was quashed for insufficiency; for such second writ being void, was as if there had been none before. But when a writ of error abates by the act or default of the party, a second writ of error, brought in the same court, is not a supersedeas of execution, as the first is; as where the plaintiff in error marries, or nonprosses his own writ of error:" and execution may be sued out in these cases, without leave of the court: but it seems, that on a writ of error coram [*1210] nobis or vobis, execution taken out without leave of the court is irregular.y

When bail is required upon a writ of error, it should be put in within four days after the delivery of the writ to the clerk of the errors, if it be sued out after final judgment; or if it be sued out before, the bail shall be put in within four days after final judgment is signed; otherwise the party succeeding in the original action may take out execution, notwithstanding the writ of error. And, after the allowance of a writ of error, if bail be not put in thereon in due time, it will be a nullity; though the defendant in error has previously sued out execution. The four days in this case are to be reckoned from the time when the taxation is completed, by the insertion of the amount of the costs:d And, in the Common Pleas, there is no occasion for a certificate from the clerk of the errors, that no bail is put in. The bail is put in with the clerk of the errors, who attends to take their acknowledgment, in the court wherein the judgment was given, or before a judge of that court; and it seems that they cannot be put in before a commissioner in the country.f In the King's Bench, the same persons who were bail in the original action, may become bail in error, if they are able to justify: And, in the Common Pleas, a recognizance entered into by the bail in error, without the principal, is good. But if a defendant bring a writ of error, and put in hired bail, who are insolvent, the plaintiff may, without entering an exception, treat them as a nullity, and issue execution.i

In personal actions, it is a rule, founded upon the statute 3 Jac. I. that the recognizance should be acknowledged in double the sum adjudged to be recovered by the former judgment: And a recognizance of bail in error, for less than double the sum recovered by the judgment, does not operate as a supersedeas, or stay of execution.' But upon error in debt on bond, though the bail are to be bound in double the penalty recovered, yet by the course of the court of King's

Carth. 370.

a 2 Str. 781. 1 Durnf. & East, 279. 4

Latch, 57, 8. 1 Vent. 353.1 Mod. 285. Durnf. & East, 121. 1 Bos. & Pul. 478.

[*1211] Bench, it is sufficient if they justify in double what is really due: And, in the Common Pleas, if the bail are bound in double the sum secured by the condition, it is sufficient; though a further sum be due for interest and costs, and nominal damages have been recovered." In the Exchequer, it is a rule, that "in all cases where special bail is required on writs of error, if the bail are obliged to justify, each of them shall justify himself in double the sum recovered by the judgment on which the writ of error is brought; except where the penalty of a bond or other specialty, is recovered by such judgment, in which case, each of the bail shall justify in such penalty only; and also except in cases of ejectment, where, if bail shall be put in upon the writ of error, each of such bail shall justify in double the improved annual rent or value of the premises recovered."

In ejectment, the plaintiff in error may either enter into a recognizance himself, without any bail,P pursuant to the statute 16 & 17 Car. II. c. 8. § 3.9 or he may procure two responsible persons to become bail: For though the words of the statute seem to require a recognizance by the plaintiff in error, yet in the construction of this statute, it is deemed sufficient, if he procure proper sureties to become bound for him: And one reason for this construction seems to be, that an infant plaintiff could not enter into such recognizance, nor a plaintiff who had become a feme covert after the action brought; and as the legislature could not have meant to exclude infants and feme coverts from the benefit of the act, they must put such a construction upon it as would apply to all plaintiffs in error." Besides, bail in error cannot be taken by a commissioner in the country; and it would be very hard to oblige a plaintiff in error, who may live at a great distance from London, to come into court, to enter into a recognizance: And this construction may in some cases give the defendant in error a better security than he could have had, if the plaintiff alone were to become bound.'

