
    WARNER v. T. H. BANCROFT.
    May 13, 1837.
    
      Rule to show cause why execution should not issue.
    
    Where A. became security for a stay of execution on a judgment rendered against B. and before the expiration of the cesset, A. gave bond to take the benefit of the insolvent laws, the court refused the plaintiff permission to take out execution against B. the defendant.
    THIS was an action brought to Dec. 1836, 259. Judgment was entered for the plaintiff, and the defendant gave security for stay of execution. M. Bancroft was the security, and, before the expiration of the period designated as the stay in the recognizance, having been arrested on a capias ad satisfaciendum, he filed a bond in the Court of Common Pleas, to appear at its next term, to take the benefit of the insolvent laws. (See Stroud’s Purd. tits. Execution, Insolvents, Action.) Thereupon the plaintiff obtained this rule to show cause why he should not be permitted to have execution against the defendant, notwithstanding the recognizance for stay entered.
    
      McLaughlin, for the rule.
   Pee Curiam.

There is no express direction in the acts of assembly to grant this application. The 26th section of the act of 13th June, 1836, relates to the insolvency of the special bail» on original process, and the issuing of a special writ of capias ad respondendum. Whether the court have general power to interfere, according to this application, it is unnecessary to determine, inasmuch as the mere giving of a bond to take the benefit of the insolvent laws, in the absence of a statutory provision to that effect, is not evidence of actual insolvency sufficient to induce an inquiry as to the power of the court.

Rule discharged.  