Fonville v. Richey

Ciiria, per Evans, J.
When the 1st of August was passed, without security for costs being put in, the plaintiff was out of court, and judgment of non-suit might have been entered against him. But when he afterwards filed his declaration, and the defendants put in their plea, the plaintiff was again *11restored to his status as a suitor. By pleading the defendants admitted the plaintiff was in court. It was treating the plaintiff as one having a right to file his declaration, to which the defendants were bound to plead. The plaintiff had no right to file his declaration — his action was at an end; but when the defendants pleaded to it, it was a waiver of the benefits which had resulted to them by the .non-suit.

If a defendant enters an appearance he cannot object that there is no legal service of the writ; he admits thereby he has been legally brought into court. So, also, if he pleads to the declaration he cannot question the plaintiff’s right to file it; it is an admission of his right to do so.

- The motion is dismissed.

ONeall,' Butler, Wardlaw and Frost, JJ. concurred.