Although

Lord Kenyon, C. J. At the trial I considered this like a misnomer of defendant, who must in general cases plead in abatement. But on further consideration, I am of opinion that, as this is an action on a written instrument, the objection was well founded at Nisi Prius, because the evidence produced did not prove the instrument declared on.

NINTHLY-RELATIVE TO THE REVERSAL OF AN OUTLAWRY.

(B) WHO MAY REVERSE.

SYMONDS V. PARMITER. T. T. 1747. C. P. 1 W. Bl. 20.

Indebitatus assumpsit process against two defendants; on a joint contract. an outlawry One of the defendants being sued to outlawry, the plaintiff claims his whole be illegal satisfaction of Parmiter, the other defendant, who pleads in bar the cutlawry was illegal, and therefore the plaintiff cannot come upon him only. Plaintiff demurs, &c.

and voida

ble, it cannot be set aside by a

in a collate.

ral action.+

Per Cur. This case is quite new; the plea seems disagreeable to the rules third person of law, and cannot be pleaded in bar. The plaintiff cannot discontinue without leave of the Court: the rule of law is, that such outlawries are not void, but voidable, 1 Lutw. 40; and voidable only sub modo, by putting in bail by the party himself. Therefore a stranger to the outlawry shall not demand of the Court to pronounce the outlawry null.

outlawed, it is not necessary to aver the outlawry with a prout patet per recordum, if it appear to be in the same suit; see M'Michael v. Johnson, 3 Smith, 56; S. C. 7 East, 50.

A writ of capias quare clausum fregit was issued against two defendants, with an ac etiam in debt; upon which one of them was arrested, and put in bail; writs of capias, alias, and pluries, grounded on original in debt against both, were regularly issued; writs of exigent and proclamation were issued against both. A writ of supersedeas issued as to one, and an exigent returned that the other was outlawed on the 23rd of October. The plaintiff in Michaelmas term delivered a declaration against one only, entitled of Trinity term, alleging the outlawry of the other defendant in this suit; held that these proceedings were regular, and the Court would not set aside the declaration; but, as it should have been entitled of Michaelmas instead of Trinity term, which was previous to the outlawry, they allowed it to be amended on payment of costs. If, in a joint action against two, it appear that one of the defendants has been outlawed upon different process from that by which the other was brought into court, and no connexion be shown between the several writs of capias issued against each as referable to the same original, as where the one was outlawed upon process by original, tested the 10th of April, returnable on the first return of Easter term, and continued regularly down to the time of the outlawry, and the other was arrested upon a special testatum capias, issued on the 24th of April in Hilary vacation, and tested in the preceding Hilary term; to which bail was put in, and the plaintiff declared against him alone, alleging the outlawry of the other defendant in the same suit; the Court will set aside the declaration for irregularity; Haigh v. Conway, 15 East, 1.

* As an outlawry is considered only as process to compel an appearance, any plausible cause, however slight, will in general be sufficient to reverse it; but the defendant must put the plaintiff in the same situation as if he had appeared before the exigi facias was awarded. Hence, if the defendant be in prison, or beyond the sea, at the time of the exigent awarded, 5 Co. 109; 4 Skin 16; Barnes, 288; or for not saying the county court was held pra comitatu, Rex v. Oneby, 1 Show. 309; 2 Show. 60; 1 Vent. 108; 3 Mod. 90; or for stating when the county court was held, Rex v. Cope, 11 Mod. 173; Rex v. Yeates, 12 Id. 542. 544; or for not saying by judgment of the coroner, 2 Show 60; or the party's addition, 2 Leon. 200; or mis-spelling of the party's name, Prac. Ca. K. B. 162; or the year be written in figures instead of in words, Rex v. Read, 2 Show. 60; or for a mistake in the exigent; Cæsar v. Stone, Prac. Ca. K. B. 163; Id. 166. Reg. v. Wooms, 1 Lev. 164; the outlawry will be reversed.

And if two are outlawed, error to reverse it must be in the name of both ; but one of them may be summoned and served, and then it shall be only for his benefit that appeared; Symmons v. Briscoe, Salk. 496.

