BOOK IV. What Terms imposed on the Defend ant. errors in the proceeding apparent on the record. And where a bailable capias upon which a defendant was outlawed had been issued upon a defective affidavit, the court reversed the outlawry on payment of costs, the defendant entering a common appearance (z). But an outlawry will not be set aside merely on the ground of the defendant's having constantly appeared in public during the proceedings against him, unless, perhaps, he swears he had no notice of them (a), or that the plaintiff might easily have found him so as to have served him with process, and that is not denied by plaintiff (b). And though the outlawry be illegal and voidable, it cannot be set aside by a third person in a collateral action (c). As to what terms will be imposed on the defendant, by the court or a judge, on reversing the outlawry, it may be observed, that where the proceeding to outlawry is an abuse of the process of the court, (as, for instance, where it was taken with a knowledge that the defendant was represented by an attorney in this country, and without applying to such attorney), the court will set aside the outlawry without imposing any terms, and will even compel the plaintiff to pay the costs of the application (d). And if there be error apparent on the record, it has been laid down by high authority, that the party has a right to reverse the outlawry, and the court cannot impose terms (e). In ordinary cases, however, of applications to reverse outlawry for error not apparent on the face of the record, where the plaintiff has not been guilty of any improper conduct, the terms imposed are, as follows:-In the case of outlawry on final process, payment of the debt, or damages and costs, including costs of the outlawry, &c. (ƒ). And before the 1 & 2 V. c. 110, s. 18, the court would not impose, as one of the terms, that the defendant should pay interest from the time of signing final judgment to the period of reversal (f); but, perhaps, this would be decided otherwise since that act. In the case of outlawry on mesne process, under similar circumstances, the terms are,-the entry of a common appearance to the action (h), or (in case of a reversal for want of proclamation under the statute of Elizabeth) to a new action (¿), and payment of costs (k); or, before the 1 & 2 V. c. 110, if the action were bailable, the defendant (at least if not in custody on the capias utlagatum) would have been required to put in special bail, instead of merely entering a common appearance (1). But this would not, it seems, be required since that act, unless the plaintiff shew, by affidavit, that the defendant is about to quit England forthwith; and, perhaps, not even N. C. 354; 1 Scott, 264, S. C.: Levi v (2) Houlditch v. Swinfen, 3 Scott, 170; (a) Johnson v. Driver, 1 Dowl. 127. (b) See James v. Jenkins, 9 Moore, 589: (c) Symonds v. Parminter, 1 W. Bl. 20. (e) See rer Patteson, J., in Ibbotson v. Fenton, 1 Nev. & P. 782. (f) Ibbotson v. Fenton, 1 Nev & P. 779. (h) See Hesse v. Wood, 4 Taunt. 691. (i) Ante, 929, 930. (k) See Summervil v. Watkins, 14 East, 536: Hease v. Wood, 4 Taunt. 691: Solly v. Forbes, 2 Moore, 567; 8 Taunt. 516, S. C: Porter v O'Meara, 7 Dowl. 657. (1) See Serocold v. Ham son, 2 Str. 1178, and last note. In Served v. Ham: son, the court said it was discretionary to require bail or not. SECT. 3. then, unless an order to arrest has previously been obtained, CHAP. II. by application to a judge at chambers, under the third section (m). It may be here added, that custody on a capias utlagatum has been held to be custody upon mesne process, within the seventh section of the 1 & 2 1. c. 110; therefore, where in a bailable action, during the absence of the defendant abroad, an outlawry was completed, and capias utlagatum issued before the 1 & 2 V. c. 110 came into force, and the defendant was arrested thereon after that act came into force, the outlawry was reversed, and the defendant discharged, on entering a common appearance and payment of costs (n). As to the time of making the application:-if the ground of At what Time the application be merely irregularity in the proceedings, the applied for. motion must be made promptly after the defendant is apprised of them (6). But if the ground of the application be any defect, whether appearing on the record or not, which would form the ground of a writ of error, it would seem that the application may be made at any time within which a writ of error may be