The opinion of the court was delivered by
Gibson, C. J.In actually entering special bail on the last day of the six weeks, the defendants undoubtedly intended to perform the condition of their bond; and were the act not such as to avail them by pleading, no court would hesitate to relieve them-in a summary way from the consequences of the officer’s blunder. But the bail as entered, was in fact a performance of the condition, and pleadable strictly as such. Instead of being the inception of a fresh suit an alias.orpluries is, at the common law, but a continuance of the process; and there is no reason why it should n'ot be so here whore the capias or summons is the originating writ. It was held to he strictly, so in Schlosser v. Lesher, 1 Dal. 411, where to a plea of the statute of limitations/ the plaintiff successfully *171replied an original summons-on a particular day within the six years; which he could not. have done, had not the action been commenced by such original, and continued by the further process without break ¡or interval. That such an interval will lot in the bar of the .statute, is shewn by Harris v. Dennis, 1 Serg. & Rawle, 236, where it was not saved by a previous action within the six years, i.n which the plaintiff had suffered .a non suit. All, then, is process in the same action, the entries in which, may be under the original or any subsequent writ. The practice has indeed been to continue the entries under the writ on which the defendant has been brought in; and this, though convenient, is not to have the efleet of changing a supplementary writ into an original. A voluntary appearance to a summons returned nihil, would undoubtedly enable the court to proceed on it; and whether on the original or a subsequent writ, could make no difference, the exigence of either being answered by the-defendant’s appearance in court, so that if the proceedings were docketed on the alias -orpluries, no one would think of pleading the original writ as a previous and an independant action, depending for the same cause. Just so in the present case. The defendants were in court to answer the action by the docketing of their recognizance under the enriy of the original writ; and the part of the docket in which their appearance was recorded could in no wise be material. The remaining exception, that aa appearance after the return day,does not support the plea of covtperuit ad diem, nor, though within the period prescribed by the rule of court, save the penalty of the bond, at first appeared more plausible. But the apparent, difficulty on that head is removed, by adverting to the Stat. 4 Ann, c. 15, sec. 20, which ena.blesthe court after the assignment of the bail-bond, to give such relief to the parties in the original action, and to the bail upon the said bond or other security taken from the said bail, as is agreeable to justice or reason; and that such rule or rules of tho said court shall have the nature and effect of a defeasance to such bail bond or other security for bail.” By force of the statute, therefore, an appearance after the return day of the writ, but as here, within the six weeks, is a compliance with the legal effect of the condition, which may be pleaded in bar; and in this respect the practice is different from the procedure to obtain relief from the consequences of an actual forfeiture, which is administered in a summary way, on an application to the equitable powers of the court. There was in truth, therefore, such a record as the de|cndanls had alleged in their plea.
Judgment reversed.