There are two ways of reversing an outlawry; first, by writ of error returnable coram nobis, Tyrbe, 74; secondly, by motion founded on a plea, averment, or suggestion of some matter apparent, as in respect of a supersedeas, omission of process, variance, or other matter apparent on the record, and yet in these cases, some have hoiden that in another term the defendant is driven to his writ of error. But for any matter of fact, as death, imprisonment, service of the king, &c., he was formerly driven to his writ of error, unless it be in the case of felony, and there, in favorem vitæ, he might have pleaded it. And there is an old rule of court in the Common Pleas that a writ of error shall not be allowed, nor any record removed, or writ of de non molestando or supersedeas granted, before some manifest

1.

MATTHEWS V. ERBO. T. T. 1697. K. B. Carth. 459; S. C. Ld. Raym.

349; 2 Stra. 1178. SERRAB V. HANSON. H. T. 1742. K. B. 1
Wils. 3; S. C. Barnes, 319.

al to re

verse an

E., who was a foreign merchant and never in England, was outlawed at the Formerly it suit of M., in an action on several promises for goods sold and delivered; and was not usuupon a special capias utlagatum a ship and other effects belonging to him were seized, as forfeited upon this outlawry. And now it was moved that this out-outlawry lawry be vacated, and restitution awarded upon affidavits produced and read, upon mothat the defendant was never infra legem, i. e. that he never was in England, tion for erand therefore could not be outlawed, because that was putting him extra legem; the defenror in fact, but,

dant being

put to his

Per Cur. This outlawry shall not be vacated upon such affidavits, but the defendant may bring a writ of error, which he was compelled to do, and there- writ of upon to put in bail to the action in which he was outlawed, according to the error; new statute, and then the plaintiff consented to the reversal of the outlawry. See 12 East, 622.

2. ASHLEY V. STOCKWELL. M. T. 1753. C. P. Barnes, 324. Three several outlawries had been pronounced about a year ago, and tran- But it now scribed into the Exchequer. Rule to show cause why the outlawries should seems entirely dis not be reversed at plaintiff's expense, defendants, at the time when the writ of exigent is sued, and still, being in parts beyond the seas. [ 39 ] On showing cause cretionary by plaintiff, it appeared that defendants had been abroad three years, and pro- with the bably never intended to return to England; and it was urged, that, as they Court to restayed abroad longer than their lawful occasions required, such stay must be lieve by motion. looked upon to be with a view to defeat justice, and consequently they were duly outlawed. That if not, they ought to bring their writ of error, and should not be relieved in this summary manner by motion. The Court thought it discretionary in them to relieve by motion, or put the parties to a writ of error, according to the circumstances of the case.

See 5 Co. 109; Skin. 16.

Hence,

3. BEAUCHAMP V. TOMKINS. T. T. 1810. C. P. 3 Taunt. 141. Motion to set aside an outlawry. Mansfield, C. J., said, that the Court had been in the habit of reversing outlawries on motion, but that some error must where it apbe mentioned. In 4 Burr. 2536. Rex. v. Wilkes, it was allowed, that no out- pears by aflawry can have passed for a century which might not have been reversed for erSee if some error cannot be found in this outlawry. It appearing on reference to the affidavits that he was in custody, as well as when the writ was prison; sued out, as when it was tested-The Court made the rule absolute.

ror.

See ante, p. 24.

fidavit that the defendant was in

4. HESSE V. WOOD. M. T. 1812. C. P, 4 Taunt. 691. S. P. GRAHAM V. Or beyond GRILL. E. T. 1813. K. B. 1 M. & S. 409.

sea, even to avoid pro

cess, the

Error in fact assigned to reverse an outlawry, that the defendant was beyond seas; answer, by showing that he went beyond seas to avoid the plaintiff's pro-[40]

error be shown to the Court in term time, or, in vacation, to some of the justices, and by them allowed; R. T. 24 Eliz. C. P.

