not a month between the third proclamation and the quinto exactus, as above mentioned, the outlawry will be void, and the court will set it aside. Taylor v. Waters, 2 B. & C. 353, and see Volet v. Waters, 3 D. & R. 55. Lewis v. Davison, 3 Dowl. 272. Sheriff's return.] Upon the writ of exigent and proclamation being returnable, the sheriff upon application will return the exigent, see R. v. Almon, 5 T. R. 202, together with the judgment of outlawry, and will also return the writ of proclamations. Take the latter writ and return, and file them with the proper officer; and take the exigent and return to the clerk appointed by the master for the purpose of outlawries, see Reynolds v. Adams, 3 T. R. 578, and he will thereupon make out the writ of capias utlagatum. At any time before the return of the exigent, however, the defendant may enter an appearance with the clerk of the outlawries, and he will give him a supersedeas to the sheriff, who will thereupon cease to proceed to outlawry. Capias utlagatum.] Upon leaving the exigent and return, and judgment of outlawry, with the clerk of the outlawries, he will make out the capias utlagatum for you. This writ is either general or special. The general writ is against the person only, the special writ against both the person and property of the defendant. As to the issuing of a capias utlagatum after the death of the plaintiff. See Rees v. Longwell, 8 Law J. 128, qb. Upon the party being taken on the capias utlagatum, the sheriff will discharge him upon an attorney's undertaking to appear for him and reverse the outlawry. 4 & 5 W. & M. c. 18, s. 4. And this undertaking may be given either before or after the return of the writ. Id. s. 5. Where a prisoner was discharged under the Insolvent Debtors' Act as to a debt with respect to which a capias utlagatum had been sued out, the court refused to allow him to be charged in custody upon the latter writ, although the outlawry had been completed before he had rendered to prison. Adcock v. Fiske, 9 Law, J. 17, cp. Where the plaintiff caused the defendant to be arrested on an attachment out of Chancery, and then lodged a capias utlagatum against him with the sheriff in whose custody he was: the attachment being afterwards set aside for irregularity, and the defendant discharged as to that, the court of common law ordered him to be discharged also as to the capias utlagatum. Hall v. Hawkins, 4 Mees. & W. 590. If the defendant be taken upon a special capias utlagatum, he is discharged in like manner; but if he be not taken, or if when taken he do not give the undertaking above mentioned, the sheriff then proceeds to execute the other part of the writ, to enquire by inquisition as to the party's lands and goods within his bailiwick, and to extend and appraise the same; he then seizes them for the crown, and returns the special capias utlagatum accordingly. See the form of the inquisition in the Appendix. Get the writ, return and inquisition from the sheriff, and take them to the clerk of the outlawries, who will thereupon make a transcript of them for the court of Exchequer, and then they must be filed with the proper officer. Reynolds v. Adams, 3 T. R. 578. The court of Exchequer will then, upon the application of the creditor, award a venditioni exponas to sell the outlaw's goods, a levari facias to collect the issues and profits of his lands, and a scire facias to collect the debts due to him. See Grant v. Bryant, 6 M. & S. 347. Out of the produce of these, the creditor may obtain payment of his debt and costs: by motion in the Exchequer, if the amount do not exceed 50l., and the court will thereupon order the sheriff to pay it; see R. v. Buchanan, 1 Cr. & M. 195. Re Manners, 8 Law, J. 256, ex. 5 Mees. & W. 278; or if it exceed 501., then by petition to the treasury. Where, upon a special capias utlagatum against a beneficed clergyman, the sheriff returned that the defendant had no lay fee, but that he was rector of a rectory: the court of Exchequer upon application awarded a writ of sequestration to the bishop. R. v. Hurd, 1 Cromp. & J. 389, Tyr. 347. S. C. nom. R. v. Hind, 1 Dowl. 286. S. P. R. v. Armstrong, 2 Cr. M. & R. 205. And see R. v. Powell, 1 Mees. & W. 321. 