Page images
PDF
EPUB

On mefne Procefs.

The writ of pluries capias, when fealed and returned, is the warrant for the exigenter to make out the exigi facias and writ of proclamation thereon.

Every attorney fhall file his warrant of attorney of the term wherein any exigent is awarded, upon pain of forty fhillings for every time he offends, and is attainted by due examination of the juftices of this court; fuch warrant to be filed upon or before the effoign-day of every Trinity term, and within twenty-one days after the end of every other Hil. 14, 15 Car. 2. C. B.

term.

No exigenter fhall receive any pluries capias, in order to make an exigent or proclamation thereon, before the same be figned or ftamped 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 Fac. 2.

Plaintiffs, who intend to proceed to outlawry, generally lay their action in London, becaufe defendants are fooner outlawed in London than in any other place, as the county days there are more frequent.

The writ of exigent therefore muft go to the fheriff of the county in which the action is laid; as fuppofe London. But if the defendant lives in any other county, the writ of proclamation must go there, (whether a county palatine, or other franchife in England or Vales) according to the 31 Eliz. 3. for avoiding fecret outlawries against perfons having known places of dwelling.

The exigent fhould bear tele the quarto die poft of the pluries. The writ of proclamation, by the fame ftatute, muft bear the fanie tafle and return as the exigent.

If the exigent goes into London, as is ufual in outlawries, for expedition, carry it to one of the compters, where clerks attend for the purpofe, who require the defendant, upon five feveral busting-days; and, if he does not appear upon the quinto exallus, he is returned outlawed.

Upon receiving the writ of proclamation, the fheriff muft, according to the flatute of Elizabeth, make three proclamations, one in his county-court, one at the general quarter-feffions, and the other at least one month before the quinto exallus at the church door of the parish where the defendant lives; or, if he lives out of a parish, then at the church-door of the next parish, upon a Sunday, after divine fervice; after which proclamations, if the defendant does not appear before the quinto exactus, he is pronounced outlawed by the

coroner.

coroner.

On mefne Process.

Then the fheriffs 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 fhould not be five county-days between the teste 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 ftatute are void. Stat. 31 El. c. 3.

The fheriff, for making the proclamation at the churchdoor, fhall have 12 d. Same ftat.

No officer, in whofe office the exigent fhall be taken, fhall take more, for making out the writ of proclamation, than 6 d. Stat. 6 Hen. 8. c. 4.

Of appearing upon the exigent, &c. Vide poft.

When the exigent and proclamation are returned, the proclamation must be filed with the exigenter, and the exigent taken to the clerk of the qutlawries, if in C. B. [in B. R. the filazer executes this office alfo] who thereupon makes out a capias utlagatum, of which there are two forts, either the general or fpecial capias utlagatum, the one against the defendant's body, the other againft his body, goods and lands, into as many counties as the plaintiff chufes either in England or Wales.

No sheriff, underfheriff, their deputies, or bailiffs, fhall fet at liberty any perfon arrefted upon any capias utlagatum, until he receive a fuperfedeas according to law from the proper officer appointed. 13 Car. 2. ft. 2. c. 2. f. 4.

No fheriff, undertheriff, &c. fhall fet at liberty any perfon upon any writ of capias utlagatum, nor discharge the lands or goods of any perfon outlawed, without a lawful fuperfedeas, under the feal of the court.-Hil. 15. 16 Car. 2. But vide the ftatute 4 & 5 W. & M. c. 18. poft. 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 defendant is not likely to put in bail to the action, or does not move to fuperfede or reverse the outlawry, you may get a fatisfaction out of his goods; but if the fame do not amount to fomething confiderable, fo as to pay all the charof petitioning, &c. and put the plaintiff fomething in

ges

pocket

On mefne Procefs.

pocket towards his demand, it will not be worth while to proceed.

If the plaintiff, in fuch cafe, thinks it worth his while to proceed, he must get the sheriff to extend and appraise the goods by an inqueft, which the fheriff will fummon 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 fubpoena for witnefles to attend and give evidence upon the inquifition.

