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Os the Arrest upon the Capias Utlagatum, of Bail thereon, and of reversing the Outlawry by Writ of Error afterwards.
vacated upon such assidavits; but the desendant 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 consented to the reversal. Matthews v. Erbo, Carth. 459. Ld. Raym. 349. For, unless the court drives the desendant to his writ of error, in such cases, a person might contract debts, and then go beyond sea, and so be out of the reach of the law; therefore this is said to be a good way to get bail of a foreign merchant.
In debt upon a bond entered into by the wise, dum sola, the husband was abroad and outlawed; and the wise, though she appeared publickly, waived. On motion to set aside the outlawry against the wise, and to restore her the goods taken on a special capias utlagatum, on assidavit that they were her separate 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, (he must resort to a court of equity: but, as she appeared publickly, she has been wrongsully waived; and therefore the rule was made absolute for setting aside the outlawry against the wise, but discharged as to restoring the goods. Biscoe v. Kennedy and his wife, in C. B. 2 Wils. 127.
Desendant was taken on a capias utlagatum on a Sunday, and therefore he moved to be discharged, the taking being contrary to the stat. 29 Car. 2. But, notwithstanding the court held the taking bad, they resused to grant an attachment, and put the desendant to take the remedy given by the statute. O/borne v. Carter, Barnes 319.
Desendant was waived specially on mesne process, as a single woman by the name of Dunjler; and after the exigent, and before the outlawry, she married one Pri/eley ; and, on being taken by a capias utlagatum, after the outlawry, on motion, a rule was obtained to shew cause, why the outlawry should not be reversed, at her hufband's expence, on his entering a common appearance for himself and his wise. But the rule was discharged, the court resusing to interpose in a summary way, as the marriage was after the exigent. White v. Dunster, Barnes 321.
H. was outlawed in two actions, one was 10 /. the other 40 s. and, upon reversing the outlawry, the court took special bail for the first, and an appearance for the other; the
Of the Arrest upon the Capias Utlagatum, of Bail thereon, apd of reversing the Outlawry by Writ of Error afterwards.
recognizance was taken pursuant to the 31 EL c. 3. Sail.
Two persons were outlawed in a joint action against them, and one moved, that, on filing common bail, she might have liberty to reverse 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 summoned and severed, and then the outlawry may be reveised for the benefit of the party appearing only. Symmons v. Bingoeand Cooke, B. R. Sali. 496.
Defendant being arrested on a capias utlagatum, the sheriff took an attorney's engagement, under his hand, to appear for the desendant and reverse the outlawry, without taking security, by bond, in double the sum for which bail was required, pursuant to the act of 4 & 5 W. y M. c. 18. On shewing cause, why an attachment should not issue against the stieriff for discharging the desendant out of his custody, it was urged, that he neither did nor could know, that it was a case requiring bail, as the capias utlagatum was not marked for bail; and that 12 Geo. 1. c. 29. required an affidavit; and that the sum, for which bail is to be taken, is to be marked on the process, &c. For the plaintiff, it was urged, that process of outlawry is not within the stat. 12 Geo. 1. that this was by special original; and the cause of action was expressed in the original process, in which it appears he was entitled to bail The court were clear, that
this was not a case within the nGeo. 1. and thought the sheriff had acted improperly; but, as there was an affidavit of the undersheriff, that he had acted to the best of his understanding, without any ill intention, they enlarged the rule in order to give the sheriff an opportunity to put in bail. After which the sheriff undertook to pay the debt and costs.. Cracraft v. Gledewe, Burr. 4 pt. 1482.
Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reversing the Outlawry by Writ of Error.
AN action on the case lies for the escape of a prisoner outlawed. Stra. 901. i.e. A qui tam action on the case, if outlawed on mesne process, the plaintiff having an interest and a damage, and the king an interest for the forfeiture.
But if outlawed, after judgment, it seems debt lies for the escape at the suit of the plaintiff only. Vide Cro. El. 706.
Upon the reversal of outlawry, the party is restored to all he has lost.
If the goods of a person outlawed are sold by the sheriff, upon a capias utlagatum; and, after the outlawry is reversed, he shall be restored to the goods themselves; because, the sheriff was not compellable to sell those goods, but only to keep them to the use of the king. 5 Co. 90. Hoe's case. Soil. Ab. 778. S. C. cited. Cro. El. 278. S. P. adjudged. And vide 2 Jon. iot. 2 Show. 58. pi. 52. 3 Keb. 871. There shall be a restitution of profits actually paid into the Exchequer.
