The day he D. late of Westminster, in your county, merchant, bath or was outlawed. had in your bailiwick, the

What debts are liable to be seized upon the capias

utlagatum, and how the king is to recover them;

he can only take the pro

fits of the land.

day of

last

past, or at any time afterwards, on which day he was out-
lawed in your county, at the suit of A. B. in a certain
plea of trespass on the case, to the said A. B. his damage
of 6001. as you have returned to us some time since, and
by their oath cause the same to be extended and apprais-
ed, according to the true value thereof: and what you
find by that inquiry take into our hands, and cause the
same to be safely kept, so that you answer to us for the
true value and issues thereof, and having so extended and
appraised the same, what you shall have done herein,
make known to us on
wheresoever we shall then
be in England, distinctly and plainly under your seal,
and the seals of those by whose oath you shall have made
that extent and appra sement: and for that the said C.
D. so being outlawed, conceals himself, and runs up and
down from place to place in your county, in contempt of
us, and in prejudice of our crown, as we are informed;
we command you, that you take the said C. D. where-
soever he shall happen to be found in your bailiwick, as
well within liberties as without, and keep him safely, so
that you have his body before us at the aforesaid time,
wheresoever we shall then be in England, to do and re-
ceive what our said court before us shall in this case de-
termine, and have you there this writ. Witness, &c.
Kenyon.

To be signed by the filazer, and sealed; pay signing 8s. seal 7d.

When the outlawry is returned on the exigi facias, by the sheriff, and recorded in court, execution may be taken out against the party outlawed, either general to arrest the body, or special to arrest the body, extend the goods, lands, and also debts and choses in action belonging to the party outlawed, Lut. 330; and when such inquisition is returned by the sheriff, a transcript of the outlawry and inquisition is returned into the Exchequer, and thereupon if any debt be returned due from any one to the outlawed, on application to the Exchequer, a sci. fa. issues to such person to shew cause, why the king should not have such sum found due on the inquisition to the outlawed; and therefore the transcript of this record is sent into the Exchequer, that the court of ordinary revenue may have it in charge; but the court of Exchequer usually grants a custodiam to such person as sued the outlawry. Harl. 422. Carth. 441. Yelv. 19. 2 Vern. 314.

If the defendant be taken upon the capias utlagatum, If defendant the plaintiff cannot declare against him in that action; be taken, canfor the process is determined. Cro. Eliz. 706.

To the Right Honourable the Lords Commissioners of his

Sheweth,

Majesty's Treasury.

The humble petition of A. B.

That C. D. late of

not declare.

merchant, being justly in- Petition to the

upon

debted unto your petitioner in the sum of
a promissory note of hand, bearing date the 22d day of
June, 1817, and also in 201. for goods sold and delivered
to the said C. D. your petitioner was obliged to outlaw
him for the recovery thereof.

That a writ of special capias utlagatum having issued against him, out of his majesty's court of King's Bench, at Westminster, at the suit of your petitioner, an inquisition was taken thereon by the sheriff of Middlesex, whereby certain goods and chattels to the value of 801. mentioned in the said inquisition, were by the said sheriff seized, and taken into his majesty's hands; which writ and inquisition being transcribed into his majesty's court of Exchequer, at Westminster, a writ of venditioni exponas duly issued out of the said court, whereon the said sheriff hath returned, that he has, by virtue thereof, sold the goods and chattels in the said writ mentioned, for the sum of 1. being the dearest price he could get for the same; which monies he had before the barons of the king's Exchequer at Westminster, at the day in the said writ mentioned, ready to be paid to his majesty's use.

That as your petitioner has been at great expence in the said proceedings, and as his majesty is not concerned in interest, but his name only made use of by your petitioner for the recovery of his said debt;

Your petitioner therefore humbly prays your lord-
ships, that his majesty's attorney general may
be authorised to consent on behalf of his ma-

jesty, that the sum of 1. may be paid to your
petitioner towards satisfaction of his said debt
and costs.

And your petitioner shall ever pray, &c.
term, in the

lords.

Certificate of the clerk in

These are to certify that in year of the reign of his present majesty king George the court.

Affidavit.

How to re

verse outlaw

but treason

and felony,

without appearing in

third, a transcript of an outlawry was returned and filed
in this court against C. D. late of, &c. merchant, outlaw-
ed in Middlesex, at the suit of A. B. in a plea of trespass
on the case; by which transcript it does appear, that se-
veral goods and chattels of the said C. D. were seized
into his majesty's hands by
and

Esq. then sheriff of the said county of Middlesex, by vir
tue of a special capias utlagatum, in the said transcript
specified; and I further certify, that a writ of venditioni
exponas has issued, for selling the said goods and chat-
tels so seized, whereon the said sheriff hath returned, that
he hath sold the same for the sum of 1.

In the King's Bench.

A. B. plaintiff,

and

C. D. defendant.

A. B. of, &c. maketh oath and saith, that the above named C. D. is justly and truly indebted unto this deponent in the sum of according to the annexed ac count, and also in the further sum of 231. for costs paid to Mr. G. C. this deponent's solicitor, in prosecuting the outlawry in this cause against the said C. D.

The order for the payment of the money, and the subpœna, are made out by the clerk in court.

