(a) Vide 40 E. 3.31. of death, coming in upon an exigent, which was erroneous for want of the words de morte viri, &c. had falved the error by his appearance, notwithstanding he had done all he could to take advantage of it, by craving oyer of the process, and then demurring. And note, That in all the year-books (a) above-cited to this point, except (b) one, it is faid generally, That fuch errors are falved by an appearance, without any mention or any (5) 2 H. 7. 11. amendment: But in that one it is faid, That they fhall be amended. F. Amend. 14) 59. (t) Vide f Bulft, 141, 342, 143. Yelverton 204. 1 Salkeld 51. 12 H. 4. 18. 21 H. 7. 16. 38 Ed. 3. 20. 12 H. 4. 3. B. Dif. de Pro. 11. F. Dif. 39. (e) C. Jac. 311. (f) 38 E. 3. 22. F. Dif. 40. 39 H. 6.39. Amend. 27. B. Replead. 2, Also it seems that where-ever procefs is awarded (c) inftanter from time to time, without any the least break or chasm, and the parties (d) have always a day upon the roll, all other kinds of errors whatsoever that come under the name of dif continuances, are (e) falved by an appearance, for there are (f) cafes by which it appears, That defendants appearing, and taking exceptions to fuch errors, have been compelled to answer to the original, which they would not have been, if fuch original had been taken to have been difcontinued by fuch errors, as they certainly are by an error, in fuffering a total chaẩm in the continuance. And if the original be not difcontinued by fuch errors, Why fhould they not be as much falved by an appearance, as any of the other errors above mentioned ? For would it not be altogether as trifling in this, as in any other cafe, to difmifs a perfon only in order to fend for him again? And in criminal cafes this could not but be of the utmoft ill confe.quence, by giving the defendant, who is actually in the power of the court, an opportunity of escaping. Dif. de Pro. 1. Error. 3. 3 H. 6. 9. (g) F. Amend. 26. B. Amend. 10. 92. Sect. 108. But it feems agreed by the (g) books, That any other discontinuance in the process against jurors, shall have the fame effect as a difcontinuance in fuffering a chafm in the process. But it feems, That no fuch (b) difcontinuance, whether in the process or in the roll, fhall in any cafe discontinue or abate the original fuit. But if it appear before trial, fhall cause (i) new process to be awarded where the firft fault happened; and if after trial, a new (k) venire to have the whole (1) iffue tried over again; becaufe the firft venire was executed, and the whole trial unwarranted. But (m) if judgment be given on a verdict by jurors appearing on a process any way erroneous, it will be totally erroneous; because the (i) 19 H. 6.39. trial was wholly unwarranted, and confequently the iffue mif #o H. 6. 39, not warranted by the books at large, which are 27 H. 6. 5. and 34 H. 6. 20. 34. H. 6. 20. F. Amend, 26. 57. Enquet 18, F. Dil. 24. 38. (m) F. Judg. 12. tried. 29 E. 3. 31. B. Amend. 10. Dif. 30. 30 Affize 36. (k) 6 Mod. 286, 287./ 22 H. 6. 3. 4. (1) 2 H. 5. 3. F. Dil. 35. Vide 9 H. 4.7. B. Enguekt. 98. Error 16. 22 E. 3. 2. 7 H. 6.28. -29 E. 3. 31. Sect. 109. Alfo, as I apprehend, any other error in the procefs against the jurors, who actually try a caufe will make a 429 Abr.334, 335, 352, 357, 455, (a) Vide IDan. H. 6. 28. 456. (6) 7 586. 1 (a) mif-trial, as much as thofe which are called difcontinu ances; as where such process of this kind is awarded which is not (b) proper in the case, or where it is directed to a (c) wrong officer, or has a (d) wrong vifne, or (e) mif-recites the former procefs, or is (f) mif-returned, or (g) not returned at all, &c. F. Err. 16. For if errors of this kind have fuch effect even in civil actions (c) Brow. 134. where they are not within fome of the ftatutes of Amendments 86 or Jeofails, as it seems to be admitted that they have, it plain- Moor 356. C. Eliz. 574. ly follows, that they must always have it in criminal proceed- Yelverton 15. ings, fince (b) no fuch proceedings are within the benefit of c. Eliz. 468. any of those ftatutes. But if an error of this kind, owing Vide fup. c. 23. 