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Of the Arrest upon the Capias Utlagatum, of Bail thereon, and of reversing the Outlawry by Writ of Error.
&c. and upon two nih'ih returned, the court will reverse the outlawry of course: But if the plaintiff comes in voluntarily, or upon z.scire feci, and does not consess the errors assigned, but joins in error, the desendant must make up error books, and proceed to argument and judgment, as in other cases of error; of which vide foji. title Error.
Of declaring after the Outlawry reversed Qt superseded.
UPON the reversal or superseding of the outlawry, if the desendant does not pay the plaintiff his debt and costs, the plaintiff must proceed to declare, the desendant having, upon reversing or superseding the outlawry, put in special or common bail, as the case required, to appear to a new original.
Upon appearing and superseding the exigent, the plaintiff must declare within fix or eight days after, otherwise the desendant may give him a rule to declare; and if no declaration comes in within the limited time, the desendant may non-suit the plaintiff, and have his costs taxed. Comp/. Soil. C. B. 84.
So if the desendant appear by supersedeas, and will not take a declaration, the plaintiff may have judgment against him, by nil elicit. Ibid.
But where a desendant outlawed, causes the same outlawry to be reversed, the plaintiff has till the end of the second term after reversing the same, and notice thereof given, to declare in. But if he does not proceed within two terms next, after notice of reversing the outlawry, the desendant shall have his costs to be taxed. Reg. Tr. 33 Car. 2. C. B. The declaration, after reversal or superseding of the outlawry, has no need to be laid in the same county in which the former original was made. So held on demurrer. 3 Lev. 245. Wbitwick v. Hovendcn. Where the original and outlawry were in London, and on the reversal of the outlawry, the plaintiff declared in SuJJ'ex, on which it was insisted, that the original being laid in London, the plaintiff Could not declare in the action in another county, though the cause of action was transitory. But the prothonotaries certifying, that the course of the court was, that although the original be laid in London, for expediting the outlawry, yet when the desendant comes in, the plaintiff may declare against him in any other county, be the action local or transitory. And the jlat. 21 jac. 1. c. i6. f. 4. giving the plaintiff generally a power to commence a new action or luit within a year after the outlawry reversed, the'plaintiff may do it in this case, to warrant his declaration delivered, within the course of the court. And the plaintiff had judgment.
By the 21 Jac. 1. c. 16. f. 4. it is enacted, "That if in any action brought by original, the defendant be outlawed,
Os declaring after the Outlawry reversed or superseded.
lawed, and shall after reverse the outlawry; that then the plaintiff, his heirs, executors, or administrators, as the case shall require, may commence a new action or suit from, time to time, within a year after such judgment of outlawry reversed, and not after."
And by the 31 Eli. c. 3. s. 3. it is enacted, "That before the allowance of any writ of error, or reversing of 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 the said statute, the desendant in the original shall put in bail, not only to appear and answer to the plaintiff in the former suit, in a new action to be commenced by the said plaintiff for the cause mentioned in the first: action, but also to satisfy the condemnation, 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,"
Though this latter statute relates only to the reversing the outlawry through want of proclamation, and discharges the bail in such case given, if the plaintiff does not proceed within two terms after the reversal—yet the recognizance of bail, upon the reversal of outlawry for other causes than for want of proclamations, has mostly been taken since the making thereof according to this statute. Therefore, if the plaintiff does not declare after the reversal of the outlawry within two terms, the bail are discharged. But though they are discharged from their recognizance, the plaintiff is not barred of his action, provided he commences the same within a year after the reversal of the outr lawry, according to the 21 Jac. 1. c. 16. supra.
Bail upon the reversal of outlawry, cannot render their principal in discharge of themselves; for they are absolutely bound to pay the condemnation money.
Desendant 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 desendant brought a writ of error; a motion was made on behalf of the bail, ta discharge their recognizance, no original having been filed within the two terms; and a rule made to Shew cause, which was discharged. The bail may plead as they shall be advised. Carlcton v Wilkinson. Barnes 86.
F 3 Upon
Of declaring after the Outlawry reversed or superseded.
Upon superseding the exigent, if plaintiff' delivers a declaration, there should be a notice to plead; and a rule given to plead before judgment, for want of a plea, can be signed. And desendant has, in such case, the same time to plead as in other cases. Barnes 271—2.
AScire facias is a writ judicial founded on some matter of record, as judgments, recognizances, and letters patent, on which it lies to enforce the execution of them, or to vacate or set them aside: and though it be a writ jucial, or of execution, yet it is so sar in nature of an originaly that a desendant may plead to it, and is in that respect as an action; and therefore it is held, that a release of all actions, or of executions, is a good plea in bar to z/tire facias. Vide Bac. Abr. 4 Vol. 409. and authorities there cited.
A fire facias lies for many purposes in law; and the writ itself may be formed according to the subject matter. But the writs offeirefacias, which wili be proper to notice in in this work, are only of four kind:—r. Of the fire facias against bail, after judgment had against tru principal, on their recognizance forseited. 2. Or the feire facias to revive a judgment by and against the some identical parties to the suit on which the judgment was had. 3. Of the feire facias to continue a suit by or against the representatives of one of the parties dying before final judgment. And 4. Of the feire facias by or against the representatives of a party to the suit dying after judgment, and before execution.
The writ of fire facias is adapted to the subject matter: For the various forts of'which writ, see the several books of entries. >