Vol. IlI.] 
+ (5647...) 
LAW. DER ART ALE NAL. 
. 
DISSERTATION ON, THE OUTLAWRY 
OF THE UNFORTUNATE 
Mr. SAMPSON PERRY, 
NOW A PRISONER IN NEWGATE, 
(Continued from our Magazine 
T is, however, admitted, that procefs 
of Cutlawry does not lie in all crimi- 
nal cafes. Ic is agreed, that it lies in all 
appeals whether of felony or mayhem * ; 
in all indi&ments of treafon or felony ; 
on all returns-of a refcue, and in all in- 
diétments of trefpafs ws ef. arms. It 
feems probable too, that it lics on an in- 
diétment of conf{piracy or deteipt, or any 
ether crime of a higher nature than tref- 
pafs with force and arms, bit not on any 
indiétment for a crime of, an inferior 
nature. . 
It is agreed that outlawry does not lie 
in any adiion ona penal ftatute, unleis by 
fuch ftatute it be given expre({sly ; or by 
implicatton, as where a recovery Is given 
by ‘an adtion in which fuch procefs lay 
before. The fame rule obtains as to an 
indi ment on a ftatute. ; 
Procefs of ouglawry did not lie at 
common ‘law in any civil action, unlefs 
for an injury accompanied with force ; 
but feveral ftarutes have either exprefsty 
or by implication, introduced that pro- 
cefs in fome particular action, where 
there is no complaint of force. 
The ftatute of 52 H:. IIT. c. 22, com- 
monly called rhe Statue of Maribridge, 
rp 
tes 
provides, that “if bailiffs, who ought to: 
account to their lords, wrthdraz them- 
felves, and have xo lands nor tenements 
whereby they may be diftrained; then 
they fhall be attached by their dedics, fo 
that the fheriff in whofe bailiwick they 
be found fhall caufe them to come to 
make their account. . 
This ftatute was fuppofed to give the 
writ of capias ad refpondendum, and, on 
the principle that where /bat lies, the 
procefs of outlawry alfo hes, was fup- 
pofed to have introduced the latter in an 
aétion of account, where the accountant 
fled, and had no lands or tenements to be 
diftrained. 
' The ftatute 13 Ed. I. c. 11. ‘com- 
monly called the Statute of Wefiminfter 
the fecond, gives the procefs of Out- 
‘awry in expres terms: “ And if he fice, 
“and will not give account willingly, 
«“ he fhall be diftrained to come before 
ee me nett er 



% This is a fpecies of profecution formerly 
fed, but now almoft ob‘olete, at the fuit and 
in the name of the party profecuting.. 
bs io 4 
w 
jor Angad, 1198, pege 577°) 
the juflices to make his account, if he 
have whereof to be diftrained.”’”— 
And if he flee, and it be returned by 
the fheriff that he cannot be found, — 
exigents fhall go againft him from 
county to county, until he be out- 
lawed.”’ ; 
By ftatute 25 Ed. III. c. 17 the fame. 
procefs by capias and exigent, as had 
before been given inva writ of account, 
is given in debt, detinuc, and replevin : 
And by fatute 19 H. WII. c. 9. the 
fame procefs is given in all a€tions on the 
cafe brought in the king’s-bench and 
common-pleas as in actions of trefpafs 
or debt. 
~Outlawry, then, fies in all a€tions of 
tref{pa{s, account, debt, detinue, replevin, 
and cafe. But this is confined to fuch 
actions brought againf{ commioners.; ir 
does not lie in any civil action broughr 
avainft a lord of parliament, whether 
fecular or ecclefiaftical: And it hes only 
in actions commenced by original writ 
out 6f chancery returnable in the king’s- 
bench or common-pleas. i 
In all criminal cafes, in which, from, 
the nature of the offence, this procefs 
lies, it is not confined to profecutions by 
appeal or indidjment, but alfo lies in pro- 
fecutions by prefentment and informa- 
mation: whether it lay in she lateer 
cafe, became a fubordinate queftion in the 
cafe of Mr. Wilkes ; but, without much 
dificulty, was decided in the affirmative. 
Inthe fame cafe it was difcufled, at fome 
length, whether fuch an informaticn 
could be fled ex officio by the folicitor- 
general in the vacancy of the office of 
attorney-general? and it was decided 
that it might. 
In all cafes, both‘ criminal and civil, 
where this procefs lies, it lies as well 
before conviction or judgment, to com- 
pel the appearance of the defendant, as 
afier, to obtain the effeét of the fuit or 
profecution. But in civil aétions, the 
{uit muft be commenced by original writ 
out of chancery, otherwife there. can be 
no outlawry either on me/ie precefs, to 
compel appearance, or on fzal procefs,. 
after judgment. a 
With refpect to the courts out of 
‘which fuch procefs may iffue, it is of 
- courfe 