The inquifition 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 tranfcribe the inquifition and tranfmit it into the Court of Exchequer. Which being done, apply to a clerk in the Remembrancer's office for a venditioni exponas, by virtue of which the fheriff will fell the goods, and if the money raised thereby exceeds not 20 l. the court of Exchequer, on motion, will order it to be paid to the plaintiff; but if it exceeds that fum, the plaintiff muft petition the lords of the treasury for it, who refer it to their folicitor, to examine into the merits of the plaintiff's demand.

To the Right Honourable the Lords Commiffioners of his Majesty's Treafury.

SHEWETH,

The humble PETITION of A. B.

THAT C.D. late of being indebted to your pe titioner in the fum of 100l. your petitioner did, at his very great charge in November laft, profecute the faid C. D. to an outlawry; and by virtue of a Special capias utlagatum, directed to the fheriff of Middlefex, feveral goods of the faid C. D. were feized, and found by inquifition to be of the value of 861. 4s which goods were afterwards fold by the faid fheriff, by virtue of a writ of venditioni exponas, at the fame price and value at which they were fo appraised; and the money thereupon raifed ftill remains in the hands of the sheriff of Middlesex. VOL. II. E

That

On mefne Process.

That your petitioner's faid debt, and the charge he has already been at in profecuting the faid C. D. to outlawry, greatly exceeded the fum so remaining in the fheriff's hands.

Wherefore your petitioner humbly prays your lordfhips, that the money fo levied as aforefaid may be paid over to your petitioner.

And your petitioner, as in duty bound, fhall ever pray, &c.

Reference thereon to the folicitor.

Whitehall Treafury-Chambers, Feb. 1, 1780.

A. B.

The right honourable the Lord's Commiffioners of his Majefty's Treasury are pleased to refer this petition to William Chamberlain, efq. who is to confider the fame; and report to their lordships a true ftate of the petitioners cafe, together with his opinion what is fit to be done therein.

Grey Cooper.

After this reference, the plaintiff must make an affidavit, before one of the barons of the Exchequer, of his debt and proceedings against the defendant, and the charges he has been put unto, which affidavit, with the attorney's bill, venditioni exponas and return, muft all be laid before the folicitor of the Treasury; and if he is satisfied of the truth of the premiffes, he makes his report to their lordfhips accordingly; and thereupon a warrant goes from the Treafury to the attorney general, to confent that fo much of the money as remains in the theriff's hands, after deducting the poundage, be paid to the plaintiff towards fatisfying the debt and cofts, on his moving the court of Exchequer for an order for that purpose. On delivering the warrant to the attorney general, he gives his confent of course; then, on moving the court of Exchequer, an order is made for the fheriff to pay the money over to the plaintiff, which, on fight thereof, he will accordingly do.

The fees and expences in all amount to about 201.

Of

Of fuperfeding the Exigent before Outlawry.

[ocr errors]

F the defendant has notice that an exigent is iffued 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 whofe fuit, the caufe of action, and when the exigent is returnable; from which note, the filazer in B. R. or exigenter in C. B. will make out a fuperfedeas on the defendant's attorney entering an appearance; which fuperfedeas must be carried to the fheriff for his allowance. thereof before the return of the exigent *.

The fuperfedeas is a writ taking notice of the exigi facias having iffued, at whofe fuit, and for what cause; and orders the fheriff to forbear further proceedings, as the defendant duly appeared in court before the iffuing thereof, and offered to anfwer the plaintiff, although the fact, perhaps, is the contrary.

If the defendant thus fuperfedes the exigent before outlawry pronounced, no bail is required, let the debt be ever fo large: Whereas, if a defendant fuperfedes or reverfes an outlawry had against him, he must put in bail, if he was outlawed by a special original requiring bail.

The fuperfedeas to an exigent must be delivered to the fheriff before the return of the exigent. Barnes 319.

In fuperfeding the exigent, the defendant must pay the plaintiff the cofts he has put into his proceedings.

*The fees amount to about 10-2 s. for entering the appearance,-3 s. the fuperfedeas-duty, 1s. 6d. feal, 7 d. and allowance by the fheriff, 25. 4d.

« PreviousContinue »