Lyon & Knighton v. Harlow and others, 7 Mo. 345

Opinion of the Court, delivered by Tompkins, Judge. This was an action, of trespass, commenced by the plaintiffs against the defendants, by writ of capias. The defendants having appeared, moved to quash the writ. The circuit court sustained the motion, and dismissed the suit.

The statute provides, that the.court at any time pending the suit, if they be satisfied that bail ought not to have been required, may vacate the order, allowing the capias, or may direct the recognizance to be cancelled, or the defendant ° be discharged from imprisonment; and in every such case shall order his appearance to be accepted, and' the suit to proceed in all things, as if the original had been a Summons, See Digest, page 4£>3. The circuit court committed' error, then, in quashing the writ, and in dismissing the suit.

The plaintiffs should have been permitted to proceed in.their suit, as if a summons had been issued in the firstinstance. The judgment of that court is therefore reversed, and, the cause will be remanded for further proceedings, in conformity with this opinion..