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 appearance. The 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 defendant 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.
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, and omission which could not have been made had he actually appeared, the 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 attorney. But were it even supposed to be in the power of Samuel Bartle to reter the suit of Coleman against Andrew Bartle, he could not refer that of Andrew Bartle against Coleman; and this suit also is embraced in the same rule.
It is then apparent, that it is Andrew Bartle who consented to this rule.