
    [Sunbubx,
    June 30, 1823.]
    MILLIKEN and another against BROWN.
    ÍN ERROH.
    Bl a suit against the surety in a recognizance for a stay of execution, one of the defendants against whom judgment was obtained in the original suit, is not a competent witness for the defendant.
    If after a recognizance entered into for a stay of execution, the plaintiff issue a fi, fa. against the defendants in the original suit, within the time of stay allowed by law, and obtain part of the debt from one of the original defendants, under a menace of levying’ the execution, this docs not discharge the recognizance, ti.fi. fa. issued within the period of the stay, after security entered, is a nullity, and trespass lies against the plaintiff' or prothonotary for issuing it.
    This was a writ of error to the Court of Common Pleas of Mifflin county, in which the plaintiffs and defendant in error were plaintiffs and defendant below, a verdict and judgment having been tendered for the defendant.
    The action was debt on recognizance, brought by Foster Milliken and David Milliken, trading under the firm of Foster Milliken & Co. against William Brown. The plaintiffs had recovered a judgment on the 4th February, 1819, in the same court, in a suit brought to Jlugust term, 1818, against John Brown, William, Brown, Jr. and Dr. John Watson, on a report of arbitrators, for the sum of 5,889 dollars 96 cents, and the recognizance on which the present "suit was brought had been entered into by the defendant, on the 18th March, 1819, for a stay of execution under the act of 21st March, 1806. . The recognizance was in the' sum of 11,778 dollars, conditioned “that the defendants should pay the debt, interest, and costs in this judgment at the expiration of the legal stay of execution, or in default thereof, the recognizor will do it for them.”
    The defendant proved that on the 23d March, 1819, David Milliken, one of the plaintiffs, issued a fi. fa. directed to the sheriff of Mifflin county, which was returned nulla bona: and on the 34th March, 1819, he issued a testatum fi. fa. directed to the sheriff of Lancaster county, where Dr. Watson resided, on which he received in March, and in May, at two different payments, 3000 dollars from Dr. Watson, in consequence of a menace to levy it on his property. It further appeared from the defendant’s evidence, that the testatum was not put into the hands of the sheriff of Lancaster county, but D. Milliken said, when he took it out, that he would call on the doctor, and get the money or part of it.
    The defendant offered in evidence on the trial, the deposition of Dr. John Watson, one of the defendants in the original suit. It was objected to on the ground that he was interested. The court admitted it, and sealed a bill of exceptions.
    The court charged the jury as follows:
    The engagement entered into by the defendant, William Brown, was for the purpose of obtaining a stay of execution for the defendants in that cause. This stay was the consideration, and if no stay was obtained, there was no consideration; no body will pretend to say, that William Brown would have become bound for the money on the recognizance, if he had known execution would be issued against .the defendant on the next day. But it is said, the proceedings of Milliken, were illegal, and could have been set aside. This is true, but it is certain that this writ, illegal as it was, wrung the money from Dr. Watson.
    
    It would be strange, if collecting the money legally, would have discharged William Brown, but collecting it illegally would not. The recognizance was entered into, that the defendants might not be put to inconvenience by an immediate call for the money. The fact of taking out. the execution, and using it, to compel one of defendants to raise and pay money, was depriving the defendants of the benefit and advantage, which the law gave those who gave security for the absolute payment of money, and as they took the advantage of it, by the plaintiffs act, they also lost the advantage of it, by the same act. If you believe the facts sworn to, Milliken, by depriving the defendants of any benefit from the recognizance, released the defendant-from any responsibility. If a pauper had entered bail, and he was notoriously a patrper, perhaps, the plaintiffs might have treated his engagement as nothing; and have issued execution immediately; but if they had done so, and afterwards an estate had descended to the pauper, they could not then consider the recognizance as valid, and recover on it. It has been contended, that the agreement to discharge Dr. Watson, whether absolute or conditional, equally discharges the liability of the bail. This may be so, but it is not necessary to decide it, as we are of opinion, that the conduct of Milliken, if the testimony is believed, discharges the defendant. If payment was not induced by the execution, but was voluntary, the defendant would not be discharged.
    It was assigned for error.
    1. That the court received the deposition of Dr. Watson.
    