In a late case, see 2 Moore, 567; the court refused to set aside an outlawry, upon motion for an irregularity against one of several defendants, who was a foreigner, and resided abroad before he had appeared. On a writ of error to reverse an outlawry, issue being joined on an assignment of the outlaw being beyond the sea at the time of suing out the writ of exigent, and from thence until the time of pronouncing the outlawry; and the plaintiff in error having proved the previous proceedings, and that the outlaw was abroad at the time of suing out the exigent, the Court of Common Pleas held this to be sufficient, without proving the time when the judgment of outlawry was pronounced, or that the defendant was then abroad; see 5 Taunt. 309; 1 Marsh. 58, S. C. But where the defendant was described in an original writ as T. B., of C., in the county of N., and upon a writ of error brought to reverse the outlawry, the error assigned was that T. B. was not, before or at the time of issuing the original writ, of or eonversant in C. aforesaid; and that there was not any town, hamlet, or place, of the name of C. in that county; to which the plaintiff pleaded that he prosecuted his writ with intent to declare upon bond made by the defendant, by which he was described as T. B. of C., in the county of N.; the court held that this was an estoppel, and affirmed the judgment of outlawry; see 5 B. & A. 682; 1 D. & R. 328; S. C. Fraudulently and covinously departing the realm before the awarding of an exigi facias, VOL. XIII.

4

Courts will reverse outlawry upon motion.*

A defend.

cess.

The court said that they had never heard that either the going abroad, or the staying abroad, with a view to avoid process, was a reason why the defendant should not reverse an outlawry when he returned. No case had been cited in support of that proposition which came up to it; and the outlawry must therefore be reversed on payment of costs; what the costs were the prothonotary would decide.-Rule absolute.

(b) Application for, when to be in person or by attorney.* ant need not ANON. M. T. 1771. K. B. Lofft. 372. 520; 2 Salk. 496. SIR WILLIAM READ'S CASE. Palmer, 194.

appear per

sonally to reverse an outlawry, except in treason and felony.t

It was stated by the Court, that by the stat. 4 & 5 W. & M. no person who shall be outlawed for any cause, matter, or thing, treason or felony excepted, shall be compelled to appear in person to reverse the outlawry, nor to put in special bail, except in cases where special bail is required.

(c) Of entering an appearance, and putting in special bail.‡

in order to defeat a plaintiff of the means of recovering a just debt and to avoid an outlaw. ry, does not preclude the defendant in error form reversing the outlawry, if he was in fact beyond the sea at the time of the exigent, and from thence until after the time of the outlawry; Byron v. Wagstaff, 8 D. & R. 208; S. C. 1 R. & M. 329.

* Where the outlawry is against husband and wife, error to reverse it must be by both of them in person; Cro. Eliz. 611. At common law, the party outlawed must have appeared in person in order to reverse an outlawry, it not being deemed sufficient for him to appear by attorney; see Cro. Jac. 462; Tyre, 71, 72; 2 Salk. 496. But now by statute 4 & 5 W. & M.c. 18. s. 3. for the more speedy and easy reversing of outlawries in the Court of King's Bench, no person outlawed therein for any cause, matter, or thing whatsoever, treason and felony only excepted, shall be compelled to come or appear in person in said court to reverse such outlawry, but shall or may appear by attorney, and reverse the same without bail in all cases except where special bail shall be ordered by the said court.

An attorney making an affidavit in support of an application to reverse an outlawry against a defendant, who does not appear personally, must show in express terms that he is duly authorized by the outlaw to make an application; 7 D. & R. 625. n. ; 3 B. & C. 736. In case of French v. Moore, cited 1 Tidd, 137, it was determined that the defendant must appear before he can move to reverse an outlawry. And this case was recognised by the Court, in Summervil v. Watkins, 14 East, 536; and see 2 Moore, 567; accord, but in the case of Graham v. Henry, 1 B. & A. 132, the Court held that the defendant need not appear before he moves to reverse an outlawry; for, until it be reversed, no writ exists to which he can appear. In the Common Pleas, when a defendant is outlawed on a common original in trespass quare clausum fregit, he has a right to reverse it at his own expense, on entering a common appearance and payment of costs; Barnes, 324.

