
    
      Stephen S. Fonville vs. Robert Richey et al.
    
    Where an order requiring the plaintiff to give security for costs or he nonsuited, was not complied with, and the defendant, after the time for giving the security had expired, pleaded to the declaration— Held, that he thereby waived his rights under the order, and could not afterwards claim the non-suit, 
    
    By pleading to a declaration the defendant admits the plaintiff to be properly in court.
    
      Before Frost, J. at Abbeville, Fall Term, 1845.
    The report of his Honor the presiding judge is as follows.
    “ In this case an order had been entered that the plaintiff should give security for costs, on or before the 1st August, 1845, or be non-suited. At the same term an order was entered giving the plaintiff leave to declare on or before the first day of the present term.
    
      “ The plaintiff filed his declaration the first of October, and posted a rule to plead. The defendants filed their plea 7th October. Issue was joined and the case docketed. The plaintiff had issued a commission to examine witnesses, and the defendants put in cross interrogatories. When the case was called, defendants moved for a non-suit; because security for costs had not been entered. The plaintiff offered to enter the security required instanter ; and moved an order to that effect. The order was granted, on the ground that the defendants, by pleading and joining in the commission, induced the plaintiff to incur additional costs, and had waived the punctual execution of the order for security for costs.”
    The defendants appealed.
    
      McGowen, for the motion.
    
      Wilson, contra.
    
      
      
         The doctrine of waiver, as applied to the pleadings or other proceedings in a cause, depends on the maxim consensus tollit error em. The acquiescence of a party who might take advantage of an error obviates its effect. Broom’s L. M. 58. The rule, however, must be taken, it seems, with this limitation, that it will only operate to cure irregularities, and not proceedings which are completely defective and void. In the latter case the proceeding cannot be waived by any laches or subsequent proceeding of the opposite party. 2 Arch. Pr. 201. s The cases of Taylor vs. Phillips, 3 East, 155, and Hussey vs. Wilson, 5 T. R. 254, furnish illustrations. In the first of these cases it was held that the service of a writ on Sunday could not be cured'by any subsequent act of the defendant; and in the second, that where the maker and indorser of a note were holden to bail in the same affidavit, the defect was not waived by putting in bail. R.
      
    
   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.  