1. In what cases. CHAPTER XL. OUTLAWRY. 2. How to obtain outlawry. 3. Capias utlagatum. 1. In what cases.]-Where a party wilfully avoids the execution of the process of the court, he may be outlawed, i. e. put beyond the protection of the law.() He thereby forfeits to the Crown all his personal estate and real chattels on office found.(2) He cannot sue in his own right or otherwise appear in, or make any application to the court, except to reverse his outlawry.(3) But he may protect himself from being wrongfully charged in execution ;() or he may protect himself as a witness;(5) or he may sue or be sued en autre droit;() or he may apply for his discharge in the Insolvent Debtors Court. (7) And generally he may protect himself against any wrongful proceeding, () as to set aside a judgment on a void warrant of attorney.(9) (1) Com. Dig. Ulagary B. 2 Will. 4, c. 39, ss. 5, 6. (2) R. v. Cooke, 1 M Cl. & Y. 196; 2 Roll. Abr. 806 1., 40; Com. Dig. Utlag. D.; Macrae v. Hyndman, 1 Rob. 571; Doe Griffith v. Prichard, 5 B. & Ad. 765. (3) Aldridge v. Buller, 2 M. & W. 412; 5 Dowl. 733; R. v. Lowe, 8 Exch. 697; Re Ford, 1 B. C. Rep. 88; Re Mander, 6. Q. B. 867. Adcock v. Fiske, 8 Sc. 138; 8 Dowl. 66. (3) Co, Litt. 6 b. Walfred v. Eversham, 8 Moore, 431; Brook v Phillips, Cro. Eliz. 684. (1) R. v. Insolvent Court, 3 N. & P. 543. Aldridge v. Buller, 2 M. & W. 412; Walker v. Thelluson, 1 Dowl. N. S. 578; Re Pyne, 5 C. B. 407. A defendant who wilfully avoided service of a writ of summons might formerly be proceeded against by writ of distringas and thereafter to outlawry, but that writ is now abolished, (1) and outlawry can only proceed on final process. It is competent only where a capias would lie before 2 Will. 4, c. 39; and cannot proceed against a peer or member of Parliament.(2) In general, any male above twelve may be outlawed, (3) and a female of any age may be outlawed or waived.(4) If, however, the party went abroad before the exigi facias was awarded, though he may have gone abroad to avoid his creditors, (5) the outlawry, though not liable to be set aside on motion for irregularity, may be reversed on error brought.(6) So, a defendant cannot be outlawed, unless he wilfully avoid process, and it cannot be executed upon him.(7) Yet he cannot set aside the outlawry, on an affidavit that he might easily have been found. () Proceedings in error, being a supersedeas of execution, prevent the defendant being outlawed, unless the grounds of error are frivolous.("') 2. How to obtain outlawry.]—The first step is to sue out a ca. sa. directed to the sheriff of the county of the venue. The writ is tested during term, (10) and "must be made returnable on a day certain in term, and may be so returnable on any day in term; and it shall be sufficient that there be eight days between the teste and return."(1) The writ being returned, a writ of exigi facias is then sued out, which must be tested on the fourth day after the return of the ca. sa., and in term time.(12) There (1) C. L. P. Act, 1852, s. 24. (2) Cassidy v. Stewart, 2 M. & Gr. 437; 9 Dowl. 366. (3) Co. Litt. 128 a. (4) Ibid. 122 b. Waiver is the proper term applicable to a female, Burnett v. Phillips, 2 L. M. P. 444. (5) Bryan v. Wagstaff, 5 B. & Cr. 314; Porter v. O'Meara, 7 Dowl. 657, 725; Levi v. Claggett, 1 M. & W. 547; 5 Dowl. 322; Beauclerk v. Hook, 20 L. J. 485, Q. B. (6) North v. Chambers, Barnes, 319. (7) Pigou v. Drummond, 1 Bing. N. C. 354; Hunter v. Whitfield, 3 Bing. N. C. 878. (8) Johnson v. Driver, 1 Dowl. 127; James v. Jenkins, 9 Moore, 589; Biscoe v. Kennedy, 2 Wils. 127. (9) See ante, p. 530. (10) Braham v. Hunter, 6 D. & L. 120. (1) Rule Pr. 74, H. T. 1853. (12) See Braham v. Hunter, 6 D. & L. 129; Cox v. Beavan, 8 C. B. 334. must be fifteen days at least between the teste and the return,(1) and the writ must be returned on a day certain, being either the third day inclusive before the commencement of term, or between that and the third day exclusive before the last day of term, and it cannot be returned after the second term from that in which it was tested. (2) The writ does not require to be dated on the day it is issued, nor to be indorsed with the attorney's name and abode, pursuant to 2 Will. 4, c. 39, s. 12.(3) Form of Writ of Exigi Facias. VICTORIA, &c., to the sheriff of , greeting. We command you that you cause the said C. D. to be demanded from county court to county court or in London, from husting to husting], until, according to the law and custom of England, he be outlawed if he do not appear, and if he do appear then that you take him and cause him to be safely kept, so that you may have his body before us [or in C. P. our justices, or in Exch. before the barons of our Exchequer] at Westminster, on to satisfy the said A. B. £ which the said A. B. lately in our court of recovered against the said C. D., whereof the said C. D. is convicted, together with interest upon the said sum, at the rate of four pounds per centum per annum, from the day of on which day the judgment aforesaid was entered up, and whereupon you returned to at Westminster, that the said C. D. was not found in your bailiwick; and how you shall have executed this our writ make appear to us [or our justices, or the barons of our Exchequer] at Westminster, on the aforesaid, and have you then this writ. Witness, John Lord Campbell, at Westminster, the on of A. D. day of A.D. day The writ of exigi facias is taken to the sheriff's office, with instructions to be executed, which execution consists in the sheriff calling on the defendant, or exacting him to appear at five consecutive () county courts, or, in London, at five consecutive hustings; and the writ must be in the sheriff's possession at the time of execution. (5) If, however, five such courts have not been held between the teste and return, then another writ, called an "allocatur exigent," must be sued out, so as to allow of the full number of five (1) Ibid.; Shirley v. Wright, 2 Lord Raym. 775. See Braham v. Hunter, 6 D. & L. 129. (3) Lewis v. Davison, 3 Dowl. 272; 4 M. & P. 523. The courts must be consecutive, see Stowell v. Lord Zouch, 1 Plowd. 