and after If a latitat be sued against two, and one only be arrest- If a latitat be ed and puts in bail, and you are obliged to sue the other against two, to an outlawry, the original and other writs must be against both. If one of two defendants has put in bail, and pro- proceed to ceeding to outlawry be had against the other defendant, outlawry. the one who has put in bail cannot be outlawed, but a supersedeas must as to him be issued and allowed by the sheriff, who will return it on the allocatur exigent, and also return the other outlawed. Vide 1 Str. 473. If in a joint action against two, it appears, that one of the defendants has been outlawed upon a different process from that by which the others were brought into court, and no connection be shewn between the several writs of capias issued against each, as referable to the same original, as where the one was outlawed upon process by original, tested 10th April, returnable on the first return of Easter term, and continued down regularly to the time of the outlawry, and the other was arrested upon a special testatum capias, issued on the 24th April, in Hilary vacation, and tested in the preceding Hilary term, to which bail was put in, and the plaintiff declared against him alone, alleging the outlawry of the other defendant in the same suit, the court will set aside the declaration for irregularity. Haigh and others v. Conway and Davidson, 15 East, 1. London, to wit, Richard Fenn, late of &c. was attach- Form of deed to answer John Denn, in a plea, &c. and whereupon, claration. &c. complains, for that whereas the said Richard and one A. B. (which said A. B. by due course of law, has been outlawed at the suit of the said John Denn, in this plea and suit, and still remains so outlawed) on the, &c. See 7 East's Rep. 50. 3 East, 144. Brownl. Rep. 197. Lill. Ent. 20. 1 Brownl. 20. How to proceed. The first thing is to prepare an affidavit of the debt (if you mean to hold him to bail), then make a præcipe for the original as before, and take great care that the debt accrued due before the teste of it, otherwise it will be bad; but if he is not to be held to bail, then make a præcipe only, carry it to the filazer, pay him for same according A memoranto length, and the fine to the king as before; he will make dum or warout a capias, alias and pluries thereon, and the capias rant to be ought to be tested on the quarto die post of the return of the original, the alias on the quarto die post of the return of the capias, as also the pluries on the quarto die of the S s filed for plain tiff on a 58. stamp. Second writ, Notwithstanding outlawry, the act remains joint. When to have an allocatur. alias, and they are to be sealed: then leave them with the sheriff of the county where the venue is laid for a return of non est inventus, pay 1s. each name; when the sheriff has made his return, take them to the filazer, who will make out an exigent (which is to be conformable to the original and capias) and proclamation; the first of which requires the sheriff to cause the defendant to be demanded or exacted, in five county-courts successively, to render himself, and if he does, then to take him, as in a capias. The second commands the sheriff of the county, in which the defendant dwells, or last dwelt, to make three proclamations thereof in places the most notorious, and most likely to come to his knowledge, a month before the outlawry shall take place, 6 H. 8. c. 4. 31 Eliz. c. 3. The writ is to bear teste and be returnable the same as the writ of exigent, and to be sent to the sheriff where the defendant dwells, or was last resident, to execute. N. B. The filazer files the warrants of attorney. Where the plaintiff brought an action against two defendants, and proceeded to outlawry against one, and went on with the action against the other, who died after interlocutory and before final judgment. Held that he could not have a sei. fa. against his administrator, for notwithstanding the outlawry, the action remained joint, and therefore survived against the other defendant. Fort and others, assignees, &c. v. Catherine Oliver, administratrix, &c. 1 Maule and Selw. 242. If there are not county-courts, (or hustings, if in London,, sufficient, between the teste and return of the exigent, you may have an allocatur exigent, allowing as many exactions of the defendant as there are between the teste and return, and demanding him again to appear; and upon the allocatur, if there are not five exactions returned, you must have another, which the filazer also makes out, pay 9s. seal 7d. Kitch. 264. But if any county-day be past between the last of the former county-days and the return, no allocatur shall issue, but you must have a new exigent, for the demand of the party must be at five county-courts successively held one after another, without any county-court intervening. Plow. Com. 371. b. It is said the quickest way is to proceed in London, as the hustings are held oftener than the county-courts. (a) (a) In London the hustings are holden once every fortnight. 3 Lev. 245. County-courts are held every six weeks only; therefore it is best to outlaw in London. Trye, 66. gatum. If the defendant does not appear at the return of the How to proexigent or allocatur, by putting in bail, or filing a common ceed upon the appearance (as the case requires), there shall be judgment capias utlaquod utlagat. Kitch. 