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Of appearing to the Exigent, and of reversing the Out/awry by Motion on coming in gratis.
notwithstanding the plaintiff's death after the outlawry: Before an actual assignment by commissioners of bankruptcy, the crown is not bound, though there is a great difference between an extent in aid pro rege, and an outlawry for a private person's debt. Here is no foundation to tie up the plaintiff's hands; the plaintiff [meaning the reprefentative of the original plaintiff] may proceed if so advised. French V. Man by. Barnes 323.
It was the practice in the Common Pleas, before the flat. 4 y 5 IV. W M. c. 18. to allow a desendant, upon appearance by attorney, to reverse the outlawry, aud nnt to require an appearance in person. But in the King's Bench, no one in any cafe, civil or criminal, could reverse an outlawry, without an appearance in person, till that statute, unlefs where, exspeciali gratia upon a reafon assigned to the court, they indulged him to appear by attorney, as in sicknefs, £sff. Cro. Jac. 4.62. but then the entry was, that he came in person; *' £>vod venit in propria persona," the law being clear, that upon an outlawry he ought to appear in person. Vide Cartb. 7. SAin. 16. Salk. 496. But to remedy the inconvenience and expence attending an appearance in person, that statute enacts, " That no person who is or shall be "outlawed in the said court, for any cause, matter, or "thing whatsoever, [treason and selony only exceptedj "shall be compelled to come in person into, or appear in "person in the said court to reverse such outlawry, but "shall or may appear by attorney and reverse the same "without bail, in any cafes, except where special bail f* fcall be ordered by the said court."
Of appearing to the Exigent gratis, and of reversing the Outlawry by Writ of Error.
TH E courts, instead of driving the party to his writ of error to reverse an outlawry had against him, will mostly, as appears from the foregoing cases, relieve him on motion, where the proceedings have been irregular; but in doing this the courts always require, that the desendant jay the plaintiff his costs up to the exigent, unlefs where the plaintiff has proceeded intentionally irregular, <7»^with a view to opprefs. But where the desendant is driven to his writ of error to reverse the outlawry, either upon coming in upon the exigent, &c. gratis, or brought in upon the capias vtlagatum, he must, in all cafes, p3y the plaintiff his costs to the outlawry; and, where special bail is required, he must put in bail, either before error can be brought to reverse the outlawry, or else upon the reversal.
By the 31 El. c. 3. s. 3. it is enacted, " That before "any allowance of any writ of error, or reversing any outlawry be had, by plea or otherwise, through or by want "of any proclamation to be had or made, according to the ** form of this statute, the desendant and desendants in the "original action shall put in bail, not only to appear and lc answer to the plaintiff in the former suit, in a new ac"tion to be commenced by the plaintiff for the cause men"tioned in the first action, but also to satisfy the condem"nation, if the plaintiff shall begin his suit before the end "of two terms, next after the allowing the writ of error, or "otherwise avoiding of the said outlawry."
This statute requires bail to be put in before the allowance of error, only where the error is for want of proclamations.
But for any other cause than for want of proclamations, it is sufficient if bail is put in before the reversal of the outlawry, by the writ of error, if the original cause of action required bail.
As where error was brought to reverse an outlawry in Chester; to which the desendant in error pleaded, that no bail was put in before the allowance of the writ of error, according to the 31 El. c. 3. Per cur. This is no plea, for it is well enough, if bail be put in at any time before the reversal. The error was the want of pro comitatu. Wilbiaham v. Doyley, Ld. Raym. 605.
So where, pending error to reverse an outlawry on mefni procefs, the desendant in error moved to quash the writ,
Of appearing to the Exigent gratis, and of reversing the Outlawry by Writ of Error.
because no bail was given. Sed per cur. That is never done till the outlawry is reversed; and then we take bail to appear to an original, to be brought within two terms. Duckett v. Martin, Stra. 951.
If a party comes in gratis, upon the return of the exigent, he may be admitted by motion to reverse the outlawry, for any other cause than want of proclamations, without putting in bail. If he comes in by cepi corpus on the capias utlagatum, then he shall not be admitted to reverse it without appearing in person, as in such cafe he was obliged to do at common law; or putting in bail with the sheriff for his appearance upon the return of the cepi corpus, and for doing what the court shall order. Appearing by attorney is an indulgence by 4 y 5 IV. & M. and the bail is to be special or common in this as in other cases. Salk. 496. But vide the case of Campbell v. Daley, Burr. 4 pt. 1920. Where it was held, that a desendant, coming in after outlawry, must put in special bail, before supersedeas or reverfal of outlawry; if the original cause of action required special bail: which determination seems to have been founded on the case of Serecold v. Hampson, bart, Stra. 1178. 1 Wils. 3. which was as follows-:
• The desendant was outlawed in a personal action, without any affidavit of the plaintiff's demand: and having brought error, he assigned his being beyond sea at the time of the outlawry; for which the court made no difficulty to reverse it: but the question was, upon what terms they should do it, the plaintiff insisting on special bail, and having now made a proper affidavit; and the desendant insisting to
file common bail only. The court, upon considering of
the 4^ 5 IV. &M. c. 18./ 3. which impowers the outlaw to appear by attorney, [as he did here] and says, it shall be reversed without bail in all cases but " where special bail ftall be ordered by the court," declared, they were of opinion, they had a discretionary power to require it or not; and that the want of an assidavit before was no objection; because that is only requisite to warrant an arrest: and here was one in time for the new action that must be brought. And though the 31 Eliz. c. 3. s 3. is the only act that requires bail, it is not to be interred from thence, that in other cases it ought not to be insisted on, for that act makes a new error, and the bail upon it is absolutely to pay the condemnation money.
Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reversing the Outlawry by Writ of Error afterwards.
IF a desendant was arrested upon the capias utlagatum, the sheriff could not admit him to bail, as an outlawed person is excepted out of both the statutes of 23 Hen. 6. c. 9. and 13 Car. 2. Jiat. 2. c. 2. (unless by supersedeas first had and received for discharging him.)
But by the 4 W 5 IV. fcf M. c. 18. s. 4. it is enacted, "That if any person, outlawed in the * said court (other "than for treason and felony) shall be taken and arrested upon "any capias utlagaium out of the said court, it shall and may "be lawsul for the sheriff who hath or shall arrest such "person (in all cases where special bail is not required by '• the said court) to take an attorney's engagcmenr, under "his hand, to appear for the said desendant, and to reverse '• the said outlawry; and thereupon to discharge the said "desendant from such arrest: and in those cases, where *.' special bail is required by the said court, the said sheriff "shall and may take security of the said desendant by bond, "with one or more sufficient sureties, in the penalty of '' double the sum for which special bail is required, and no "more, for his appearance by attorney, in the said court, "at the return. of the said writ; and to do and perform "such things as shall be required by the said court; and, "after such bond taken, to discharge the said desendant "from the said arrest."
And by sect. 5. it is surther enacted, " That if any per"son outlawed as aforesaid, and taken and arrested upon a "capias utlagatum, shall not be able, within the return of "the said writ, to give security as aforesaid, in cases where "special bail is required, so as he be committed to gaol for "desault thereof, that whensoever the said prisoner shall "find sufficient security to the sheriff, in whose custody he "shall be, for his appearance by attorney in the said court,
* "The said court," means the court cf King's Bench; the statute being made to prevent malicious informations in the court of King's Bench, and for the more easy reversal of outlawries in the fame court. But notwithstanding, all persons arrested upon the capias utlagatum out of the Ccmmcit Picas, after outlawry there have always been bailable since the making thereof, and before might have been discharged by a supersedeas to the capias uilagatum. Fide,ka. 4. in 13 Car. 2. c. 2.
Of the Arrest upost the Capias Utlagatum, of Bail thereon, and of reversing the Outlawry by Writ of Error afterwards.
"at some return in the term then next following, to reverse "the said outlawry, and to do and perform such other "thing and things as shall be required by the said court; "it (hall and may be lawsul for the said sheriff, after such "security taken, to discharge and set at liberty the said "prisoner for the same."
It is the allowed practice of the court of Common Pleas to suffer a desendant coming in by capias utlagatum, the same term on which an exigent is returnable, to avoid the outlawry without writ of error, by shewing, that he purchased a supersedeas out of the same court, and delivered it to the sheriff before the quinto exaclus, bfc. or by shewing any other matter apparent on the record, which makes it erroneous, as the want of original, or the omission of process, or want of form in a writ of proclamation, ££f. or a return by a person not appearing to be sheriff, or a variance between the original and exigent, or other process, or the want of such addition, &c. as is required by the i Hen. 5.—Yet, it is said, in many books, to be the constant course of the court of King's Bincb, never to reverse an outlawry on the crown fide, either in the same or a different term, for these or other errors of a like nature, without a writ of error. 2 Hawk. P. C. 458. and several authorities there cited.
But, in civil eases, the King's Bench, as well as the Common Pleas, at this day, will generally reverse outlawry on motion, as is seen in the foregoing pages, without driving the party to his writ of erfor, whether he comes in in the same term or another, or upon the exigent or capias utlagatum. But, in relieving by motion, the court always have regard to the plaintiff's cause of action, and the situation he is in towards the recovery of his debt.
A. who was a foreign merchant, and never in England, was outlawed at the suit of B. in an action on several promises for goods fold and delivered; and, on a special capias utlagatum, a (hip, and other effects belonging to A. Were seized, as forsetttd upon this outlawry; and it was moved, that this outiawry may be vacated, and restitution awardid, upon affidavits produced and ri-ad, that the desendant was never infra tegem, i. e. that he never was in England, and therefore could not be outlawed; because that was putting him extra legem. Sed per cur. This outlawry shall not be