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Of appearing to the Exigent, and of reverfing the Outlawry by Motion on coming in gratis.

notwithstanding the plaintiff's death after the outlawry: Before an actual affignment by commiffioners of bankruptcy, the crown is not bound, though there is a great difference between an extent in aid pro rege, and an outlawry for a private perfon's debt. Here is no foundation to tie up the plaintiff's hands; the plaintiff [meaning the representative of the original plaintiff] may proceed if fo advised. French v. Manby. Barnes 323.

Vide

It was the practice in the Common Pleas, before the ftat. 45 W. & M. c. 18. to allow a defendant, upon appearance by attorney, to reverse the outlawry, and not to require an appearance in perfon. But in the King's Bench, no one in any cafe, civil or criminal, could reverfe an outlawry, without an appearance in perfon, till that ftatute, unless where, ex fpeciali gratia upon a reafon affigned to the court, they indulged him to appear by attorney, as in fickness, &c. Cro. Fac. 462. but then the entry was, that he came in person "Quod venit in propria perfona," the law being clear, that upon an outlawry he ought to appear in perfon. Carth. 7. Skin. 16. Salk. 496. But to remedy the inconvenience and expence attending an appearance in perfon, that ftatute enacts, "That no perfon who is or fhall be "outlawed in the faid court, for any caufe, matter, or "thing whatsoever, [treafon and felony only excepted] "fhall be compelled to come in perfon into, or appear in "perfon in the faid court to reverfe fuch outlawry, but fhall or may appear by attorney and reverse the same without bail, in any cafes, except where fpecial bail "fhall be ordered by the faid court.'

of

Of appearing to the Exigent gratis, and of reverfing the Outlawry by Writ of Error.

THE courts, in an outlawry had against him, will

HE courts, inftead of driving the party to his writ of

moftly, as appears from the foregoing cafes, relieve him on motion, where the proceedings have been irregular; but in doing this the courts always require, that the defendant pay the plaintiff his cofts up to the exigent, unless where the plaintiff has proceeded intentionally irregular, and with a view to opprefs. But where the defendant is driven to his writ of error to reverse the outlawry, either upon coming in upon the exigent, &c. gratis, or brought in upon the capias utlagatum, he muft, in all cafes, pay the plaintiff his cofts to the outlawry; and, where special bail is required, he must put in bail, either before error can be brought to reverse the outlawry, or elfe upon the reverfal.

By the 31 El. c. 3. f. 3. it is enacted, "That before "any allowance of any writ of error, or reverfing any out"lawry be had, by plea or otherwife, through or by want "of any proclamation to be had or made, according to the "form of this ftatute, the defendant and defendants in the "original action fhall put in bail, not only to appear and "answer to the plaintiff in the former fuit, in a new ac"tion to be commenced by the plaintiff for the cause men"tioned in the first action, but alfo to fatisfy the condem"nation, if the plaintiff fhall begin his fuit before the end "of two terms, next after the allowing the writ of error, or "otherwife avoiding of the faid outlawry."

This ftatute requires bail to be put in before the allowance of error, only where the error is for want of proclama

tions.

But for any other caufe than for want of proclamations, it is fufficient if bail is put in before the reverfal of the outlawry, by the writ of error, if the original cause of action required bail.

As where error was brought to reverse an outlawry in Chefter; to which the defendant in error pleaded, that no bail was put in before the allowance of the writ of error, according to the 31 El. c. 3. Per cur. This is no plea, for it is well enough, if bail be put in at any time before the reverfal. The error was the want of pro comitatu. Wilbraham v. Doyley, Ld. Raym. 605.

So where, pending error to reverse an outlawry on mesne procefs, the defendant in error moved to quafh the writ,

because

Of appearing to the Exigent gratis, and of reverfing the Outlawry by Writ of Error.

because no bail was given. Sed per cur. That is never done till the outlawry is reverfed; and then we take bail to appear to an original, to be brought within two terms. Duckett v. Martin, Stra. 951.

If a party comes in gratis, upon the return of the exigent, he may be admitted by motion to reverse the outlawry, for any other caufe than want of proclamations, with-1 out putting in bail. If he comes in by cepi corpus on the capias utlagatum, then he fhall not be admitted to reverfe it without appearing in perfon, as in fuch cafe he was obliged to do at common law; or putting in bail with the sheriff for his appearance upon the return of the cepi corpus, and for doing what the court fhall order. Appearing by attorney. is an indulgence by 4 & 5 W. & M. and the bail is to be fpecial or common in this as in other cafes. Salk. 496. But vide the cafe of Campbell v. Daley, Burr. 4 pt. 1920. Where it was held, that a defendant, coming in after outlawry, muft put in fpecial bail, before fuperfedeas or reverfal of outlawry; if the original caufe of action required fpecial bail which determination feems to have been founded on the cafe of Serecold v. Hampfon, bart, Stra. 1178. 1 Wilf. 3. which was as follows:

