Lee v. Chilton

5 Munf. 407 | Va. | 1817

February 1th, 1817.

Judge Roane

pronounced the Court’s opinion.

The Court is of opinion that the Judgment of the County Court is erroneous in this; that, at the time the defendants had leave to withdraw their pleas, as having been improvidently pleaded, they had the right to surrender their principal; two writs of Scire facias not having been then returned nihil against them; that the permission given to the Sheriff to amend his returns could not, by relation to the time, when those returns were made, deprive them of the benefit of two several writs returned nihil; for, until such writs were severally issued, and so returned, with a proper interval between each, they had a right to make such surrender. The Judgment of the Superior Court of Law, affirming that of the County Court, is therefore erroneous, and reversed with costs; and this Court proceeding, &c. the Judgment of the County Court is also reversed, with Costs, as far back as the order permitting the Sherif}' to amend his/efurn; which Order is also reversed so far as it permits an amendment of the return on the second writ of scire facias ; and the said last mentioned W rit, with the return thereon, is quashed, and the cause remanded to the rules to be farther proceeded in.