Trin. 2 Car.
CALF recovered in debt here against I. S. A scire facias issued out of the court against Bingley, as bail of I. S. who pleaded, that after the judgment, on such a day and year, the said I. S. brought error in the Exchequer Chamber; whereupon the transcript of the record was removed, and pending the writ of error, I. S. surrendered himself a prisoner in custodia marescalli, and died while the writ of error was still depending: which he is ready to verify, and therefore prayed judgment. On which plea, Calthrop for the plaintiff.
1. The surrender ought to be tried by record; therefore he ought to have concluded, et hoc paratus est verificare per recordum.
2. The plea is double: the surrender is triable by the record and the death by the country; and different answers ought to be given; and if the plaintiff takes issue, or pleads to the one, the other remains unanswered.
*1503. The bringing a writ of error is a supersedeas to the execution, although the transcript of the record alone be removed. In M. 12 Jac. there was a case in this court between Heyden and Sheppard, on a judgment in Norfolk; error was brought in this court, and in 12 Jac. judgment being given, error was brought in the Parliament, and although the transcript of the record only was removed; yet the whole court was of opinion, that the writ of error was a supersedeas. In 20 Jac. Crouch and Hains’ case, the court said that error in the principal case is a supersedeas to the execution.
Jermyn. Then if the execution is suspended by the writ of error, during this suspension the bail cannot bring in the principal. In H. 20. Jac. Cadner and Anderson, error was brought to reverse a judgment here: and it was ruled that the principal cannot be brought in pending the error, so in this case the surrender is nothing, but the death is the only matter of the plea, and traversable.
Jones, J. The bail may bring the principal in before judgment.
Jermyn. But then he ought to be in execution; and not here when the execution is stayed by the writ of error.
Quod Crew, C. J. and Jones, J. concesserunt. But the bail may bring him as soon as they can.
Jermyn. Then the execution being suspended *by the writ of error, and the principal dying before the determination of the writ of error, the bail are discharged. In Hobbs and Tadcastle’s case, the clerks of the court said that the bail may bring the defendant in, before the scire facias and after the capias.
Jones, J.
De rigore juris they ought to bring him in before; but per gratiam curiæ, it is well enough at any time before the scire facias is awarded.
And he said to Calthrop. The opinion of the court is against you, for you do not speak of any capias awarded in your plea: and although the surrender in the plea is void, for want of averment by the record, yet the death is a discharge of the bail. Causa qua supra. Jones 138. 3 Bulstr. 331. Poph. 185. Bendl. 184. Noy 82. 2 Roll. 491. 1 Roll. 450. 1 Cr. 597.