certain whether any judgment could have been the equitable merits were really left open to the recovered upon them. The learned counsel here entered into a minute analysis of the counts, in order to show that complete justice could not be done in the action at law, upon the equitable merits of the case, considered as a case of trust, complicated accounts, and fraud. The original trust was never tried, and could not be tried. A declaration could not be framed to try it fully and effectually. A complicated account may indeed be examined at law. There is no defect of jurisdiction; but there is an insurmountable difficulty in doing justice. A court of law is not adapted, although it has jurisdiction, to arrive at a just result on such a subject; and as matters of account are a proper subject of equitable jurisdiction, equity will interpose on the mere ground of that difficulty, notwithstanding there has been a trial at law. The want of the defendant's oath, which this 461*] bill, in seeking *relief, calls for, was alone an insurmountable obstacle. This is not a bill for discovery merely; if it was, it could not be maintained; for then it would not be a case for equitable cognizance, and the plaintiff should have come here for a discovery during the lis pendens at law. But although it is a bill for relief, discovery is most important to that relief. The relief was always in the power of a court of equity, and one of the reasons why this court ought not to be satisfied with what has been done at law. is, that at law, there could be no discovery. The examination into the trust, and its abuses, could not be complete without the defendant's oath. If the plaintiff had come into equity seeking discovery and relief, while the suit was depending at law, the Court of Equity would have taken the whole cause under its care, and would have determined it as now required to do; and the principle is not altered by the suit at law having proceeded to judgment, since the cause has not yet been decided upon the defendant's oath. Where a bill alleges that a verdict has been obtained, on a matter of equitable cognizance, against the defendant's knowledge of the merits, a reliance upon such a verdict is as much against conscience as to that defendant, as the alleged breach of trust itself. In this case, the plea is no bar to the relief, if the defendant's knowledge makes the verdict unconscientious. A judgment may, indeed, be pleaded in bar, where the matter has been fully tried, and where the judgment is not impeached through the conscience of the defendant If the bill alleges nothing, that if true, convicts the defendant of knowledge that 462*] his *verdict is against conscience, the plea is good. But a court of equity ought not to relinquish its jurisdiction, until the defendant has maintained the verdict, on a matter of equitable cognizance, by his oath. jury. 3. But supposing the plea to be proved, is its sufficiency now open for inquiry? And certainly the general rule would exclude that inquiry; pleas are not usually forestalled by the bill; but if the bill shows what, if true, would invalidate the plea, taking issue on it does not cure the defect. But, it has been before shown, that this bill does allege such matter, and the plea admits the whole of it by not denying it. It is true that the defendant cannot amend his plea, but he may be ordered to answer, reserving him the benefit of his plea at the hearing, and in that mode justice will be done. 3 *Mr. Webster and Mr. Jones, contra, [*463 insisted, that no question could arise on the sufficiency of the plea in point of law, for by going to issue on the facts alleged in the plea, the parties have waived all objections of that nature; or, in the words of Gilbert," if a party replies to a plea before it comes on to be argued, this is as full an admission of the plea as if it had been argued and allowed; for the plea by this replication is allowed to be good; only the defendant is put to the proof thereof; and so he may be, when it is argued and allowed. But if he proves his plea, the bill must be dismissed at the hearing." Thus, if the defendant, in pleading a purchase for a valuable consideration, omits to deny notice; if the plaintiff replies to it, all that the defendant has to do, is to prove his purchase; and even if the plaintiff proves notice, it is immaterial; for it is the plaintiff's own fault if he does not set down the plea to be argued, in which case it would be overruled. So here, if the plea had been bad, the plaintiff should have set it down for argument. The plea consists of two material parts; it alleges a judgment at law, for the same cause of action, in a court of competent jurisdiction; and it avers that there is no ground to impeach that judgment, and no new evidence discovered to enable the plaintiff to go behind it. There is the same strictness of pleading in equity, as at law; but if the rule were not so, this plea is sufficient. *The general principle is clear, that a [*464 judgment in a competent court, is a bar to a proceeding for the same cause of action in any other court. It is conclusive as to every matter which might have been litigated and decided in the first suit. The rule in equity is the same in this respect as at law. Nor does it make any difference, that the case is proper, in itself, for equity jurisdiction. If so, a judgment at law could never be pleaded in bar of a suit in equity. Questions of fraud and trust are not the peculiar and exclusive subjects of equity jurisdiction. Whenever courts of common law can reach these subjects, they dispose of them effectually and conclusively. If a particular subject is common to the two jurisdictions, the judgment of the tribunal which first 1.