case else against Yarborough sheriff of Yorkshire case lie not against the  sheriff though he take insufficient bail but he shall be amerce if the  defendant do not appear S C Mod S C Freem S C pale yellow c p action of escape  the plaintiff set forth that the defendant arrest a man upon a latilat direct  to he at the suit of the plaintiff and afterward suffer he to go at large the  defendant plead a but now see Ann c as to the assignment of bairbonds a the  statute of Henry c that be take good and sufficient bail within the county  accord to the statute the plaintiff reply that be let he go at large without  hoc that be take good and sufficient bail within the county to this the  defendant demurrer modern Skipwith and Baldwin sergeant argue this term jour  the defendant that the plaintiff in this case can maintain a action of escape  for where the sheriff take bail no escape will lie against himFirst because he  be compellable by the statute to let the defendant to bail second if he have  not the defendant ready at the return of the writ he may be amerce which be  the proper remedy three this precept of let the defendant to bail be by Act of  parliament be intend by the direction of the plaintiff himself because all  people be party to the make of a Act of parliament many action have be bring  against sheriff upon suggestion that no bail have be take and for which a  action on the case will lie but where there be bail take the sheriff have do  the duty which he be command to do by the statute and if the defendant do not  appear the sheriff be to be amerce and he be the proper judge of the bail the  plaintiff be no way concern therein whether good or bad at the commonlaw the  defendant be to continue in prison till he have satisfy the plaintiff to who  no benefit be intend by this statute but rather a ease to the defendant that  he shall be from thence discharge give good bail and the reason why the  statute mention such bail be in favour of the sheriff also to secure he from  amerciament the bail be then for his indemnity he be the sole judge both of  their person number and ability for the statute require two surety and that  they shall be man within the county yet if there be but one and be not of the  county and if the bind take by the sheriff for the appearance of the defendant  be but forty pound and the debt due to the plaintiff be four hundred pound it  be well enough because the statute do not restrain he to any sum or surety for  he may take what sum he please to force the defendant to appear and when this  security be take the sheriff be neither compellable to assign it to the  plaintiff or he to take it it be true he do usual assign it but that be to  discharge himself of the amerciament which be the way that the plaintiff shall  pursue where he do imagine the bail to be insufficient a but see the case of  Samuel vevans term Rep where this be determine to be a public statute and  therefore need not now be plead a modern if therefore this statute be make for  the benefit and ease of the defendant the security therein direct be for the  indemnity of the sheriff and therefore if no action will lie against he for  take of illsufficient bail it be as reasonable that no action shall lie  against he when he have take bail which he be compel to do and so the traverse  in this case be immaterial and judgement ought to be give for the defendant  barrel sergeant and George stride on the other side argue that a action of  escape will lie against the sheriff if he do not take good bail which matter  may be traverse and though here if the defendant have rejoin the issue have be  whether sufficient bail within the county or not yet that part of the issue  have not be material for the only matter have rest upon the sufficiency or  insufficiency of the bail in general like a case adjudge in mich car in b r  where a modern er p woman have power give her by her husband to make a will in  the presence of two credible witness it be plead that she make a will in the  presence of a and b credible witness and issue be thereupon join and it be  find to be make in the presence of c and d who be credible witness and this be  hold to be good because the substance be find videlicet that it be make in the  presence of two credible witness the defendant therefore here ought to have  take good and sufficient bail to bring himself within the statute and that be  traversable and the plead be well enough for if there be good bail it be not  material in what county they live north chief justice upon the first argument  of this case incline that a action of escape do lie at the commonlaw against  the sheriff for it be clear that he be to keep the party arrest in prison  until the debt be satisfy and that if he have go at large it have be a escape  the sheriff then have no excuse but by this statute and to entitle himself to  any benefit thereby he must pursue the very direction therein prescribe and  therefore ought to take good and sufficient bail for otherwise the statute  will be elude if it be leave in his power to take what bail be please and he  be of opinion that the plaintiff have a interest in the security and therefore  the sheriff be liable if it be not good when first take but not if by any  accident afterward the bail miscarry or become insolvent and Wyndham justice  be of the same opinion that the sheriff be liable be differ only as to the  manner of the modern action which he hold shall be a special action on the  case set forth the whole matter and allege that the defendant do not take  sufficient bail Atkins justice say the case depend upon the construction of  that statute Henry c which be very obscure and the opinion various which have  be upon it it be plain the sheriff be compellable to take bail and that a  action lie against he if he refuse such as be sufficient when tender but the  question be now whether it will lie against he for take those who be  insufficient and as to that he say that many authority be in our book that the  take of bail be leave to the sheriff discretion and he be thereby to provide  for his own indemnity for he must return a to take in hand coipus upon the  writ he can return that he let he to bail accord to the statute and therefore  incline that the action do not lie Scroggs justice contra he say that this  statute design the benefit of the creditor that he may either get the sheriff  amerce or have a action in both which case he may indemnify himself by the  security he have take it be true he may let the party to bail but it be sub  modus it must be upon good bail and if the sheriff be judge of the security it  be a argument that he be liable for if he be not in danger he need not take  security but afterward upon the second argument the chief justice and the  whole court be of opinion that judgement shall be give for the defendant north  chief justice the commonlaw be very rigorous as to the execution of process  the capias be ita queen d habeas the body at the day of the return and if the  sheriff have arrest one it have be a escape to let he go before the make of  this statute the sheriff usual take surety for the appearance of the prisoner  and by this mean use great extortion and take great sum of money to prevent  which mischief this statute be make and so design first for the ease of the  prisoner the sheriff be now compellable to take security which he be not  oblige to do before second to prevent extortion and therefore direct that a  bind shall be take in such manner and with such condition as be therein  mention but the sheriff since the statute be much in the same condition modern  as before for he be to make the same return of to take in hand corpus it be  true he may now let he go upon bail but as to the creditor he be to have he in  court to answer his suit as before and shall be amerce if he do not appear at  the return of the writ so that though this statute be a ease to the defendant  yet it be a burden to the sheriff who run a great hazard since the make of  this Act than before because then he may keep he in prison till the debt be  satisfy but now he be oblige to let he at large upon bail from who he be  direct to take a bind which he may keep in his bwn band to indemnify himself  the court can only amerce he if the defendant do not appear at the return of  the process and it be not material to the modern er p party whether the  sheriff take one or more security that be in his discretion some be must take  for otherwise it be direct in opposition to the statute neither be it material  to the party whether they be such as be sufficient for if they be not and the  defendant be thereupon discharge this will not amount to a escape because  nothing be do but what be pursuant to the statute and therefore he be no  otherwise Chargeable than by amerciament the statute be make and intend for  the benefit of the debtor not of the creditor and there may be some colour for  the action if the sheriff may return that he let he to bail for then it may  have be necessary to have allege the sufficiency of they which may have be  traverse but now he must pursue the substance of the statute so far as to take  bail he be the proper judge of the sufficiency and when the bail be take he  must return a to take in hand corpus so that he be only to be amereed till he  bring in the bod but a escape will not lie against he a in the case of sir  William rouse v Patterson Hilary term Geo in b r it be hold that a action lie  against a sheriff for take insufficient pledge in replevin note to the four  high n see king v Lewis term Rep that the court will not grant a attachment  against a sheriff for neglect to take a replevinbond a