delivered the opinion of this court.
In the court below, application was made by the defendant, Kershner, at the trial term, to strike out the entry of special bail and appearance, for him, upon the ground, that the special bail was for Schleigh alone, and that the defendant, Kershner, had not given bail, in point of fact, or authorised an attorney to appear for him.
The declaration had been filed, and by the rules of Washington county court, the rule-day to plead had passed; but it was in the power of the defendant, to have pleaded to the merits of the case.
The motion to rectify the proceedings, is not on behalf of the bail, but on behalf of the defendant, who alleges, that the special bail, and the appearance of an attorney, have been entered for him, without his authority; and he insists, that he possesses the right, to have the entries of bail and appearance stricken out.
The consequences arising from a gratification of the defendant’s motion, would be an amercement of the sheriff for his failure to appear; and if he did afterwards appear, to let him in to plead any plea to the action, whether to the merits or not. The injury he has sustained, if the facts be true, is, that he is precluded from pleading any dilatory plea; or any plea which is not to the merits of the action. But nothing had occurred at the time of the motion, which prevented him from pleading, whatever plea he might choose to plead, to the merits of the action.
No doubt, on the application of the proper party, and at the proper time, mistakes may be corrected; but it would be a dangerous exercise of power, to apply the principle to every case which might be presented. It would, no doubt, have been competent for the defendant, Kershner, notwithstanding the alleged mistake, subsequently, so far as he was concerned, to have sanctioned the entry of special bail; and we think he has done so in this case. Before the expiration of the rule-day, his attorney examined the papers in the cause, enquired of the clerk as to the rule-day for filing pleas, and receiving the information, remarked, it was yet time enough; and again, *312afterwards, asking the clerk for the same papers, declared his intention to file the plea of limitations. In this there is a full recognition, that bail had been properly entered, or there would have existed no right to plead to the action.
To this portion of the evidence we are disposed to give the greater weight in the case before us, because it was the duty of the defendant to have appeared at the return of the writ, and to have entered bail and appearance; because the gratification of his motion would occasion the amercement of the sheriff; would enable him to plead otherwise than to the merits of the case; and because, by the refusal of his motion, he could have been deprived of no meritorious defence.
It is apparent from' the evidence, that the defendant had an opportunity to have availed himself of the plea of limitations, notwithstanding these entries. He knew that bail and appearance had been entered for him before the rule-day, as his attorney examined the papers before the rule-day; and if with this knowledge he has failed to avail himself of rights entirely within his power, and of which he has in no manner been deprived by the entries, of which he complains, he cannot expect the aid of this court, to relieve' him from the consequences of his own supineness.
At March term 1845, this cause' stood regularly for trial, and was under rule-plea, when the rule to shew cause, above referred to, was laid; and on discharging the rule to shew cause, judgment, as for want of a plea, in the then state of the record, would have been properly rendered. That the judgment has not assumed the form of a judgment, nil (licit, is no doubt a clerical error. But whatever may be the character of the error in the judgment, as no motion was made to the court, or its attention in any manner called to the subject, we could not reverse the judgment: the act of 1825, chap. 117, prohibiting the reversal of any judgment, except upon a point decided by the court below. Sasser and Walker's Exs., 5 G. & J., 102. Boarman vs. Israel and Patterson's Ex., 1 Gill, 381. We therefore affirm the judgment of the court below.
JUDGMENT AFFIRMED.