King v. Bank of Gettysburg

Per Curiam: — This case comes here in an unusual shape. Matters which would induce a court to stay proceedings on the bail bond, do.not constitute a bar, and cannot be pleaded. They constitute a subject of legal discretion, and not of error. But the parties desire our opinion on the question made below, and this presents no difficulty. The material inquiry is, whether the plaintiff was delayed by the" want of an appearance. The condition of the bond might have been literally performed, notwithstanding the privilege of the principal. .But it would have been useless to enter special bail, as the bail would, at the same instant, have been entitled to an exonereturj and the proper course, therefore, was to enter a common .appearance. Whether the name of an attorney in the margin of the docket, without an explicit minute among the docket entries, be such an appearance, it is unnecessary to determine. Granting that it is not, yet the plaintiff lost no advantage by the want of an appearance, but had it in his power to gain one. With an appearance he could, at the second term, have demanded a plea; without on$, he could demand judgment. If he was delayed, it was his own fault, and the- court should have restrained him from proceeding further on the bail bond. Judgment reversed.