Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error afterwards. vacated upon fuch affidavits; but the defendant may bring a writ of error, which he was compelled to, and thereupon to put in bail to the action in which he was outlawed; and then the plaintiff confented to the reverfal. Matthews v. Erbo, Carth. 459. Ld. Raym. 349. For, unless the court drives the defendant to his writ of error, in fuch cases, a perfon might contract debts, and then go beyond fea, and fo be out of the reach of the law; therefore this is faid to be a good way to get bail of a foreign merchant. In debt upon a bond entered into by the wife, dum fola, the husband was abroad and outlawed; and the wife, though The appeared publickly, waived. On motion to fet afide the outlawry against the wife, and to reftore her the goods taken on a special capias utlagatum, on affidavit that they were her feparate goods, the court held, that the goods must be taken to be her husband's goods in point of law; and that, if she had any equitable right to them, fhe must resort to a court of equity: but, as fhe appeared publickly, the has been wrongfully waived; and therefore the rule was made abfolute for setting afide the outlawry against the wife, but difcharged as to restoring the goods. Bifcoe v. Kennedy and his wife, in C. B. 2 Wilf. 127. Defendant was taken on a capias utlagatum on a Sunday, and therefore he moved to be difcharged, the taking being contrary to the ftat. 29 Car. 2. But, notwithstanding the court held the taking bad, they refused to grant an attachment, and put the defendant to take the remedy given by the ftatute. Ofborne v. Carter, Barnes 319. Defendant was waived fpecially on mefne process, as a fingle woman by the name of Dunfter; and after the exigent, and before the outlawry, fhe married one Prifeley; and, on being taken by a capias utlagatum, after the outlawry, on motion, a rule was obtained to fhew caufe, why the outlawry fhould not be reversed, at her husband's expence, on his entering a common appearance for himfelf and his wife. But the rule was difcharged, the court refufing to interpofe in a fummary way, as the marriage was after the exigent. White v. Dunfter, Barnes 321. H. was outlawed in two actions, one was 10 l. the other 40 s. and, upon reverfing the outlawry, the court took special bail for the first, and an appearance for the other; the recogni Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error afterwards. recognizance was taken pursuant to the 31 El. c. 3. Salk. 496. Two perfons were outlawed in a joint action against them, and one moved,, that, on filing common bail, she might have liberty to reverfe the outlawry. Sed per cur. The writ of error, to reverse the outlawry, must be brought in the name of both the parties that are outlawed; and, if one only appears, the other may be fummoned and fevered, and then the outlawry may be reversed for the benefit of the party appearing only. Symmons v. Bingoe and Cooke, B. R. Salk. 496. On Defendant being arrefted on a capias utlagatum, the fheriff took an attorney's engagement, under his hand, to appear for the defendant and reverfe the outlawry, without taking fecurity, by bond, in double the fum for which bail was required, purfuant to the act of 4 & 5 W. & M. c. 18. hewing caufe, why an attachment fhould not iffue against the theriff for discharging the defendant out of his cuftody, it was urged, that he neither did nor could know, that it was a cafe requiring bail, as the capias utlagatum was not marked for bail, and that 12 Geo. 1. c. 29. required an affidavit; and that the fum, for which bail is to be taken, is to be marked on the procefs, &c. For the plaintiff, it was urged, that procefs of outlawry is not within the ftat. 12 Geo. 1. that this was by fpecial original; and the cause of action was expreffed in the original process, in which it appears he was entitled to bail.- -The court were clear, that this was not a cafe within the 12 Geo. 1. and thought the fheriff had acted improperly; but, as there was an affidavit of the underfheriff, that he had acted to the best of his understanding, without any ill intention, they enlarged the rule in order to give the fheriff an opportunity to put in bail. After which the sheriff undertook to pay the debt and cofts.. Cracraft v. Gledowe, Burr. 4 pt. 1482. Of Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error. A N action on the cafe lies for the efcape of a prisoner outlawed. Stra. 901. i. e. A qui tam action on the cafe, if outlawed on mefne procefs, the plaintiff having an intereft and a damage, and the king an intereft for the forfeiture. But if outlawed, after judgment, it feems debt lies for the escape at the fuit of the plaintiff only. Vide Cro. El. 706. Upon the reversal of outlawry, the party is restored to all he has loft. If the goods of a perfon outlawed are fold by the sheriff, upon a capias utlagatum; and, after the outlawry is reverfed, he fhall be restored to the goods themselves; because, the fheriff was not compellable to fell thofe goods, but only to keep them to the use of the king. 5 Co. 90. Hoe's cafe. Roll. Ab. 778. S. C. cited. Cro. El. 278. S. P. adjudged. And vide 2 Jon. 101. 