
    Lee’s Administrator v. Carter & Forbes.
    January, 1812.
    
      t. Judgment by Default — Appearance Bail. — Where the defendant to a suit has not pleaded, hut his appearance hail has, a judgment stating, "that the attorney for the defendant withdraws his plea, &c. and therefore that the plaintiff recover against the defendant,” must he understood as a judgment against the hail only; (without including the principal:) and is therefore erroneous. See wallace v. Baker, 2.Munford, p. 334.
    In an action of debt in the Northumber-land District Court, on behalf of Richard Bland Dee, administrator, with the will annexed, of Richard Dee, deceased, against John T. Carter, surviving obligor, in a bill penal executed by him and John James Maund, deceased, a common order was entered and confirmed, at Rules, in the clerk’s office, against the defendant, John T. Carter, and William Forbes, the bail, for his appearance. At the ensuing District Court, the defendant having failed to appear, or give special bail, the appearance bail was allowed to defend the suit, and pleaded payment, whereupon issue was joined. At a subsequent term a judgment was entered in the following words: “This day came the parties by their attorneys, and the attorney for the defendant withdraws his former plea in this cause, and saith, that he is not informed by the said defendant of any answer to be given for him to tne plaintiff in this action, whereby the defendant remains altogether undefended ; therefore it is considered by the Court, that the plaintiff recover against *tbe defendant the sum of five hundred dollars, the debt in the declaration mentioned,” &c.
    
      
      See foot-note to Vanmeter v. Fulkimore, 1 Hen. & M. 329: monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425
    
   To this judgment a writ of supersedeas was awarded; and, on Saturday the 25th of January, 1812, the following opinion of this Court was pronounced by

JUDGE ROANE.

“The judgment of the District Court is defective in this, that when the plea was withdrawn by the appearance bail, who was the defendant in the issue formed by that plea, the Court ought to have entered judgment, as well against John T. Carter, against whom an office judgménthad theretofore been confined, as against the said appearance bail. The judgment is therefore reversed with costs; and this Court, proceeding, &c. It is considered that the appellant recover against William Eorbes, the appearance bail, (as to whom this suit remains undefended,) and against John T. Carter, (against whom there was an office judgment confirmed at August rules, 1803,) the sum of five hundred dollars, the debt in the declaration mentioned, and his costs; but this judgment is to be discharged,” &c.  