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.
3. 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 v. Hain, 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. 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. *Page 740