(A) In what Cases Process of Outlawry lies.

case of the King v. Wilkes on a libel. But Lord Mansfield, in delivering the judgment of the Court of King's Bench, spoke at large to prove that such process lies against crimes universally. 4 Burr. 2537. However, the reasoning on which this opinion is grounded stands opposed by a former judgment of the Common Pleas on a prior case relative to the same offender. 2 Wils. 151. But it was adopted by both Houses of Parliament, when in Wilkes's case they resolved, that privilege of parliament doth not extend to libels. See Ann. Reg. 1764.]

In an assize capias pro fine lies, and upon that, process of outlawry, if the assize be found with force; but being a mixed action, as savouring of the realty, it is out of the statute of additions, 1 H. 5, c. 5, which extends only to personal actions, appeals, and (a) indictments.

2 Inst. 665; 6 Mod. 85. (a) But a presentment is the same with an indictment, on which process of outlawry lies. 2 Leon. 200.

So process of outlawry lies in replevin, and is given by the statute 25 Edw. 3, c. 17, which gives the capias in this manner: when on the pluries replegiari facias the sheriff returns averia elongata, then a capias in withernam issues, and on that being returned nulla bona, a capias issues, and so to outlawry; but it does not lie on the original writ of replevin, which is vicontiel and determined; and therefore as no addition is required in such original writ, so neither ought there to be any in the second writ; for where a writ of process is founded on a former it must pursue the former, and cannot vary from it.

6 Mod. 84; Salk. 5, Earl of Banbury v. Wood; 2 Ld. Raym. 987.

By the common law, in all actions of trespass quare vi et armis, and in which there is a fine to the king, a capias was the process; and herein process of outlawry lay by the common law.

35 H. 6, 6 b; 22 H. 6, 13; Rast. Ent. 293; 10 Co. 72; 2 Roll. Abr. 805.

But in account, debt, (b) detinue, annuity, covenant, and such actions as are grounded upon negligence or laches merely, no capias lay at common law, but only summons and distress infinite; and therefore, the capias and outlawry in these actions were introduced by divers acts of parliament.(c)

Co. Lit. 128 b; 3 Co. 12; 2 Bulst. 63; 2 Inst. 143; Cro. Ja. 222, 261; Yelv. 158; Raym. 128; Keb. 890, 908; Sid. 248, 258. (b) Whether process of outlawry lies in a writ of detinue of charters. Dyer, 223 a, dubitatur. [(c) This opinion, that the writ of capias did not lie at common law for debt and damages, is contradicted by the history of our legal process. For in the reign of Henry III., the process in all personal actions was as follows:-If the party did not appear upon the summons, he was attached by pledges; and afterwards by better pledges: if he still did not appear, the sheriff was commanded quod habeat corpus: if the sheriff returned non inventus, there issued a distringas per terras et catalla; after that, another distringas commanding him also to take the body; after that another distringas, ne manum apponat; and lastly, a writ to take the lands and chattels into the king's hands. Thus there might be one summons, two attachments, a capias (as it was afterwards called,) and four distresses. To this, it is added by Bracton, that should the defendant not be found, nor have any lands or goods, whether the action was for money or for a trespass, he was to be demanded from county to county, and outlawed: and persons so outlawed were condemned to perpetual imprisonment, or to abjure the realm. Bract. 440, 441; Reeves' Hist. of the Law, vol. i. 483, 484; vol. 2, 439.]

By the statute of Marlebridge, 52 Hen. 3, c. 23, the writ of monstravit de compoto was given, where before, the process in account was summons, attachment, and distress infinite; and by Westm. 2, 13 Edw. 1, stat. 1, c. 11, process of outlawry is given in account.

2 Inst. 145, 380; F. N. B. 259.

By the 25 Edw. 3, c. 17, it is accorded, that such process shall be made in a writ of debt and detinue of chattels, and taking of beasts, by writ of VOL. VII.-42

2E 2

(B) By what Jurisdiction such Processes are to issue.

capias, and by process of exigent, by the sheriff's return, as is used in a writ of account.

Co. 12; 2 Roll. Rep. 295; 2 Bulst. 63.

And by the 19 Hen. 7, c. 9, reciting, "That forasmuch as before this time there have been great delays in actions of the case that have been sued as well before the king in his bench, as in the court of his common bench, by reason of which delays many persons have been put from their remedy; it is therefore ordained, enacted, and established, that like process be had hereafter in actions upon the case as well sued and hanging, as to be sued in any of the said courts, as in actions of trespass or debt."

