Jones v. Bomberger

Mr. Justice Mercur, delivered the opinion of the court, May 2d 1881. This is a scire facias sur recognizance against the plaintiff in error as hail for stay of execution on a judgment against Barbara Wadlinger. It was conditioned for the payment of the “judgment-debt, with interest and costs.” During the time the execution was stayed by virtue of this recognizance no part of the judgment was paid. At the expiration thereof the plaintiff in error, by the condition of his recognizance,, and by force of the Statute, became legally bound for its payment. The Act of 20th March 1845 declares “the bail in all cases, where bail is now required for the stay of executions, shall be bail absolute, with one or more sufficient sureties, in double the amount of the debt or damages, interest and costs recovered, conditioned for the payment thereof in the event that the defendant fails to pay the same at the expiration of the stay of execution.” The defence to a recovery on this recognizance is that, after the scire facias issued, Barbara Wadlinger applied to the court, showing she was a married woman when the judgment was recovered against her, and that the claim on which it was founded was not for necessaries, nor for a consideration that would render her liable to suit under the Acts of Assembly, and by reason thereof the judgment and all proceedings thereunder were set aside and stricken from the record. The contention is whether striking off the judg [436] ment at the time it was dofie and for the cause stated released the plaintiff in error from all existing liability on. his recognizance. A recognizance is an obligation of record. When entered into to secure a stay of execution it is a new and distinct agreement to pay on failure of the former debtor. So far as the bail is concerned, it is an original undertaking, independent of all questions considered in the trial or determined thereby, save only a recognition of the amount found due. It is an obligation which the law permits the bail to assume without consent of the creditor, and against his wish. It becomes absolute on the happening of the contingency specified therein. It is so distinct from the judgment that proceedings may then be instituted thereon at once without first resorting to the defendant in the judgment. It was urged that the obligation is conditioned for the payment of the judgment, and if that be afterwards stricken off or declared to be void, all liability on the recognizance is thereby discharged. It will be observed the Act of 1845, defining the liability of bail for stay of execution, does not declare the bail shall be conditioned for the payment of the judgment, but for “the debt or damages, interest and costs recovered.” So the recognizance taken is conditioned for the payment of the “judgment-debt.” It is a debt, the amount of which has been ascertained and fixed by the judgment, but it is nevertheless a debt. The obligation on the part of the bail is a contract to pay the debt which has thus been ascertained. Eor some purposes a distinction between the debt and the judgment is a narrow one ; yet the Act of Assembly appears to have purposely specified the former and not the latter. In other cases it. is very clear the distinction may be a wide one. The debt may be just and equitable in every respect, yet the judgment may be so defective, by reason of either improper service or errors in trial, that it might be reversed. If the defendant in the judgment is satisfied with its justice and assents to its confirmation, if a third person then steps in and agrees if execution be stayed for a specific time he will pay the debt at the expiration thereof, and' execution be thereupon stayed by reason of his promise, and his liability has become absolute, no principle of equity will relieve.him from his obligation on showing that by reason of personal disability of the defendant the judgment ought not to have been rendered, and that afterwards, on the ground of personal privilege, it was stricken off. It is not alleged that Mrs. Wadlinger did not buy goods to the full value of the debt claimed, nor that she did not receive and enjoy the same. The vendor parted with his property, and she received it under a moral obligation on her part to pay for it. The fact that by reason of her coverture she could not be legally compelled to pay, did not prevent the plaintiff in error from becoming legally bound for its payment. Her moral obligation to pay, and the extension of time obtained constituted a sufficient [437] consideration to support the express promise of the plaintiff in error to pay: Leonard v. Duffin, 9 W. N. C. 155; Unangst v. Fitler, 3 Norris 135. Although the married woman may not be legally bound, yet the .security can be. The rule and the authorities applicable to cases where there is no just or equitable claim, are inapplicable to the facts of this case. When the judgment was obtained against Mrs. Wadlinger, and she procured bail for stay of execution, she gave the strongest evidence of a liability to pay without objection. Had not die plaintiff in error then intervened, the presumption is, execution would have issued and the money been made. Having thus postponed the exercise of a valuable right, he has shown no equity sufficient to discharge his liability. Judgment affirmed.