But,
By the Court:
—The declaration must certainly be filed before trial: And, when the plaintiff accepts a plea, it is an engagement that this shall be done; and a waiver by the defendant of any advantage from the omission. If the objection had any weight, it ought to have been made when the rule was obtained at the last Term. As the plaintiff then submitted to the rule, he shall not now elude its operation.
Judgment of non-suit.