
    The Commonwealth ex rel. Jordan against Kite Gaoler.
    
      Wednesday, December 28.
    , Where an alderman enters judgment of the plaintiff to his wishes, he may on the same day request of plaintiff strike out such continuance.
    When, by act of assembly, the bail has ten days from the service of the scire facias to surrender his principal, he is not deprived of the right of surrendering him during the time, by a recognisance entered into before a magistrate to surrender him within six months.
    Habeas Corpus.
    BY the return of the Habeas Carpus in this case, it ap- * ' 1 peared, that Harrison Hall was sued by T. Jordan, the lator, before an alderman, who gave judgment on the June, 1819, in favour of Harrison Hall, for 52 dollars and 50 cents. John Cullen became special bail for Jordan, and entered into a recognisance, the condition of which was, that T. Jordan should, within six months from the date of the judgment, pay the debt, or that within the said term, his body should be surrendered according to law. On the 13th December, 1819, Harrison Hall issued a scire facias against John Cullen, upon this recognisance, returnable on the 20th December. On the 17th December, John Cullen gave him . ° note as a collateral security. On the 20th December, the alderman in Harrison HalPs absence, and contrary to wishes, entered judgment against John Cullen. Harrison Hall, on the same day requested the alderman to discontinue the suit on the scire facias, and an entry of discontinuance was made on the magistrate’s docket. John Cullen having i , . . , . , ° taken out a bail piece, 1. Jordan was arrested by'his order in New Tork, and surrendered here on the 20th, and was 5 7 now detained on the bail-piece.
    Swift, for the relator,
    took several exceptions ; but in the course of the argument, abandoned all but two.
    1. That the bail being fixed by the judgment on the scire facias, he could not surrender the principal.
    2. The form of the recognisance was not lawful. The act of assembly of 20th March, 1810, sect. 2, provides, that the bail ‘‘ may surrender the principal to the gaol of the proper county, within ten days after the service of the scire facias, in discharge of the bail.” But the time allowed for surrender by this recognisance, was within six months from .the judgment; and it has not been complied with by the bail. The surrender was not within six months. In Speakman v. 
      Pearce,
      
       it is decided, that there can be no surrender after the expiration of six months from the judgment.
    
      Erwing, for Hall.
    
      
      b) 1 Yeates, 347.
      
    
   Per. Curiam.

This is an attempt by the principal to throw this debt upon his bail; a case not to be favoured. The counsel for the prisoner, having relinquished all his exceptions but two, the Court will decide upon them only.'

1. That the bail was fixed by the judgment on the scire facias and could not surrender afterwards. The fact is, that the plaintiff in the scire facias was not present when judgment was entered, nor did he wish the judgment to be entered, and on the day of its entry, he requested the aider-man to discontinue the suit, who made an entry of discontinuance on his docket; so that upon the whole there was no judgment. Under the circumstances of the case, the aider-man had a right to strike out the entry of the judgment, and enter a discontinuance.

2. That the bait had only six months from judgment to surrender his principal. The answer is plain ; he has six months by the terms of the recognisance, but he has moreover ten days from the service of the scire facias, to make the surrender, by the express words of the law. Of this neither the plaintiff nor the alderman could deprive him; but in truth no person but his principal wishes to deprive him of it. The case cited from Teates, is not to the point. The decision was on another act of assembly, which did not allow the bail ten days froth the service of the scire facias. ^Ve are of opinion, that the prisoner should be remanded.

Prisoner remanded.  