Gadsby v. Miller

On the part of the plaintiff, it was said; as to the first plea, that such a service of a scire facias is good by the laws of Virginia. Rev. Code, p. 95, § 30. And, at all events, it is cured by the appearance of the defendant. The second plea was abandoned by the defendant’s counsel. As to the third and fourth pleas, the defendant in a scire facias, cannot plead that which the original defendant might have pleaded to the original action. Wraigkt v. Kitchingman, 1 Strange, 197. For the defendant, it was said, as to the first plea, that if the defendant comes and pleads the want of proper process, he shall not be prevented by his having appeared. 1 Bac. Abr. As to the third plea. If the plaintiff does any act by which the bail loses the right of taking the principal in order to surrender him, the bail is discharged. In this case the original action was discontinued one month, and during that time the bail would not have been justified in seizing the principal. It gave him an opportunity to escape. Judgment for the plaintiff.