Allen v. Kellam

Mr. Justice Sterrett delivered the opinion of the court, The Act of 1836, relating to bail in error, provides that execution shall not be stayed unless the plaintiff in such writ, or some one on his behalf with sufficient sureties, shall become bound by recognisance with condition to prosecute the writ of error with effect, &c. A recognisance with a single surety is not a supersedeas by mere operation of law, and the party in whose favor judgment has been entered in the court below may disregard it and proceed with his execution as though no recognisance had been given: Rheem v. Naugatuck Wheel Co., 9 Casey 356. But a recognisance defective in form may derive validity from the consent, express or implied, of the parties intended to be affected by it. It is tendered to the defendant in error as security in consideration of the delay and risk to which he may be subjected, and if he elects to accept and treat it as valid, and for this reason forbears to proceed by execution pending the writ of error, neither the principal nor the surety can evade liability on the ground of non-conformity to the requirements of the statute. The recognisance may be sustained as a voluntary personal contract based on sufficient con [255] sideration. But such a state of facts is not presented in this case. The plaintiff in error in his affidavit of defence, which was adjudged insufficient by the court below, says, among other things, that he was -the only surety in the recognisance; that after it was filed, and pending the writ of error, the plaintiff below treated it as a nullity, issued execution, and proceeded as though no recognisance had been given; that having so proceeded he lost no right or security by reason of the writ of error. The facts thus alleged, if true, constitute a good defence; and for the purposes of the present inquiry we must assume that every allegation contained in the affidavit of defence is strictly true. It may be that on the trial of the case the plaintiff below will be able to show what he now alleges — that execution was stayed and by common consent the recognisance was treated as valid and binding. This may become a question of fact for the jury, but, in passing upon the sufficiency of the affidavit of defence, we cannot undertake to determine disputed questions of fact. The only pertinent inquiry in a case like this is whether the allegations of fact contained in the affidavit of defence, assuming them to be true, constitute a defence. The recognisance in this case was so defective in form that the defendant in error had a right to treat it as a nullity; and the allegation is that he did so treat it, “ issued execution, and proceeded therewith, pending the writ of error, as though no recognisance had been given.” This, if true, is a good defence to the scire facias on the recognisance. Judgment reversed and a procedendo awarded.