2 Show. 58. pl. 52. 3 Keb. 871. There fhall be a reftitution of profits actually paid into the Exchequer. At common law, goods and chattels only were liable in perfonal actions; and as process of outlawry, in perfonal actions, was given by ftatute, goods and chattels only fill remain liable, because they were only chargeable in perfonal actions, i. e. They are forfeited to the king, and he fhail have the pernancy of the chattels real ; but this is by confequence only-the party, being extra legem, is thereby become incapable to take the profits himself. A writ of error to reverse an outlawry in any civil cafe, is not often heard of now, as the party generally comes in and reverses it by motion, and fatisfies the debt and cofts, or juftifies bail to appear to a new original; or, if fpecial bail is not required, enters a common appearance; in which cafe the outlawry is reverfed of course before a judge, or in court, by confeffion of fome trifling error in the proceedings; as, the omiffion of any letter, irregularity in any of the procefs, want of proper addition, want of proclamation, want of filing the writ of proclamation, or, in fhort, any trifling matter whatever; which, in fuch cases, is ufually confeffed by the plaintiff. For, as the intent of proceeding to outlawry is anfwered, either by the payment of the debt and cofts, or by having good bail put in to ftand Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error. ftand the event of the action, any objection to the reverfal of the outlawry would be idle and nugatory. In order to reverfe an outlawry, without an actual writ of error, the defendant's attorney (having entered an appearance) gets a copy of an exigent, on which is usually marked the error, which being pointed out to the fecondary or prothonotary, and then fhewn to one of the judges, if in court, or to a judge at chambers, a certificate is made thereof, if in court, or an order, if before a judge, to the clerk of the outlawries of the faid reverfal.-On fight of which order or certificate, the clerk of the outlawries marks the outlawry book, difcharged; and then the reverfal is drawn up in paper, and entered upon the roll, and the defendant is thereupon reftored in ftatu quo prius. his This is the ufual way where a perfon is outlawed, and neither his body, goods, or lands, feized upon the capias utlagatum. But if his body, goods, or lands be seized, then attorney must go to the clerk of the errors; and on putting in fpecial bail, if requifite, he will make out a fuperfedeas to difcharge the perfon or his effects, if taken, or if not taken, then for the fheriff to forbear. But if a man be outlawed after judgment, a reverfal in the manner before mentioned will not be allowed; for an outlawry after judgment cannot be reverfed till the plaintiff hath acknowledged fatisfaction on record, or the defendant hath paid the money into court. When a defendant to reverfe an outlawry is obliged to sue out an actual writ of error, he must apply to the proper curfitor for the writ; who, on a præcipe given him, will make out the writ, which is to this effect: England, to wit, George the third, by the grace of God, &c. To our juftices affigned to hold pleas before ourSelf, greeting. Because in the record and procecding, and alfo in the pronouncing the outlawry against C. D. late of London, merchant, in a plea of trefpafs on' the cafe, whereon he is outlawed in London, pronounced before us returned, as it is faid, a manifest error hath happened to the great damage of him the faid C. as by his complaint we have understood., We being willing the error, if any hath been, fhould be VOL. II. F duly Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error. duly corrected, and full and speedy justice done to the faid C. in this behalf, command you, that if the outlawry aforefaid is returned before us, as it is faid, then, the record and proceedings aforefaid being infpected, you further caufe to be done therein, for the error and vacating of the outlawry aforefaid, what of right, and according to the law and cuftom of England, fhall be meet to be done. Witness ourfelf at Westminster, this in the twentieth year of our reign. day of When the writ of error is duly made out and fealed, the defendant must get it allowed by the court, on which allowance the allocatur is fubfcribed. If the error is in the exigent or return, or allocatur, or in the writ of proclamation or return thereto, [having first put in bail according to the ftatute] or in any of the proceedings, he gets a copy thereof, and fpreads the whole record, and affigns the errors in this manner: Afterwards, to wit, On -next, after -in this fame term, before the lord the king, at West- If the plaintiff does not appear and confefs the errors, the defendant muft fue out a feire facias ad audiendum errores, &c. |