
    [Lancaster,
    May 19, 1823.]
    SHARE, Bail of VANLEAR, against HUNT and Another.
    IN ERROR.
    A recognizance of bail in error is forfeited, if the plaintiff in error nonpros the writ by agreement with the other party, provided there be no fraud or collusion.
    On the replication quod habetur tule recordum, and issue, where the record is a record of the same court, the mere entry of judgment by the court, without fixing" a day, though informal, is regular, under our practice.
    It seems fraud in nonprossing- a writ of error, cannot be taken advantage of in a suit on the recognisance, under the plea of a. nul tiel record, ÍQr payment, but ought tobe specially pleaded.
    Error to the Court of Common Pleas of Lancaster county.
    The action in the court below was a scire facias on a recogni-sance of bail in error, brought by Thomas Hunt and Israel Fisher, plaintiffs below, against Henry Share. By the evidence filed with the opinion of the court, it appeared that Hunt and Fisher bad recovered judgment in the same court, against Vanlear, on an award of arbitrators, on which a vuit of error from the Supreme Court was taken out. Share became the bail in error, and entered into a recognisance, in the sum of 1500 dollars, to the plaintiffs, Hunt and Fisher, conditioned, “ that he (Vanlear,) would prosecute the writ of error with effect, and, in case the said judgment should be affirmed, should pay the judgment, damages, and costs in in the former judgment affirmed; and also damages and costs to be awarded for delay of execution.” Afterwards, on the 21st June, 1816, the plaintiffs, Hunt and Fisher, took from Vanlear an agreement, signed and sealed by him, of the following tenor:- “ I agree, that the writ of error sued out to the Common Pleas of Lancaster county, in the cause in which Hunt and Fisher are plaintiffs, and Isaac Vanlear defendant, brought to April term, 1816, shall be non-prossed on the third Monday of May next, at the meeting of the Supreme Court for the Lancaster district, and no other writ of error shall be sued out in this cause. Given under my hand.and seal, at Lancaster,” &c. The plaintiffs accordingly entered the non pros.
    
    The record stated the proceedings in this suit in the court below as follows: June 8, 1818.. The defendant pleads payment, with leave, &c.; non solvit and issue, and nul fiel record. Plaintiffs’ reply, quod habetur tale recordum, and issue. May 14, 1819. Verdict for plaintiffs, for 1017 dollars 75 cents, and judgment. .
    The court below- charged the jury as follows:
    It is attempted to enter into the merits of the original proceedings against Vanlear, and it is alleged, that thé judgment was irregular and void. I am of opinion, that we have no concern on , this trial with any error or irregularity in the original judgment of Hunt and Fisher against Vanlear. If there were ahy irregularity or error in it, there was a time when those errors and irregularities might have been inquired into. That time has passed. It is now sufficient that there is such a judgment remaining on record unreversed. It is treated by the defendant as a judgment, in taking a writ'of error upon it, and it is recited as such, in the recognisance into which he and his security entered. No complaint can reasonably be made, that we will not now inquire-into the errors and irregularities alleged,- inasmuch as the opportunities which have been heretofore afforded to the original- defendant of availing himself of them, have not been embraced. Its liability to be reversed cannot, at this time, therefore, be a subject of investigation. Then, the first question arises on the construction of the terms in which the recognisance is drawn up, upon which , this suit is instituted. Under the recognisance, in order to save the forfeiture of the 1500 dollars, the defendant in the original action, Vanlear, was to do two things: one was, to prosecute the writ of error'with effect; and the other, if the judgment in the Common PIeas should be affirmed, to pay the judgment, damages, and costs in the judgment affirmed, &c. If Vanlear failed in-either of these particulars, his bail became liable. If the writ of error were non-prossed or discontinued, or the judgment affirmed, Hunt apd Fisher might proceed against the bail upon his recognisance. In j¿his case the writ of error was non-prossed. The non-pros was entered by Vanlear’s counsel, by his voluntary agreement and direction. He had an unquestionable right to have the writ non-prossed. It'was sued out by himself, for his own benefit, and he was at liberty to withdraw or discontinue it whenever he pleased; nobody had a right to prevent or control him. By this act of his, the recognisance becomes forfeited, and Share is rendered liable according to its tenor ; unless the non-pross was suffered in consequence of a collusion with the plaintiffs, and with a fraudulent design of fixing the bail of Vanlear. Fraud vitiates every transaction, and if the plaintiffs were guilty of the fraud alleged, they would justly forfeit the benefit of the recognisance, and your verdict should be rendered in favour of the defendant. But fraud is never to be presumed. It ought to be proved to your entire conviction. To justify your finding a verdict for the defendant, you ought to have full and satisfactory evidence of a collusion between the plaintiffs and Vanlear. If you have not this full and satisfactory evidence, this case would in point of law, in my opinion, be 'clearly in favour of the plaintiffs.
    To this charge 'the defendant excepted.
    It was assigned for error,
    1. That the plea of nul lie! record was tried by jury.
    2. The bail was discharged by the negotiations which took place between the original plaintiffs and the principal, without the knowledge of the bail.
    S. The recognisance was not forfeited, as the cognisance of the cause was improperly -withdrawn from the Supreme Court, by the original plaintiffs and the principal without the knowledge of the bail, by which a reversal was prevented, and an affirmance never obtained.
    
