Of appearing to the Exigent, and of reverfing the Outlawry by Motion, on coming in gratis.

Ormerly, if the defendant appeared upon the exigent,

Fthough the debt

though the debt originally required bail, yet the defendant was not obliged to put in bail; but the courts now hold, that if the defendant ftands out to be outlawed, and will then come in, [i. e. voluntarily come in] and the cause of action requires bail, he must put in bail, as appears by Campbell v. Daley. Bur. 4 pt. 1920. The queftion was, whether in a cafe originally requiring fpecial bail, and the defendant ftanding out to an outlawry, he can come in and appear to the outlawry without putting in special bail? Per cur. There ought to be a special bail. It would be unreasonable, that a defendant should gain an advantage, by standing out until procefs of outlawry. He certainly ought not to be in a better cafe then, than if he had appeared at first. And accordingly direction was given," that the filazer fhould not iffue a fuperfedeas till the defendant had put in special bail." And a week was given him for that purpose.

Instead of driving the party to a writ of error, to reverse an outlawry had against him, the court will, at this day, in most cases, relieve upon motion, where the party comes in gratis upon the exigent, if the proceedings have been irregular or unlawful.

A writ of fuperfedeas to an allocatur to the exigent could not be fealed in the morning of the day whereon the allocatur was returnable, it being an holy-day, but was fealed and brought to the fheriff's office in London, about an hour after the defendant was returned outlawed. The proceeding was by special original in an action on the cafe on promises, which required bail. Motion and rule was to thew caufe, why defendant fhould not have leave to appear, and fuperfede the exigent on payment of costs. On Thewing caufe, the court was not willing to ftrip the plaintiff of an advantage which he had fairly and regularly obtained. Before a defendant is returned outlawed, he may fuperfede the exigent, though founded on a special original, and though the debt be ever fo large.. But after he is returned outlawed, he cannot reverfe the outlawry, without bail; who are to be abfolutely bound to pay the money without power to render the principal in their discharge. Ordered, that proceedings on the outlawry be ftayed on

payment

Of appearing to the Exigent, and of reverfing the Outlawry by Motion on coming in gratis.

payment of the plaintiff's debt and cofts within a month; but in default, the rule to be difcharged, and plaintiff at liberty to proceed on the outlawry. Challing v. Fox. Barnes 326.

It appeared that, pending the exigent, defendant was a prifoner in the gaol for the city of York, for which reafon the court ordered the outlawry to be reverfed, without payment of cofts to the plaintiff, upon defendant's entering a common appearance. Barnes 321. Heely v. Hewfon. An outlawry had against a bankrupt was reversed on motion. Anon. B. R.

The outlawry was reverfed and compleated, during the defendant's refidence in Ireland; and, on motion, it was ordered, at his expence, to be reverfed, without bail or appearance. Where the court fee an unlawful proceeding, they will not put the party to the expence of a writ of error, but will avoid circuity, and relieve him in a fummary way. Barnes 325. Reilly v. O'Connor.

Motion to reverfe outlawries on common claufum fregits, at the plaintiff's expence, on affidavits of defendant's publick appearance and dealings, fworn by themfelves only. Per cur. Let the rule be enlarged until next term, that the plaintiff's attorney may, in the mean time, make fatisfaction to the parties. Barnes 320.

Rule to fhew caufe, why outlawry fhould not be reversed at plaintiff's expence. It appeared that two writs had been fued out, and defendant could not be arrested. He lived on the confines of Surry and Kent; and when the Surry bailiff come to arrest him, he jumped over an hedge into Kent, and put the bailiff to defiance. Per cur. Though the defendant is fworn to appear publickly, yet it is plain he kept out of the way to prevent being arrefted. Rule difcharged. But, by confent, the debt and cofts to be paid out of the money in the fheriff's hands; and the overplus paid to the defendant. Holman v. Brafter. Barnes 320.

On motion to reverfe an outlawry, the defendant, and three others, fwore that he was always vifible; but the court refused, and required pofitive affidavit, that he might have been ferved with process.

On motion to fuperfede an outlawry, it was objected by defendant, that he was a publick vifible man; and that the

Of appearing to the Exigent, and of reverfing the Outlawry by Motion on coming in gratis.

return of the proclamation was bad, it importing, that proclamations were made as the fheriff was by the writ commanded, but not where or according to the form of the ftatute. That the defendant was a publick visible man, was denied: and it was fully proved that he abfconded; and his living was under a fequeftration. The court feemed to think, the return of the proclamation was sufficient; but faid, that as to that, the defendant might bring a writ of error. And the rule to fhew caufe, why the outlawry fhould not be reverfed, at the plaintiff's expence, was discharged. Dale v. Robinfon, clerk. Barnes 322.

