
    Richardson against Backus.
    A writ of error maybe brought before judg;n en’ormay be at Ms6 “ chambers, and it will be considered as taking effect from the judgment.—It'is sufficient if the penalty be to the amount ’of the judgment, and the bail cannot gainsay their reeognizance, Notice of bail need net state before whom it was taken.
    RUSSEL moved to set aside the capias ad satisfaciendum in this cause, for irregularity, and that the defendant be discharged from custody. From the affidavit it appeared that the rule for judgment was entered the 15th day of , 7 May last, and the judgment roll filed the 21st day of June. A recognizance of bail in error, had been duly entered into i.i February term last, and on the twenty-third day of June last, a writ of error was filed with the clerk of this court, and on the game day notice of the writ, and of the bail in error was served on the agent of attorney of the plaintiff, in Albany ; and a like notice was afterwards, on the 4th of July, served on the attorney himself, who resides in the county of Washington. The ca. sa. was issued the 26th day of June, on which the defendant was taken the 9th day of July, and imprisoned. It was contended, 1. That the writ of error was a supersedeas in this case, and the execution, therefore, irregular. Seel Term, 279. Jacques v. Nixon. Barnes, 3.6. 1 Salk, 321. 3 Term, 390. Wm. Blk. 1183. 2 Stra. 867. 1186. 1 East, &62. 2 East, 44. 3 East, 546. Wittes, 271. 2 Tiddds Practice, K. B. 101. Sellon's Practice, 578. 2. The rule for judgment ought not to have been entered until four days after the 15th of May. The defendant has four days in full term, before final judgment can be entered. 1 Sellouts Practice, 497, 498.
    
      Shepherd, contra.
    There can be no doubt that a writ of error with recognizance of bail is a supersedeas. The act, however, requires the bail to be put in before the court in which the judgment has been given, before the writ of error can become a supersedeas. The defendant ought to have shown in his notice, before what authority the bail was taken. The recognizance was entered into during February term, and as the statute requires the bail to be in double the amount recovered, he should have waited until the judgment was perfected. The bail here, xvas put in too soon, and could have no effect; a xvrit of error is a nullity unless bail be put in within 4 days after the allowance. 1 Term, 279. 2 Term, 44. 1 Sellon, 578.
    
      Russel, in reply.
    It xvas sufficient to give notice that , bail was put in, and it xvas not necessary to state before whom it was taken. The plaintiff, if dissatisfied, might have ... , i ,, „ , , . applied to the clerk’s office, where the recognizance was filed. A writ of error may be brought before the judgment is entered up. Here the judgment has relation to the first day of February term, as will appear from the record.
   Per Curiam.

The writ of error was a supersedeas to the execuíion. A recognizance taken before a judge at his chimbers, is a sufficient compliance with t >e directions of the act. Th iugh taken after the inquisition and before the rale for judgment, it is not vitiated. It was during the term, at which the inquisition was returned, and the motion made for judgment. The penalty was to the amount of the judgment, and the bail are estopped from gainsaying their recognizance. It will be deemed as taking effect fro n the judg neat. As the attorney of the plaintiff is supposed to have acted bona fide, we shall save him from the consequences of his act. The rule is, therefore, granted with the costs of this application, on condition that no action for false imprisonment be brought by fhe defendant.

Rule granted.  