263.then sue out a capias ullagatum, "which is to extend the goods and chattels, lands and "tenements, of defendant, and to take his body also:" if he be taken, he gives bail as hereafter; if goods, &c.be taken, get the sheriff to take an inquisition thereon (but no notice is required to be given to the defendant,) produce witnesses before the sheriff to prove deeds, or any other thing taken, that they are the defendant's, and an appraiser who has made appraisement thereof, to prove the value. (b) As soon as the capias utlagatum is returnable, get it Transcript. from the sheriff, take a copy for yourself, carry it to the filazer, and he will make a transcript thereof, which take and file with your clerk in court, in the Exchequer office, King's-bench walks. Upon receipt of it, he will give an eight day rule on the back of the transcript, if there be so many days in term, otherwise the rule must be for the general seal after term for any one to come in and claim the goods seized; if no one claims, then he makes out a venditioni exponas, directed to the sheriff, to sell the goods and chattels appraised, and found upon the inquisition. turn. If the plaintiff gets a friend to take them at the ap- How to propraised value, pay the money to the sheriff, who will ceed after make a bill of sale of the same; or if leases are taken in sheriff's repossession he will assign same, and return the venditioni exponas, which is filed with your clerk in court. The sheriff is to be paid his poundage thereon. If the debt be above 501. but not otherwise, then pre- Petition, &c. pare petition to the lords of the Treasury, "praying "that the money levied, and in the hands of the sheriff, may be paid to the plaintiff, towards satisfaction of his "debt and costs;" a certificate of the transcript must be certified by the clerk in court under the petition, which leave at their office (a fee extra is requisite to their clerk for expedition): their answer is, " a reference to H. C. "Litchfield, Esq. their solicitor," of Lincoln's Inn Newsquare, who will, on request, order you to appear before him, to make out the plaintiff's demand; he will require (b) See the sheriff's duty in my Office of Sheriff, 294. edit. 1812. 1 Ss If 501. only, then no need for the king's sign manual. Clerk in court draws up or der and makes out a sub poena; when to move for an attachment. Exigent. an affidavit of the plaintiff, sworn before a judge, together with an affidavit of his having paid his solicitor the costs annexed. N. B. If the action be upon notes, bills, bonds, or other securities, he will require them to be produced before him, and upon his report, what there is due for the debt, and perhaps he may report the costs (for it is discretionary, they being given by the lords); then file the same with the clerk of the treasury, and get him to procure the king's sign manual, for the attorney-general "to consent to your motion that the money may be paid over to the plaintiff;" after the king's sign manual is obtained, give brief to counsel, with half-a-guinea, to move the court of Exchequer," that the money returned <6 upon the venditioni exponas by the sheriff of Middlesex "be paid to the plaintiff;" also give brief to the attor ney-general to consent, pay him 21. 2s. clerk 2s. 6d. and on such motion and consent, the court will order it to be paid accordingly. But if the sum levied exceed not the sum of 501. there need no application to the treasury; for the court of Exchequer, upon reading the return of the venditioni exponas will upon motion of your counsel only, order it to be paid. pay the The clerk in court will then draw up the order, and seal a subpoena at the same time for the sheriff to money to plaintiff forthwith, which plaintiff may demand at the sheriff's office, and if not paid he may move for an attachment against him. George the third, &c. To the sheriff of Middlesex, greeting: we command you, that you cause C. D. late of Westminster, in your county, merchant, to be demanded from (or if in London, say, husting to husting) county. court to county-court, until, according to the law and custom of our kingdom of England, he be outlawed, if he does not appear; and if he does appear, then that you take him and safely keep him, so that you have his body before us, on wheresoever we shall then be in England, to answer to A. B. of a plea, for that whereas (here insert the whole præcipe), to the said A. his damage of 6001. as it is said; and whereupon you did return to last past (the return of the pluries) that the said C. D. was not found in your bailiwick; and have you there this writ. Witness, Edward Lord Ellenborough, Kenyon. us on &c. To be signed by the filazer, pay him according to length, and seal 7d. George the third, &c. To the sheriff of Middlesex, Proclamation. greeting; whereas, by our writ, we lately commanded you, that you should cause C. D. late of Westminster, in your county, merchant, to be demanded from (a) county- (a Husting to court to county-court, until, according to the law and husting, if in custom of England, he should be outlawed, if he did not London. appear; and if he did appear, then that you should take him and keep him safe, so that you might have him be- To be also signed by the filazer, pay him 8s. sealing 7d. feits. A man outlawed in a personal action, forfeits his goods What the deand chattels, 1 Salk. 305. and his chattels real, as a term fendant forfor years, 2 Rol. 806. 1. 43. If tenant at will sow his lands, the king shall have the emblements. Ibid. The king shall have all the profits of his freehold lands. 2 Rol. 807. But in a personal action it shall be for the benefit of the party. Cas. in Parl. 73. In personal actions he does not forfeit any lands of What defenwhich he has estate of freehold, 2 Rol. 807. nor a real dant shall not forfeit. charge for life, Hut. 54. Copyhold not liable to be seized, Parker, 190. As to the sheriff's return, see my Office of Sheriff, 318. 3d edit. George the third, &c. To the sheriff of Middlesex, Non omittas greeting: we command you that you omit not by reason special capias of any liberty in your bailiwick, but that, by the oath utlagatum. of good and lawful men of your county, you diligently inquire what goods and chattels, lands and tenements, C. (b) The filazer always makes this writ out, without setting forth the præcipe at large. |