94 Pa. 253 | Pa. | 1880
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
Judgment reversed and a procedendo awarded.