1839. HARVEY v. O'MEARA. in support of this application. The marginal note of the case was "the 3rd section of the 1 & 2 Vict. c. 110, which enables a judge to order the arrest of a party, applies to every case of absence from England, which will delay the plaintiff in obtaining execution in the ordinary course." The facts of the case were, that the defendant had been an officer in the Scots Fusileer Guards, and had sold out. He then bought into the twenty-second regiment, which was in Ireland. He had obtained leave of absence, on account of ill health, to come to this country, and was about to return when his health would permit. A judge's order was obtained for his arrest. An application was afterwards made to the Court of Exchequer to rescind this order. Mr. Baron Alderson then observed, "I have corresponded with my brother Littledale in vacation, and we have come to the conclusion that, inasmuch as the plaintiff is deprived of his remedy in the first instance, if the judge has reason to believe that the defendant's absence from England would prevent the plaintiff from having execution of the body at the proper time, that is a ground for ordering his arrest. But let us look at the practice which existed before the recent statute. In cases in which a party could not be held to bail by a mere affidavit, it was usual to subject him to arrest at the discretion of a judge, in order that he might be forthcoming to be taken in execution. That is the meaning of the present enactment. If it meant more, the statute would have taken away arrest altogether, and have left only mesne process. The 3rd section clearly means to give the plaintiff in the first instance that which he would be ultimately entitled to." According to the principle laid down in this case, if the facts stated on these affidavits were disclosed at Chambers, there would clearly be enough to induce a judge to grant an order for the defendant's arrest. Could there be any doubt that a judge would have any reason to "believe that the defendant's absence from England would prevent the plaintiff from having execution of the body at the proper time?" Could there be any doubt that he would leave the country as soon as he was set at liberty? It was here sworn, that it was believed the defendant left the country for the express purpose of avoiding process in respect of this very debt. No other debt was shewn to exist, or other cause for his absence. He then remained abroad for seven years, except when he returned for one or two days at a time. clandestinely. One affidavit shewed that Mrs. O'Meara had told the plaintiff that the defendant was stopping away" principally" on accout of this debt. It was also sworn, that when he came to England and was taken into custody, he said to the officer, that if he could not arrange this debt, he should be obliged to take the benefit of the Insolvent Act. It was also sworn to be believed that the defendant was about to quit the country if discharged. The defendant in his affidavit did not swear that he had taken any house for the purpose of remaining in England, but only spoke of his intention to take a house in Berkeley Street. It was impossible to conceive a stronger state of facts to induce a judge to believe, that unless the plaintiff was allowed to arrest the defendant, the latter would quit England. Under these circumstances, the Court would be of opinion that the defendant should be required to give bail either pursuant to the statute of 31 Elizabeth, c. 3, s. 3, to pay the condemnation money, or in the ordinary form of bail to the action." Wightman, in support of the rule, contended, that as this was a common law error, on which the application was founded, the defendant was entitled ex debito justitiæ, to his writ of error coram nobis, for the reversal of his outlawry. Even if the defendant had gone abroad to avoid process, he would be equally entitled to his writ. In Hesse v. Wood, (a) the marginal note was "error in fact assigned (a) 4 Taunt. 690. 1839. HARVEY v. O'MEARA. 1839. HARVEY v. O'MEABA. to reverse an outlawry, that the defendant was beyond seas, is not answered by shewing that he went beyond seas to avoid the plaintiff's process. The Court will reverse an outlawry for a common law error, on motion, upon the same terms to which the defendant would have been entitled if he had sued out his writ of error. The bail to be put in by the defendant upon reversing an outlawry is bail in the original suit, and the recognizance is in the alternative, to pay the condemnation money, or render the defendant." There, the distinction is clearly made, that if the defendant has a right to have the outlawry reversed, it may be reversed without any terms being imposed upon him beyond putting in bail to the action. If he is not entitled to have it reversed, he may be subjected to such terms as the Court shall think it right to impose. If he sued out his writ of error on a common law objection, he might have the outlawry reversed on merely putting in bail to the action. If he applied on motion to reverse the outlawry, he must submit to such terms as the Court might think it right to impose. Since the passing of the 1 & 2 Vict., c. 110, the Court would hardly make putting in special bail a condition precedent to the reversal of the outlawry. The plaintiff would, if he commenced his action now, not be entitled to hold the defendant to special bail, unless an affidavit could be produced before a judge to make him believe that the defendant was about to quit England. The case of Bateman v. Dunn, (a) decided that where it is sought to arrest or detain a defendant under the provisions the 3rd section of the statute, the affidavit on which the application is made, must state the belief of the deponent, that the defendant is "about to quit England, unless he be forthwith apprehended," and must also set forth the circumstances upon which the belief is founded. Here, however, no such circumstances were set forth, as would justify such a belief on the part of any of the deponents, and mere "belief" would not be sufficient. Any person (a) Ante, p. 105. might make such an affidavit as that which merely expressed the defendant's "belief," without any risk for an indictment for perjury. It must appear on the affidavits that the defendant was about to leave the country; but surely an intention to take the benefit of the insolvent act, did not constitute an intention to go out of the country. If the defendant was detained on an order made under this act, he would be immediately discharged on application to a judge, or the Court under sect. 6 of the act. Then with respect to the proceedings themselves to outlawry, there were various objections which might be taken to them; but the ground of the defendant being out of the country at the time of the outlawry being commenced and terminated, was sufficient to entitle the defendant to reverse the judgment. The terms on which the reversal ought to take place were merely payment of costs. Cur. adv. vult. Coleridge, J.-This was a motion to set aside an outlawry, and the question discussed was, upon what terms it was to be done? the defendant contending that he was entitled to it ex debito justitiæ, upon entering a common appearance, the plaintiff insisting, first, that I ought to impose upon the terms of finding bail absolutely to pay the condemnation money; or, secondly, in the alternative at least; and lastly, insisting, that if I thought the reversal must be made on the terms stated by the defendant, still I ought to consider this as an original application on the part of the plaintiff, under the 7th & 3rd sects. of 1 & 2 Vict. c. 110, and order the detainer of the defendant, unless he should find special bail. I think there is no foundation for this last point, and I will dispose of it first. It has not been objected, in the argument, that I have no power to make this order, sitting here in Court; but I may observe, that the power to arrest or detain, appears by the statute, to be specifically given to a judge only, and 1839. HARVEY v. O'MEARA 1839. HARVEY v. O'Meara. not to the Court. This, however, would only drive the It |