Johnson against Boyer, 3 Watts 376

The opinion of the Court was delivered by Gibson, C. J. An exemption from execution for a further time than the defendant would have had if the plaintiff had proceeded regularly to judgment, may perhaps discharge the bail on the principle which regulates the responsibility of sureties in equity; though even that is said to be a modern refinement, and not to be too much, encouraged. However, no such exemption is pretended here. But the bail may be discharged by circumstances of stipulated indulgence short of a grant of such further time.

Their power to arrest the defendant and keep him imprisoned, is derived from the right of the plaintiff to have satisfaction of the body, and ceases with it whether the cessation be induced by the act of the plaintiff or the act of the law. Hence it has been held by the English courts, that the defendant’s succession to a peerage, or to a seat in the house of commons, or bis transportation, banishment, death, or whatever else relieves or prevents him from making satisfaction with his body before the bait are fixed, exonerates them without a surrender.

But it has been determined that a cognovit taken on terms of personal exemption for a period no greater than the defendant would otherwise have had, produces no such effect. The solidity of this principle is denied by JWr Theobald in his Treatise on the law of Principal and Surety 216, note (e), on the ground that a suspension of the right of execution makes the defendant a freeman; and if a freeman against the plaintiff, then a freeman against the bail, substituted, as they are, for the plaintiff, with the same capacity, and no other, to affect the defendant’s liberty.

The decisions to the point are not authority here, and it is consequently necessary to see whether the objections to them are founded in reason. How far, then, the defendant is made a freeman by a limited stay of execution, whether absolutely and permanently, or but conditionally and temporarily, seems to be the matter most material to an inquiry into the foundation of the rule on principle; and must, depend on the terms of the stipulation, or where these are inexplicit, on the nature of it.

For if an agreement to postpone the time of execution be not a virtual and permanent relinquishment of the right to control the defendant’s liberty, it is not easy to see bow it can release the bail, an exact performance of whose recognizance is dispensed with only where a surrender would be nugatory, the principal being entitled lo he set at large the same instant. But would such a postponement entitle a defendant, in custody at the time, to be discharged without a condition to that effect on the cognovit 1 If such a condition could be fairly implied, the bail would undoubtedly be exonerated without a surrender.

But it is not nugatory where the body remains contingently liable; nor does it follow, on the very principle of the argument, that the bail are further exonerated than the defendant is himself.

Why then should they not be bound to produce him, according to the exigence of their recognizance, where the plaintiff’s right to demand him has ceased to be dormant and is put into immediate action 1 They cannot be injured by postponement for a period less than would entitle them to equitable relief, because they may relieve themselves by surrendering the plaintiff and leaving his right to liberation to be settled by the parties to the cognovit. They may surrender him on the original arrest, though an execution be not in the hands of the sheriff waiting for him.

It is said in effect, that though the immediate power of imprisonment is transferred to the bail, the plaintiff must retain the power of having it put in action by an execution ; and that he parts for a time even with these by a stay of execution.

But he has no such means before the recovery of judgment, till which time there is intermediately an entire cessation of his power; and the absence of it afterwards, consequently, cannot be the criterion : if it were, a temporary suspension of execution by a statutory provision, such as with us ensues a judgment on special verdict, demurrer, or case stated, in order to give time for a writ of error, would have the effect of working a dissolution of the recognizance, which it never was intended or supposed to have.

A writ of error which supersedes execution, undoubtedly discharges the special bail, because the bail in error is substituted for them, and a new security is interposed; but if a writ of error be not taken, or bail in error be not given, the special bail remain liable; and why should a suspension by the act of a party be more extensive in its effect 1 If a limited stay of execution implied an exemption of the person at the expiration of it, it would certainly make the defendant a freeman ; but it is one thing to postpone the time of satisfaction, and another to narrow the means of it.

When the stay is out, the plaintiff has the same right to execution of the body that he had before, or that he would have had if there had been no stay at all; and if a suspension of the right to immediate execution be not necessarily a relinquishment of the security originally taken to have the body forthcoming, when execution of it should be legally demanded, it produces no intermission of the plaintiff’s power over it in the meantime.

During a postponement of execution, the power of the bail, incidental to a continuance of their responsibility, is as much the power of the plaintiff as it was before judgment; nor is it more remotely so in respect to his means of compelling them to use it by an execution against the body.

In the event of the defendant’s succession to a seat in parliament, or of his transportation, banishment or death, the power both of the plaintiff and the bail is displaced by a superior power, which essentially differs the case from that of a mere suspension of the plaintiff’s right to insist on the immediate exercise of a power transferred from him to the bail, and continuing to exist in them with all its original force.

It would be unreasonable to interpret the agreement for a stay so as to subject the plaintiff to the risk of the defendant’s evasion, unless the latter could have no benefit of it in another way. Not only, however, is his property temporarily exempt from seizure, but the custody of his person is committed to the discretionary authority of a friend, whose object in acquiring it is to set him at liberty instead of letting him remain in jail, under the arbibitrary power of the plaintiff.

He may, doubtless, be deprived of the expected benefit by the capricious surrender of his friend ; but to be Subject to the power of a keeper of his own choice was the whole consideration of his cognovit, and if he meant to stipulate for the permanent exemption of his person, he ought to have had it so expressed. At the worst, he has the benefit of a temporary exemption of his property, which is a sufficient consideration.

Having obtained every thing that he stipulated for, it does not follow that he would be discharged if surrendered; and it therefore seems that the opposite doctrine ié without foundation even in technical reason. But, however the question might be thought to stand on theory or foreign authority, it is sufficient for present purposes that no counsel in Pennsylvania ever suspected a temporary stay of execution to be an exoneration of special bail, and that the practice has been settled, from the first, in conformity with the principle now indicated.

It would seem, therefore, that the plaintiff was entitled to judgment. Judgment affirmed.