brought. Formerly, in the Queen's Bench, the defendant was obliged By whom apto appear in person when he applied to reverse an outlawry; plied for. but now he may appear for that purpose by attorney in any of the courts (p). If the party outlawed do not appear in person, the person making the application must state in his affidavit that he makes it on the behalf and by the authority of the outlaw (7). A party outlawed may appear in court for reversing his outlawry, though not for most other purposes (r). It is entirely in the discretion of the court or judge, where Form of Bail bail is required, whether the recognisance of bail be in the required. alternative, to pay the condemnation money or render the defendant; or absolute, for the payment of the condemnation money, as in the case of bail in error (s). In a case previous to the 1 & 2 V. c. 110, where the defendant was abroad at the suing out of the exigent, and it appeared that he had not gone abroad for the purpose of avoiding the process of the court, bail in the alternative merely was required (t); and since that act, it is probable that bail would not be required; at least, not unless the defendant were about to quit England (u). To this, however, there was, before the 1 & 2 V. c. 110, one exception, namely, where the defendant sought to reverse the outlawry for want of proclamations: then, before the allowance of the writ of error, or reversing the outlawry by plea or otherwise, he must have put in bail, not only to appear and answer the plaintiff, but also to satisfy the condemnation, provided the plaintiff began his suit before the end of two terms next after allowing the writ of error, or otherwise avoiding the out (m) See per Coleridge, J., in Harvey v. O'Meara, 7 Dowl. 725. (Harvey v. O'Meara, 7 Dowl. 725 (0) Anderdon v. Ales ander, 2 Dowl. 267. (1) 4 & 5 W. & M. c. 18, s. 3: Anon., Lofft, 372, 520, (9) Plunkett v. Buchanan, 5 D. & R. 625; 3 B. & C. 736. S. C.: Houlditch v. Su infen, 5 Dowl. 36; 2 Bing. N. C. 712, S. C. (r) See Loukes v. Holbeche, 1 Moo. & P. (8) Graham v. Henry, 1 B. & Ald. 131. (u) Harvey v. O Meara, 7 Dowl. 725. PART 1. BOOK IV. lawry (x); in which case it was not at the discretion of the court or judge to order the recognisance to be in the alternative (y). And perhaps this would still be the case. Practical Proceedings to reverse an Outlawry on cess. Supersedeas when Defen tody. In order to reverse the outlawry upon mesne process, in cases where bail is not required, enter an appearance for the defendant, as directed ante, Vol. I. 121; and get a certificate from one of the masters of your having done so. Get a copy of the exigent, and mark on it some common error, (if no real error, be in the proceedings), such as the want of addition, or that the defendant was in prison or out of the country at the time of issuing the exigent, or the like; and take these to a judge at chambers, and he will, on their being laid before him, make an order for the reversal of the outlawry, upon payment of the costs of the outlawry. Take the order to one of the masters, who will thereupon enter the proceedings on the roll, (if they have not already been entered by the plaintiff), and docket the same. He will also mark the outlawry as reversed in his book, and enter the reversal on the roll, which should be filed in the treasury (≈). If the order be drawn up on payment of costs, the costs must be taxed and paid before the outlawry can be reversed. Or, in cases where bail is required, (ante, 936), as soon as your bail have justified, then, upon affidavit of that fact, apply to a judge, or move the court to reverse the outlawry; or, if the defendant be in custody under the capias utlagatum, then, instead of putting in and perfecting bail, produce to the judge or court the sheriff's or gaoler's certificate of the defendant's being in custody, and verify it by affidavit. In either case, when the application is made by defendant's attorney, produce an affidavit of his authority to make it (a). Previously to making the application, give the copy of the exigent, marked as above mentioned, to one of the masters, who or whose clerk will produce it at the time the application is made. Then take the rule to the master, and proceed as above directed. The court have refused to reverse the outlawry because the record was not in court (b). The defendant should also, if in custody on the capias utladant in Cus- gatum, sue out a supersedeas with one of the masters, upon which he shall be