Bulstrode calf plaintiff against Bingley davies the Mainpernors of hall enter  Termin Hillar James b r rot l a to know facias stat of Elizabeth cap Jones  latch Poph be Noy in a to know facias against the bail the case appear to be  this a judgement be give against Richard hall the principal in b r upon this  judgement a writ of error bring in the exchequer Chamber accord to the statute  of Elizabeth c and hang this writ of error by the procurement of the bail of  hall hall the principal appear and render himself in discharge of his bail  hang this writ of error a to know facias be bring against the bail who plead  in discharge of this that after the writ of error bring and hang this the  principal To give back see in exoneratione balliorum and also that before the  to know facias bring and before the writ be determine and hang this the  principal die unto this plea of the defendant the plaintiff demurrer in law  the question be whether this be a good plea in discharge of the bail and  whether after all this the plaintiff may resort again unto the bail by a to  know facias it be urge for the plaintiff that this plea be not good be double  the same have two matter issuable in it as the render of the body of the  principal and the second the death of the principal before the writ of error  determine Jones justice in a writ of error the tenor of the record be send  away but the record it self remain here vide the statute of Elizabeth which  give the writ of error in the exchequerchamber upon a judgement give here by  the writ of error the virtue and efficacy of the record be suspend and in  judgement of law be no record until the judgement be reverse or affirm as  appear Elizabeth dyer fol curian Whitlock Jones justice be only present and  clear of opinion that the bail be by this discharge and that he can after all  this resort unto the bail as to the render of the principal hang the writ of  error To give back see prison this he may well do and this be to be enter of  record and there ought also to be a To bring together by the court and this be  triable by the record but he can be in execution as long as the judgement  remain undetermined by the writ of error during this time the party can pray  he in execution neither can the court grant he to be in execution because that  all the proceed be suspend hang the writ of error but he remain in custodian  mariscalli to be take in execution after the writ of error determine if  judgement be affirm and if the party will not then pray he to be in execution  the court will then discharge he notam that all the clerk and attorney for the  course of the court say and inform that hang the writ of error the principal  may render his body in execution in discharge of the bail because the record  of the bail be a distinct record of it self and that a to know facias may be  bring against the bail pendant the writ of error quod non be law the opinion  of the judge for point in law be against they Bulstrode Whitlock justice the  point here be whether hang this writ of error the principal may render himself  prison in discharge of his bail or not whether he may waive the benefit which  the law have give unto he by the writ of error it have be object that the  principal may render himself in execution in Bulstrode er p exoneratione of  his bail as to this he can be in execution pendant the writ of error Jones  justice agree with he herein for that the writ of error be a suspension of the  judgement and the party can be in execution so long as the judgement by the  writ of error remain undecided the same be by this suspend also if the party  de not pray he in execution the court will then discharge he Whitlock justice  agree herein the sole point here considerable be how for there may be a render  by the principal of himself after the writ of error bring and hang the same  Jones justice when I be in the c b this be then there in question whether by a  to know facias the party may resort to the bail after a writ of error bring  and there this point be then leave as a question not resolve but I be of  opinion that he can in such a manner resort unto the bail by a to know facias  after the writ of error bring for by this writ of error upon the judgement  here give there be a stay of execution until the judgement be affirm or  disaffirmed when I be in Ireland a judgement be there give before I and a writ  of error bring here upon this judgement and the tenor of the record send  hither and afterward the judgement be affirm I then do doubt whether I may  proceed there to give judgement because the tenor of the record be here in b r  I put this question here to the judge to have their resolution herein they do  all here resolve and send I their resolution in this that I may well there  proceed to give judgement which be so do accord in this principal case curian  S Jones Whitlock be only present after the writ of error bring and hang this  the principal render of himself can be pray in execution neither can the court  grant he to be in execution because that all the proceed in this matter be now  suspend by the writ of error bring and hang the same and so without any  further debate at this time the court not be full the same be adjourn to a  further time to be move again in full court afterward S