371. () Nolet v. Waters, 3 D. & R. 55. being made up. The latter writ is tested on the return day of the exigi facias.(') When the exigi facias is executed, the sheriff returns the writ, stating that the defendant failed to appear to the five exactions, along with the judgment of outlawry signed by the coroner, and, in London, by the recorder.(2) The outlawry is then entered on the outlawry roll, when it is complete.(*) 3. Capias utlagatum.]-The outlaw may then be taken on a writ of capias utlagatum, which issues against his person, and is stamped by the officer on the exigent and return being taken to him. The writ resembles a ca. sa., and commands the sheriff to take the defendant and have him before the court on a certain day in term. The writ issues into any county.(*) Parties are privileged from the arrest as in other cases. (3) A party may be relieved by the Insolvent Debtors Court from the debt on which the outlawry is founded, (*) though, it seems, the Superior Court has no power to reverse the outlawry.() A bankrupt cannot be arrested in coming to surrender, or during his examination.(") If the defendant, when arrested, do not apply to the Insolvent Court, he must remain in prison until he reverses his outlawry.(') Special capias utlagatum.]—Where the capias utlagatum is intended not only to take the defendant's person but also his goods, it is called a special capias, and the sheriff summons a jury and holds an inquisition to inquire into the defendant's real and personal estate, and appraises the same, and thereafter returns the writ annexing the inquisition. The inquisition may be quashed if the return is bad, as for not setting out the names of the parties in whose possession the land is.(19) If property of the defendant is found, a transcript of the writ and return is obtained from the sheriff and taken to the (1) Cox v. Beavan, 8 C. B. 336. (2) See R. v. Almon, 4 T. R. 202, 521; Reynolds v. Adams, 3 T. R. 578 M Taggart v. Wedderburn, 2 D. & L. 576. (3) See Attorney-General v. Richards, 9 Jur. 634. (4) Anon. 1 Vent. 39; Gilb. C. B. 17. (5) Sheriff of Kent's case, 2 C. & K. 197; Bonner v. Stokeley, Cre. Eliz. 652; Wolf v. Denison, 1 Salk. 319. (6) R. v. Insolvent Court, 3 N. & P. 543. (7) Dicson v. Baker, 1 A. & E. 853; 3 N. & M. 775. (*) 12 & 13 Vict. c. 106, s. 112. (9) R. v. Wilkes, 4 Burr. 2542, 2549. (10) Englar v. Annesley, 1 Dowl. N. S. 186. revenue side of the Exchequer, when the officer will give out a rule calling upon persons to come in and claim the property, at the expiration of which, and no other claim being made, he will give out, according to the circumstances, a venditioni exponas, commanding the sheriff to sell the goods, or a levari facias, to levy the issues and profits of the freehold land, or a scire facias, to recover debts due to the defendant, or a writ of sequestration. (') If the amount of the proceeds does not exceed 50l., the plaintiff moves the Court of Exchequer that it be paid over to him; and when the order is drawn up, the officer gives out a subpoena, calling on the sheriff to pay the money, which is done accordingly on the sheriff being served therewith. If the proceeds exceed 501., a petition must be presented to the Lords of the Treasury, praying that the money be paid, or if there is not sufficient money, that a lease be granted of the defendant's freehold lands, and the matter is then referred to the Solicitor of the Treasury, who, upon a certificate of the proceedings in outlawry, an affidavit of the debt sworn before a judge at chambers, the attorney's bill of costs, and the writ of venditioni exponas and return being laid before him, will make his report. This report is filed with the clerk of the Treasury, and who thereupon issues a warrant to the Attorney-General to consent to an order to pay the money. A motion is then made in the Exchequer for the order(2) and subpana, which being served on the sheriff, the money is paid.(*) 4. Reversing outlawry.]-The only mode of getting rid of the outlawry is to obtain the Queen's pardon or to reverse the outlawry. The outlawry is reversed either by writ of error or application to the court or a judge at chambers, the former being a matter of right in the outlaw, the latter discretionary in the court. By writ of error.]-The outlaw may, as a matter of right,() reverse the outlawry by suing out a writ of error, (1) R. v. Hind, 1 Dowl. 286; 1 Cr. & J. 389; R. v. Armstrong, 3 Dowl. 760; 2 C. M. & R. 205. See R. v. Powell, 1 M. & W. 321. (2) Up to the making of the order the money is not appropriated, and the court may stay the making of the order for good cause, as where the fact of the defendant's death was disputed, R. v. Buchanan, 1 Cr. & M. 195. (3) For the forms applicable in the above proceeding, see Tidd's Forms and Chitty's Forms. (4) Matthews v. Gibson, 8 East, 527. See where a judgment of outlawry was reversed 116 years afterwards, Tynte v. R., 7 Q. B. 216. |