[*1212] In the King's Bench, the practice is said to be, for the plaintiff in error, or his bail, to enter into a recognizance, in double the improved rent, or yearly value of the premises, and single amount of the costs." In the Common Pleas, the clerk of the errors governs himself, in fixing the penalty of the recognizance, by the

Carth. 121. Barnes, 75. Cas. Pr. C. P. 142. Pr. Reg. 179. S. C. Barnes, 78. Cas. Pr. C. P. 152. Pr. Reg. 180. S. C. Barnes, 212. 2 Bos. & Pul. 443, 4. 8 East, 298. ⚫ 8 East, 299.

Barnes, 78. Cas. Pr. C. P. 152. Pr. Reg. 180. S. C. Ante, 1210.

8 East, 298. and see Cas. temp. Hardw. 374. But in the case of Thomas v. Goodtitle, 4 Bur. 2502. the recognizance it seems was taken in double the rent only, without the addition of costs: and, in a subsequent case, the court said, "It is sufficient that the plaintiff in error be bound in a recognizance for two years' rent." Per Cur. T. 21 Geo. III. K. B.

amount of the rent of the premises; and takes the recognizance in two years' rent or profits, and double costs: And where the plaintiff in error enters into the recognizance, it is not necessary for him, in that court, to give the defendant in error notice thereof; nor can he be examined, in the King's Bench, as to his sufficiency: though, when bail in error is put in, notice thereof should it seems be given, and they may be examined, as in other cases. In the Exchequer, we have seen, the bail must justify in double the improved annual rent, or value of the premises recovered. But bail in error are not chargeable for the mesne profits, in an action upon the recognizance, until they have been ascertained by writ of inquiry, pursuant to the statute 16 & 17 Car. II. c. 8. § 3.b

с

The condition of the recognizance in the Common Pleas, on a writ of error returnable in the King's Bench, is, according to the direction of the statute 3 Jac. I. that the plaintiff shall prosecute his writ of error with effect; and, if judgment be affirmed, shall satisfy and pay the debt, damages and costs recovered, together with such costs and damages as shall be awarded by reason of the delay of execution, or else that they (the bail,) shall do it for him. On a writ of error returnable in the Exchequer chamber, the form of the recognizance is somewhat different; the bail engaging to pay the sum recovered by the judgment, and such further costs of suit, sum and sums of money, as shall be awarded for delay of execution. And as the engagement of the bail is absolute, it has been determined, that they cannot surrender the plaintiff in error: nor are they entitled to relief, when he becomes bankrupt whilst the writ of error is pending: So if the bail become bankrupt, pending the [*1213] writ of error, and before affirmance, they are not discharged from their recognizance; for till then the debt is contingent, and not proveable under the commission.g

When bail is put in, notice thereof should be given without delay to the defendant in error, or his attorney; and in general if the defendant in error do not except to the bail for insufficiency, within twenty days next after such notice, the recognizance shall be allowed. But if the defendant bring a writ of error, and put in hired bail, who are insolvent, the plaintiff, we have seen,k may, without entering an exception, treat the bail as a nullity, and issue execution. If the bail be not approved of, the defendant in error may, at any time within the twenty days, obtain a rule from the clerk of the

eR. M. 5 W. & M. (b.) K. B.

1 Durnf. & East, 624. and see 2 Bos. & Pul. 440. where it was holden, that the bail in error are not dischargrd, by taking their principal in execution.

B 2 Str. 1043. Cas. temp. Hardw. 262. S. C.

h2 Dowl. & Ryl. 85. Ante, 1200, 1201. Append. Chap. XLIV. § 21.

R. M. 5 W. & M. K. B. R. M. 6 Geo. II. reg. 6. C. P. and see R. T. 26 & 27 Geo. II. § 2. in Scac. Man. Ex. Append. 210. accord.