terrain Trinit car  king b r this matter be move again and much debate Jones justice the bail may  bring in the principal at any time before the judgement affirm but he shall  not be pray to be in execution until the judgement be affirm or disaffirmed  but he shall remain in prison in custody until this be do crew chief justice  hang the writ of error the bail may bring in the body of the principal at any  time when he will but he shall not be pray in execution before judgement be  affirm or disaffirmed Jones justice it be hold in Hobbs case that though a  capias be against the bail yet he may bring in the body of the principal at  any time before the judgement be affirm the bail be not Chargeable before a to  know facias bring against he there ought to be a capias against the bail  before he be to charge he and if the principal die before the to know facias  the bail by this be discharge and this by the act of God the court be clear of  opinion in this that the bail be not to be charge but by a to know facias  first have against he and if before the to know facias the principal cry the  bail shall be discharge as here in this principal case Bulstrode the court be  also clear of opinion that the bail may bring in the body of the principal at  any time but to charge the bail there ought to be show that the capias be  return and file against the bail the court be clear of opinion in this case  against the plaintiff that he can have a to know facias against the bail after  a writ of error bring and hang the same and therefore the rule of the court be  that if the plaintiff show not better cause the next term judgement then to be  enter against he afterward S term mich car r b r this case be move again and  argue at the bar and after by all the judge and at last adjudge against the  plaintiff crew chief justice it remain doubtful whether by the render of  himself he shall be in execution or not To give back see in exoneratione  manucaptorum of oneself the principal here die breve de wandering tunc  lendente in strike down he die before the return of the first to know facias  there be no capias at all Bulstrode er p dodderidge justice if you will have  execution you ought then to show all thing to enable you to have execution to  show whether there be any capias or not here there be none crew the condition  be double to render himself or to pay c No capias here but a to know facias  against the bail before the return of it the principal render himself and hang  the writ of error die the bail by this discharge Jones justice the bar here be  not double here the principal may render himself before judgement and this be  good but yet not to be in execution until after judgement and a prayer to have  he to be in execution but in the interim the marshal may have he in his  custody but he can be in execution hang the writ of error undetermined as to  the plea here of the defendant the same be good and not double as it be object  as touch the principal render of himself and the time when he may so do in  these case the same come to be question between style and Seager in the c b  when I be there Elizabeth b r between Hobbs and Doncaster there question  whether upon a judgement give the principal to render himself present or not  until a capias there resolve that he be not to render his body until a capias  bring and return against he and that if the principal die before this be do  the bail be discharge and this so agree there by all and so be the case also  in the c b where agree that if the principal die before any capias have and  return there resolve the bail by this be discharge so that none can fall upon  the bail until a capias and if the principal die before the bail be discharge  and if there be any capias this ought to come on the plaintiff part to show  this to be so and that the death of the principal be after the return of the  capias and this to be show by he by way of replication but this he have not do  dodderidge justice the plea here be not good but he proceed and show the death  of the principal before the return of the to know facias crew the act of God  here have discharge the bail dodderidge a capias be first to be award and no  to know facias to be against the bail before a capias have and return against  the principal a capias be first to be take against the principal and upon a  return make of non be invention then a to know facias to be against the bail  but not before for you can charge the bail before a capias have against the  principal and the bail may bring in the body of the principal but no such  matter here appear which shall have be show by the plaintiff to have enable he  to have have execution against the bail no capias be at all here show to be  have also if you have here a judgement and Bulstrode upon this you will have  become facias or a elegit by this you have make your election and you shall  never now charge the bail Whitlock justice the bail here be to be discharge  the whole court in this case agree clear against the plaintiff and that first  there ought to be a capias against the principal and upon a non be invention  return then a to know facias to be against the bail but not before and so upon  the whole matter the rule of the court be quod to express grief nil to take in  hand per billam