other respects, besides that relating to the averment, from the original declaration. If the old declaration had been copied, and no other alteration had been made, but that which was authorized by the judge’s order, it might have been considered as the same declaration, amended pursuant to the order. Or if the averment had been introduced in the proper place in the old declaration-, the determination, in the District Court,' would have been right. The former pleas might have been applied to the declaration as amended, unless the defendant bad chosen to plead anew. But the plaintiff, under color of leave to amend his declaration, took the liberty to put in a new declaration, materially different from that which he had leave to amend, and without any shadow of authority from the judge, who gave the order granting leave to amend. The question,, which arose in the *304®*s*:r*c*; Court, brought the question respecting the regularity and, propriety of substituting the new declaration, by way of amend» ment of the old, fairly before the court; and we are of opinion, the District Court erred in not setting aside the new declaration, as irregular. The court might have suffered the plaintiff to amend, in conformity to the judge’s order, or have ordered on the trial on the old declaration, without such amendment; in either case, the pleas filed to the old declaration, might have been considered as regular. But the defendant’s having refused, or omitted, to plead to the new declaration, ought not to have been construed into a waiver of his right to plead anew, and taken to apply to the new declaration. It is therefore ordered, that the verdict be set aside ; and that the new declaration be set aside for irregularity. That the plaintiff have leave to amend his original declaration, by inserting therein the averment authorized by the judge’s order; and that the defend* ant have leave to plead anew to the declaration, when amended.