      Hopkins, for the plaintiff in error.
    X. The plea of nul tlel record was tried by jury. The evidence returned shows, that the record was read to the jury. There is no judgment rendered by the court in relation to it; no day given to bring in the record; but (he judgment rendered on the verdict.
    2. The bail in error was discharged. The condition of the re-cognisance is, that the bail shall pay the original debt and damages and costs incurrred by the writ of error, in case the judgment shall be affirmed. But the judgment never was affirmed: the writ of error was non-prossed by the agreement of the principal; and it was further stipulated, that no other writ of error should be sued out. This was in derogation of the rights of the bail, who relied on the error, which he was advised was in the record, and of this he ought not to be deprived. Bail are always favoured: rhey are not bound beyond'the letter of their engagement, nor if there be any variation from their, agreement, The presumption is, that the plaintiffs were parties to this agreement, and on its face it bears marks of collusion. He cited 10 Johns. 327, 180. 2.Caines’s Cas. in Er. 1. 1 Vern. 196. 2 Vern. 393. 2 Ero. Ch. 578.
    
      Slaymaker and- Buchanan, contra.
    1. The cause was tried on the plea of payment, which admitted the recognisance. The plea of nul tiel record was put in during the trial. The record was not read to the jury by the plaintiffs, but by the defendant, who wished to enter into the regularity of the original judgment. The charge of the court makes no mention of the issue nul tiel record. The judgment entered generally by the court decides the issue of mil tiel record, as well as the matters determined by the verdict of the jury.
    2. The defendant gave no evidence of fraud or collusion: the subscribing witness to the agreement was not called. In truth, it was the mere act of Vanlear himself; and the language it speaks is entirely his language, though it, is called an agreement. He had a right to non-pros his own writ of error, and to stipulate, that he would not sue out another. It is well settled, that the recognisance of bail in error is forfeited by a non-pros, or discontinuance of the writ of error. 2 Tidd’s Tract. 998. A bond on a homine replegi-ando is forfeited, if the plaintiff suffer a nonsuit. 1 Johns. Cas. 23.
    
    Reply'. The words, “ it is agreed,” show two parties to the writing. There was no proof that the bail was ever consulted on the agreement.
   The opinion of the court was delivered by

Duncan, J.

This was a scire facias on a recognisance entered into by the plaintiff in error, as bail in a writ of error on a judgment obtained in the Common Pleas of Lancaster county, by the defendant in error against Isaac Vanlear.

The condition of the reco- nisanee was in the usual form, that Vanlear -should prosecute the-writ of error with effect, and if the judgment should be affirmed, pay the judgment, damages, costs, &c., and also the damages and costs to be awarded for the delay. This writ of error was nonprossed, by agreement of the plaintiffs and defendant; the defendant stipulating that no other writ of error should be sued out. The first plea was, payment with leave to give the special matters in evidence. On the day before the jury was sworn a new plea was added, of nul tiel record; to which the pia'inüiío replied, habeivr tale recordum. The plaintiff in error cotí tends, that the recognisauu.; was not forfeited, inasmuch as the judgment was not affirmed, but the writ non-prossed.

The law must be very defective, if this were so. The object in requiring security for payment of the judgment to render the writ a supersedeas to execution, is, to secure the party who has obtained the judgment from the injur-, and loss of the debt, that might arise from this interruption and delay of. execution. But this would be an ineffectual and abortive security; and if an embarrassed debtor can delay and suspend the execution by giving bail, and then neglect to prosecute his writ, return the record, or assign the errors, and thus discontinue his writ and semen his bail, then the giving bail in error is a mere ceremony, and nearly? as idle as the warranty of a common vouchee in a recovery'. There v.ould be no difficulty in procuring bail, for the bail could be exposed to but little risk, where the writ of error, as in too many cases, is for the mere purpose of delay?. John Doe would be as good bail as the most substantial yeoman. The opinion of the court was entirely right; for the essence of the recognisance is, the prosecution of the writ, and the not so doing exposes the bail to the payment of the judgment as much as if it were affirmed; the condition is not complied with, and the obligation to pay the money is the consequence of this non-performance. This doctrine is contained in every book of practice, and it is so much the dictate of common sense, that it is unnecessary to spend further time in proving so plain a proposition; and this disposes of the second and third assignments of error.

'If it were true in fact, that the issue of nul Uel record was tried by the jury, this would be a fatal objection; but however-inartifi-cially the record is made up, sufficient appears to show that it was not so.

The court first dispose of the plea. They state, that they have no concern with the alleged error or irregularity in the judgment; it is only for them to say, whether there is such judgment as is set out in the scire facias, remaining of record unreversed: and they say, there is. It required no rule to bring in the record, no time to be allowed the plaintiffs to produce this record. They had it; it was in the court; it was a record of the same court, remitted back by the Supreme Court when the non pros was entered. The court decide on the inspection of their own record, and do not leave- it to be decided as a fact by the jury, or to be decided by them at all. It might be more formally entered: — but this is the substance. If our records were scanned with the scrupulosity of a special pleader, few7 records could sustain such inquiry and test; and if every-speck which an eagle’s eye might discover were a ground of reversal, forlorn would be the hope of a suitor of the termination of his suit within the space of a common life.

The only material question w-as as favourably treated by the court as the plaintiff in error could honestly require. Fraud will vitiate every proceeding, however solemn, where it operates on the interest of third parties not participating in the fraud, and the court properly leave it to the jury to decide, whether the non pros was in consequence of a collusion between the plaintiffs and defendant, and with a fraudulent design of fixing the bail, and-if they found it was a continuance to fix the hail,' they were then most properly told the verdict should be in favour of the bail. But I rather incline to think, that the fraud could not be given in evidence on the plea of payment or nul tiel record, till the defendant should have pleaded that the writ of error was non-prossed per fraudan. As in an action against an executor who pleaded a judgment and no assets ultra; the plaintiff replies, that the judgment was obtained and kept on foot by fraud. This is the course, and should have been adopted here. , But the plaintiff in error has no cause of complaint. He had the full benefit of his allegation of fraud, as if it had been pleaded in the most special and technical form.

Judgment affirmed.  