discharged out of custody, or it will prevent the sheriff from executing a capias utlagatum, general or special, against him in the same cause, if not already executed (c). Or, if his property be still in the sheriff's hands under a special capias utlagatum, and the produce of it not paid over to the plaintiff (d), it shall be restored to the defendant by a writ of amoreas manus, or other proceeding in the Court of Exchequer, for which he must apply to his clerk in court (e). Practical Proceedings to reverse Out When the defendant is outlawed after judgment, as the condition of reversing it is the payment of the debt and costs to (x) 31 El. c. 3, s. 3. (y) See Tidd, 9th ed., 141, 142: Taylor v. Waters, 2 B. & C. 353; 3 D. & R. 575, S. C.: Roger v. Cooke, 3 B. & C. 529; 5 D. & R. 302, S. C. (z) See the form of supersedeas, Chit. Forms, 548. (a) Ante, 937. (b) Lofft, 348, 370. (c) See a form of entry, Chit. Forms, 558. (d) See Pinfold v. Northey, 2 Lev. 49: and see Frost's case, 5 Co. 90: Eyre v. Woodfine, Cro. El. 278. (e) The clerks in court and side-clerks have still exclusive right to practise in such matters. (In re Otho Manners, 7 DowL 516). CHAP. I. SECT. 3. the plaintiff, you must first get him to enter satisfaction on the roll, before you can make the application. Get a certificate to that effect from one of the masters; and take it, together lawry after with a copy of the exigent, marked as above mentioned, to a ment. judge at chambers, who will thereupon make an order. Afterwards you proceed as above directed. final Judg. It would seem that the court will make a conditional Reversal in order for setting aside an outlawry, in order to prevent an in- case of Insolsolvent from remaining in custody unnecessarily (ƒ). vency. Reversal by Writ of Error.] Judgment of outlawry may be Reversal by reversed by writ of error coram nobis, either for matter of law Writ of Error. apparent upon the record, or for matter of fact not appearing upon it (g). As to the mode of proceeding in this case, see ante, Vol. I. 389 (h). Bail must be put in and perfected in the same cases and in the same manner as where the outlawry is reversed upon motion, &c. If the judgment be reversed, the supersedeas is made out and signed by one of the masters (i). This mode of proceeding by writ of error, however, is very seldom adopted in practice; for the court will always afford relief upon motion, or a judge at chambers on summons, as already mentioned, if the defendant be willing to comply with those conditions upon which alone they will grant it; namely, entering an appearance, or putting in and perfecting bail, and paying the costs of the outlawry, where the outlawry was upon mesne process; or paying the debt and costs, and the costs of the outlawry, where the outlawry was upon final process. There may be cases, however, in which reversing an outlawry by writ of error may be advisable. Costs.] The party reversing the outlawry is, in general, Costs. obliged to pay the costs (k). Even where an attorney (plaintiff in person) outlawed a defendant, although he knew that a person received an annuity for the defendant under a power of attorney during his absence abroad, and also knew several persons with whom the defendant was acquainted, without applying to the receiver or to those persons; the court would not make the plaintiff pay the costs of reversing the outlawry (1). So, where the party applying to reverse the outlawry fails, even by a formal defect in his affidavits, the rule will, it seems, be discharged with costs (m). But, where it has appeared that the plaintiff proceeded to outlawry merely for the purpose of harassing and oppressing the defendantas where it appeared that the defendant was actually in custody at the suit of the plaintiff for another cause of action at the time of the exigent awarded (a); or where the defendant was constantly to be met with, and might have been arrested BOOK IV. or served with process (o); or where the defendant was abroad, and was represented by an attorney in this country, and the plaintiff proceeded to outlawry without making any application to the attorney (p), the court have ordered the plaintiff to reverse the outlawry at his own expense. (0) Seabrook v. Howkin, Sir Thos. Jones, 211: Hilliard v. Smith, Comb. 19: Hill v. Wilkes, 12 Mod. 413: see Holman v. Brazier, Barnes, 320: Tamworth v. Smith, Id. 322: Roger v. Cook, 3 B. & C. 529; 5 D. & R. 302, S. C. (p) Pijou v. Drummond, 1 Bing. N. C. 354; 1 Scott, 264, S. C. |