NOTE. Effect of a outlawry. In treason and felony, a judgment of outlawry returned of judgment of record operates in all respects as a conviction. The usual forfeitures are incurred; and the party, if afterwards taken, may be brought up before the justices of gaol delivery, and receive his sentence. Accessories also, who could not have been punished until after the conviction of the principal, may then be dealt with according to their offences, and the process which could not have proceeded against them beyond the last capias, may now go on to judgment. 2 Hale, 206; R. v. Yandell, 4 T.R. 253; R. v. Wilkes, 4 Burr. 2549; Bac. Abr. Outlawry; 4 Bl. Com. 320. In misdemeanor, it operates as a conviction for a contempt in not answering, and subjects the party to forfeiture of goods and chattels; and, generally speaking, the same consequences as upon an outlawry in a civil action, Bac. Abr. Outlawry, 4 Bl. Com. 319. An outlawry can only be reversed by writ of error, which is obtained by the appearance of the defendant in the court of king's bench in custody, and upon the fiat of the attorneygeneral, after the errors (whether they be of law or fact, 2 Hale, 207,) intended to be relied on are disclosed to him, 2 Hale, 209; R. v. Wilkes, 4 Burr. 2550. If the fiat be granted, the record and proceedings are removed into that court, where the errors are assigned and argued. Should the judgment of the court be unfavourable, sentence is immediately pronounced in cases of felony and treason, 2 Hale, 209; R. v. Yandell, 4 T. R. 521. Of the reversal of the outlawry. FORM. Bench warrant. County of S. to wit. } By the lords justices of assizes for the circuit. At a general assizes and general gaol delivery, held at T. in and for the county of S, on the day of Whereas A. B. of &c. stands indicted as of assizes, with having &c., and has not since appeared or given security to abide trial on said indictment. These are, therefore, in his majesty's name, to authorize and strictly charge and command you and every of you, immediately on sight or receipt hereof, to apprehend the body of the said A. B. wheresoever he may be found within the said circuit, and him so apprehended, forthwith in safe custody to convey before one of his majesty's justices of and for the county wherein he shall be apprehended, that he may be further dealt with according to law. And for your or every or any of our so doing this shall be your sufficient warrant. ated as above. By the court. R. S. Clerk of the crown for the county of S. (a) (a) For the forms of the several writs of venire, distringas, capias, and exigent, see Burn. J. Process, ad finem. And for the several returns thereto see Imp. Off Sher. 290 et seq. tiorari shall be delivered at assizes or shall not be allowed un become bound as CHAPTER VIII. OF THE REMOVAL OF INDICTMENTS BY CERTIORARI. 10&11 Car. 1, c. 10(a), s. 4. [Recites that bills of indictment found at assizes and sessions have been often removed by certiorari, in order to throw difficulties in the way of prosecution.] By means whereof such offenders for the most part, escape unprosecuted and unpunished, and the king loseth the fines which ought and should have been imposed upon them, if such Writs of cer. indictments had been prosecuted and not removed: be it therefore enacted, that all such writs of certiorari shall, from and after the end of this present parliament, be delivered at sessions; and the generall assizes, or at some quarter sessions of the peace respectively in open court, and that the parties indicted shall, less the party before the allowance of such certioraries, become bound unto such person or persons, which shall prosecute such bills of indictment against them, in the summe of ten pounds, with such sufficient sureties as the justices of assizes, at their generall assizes, or the justices of the peace at their said quarter sessions of the peace, shall think fit, with condition to pay unto the said prosecutors of such bills of indictment, within one moneth after the conviction of such parties indicted, such reasonable costs and damages as the justices of assize or justices of peace of such counties where such bills of indictment shall be found in the generall assizes or sessions of the peace respectively shall assesse or allow; and that, in default thereof, it shall be lawfull for the said justices of assize and justices of the peace respectively to proceed to tryal of such indictments; any such writs of certiorari to remove the same indictments notwithstanding. herein. No certiorari shall be granted in term time to remove in. 8 Anne, c. 5 (b), s. 1. [Reciting that notwithstanding the 10 & 11 Car. 1, c. 10, writs of certiorari had been improperly obtained to remove indictments after issue joined at assizes and sessions, to the great discouragement of prosecutors.] Be it dictments for &c., that in term time no writ of certiorari whatsoever, at misdemeanor the prosecution of any party indicted, be hereafter granted, sessions, ex- awarded, or directed out of the said court of queen's bench, to cept upon remove any such indictment or presentment of trespass or from quarter special order. (a) Entitled "An Act to prevent and punish the abuses in procuring processe and sepersedeas of the peace and good behaviour out of his majesty's courts of Chancery and King's Bench, and to prevent abuses in procuring writs of certiorari, &c." (b) Entitled "An Act to prevent delays of proceedings at the assizes or sessions." be given for trying the misdemeanor, before tryal had, from before the said justices in 8 Anne, c. 5. the said courts of general assizes or quarter sessions of the peace, unless such certiorari shall be granted or awarded upon motion of councel on affidavit, and by rule of court made for the granting thereof before the judge or judges of the said court of queen's bench sitting in open court; and that all the parties indicted, prosecuting such certiorari, before the allow- Security shall ance thereof, shall find two sufficient manucaptors, who shall enter into recognizance (a) before the justices to whom the issue. same shall be delivered, in the sum of twenty pounds, with condition at the return of such writ to appear and plead