
    SHOVE v. EDGELL.
    January 13, 1838.
    
      Rule to show cause why the fieri facias should not be set aside.
    
    When the defendant enters security for a stay of execution for thirty days, under the act of 16th June, 1836, but is surrendered by the surety, and gives bond to take the benefit of the insolvent laws, the plaintiff has a right to issue a fieri facias.
    
    THIS was an action to September term, 1837, No. 1259. The plaintiff obtained judgment for want of an affidavit of defence, and the defendant entered security, in the nature of special bail, for a stay of thirty days, under the act of 16th June, 1836. Before its expiration, the bail surrendered the defendant, who gave bond to take the benefit of the insolvent laws of the commonwealth. The plaintiff thereupon issued a fieri facias, and the defendant obtained this rule to show cause.
    
      Tyson, for plaintiff.
    
      Ingraham, for defendant.
   Per Curiam.—

By the surrender of the defendant, the plaintiff is without the security intended by the act for his benefit, in cases where the defendant has the advantage of a stay of execution. It is in effect the same thing as if security had not been entered at all, and the plaintiff is therefore entitled to have execution.

Rule discharged.  