* Ante, 1210.

errors, for better bail; a copy of which should be served on the attorney for the plaintiff in error: And if the bail do not justify, or other bail be not put in and justified, within four days after notice of the rule in term time, they are considered as a nullity; and the party succeeding in the original action may take out execution." In the King's Bench, time is never allowed to justify bail in error;" and the same practice has prevailed in the Common Pleas, unless some real error be shewn. But the writ of error still remains, and may be proceeded in; the supersedeas to the execution only being taken away. In the King's Bench, if a rule for better bail be served in vacation, there is it seems no occasion to justify until the next term: but the plaintiff in error must either give notice of justifying the same bail, or put in such other bail as he will abide by, within the four days allowed by the rule; it having peen determined, that he cannot give notice of fresh bail after the four days, unless indeed the bail already put in are prevented from justifying by special circumstances, which must be disclosed to the court by affidavit, at the time appointed for justifying. In the Common Pleas, [*1214] when the rule is served in vacation, the plaintiff in error has not time of course to perfect his bail until the next term; but ought to justify before a judge; and if the defendant in error be not satisfied with that, then the plaintiff in error, having done every thing in his power, is entitled to time for justifying until the next term, but not otherwise. In the Exchequer of Pleas, it is a rule, that "if bail in error shall be excepted to, and notice of exception given in writing to the attorney or clerk in court for the plaintiff in error in term time, such bail shall be perfected and justified within four days after notice so given, or the defendant in error may, in default thereof, proceed to execution, notwithstanding such writ of error; but where notice of exception shall be given in vacation time, then such bail shall be perfected and justified upon the first day of the subsequent term, unless the defendant in error, his attorney or clerk in court, shall consent to a justification before one of the barons; in which case, such bail shall justify themselves before a baron, within four days after notice of such exception given in writing to the plaintiff in error, his attorney or clerk in court: and in default of such justification, the defendant in error may proceed to execution, notwithstanding such writ of error."

The mode of adding and justifying bail in error, is the same as in the original action:" And if a person excepted to as bail in error

other, v. Wilson, id. 367. (a.) accord. Hinckley v. Hutton, H. 27 Geo. Ill. K. B. id. 368. (a.) contra. and see 2 Chit. Rep. 84, 5.

Barnes, 211. 2 Blac. Rep. 1064. Imp. C. P. 6 Ed. 729.

t R. T. 26 & 27 Geo. II. § 2. in Scae. Man. Ex. Append. 210.

"For the form of notice of justification, see Append Chap. XLIV. § 23.

do not justify; his name may be struck out of the recognizance. * But where bail in error was put in in vacation, and excepted to, and the plaintiff in error gave notice that they would justify on the first day of the next term, and before that day non-prossed his own writ of error, and the bail did not justify; the court held, that they were not entitled to stay proceedings in an action against them upon the recognizance, nor to have an exoneretur entered on the bail-piece.

Bail in error, when necessary, being complete, the next step to be taken by the plaintiff in error, except on a writ of error coram nobis or vobis, is to certify or transcribe the record; in order to which, a transcript should be made, and sent with the writ of error and return, into the court above. When no bail is required, this is the first step that is taken, after the service of the allowance of the writ of error. And the plaintiff in error should regularly cause the transcript to be made, (for the defendant cannot transcribe the record,2) by the time *the writ of error is returnable. If [*1215] the record be not certified by that time, the defendant in error may give the plaintiff a rule to certify it; which is an eight day rule, obtained from the clerk of the errors in the Common Pleas, on a writ of error from that court returnable in the King's Bench; or from the clerk of the errors in the King's Bench, on a writ of error returnable in the Exchequer Chamber, or House of Lords; and when obtained, a copy of it should be forthwith made, and served on the attorney for the plaintiff in error: In the Common Pleas, the rule to transcribe may be served on the plaintiff in error; these rules being excepted out of the general practice, which requires service on his attorney.

In the King's Bench, on a writ of error to the Exchequer Chamber, if the writ be returnable the first return of the term, this rule may be had on the essoin day. In the House of Lords, there is an order, that "upon writs of error, all persons shall bring in their writs, within fourteen days after the first day of the session in which such writs shall be returnable, otherwise they shall not be received; unless upon judgments given during the session, upon which the writs shall be brought in within fourteen days after judgment given: And till the expiration of the time limited for bringing in the writ of error, the defendant in error cannot have execution.

On a writ of error brought on a judgment in the Common Pleas, or any inferior court, in an adverse suit, the record itself is suppposed to be removed, that it may remain as a precedent and evidence of the law in similar cases. But in the case of a fine, the transcript only is