But it hath been adjudged, that process of outlawry lies in no case but where a capias lies; and that, therefore, where the proceeding is by bill and not by original, as there can be no capias, so there can be no process of outlawry, as in a bill of privilege by or against an attorney.

Leon. 329; 2 Roll. Abr. 76; Sid. 159; Keb. 577.

(B) By what Jurisdiction such Processes are to issue.

IT is clear that the courts at Westminster may issue process of outlawry, and that the Court of King's Bench, either upon an indictment originally taken there, or removed thither by certiorari, may issue process of capias and exigent into any county of England, upon a non est inventus returned by the sheriff of the county where the party is indicted, and a testatum that he is in some other county.

2 Hal. Hist. P. C. 198.

Justices of oyer and terminer may issue a capias or exigent, and so proceed to the outlawry of any person indicted before them, directed to the sheriff of the same county where they held their session at common law; and by the statute of 5 Edw. 3, c. 11, they may issue process of capias and exigent to all the counties of England, against persons indicted or outlawed of felony before them.

2 Hal. Hist. P. C. 31, 199.

But justices of jail delivery (a) regularly cannot issue a capias or exigent; because their commission is to deliver the jail de prisonibus in ea existentibus, so that those whom they have to do with are always intended in custody already.

2 Hal. Hist. P. C. 199. (a) But now they have commissions of oyer and terminer, and other commissions, &c., giving them full power in all cases.

Justices of the peace may make out process of outlawry upon (b) indictments taken before themselves, or upon indictments taken before the sheriff, and returned to the justices of the peace, by the statute of 1 Edw. 4, c. 1; but the power of the sheriff, to make any process upon indictments taken before him, is taken away by that statute.

2 Hal. Hist. P. C. 199. (b) Justices of assize, justices of nisi prius, justices of oyer and terminer, and justices of jail delivery, and also justices of the peace in their session, may proceed to outlawry in cases of indictments found before them, and that by the common law; and in cases of popular actions may proceed to outlawry by the statute of 21 Jac. 1, c. 4; 2 Hal. Hist. P. C. 52.-But they cannot issue a capias utlagatum, but must return the record of the outlawry into the King's Bench, and there process of capias utlagatum shall issue. Dalt. 406; 2 Hal. Hist. P. C. 52.

(C) Against whom Process of Outlawry may be awarded.

It is made a quære by Hale, whether a coroner can by law make out a process of outlawry against a man indicted by inquisition before him.

2 Hal. Hist. P. C. 199. Per Hawkins, a coroner may award process until the exigent on a bill of appeal before him; and that by the better opinion, such process shall be awarded by him only, and not by him and the sheriff jointly, and that he may proceed thereon to outlawry; but that since Magna Charta, c. 17, by which it is enacted, That no sheriff, constable, coroner, or other bailiff of the king, shall hold pleas of the crown, he cannot proceed to the trial of the appellee. 2 Hawk. P. C. c. 9, § 41, and several

authorities there cited.

It hath been held, that though the process in inferior courts be a capias, that yet they cannot proceed to outlaw the person.

Yelv. 158; Cro. Ja. 222, 261; Raym. 128; Sid. 248, 259; Keb. 890, 908.

The process to the outlawry, viz. the capias and exigent, must be in the king's name, and under the judicial seal of the king appointed to that court that issues the proofs, and with the (a) teste of the chief justice or chief judge of that court of sessions.

2 Hal. Hist. P. C. 199. (a) Where the capias was este Edmundo Anderson, without a T, for this error the outlawry was reversed; for the teste is the warrant of the writ, as it is of all judicial writs. Cro. Eliz. 592, Gronby v. Ischam.

(C) Against whom Process of Outlawry may be awarded: And herein,

1. Whether it may be awarded against a Peer.

Ir a nobleman, or peer of the realm, be indicted and cannot be found, process of outlawry shall be awarded against him, and he shall be outlawed per judicium coronatorum.

