Donley v. Brownlee

Per Curiam. The condition of this recognisance “ to prosecute this appeal with effect,” is in substance the condition prescribed by the act of 1810, which allowed the bail to discharge himself by surrendering his principal. When the act of 1842 abolished imprisonment for debt, and made it impracticable to surrender the body, it became necessary to alter the form of the recognisance, in cases of appeal, to suit the altered state of the law; and this was done by prescribing a recognisance with condition that no part of the defendant’s property should be removed, secreted, assigned, or disposed of, so as to baffle an execution in case the plaintiff should recover. But, as the defendant could not have been surrendered in discharge of his bail in the case before us, the recognisance, if valid for any purpose, would be a contingent engagement merely to pay the money, and, consequently, more burdensome to the appellant than that which is presented by the statute now in force. But that such a recognisance is void, was held in Thomas v. Stewart, 2 Penna. Rep. 475, in the case of a similar recognisance on the act of 1819, which exempted women from imprisonment for debt; and it is applicable in every respect to the case before us. As a void record is no record, the plea of nul tiel record, therefore, was properly sustained. Judgment affirmed.