The court are unanimously of opinion, that judgment should be affirmed. The bail bond was forfeited and put in suit, before the implied waiver by accepting a plea took place; and if the defendant was desirous to take advantage of it, he should have applied to the court below by 7notion, to set aside or stay proceedings in the bail bond suit, when justice might have been done according to the circumstances. We must not be understood however to give any sanction to trying matter of record by a jury; but it having been by consent, we do not think it necessary in this instance to notice it.
Judgment affirmed.