Vol. Il] 
writ°of error in avy CRIMINAL cafe was: 
merely a matter of favour; and in trea- 
fon and felony, it is faid to be fo ftill. 
But in that year, ten of the judges 
againft two, declared their opinion, that in 
all cafes wader treafon and felony, a writ 
of error was not merely of grace, but 
ought to be granted; that is, as Lord 
Mansfield explains it, where there is 
probable error, it ought not to be denied. 
Jt cannot iffwe now, without a fiat from 
the attorney-general; who ought to ex- 
amine whether it be fought merely for 
delay, or upon a probable error. If the 
attorney-general ihould refufe, where 
there is probable’ caufe, the court of 
King’s bench would order him to grant 
his fiat ; but in treafon or felony, were 
the -error ever fo manifeft, the king’s 
pleafure to deny the writ would be. con- 
clufive’. . ne 
Since-it has been underftood, that in 
all criminal cafes under treafon’ and 
felony, a writ of error 1s-a matter of 
right, where there is probable caufe; 
what 7s an error? has become an impor-. 
tant -queftion, which was of no.,confe- 
quence before. . Lord Hale, indeed, 
{peaking of outlawry in treafon or felony, 
tells us, that‘ fall exceptions are com- 
mon allowed to the procefs or return, 
and fo by writ of error, the outlawry is 
ufually and-eafily reverfible, and the 
party put to, plead ‘to the indiétment.”’ 
But Lord Mansfield, in. Wilkes’s cafe, 
faid, “‘ the court will not now give way 
to .rzvjal objections, though admitted by 
the attorney-general.’ | And. Lord 
Kenyon mufi be underftood as approy- 
ing of this latter fentiment, when {peak - 
ing of an error affigned, in the cafe of 
the king.v. Yandell, he fays, ‘it is im- 
poflible to allow this. objection, without 
faying in broad terms, that an outlawry, 
which is a legal procefs, fanctioned by 
ail the authorities in the law, both an- 
cient and modern, and interwoven in the 
conftitution itfelf, never can legally exift 
in this country.” Mies 
In the cafe of Wilkes, Lord Manf- 
field faid, that a feries of precedents had 
required a techmcuk form of words in the 
defcription of the county court, at which 
an outlaw is exaéted; that after the 
words, “ at my county court,’ fhould be 
added the zame of the county ; and after 
the word eld, fhould be added, “* for ‘the 
county of————” which being omitted 
in that cafe, the outlawry was, therefore, 
‘reverfed: And his lordfhip added, that 
mo mifchief or uncertainty could arife 
from this determination; becaufe it be- 
‘Ing once known “ wat form of words is 
meceflary,” it is eafy to follow it; but 
| Differtation on’ Mr. Perry’s Outlawry. 
( §Sx 
great fufpicion and uncertainty muft fol- . 
low, from allotving a formal exception 
one day,.and d@/all.qwing it another... 
In the cafe of the king agaia/ft Barring 
ton; the error affigned on which the out~ 
lawry was reverfed, was that by the pro- 
- Clamation, he had a day given him to ap- 
pear fublequent to the time when, by 
the record, it appeared he was outlawed. 
—He was declared to be outlawed on the 
21ft of January ; the writ of proclama~ 
tion required the fherifis to proclaim 
him, fo that he fhould be before the ju/= 
tices of the peace, at the general feffions 
of the peace, to be holden for the county 
aforefaid, next after the firft day of Fe-! 
bruary then next enfuing; and the re- 
turn by the fheriffs to that writ was, 
that -he had. proclaimed the faid George 
Barrington, that he fhould be before his 
majefty’s juftices of the general feffions 
of the peace, laft within mentioned : 
The next feffions of the peace were 
holden on the 25th of February, fo that. 
by the terms of the writ, and by the pro- 
clamation too, the defendant might have 
faved his default by appearing on the 
25th, although he wes outlawed on the 
2if of February, 
- This objeétion. was taken, in the cafe 
of the king againft Yandell before mens 
tioned ; but not appearing, On examina 
tion of the record, to be feunded-in faét, 
it was over-ruled. 
In the cafe of SAMPSON PERRY, the 
record, afier ftating the verdiét, &c. pro- 
ceeded thus: The fheriff of the faid 
county of \Middlefex 7s commanded that, 
&c. he take the faid S. Perry, &c. fo 
that he may have his body before our 
faid lord the king, at Weftminfter, on 
Wednefday next, after 15 days from 
the feaft of Eafter, &c. 0” «hich fad 
Wednefday next after 15 days, &c. A. 
Brander, efq. and fr B. Tibbs, knt. re- 
turned the fatd writ, as followeth (that is 
to fay) ‘* The within-named S. Perry is 
not found in my bailiwick,”’ &c. Where- 
upon, by anoibir writ of our faid Lord 
the King, the faid fheriff, &c. is com- 
manded, that he caxle to be exacted the 
faid S. Perry, &c. till he fhall be out- 
Jawed, &c. if he fhall net appear; and 
if'he hall appear, that then he take 
him, &c. fo that he may have his body, 
&c. at Wefiminfter, on Wednefday next 
afier the morrow of All Souls, &c. on which 
faid Wednefday after the morrow of 
All Souls, &c., P. Perchard; efq. and C, 
Hammerion, efq. now theriff of the faid 
county of Middilefex, returned the {aid 
writ of exigent, executed by A, Bran. 
der, efq. and fir B. Tibbs, knt. late /heo 
rif, cc. before Kis going out of the fame 
4B 2 office 
a) 
