1821.

Hughes

V.

Blake.

presented the draft, instead of returning it, or making any complaint, he acquiesces in it for seven or eight years, and then brings an action to enforce this very contract of acceptance, which he must have known put it in the power of the acceptor to make all the deductions from the fund in his hands, which were designated in the act of acceptance. After six years litigation in a Court of law, it is now attempted to revive the same controversy, at least in part, on an allegation that Blake received a compensation in some other way than out of the fund, on which the bill in his favour was drawn, for one of the liabilities mentioned in the acceptance. That this was not the case, is abundantly proved. But if Blake had other funds of Gibson, besides the note of Barrel, which he also considered as under Gibson's exclusive control, out of which his indemnity as bail might have been obtained, what right has Hughes now to complain, that such other funds were not applied in that way, after he had agreed or consented that this indemnity should come out of those funds of Gibson in the hands of Blake, out of which he was to be paid. Having come into the arrangement, Blake might well think himself at liberty, as it seems he did, to apply the other funds of Gibson in any other way which he and Gibson might think proper. Whether Gibson be liable to the appellant for the subtraction of any part of his fund for the payment of his debt, is a question not before the Court; but we cannot see that an application of them in express conformity with the agreement of

the parties to this suit, can give the appellant any claim on the respondent. At any rate, the plea having denied all the allegations which were relied on as grounds for removing the bar which it was anticipated would be interposed to the appellant's bill, and all the matters stated in the plea, on which issue was taken, having been fully proved, the Court is of opinion, that the decree of the Circuit Court must be affirmed, with costs.

Decree affirmed.

a Vide 1 Mason's Rep. 515. S. C.

1821.

Bartle

V.

Coleman.

(LOCAL LAW. PRACTICE.)

BARTLE V. COLEMAN.

Under the act of Assembly of Virginia, the defendant may enter spe

cial bail, and defend the suit at any time before the entering up of judgment upon a writ of inquiry executed; and the appearance of the defendant, or the entry of special bail, before such judgment, discharges the appearance bail.

If the defendant does not appear, or give special bail, the appearance bail may defend the suit, and is liable to the same judgment as the defendant would have been liable to; but the defendant cannot ap. pear and consent to a reference, the report and judgment on which is to bind the appearance bail as well as himself. Such a joint judgment is erroneous, and will be reversed as to both.

THIS cause was argued by Mr. Swann, for the March 8th.

1821.

Bartle

V.

Coleman.

March 10th.

plaintiff in error," and by Mr. Jones, and Mr. Taylor, for the defendant in error."

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

ance.

This is a writ of error to a judgment rendered by the Circuit Court for the District of Columbia and county of Alexandria, against Andrew Bartle and Samuel Bartle, on a writ issued by George Coleman against Andrew Bartle, on the service of which, Samuel Bartle became bail for his appearThe defendant in the Court below not having entered his appearance, a conditional judgment was entered at the rules held in the clerk's office, against the defendant and his appearance bail. This being an action on the case, the judgment at the rules was for no specific sum, but for the damages which the plaintiff in that suit has sustained, which damages are to be inquired into, and ascertained by a jury. After this writ of inquiry shall be executed, and not till then, a final judgment for the damages assessed by the jury is rendered by the Court. In the mean time, the cause stands on the Court docket for trial.

The act of Assembly respecting this subject is in these words: "And every judgment entered in the office against a defendant and bail, or against a de

a He cited Dunlop v. Laporte, 1 Hen. & Mun. 22. Gray v. Hines, 4 Hen. & Mun. 437. Fisher v. Riddle, 1 Hen. & Mun.

329.

b They cited Holdup v. Otway, 2 Wms. Saund. 106. and the cases there cited. Gould v. Hammersley, 4 Taunt. 148.

fendant and sheriff, shall be set aside, if the defendant at the succeeding Court shall be allowed to appear without bail, put in good bail, being ruled so to do, or surrender himself in custody, and shall plead to issue immediately." "If the defendant shall fail to appear, or shall not give special bail, being ruled thereto by the Court, the bail for appearance may defend the suit, and shall be subject to the same judgment and recovery as the defendant might or would be subject to, if he had appeared and given special bail."

The Courts of Virginia have never construed this act strictly as to time. Although the absolute right given to the defendant to appear and set aside the judgment rendered in the office, is limited to "the succeeding Court," he has always been allowed to appear, and set it aside, at any time before it became final. In all actions which sound in damages, the judgment cannot become final, until the damages shall be ascertained for which it is to be rendered.

In other respects, too, this law which authorizes a judgment against the appearance, or common bail, without the service of process on him, has been construed with great liberality. The cases which have been cited, show that the decisions in the Court of Appeals of Virginia, have settled principles which seem to decide this case. It has not only been determined that the defendant may enter special bail, and defend the suit at any time before a final judgment, but also, that if he appears and pleads, without giving special bail, or appears and confesses judgment, the appearance bail is discharged.

1821.

Bartle

V.

Coleman.

1821.

Bartle

V.

Coleman.

It is also well known to be the settled practice of Virginia, if special bail be given, to discharge the appearance bail, although the defendant should not appear, but the judgment should become final, either on his default, or on the execution of a writ of inquiry. It is then settled, that the appearance of the defendant, or the entry of special bail, before final judgment, discharges the appearance bail.

Let these principles be applied to the case before the Court. While the writ of inquiry was depending, we find this entry on the record. "In the case of George Coleman, plaintiff, and Andrew Bartle, defendant; and Andrew Bartle, plaintiff, and George Coleman, defendant; by consent of parties this case is referred to Joseph Deane," &c.

Could this rule be made without consent? Or could this consent be given without the appearance of the party, by himself or his attorney? Both these questions must be answered in the negative. What party, then, did appear and give this consent? Was it Andrew Bartle, the defendant in the cause, who is named as the party, or was it Samuel Bartle, his appearance bail, who is not named? In addition to the omission of the name of Samuel Bartle, an omission which could not have been made had he actually appeared, and been a party to the rule, it is to be observed that he had no power to consent to it. The law allows him to defend the suit, but does not allow him to refer it to arbitrators. We do not hazard much in saying, that no Court would or ought to permit such a rule as this to be made, without the consent of the defendant given in person, or by his at