The same circumstances which will prevent the defendant from being supersedable for want of a declaration, will prevent him from being supersedable for either of the other causes. There are, however, some cases where the defendant is not entitled to a supersedeas, though the plaintiff may not have proceeded in time; and first, If there were any treaty or agreement pending for a settlement or compromise of the matters in dispute, the defendant will not be entitled to a supersedeas, provided the treaty or agreement were in writing signed by the defendant or his attorney, or some other person duly authorized by him, and it were therein expressed that proceedings were stayed at the defendant's request. Secondly, If the defendant have given the plaintiff a notice of his intention to apply for his discharge under the Insolvent Debtors' Act, or if he have filed his petition to the Insolvent Debtors' Court, though he have given the plaintiff no notice of it; in either of these cases the plaintiff is not bound to proceed, and the defendant is not entitled to a supersedeas. If a defendant is once supersedable, he is always so.

It has been stated generally, that a prisoner once supersedable is always so, and if the defendant be supersedable for want of being charged in execution, the rule is true to its full extent; but if the prisoner be supersedable, because the plaintiff did not proceed to trial or final judgment in due time, he may, by his own laches, lose his right to a supersedeas: for if he have an opportunity of applying, and do not apply for it until the plaintiff has charged him in execution, (provided that be done in due time,) he then loses his right to a supersedeas.

If a defendant have been superseded because the plaintiff did not proceed to trial or final judgment in due time, the plaintiff may, after final judgment, take him on a ca. sa.; but if he have been superseded for want of being charged in execution in due time, the plaintiff may have execution of his judgment by fi. fa. or elegit, but cannot take the defendant on a ca. sa.

If a defendant become supersedable, the means to be taken to obtain a supersedeas are the following: A certificate of the causes the defendant is charged with must be obtained from the goaler in whose custody he is, an affidavit must then be made of the gaoler having signed this certificate, the certificate and affidavit are then to be sent to London to the agent, who at the same time should be informed whơ is the plaintiff's London agent, and he will then take the necessary steps to obtain and send down the writ of supersedeas. This writ must then be lodged with the under-sheriff, or the gaoler, and the defendant will be discharged (e). 976190 278b mi bizne

By the statute 48 Geo. III. c. 123, sec. 1, it is provided that all persons in execution upon any judgment, in whatsoever Court the same may have been obtained, for any debt or damages not exceeding 201. exclusive of costs, and who shall have lain in prison for the space of twelve successive calendar months next before the time of their application, shall, upon application for that purpose in term time made to some one of his Majesty's Courts at Westminster to the satisfaction of such Court, be forthwith discharged out of custody as to such execution by the rule or order of such Court. 10 997192 91° to hosunts

This statute it seems does not apply to the case of a plaintiff in execution for costs (f), though there is one decision to the contrary (g); but in the case of defendants it is immaterial in what Court the judgment was obtained, or whether it was a Court of Record or a Court not of Record. If the judgment were obtained in either of the superior Courts at Westminster, the application must be made to the Court in which it was obtained; but if the judgment were obtained in any other Court, the applica

(e) See the Form of Certificate of Affidavit, in the Appendix,

sect. 42.

(f) Tinmouth v. Taylor, 10 B. & C. 114.

(g) Roylance v. Hewling, 3 M. & S. 282. mod

201

tion may be made to either of the three superior Courts. The statute, it will be observed, mentions damages as well as debt, and therefore it is imma terial whether the action in which the judgment was obtained were to recover a debt, or for any other cause, such as assault, libel, &c., provided the debt or damages, exclusive of the costs, did not exceed 20%.

I

The usual and cheapest mode of proceeding under this statute is by serving a notice of the intended application on the plaintiff, this notice must be served ten days before the application is intended to be made, but it may be served before the twelve months expire, so that it may run with the last ten or any less number of days of that period. With the notice there should be delivered to the plaintiff a copy of the affidavit of the defendant on which the motion is intended to be made, which affidavit will be presently mentioned. A certificate of the defendant's commitment, and of the causes in which he is detained, must then be obtained from the keeper of the prison in which he is confined; this must be signed by the keeper, and his signature verified by affidavit; an affidavit of the service of the notice must be made, and the defendant must make an affidavit that the debt or damages for which he is confined in the action do not exceed 201. exclusive of costs, and that he has been confined in prison thereon for the space of twelve calendar months. These affidavits must be sent to the agent, who must be desired to make the application, which he will do, and send down the rule, which must be lodged with the keeper of the gaol, and the defendant will be discharged (h).

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Where a prisoner has been discharged under this act, the discharge does not operate as a satisfaction of the judgment, for the plaintiff may afterwards issue a fi. fa. or an elegit, but under neither of these

43.

(h) See Form of Notice and Affidavits, in Appendix, sect.

writs must the necessary wearing apparel or bedding of the defendant or his family, nor the necessary tools of his trade or occupation, not exceeding the value of 107. in the whole, be taken.

If the defendant have unduly or fraudulently obtained his discharge on any false allegation, and this is made out to the satisfaction of the Court on motion, they will allow the plaintiff to issue a fresh ca. sa. and take the defendant upon it..

CHAPTER XII.

OUTLAWRY.

In what Cases resorted to How to proceed-Exacting Defendant-Proclamations-Allocatur Exigent-Caution as to -How Defendant outlawed-Special Capias utlagatumHow executed-Arrest of Defendant-Appearance-Discharging him-Reversing Outlawry.

PROCEEDINGS to outlawry are generally taken where the defendant is not to be met with, and cannot therefore be served with a writ of summons. Sometimes they are taken after final judgment, where the defendant cannot be found.

If it be intended to proceed to outlawry, steps must be taken to obtain a distringas; (see ante, p. 31;) the distringas must be lodged with the sheriff, and when returnable, the sheriff will return it nulla bona and non est inventus. Writs of exigent and proclamations are then issued and lodged with the sheriff, and the defendant must be exacted at five County Courts, and proclaimed once at the Quarter Sessions, once at the County Court, and, in writing, at or near the doors of all the churches and chapels in the parish or place of which he is described in the writ (a); and this last proclamation must take place on a Sunday before divine service, and at least a month before the quinto exactus, that is, a month before the fifth County Court at which the defendant is exacted under the writ of exigent. All this it is the sheriff's duty to do, that of the attorney being only to see that the writs are duly lodged with him. If, under the writ of exigent, the defendant cannot be exacted at five County Courts, in consequence of

(a) See 1 Vict. c. 45, s. 2.