5 Coke 36. wholly to the misprifion of the clerk, be difcovered before fect. 92. trial, and the amendment of it will fet the whole matter right, perhaps it may be (i) amended by the common law. And it hath been (k) holden clearly, That even a discontinuance of process may be amended by consent of the parties. I Dan. Abr. 340, 341. 8 Co. 163. (b) 355.357. (g) Vide 21 Jac. c. 13. 2 D. Abr. 455, 456. 21 Jac. c.13, 16. and17 Car. 2.c.8. (e) C. Ja. 89. (f) C. Jac. 467. 1 Dan. Abr. 354. 6 Modern 283. 4. 47. F. Amend. Sett. 110. How foever an error may be fo far falved by the party's appearance, that he fhall be as much compellable to anfwer the original, as if there had been no fuch error: Yet if he were subject to any disadvantage in refpect of having fuch procefs awarded against him; as to the lofs of his goods upon an exigent, or to the forfeiture of the privilege of appearance by attorney upon a pluries; he (1) fhall wholly avoid fuch difadvantage when fuch award, which should have caufed it, appears to be any way erroneous, whether in refpect of a difcontinuance, or mif-continuance, or otherwise. F. Amend. 77. B. Appeal. Sec. 111. Alfo, for the like reafon, it feems to be (m) agreed, That if a man be outlawed, or be condemned by default, for not appearing to procefs, which is any way erroneous, he may take advantage of the error in avoidance of fuch outlawry, or other condemnation; for no one fhall be condemned barely for not appearing, where that which fhould have compelled him to have appeared is defective. But it (n) feems, That a defect in procefs in an outlawry, may be falved by the defendant's purchafing a pardon, and fhewing it to the court; for that fuppofes that there was fuch an outlawry against him, as needed a pardon, which, if it were erroneous, it would not do. Sect. 112. How far a difcontinuance of one appeal will be a bar to another, hath been already confidered, chap. 23. fect. 132. AND F. Exigent 20. Summary 271. Dif. 40. 51. F. Error 82. F. Amend. 27. But 8 H. 5.2. 43 E. 3. 17, 18. 34. feem contrary. F. Error 47. B. Reftitu. 8. (m) 3 H.7.8.9. 9 F. Difcont. 51 AND now I am in the fecond place particularly to confider the nature of procefs on a criminal accufation, with a particular regard to procefs of OUTLAWRY only. For the better understanding thereof, I fhall confider the following points: Firft, Whether procefs of outlawry lie in all criminal cafes? Secondly, In what manner it is to be awarded in general. And, Thirdly, What is particularly required in the award of it against the principal and acceffary. Set. 113. As to the firft point, viz. Whether process of outlawry lie in all criminal cafes. I take it to be certain, That it lies in all appeals, (a) whether of felony or mayhem; and in all indictments of treafon or felony, and on all (b) returns of a refcous; and alfo in all indictments of (c) trefpafs vi & armis. Alfo it feems probable, That it lies on an indictment of (d) confpiracy, or (e) deceit, or any other crime of a higher nature than a trefpafs with force and arms, but not on any indictment for a crime of an inferior nature. 22. H. 6. 8H. 6.9. F. Pro. 89. B. Exigent 25. 28. 46. S. P. C. 172. 192. 2 Hale 194. (d) (g) 22 E. 4. 11. 9 E. 4.2. 27 E. 3. (*) 22 E. 4. 11. Con. F. Pro. 89. 22 H. 6. 7. Qu. B. Exig. 28. (1) 8 H. 6.9. 35 H. 6. 6. B. Pro. 145. (m) 35 H. 6.6. F. Pro. 101. B Pro. 16. (n) B. Exig. 35. 37 H. 6. 23. 