¶1Kirk and Derbyshire sued Hyatt and Wright, in debt upon a sealed instrument.
¶2Issues were formed upon pleas of payment and set-off; were tried, and the defendants had judgment. The cause was brought to the Supreme Court, where the judgment was reversed for error in the Circuit Court, in giving and refusing instructions. The cause was remanded for a new trial. No question was made in the Supreme Court upon the pleadings, — no instructions were given touching them in remanding the cause. The reversal extended back to the issues, and left them standing, as formed, for retrial. The case stood then, in the Circuit Court, at issue upon the pleadings filed. 2 Ind. B. 322.
¶3.A retrial was had, and resulted in a .judgment for the plaintiffs; but it is claimed that this second trial was not upon the former issues, — that it was, indeed, without an issue, and consequently erroneous.
¶4The record, as at first filed, countenanced the proposition. It states that the plaintiff’ filed an amended declaration, and took a rule upon the defendants to plead to it. It did not show that that rule had been answered —that any pleas had been filed, and did not continue those filed before the first trial. But, in answer to a certiorari, the clerk sent up. a record containing the pleadings on which the cause stood at issue, and informed us that no amended declaration was filed, — that the only change made in the pleadings was the altering the figure 1 to 2 so as to make the amount claimed in the-conclusion of the declaration, 200 instead of 100 dollars.
¶5Now, upon this state of facts, the case maybe regarded in two aspects.
¶61. Amendments of pleadings can only be properly made by leave of the Court. No leave appears to have been obtained here; and hence, the Court would not have compelled the defendants to notice that made, or answer a rule to plead to it, had it been necessary to' *180plead to it, but might have tried the cause ou the pleadiugs as unamended, and ordered the amendment stricken out.
¶7If this course was pursued, the only error the record would present would be the rendering of judgment for an amount greater than that claimed in the declaration. But no error is assigned for that.
¶82. The amendment was one which did not require the refiling of the declaration as amended, — it was one that could be made upon the declaration filed. It required no change in the pleas, — in the issues made by the defendants. Hence, we may presume that it was consented to by the defendants, the contrary not appearing, and that the cause was tried upon the issues remanded from this Court for trial. 4 Ind. R. 628. In that event, in making up the record for this Court, on appeal from the judgment on the second trial, the declaration, pleas, &c., leading to the issues, with the trial of those issues would be incorporated. The part of the proceedings formerly had, which were stricken out on the reversal of the cause, as having been, and followed, error would be omitted.
¶9The judgment is affirmed with 10 per cent, damages and costs.