Brantingham's Case , 1 Cole. Cas. 42 ( 1796 )

THE defendant, having been surrendered in difcharge of his bail, and thereupon committed to custody, the plaintiff proceeded to judgment, but suffered more than three months to elapse after judgment was entered, without charging the defendant in execution, He was then summoned before his Honour Mr. Justice Benson, at his chambers, to shew cause why a super-fedeas should not issue, because he had not charged the defendant in execution, within the time precribed by the 12th fection of the Act entitled "An Ac for the relief of debtors, with ref-pect to the imprisonment of their persons," passed the 13th of February, 1789. The plaintiff, after notice of the application and before the time of attendance, charged the defendant in execution, and on the hearing, shewed that for cause.

His Honour Judge Benson, reserved the question, and stated the case to the judges at a conference, at which they were all present.

They were of opinion that a fuperfedeas ought not to be allowed: That the intent of the flatute was to enable the defendant to put the plaintiff to his election, either to charge the defendant's body in execution, or to refort to his date; and the plaintiff having made his election before the su-perfedeas was allowed, the defendant was not entitled to his discharge.