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Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reverfing the Outlawry by Writ of Error.

&c. and upon two nihils returned, the court will reverse the outlawry of courfe: But if the plaintiff comes in voluntarily, or upon a fcire feci, and does not confefs the errors affigned, but joins in error, the defendant must make up error books, and proceed to argument and judgment, as in other cafes of error; of which vide poft. title Error.

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Of declaring after the Outlawry reverfed or

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fuperfeded.

PON the reverfal or fuperfeding of the outlawry, if the defendant does not pay the plaintiff his debt and cofts, the plaintiff muft proceed to declare, the defendant having, upon reverfing or fuperfeding the outlawry, put in Special or common bail, as the cafe required, to appear to a new original.

Upon appearing and fuperfeding the exigent, the plaintiff muft declare within fix or eight days after, otherwise the defendant may give him a rule to declare; and if no declaration comes in within the limited time, the defendant may non-fuit the plaintiff, and have his cofts taxed. Compl. Soll. C. B. 84.

So if the defendant appear by fuperfedeas, and will not take a declaration, the plaintiff may have judgment against him, by nil dicit. Ibid.

But where a defendant outlawed, caufes the fame outlawry to be reverfed, the plaintiff has till the end of the fecond term after reverfing the fame, and notice thereof given, to declare in. But if he does not proceed within two terms next, after notice of reverfing the outlawry, the defendant fhall have his cofts to be taxed. Reg. Tr. 33 Car. 2. C. B.

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The declaration, after reverfal or fuperfeding of the outlawry, has no need to be laid in the fame county in which the former original was made. So held on demurrer. Lev. 245. Whitwick v. Hovenden. Where the original and outlawry were in London, and on the reverfal of the outlawry, the plaintiff declared in Suffex, on which it was infifted, that the original being laid in London, the plaintiff could not declare in the action in another county, though the cause of action was tranfitory. But the prothonotaries certifying, that the courfe of the court was, that although the original be laid in London, for expediting the outlawry, yet when the defendant comes in, the plaintiff may declare againft him in any other county, be the action local or tranfitory. And the ftat. 21 fac. 1. c. 16. f. 4. giving the plaintiff generally a power to commence a new action or iuit within a year after the outlawry reverfed, the plaintiff may do it in this cafe, to warrant his declaration delivered, within the courfe of the court. And the plaintiff had judg

ment.

By the 21 Jac. 1. c. 16. f. 4. it is enacted, "That if in any action brought by original, the defendant be outlawed,

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Of declaring after the Outlawry reversed or fuperfeded.

lawed, and fhall after reverfe the outlawry; that then the plaintiff, his heirs, executors, or adminiftrators, as the cafe fhall require, may commence a new action or fuit from time to time, within a year after fuch judgment of outlawry reverfed, and not after."

And by the 31 Eli. c. 3. f. 3. it is enacted, "That before the allowance of any writ of error, or reverfing of any outlawry, be had by plea or otherwife, through or by want of any proclamation to be had or made according to the form of the faid ftatute, the defendant in the original fhall put in bail, not only to appear and anfwer to the plaintiff in the former fuit, in a new action to be commenced by the faid plaintiff for the cause mentioned in the first action, but alfo to fatisfy the condemnation, if the plaintiff fhall begin his fuit before the end of two terms next after the allowing the writ of error, or otherwife avoiding of the faid outlawry."

Though this latter ftatute relates only to the reverfing the outlawry through want of proclamation, and discharges the bail in fuch cafe given, if the plaintiff does not proceed within two terms after the reverfal-yet the recognizance of bail, upon the reverfal of outlawry for other causes than for want of proclamations, has moftly been taken fince the making thereof according to this ftatute. Therefore, if the plaintiff does not declare after the reverfal of the outlawry within two terms, the bail are difcharged. But though they are difcharged from their recognizance, the plaintiff is not barred of his action, provided he commences the fame within a year after the reverfal of the outlawry, according to the 21 Jac. 1. c. 16. fupra.

Bail upon the reverfal of outlawry, cannot render their principal in discharge of themselves; for they are abfolutely bound to pay the condemnation money.

Defendant was outlawed on a special original, and upon reversing the outlawry put in bail with condition as usual, to appear to a new original, to be filed within two terms. Plaintiff proceeded to judgment, and defendant brought a writ of error; a motion was made on behalf of the bail, ta difcharge their recognizance, no original having been filed within the two terms; and a rule made to fhew caufe, which was difcharged. The bail may plead as they fhall be advised. Carleton v Wilkinson. Barnes 86.

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Upon

Of declaring after the Outlawry reversed or fuperfeded.

Upon fuperfeding the exigent, if plaintiff delivers a declaration, there fhould be a notice to plead; and a rule given to plead before judgment, for want of a plea, can be figned. And defendant has, in fuch cafe, the fame time to plead as in other cafes. Barnes 271-2.

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Of Scire facías.

Scire facias is a writ judicial founded on fome matter of record, as judgments, recognizances, and letters patent, on which it lies to enforce the execution of them, or to vacate or fet them afide: and though it be a writ jucial, or of execution, yet it is fo far in nature of an original, that a defendant may plead to it, and is in that refpect as an action; and therefore it is held, that a releafe of all actions, or of executions, is a good plea in bar to a feire facias. Vide Bac. Abr. 4 Vol. 409. and authorities there cited.

A feire facias lies for many purpofes in law; and the writ itfelf may be formed according to the fubject matter. But the writs of feire facias, which will be proper to notice in in this work, are only of four kinds-1. Of the fire facias against bail, after judgment had againft the principal, on their recognizance forfeited. 2. Of the feire facias to revive a judgment by and against the fame identical parties to the fuit on which the judgment was had. 3. Of the faire facias to continue a fuit by or against the reprefentatives of one of the parties dying before final judgment. And 4. Of the feire facias by or against the reprefentatives of a party to the fuit dying after judgment, and before execu

tion.

The writ of feire facias is adapted to the fubject matter: For the various forts of which writ, fee the feveral books of entries.

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