-Coop. Pl. 227. 2.-Gilb. For. Rom. 98; Mitf. Pl. 244; Beames's Eq. Pl. 31;2 Eq. Abr. 79; Wyatt's Prac. Reg. 376;1 Scho. 2. It has already been shown, that the merits of the cause could not have been fully and fairly tried at law, and the judge's charge shows that they were not. But it is said that the plaintiff ought then to have moved for a new trial; and certainly upon a matter which a court of law only had a right to dispose of, this would have been the proper course. But this is a matter of equity, and if the party will set up a trial at law as a bar to equitable relief, he must show it, as he alleges it to be, a full and fair trial, and that Wms. 156; 1 P. Wins. 154. & Lefr. 725. 3. Harris v. Ingleden, 3 P. Wms. 95. 4.-2 Atk. 632. 5.-3 Atk. 626. 6.-1 Burr. 396; Mitf. Pl. 90; 3 Bl. Com. 431; 2 P. ཁ appropriates it to itself, must necessarily be conclusive, otherwise the party might speculate upon his chances of recovery in both; and as the courts of the Union are now constituted, we should be presented with the novel spectacle of a party suing on both sides of the circuit court for the same cause of action. Here the judgment is as good a bar to the discovery as to the relief. So, a plea of the statute of limitations, or the statute of frauds, is a bar to discovery as well as relief. And it is now the settled course of proceeding, that if a bill is 465*] filed for discovery and relief, *and the plea is sufficient to bar the relief, it is held sufficient to bar the discovery.3 It is the general rule, that a plea confesses and avoids; but that principle does not apply in this case, where the defendant denies every allegation of the bill, and supports his denial by the former trial and verdict. Had it been a plea of payment, or release, or of the statute of frauds, or limitations, the rule might be applicable. The real defense is, that this matter has been before tried, and found against the plaintiff. If the defendant had answered more, he would have overruled his own plea. ordinate tribunal, or one of a different jurisdiction. Parties must prosecute their rights in due time, and before the proper forum; and having once elected their forum, the decision is conclusive, not only as to the matter actually adjudged, but as to every matter which might have been litigated and decided. In the action at law, the judge's charge might have been excepted to, if erroneous, and a new trial granted, which is in itself a sort of equitable right; but if the charge was correct, no injustice has been done. The present bill avows it to be for the same cause of action, and does not allege any *incompentency in the jurisdiction [*467 of the court of law. It sets up no new right, but merely contends, that the plaintiff had a right then, on matter discovered since, but existing at the time. The question now is, not as to the goodness of the counts in the plaintiff's declaration, but whether the merits have been substantially tried upon them; not intending, however, to admit, that the counts were not sufficient. The regular course of the Court of Chancery, in such a case, is to refer them to the master to report whether the cause of action be substantially the same." As to the principles which govern courts of equity in setting aside verdicts as againt equity, it must be shown that at the time of the trial at law some material fact existed, within the defendant's own knowledge, different from the finding of the jury. Here there is no such fact; and even if there had been, if it was also within the plaintiff's knowledge, he should have filed a bill of discovery, lite pendente, to obtain the defendant's answer on oath. Supposing the testimony of E. Williams to be true, it establishes no fact existing at the time, which is essential to entitle the plaintiff to relief in equity. But his testimony is explicitly contradicted by the defendant's answer; and the plea must therefore stand, being supported by the answer, and contradicted by the testimony of a single witness only, unsupported *by circumstances to strengthen its [*468 credibility. The transactions between the parties took place more than twenty years ago. The plaintiff had an opportunity of establishing his pretended claim in the tribunal which he had elected, and in which he failed; and the defendant has a just right to avail himself of that failure as a bar to any further proceedings in a case where, besides the solemn trial which has already been had at law, he has now purged his conscience of the allegations of fraud, which have been made against him without the slightest foundation in the facts and circumstances of the case. Where is the authority for asserting, that it is no objection to the present bill, that a discovery was not sought pendente lite? What use could now be made of a discovery? It could not aid any proceeding elsewhere; and