case Throgmorton versus church in house nobles Eq can ab pl sue the bail below  pen a writ of error in parliament be a contempt and breach of privilege in  debt on escape bring by church against Throgmorton sheriff of buck church the  plaintiff in c b have a verdict and judgement whereupon the defendant  Throgmorton bring error in b r and one mead a attorney of Aylesbury be his  bail but judgement be there affirm error be bring in the house of lord and pen  the writ of error there church the plaintiff low take out execution against  mead the bail and seize all the good upon a be made fa mead petition the h use  of lord against the attorney that take out this execution allege it to be a  contempt and breach of privilege whereupon counsel be hear before the  committee of privilege and object that this be no breach of privilege or  contempt because the writ of error in the house of lord only stay all proceed  upon the record of the judgement against the principal whereas the  recognizance give by the bail be a distinct record and if it have be intend to  stay proceed against they upon this record peer William they must also bring  their writ of error in parliament it be compare to the case of two bind in a  bind joint and several for the same debt in which judgement be first have  against one and afterward in another action judgement be also obtain against  the other obligor who bring error still the former obligor may be use upon the  judgement against he though it be but one debt and if this be a contempt here  or if matter be stay by mean of the writ of error bring by the defendant in  the original action then restitution ought to be make in c b where the be made  fa be take out and the good seize whereas this have be attempt and be speak to  by counsel before peer William er p the judge of c b to who complaint have be  make of this as of a irregular execution but they hold it to be regular as Mr  justice Tracey himself inform I on the other side it be insist this be a  contempt that if execution have be take out against the plaintiff in error pen  the writ of error in the house of lord it have be plain a contempt and in the  present case they have in effect be do the same thing by take the very debt in  question out of the pocket of the bail which can amount to no less than to a  take it from the principal who at least by a imply promise of law be liable  and compellable to indemnify the bail that the writ of error most plain  suspend the original plaintiff right to the debt it be thereby sub judge  whether there be any debt or not and it be unreasonable that the plaintiff  below shall be allow to take out execution for a debt before it be determine  whether there be any such debt for in case the judgement shall be reverse the  plaintiff below ought not to have execution thereon and if the principal be  discharge of the debt the bail must be so peer William too who can only be  liable in respect of the debt incur by this principal and therefore it be  absurd to suppose the latter to be in a worse condition than the former  whereupon it be resolve that this be a contempt and breach of privilege and  the plaintiff attorney order to make a restitution of the good which be accord  do but the lord be inform that the judge hold it no contempt at law spare the  cost in this case as to the attorney who sue out the execution upon his return  to mead the bail all the good he have take from he afterward the writ of error  itself come to be argue where the only point insist upon for the plaintiff in  error be that this action of debt on the escape against the defendant the  sheriff be when the defendant in the original action in c b have be outlaw  upon a outlawry after judgement and such defendant have upon this judgement be  take in execution the sheriff have let he escape for which the action be bring  against he and a verdict and judgement obtain under these circumstance it be  say that the action be bring for this escape on a outlawry after judgement  ought to have be bring in the tam how videlicet tam pro lord ring how pro he  himself and I be of counsel in the house of lord for the plaintiff in error  argue as follow one Joan church the plaintiff in the original action and  defendant in error have recover judgement in debt in c b against one John  Merridale for pound and after judgement church the plaintiff below outlaw this  Merridale and sue out a special capias utlagatum against his body land and  good direct to the defendant then sheriff of the county of buck peer William  as to the land or good Merridale bad none and as to his body the defendant  take that in execution upon the capias utlagatum but it be a body one will  think scarce worth take be quite wear down with age near eighty year old and  almost starve with poverty it seem the sheriff a thing in a poor man case not  very usual have compassion for he and show he some favour for which the now  defendant church have bring debt for a escape against the sheriff and have the  good luck to obtain a verdict and judgement thereupon in c b for pound be the  whole debt and on error bring in b b that judgement be without argument affirm  to reverse these two judgement be this writ of error now bring before your  lordship it be after a verdict I shall forbear to mention the several mistake  in the declaration for be so in form only I doubt they be cure by the verdict  but I apprehend there be a mistake in substance I mean as to the nature of the  action bring in the plaintiff name only whereas it ought to have be as well on  behalf of the king as the plaintiff tam pro lord ring how pro he himself it  appear by the declaration that Merridale be outlaw after judgement that he be  take u on a capias utlagatum and that while he be in custody upon this capias  the sheriff let he escape now by the party be outlaw all his personal estate  and the profit of his land be forfeit to the king and the writ of capias  utlagatum be a writ at the king suit upon which when the sheriff have take the  party he be the king prisoner as well as the plaintiff and when the sheriff  let we he escape it be a contempt to the king and a wrong to he as well as to  the plaintiff therefore this action for the escape ought to be at the suit of  the king as well as peer William the party which be agreeable to the reason of  the law and likewise to the precedent if the prisoner take in execution upon a  capias utlagatum be the king prisoner peer William er p as well as the party  as plain he be it seem reasonable that for the escape of such prisoner the  action shall be bring as well on behalf of the king as of the plaintiff saint  for that by this escape the king as well as the plaintiff lose his prisoner  and if the sheriff permit his prisoner take upon this capias utlagatum to  escape be a wrong to the king as well as to the plaintiff then it be  reasonable that the action bring for this wrong shall be on behalf of the king  as well as the plaintiff dly as the sheriff suffer the prisoner to escape be a  contempt to the king as well as a damage to the party it be proper that the  action be as well pro lord ring how pro he himself dly as the writ of capias  utlagatum be at the king suit so it be proper for conformitys sake