1 Keble 563. (0)8 H.6 9. F. Pro. 81. Sat. 114. It feems (g) agreed, That it lies not on any action on a ftatute, unless it be given by fuch ftatute, either exprefsly, as in the cafe of a (b) pramunire, and many other cafes; or impliedly, as where a recovery is given by an action wherein fuch procefs lay before. And agreeably hereto it hath been adjudged, That it lies not in an action on the ftatutes of (i) liveries, or of (k) maintenance, nor in (1) decies tantum, and that it lay not in a writ of (m) entry on 5 Rich. 2. c. 7. till it was given by 23 Hen. 8: c. 14. But that it lies on a writ of trefpafs for a (n) forcible entry on 8 Hen. 6. c. 9. because the ftatute expressly gives a recovery by fuch writ, and fuch procefs lies in it by the common law. It feems to be holden in the (o) year-book 8 H. 6. That it lies on all indictments on ftatutes; but the contrary is adjudged in (p) 22 E. 4. as to the ftatutes against foreftalling; and it is there laid down as a general rule, That it lies not on an indictment any more than in an action on a ftatute, unless it be exprefsly or impliedly given by such statute. (P) 22 E. 4. 11. B. Exig. 51. 35 H. 6. 6. 37 H. 6. 23. 2 Hale 194. Ld Raym. 987. Selt. 115. As to the fecond point, viz. In what manner procefs of outlawry is to be awarded in general: I fhall obferve the following particulars. First, That it feems to be agreed (9) That in every indictment or appeal, for any crime Err. 82. Vide 3 H. 6. 9. 3 H. 4. Il under under the degree of capital, there must be three capias's to the (a) 40 E. 3. 25. fheriff of the fame county wherein the profecution is com- Finch 476. F.Exigent 7.27. menced, before the exigent fhall be awarded, unless it be af- (6) 16Affize 13. ter (a) judgment; in which cafe one capias is fufficient.-And (b) F. Exig. 10. quare, If three capias's be not ftill neceffary in an appeal of B. Pro. 143, ape, as they were at the common law, notwithstanding it be made (c) felony by ftatute? F. Corone 173. Exigent 67. (c) Ch. 23. 1. 59, &c. (S. P. C. 67. Hale 194. F. Cor. 234. i H. 5.5. Finch 351. 22 Affize 97. Con. 8 H. 5. 6. 6 Mod. 85. Sect. 116. Secondly, That it feems to be (d) agreed, That one capias, before the award of the exigent, hath always been fufficient in an indictment or appeal of death, or high treafon; but that it seems (e) doubtful whether two capias's were not required by the common law, in all indictments and appeals of any other felony. However it is certain, That they are re-(e) F. Cor. 184. quired in all indictments of any other felony, by 25 Edw. 3. 234. c. 14. by which it is recorded, "That if after any man be indicted of felony before the juftices in their feffions, to hear and determine, it fhall be commanded to the fheriff to attach his body by writ or precept, which is called a capias; and if the sheriff return that the body is not found, another "fhall be incontinently made, returnable at three weeks after, "wherein it fhall be comprised, that the fheriff fhall caufe to "be feized his chattels, and fafely keep them till the day of "the writ or precept returned. And if the fheriff return, "That the body is not found, and the indictee cometh not, "the exigent thall be awarded, and the chattels fhall be for"feit, as the law of the crown ordaineth. But if he come and yield himself, or be taken by the fheriff, or by other minifter, (f)S. P. C. 67. "before the return of the fecond capias, then the goods and Summary 209. "chattels shall be faved."-It seems to have been the general (f) opinion, That this ftatute extends to appeals as well as indictments, though it mention only the latter; but that it extends not to any indictment or appeal of death, though it fpeak of felony in general. Sect. 117. Thirdly, (g) That after the fheriff hath returned a cepi, if he have not the body at the day, the court will not award an exigent on the fuggeftion of an efcape, unless the fheriff will return one. S. P. C. 70. F. Exig. 25. A prefentment is indictment, upon which procefs of outlawry lies. the fame as an 1 Leonard 100. (g) F. Exig. 3. 