Rule to fhew caufe, why outlawry fhould not be reversed at the plaintiff's expence. Objected, on the part of the defendant, that he was a publick vifible man, and that the plaintiff had not endeavoured to arreft him. That the capias, alias, and pluries, were all fued out at the fame time. That no affidavit of the debt was indorfed on the writs, (though bailable) pursuant to the ftatute to prevent vexatious arrefts. That no date was on the writs, as required by the ftatute. The affidavits, as to the defendant's vifibility, were fully answered, and his total abfconding proved. And the court held, that in case of a total abfconding, no endeavours to arrest are neceffary. That fuing out the capias, alias, and pluries together, was regular, and warranted by conftant practice. That on process to outlawry, no affidavit for bail is required by the ftatute, or the courfe of the court, nor is a date to fuch process ufual. Rule difcharged without cofts. Farnworth v. Smith. Barnes 322.

Three feveral outlawries had been pronounced above a year, and tranfcribed into the exchequer, one against 4. and B. a fecond against A. and the third against B. all at the plaintiff's profecution. Penvold and Roberts, authorized by power of attorney executed by defendants, applied on their behalf, and obtained a rule to fhew cause why these outlawries fhould not be reverfed at plaintiff's expence, defendants at the time the writs of exigent iffued, and ftill being in parts beyond the feas. On fhewing cause it appeared, that defendants had been abroad three years, and probably never intended to return; and it was urged, that as

they

Of appearing to the Exigent, and of reverfing the Outlawry by Motion on coming in gratis.

they stay abroad longer than their lawful occafion requir ed, fuch ftay must be looked upon with a view to defeat juftice; and confequently, they were duly outlawed. That if not, they ought to bring their writ of error, and should not be relieved by motion. The court thought it difcretionary in them to relieve by motion, or put the parties to a writ of error, according to the circumftances of the cafe. Courts have gone further of late years, than heretofore, on motions, as more effectually to expedite juftice, fave expence, and preferve credit and characters. There is no fufficient foundation for the court to order the plaintiff to reverse these outlawries at his own expence. But as they are not special, but only common claufum fregits, defendants have a right to reverse them at their own expence, on entering common appearances and payment of cofts. Rule made accordingly. Defendants, before the outlawries were tranfcribed into the Exchequer, might have reverfed them, on entering common appearances, and payment of common cofts, as far as the exigent; but now, after they are tranfcribed, cofts must be paid to the time of the reverfal. Barnes 324.

Defendant was outlawed while refident at Jamaica, for a debt contracted in England, and was abroad when the proceedings to outlawry were firft commenced. On fhewing cause on a rule made, why the outlawry fhould not be reverfed at the plaintiff's expence, it appeared, that the defendant was an abfconding perfon; and that the motion, though in his name, was not made by him, but by a third person, and the matter appearing to be a contention between creditors, the court would not exercife a difcretionary power, fo as to relieve the defendant in a fummary way: The plaintiff has had no remedy for his debt: The court will not take from him the legal advantage he has got.The defendant, if he thinks fit, may bring his writ of error. Rule difcharged. Barnes 325.

After the return of the exigent, but whilft it remained in the hands of the fheriff, and before the defendant was returned outlawed, the court made a rule, that a fuperfedeas to the exigent fhould be allowed on payment of cofts. Withall v. White. Barnes 323.

After outlawry pronounced, defendant moved to fet afide the outlawry for want of proclamation. Per car. This is

E 4

not

Of appearing to the Exigent, and of reverfing the Outlawry by Motion on coming in gratis.

not a fit matter to be determined in a fummary way; the defendant may bring his writ of error. Barnes 323.

Note, Outlawries pronounced without proclamations, are void by the 31 El. c. 3.

Motion that plaintiff might reverfe an outlawry at his own expence, the defendant being in parts beyond the feas at the time he was outlawed. Per cur. The defendant may take advantage of this by writ of error; but it is no matter of irregularity. Blunt v. Beale. Barnes 320. Ibid. 319.

The plaintiff having commenced a proceeding to outlawry against defendant, he gave notice to the plaintiff that he had appeared, and obtained a fuperfedeas to the exigent. Plaintiff fearched at the Compter, [as the outlawry was in London] and no fuperfedeas being allowed there, defendant was returned outlawed, who moved to fet afide the outlawry. On fhewing caufe, defendant alledged, that he had entered an appearance with the exigenter; but that appeared to be unneceffary, and a novel impofition by the exigenter. The court held, that the fuperfedeas is in itself an appearance, if delivered to the theriff before the return of the exigent; but that not having been done, the defendant is regularly outlawed; and the rule to fhew cause, why it fhould not be reverfed at the plaintiff's expence, was difcharged. Barnes 319.

In C. B. it was moved, that the plaintiff might reverse an outlawry at his own charge, upon affidavit that the defendant was actually in the Fleet, in execution for the plaintiff in another fuit, and that he knew it; and it was granted, because the plaintiff fhould have brought him to the bar by habeas corpus, and there have charged him with a new declaration. Adlame v. Colebatch. Salk. 495.

A writ of allocatur on the exigent had iffued [after judgment and ca. fa.] returnable the firft return of Michaelmas, whereupon defendant was returned outlawed 16th of July preceding. It appeared, that the plaintiff died 6th of Aug. and that a commiffion of bankrupt iffued against defendant on the 21st of August, preceding the return of the exigent. Defendant obtained a rule to fhew caufe why proceedings. fhould not be ftaid, which rule was difcharged; the court being of opinion, that the writ and return must be filed,

notwith