In bailable actions, it is necessary that bail should be put in and perfected before any proceedings are taken to reverse the outlawry. The stat. 31 Eliz. e. 3. s. 3. requires that the defendant in the original action shall put in bail not only to appear and answer the plaintiff in a new action to be commenced in the cause mentioned in the former, see Cro. Eliz. 707; but also to satisfy the condemnation, if the plaintiff shall begin his suit before the end of two terms next after allowing the writ of error, or otherwise avoiding the outlawry. On reversing the outlawry for any other error in law beside the want of proclamation, it was for a considerable period a vexata questio whether the defendant should be obliged to put in special bail: in the earlier cases upon the subject it was determined that he should give this security, see Carth. 459; 1 Ld. Raym. 349; 12 Mod. 545; 1 Ld. Raym. 591. 605; 2 Salk. 500. S. C.; but in Serecold v. Hampson. see 2 Stra. 1178; 1 Wils. 3; 12 East, 624. S. C.; the Court, upon considering the words of the 4 & 5 W. & M. c. 18. s. 3. which, for the more speedy and easy reversing of outlawries in the Court of King's Bench, enacts "that no person outlawed therein for any cause, matter, or thing whatsoever, treason and felony only excepted, shall be compelled to come or appear in person in the said court to reverse such outlawry, but shall and may appear by attorney, and reverse the same in all cases except where it shall be ordered by the said Court," declared that they were of opinion that they had a discretionary power to require it, and that the want of an affidavit before the outlawry was no objection, because that was only requisite to warrant an arrest; and though the 31 Eliz. c. 3. s. 3. be the only act that expressly requires bail, it is not to be inferred that in other ca ses it ought not to be insisted on; for that act makes it a new ground of error, and the bail upon it are absolutely to pay the condemnation money. And, consistently with this decision, it is now clearly settled that on the reversal of an outlawry for any other error in law, except the omission of the usual proclamation, the bail is common or special, according to the same rules as would have governed the original proceedings, if the defendant in the first instance could have been arrested. Although in the case of reversing an outlawry upon the stat. 31 Eliz. c. 3. for want of proclamations, the recognizance of bail must be taken for the payment of the condemnation money, absolutely, yet it seems in all other instances that the common alternative form to pay the condemnation money, or render the principal, will be regular. The distinction which at one time existed between the terms of the recognizancǝ

(d) of having the record in court, on moving to reverse.
OUTLAWRY. M. T. 1772. K. B. Lofft. 348.

[ 41 ] When a mo⚫

Motion to reverse an outlawry in the usual way.-Refused, the record not tion to rebeing in court.

(e) Evidence.

verse an

outlawry is made the

RICHARDSON V. ROBERTSON. H. T. 1814. C. P. 1 Marsh. 58; S. C. 5 Taunt. record must 309.

be in Court. On error to

In a writ of error to reverse an outlawry, on the ground that the outlaw, before and at the time of suing out the writ of exigent, and from thence un- reverse an til the time of pronouncing the outlawry, was in parts beyond the seas; the outlawry, it plaintiff in error having proved the previous proceedings in the outlawry, and is not necesthat the outlaw, at the time of suing out the exigent, was abroad, and died sary to abroad, but without fixing the time of his death, the Court held, that it was time the not necessary to prove the time when the judgment of outlawry was pronoun-judgment ced.

(f) Costs and terms imposed by courts.*

prove the

was pronounced.

1. GRAHAM V. GRILL. E. T. 1813. K. B. 1 M. & S. 409. S. P. WILBRA-[ 42 ] HAM V. DOLEY. 1700. K. B. 12 Mod. 545; 2 Salk. 496; 1 Ld. On reversRaym. 349; S. C. Carth. 459.

ing an out. The Court, upon motion, reversed the outlawry of the defendant in lawry on a civil motion, the suit upon his putting in bail in the alternative to satisfy the condemnation mo- Court usuney, or render the principal, and paying all costs, including costs if any, in ally impose the Court of Exchequer, without requiring the recognizance of bail to be for the terms of the payment of the condemnation money absolutely. paying costs and putting

See & East, 527; Ca. Pr. C .P. 29; Barnes, 326; 1 B. & A. 131; sed in bail when vide 4 Taunt. 691. requisite ; and when the process has been abused, as

2.