2 Inst. 49; 3 Inst. 31; Staunf. 130; 2 Hawk. P. C. c. 44, § 16.

But in civil actions between party and party, regularly, a capias or exigent lies not against a lord of parliament of England, whether secular or (b) ecclesiastical; yet, in case of an indictment for treason or felony, yea, but for a trespass vi et armis, as, an assault or riot, process of outlawry shall issue against a peer of the realm; for the suit is for the king, and the offence is a contempt against him: and therefore, if a rescue be returned against a peer, or, if a peer be convict of a disseisin with force, or deny his deed, and it be found against him, a capias pro fine and exigent shall issue, for the king is to have a fine and the same reason holds upon an indictment of trespass or riot, and much more in the case of felony.

2 Hal. Hist. P. C. 199, 200; Cro. Eliz. 170, 503; 5 Co. 54; Roll. Abr. 220. (b) That an abbot or prior ought not to be outlawed. 3 E. 3, 2 Roll. Abr. 805.

2. Whether Process of Outlawry may be awarded against an Infant.

An infant above the age of fourteen may be outlawed, and the outlawry is not erroneous; but an infant under the age of fourteen cannot be outlawed, for if he be, it is erroneous.

3 H. 5; Utlag. 11; Fitz. tit. Outlawry, 11; 2 Roll. Abr. 805; Dyer, 104; 2 Hal. Hist. P. C. 207, 208. But, according to Bracton, twelve is the age at which a person could be outlawed; for every male at that age either was, or ought to be, enrolled in some decenna or manupastus; and as he was then infra legem, he was then capable of being declared ex lex. Bracton, 125; Co. Lit. 128 a.||

But the outlawry of such infant is not void, it being of record, but voidable only by writ of error.

Dyer, 239 a; 2 Roll. Abr. 805.

(C) Against whom Process of Outlawry may be awarded.

3. Of awarding Process of Outlawry against a Feme Sole or Covert, and the Proceedings thereon.

A woman is said to be waived, and not outlawed; and the reason, says my Lord Coke, why the outlawry of a woman is legally called waiviaria mulieris is, because women are not sworn in leets or torns, as men are, who are above the age of twelve; and therefore, says he, men are called utlagati, i. e. extra legem positi; but women are waiviatæ, i. e. derelicta, left out or not regarded, because they are not sworn to the law.

Co. Lit. 122 b; Lit. § 186; Bract. 125.]}

Therefore, where a capias and exigent were awarded against three men and two women, and the return was utlagati existunt, where, as to the women, it ought to have been waiviata existunt, this was held to be error.

Cro. Ja. 358, Middleton's case; Roll. Rep. 407, S. P.; Roll. Abr. 804, S. P.

If, in an action against husband and wife, the husband is outlawed and wife waived, and she is taken upon the capias utlagati, though she is to be discharged of the imprisonment, (because the plaintiff cannot proceed against her alone,) yet she still remains waived, and when her husband is taken he must bring her in.

For this, vide Dyer, 271 b; Cro. Ja. 445; Cro. Eliz. 370; Hut. 86; Sid. 21.

In an action for a debt due by a wife before marriage, the husband was returned outlawed and the wife waived; but before the return of the exigent, an attorney procured for the wife a supersedeas, surmising, that the wife had appeared by him as her attorney; on motion that this appearance of the wife should be received, all the court conceived, that if upon the exigent the sheriff had returned reddidit se, or upon pluries capais had returned cepi corpus for the wife, then her appearance should be entered, but not by attorney, as it is here; and the exigent should only issue against the husband, et idem dies should be given to the wife. But, when the husband upon the exigent is returned outlawed, then it shall be entered aler sans jour for the wife, for the process is determined; and if he will purchase his pardon he shall not have any allowance thereupon in a scire facias, unless he appear for himself and his wife. But if for the husband the sheriff should return cepi corpus upon a pluries capias, and a non est inventa for the wife, yet an exigent shall issue against both, because it must be presumed the husband might bring in his wife; but if upon the exigent the sheriff returned reddidit se for the husband, and for the wife that she is waived, the husband shall go sine die; but in this case, because the exigent was returned against both to be outlawed, the supersedeas supposing the appearance of the wife is merely idle and void; whereupon it was disallowed, and the exigent appointed to be filed against both.

Cro. Car. 58, 59, Smith v. Ash et ux.; Hut. 86, S. C.

4. Of awarding Process of Outlawry against several Defendants, and the Proceedings thereon.

If two are sued in a joint action and neither of them will appear, process of outlawry must be taken out against both.

Cro. Eliz. 648, Beverley v. Beverley.