could only be used as a ground for relief in the present suit. The whole of the argument on the other side, on this point, rests on the notion, that the plaintiff may sue at law, and being defeated there, may, of course, file a bill in equity for the same matter. The unavoidable consequence of that doctrine would be, that in no case could the judgment of a court of law be pleaded in bar to a suit in equity. Here the cause of action is equally within the jurisdiction of a court of law, which has pronounced upon it, and whose judgment must, therefore, be conclusive in all other courts; and the argument against its conclusiveness, in this case, goes on the supposition, that the defendant can466*] not set up the judgment without undertaking to prove that it was a correct judgment on the merits, or, in other words, without going through the whole process of trial again. The plaintiff had to choose between three different courses. He might sue in equity; he might sue at law, and file a bill for discovery, lite pendente; or he might bring an action at law, and go to trial without the aid of a discovery. He elected the latter course, and must be bound by it. The verdict and judgment constitute a flat bar. The plaintiff is not now entitled to a discovery, unless he is entitled to relief; he is not entitled to relief, because it is a res judicata. A court of equity cannot try over again the merits which were fully tried in the former cause. To revise the merits of a cause which has been once tried between the same parties, and in a competent court, is the province of an appellate court, and not of a co-proved; and if so, whether any other decree, 1.-Mitf. Pl. 193. 2. Coop. Pl. 251, 255, 257; 1 Bro. Ch. 305. 3.-9 Ves., Jun., 75. 4. Le Guen v. Gouverneur, 1 Johns. Cas. 436; Per Kent, C. J., Bateman v. Willoe, 1 Sch. & Lef. 201. Mr. Justice LIVINGSTON delivered the opinion of the court, and after stating the pleadings, proceeded as follows: In examining whether there be any error in the decree of the court below, we shall have to inquire whether the plea of the respondent is 5.-1 Vern. 310.; note; Raithby's ed. 6. Lee v. Williams, 3 Atk. 224. 8.-Walton v. Hobbse, 1 Atk. 19, and the cases there cited; 2 Ves., Jun., 243; 1 Bro. Ch. 52; 1 Johns. Ch. Cas. 459; 3 Ves., Jun., 170. except that of dismissing the bill, could have been made by the court below. made only one appropriation for such object, no one could complain. That the fund spoken In examining the question of fact, that is, of by Williams, which arose out of Newman's whether the plea were proved or not, it will be note, was not applied to the indemnity which borne in mind, that no decree can be made has so often been mentioned, appears not only against a positive denial of the defendant, of by an averment in Blake's plea to that effect, any matter directly charged in the bill, on the but by the testimony of Gibson *him- [*471 testimony of a single witness, unaccompan- self, a witness of the appellant, who declares, ied by some corroborating circumstance. that the note of Newman was subject to his 469*] *There is no pretense that there is any order; that no privity existed between Williams thing untrue in any of the averments which the and Blake respecting the same; and that it had plea contains on the subject of the proceedings not been placed in Blake's hands as an inat law-such as that a judgment was obtained demnity for becoming his bail. It follows. by the respondent-that the same is in full therefore, that Blake could not have obtained force, &c. The first averment in the plea, which from Williams any allowance or payment on will require a more particular consideration, is account of this responsibility; and we accordthe one denying that the respondent had at any ingly find, from the bill itself, that on a settletime obtained from E. Williams, any allowance ment which took place between Blake and Gibor payment, for, on account of his being son, in November, 1796, about two months bail for Gibson, in an action brought against after the acceptance in favor of the appellant, him by one Evans. The respondent had been the former fell in debt to the latter a sum expermitted, as appears by the facts of the case, ceeding two thousand dollars, the payment of to retain out of a fund, on which the appellant which, by Blake, is one subject of complaint in had a claim, a considerable sum to save him the appellant's bill. Now, it is more than probharmless against this responsibility, and which able, that in this settlement, Gibson received a was, in all probability, allowed to him, on the credit for the very money of which Williams trial at law. If, therefore, it could have been speaks, as Gibson acknowledges it to have been shown that Blake had been fully indemnified, a final settlement of all the accounts between or paid for this liability from any other quar- him and Blake. The court, therefore, is enter, and that this fact had come to the appell- tirely satisfied, that the averment in the respondant's knowledge since the judgment at law, it ent's plea, which it has just been considering, would seem no more than equitable, notwith- is fully established, and that the proof is such standing these proceedings, thus far to open as to leave no room whatever to believe, that