burrow BIDLESON esquire administrator c versus WHYTEL esquire Tuesday that  July SC black No bail be requisite on error of a judgement in a action of debt  on judgement upon Monday the that of November the follow question come before  the court upon a adjournment over from the precede Trinity term videlicet  whether the plaintiff in a writ of error bring upon a judgement obtain in a  action of debt commence in this court upon a former judgement obtain here by  the administratorplaintiffs intestate in a action of debt upon a bind  condition for the payment of money only which former judgement be confess by  warrant of attorney be or be not oblige to put in bail on sue out such writ of  error upon the statute of I c for it be agree not to be within the statute of  c saint c or c c which extend only to writ of error after verdict the rule be  upon the administratorplaintiff to show cause why the return of the writ of  capias ad to give satisfaction issue in this cause shall not be set aside and  the proceed against the bail of the defendant stay with cost to be tax by Mr  Owen and in the mean time further proceed to be stay the case be this as to  the factsThe administratorplaintiffs intestate have bring a action of debt in  this court for upon a bind condition for payment of money only and obtain  judgement for the penalty by confession upon a warrant of attorney give for  that purpose so that there be no bail then put in and afterward die then his  administrator the now plaintiff bring a second action of debt in this court  ground upon that former judgement obtain by his intestate to which second  action the defendant put in bail and then plead that the intestate have not  good notabilia c and therefore the prerogative administration be void this  plea be overrule on demurrer and the administrator thereupon have judgement  upon this second judgement the defendant bring the present writ of error  without enter into such a recognizance as be require by I c the attorney for  the plaintiff the administrator conceive that execution be not stay by this  writ of error for want of such a recognizance proceed to get the can sa return  and go on against the defendant bail in the same manner as if no writ of error  have be bring and the question be whether he be or be not regular in so do  burrow the word of I c entitle a Act to avoid unnecessary delay of execution  arec that no execution shall be stay or delay upon or by any burrow er p writ  of error or supersedeas thereupon to be sue for reverse any judgement in any  action or bill of debt upon any single bind for debt or upon any obligation  with condition for the payment of money only or upon any action or bill of  debt for rend or upon any contract sue in any of his highness court of record  at Westminster or c c unless such person or person in who name or name such  writ of error shall be bring with two sufficient surety c shall first c be  bind c by recognizance c to prosecute with effect c and also to satisfy and  pay c all and singular the debt damage and cost upon the former judgement and  all cost and damage to be also award for the same delay of execution Mr  solicitor general sir Fletcher Norton on behalf of the plaintiff in error  argue that he be not oblige to enter into any recognizance in the present case  and that the writ of error when allow be a supersedeas at commonlaw the  plaintiff subsequent proceed be consequent irregular and must be set aside as  be so for this be not within any of the four case specify in I he confine  himself to this statute for that it can not he say be within either or c  because it be not after verdict and he cite Bulstr gilling v baker as a  authority for he upon the reason of it where Mr justice Doddridge say that  debt for arrearage of a account before auditor be clear out of this statute  for this be a debt ground upon record now so be the present debt a debt ground  upon record he add that this statute of I have be always construe strict and  never extend by equity and be urge that there be the less reason for it in the  present case because a action of debt bring upon a former judgement be a hard  and oppressive action and ought not to be encourage therefore he pray to make  the rule absolute Mr stow and Mr Wallace contra on behalf of the administrator  who be plaintiff in this court and defendant in error agree that the case be  not within the statute of pound c because there have be no verdict but they  insist that the plaintiff in error be within I c and that the plaintiff  proceed be not stay for want of the recognizance which ought to have be enter  into as be direct by that statute burrow they say that this be a action upon a  contract and that the practice be to enter into such recognizance upon sue out  a writ of error to reverse a judgement in a action of debt upon a former  judgement and they cite and rely on two case videlicet lev sir Theophilus  Biddolph v temple and Lucas Hammond v web b r hill g they deny that this Act  ought to be construe strict and not equitable and they deny that there be any  vexation at all in this case because the original plaintiff be dead after the  first judgement the administrator be oblige to institute some process to  revive it and this method be safe than a to know facias which may have  occasion the defendant to run away and then the plaintiff will have have no  bail at all as there be none in the