28.30. F. Pro. 226. H. 5. 6. 1 H. 5.6. Sec. 118. Fourthly, That if there be several appellees, some of which appear, and others makedefault, thofe who appear and plead a plea in abatement of the writ, or any fuch plea in bar as goes to the whole, the fuit (b) fhall be continued against thofe who make default by capias only, and no exigent fhall iffue till fuch a plea (5) Sum, 210. or pleas fhall be determined. Sect. 119. Fifthly, That an exigent fhall (i) never be (1) F. Exig. 16. awarded to the sheriff of any other county than that wherein Default 10. 97. the offence is laid; and that by the (k) common law there 22 E. 3. 11. 30 H. 6, 20 11 H, 4, 72, (4) F. Process 4. 34. See Preamble 6 H, 6, ¤, 1, and 8 H, 6. c. 10. was (a) Vide F. Pro. 164. How writs of Hale 195. was no (a) neceffity of a capias to the fheriff of any other county. But the law relating to this matter, having been altered by feveral ftatutes, I hall fet forth thofe ftatutes in particular, and endeavour to fhew how they are to be understood. ་ Sect. 120. And firft it is enacted by 6 Hen. 6. c. r. "That before any exigent by awarded against persons indic66 ed in the king's bench of treafon or felony, writs of capias "fhall be directed as well to the sheriff or fheriffs of the coun"ty wherein they be indicted, as to the sheriff or sheriffs of the county whereof they be named in the indictments; the fame capias having the space of fix weeks at the leaft, or longer time, by the difcretion of the faid juftices, if the cafe require it, before the return of the fame; which writs fo returned, "the juftices fhall proceed in the manner as they had done be"fore the ftatute: And if any exigent be awarded or any out"lawry pronounced against such perfons before the return of "the faid writs, the fame exigent, fo awarded, with the out"lawry thereof pronounced, fhall be void, and holden for "none." ་་་་ Set, 121. And it is farther enacted by 8 Hen. 6. c.-10. "That upon every indictment or appeal, by the which any 66 fubject, dwelling in other counties than where fuch indict"ments or appeal shall be taken, of treason, felony, and tref país, before the juftices of peace, or before any other, bav❝ing power to take fuch indictments or appeals, or other "commiffioners or juftices, in any county, franchife, or "liberty of England, before any exigent awarded, presently "after the first writ of capias returned, another writ of capias "fhall be awarded, directed to the fheriff of the county, "whereof he, who is fo indicted, is or was fuppofed to be "converfant by the fame indictment, returnable before the "fame juftices, before whom he is indicted, or appealed, "at a certain day, containing the space of three months, from "the date of the faid laft writ, where the counties be holden "from month to month; and where the counties be holden: "from fix weeks to fix weeks, the space of four months, until "the day of the return of the faid writ; by which writ of "fecond capias, the fheriff fhall be commanded to take him: "which is fo indicted or appealed, by his body, if he can be "found within his bailiwick: And if he cannot be found "within his bailiwick, to make proclamation in two counties" before the return of the fame writ, that he which is fo ine: "dicted or appealed, fhall appear before the said juftices, &c. "at the day contained in the faid writ, to answer, &c. After which writ fo ferved and returned, if he which is fo "indicted or appealed, come not at the day of fuch writ re"turned, the exigent fhall be awarded, And that every "exigent and outlawry otherwife awarded or pronounced, fhall be holden for none, and void." Seat. |