    2. That in the charge of the court, they stated to the jury, that the conduct of David Milliken, in taking out the execution, discharged the bail, and released the defendant from his recognizance, although that execution never was delivered to the sheriff of Lancaster county,
    
      Burnside, for the plaintiff in error,
    stated the above errors in the proceedings below.
    
      Potter, for the defendant in error argued.
    1. That Dr. Watson had no interest in this suit, because David Milliken had agreed to discharge him on payment of the 2000 dollars which he received.
    2. The law is the same in relation to a recognizance which applies to the case of a bond, namely: that if the consideration fails there can be no recovery. That such is the principle in case of a bond is established by many authorities. Thompson v. M'Cord, 2 Bay, 76. Skillern’s Exors. v. May’s Exors. 4 Cranch, 130. 5 Com. Dig. 257,8. (Pleader.) The fi. fa. issued by the plaintiff, was not void: it was good against all persons but the defendants, and voidable as to them. Dr. Watson, however, could not avoid it, for he acquiesced in it and paid the 2000 dollars. An execution issued after a year and a day is not void, but voidable. 8 Johns. 361. The issuing of the fi.fa. was a waiver of the benefit of the recognizance. The defendant was a surety: and if the creditor does any act or gives any indulgence to the principal which changes the situation oftheparty for the worse, he is discharged. 10 Johns. 587. 2 Johns. Ch. 554. 4 Johns. Ch. 130. 5 Binn. 230.
    The court relieved Mr. Burnside from replying.
   The opinion of the court was delivered by

Duncan, J.

This was an action of debt on a recognizance entered into bj' the defendant in error, defendant below, to the plaintiffs in error, under the act of 21st March, 1806, to regulate arbitrations and proceedings in,courts of justice, in order to entitle John Brown, William Brown, and John Watson, the defendants in a judgment obtained by the Millikens, to a stay of execution, and was to secure the payment of the debt, interest, and costs, recovered by them in that judgment.

The defence was, that notwithstanding this recognizance, the plaintiffs had issued execution to the proper-county obtained the return of nulla bona, and then issued a testatum fi. fa. to Lancaster county, where Watson resided, and by means of this' execution, and a menace to levy it on his property, extorted from him 'the sum of $2000, one third part of the debt.

The plaintiff in error relics on two exceptions: 1st. In receiving the deposition of John Watson. 2d. To the charge of the court in stating to the jury, that the conduct of Milliken, in taking oüt the execution discharged the recognizance, although it never had been delivered to the sheriff of Lancaster county.

John Watson, had an immediate and direct interest in the cause trying. It is unnecessary to enter into minute inquiry as to his liability to costs, for if the plaintiffs recovered on this recognizance, the conuzor coúld give this verdict and judgment in evidence in an action against John Brown, William Brown, Jr. and John Watson, and notice being here given to John Watson to defend, the recovery would be conclusive.

The exception to the charge does not do justice to the court, for this opinion is qualified with the observation, if payment was induced by the execution.

However just the reasoning of the court maybe, on contracts between individuals, that the consideration failing, the obligation is void, it does not apply to this stipulation, which is not a voluntary personal contract, but a legislative injunction on the plaintiff’s proceeding to execution. Nor does the doctrine of performance of conditions precedent bear in any degree on the question. The violation of the injunction, the taking out an execution not authorised by law, does not dissolve the recognizance. The plaintiff— the prothonotary — would be liable in trespass, had the execution been ever levied, and it would have been a proper case for heavy exemplary damages, and the taking it out and prostituting it, for the' purpose of extorting money, was a high and aggravated contempt.But the execution was a mere nullity — void, not voidable only; and' the fact of obtaining the money under this false colour, would not operate as a discharge of the recognizance; but as a payment to be discounted from the amount of the judgment.

The plaintiffs in error have sustained the exceptions, and the judgment must be reversed.

The construction of the receipt to Watson, and the effect of the' agreement were questions of law, on which the court declined, to' give any opinion, and this court is not called on now to decide.

The original debt was a joint one, the judgment a joint one, and whether the receipt and agreement disclosed in the deposition of Christian Haldeman, is not an impediment in the plaintiffs way,difficult to remove, is well worthy the consideration of the counsel1 of the plaintiffs in error, before they take down the record.

Judgment reversed and a venire facias de novo awarded.  