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On mesne Process.
The writ of pluries capias, when sealed and returned, is the warrant for the exigenter to make out the exigi facias a.nd Vji it cf proclamation thereon.
Every a:t irney shall file his warrant of attorney of the term wherein any exigent is awarded, upon pain of forty shillings for every time he offends, and is attainted by due examination of the juftices of this court; such warrant to be filed upon or before the essoign-day of every Trinity term, and within twenty-one days after the end of every other term. Hil. 14, 15 Car. 2. C. B~
No exigenter snail receive any pluries capias, in order to make an exigent or proclamation thereon, before the same be signed or stamped by the clerk of the warrants, or his deputy, to the end it may appear, that the warrant of attorney is duly filed. Hil. 2, 3 sac. 2.
Plaintiff?, who intend to proceed to outlawry, generally lav their action in London, because desendants are f> oner outlawed in London than in any other place, as the county days there are more frequent.
The writ of exigent therefore must go to the sheriff of the county in which the action is laid ; as suppose London. But if the desendant lives in any other county, the writ of proclamation mult go there, (whether a coanty palatine, or other franchise in Englandor IFales) according to the 31 Eiiz. c. 3. for avoiding secret outlawries ag»inst persons having known places of dwelling.
The exigent should bear tejle the quarto die post of the pluries. The writ of proclamation, by the same statute, must bear the suv.e tejle and return as the exigent.
If the exigent goes into London, as is usual in outlawries, for eipedition, carry it to one of the compters, where clerks attend for the purpose, who require the desendant, upon five fever. 1 bujling-diiys; and, if he doe* not appear upon the quinto cxcfdus, he is ieturned outl^vve.!.
Upon receiving the writ of p'cclamation, the sheriff must, according to the statute of Elizabeth, make three proclamations, one in his cwuuty-court, one at the general quarter-sessions, and the othe/ at least one month before the quinto exaElus at thi church door of the parish where the desendant lives; or, it' he lives out of a parish, then at the chuich-door cf the next parish, upon a Sunday, after divine service; efter : which proclamations, if the desendant does not appear before the .jui.'iti exaclus, he is pronounced outlawed by the
On mesne Process.
coroner. Then the sheriffs return the writs—the return to the exigent specifies the five county courts when he was exacted; and the judgment of outlawry—and the return to the writ of proclamation particularizes when and where he was duly proclaimed.
If it happens that there should not he five county-days between the tejle and return of the exigent, you may, upon application to the exigenter, get an allocatur to bring in the days.
All outlawries pronounced, and and no proclamation awarded and returned, according to the statute are void. Stat. 31 EL c. 3.
The sheriff, for making the proclamation at the churchdoor, shall have 12 d. Same stat.
No officer, in whose office the exigent shall be taken, shall take more, for making out the writ of proclamation, than 6 d. Stat. 6 Hen. 8. c. 4.
Of appearing upon the exigent, ore. Vide pojl.
When the exigent and proclamation are returned, the proclamation must be filed with the exigenter, and the exigent taken to the clerk of the outlawries, if in C. B, [in B. R. the filazer executes this office also] who thereupon makes out a capias utlagatum, of which there are two forts, either the general or special capias utlagatum, the one against the desendant's body, the other against his body, goods and lands, into as many counties as the plaintiff chuses either in England or Wales.
No sheriff, undersheriff, their deputies, or bailiffs, shall set at liberty any person arrested upon any capias utlagatum, until he receive a superssedeas according to law from the proper officer appointed. 13 Car. 2. jl. 2. c. 2. / 4.
No sheriff, undersheriff, tsfc, shall set at liberty any person upon any writ of capias utlagatum, nor discharge the lands or goods of any person outlawed, without a lawsul fuperssedeas, under the seal of the court.—Hil. 15. 16 Car. 2. Jiut vide the statute 4 ££? 5 IV. & M. c. 18. post- which empowers him to admit to bail, or take an attorney's engagement in writing to appear for him.
If upon the special capias utlagatum any goods are taken, and the desendant is not likely to put in bail to the action, or does not move to supersede or reverse the outlawry, you may get a satissaction out of his goods; but if the same do not amount to something considerable, so as to pay all the charges of petitioning, &c. and put the plaintiff something in
On mesne Process.
pocket towards his demand, it will not be worth while to proceed.