2. Outlawry upon Final Process. Upon non est inventus being returned to a ca. sa. (having fifteen days between the teste and return, 13 C. 2, st. 2, c. 2, 8.6,) you may proceed to outlawry against the party, by suing out a writ of exigent, as directed ante, p. 120; a writ of proclamation is not necessary. If the defendant be arrested on the capias utlagatum, however, he cannot be discharged upon giving an undertaking, as in the case of outlawry upon mesne process, but he must remain in custody until he reverse the outlawry. It may be necessary to mention, that the court will not allow a party to sue out a ca. sa. against a peer or member of parliament, for the purpose of proceeding to outlawry upon it. Cassidy v. Stewart, 10 Law J. 57, cp. 3. Reversal of Outlawry. Upon motion.] It is entirely in the discretion of the court whether they will reverse an outlawry upon motion, or not. They will in general do so, for the same errors in fact as would enable the party to reverse it by writ of error, Beauchamp v. Tomkins, 3 Taunt. 141. Hesse v. Wood, Id. 691, if he will submit to such equitable terms as they may impose. If the defendant were beyond seas at the time of the awarding of the exigent, and did not go abroad for the purpose of avoiding the process, the court will reverse the outlawry on motion. Graham v. Henry, 1 B. & A. 131. Levy v. Claggett, 1 Mees. & W. 547. Hunter v. Whitfield, 3 Bing. N. C. 878. Porter v. O'Meara, 5 Id. 626. But they have refused to reverse it, merely on the ground that he had constantly appeared in public, during the proceedings against him, and there could have been no difficulty in finding him; Johnson v. Driver, 1 Dowl. 127; or that the defendant has been discharged as to the debt by the insolvent court. Dickson v. Baker, 3 Nev. & M. 775, but see Nicholson v. Nichols, 3 Dowl. 326. Dixon v. Baker, 2 Dowl. 517. Adcock v. Fiske, 9 Law, J. 17, cp., ante, p. 122, semb. cont. Nor will they reverse it, upon the motion of any third party, in any collateral proceedings. Symonds v. Parminter, 1 W. Bl. 20. Nor will they reverse it even upon the defendant's own motion, unless he will submit to such terms as they impose upon him; Solly v. Forbes, 8 Taunt. 516. and see Summervil v. Watkins, 14 East, 536; except where it appears that the plaintiff's proceeding to outlawry was, under the circumstances, an abuse of the process of the court, in which case the court will reverse the outlawry without any terms, and even make the plaintiff pay the costs. Pigou v. Drummond, 1 Bing. N. C. 354, and see 2 Salk. 495. The usual terms imposed are, in the case of outlawry upon mesne process, payment of costs; Graham v. Grill, 1 M. & S. 409, and see Bank of England v. Reid, 7 Mees. & W. 159, 10 Law J. 62, ex.; in the case of outlawry upon final process, payment of the debt and costs, the costs of the outlawry, &c. See Ibbotson, et. al. v. Fenton, 6 Ad. & El. 772. The motion must be made promptly after the party is first apprized of the proceeding to outlawry; otherwise the court will not relieve him on motion. Anderson v. Earl Sterling, 2 Dowl. 267. and see Lewis v. Davison, 3 Dowl. 272. And it must appear from the affidavits that it is made at the instance and by the authority of the party outlawed. Houlditch v. Swinfen, 2 Bing. N. C. 712, 5 Dowl. 36. Plunkett v. Buchanan, 3 B. & C. 736. By writ of error.] The party outlawed may proceed to reverse the outlawry by writ of error coram nobis or coram vobis, either for error appearing on the face of the proceedings, or for error in fact, such as the fact of the party being beyond sea at the time of awarding the exigent, See Richardson v. Robinson, 5 Taunt. 309. Serocold v. Hampsey, 12 East, 625, n. Bryant v. Wagstaffe, 5 B. & C. 314, 8 D. & R. 208. Hesse v. Wood, 4 Taunt. 691, or the like. Bail is required where the want of proclamation is to be assigned for error; in which case the recognizance must be to pay, and not merely to pay or render. 31 El. c. 3, s. 3. This mode of reversing an outlawry, by writ of error, however, is never resorted to in practice, where the party can have relief on motion. SECTION V. Writ of Capias. 