At common law, goods and chattels only were liable in personal actions; and as process of outlawry, in personal actions, was given by statute, goods and chattels only jstill remain liable, because they were only chargeable in personal actions, 1. e. They are forseited to the king, and he shaJl have the pernancy of the chattels real ; but this' is by consequence 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 case, is not often heard of now, as the party generally comes in and reverses it by motion, and satisfies the debt and costs, or justifies bail to appear to a new original; or, if special bail is not required, enters a common appearance; in which case the outlawry is reversed of course before a judge, or in court, by consession of some tristing error in the proceedings; as, the omission of any letter, irregularity in any of the process, want of proper addition, want of proclamation, want of filing the writ of proclamation, or, in short, any tristing matter whatever ; which, in such cases, is usually consessed by the plaintiff. For, as the intent of proceeding to outlawry is answered, either by the payment of the debt and costs, or by having good bail put in to
Of the Arrest upon the Capias Utlagatum, os Bail thereon, and of reversing the Outlawry by Writ of Error.
stand the event of the action, any objection to the reversal of the outlawry would be idle and nugatory.
In order to reverse an outlawry, without an actual writ tf error, the desendant'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 secondary or protbonotary, and then shewn 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 said reversal.—On sight of which order or certificate, the clerk of the outlawries marks the outlawry book, discharged; and then the reversal is drawn up in paper, and entered upon the roll, and the desendant is thereupon restored in Jiatu quo prius.
This is the usual way where a person is outlawed, and neither his body, goods, or lands, seized upon the capias utlagatum. But if his body, goods, or lands be seized, then his attorney must go to the clerk of the errors; and on putting in special bail, if requisite, he will make out a supersedeas to discharge the person or his effects, if taken, or if not taken, then for the sheriffto forbear. But isa man be outlawed after judgment, a reversal in the manner before mentioned will not be allowed; for an outlawry after judgment cannot be reversed till the plaintiff hath acknowledged satissaction on record, or the desendant hath paid the money into court.
When a desendant to reverse an outlawry is obliged to sue out an actual writ of error, he must apply to the proper cursitor for the writ; who, on a pracipe 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 justices assigned to hold pleas before ourself, greeting. Because in the record and proceeding, and also in the pronouncing the outlawry against C. D. l^te of London, merchant, in a plea of trespass on the cafe, whereon he is outlawed in London, pronounced before us returned, as it is said, a manisest error hath happened to the great damage of him tne said C. as by his complaint we have understood.. We being willing the error, if any hath been, should he Vol. II. F duly
Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reversing the Outlawry by Writ of Error.
duly corrected, and sull and speedy justice done to the said C. in this behalf, command you, that if the outlawry aforesaid is returned before us, as it is said, then, the record and proceedings aforesaid being inspected, you surther cause to be done therein, for the error and vacating of the outlawry aforesaid, .what cf right, and according to the law and custom of England, shall be meet to be done.
Witness ourself at Westminster, this . day of in the twentieth year of our reign.
When the writ of error is duly made out and sealed, the desendant must get it allowed by the court, on which allowance the allocatur is subscribed.
If the error is in the exigent or return, or allocatur, or jn the writ of proclamation or return thereto, [having first put in bail according to the statute] or in any of the proceedings, he gets a copy thereof, and spreads the whole record, and assigns the errors in this manner:
Afterwards, to wit, On . next, after
this same term, before the lord the king, at West
minjler, comes the said C. D. by his attorney,
and immediately says, that in the pronouncing of the outlawry aforesaid, there is manisest error in this, , • to wit, that the return of the said writ of exigi fa
cias, and also the said writ of allocatur, are insufficient, invalid, and void in law; therefore, in that, there is manisest error: There is error also in this, that no judg-ment of outlawry, upon the writ of allocatur aforesaid, is returned; therefore in this there is manisest error [and so, on assigning the error or errors, as they happen to be]. And the said C. D. prays the writ of our lord the king, to warn the said A. B. to be before our lord the king, to hear the record and proceedings aforesaid. And it is granted to him, C5V.
If the plaintiff does not appear and consess the errors, the desendant must sue out a J'ci~e facias ad audiendum errores,