Spalding v. Nolcott

5 Watts 335

• Court: Supreme Court of Pennsylvania
• Decided: June 15, 1836
• Status: Published

Opinion

Per Curiam.

It will be found that the legislature have ever used the words special bail in their technical sense; as bail for the body instead of bail for the money. The distinction is strikingly evinced in the seventh section of the act of 1806, which gives a stay of execution on a judgment in court for thirty days, if the defendant enter security in the nature of special bail; and the further stay of a freeholder, if within the thirty days he enter security for the debt. The nineteenth section of the act of 1810, gives the defendant in a suit before a justice, a certain stay, if he be a freeholder or enter “ bail to the action.” This evidently refers to the appearance bail spoken of in the twelfth section, of which, surrender of the body is a substantive part of the condition. But what if the defendant be not a freeholder and yet have not entered bail to the action originally? He may entitle himself to a stay, on the liberal principle of Parlasca v. Spargella, 3 Binn. 427, by entering the bail after judgment. The difficulty, in that case, was to get rid of the letter of_the act, which directs it to be entered subsequently. But be it entered when it may, it must be special bail so far as to contain a clause of discharge on surrender of the principal. The direction, therefore, was right, that a capias ad satisfaciendum, should have been returned before recourse had to the bail.

Judgment affirmed.