ANON. E. T. 1688. K. B. 2 Vent. 46. ADLAM V. COLEBATCH. E. T. 1695. C. P. 2 Salk. 495. WHITE V. DUNSTER. M. T. 1741. C. P. Barnes, 321.

A man was outlawed after the plaintiff had him in prison; a reversal was where a ordered by the Court, at the charge of him that prosecuted the outlawry, it man has appearing to be an abuse.

See ante, p. 24.

been out.

lawed who

was already 3. HILL V. WILKS. T. T. 1791. K. B. 12 Mod. 413. S. P. BISCOE v. KEN- in prison at NEDY. T. T. 1760. K. B. 2 Wils. 127. Semb. contra, Ca. Pr. C. the plainP. 61. 78. HOLMAN V. BRAZIER. H. T. 1738. C. P. Barnes, 320. tiff's suit; It appearing to the Court plainly, that W. had got H. outlawed when he or appeared publicly, was visible, and to his knowledge easily might be served with process, he was and might ordered to reverse it at his own charges; vide Sir Thomas Jones, 211.

have been arrested or

on reversing the outlawry by motion and by writ of error, is now repudiated; see 1 M. & served with S. 408; 1 B. & A. 131; 12 East, 622; 4 Taunt. 691; 12 East, 625.

process, the

* And in theCommon Pleas, no outlawry shall be reversed after the death of the plaintiff Court will in the action, without the defendant's appearance and putting in special bail, if required, make the to the executor or administrator of the plaintiff, or to husband and wife, where the wife, plaintiff pay whilst a feme sole, sued the defendant to an outlawry before marriage, provided the plain- the costs of tiff's attorney do, within fourteen days after notice given to him of the defendant's intention the outlaw. to reverse the outlawry, deliver to the prothonotary the name of the plaintiff's executor and ry. administrator; Barnes, 323.

On reversing the outlawry the defendant must pay to plaintiff or his attorney, or leave in court for him, the full and just costs of suit to the exigent; and where the plaintiff by virtue of such outlawry has taken an inquisition and extended the goods, &c. of the outlaw into the king's hands, and returned the same into the Exchequer, such further just and reasona. ble costs shall be taxed by the prothonotary, and likewise paid to the plaintiff or his attor ney, or left in court, as the plaintiff has been at in taking and prosecuting the said inquisi tion before any certificate of such reversal shall be made by the clerk of the outlawries. Also when an outlawry has been transcribed into the Exchequer, and process made out thereupon, and afterwards such outlawry is reversed before any judgment shall be entered for removing the king's hands, and the party outlawed restored to his possessions, the prosecutor of the outlawry shall be paid such costs as shall be taxed by the remembrancer or his deputy for the proceedings in that court; but with this exception, that no defendant who shall appear and reverse an outlawry shall, upon such reversal, pay for costs to the plaintiff any sum of money exceeding the usual costs of the exigent in the Common Pleas, together

[ 43 ] After an outlawry

has been re.

versed, the

(D) EFFECT OF Reversal.

THE PRESIDENT OF ST. JOHN'S COLLEGE V. MURCOT. E. T. 1797. K. B. 7 T. R. 259.

Ashurst, J., said; The instant an outlawry was reversed the judgment of case is the outlawry became mere waste paper, and the rights of all the parties were same as if it restored to the same situation as if no outlawry had taken place.

had never taken place.

(E) DECLARINg after reverSAL OF OUTLAWRY.*

II. CRIMINAL CASES.

FIRSTLY. RELATIVE TO WHEN IT MAY BE ISSUED.
THIRDLY. OUT OF WHAT COURTS IT MAY BE ISSUED. +

FOURTHLY. INTO WHAT COUNTRY IT MAY BE ISSUED.