موع

. The defendant was outlawed in a perfonal action, without any affidavit of the plaintiff's demand: and having brought error, he affigned his being beyond fea at the time of the outlawry; for which the court made no difficulty to reverse it but the queftion was, upon what terms they fhould do it, the plaintiff infifting on fpecial bail, and having now made a proper affidavit; and the defendant infifting to file common bail only.The court, upon confidering of the 4 5. W. & M. c. 18. f. 3. which impowers the outlaw to appear by attorney, [as he did here] and fays, it fhall be reverfed without bail in all cafes but "where special bail fhall be ordered by the court," declared, they were of opinion, they had a difcretionary power to require it or not; and that the want of an affidavit before was no objection; because that is only requifite to warrant an arreft and here was one in time for the new action that must be brought. And though the 31 Eliz. c. 3. f. 3. is the only act that requires bail, it is not to be inferred from thence, that in other cafes it ought not to be infifted on, for that act makes a new error, and the bail upon it is abfolutely to pay the condemnation money.

Of

Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error afterwards.

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F a defendant was arrefted upon the capias utlagatum, the sheriff could not admit him to bail, as an outlawed perfon is excepted out of both the ftatutes of 23 Hen. 6. c. 9. and 13 Car. 2. ftat. 2. c. 2. (unless by fuperfedeas first had and received for difcharging him.)

موع

But by the 4 & 5 W. & M. c. 18. f. 4. it is enacted, "That if any perfon, outlawed in the * faid court (other than for treafon and felony) fhall be taken and arrested upon "any capias utlagatum out of the faid court, it fhall and may "be lawful for the sheriff who hath or fhall arreft fuch "perfon (in all cafes where fpecial bail is not required by

the faid court) to take an attorney's engagement, under "his hand, to appear for the faid defendant, and to reverfe "the faid outlawry; and thereupon to discharge the faid "defendant from fuch arreft: and in those cafes, where fpecial bail is required by the faid court, the faid fheriff "fhall and may take fecurity of the faid defendant by bond, with one or more fufficient fureties, in the penalty of "double the fum for which special bail is required, and no

more, for his appearance by attorney, in the faid court, <6 at the return of the faid writ; and to do and perform "fuch things as fhall be required by the faid court; and, "after fuch bond taken, to difcharge the faid defendant "from the faid arreft."

And by fect. 5. it is further enacted, "That if any perfon outlawed as aforefaid, and taken and arrefted upon a "capias utlagatum, fhall not be able, within the return of "the faid writ, to give fecurity as aforefaid, in cafes where "special bail is required, fo as he be committed to gaol for "default thereof, that when foever the faid prifoner fhall "find fufficient fecurity to the sheriff, in whofe cuftody he "fhall be, for his appearance by attorney in the faid court,

"The faid court," means the court of King's Bench; the ftatute being made to prevent malicious informations in the court of King's Bench, and for the more eafy reverial of outlawries in the fame court. But notwithstanding, all perfons arrefted upon the capias ulagatum out of the Common Pleas, after outlawry there have always been bailable fince the making thereof, and before might have been difcharged by a fuperfedeas to the capias uílagatum. Vide, fect. 4. in 13 Car. 2. c. 2.

Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error afterwards.

"at some return in the term then next following, to reverse "the faid outlawry, and to do and perform fuch other "thing and things as fhall be required by the faid court; "it fhall and may be lawful for the faid theriff, after fuch "fecurity taken, to difcharge and fet at liberty the faid "prifoner for the fame."

It is the allowed practice of the court of Common Pleas to fuffer a defendant coming in by capias utlagatum, the fame term on which an exigent is returnable, to avoid the outlawry without writ of error, by fhewing, that he purchased a fuperfedeas out of the fame court, and delivered it to the fheriff before the quinto exactus, &c. or by fhewing any other matter apparent on the record, which makes it erroneous, as the want of original, or the omiffion of procefs, or want of form in a writ of proclamation, &c. or a return by a perfon not appearing to be sheriff, or a variance between the original and exigent, or other procefs, or the want of fuch addition, &c. as is required by the 1 Hen. 5.-Yet, it is faid, in many books, to be the conftant courfe of the court of King's Bench, never to reverse an outlawry on the crown fide, either in the fame or a different term, for thefe or other errors of a like nature, without a writ of error. 2 Hawk. P. C. 458. and feveral authorities there cited.

But, in civil cafes, the King's Bench, as well as the Common Pleas, at this day, will generally reverfe outlawry on motion, as is feen in the foregoing pages, without driving the party to his writ of error, whether he comes in in the fame term or another, or upon the exigent or capias utlagatum. But, in relieving by motion, the court always have regard to the plaintiff's caufe of action, and the fituation he is in towards the recovery of his debt.

A. who was a foreign merchant, and never in England, was outlawed at the fuit of B. in an action on feveral promifes for goods fold and delivered; and, on a special capias utlagatum, a fhip, and other effects belonging to A. were feized, as forfeited upon this outlawry; and it was moved, that this outlawry may be vacated, and reftitution awarded, upon affidavits produced and read, that the defendant was never infra legem, i. e. that he never was in England, and therefore could not be outlawed; because that was putting him extra legem. Sed per cur. This outlawry fhall not be

vacated

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