
    JONES’ APPEAL.
    The Act of April 4th, 1877, does not give an appeal in case of a refusal to open a judgment confessed in a suit commenced by an amicable scire facias.
    Bail for stay of execution on a judgment which has been set aside, as void, is . nevertheless liable on the bond.
    Appeal from the Court of Common Pleas of Schuylkill County.
    The facts of the case appear in the opinion of the court refusing to open a judgment which was delivered April 28th, 1879, by
    
      Pershing, P. J.
    Barbara Wadlinger, a married woman, was doing business in her own name in Minersville, in this county, having availed herself of the benefits of the Act of Assembly of April 3d, 1872, securing to married women the control of their separate earnings. She contracted a debt with Gr. Shoyer & Oo., for goods furnished her, and failing to pay it, they obtained a judgment against her to No. 742, June T., 1876, for • $404.67, on the third day of July, 1876. On the 8th of July, 1876, Stephen Jones, the defendant, entered into recognizance, “conditioned for the payment of said judgment debt, with interest and costs, to obtain a stay of execution for the defendant (Mrs. Wadlinger) according to law.” An amicable scire facias was issued on this recognizance to No. 490, June Term, 1877, and on March 20, 1877, Jones, the defendant, in writing confessed a judgment to the plaintiffs for $424.03, “together with costs, and with release of errors, and with stay of execution until the first day of November, 1877.”
    We are now asked to set aside this judgment, and the ground as set forth in the testimony of the defendant taken on the rule is, that he did not know at the time he signed the amicable action and gave judgment, that the judgment against Mrs. Wadlinger was not a binding, regular or valid judgment.
    Conceding that the judgment against Barbara Wadlinger was void, is the defendant thereby released?
    It seems to be conceded that this is a case where either the plaintiffs, whose claim is not controverted, or the bail of Mrs. Wadlinger must suffer loss. Mrs. Wadlinger got the goods, and the defendant got all he bargained for in the paper signed by him. The general rule is thus laid down : The principal and surety being both liable for the same debt, although by different responsibilities, it is clear that the plaintiff may pursue either or both at the same time after the expiration of the cesset. Upon default of payment by the principal on the day stated, the bail becomes liable absolutely, and may be immediately proceeded against by action of debt or by scire facias on the recognizance, which latter process is, in this instance, in the nature of a new original. A ca. sa. against the principal is now unnecessary, the recognizance under the act of 20 March, 1845, (Purd. Dig. 635, pi. 8,) being conditioned simply for the payment of the money, and nothing but satisfaction will discharge the bail; 2 T. & H. Pr., 465-6 ; Patterson vs. Swan, 9 S. & ft. 16. So Judge Conyngham said in G-ould vs. Breeze, 2 Luz. Leg. Observer, 186, where Breeze, the defendant, was bail for the stay of execution : “After the expiration of the period for the legal stay, it became on the part of the present defendant an absolute, unconditional and mature obligation for the payment of the debt.”
    In Hope Building Association vs. Lance, 6 W. N., 218, it was decided, that where a husband gives his own bond for bis wife’s debt to a building association, he stands in the nature of a surety for her, and is bound for the full amount of the bond, although this was much larger than the amount actually received by the wife. The inability of the wife to contract, it was held, did not release the husband. The language of Judge Biddle is so appropriate to many of these cases, that we quote it: “Under our law a married woman can generally defraud one who may chance to trust her, but this is a personal privilege, not to be extended to her husband or a stranger, who unites with her in the attempt. While she is not liable on her contracts, one who joins with her in signing a bond or note, whether as principal or surety, is bound ; and the fact that her name appears on such instrument will not affect the liability of the other party.”
    In Unangst vs. Fitler, 3 Norris, 135, in which Unangst signed a joint judgment note with Mrs. Wessner, as her bail, which judgment was stricken off as to -her by this court, and held good as to Unangst, the Supreme Court said: “When one goes upon a note or bond with a married woman, whether as principal or surety, he is the only party bound.” When Mrs. Wessner’s name was stricken out of the judgment, which was irregularly confessed against her, Unangst stood where he was before and at the time of the. execution of the single bill, and'his being a surety made no difference in his liability.
    To the same point is Shalcross vs. Smith, 31 Sm. 132; see also Warner vs. Smith, 2 W. N. 107.
    We think these cases rule the present application, and that this judgment should neither be set aside nor opened.
    And now, April 28, 1879, rule discharged.
    
      Jones then appealed, complaining of the refusal to open the judgment. •
    
      Messrs. Hughes & Farquhar, S. W. Geer & D. A. Jones, Esqs., for plaintiff in error argued;
    that a scire facias on a recognizance was not in the nature of anew and original process; Respublica vs. Cobbet, 2 Yeates 362; Bodine vs. Commonwealth, 12 Harris 71. The cases relied on by the court below, were where the married women joined with the bail in the obligation; and do not apply. Where the original judgment is void, the scire facias issued on it is void also; Dorrance vs. Scott, 3 Wharton, 309; Caldwell vs. Walters, 6 Harris 79; Stone vs. Bird, 1 Legal Chron. 388; Ranck vs. Becker, 12 S. & R. 412; Eldred vs. Hazlett, 3 Wr. 16; Marsh vs. Bank, 12 Wr. 510. Bail for stay of execution is only authorized, when a judgment had been obtained; here the judgment is void, and has been stricken off by the court; and consequently is no judgment. Besides the plaintiff entered into the recognizance, under the mistake of supposing that the judgment was valid, and that a stay of execution would be a benefit to Mrs. Wadlinger, but as the judgment was void, there was in reality no consideration for his becoming bail. The court should have relieved him from the consequences of his mistake, which was partly occasioned by Schoyer bringing suit against Mrs. Wadlinger as if she were a feme sole; Kerr on Fraud and Mistake, page 401; Warden vs. Tucker, 7 Mass. 449; May vs. Coffin, 4 Mass. 341; 1 Parsons on Contracts, 363; Heacock vs. Fly, 2 Harris 540.
    
      Messrs. John W. Ryon and N. Heblich, Esqs., contra,
    
    argued that; The recognizance was good even though the judgment was void ; that under the Act of March 20th, 1845, P. L. 189, the bail is to be taken for the payment of debt, interest and costs if the defendant do not pay them. Mrs. Wadlinger was morally bound for the debt, and that is sufficient. Jones became bail voluntarily, and is estopped from setting up this defense now; Egbert vs. Darr, 3 W. & S. 517; McClure vs. Commonwealth, 30 P. F. S. 167.
   The Supreme Court affirmed the decision of the Court below, on May 2d, 1881, in the following opinion, per

Mercur, J.

Prior to the Act of 4th April, 1877, the refusal of a Court to open a judgment regularly entered on its record was not subject to review here; McClelland vs. Pomeroy, 25 P. F. Smith, 410. That act gave a right to appeal on a refusal to open, in case the judgment had been entered “by virtue of a warrant of attorney or on a judgment note.” This judgment was not entered by virtue of the one nor of. the other. It was confessed in a suit commenced by amicable scire facias on a recognizance under an agreement to have the same effect, as if a writ had been regularly and duly issued, served on the defendant therein, and so returned. The refusal of the learned judge to open the judgment on the equities alleged, is fully vindicated by the opinion filed in the case of Jones vs. Bomberger 1 Out. 432; just decided. But we do not think the case comes within the time meaning and spirit of the Act of 4th April, 1877, P. L. 53; allowing an appeal; Lamb’s Appeal, 8 Norris, 407.

Appeal quashed.  