(delivered the opinion of the Court.) The eiror assigned is, that the defendant entered a rule for arbitration, without entering special bail. The defendant cannot by his own act, deprive the plaintiff of special bail. But it appears, that the plaintiff filed a statement of his cause of action, and appeared by his attorney, and pleaded his cause before the referees. After this, he cannot assign for error, fhat the defendant did not enter bail. By his conduct he has accepted an appearace without bail. We are, therefore, of opinion, that the judgment should be affirmed.

Judgment affirmed?