the account between them. But has this been Blake was ever repaid the moneys he advanced done? The allegation of the bill in substance as the bail of Gibson, from any other fund is, that Blake has been twice indemnified for than that which the appellant had consented the same loss, or, in other words, that he had been should stand pledged for that purpose. As littwice re-imbursed the moneys which he paid the truth is there in the allegation, that what as the bail of Gibson. This fraud, which is so Williams could testify on this subject, was ununhesitatingly charged upon the respondent, is known to Hughes during the pendency of the not made out by any testimony in the cause. action at law; for Williams, who is examined Independent of Blake's positive and absolute as a witness for the *plaintiff in this [*472 denial, which is equivalent to the testimony of suit, swears to the very fact, which he had one witness, there is nothing in the deposition been produced to prove in the action at law re470*] of Williams, who is the only witness specting the declarations of Blake concerning to this point, to establish the fact as stated in Newman's note; and this he does without any the bill. This gentleman has been twice ex-variation from his former testimony, materially amined, once in the year 1805, as a witness in affecting the present suit. The other averthe trial at law, and again, as a witness in this ment, therefore, in the plea, that no new evicause. On his first examination, he stated that dence has come to the appellant's knowledge he was informed by Blake that he held in his respecting the matters in litigation, is fully and hand about $6,300, which had been receiv- satisfactorily established. ed of Henry Newman, as an indemnity for his having become bail for Gibson in an action by some person whose name he did not recollect. on which pretense Blake refused to pay him this sum. In the second deposition, which was taken in this cause, he swears that he was informed by Blake, that he had received from Newman about $6,000, which he should retain, in consequence of his liability to Evans, as the bail of Gibson; and that he, Williams, allowed the respondent to apply this money for that purpose. Now, admiting that Blake retained these moneys, and with the consent of Williams, who, it appears, however, had no interest in, or control over them, with intent to apply them in this way, where is there any proof whatever, in contradiction of Blake's answer that he ever did make that use of them? He might have securities of Gibson of various kinds, the avails of which he might have a right to retain for the same object, but if he actually The truth of the plea being thus made out. what is to be the consequence? If the rule of courts of equity in England is to be applied, there can be no doubt. If a plea, in the apprehension of the complainant, be good in matter, but not true in fact, he may reply to it, as has been done here, and proceed to examine witnesses in the same way as in case of a replication to an answer; but such a proceeding is always an admission of the sufficiency of the plea itself, as much so, as if it had been set down for argument and allowed; and if the facts relied on by the plea are proved, a dismission of the bill on the hearing is a matter of course. Whatever objection there may be to adhering strictly to this course of proceeding in every description of cases, it is considered as the long and established practice of a court of equity, which ought not lightly to be departed from. It is not perceived, that any serious mischief can arise from it. Counsel will gen erally be able to decide on the merits of any defense which may be spread on a plea, and if insufficient, it is not probable they will do otherwise than set it down for argument. 473*] *Nor will they ever take issue on it, but in a case which presents a very clear and sufficient defense, if the facts be proved. If a replication should be filed inadvertently, the court would have no difficulty in permitting it to be withdrawn. But if the plaintiff will persevere in putting the defendant to the trouble and expense of proving his plea, it must be from an entire conviction that it contains a substantial defense, and in such case there is no hardship in a court's considering it in the same light. But without applying the rule which has been mentioned, to the present case, the court has no difficulty in saying, that the matters set forth in this plea, which has been drawn with great care and judgment, constitute a complete defense to the present action, and that the appellant has failed in showing any good cause why the judgment at law should not be conclusive on all the matters stated in the bill. Whatever claim he may at one time have had on Blake for one fourth of $75,000, secured by Barrel's notes, if Blake knew at the time of taking them of his interest to that extent, or for not taking a note for that amount in the name of Hughes himself, it is very certain that with a full knowledge on his part, that Blake utterly denied a liability to account with anyone but Gibson, he came to a settlement with him, by allowing him to accept of Gibson's draft, in his favor, in such way as to charge the fund on which it was drawn with so many deductions 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.1 Aff'g.