1. In what cases a defendant may be holden to bail. 3. The writ, and how sued out, &c. 1. In what cases a defendant may be holden to bail. By stat. 1 & 2 Vict. c. 110, s. 1, "no person shall be arrested upon mesne process in any civil action, in any inferior court whatsoever; or, (except in the cases and in the manner hereinafter provided for), in any superior court." The cases and manner in which a defendant may be arrested, above referred to, are thus stated in the act. "If a plaintiff in any action in any of Her Majesty's superior courts of law at Westminster, in which the defendant is now liable to arrest, (whether upon the order of a judge or without such order), shall, by the affidavit of himself or of some other person, show to the satisfaction of a judge of one of the said superior courts, that such plaintiff has a cause of action against the defendant or defendants to the amount of 201. or upwards, or has sustained damage to that amount, and that there is probable cause for believing, that the defendant, or any one or more of the defendants, is or are about to quit England, unless he or they be forthwith apprehended,-it shall be lawful for such judge, by a special order, to direct that such defendant or defendants, so about to quit England, shall be held to bail for such sum as such judge shall think fit, not exceeding the amount of the debt or damages." Id. s. 3. Where this affidavit can be made, therefore, a defendant may now be holden to bail in precisely the same cases as before this act was passed, and in no other. It becomes therefore necessary to consider in what cases a defendant might formerly, and may still, be holden to bail; which shall be done under the following heads. In what Actions. No person shall be holden to bail, "where the cause of action shall not have originally amounted to the sum of 201. or upwards." 7 & 8 G. 4, c. 71, s. 1. In ordinary cases, therefore, the subject of the intended action must be a debt, or claim in the nature of a debt, to warrant a plaintiff in holding the defendant to bail; for it is only in such a case that it can fairly be predicated that the cause of action amounts to any particular sum. In all other cases, the defendant cannot be holden to bail, unless a judge, upon application, grant an order for that purpose. All this we shall now consider more fully under the following heads. Assumpsit.] It may be taken as a general rule, that in assumpsit, where the promise, express or implied, is to pay money, and the consideration is executed, the defendant may be holden to bail, if the sum be or exceed 201. Therefore a defendant may be holden to bail in an action for goods sold and delivered, money lent, money paid, laid out and expended, money had and received, or in actions on bills of exchange or promissory notes, or the like. Even in the case of a guaranty for the payment of goods sold and delivered to another, the party it seems may be holden to bail, Cope v. Joseph, 9 Price, 155, if the affidavit be framed with sufficient certainty. See Angus v. Robillard, 2 Dowl. 90, and see Elworthy v. Maunder, Bing. 295. But where the consideration is not executed, although the promise be to pay money, the defendant cannot be holden to bail; for instance, he cannot be holden to bail upon an affidavit for goods bargained and sold, unless the affidavit also state that the goods were delivered. Hopkins v. Vaughan, 12 East, 398. Lascar v. Morioseph, 1 Bing. 357. Or where the promise is not for the payment of money, as, for instance, to manage a farm in a husbandlike manner, to receive and accept goods, &c. or the like, the defendant cannot be holden to bail, unless a judge choose to interfere, and make an order for the purpose. Therefore, in the case of a policy of insurance, which is only a contract of indemnity, and it is impossible to say, without the intervention of a jury, what amount of damages will be sufficient to indemnify the assured, the underwriter cannot be holden to bail, unless indeed there have been an adjustment of the loss. This was holden in a case where the affidavit stated a total loss, and that the defendant had made an unqualified offer to pay 801. per cent. Lear v. Heath, 5 Taunt. 201. For debts arising abroad, a foreigner may hold another to bail in this country, although the law of the foreign country, where the debt was contracted, may not allow of an arrest for |