Of Prisoners removing themselves by Habeas Corpus from the Prifons of inferior Courts into the King's Bench or Fleet Prisons.

Prifoner in the prifon of an inferior court, will often fue out an habeas corpus cum caufâ, in order to turn himself over to the King's Bench or Fleet prifon.

But if it be returned upon any certiorari, or corpus cum caufâ, that the prifoner is condemned by judgment, he shall be remanded, and remain in prifon, without being let to bail against the will of the plaintiffs, unless fatisfaction be made them of the fums adjudged. 2 Hen. 5. ftat. I. c. 2.

A defendant brought into court by habeas corpus, directed to the fheriff of G. prayed to be committed to the Fleet, with the causes mentioned in the return; which were first, a detainer for want of fureties, by a warrant from a juftice of the peace, for leaving a baftard child, whereby a parifh became chargeable with its maintenance. - 2dly, An excommunicato capiendo iffued out of Chancery, returnable in the King's Bench. And 3dly, With Exchequer procefs on a recognizance forfeited at the feffions. The court remanded the prifoner, being of opinion, that as to the two firft caufes of detainer, they had no jurifdiction; but as to the third caufe, the court inclined to think, that as it was not on an extent, the defendant might have been committed therewith abftractedly confidered. Barnes 223.

A defendant was taken in execution in the admiralty court, and wanting to procure his liberty, gets a person to whom he was indebted to fue out an habeas corpus ad refpondendum, in order to be turned over to the Marfbalfea : And being thereby brought into court, it was moved, that he might be committed to the Marshalfea. Sed per eur. Tho' upon an habeas corpus ad fubjiciendum, this court, upon a charge of treafon or felony, would have turned the defendant over to the marshal; or if a bill had been filed against him, fo that he had been in the cuftody of the marshal before; but yet, in this cafe, the court cannot do it, because there is no plea in this court, at this time, depending against him : and it cannot be, because he is not in cuftodia marefcalli. And he was remanded by the whole court. Dowler v. Keite. Ld. Raym. 789. Salk. 351.

So in Dr. Watson's cafe, who being arrefted upon an Excommunicato capiendo, after an excommunication in the Spiritual Court, for nonpayment of costs, in a fuit in which he was condemned, was brought into B. R. by hab. corp.

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Of Prisoners removing themselves by Habeas Corpus from the Prisons of inferior Courts into the King's Bench or Fleet Prisons.

ad refp. 7. S. de placito debiti, &c. And on motion to be committed, he was remanded, becaufe no fuit was depending here against him, the bill of Middlefex not being returnable till next term. Ibid.

If a prifoner in the Compter be removed into the King's Bench, upon an hab. corp. ad refp. and intending to go over into the Fleet, procures fome friend to bring an habeas corpus to remove him; he shall not be removed thither, till he has answered to the cause here; and he shall not compel the plaintiff to follow after a prolling defendant; and fo vice verfa of the Common Pleas. Each court fhall retain the defendant in which he is first attached; and after he has answered there, you may carry him where you will. Salk, 350.

Actions having been entered in B. R. against one in cuftody of a fheriff, upon a ne exeat regno, an habeas corpus was faid might be granted, although ftrongly objected to, because the writ of ne exeat regno commands the sheriff to take fecurity, and tranfmit it into Chancery. Sed per cur. The habeas corpus ought to be granted: The King's Bench may receive and judge of the fecurity taken; and he ought to remain there; and that they may then grant a supersedeas. Nailor's cafe. Ld. Raym, 696.

The defendant was brought to the bar by habeas corpus, returnable in one month from the day of St. Michael, to be committed to the Fleet; and the court committed, though the day of the return was paft. Barnes 221,

From the above cafes it appears, that where a prifoner is in cuftody charged with procefs from another court than that to the prifon of which he would be turned over, he muft (before ever he can be turned over) procure himself to be charged with fome process iffuing out of the court into the prifon of which he would be turned over, and then bring his habeas corpus, that he may be returned charged with fuch procefs.

Where any perfon fhall be brought into court upon an habeas corpus, or before a judge, in order to be committed to the cuftody of the marinal, the writ, with the return, fhall be left with the fecondary, or judge's clerk, to be filed; and a copy or note of fuch return of the writ, under the hand of the judge or fecondary, thall be delivered to the mar

Of Prisoners removing themselves by Habeas Corpus from the Prifons of inferior Courts into the King's Bench or Fleet Prifons.

shal at the time of the commitment of such person to his cuftody; and fuch copy or note fhall be prepared by the perfon profecuting fuch writ of habeas corpus, or by his attorney. Trin. 3 Anne.

