
    *Renoard against Noble.
    In an action of scire facias, against bail, the defendant pleaded that another person of the same name and description became bail, and traversed that he was the person named in the bail-piece. The name of Elnathan Noble was inserted in the bail-piece, but it was proved that Stephen Norton was the person who intended to be bail, and who, in fact, appeared before the ' judge who took and signed the acknowledgment on the bail-piece. It was held, that the plea was good ; that the evidence was admissible, and sufficient, on the issue joined between the parties, as to the identity of the person. •
    Where bail are personated, the court will, in their discretion, on motion, order a vacatur of the bail.
    But if there has been a felonious personating of bail, they will stay any order for relief, until the party personated has prosecuted the felon. Per Kent, J.
    This was an action of scire facias, on recognizance of bail, in which the defendant is described as “ Elnathan Noble, of the town of Pittsfield, yeoman.” ' The defendant pleaded, that another person of the same name and description became bail, and traversed that the defendant is the same person. The plaintiff replied that the defendant and the person described in the recognizance of bail are the same person, and issue was joined thereon.
    At the trial of this cause, the defendant admitted his name and addition to be, as stated in the recognizance of bail, and that there was no other person of that name and addition in the town where the defendant resided, to his knowledge.
    The defendant then proved that the defendant in the original suit employed an attorney, who, in the autumn of 1798, made out a bail-piece, as of the term óf October, 1798, which the original defendant took, and went out with his bail, and returned on the same day with the bail-piece, certified by a judge, and in company with one Stephen Norton. Th6 attorney did not recollect the bail, whether he was the present defendant or the said Stephen Norton ; but it appeared that the name of the bail, in the bail-piece, was in the handwriting of the attorney, and that Norton resided in a different town from that in which the defendant resided. The bail-piece was dated the ilth January, 1798. It further appeared, by the testimony of Stephen Norton, that he came to Gooperstown (where the judge who took the bail resided) to be special bail for the defendant in the original suit. The .original defendant went to the attorney to get the bail-piece drawn, and then he and Norton went together to the judge, who signed his • name to the * bail-piece, but did not ask Norton to acknowledge himself bail, and no words passed between him and the judge. This was on the 11th January, 1798 ; and the present defendant was not in Gooperstown on that or the preceding day. Norton supposed himself bail, till after a trial in the original suit, and the original defendant had gone off. A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts; and two questions were raised for the consideration of the court.
    1. Was the evidence admissible ?■
    
    
      
      2. If so, was it sufficient to establish the plea?
    Emott, for the plaintiff.
    Hoffman, Attorney-General, contra.
   Kent, J.

delivered the opinion of the court. It was ad-rnitted by the plaintiff’s counsel, at the argument, that in case bail are personated, the court could direct a vacatur of the bail; and this appears to have been done in a variety of cases. (Cotton’s case, Oro. Jac. 256. Higham v. Barfold, 3 Keb. 694. Beasley’s case, T. Jones, 64.) The power of awarding a vacatur is exercised by the court in great discretion. They refuse it where, upon examination, the merits of the cause do not appear sufficiently dear ; (1 Ld. Raym. 445 ; 12 Mod. 257 ;) and sometimes stay it until the person personated has prosecuted to effect the person guilty of wilfully personating him, as was done in Beasley’s case. (T. Jones, 64.)()

All the cases that have been cited are instances of application to the discretion of the court. There are none *of a plea avoiding the record. But the form of the plea in the present case is taken from Lilly’s But. 398, a book of generally approved precedents ; and it does not appear to be repugnant to the rule, that no averment shall be admitted against a record. The plea does not contradict a single fact in the hail-piece* It only avers that the defendant is not the person of that name, thereby intended, which is an averment consistent with the truth of the record. But the validity of the plea is not to be examined in this way, for the plaintiff admits its validity, in point of law, by traversing the fact; and the parties go to trial upon the issue, whether the defendant is or is not the same person mentioned and described in the bail-piece.

To this issue the evidence offered was competent and pertinent ; and the only remaining question arising on the case is in respect' to its sufficiency.

Here, also, I cannot entertain any doubt. The defendant most certainly was not the person who appeáred and became speeial bail. It appears from the testimony of Stephen Norton, tliat he was himself the person who appeared before the judge, when the acknowledgment of bail was certified; that he, 'bonaJide, intended to be the bail, and supposed he was bail.

This is not the case, therefore of a felonious personating of bail, in which the courts have required, when application has been made to their discretion for relief, a previous prosecution of the felon. But it may be said that the whole plea is not verified, to wit, that there was another person of the same name and description, who became bail; and that the proof, as far as it goes, is, that there was no other person of that name and description. • In answer to this objection, I consider the allegation, that another person of the same name became bail, as but one inducement to the substance, or gist of the plea, which is, that the defendant was not that person. The proof that there was no other person, is but merely negative. *Jt could not be requisite for the defendant to prove such a fact; and if he proves himself not to be that person, the law will intend, in conformity with the plea, and in consistency with the truth of the record, that another person of the same name and description does exist.

In the case of Charles Ratcliffe, (Poster, 41,) who was brought into court for judgment, in the year 1.746, upon a conviction and attainder had in the year 1716; he pleaded that he was not the person mentioned in the record, and issue was joined on that single fact, without its being incumbent on the defendant to question or identify any other person. No doubt was entertained but that if the plea had been true in fact, it would have been valid in law.

We are, therefore, of opinion that the defendant is entitled to judgment.

Judgment for the defendant.() 
      
      (a) See Hobhouse v. Hamilton, (1 Scoales and Lefroy, 207,) in which it was held that an enrolment of a deed binds, though procured by fraud ; and that it is better to let the party seek his remedy for the fraud, than question the record.
     
      
      (a) See Graham’s Practice, 2d ed. 433, et seq.; 818, et seq.
      
     