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Of Bail in Error, where requifite.

"James the firft, fhall be firft acknowledged in the court "where fuch judgment fhall be given:" And further, "That in writs of error to be brought upon any judg

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ment after verdict in any writ of dower, or in any action of "ejectione firma, no execution fhall be thereupon or thereby ftayed, unless the plaintiff or plaintiffs in fuch writ of 66 error, shall be bound unto the plaintiff in fuch writ of "dower, or action of ejectione firma, in fuch reasonable fum. 66 as the court to which fuch writ of error fhall be directed "fhall think fit; with condition, that if the judgment "fhall be affirmed in the faid writ of error, or that the "faid writ of error be difcontinued in the default of the "plaintiff or plaintiffs therein, or that the faid plaintiff or "plaintiffs be nonfuit in fuch writ of error, that then the "faid plaintiff or plaintiffs fhall pay fuch cofts, damages, and fum and fums of money as fhall be awarded upon or after fuch judgment affirmed, difcontinuance, or "nonfuit had." And by fect. 4. έσ To the end that the fame fum and "fums and damages may be afcertained," it is enacted, "That the court wherein fuch execution ought to be "granted, upon fuch affirmation, difcontinuance, or non"fuit, shall iffue a writ to enquire as well of the mefne

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profits, as of the damages by any wafte committed after "the first judgment in dower, or in ejectione firme; and upon "the return thereof, judgment fhall be given, and execu"tion awarded for fuch mefne profits and damages, and "alfo for cofts of fuit."

Provided, "That this ftatute fhall not extend to any "writ of error to be brought by any executor or admini"ftrator, nor any action popular or upon a penal ftatute, "(except the ftatute of Edward the fixth) nor upon in"dictments, &c."

The rule upon error brought after verdict in ejzAment for rent, is to jullify bail in double the rent due.

4 pt. 2501.

Burr.

On error in ejectment, the plaintiff in error being in a remote part of the kingdom, found two fufficient men to be his bail, who were bound in a recognizance, &c. The court, holding that the intent of this ftatute of Charles the fecond being to fecure the defendant in error, it was here fully obferved, becaufe this bail was better than the plaintiff's own recognizance. Barnes v. Bulver. Carth. 121. Barnes 103. 78. 75.

Of Bail in Error, where requifite.

A recognizance on error in ejectment, ought to be in the value of two years mefne profits; and double costs is usually taken in both courts. Barnes 103.

Error on verdict in ejectment allowed, but plaintiff in error entered into no recognizance, nor put in bail, as plaintiff below had not got the cofts taxed, without which, the measure or quantum of the recognizance could not be fixed.Plaintiff below, for want of the recognizance and bail, in four days, took out an habere facias poff. and had _poffeffion given him, which the court held to be regular. Et per cur. Defendant fhould have applied to stay execution, and then the court would have obliged plaintiff to have got his costs taxed. The writ of error is no fuper fedeas without bail. A judge would have taken bail, if applied to. Rule difcharged. Barnes 212.

If judgment be against an executor or administrator de bonis propriis, and he brings a writ of error, he must put in bail in fuch cafes as are required by the ftatutes before mentioned, and pay costs if judgment be affirmed; but if judg ment be de bonis teftatoris only, he fhall neither put in bail nor pay cofts-vide the provifo in 16 & 17 Car. 2.

Though an executor is not obliged to give bail on error, yet the court may take it; and if he does give bail, it is binding. Stra. 745.

A feire facias against the defendant as administrator on a devaftavit alledged, and judgment was de bonis propriis; on which he brought error; and by the whole court he shall find bail, for here he is charged in his proper goods, and it is not as where an administrator is charged in the teftator's

goods. i Lev. 243. 1 Sid. 368. 2 Keb. 295. 371.

After an award of execution against bail on a recognizance in error, they brought a writ of error as to fuch award of execution. Plaintiff moved for leave to take out execution for want of bail on the writ of error brought by the bail, and obtained a rule to fhew caufe, which was difcharged no bail in this cafe being requifite. Barnes 194.