that the  action for the escape ground upon it be on the king behalf as well as on the  party in former time it be so far from be doubt whether such action for a  escape of a prisoner take on a capias utlagatum shall not be bring as well on  behalf of the king as of the party that on the contrary it be a doubt whether  the plaintiff in such case can have any action at all in his own name I say it  be former question where a defendant be take upon a capias utlagatum and the  sheriff let the defendant escape before such time as the plaintiff have enter  any prayer or elect that the defendant shall be in execution at peer William  his suit whether in such case the plaintiff can bring a action for the escape  of such prisoner in regard it be both the king suit and the king prisoner and  I think Garnons case   be the first wherein it be resolve that the plaintiff  may have such action against the sheriff upon the escape of one take on a  capias utlagatum but still it must be intend that the action be bring as well  on behalf of the king as of the party I must admit that as this action upon  which the outlawry be ground be at the suit of the party as it be carry on at  the charge of the party as the king receive advantage from it be by that mean  entitle to the forfeiture accrueing by outlawry so the party be to receive  some benefit by the suit of the king and therefore be to be first pay his debt  out of the good and chattel of the defendant who be outlaw but even this have  be hold by very learned man to be at first eastern agreeableness king and not  de jure vide Yelv by Popham chief justice vide Vol two the some say by Lord  commissioner Gilbert neither can it be object that it be not necessary the  action shall be bring on behalf of the king as well as the party because the  latter be to recover damage for there be many case in the law where the party  be to recover all the damage and yet the action must be bring tam pro lord  ring how pro he himself thus in a action of temptation to sin great man for  speak scandalous word of a peer of the realm or of any of the great officer of  this kingdom the action be to be bring tam pro lord ring how pro he himself  and yet the party in this case recover all the damage Richard c Richard c so  in a action against the hundred upon the statute of hue and cry for a robbery  Edward c Elizabeth c though the party plaintiff recover all the damage yet be  the action to be bring as wall on behalf of the king as of the party in cro  James waterhouse v bawd it be lie down as a rule by the court that peer  William where a statute prohibit a thing and add no penalty a action lie  against the party for act contrary to the prohibition of the statute but that  it ought to be tam pro lord ring how pro he himself because in such case the  king cc be to have a fine and if it be a reason why the action ought to be tam  pro lord ring how pro he himself in case where the king be entitle to a fine  then such rule must hold in the present one for here it be a contempt in the  sheriff who have take the defendant upon a capias utlagatum to permit he to  escape he be the king prisoner and take at the king suit for which contempt  the sheriff be liable to be fine thus accord to the reason of the law this  action ought to be bring tam pro lord ring how pro he himself nay the case  seem to be within all those reason which require such a action and now as to  precedent I shall cite only two but those such as do not pass sub silence be  adjudge on the very point where upon a defendant be take on a capias utlagatum  and the sheriff suffer he to escape a action be bring against the sheriff tam  pro lord ring how pro he himself for that escape to which it be object that  the action ought to be only in the name of the party but the objection be  overrule aad the action adjudge to be right bring forasmuch peer William er p  as the capias utlagatum be the king writ issue out at his suit and the king to  have the benefit thereof as well as the party cro James Parkhurst v Powel the  other authority where it be so adjudge upon the like debate be in roll Rep  Barret v Winscomb and cro James peer William in the next place your lordship  will give I leave to observe that the action be in its nature a pretty hard  one videlicet to charge one man with the debt of another to make the sheriff  responsible for the debt of this prisoner indeed there be a time when the law  in this point be much more unreasonable than it now be when it be hold and for  a long time it be so hold that where the sheriff have suffer one in execution  to escape the plaintiff who by his have once take the defendant in execution  be at the end of his suit can not retake he though suffer by the sheriff to  escape vide hob deny to be law vent but since the law be now construe to be  otherwise and the plaintiff may again take the defendant in execution unless  he himself consent that his prisoner shall escape it seem pretty hard that in  all event when the sheriff suffer the prisoner to escape he shall be charge  with the whole debt and it be so much the hard in this case where the prisoner  have no estate either real or personal be quite wear down with age and almost  starve with poverty beside that he die within a few day after the pretend  escape and have he die in prison the plaintiff will not have have the least  advantage the plaintiff below have be so much in haste to carve out  satisfaction for himself that he will not vouchsafe to stay for the justice of  this house but proceed against the bail below and take his good in execution  even pen the writ of error in parliament which your lordship with great  justice resolve to be a contempt and breach of privilege of this house  notwithstanding which the plaintiff have not think fit to make the bail any  satisfaction for the great cost and damage which he put he to by this  erroneous execution upon the whole we humble insist that this action for the  escape of the prisoner take upon a capias utlagatum ought to be tam pro lord  ring how pro he himself saint because the prisoner peer William that be suffer  to escape be the king prisoner dly because by the sheriff permit the prisoner  to escape the king be damnified as well as the party dly as by reason of the  sheriff suffer this escape there be a contempt to the king as well as a injury  to the party thly for that by this escape the sheriff be liable to answer as  well a fine to the king as the debt to the party thly this case be within all  those reason that require a action to be bring tam pro lord ring how pro he  himself and last upon the strength of the authority which have be cite to your  lordship cause not bring as well on behalf that therefore the judgement ought  to e that this action for the escape because of the party be erroneous and but  on debate the judgement be affirm and chief on the authority of the case of  more v sir George Reynolds cro James where in a action for a escape of a  prisoner who have be take on a capias utlagatum after judgement and the action  be bring at the suit of the party only it be object that it ought to have be  in the tam how but in that case the prothonotaries certify that the precedent  have be both way the objection be disallow