I concur in- the opinion pronounced' by Judge Goldthwaite, except soffar as it distinguishes *360between the effect of a judgment after verdict upon an issue tried; and a judgment, on plea withdrawn. I am unable to discover why the absence of a declaration should be error in the one case, and not in the other. It seems to me that it should be intended, in either case, from the defendants’ having pleaded, that the filing of a declaration was waived, or else it was lost after judgment.
OSMOND, 1 — I agree in opinion with Judge Collier,,