calf and other versus Nevil and other a to know facias be bring by Joseph calf  and Joshua executor of a against Nevil Davies and Bingley and the case be this  they become bail to one hall who be condemned in a action to the testator of  the plaintiff that the say hall shall either render his body to prison or that  he shall satisfy the judgement the defendant plead that after the to know  facias return and present after the judgement the say hall bring a writ of  error in the exchequer Chamber hang which the say hall To give back see prison  in exoneratione manucaptorum to sew and there die and the plaintiff demurrer  upon this plea because it be double and calthrop argue for the plaintiff that  it be double or rather Triple that To give back see prison that he be imprison  Popham er p that be die in prison and to prove the plea double in this case be  cite h e h the second matter that be move against the former be that pendant  the writ of error To give back see prison and do not conclude upon the record  hoc a preparation be verify as he ought to have do and for this he cite h  Kelleway if I S be bind in a recognizance that a shall appear such a day  before the king justice at Westminster if his appearance be not record he  shall not have any averment by Bricknell and Conisby and in Elizabeth it be  one Wickss case which be we in effect in case of bail dyer e for the matter in  plea be nought because by the writ of error bring the seire facias against the  bail be not suspend because the bail be a distinct record and upon this he  cite the case of the ambassador Popham of Spain against captain Gifford which  be Trin James that by the writ of error bring the bail be not suspend and be  say that it be so resolve also in goldsmith and goodwin case for the render of  the principal to prison it be not good because it do not appear upon record  and for this he cite one Austin and monk case which be in James in to know  facias against the bail it be plead that the principal have render himself to  prison and upon the matter it appear that the render be upon candlemasday  which be not die assize towns and so the court this day have no power to  commit he to prison for which the plea be adjudge void for the death it be no  plea the bail by it be not discharge because he have not render himself in due  ti I and for that be cite justice William and Vaughan case which be mich James  where in to know facias against the bail they plead that the principal be dead  and thereupon the plaintiff demurrer and in this case two point be resolve  there be no capias mention to have issue against the principal and yet resolve  that a to know facias will lie against the bail that the plea in bar be not  good because it may be that the principal die after the capias award or after  the return thereof because it appear that there be once a default in the  principal and so the bail forfeit and no plea afterward will discharge it and  upon this he put this case a prisoner escape out of prison the gaoler make  fresh suit and before he have take he the prisoner die this be the act of God  and yet because it be once a escape a action of escape lie against the gaoler  Jermy for the defendant and he remember a case which be Mil James Cadmor and  Hildersons case that by the writ of error the bail be suspend notam that it be  agree by the court in this case that by the writ of error bring in the bail be  not discharge because it be incertain whether the judgement shall be reverse  or not also it be agree that if the principal die before a capias award  against he that the bail be discharge it be also agree by the court that the  plea be not double for the first matter be but a inducement to the last and  yet by Doderidge if several matter be plead in bar and there be not any  dependency on they the plea be double although none of they be material but  one Jones justice cite one Hobbs and Tadcasters case which be Elizabeth in b r  where after a writ of error bring a to know facias issue against the bail and  upon nothing return the plaintiff in the to know facias bring in a hearing  complaint and there the matter come in question whether upon the judgement the  principal ought present render himself to prison or that he shall stay until a  capias award against he and there it be resolve by Popham and all his  companion that the principal be not bind to render himself to prison until a  capias be take out so that if he die after the judgement and before the capias  award against he the bail be discharge also in the principal case he re it be  resolve that a to know facias do not lie against the bail until a capias be  award against the principal and because no capias in this case be award  against the principal which can not be by reason of the writ of error before  his death and also the plaintiff in his declaration ought to have aver and  show that the capias be award against the principal for these reason j  judgement be give quod to express grief nil to take in hand per billam Popham  er p Popham the same term in the same court