to the said indictment or presentment in the said court of queen's bench, and at his and their own cost and charges, to cause and procure the issue that shall be joined upon the said indictment or presentment, or any plea relating thereunto, to be tryed at the next assizes, to be held for the county wherein the said indictment or presentment was found, after such certiorari shall be returnable, if not in the county of Dublin and the county of the city of Dublin; and if in the said county or city, then to cause or procure it to be tried the next term after, wherein such certiorari shall be granted, or at the sitting after the said term, if the court of queen's bench shall not appoint any other time for the tryal thereof; and if any other time shall be appointed by the court, then at such other time, and to give due notice of such tryal to the prosecutor or his attorney in court (b), and that the said recognizance and recognizances, taken as aforesaid, shall be certified into the said court of queen's bench with the said certiorari and indictment, to be there filed, and the name of the prosecutor (if he be the party grieved or injured), or some publick officer, to be indorsed on the back of the said indictment (c); and if the person prosecuting such certiorari, being the defendant, shall not, before allowance thereof, procure such manucaptors to be bound in recognizance as aforesaid, the justices of the assize and of the peace may and shall proceed to tryal of the said indictment at the said sessions, notwithstanding such writ of certiorari so delivered (d). (a) The practice of requiring a recognizance does not extend to the removal of a conviction before justices, R. v. Hipwell, Batty 245. (b) Notwithstanding the condition of the recognizance seems to be express, that the defendant shall appear &c., yet it shall not be forfeited, unless the prosecutor of the indictment give rules according to the course of the court, 2 Hawk. c. 27, s. 54; but see R. v. Clark, 5 B. & A. 728. And if the prosecu. tor at the trial refuse to pray a tales, and the cause be thus made a remanet, the defendant is not liable to costs, R. v. Lowfield, Str. 937. (c) It is immaterial whether the name be on the back of the indictment ̧ provided it be proved by affidavit, that the prosecutor is in fact a party injured or civil officer, 2 Hawk. c. 27, s. 53. (d) Notwithstanding these words, justices of peace will be in contempt if they fail to make a return to a certiorari, though no proper recognizance 8 Anne, c. 5. 2. That if the defendant prosecuting such writ of certiorari be convict (a) of the offence (b) for which he was indicted, that then the said court of queen's bench shall give reasonable on conviction costs (c) to the prosecutor if he be the party grieved, or be a Defendant shall pay costs. justice of the peace, mayor, bailiff, constable, headborough, tythingman, churchwarden, or overseer of the poor, or any other civil officer, who shall prosecute upon the account of any fact committed or done, that concerned him or them as officer or officers to prosecute or present (d); which costs shall be have been entered into, 2 Hawk. c. 27, s. 47. If a recognizance be taken, different from that prescribed by the act, it seems, it will not operate as a supersedeas of the proceedings below, Id. s. 49. (a) This means not convicted by verdict merely, but by judgment; there. fore if, after a verdict of guilty, the judgment be arrested, no costs can be taxed for the prosecutor, R. v. Turner, 15 East. 570. But if the defendant die between the verdict of guilty and final judgment, his bail are nevertheless liable to pay costs, R. v. Finmore, 8 T.R. 409; R. v. Turner, 3 B. & Cr. 160. (b) The word "offence" here extends as well to nonfèazance as misfeazance, R. v. Taunton St. Mary, 3 M. & S. 471. (c) Those costs only are to be taxed which have been incurred subsequent to the certiorari, 2 Hawk. c. 27, s 56; R. v. Summers, Salk. 55. The costs of conveying the defendant from the King's Bench, after receiving sentence of imprisonment, to the gaol of his county, are reasonable costs within the statute, R. v. Gilbie, 5 M. & S. 520, 2 Chitt. R. 159; but not the costs of a special jury, R. v. Lord Abingdon, 1 Esp. 229. If the prosecutor have received one-third of the fine imposed on the defendant, the amount received shall be deducted from the costs payable to him, R. v. Osborne, 4 Burr 2125. (d) The prosecutor of an indictment for an attempt to commit felony, in which no real injury is done, is not a party grieved within this statute, R. v. Ingleton, 1 Wils. 139; neither is the prosecutor for an obstruction to a high way entitled to his costs, unless he be a justice of the peace, R. v. Kettle. worth, 5 T.R. 33, or constable, R. v. Taunton St. Mary, 3 M. & S. 465, or prove himself actually injured, as by being obliged to go a more circuitous route, Id. ibid; R. v. Williamson, 7 T.R. 32; R. v. Incledon, 1 M. & S. 268; and see R. v. JJ. of Middlesex, 3 B. & Ad. 938. A justice who prosecutes a gaoler for an escape is not entitled to costs as a public officer, R. v. Sharpness, 2 T.R. 47. Rated inhabitants of a parish, who were prevented by rioters from entering the vestry-room to attend a meeting called for the purpose of imposing a church rate, and who afterwards prosecuted the offenders, have been held to be parties grieved within this statute, R. v. Thompkins, 2 B. & Ad. 287. So also are persons dwelling near a steam engine, which emitted volumes of smoke that injured their health, clothes, and furniture, R. v. Dewsnap, 16 East. 194. But where the expenses of the prosecution are defrayed by subscription, the nominal prosecutors have been held not enti. tled to costs under this act, R. v. Cook, 1 M. & Ry. 526. And where the indictment for a libel on the governor of a parish workhouse, was preferred by the direction of the select vestry of the parish, and the defendant having removed it by certiorari into the King's Bench, was convicted; it was held that the libelled party was not the party grieved within the meaning of the act, R. v. Dewhurst, 5 B. & Adol. 405. In R. v. Edwards, 5 B. & Adol. 407, n. the defendant was convicted on an indictment for assaulting a watch |