Of Outlawry.

On mefne Process.

UTLAWRY is a punishment inflicted on a perfon

Ο for a contempt and contumacy, in refufing to be

amenable to and abide by the justice of that court which hath lawful authority to call him before them; and as this is a crime of the highest nature, being an act of rebellion against that state or community of which he is a member, fo doth it fubject the party to divers forfeitures and difabilities; for hereby he lofeth liberam legem, is out of the king's protection, &c. Co. Lit. 128. Rol. Ab. 802., Dr. and Student, dial. 2. c. 3.

But as to the forfeitures for refufing to appear, herein the law distinguishes between outlawries in capital cafes, and those of an inferior nature; for as to outlawries in treason and felony, the law interprets the party's abfence a fufficient evidence of his guilt, and, without requiring further proof or fatisfaction, accounts him guilty of the fact, on which enfues corruption of blood, and forfeiture of his whole eftate, real and perfonal.

But outlawry in leffer crimes, or in perfonal actions, does not occafion the party to be looked upon as guilty of the fact, nor does it occafion an entire forfeiture of his real eftate; but yet is very fatal and penal in its confequences; for hereby he is reftrained of his liberty if he can be found, forfeits his goods and chattels, and the profits of his lands, while the outlawry remains in force. Plow. 941. 9 H. 6. 20. b.

Having ftated the difference between outlawry in criminal and civil cafes, I fhall proceed to fhew in what civil actions procefs of outlawry lies, in what manner a defendant may be profecuted to outlawry, and how fuch outlawry may be avoided, or reversed.

Procefs of outlawry lies in no cafe, but where a capias lies. So that when the proceedings are by bill, and not by original, as there can be no capios upon a bill, fo there can be no procefs of outlawry. Leon. 329. 2 Rol. Ab. 76. Sid. 159. Keb. 577.

The procefs of outlawry, in civil actions, is confidered, at this day, nothing more than a process to compel an appear ance of the party against whom a fuit is commenced; and therefore any plaufible caufe, however flight, will, in gene

On mefne Process.

ral, be fufficient to reverse it. But in order to make the process to outlawry, and practice therein intelligible, it will be neceflary to take a view of the ftatutes which have altered the procefs of the courts.

The ftatute 13 Car. 2. ftat. 2. c. 2. being made to remedy fome * abufes which crept in upon authorifing the arreft of the defendant's body by the bill of Middlefex, latitat, &c. in B. R, and the general writ of capias claufum fregit in C. B. provides, that no perfon who should happen to be arrefted by force or colour of any writ or process iffuing out of the King's Bench or Common Pleas, fhall be forced upon fuch arreft to give security in more than 40%. unless the true cause of action be particularly expressed in fuch writ or process.

This ftatute not having remedied all the mifchiefs that prevailed, as the fheriff was ftill to take bail for the defendant's appearance in 40%. even upon a general writ, without the claufe of "ac etiam ;" and upon writs wherein the clause of "ac etiam" was inferted, he was authorized to require bail upon the arreft to the amount of double the fum fpecified therein, which was ftill an engine of oppreffion in the hands of a malicious and troublesome plaintiff, as he could exprefs any fum in the claufe of "ac etiam," or lay his damages therein to any amount, and thereby keep the defendant in gaol for want of bail-the ftatute 12 Geo. I. e. 29. was made to give a further remedy for fuch abuses, and provides, that no one shall be held to bail, upon the arreft by process from the fuperior courts, unless an affidavit is previously made, that the cause of action amounts to 10%. or upwards, and that where no fuch affidavit is made, that the party fhall only be ferved with a copy of the process, in order that he may appear to the action; and, in case of his non-appearance at the return, the plaintiff has liberty to enter (on affidavit made of due fervice of the process) an appearance for him, and proceed as if the party had actually appeared. Then came the ftatute 5 Geo. 2. c. 27. to remedy the inconveniences from the procefs being in Latin, and requires the fame to be in the English tongue; and where the party is only to be ferved with a copy thereof when no affidavit is made of the debt's amounting to 10. or upwards, enacts, that an English notice, in writing, fhall

* Fide the introduction.

be