BARRINGTON v. the KING. M. T. 1789. K. B. 3 T. R. 502.

Per Buller, J. The stat. 8 Hen. 6. c. 10. only applies to indictments in The stat. 8 H. 6. c. 10. one county, against offenders residing in another, and only to cases where it applies only appears on the face of the indictments that they reside out of the county. to indict- There the legislature have required that a proclamation shall issue with a second [44] capias, and go into the county where the person indicted lives; and it is true, ment in one in such a case the writ must require the person indicted to appear before the county against of. justices at the return of the writ; but that return is before the time of the fenders de. outlawry, for there must be a pluries capias before the outlawry can issue; scribed in all those are preparatory steps to the outlawry, and the prisoner's appearance the indict is required in order to prevent the outlawry.

ment to be

conversant with the fine to the king upon the original writ, if any was paid, and all further costs be rein another. spited until the time of saving judgment for the plaintiff.

* Upon reversing the outlawry, however, the defendant appears to a new action to be brought against him by the plaintiff of the same cause, and the plaintiff has until the end of the second term next after the reversal of the outlawry to declare against him, 31 Eliz. c. 3. s. 3; after that time the defendant may refuse to receive a declaration, in which case his bail are discharged, and the plaintiff will be obliged to sue out new process against him. If the plaintiff declare in time, he is not obliged to lay his venue in the county into which the original writ issued, but may lay it in any other county at his pleasure; 3 Lev. 245.

+ Process of outlawry lies in all cases of treason and felony, in all appeals of felony or mayhem, and on all indictments for forcible injuries, deceit, conspiracy, or other offence more heinous than a forcible trespass, 2 Hale, 194; Hawk. b. c. c. 27. s. 109; and in case of criminal information for misdemeanor affecting the public, a process of outlawry may be supported, see 4 Burr. 2555, 2556, 2557, 2558, 2559; and though it has been doubted whether it lies for an inferior offence created by statute, unless it is expressly given by its provisions, as for forestalling, see Hawk. b. 2. c. 27. s. 109, 110; 2 Hale, 194; the better opinion seems to be that it is sustainable in a prosecution for any crime whatsoever; see 4 Burr. 2537; Bac. Abr. Outlawry,

It is clear that the courts at Westminster may issue this description of process; and the Court of King's Bench, either upon an indictment originally taken there or removed thither by certiorari, may issue it into any county of England; 2 Hale, 198; so also, justices of oyer and terminer may award it, and justices of the peace on indictment taken before them; but it is said that the latter cannot issue a capias utlagatum, but must return the record unto the King's Bench, from whence that writ should issue; see Dalt., J., c. 193; Faulk. 500; 2 Hale, 52; Withiens, J., Outlawry, 12 Co. 102; Dick. Sess. 418.

By the common law, an exigent was never to be awarded to any other than that in which the venue was laid, and there was no necessity for issuing process to the sheriff of any other county; see Hawk. b. 2. c. 27. s. 119; Dyer, 295. b. This practice was attended with very great and vexatious inconvenience to the defendant: for he was often conversant in some other county at the time of issuing process, and before he had any opportunity of obeying it, he was put in exigent, and his goods and chattels forfeited. To remedy, in some degree, this grievance, it was enacted by 6 Hen. 6. c. 1. that, in case of treason or felony, indicted in the King's Bench, process should be directed to the county of which the defendant was stated in the indictment to be conversant, as well as to that in which he was indicted, and six weeks at least, or longer, at the discretion of the justices, shall be allowed for its return. And by 8 Hen. 6. c. 10. this provision is applied to all other tribunals; except, in Chester, the time is enlarged to three months, where the counties are holden from month to month; and to four months, where they are holden from six weeks to six weeks; and its operation is extended to every description of offences. By 10 Hen. 6. c. 6. indictments removed into the King's Bench by certiorari are made subject to the same regulations; and, although indictments of treason and felony originally taken in the King's Bench, were holden not to be included in the extended privileges conferred by 8 Hen, 6. c. 10. upon other