If the plaintiff, in such cafe, thinks it worth his while to proceed, he must get the sheriff to extend and appraise the goods by an inquest, which the sheriff Will summon if requested, the plaintiff paying the charges thereof, amounting to about two or three guineas; and if it is necessary, the plaintiff may take out a subpœna for witnesses to attend and give evidence upon the inquisition.
The inquisition being taken, get the capias utlagatum returned with the inquifition annexed, which must be carried, if in B. R. to the filazer who acts as clerk of the outlawries, and if in C. B. to the clerk of the outlawries, who will transcribe the inquisition and transmit ic into the Court of Exchequer. Which being done, apply to a clerk in the Remembrancer's office for a vtnditioni exponas, by virtue of which the sheriff will sell the goods, and if the money raised thereby exceeds not 20 /. the court of Exchequer, on motion, will order it to be paid to the plaintiff; but if it exceeds that sum, the plaintiff must petition the lords of the treafury for it, who reser it to their solicitor, to examine into the merits of the plaintiff's demand.
To the Right Honourable the Lords Commissioners of his Majesty's Treasury.
The humble Petition of A.B.
THAT C.D. late of being ihdebted to your petitioner in the sum of 100/. your petitioner did, at his very great charge in November last, prosecute the said C. D. to an outlawry; and by virtue of a special capias utlagatum, directed to the sheriff of Middlesex, several goods of the said C. D. were seized, and found by inquisition to be of the value of 86 /. 4 s. which goods were afterwards fold by the said flieriff, by virtue of a writ of venditioni exponas, at the same price and value at which- they were s«J appraised; and the money thereupon raised still remains in the hands of the sheriff of Middlesex. Vol. II. E Th«t
On mesne Process.
That your petitioner's said debt, and the charge he has already been at in prosecuting the said C. D. to outlawry, greatly exceeded the sum so remaining in the sheriff's hands.
Wherefore your petitioner humbly prays your lordships, that the money so levied as aforefaid may be paid over to your petitioner.
And your petitioner, as in duty bound, shall ever pray, &c.
Reserence thereon to the solicitor.
Whitehall Treasury-Chambers, Feb. I, 1780.
The right honourable the Lord's Commissioners of his Majesty's Treafury are pleafed to reser this petition to William Chamberlain, efq. who is to consider the same; and report to their lordships a true state of the petitioners case, together with his opinion what is sit to be done therein.
Grey Coos er.
After this reserence, the plaintiff must make an affidavit, before one of the barons of the Exchequer, of his debt and proceedings against the desendant, and the charges he has been put unto, which assidavit, with the attorney's bill, venditioni exponas and return, must all be laid before the solicitor of the Treasury; and if he is satisfied of the truth of the premisses, he makes his report to their .lordships accordingly; and thereupon a warrant goes from the Treasury to the attorney general, to consent that so much of the money as remains in the sheriff's hands, after deducting the poundage, be paid to the plaintiff towards satisfying the debt and costs, on his moving the court of Exchequer for an order for that purpose. On delivering the' warrant to the attorney general, he gives his consent of course; then, on moving the court ot Exthequer, an order is made for the sheriff to pay the money over to the plaintiff, which, on sight thereof, he will accordingly do.
The sees and expences in all amount to about 20 /.
Of superseding the Exigent before Outlawry.
IF the desendant has notice that an exigent is issued out against him, and would avoid the outlawry, he must find out to what sheriff the writ is directed, and get a note of it, particularizing at whose suit, the cause of action, and when the exigent is returnable; from which note, the filazer in Jb. R. or exigenter in C. B. will make out a supersedeas on the desendant's attorney entering an appearance; which supersedea! must be carried to the sheriff for his allowance thereof before the return of the exigent *.
The supersedeas is a writ taking notice of the exigifacias having issued, at whose suit, and for what cause; and orders the sheriff to forbear surther proceedings, as the desendant duly appeared in court before the issuing thereof, and offered to answer the plaintiff, although the sact, perhaps, is the contrary.
If the desendant thus supersedes the exigent before outlawry pronounced, no bail is required, let the debt be ever so large: Wheieas, isa desendant supersedes or reverses an outlawry had against him, he must put in bail, if he was outlawed by especial original requiring bail.
The supersedeas to an exigent must be delivered to the sheriff before the return of the exigent. Barnes 319.
In superseding the exigent, the desendant must pay the plaintiff the costs he has put into his proceedings.
* The sees amount to about 10/.—zs. for entering the appearance,—3/. the superfedeai—duty, 11. 6d. seal, jd. and allowance kv the Iheriss, zs. 4V.