Fonville v. Richey , 31 S.C.L. 10 ( 1845 )

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 restored 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.