first action where the judgement be  confess sir Fletcher Norton observe upon the case in lev that if it be not a  contract in its original nature it can not be make so by the judgement of the  court the court desire to be inform of the practice for they think it a case  that must very frequent occur and they direct the master to look into it to  which end it be for the present adjourn upon Wednesday that January Lord  Mansfield communicate to the bar and particular to the counsel concern in this  case that this matter have be consider by the court and be very careful look  into during the recess particular by Mr justice denison and that it appear to  be a shake questioning and have be different determine videlicet in Ann b r  that there shall be no bail and in g c b tempt Lord Ch I king that there shall  be bail so that there be upon the same point contrary resolution of the two  court therefore this court intend now to consult all the judge because it be a  very wrong thing to have different rule in different court upon the same Act  of parliament he say that it have be agitate in c time but not determine till  Ann cur advisare vult burrow Lord Mansfield now deliver the opinion of the  court upon this case declare at the same time that the opinion of all the  judge have be take upon it burrow er p he premise that there be no doubt but  that in the present case the original action require bail but whether there  ought to be bail on the writ of error bring upon the second judgement or not  there have be different opinion in the two court of king bench and common plea  the court of king bench have be of opinion that bail be not necessary the  common plea that it be this court hold it not to be necessary in a case  between Goodwin and Goodwin in the that of queen whether and this be on full  consideration but the court of common plea be of a different opinion in a case  which come before they in Lord Ch I king time between Lepson and Anderson in  the d of king g there have be judgement in that court in a action of debt on a  P  of mutuor bring there a action of debt be bring upon that judgement and the  plaintiff obtain judgement in that second action upon that second judgement a  writ of error be bring and the question before they be whether there shall be  bail give upon bring that writ of error it be object that the statute of I c  do not extend to writ of error bring upon action of debt on judgement and it  be urge that the statute ought to be literal construe and that the practice be  so the court of common plea hold that the contract be the foundation of the  whole and that if bail may be require in the first action then there ought to  be bail give upon bring the writ of error and there before they be of opinion  in that case that bail ought to be give and they take notice that the practice  be not settle for this court do not in such case require bail but they do all  the judge now hold that bail be not requisite upon bring a writ of error upon  a judgement in a action of debt find upon a prior judgement for they hold  saint that the contract be extinguish by the first judgement ndly that a  judgement be no contract nor can be consider in the light of a contract for  judgment To give back in reluctant dly another reason why bail can be insist  upon be that a action of debt upon a judgement in a action of a superior  nature to a action of debt upon bind or any of the other action particular  specify in this statute of I and therefore shall not be include in it  agreeable burrow to the reason use in the archbishop of Canterbury ease in Rep  b that if the maker of the statute have intend that it shall have extend to  this action of a superior nature to those which be specify in it they will  have begin with it and will have mention it prior to those of a inferior  nature thly another reason be that this statute ought rather to be take  literal than extend there be a case of tailor v baker in m car b r report in  Keble where holt upon this statute pray bail in error upon a judgement give in  a action of debt on judgement but Mr justice wile say that this statute extend  not to executor nor to judgement but ought to be literal take especial the  practice ever since have be not to put in bail and the enumeration be only of  debt of a inferior nature if it shall be think strange that bail shall be  require when the action be only upon a contract and shall not be require when  the action be upon a judgement which be of so much high a nature the answer be  that in the former case the legislature have require it in the latter they  have not unless a judgement can be esteem a contract which we think it can not  this be therefore a casus to let go and the statute be not to be extend by  construction because action of debt on judgement be in general oppressive  though there may be some particular case where they may fair be account for  for these reason all the judge be of opinion that though in the original  action bail be requirable yet it ought not to be require on writ of error upon  action of debt bring on such judgement so that this point be now settle for  the future the rule therefore for set aside the return of the can sa and stay  proceed against the bail must be make absolute but not with cost V post the  first case of the next term trinder v Watson et all see SC but not S p in  viner abridgment title bail letter I p v ante p burrow er p