
    BAKER v. OLWYNE.
    May 20, 1840.
    
      Rule to show cause why judgment should not be entered for want of an affidavit of defence.
    
    
      A recognisance of bail in error is an instrument of writing for the payment of money under the act of March, 1835, entitling the plaintiff to judgment for want of an affidavit of defence.
    THIS was an action brought on a recognisance of bail in error, to March term, 1840, No. 153. The plaintiff filed a copy of the recognisance and the remittitur from the Supreme Court, and on the regular day obtained a rule to show cause why judgment should not be entered for want of an affidavit of defence.
    
      R. P. Smith, for the rule.
    
      Hirst, contra.
   Per Curiam.—

By the 7th sect, of the act of 11th March, 1809, (Stroud’s Purd. tit. Errors and Appeals,) suit may be brought in this court on a recognisance of bail in error. This recogni-sance, according to the 7th section of the act of 16th June, 1836, relating to executions, is in terms conditioned, if the judgment be affirmed, or if the writ of error be discontinued or non-prossed, for the payment of the damages and costs, &c. The recognisance is therefore an instrument of writing for the payment of money, and within the provisions of the act of 28th March, 1835.

Rule absolute.  