Of Bail to the Capias utlagatum.

(a) By stat. 4 & 5 W. & M. c. 18. no person who shall be outlawed in this court for any matter, cause, or ries in all cases thing, (treason and felony only excepted,) shall be compelled to come in person in this court to reverse such outlawry; but he may appear by attorney, and reverse the same without bail in all cases (except when special bail shall be ordered by the court.) And if any person outlawed shall be arrested on a capias utlagatum out of this court, the sheriff who has taken such person (in all cases where special bail is not required by the court) may take an attorney's engagement under his hand to appear for the defendant, and to reverse the said outlawry and discharge the defendant from such arrest; and where

court.

If bail not required.

(a) This act relates only to civil actions; this is evidently the true spirit of it, ueither can it extend to tak ing bail in cases not bailable. Aston, J. 4 Burr. 2541. Rex v. Wilkes.

special bail is required, the sheriff may také security of Where bail is required. defendant by bond with one or more sufficient surety in the penalty of double the sum for which special bail is required, and no more, for his appearance by attorney in court at the return of the writ, for performing such things as shall be required; and after such bond taken, then to discharge him, sect. 4. Also where any person is arrested upon an outlawry, and cannot within the return of the writ give security as aforesaid, in cases where special bail is required, so as he be committed to gaol for default thereof, that whensoever he shall find security to the sheriff, for his appearance by attorney in the said court, at some return in the ensuing term, to reverse such outlawry, and to do and perform such other thing and things as shall be required by the said court. It shall be lawful for the sheriff after such security taken to discharge him; sect. 5. This act relates to cases where no special bail is required, and to cases where special bail is required: and the sheriff is directed what to do in either case; where the action is bailable, the defendant is to be discharged upon the security bond. But even in civil actions, he could not be bailed; where he was not bailable, he is only to be put in the same condition as if he had not been outlawed at all. If the outlawry was after judgment in debt, or any other civil action, and the defendant was not bailable before the outlawry, the act did not make such defendant bailable, who was not so before the outlawry. Lord Mansfield and Yates J. said, the concluding words of the security bond," and to do and perform such things as shall be required by the said court," mean putting in bail to a new action, pleading within a limited time, putting the plaintiff in the same condition, and such like matters. Before this act, no bail could be taken on a capias utlagatum. Vide 13 Car. 2. stat. 2. c. 2. 8. 4. Rex v. Wilkes, 4 Burr. 2539, 2540.

66

bailable ac

In the case of Campbell v. Daley, the question was, If defendant whether in a case originally requiring special bail if the appears to the defendant stand out to an exigent, he can come in, and exigent in a appear to the exigent, without putting in special bail: it tion, it rewas ruled by the court, that there ought to be special quires special bail. It would be very unreasonable that the defendant bail. 31 Eliz. should gain an advantage by standing out till process of c. 3. outlawry. He certainly ought not to be in a better condition, than if he had appeared at first. And the filazer was ordered not to issue a supersedeas till bail put. Campbell v. Daley, 3 Burr. 1920. This case is now reported

When bail, though no affidavit.

Appearance before the quintus exactus.

If bailable.

Return.

How put in

right; upon inquiry it was upon the exigent before outlawry. See Tidd. 132, in (n).

If the capias utlagatum recites a special original, specially expressing the cause of action, the sheriff must take bail, though the capias utlagatum is not marked for bail; for process of outlawry is not within 12 Geo. 1. c. 29. for preventing frivolous and vexatious arrests, nor can defendant reverse the outlawry, without giving such bail as the law requires. Cracraft v. Gledow, 3 Burr. 1482. (a)

If the party defendant appears before he is returned outlawed, he does it upon the exigent, (and if no bail is required in that case,) he enters such appearance with the filazer, who thereupon makes out a supersedeas to the sheriff, to stay all further proceedings; pay signing Ss. seal 7d.

If it is bailable, then bail must be put in and perfected, by giving notice two days before exclusive, to the plaintiff's attorney, of the names and places of abode of the bail, and the time of justifying; bespeak the book of the filazer, to go to Westminster, for that purpose, who enters and takes the bail in the usual manner (though you may put in bail first at a judge's chambers, and give notice of justifying after): motion by counsel for that purpose 10s. 6d. filazer if put in at Westminster, 11. Os. 6d. aliter at chambers, 17s. and for the justification 7s. 6d. court fees 9s. rule for the allowance of bail 6s. 6d. As soon as bail is complete, draw up the rule for the allowance, and the filazer makes out the supersedeas, which deliver to the sheriff, who returns the allowance upon the exigent in this manner.

"I have altogether ceased from executing this writ, "having received his majesty's writ of supersedeas for "that purpose.' The answer of, &c. Pay the sheriff for the allowance 2s. 6d. See my Office of Sheriff, 318. edit. 1812.

The filazer, if he goes to Westminster, charges 3s. 6d. for his attendance extra to put in bail, or justify.

If it be upon mesne process (and no bail required) then bail, to reverse upon entering a common appearance with the filazer,

upon the

capias utlaga

tum, and no arrest.

(a) It appeared that an affidavit of the debt had been filed, and all the preceding writs had been marked for bail. See 5 Geo. 2. c. 27. s. 5.