-1 Mason, 515. Wall. 30; 9 Otto, 206; 5 Bank. Reg. 264; 1 Cliff. 278, Cited 10 Pet. 209, 211; 14 Pet. 257; 2 Wall. 430; 16 506; 2 Cliff. 51, 79; 3 Cliff. 497; 4 Cliff. 459; Bald. 491, 495; 1 Ware, 388. [LOCAL LAW. PRACTICE.] BARTLE v. COLEMAN. fendant may enter special bail, and defend the suit Under the act of Assembly of Virginia, the deat 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 would have been liable to; but the defendant canis liable to the same judgment as the defendant not appear 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 as entirely to exhaust it. And when he is a the plaintiff in error, and by [*476 Mr. Jones and Mr. Taylor for the defendant in error. prised of this conditional acceptance by his 474*] agent, or the person who 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 favor 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 con475*] formity with the agreement of *the Mr. Chief Justice MARSHALL delivered the opinion of the court: 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 meantime, 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, 1.-Vide 1 Mason's Rep. 515., S. C. 2. He cited Dunlop v. Laporte, 1 Hen. & Mun. 22; Gray v. Hines, 4 Hen. & Mun. 437; Fisher v. Riddle, 1 Hen. & Mun. 329. 3. They cited Holdup v. Otway, 2 Wms. Saund. 106, and the cases there cited; Gould v. Hammersley, 4 Taunt. 148. 477*] 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. to refer 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. It has been contended, that the consent of Samuel Bartle must also be implied. We do not think so. It is reasonable to suppose that his name would have appeared, had he been a party to the rule. But it was not necessary that he should be a party to it. Andrew Bartle was himself competent to make this reference, and less it be to defend the suit in consequence of the appearance bail never comes into court, unBut, the non-appearance of the defendant. Bartle could be inferred, it would, nevertheless, be also true, that Andrew Bartle appeared, by the admission of the plaintiff; and such appearance, according to the decisions in Virginia, discharges his bail. were it even true that the consent of Samuel In other respects, too, this law which authorizes a judgment against the appearance, or comIn the mode pursued by the clerk, in makmon bail, without the service of process on ing his entry, the usual form of saying "this him, has been construed with great liberality. day came the parties, "&c., is not pursued. But The cases which have been cited, show that this is immaterial, because the parties perform the decisions in the Court of Appeals of Vir- an act in court, which could not be performed ginia have settled principles which seem to without appearing; they consent to a rule decide this case. It has not only been determin- which implies appearance, and the form of the ed that the defendant may enter special bail, and entry cannot affect its substance. Were it otherdefend the suit at any time before a final judg-wise, the appearance of the defendant is enterment, but also, that if he appears and pleads, ed in the usual form before final judgment. On without giving special bail, or appears and confes the return of the *award, the following [*480 ses judgment, the appearance bail is discharged. entry is made: "And now here, &c., at this 478* *It is also well known to be the settled day, &c., came, as well the plaintiff aforesaid, practice of Virginia, if special bail be given, to dis-by his said attorney, as the said defendant, by charge 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 479*] by his attorney. *But were it even supposed to be in the power of Samuel Bartle, Thomas Swan, his attorney, and the following award was returned," &c. The award is then recited, which shows, that the arbitrators proceeded on notice to Andrew Bartle only, and the judgment of the court is immediately rendered for the amount of the award against "Andrew Bartle, the defendant, and Samuel Bartle, the security for his appearance." Yet the appearance of Andrew Bartle is formally entered on the record previous to this judgment. If, instead of entering the judgment in pursuance of the award, it had been entered in pursuance of the confession of the defendant, this would have been the very case cited from 1 Hen. & Munf., 329. And what distinction can be taken between this case and that? The counsel for the defendant in error says, that a judgment by confession is a different judgment from that entered in the office, and, therefore, must be a substitute for it received by consent of the plaintiff. And is not this also a different judgment from that rendered in the office? And is it not entered at the instance of the plaintiff? Were it necessary to pursue this argument further, we should all be of opinion, that judgment could not be rendered against the appearance bail on this award, and without executing the writ of inquiry, unless by his consent. But as we are of opinion, that the appearance of the defendant has discharged his bail, it is unnecessary to pursue the subject *far- [*481 ther. The judgment against Samuel Bartle is erroneous, and as it is joint, it must be reversed against both. Judgment reversed. |