Bieber v. Beck , 6 Pa. 198 ( 1847 )

Per Curiam.

There is nothing in the form of the docket entry before us which bears any resemblance to a recognisance of bail; and the plaintiff has not treated it as such. Instead of suing out a scire facias on it, he has sued and declared on it as a promise or stipulation in an action of debt, which might have been sustained had the jury found the parties to have been reciprocally bound. But this species of promise, as was shown in Clark v. Russell, 3 Watts, 216, is not conditional, but mutual, the consideration of it being executory, and consequently, to make it effective, both parties must be bound. In that case, it was held, that actual forbearance is not enough, unless it were forbearance in pursuance of a mutual agreement, the consideration of it being promise for promise. In this the jury have found no more than an offer to be bail for a stay of execution, and that execution did not issue within the period. But it follows not that the offer was accepted; without which there could be no contract. The execution, for aught that appears, may have been suffered to rest by the mere supineness of the plaintiff, without regard to any particular motive; and if he actually did nothing, or forbore nothing, in consideration of the offer, he ought not to derive any benefit from it. Besides, as nothing is to be taken by inference in a special verdict, it being the business of a jury to find facts, and not tbe evidence of them, the acceptance of the defendant’s offer, if there was such a fact, ought to have been expressly found. It is to be regretted that a party should lose the benefit of his security by the incompetency of an .officer; but we cannot disregard the most settled and solemn forms of the law to protect him. There is nothing on the bills of exception to evidence.

Judgment affirmed.