Bail is not requifite, as it fhould feem ffed q.] upon bringing a writ of error returnable in parliament upon a judgment in B. R. in an action of debt brought upon a reCognizante in error. Burr. Rep. 4 pt. 1567-8.

But upon error in parliament of a judgment affirmed in B. R. new bail is required. Salk. 97.

New bail must be put in upon every new writ of erior. Ld. Raym. 840.

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Of Bail in Error, where requifite.

As if on a judgment in C. B. error is brought in B. R. where the judgment is affirmed, and afterwards error is brought in parliament, the party muft give a new recognizance, for the firft does not include cofts to be affeffed in the House of Lords. Salk. 97.

Formerly, upon error brought of a judgment in an inferior court of record, no bail was neceffary, as not within. either of the foregoing ftatutes: But now, by 19 Geo. 3. c. 70. it is enacted, "That no execution fhall be ftayed << upon or by any writ of error or fuperfedeas thereon to be "fued for the reverfing of any judgment given in any in"ferior court of record, where the damages are under ten "pounds, unless fuch perfon, in whofe name the writ of "error shall be brought, with two fufficient fureties, fuch "as the court [wherein fuch judgment is given] fhall allow "of, fhall first, before fuch stay made or fuper fedeas award"ed, be bound unto the party for whom any fuch judg<< ment is given, by recognizance to be acknowledged in "the fame court, in double the fum adjudged by the for66 mer judgment, to profecute the faid writ of error with "effect; and alfo to fatisfy and pay. [if the faid judgment. "be affirmed, or writ of error be nonproffed] all and fingular the debts, damages, and cofts adjudged; and all "the cofts and damages awarded for the delaying of exe"cution."

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Bail in Error when to be put in, &c.

HE plaintiff in error has four days after the allowance

to put in bail; and the plaintiff in the action, during that time, ought not to take out execution.

When bail in error is put in, notice thereof ought to be given to the defendant or his attorney; and if the defendant does not except to those bail within twenty days after fuch notice, they fhall be allowed. Reg. Mich. 5 W. & M.

If the defendant in error thinks the bail infufficient, he may at any time, within the twenty days, have a rule from the clerk of the errors for better bail; and after service of such rule, if those bail do not justify in four days, or better bail is not put in within that time, the defendant in error may fue out execution of his judgment below: But the writ of error ftill remains and may be proceeded in, the fuperfedeas to the execution only being taken away. Vide Ld.

Raym. 840.

If a rule for better bail is ferved in vacation, the plaintiff in error has not time, of courfe, to perfect his bail till the next term, but ought to justify before a judge: and execution fued out for want of it, was held regular. Barnes 211.

Bail in error, who refufes to justify, may have his name ftruck out of the bail-piece at any tinie. Jones v. Tubb. in error in B. R.. I Wilf. 337.

After error allowed and notice, plaintiff in the judgment executed a fi. fa. for want of bail in four days. Motion to fet afide the fi fa, fuggefting that plaintiff could not regularly take out execution till after certificate from the clerk of the errors, that no bail was put in. Rule difcharged. Such certificates have been frequently taken out of caution, but are not cffentially neceffary. The ftat. 16, 17 Car. 2. is pofitive as to bail within four days. No bail is yet put in. Bail ought to have been put in before the motion. A queftion arofe, whether, after bail perfected, the goods can be reftored? In Meriton v. Stevens. Mich. 16 Geo. 2. and Sykes v. Dawfon. Hil. 18 Geo. 2. held, that if defendant's perfon be taken by a ca. fa. and bail in error afterwards perfected, the perfon fhall be difcharged: But in cafe of a fi. fa, the proceedings, fo far as the fheriff has gone, muft ftand. Incledon v. Clark. Barnes 212.

Bail in a writ of error cannot furrender their principal in difcharge of themselves, for the condition of the recognizance is, that the plaintiff in error fhall profecute his writ

Bail in Error when to be put in, &c.

with effect; and, if judgment be affirmed, fhall fatisfy and pay the debt, damages, and cofts recovered, together with fuch cofts as fhall be awarded by occafion of the delay of execution; or else that they, the bail, fhall do it for him.

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