If an exigent is awarded against two, and the return is primo exacti fuerunt et non comparuerunt, without saying nec eorum aliquis comparuit, it is

erroneous.

2 Roll. Abr. 802; Taverner's case, 2 Hal. Hist. P. C. 204; S. C. cited, and S. P.

(C) Against whom Process of Outlawry may be awarded.

said to have been often adjudged. Cro. Ja. 358, S. P. adjudged, and said to be manifest error. 3 Mod. 89, 90, S. P. adjudged; Roll. R. 406; Palm. 388, S. P. adjudged.

If two in a writ of account are adjudged to account, and one is after (a) outlawed in the suit, and the other appears, he shall account alone.

41 E. 3, 3 Roll. Abr. 127, S. C.; Brownl. 25, S. C. said. (a) But if sued by bill upon which no outlawry can be, what proceeding shall be, quære; and vide Sid. 159; Keb. 577. [In such case the plaintiff must discontinue, and take out an original, on which he will proceed to outlawry against the one, after which he may go on in the action against the other. Edwards v. Carter, 1 Stra. 473; Symonds v. Parminter, 2 Stra. 1269; 1 Wils. 78; 1 Bl. R. 20. In an action upon a contract, if the defendant plead that the promise was made by another jointly with him, the plaintiff cannot reply that such other person is out of the kingdom, and that it is not possible to summon or attach him, but must proceed to outlawry. Sheppard v. Baillie, 6 Term R. 327;] ||Goldsmith v. Levy, 4 Taunt. 299.||

When two are adjudged to account, and one is outlawed and accounts, if he discharges himself upon the account, this shall be a discharge to the other when he sues a scire facias upon a charter of pardon; and if he be charged by the account, this shall be a charge upon the other, because they are judged to account jointly.

41 E. 3, 13 b; Roll. Abr. 127; and vide Moor, 188; 2 Leon. 76.

If in debt due upon an obligation against B and C, sons and heirs of the obligor, and against D the daughter and heir of A, who was another of the sons and heirs of the obligor in gavelkind, process is continued till the uncles are outlawed, and the niece waived; and after the uncles are pardoned, and bring a scire facias against the plaintiff, who thereupon declares against them simul cum the niece; and the uncles plead, their niece is but of the age of seven, unde non intendunt quod durante minori ætate sua they ought to answer, &c., yet the parol shall not demur; for the niece is out of court, and quoad her the original is determined, and at her full age no resummons could be sued against her, but the uncles only, because she never appeared in court.

Dyer, 239, pl. 203; Hawtrey v. Anger, N. Bendl. 148, pl. 205; Moor, 74, pl. 203; and And. 10, S. C. adjudged.

An action of trespass was brought against two; one was outlawed; after the entry of the writ it was entered, et sciendum est quoad prædict. J S (one of the defendants) utlagat. est, and then counts against one of them; on motion. in arrest of judgment, the court held the declaration naught, and the course of pleading in such cases, after the entry of the writ, was to say et quod prædict. J S utlagat. est in breve illo; and that the last words are essential, because that he might be outlawed in another writ, and not in this.(b)

Sid. 175; Keb. 642, S. C. Guy v. Barnard. (b) The same point was determined on demurrer in Sanderson v. Hudson, 3 East, 144; but see Co. Lit. 128 b, 352 b. If the outlawry is alleged to be in that suit, it is not necessary to add a prout patet per recordum. Macmichael v. Johnson, 7 East, 50. But the process against each defendant must be connected with the same original, otherwise the court will set aside the declaration for irregularity. Haigh v. Conway, 15 East, 1; sed vide Gent v. Abbott, 2 Moo. R. 87. The court will not set aside the declaration at the instance of the defendant, who is in court, on the ground of irregularity in the outlawry of the other defendant, who is not before the court. Solly v. Forbes, 2 Moo. 90. In an action on a joint contract against three defendants, two of whom are outlawed, the third, who pleads the general issue, may take advantage of a misnomer of his companions in stating the contract; for the contract remains joint, notwithstanding the outlawry, and it is a variance in description. Gordon v. Austin, 4 Term R. 611. Where one defendant is outlawed, and the other dies before final judgment, the action survives against the outlaw, and the plaintiff cannot have a scire facias against the representative of the deceased defendant. Fort v. Oliver, 1 Maul. & S. 217.||