moval (h) are required and authorized to suspend the execution of the same, until they are satisfied that it may safely be executed, without danger to any person who is the subject thereof;-which suspension of, and subsequent permission to execute the same, shall be respectively indorsed on the said order of removal, and signed by such justices. And the charges proved on oath to have been incurred by such suspension (i) of any order of removal, may, by the said justices, be directed to be paid by the churchwardens and overseers of the parish or place to which such poor person is ordered to be removed, in case any removal shall take place, or in case of the death of such poor person before the execution of such order. And if the churchwardens or overseers of the parish, township, or place, to which the order of removal shall be made, or any or either of them, shall, upon the removal, or death, of such poor person ordered to be removed, refuse or neglect to pay the said charges within three days after demand thereof, and shall not within the same time give notice of appeal (k), as is hereinafter mentioned, it shall be lawful for one justice, by warrant under his hand and seal, to cause the money mentioned in such order to be levied by distress and sale of the goods and chattels of the person or persons so refusing or neglecting payment of the same, and also such costs attending the same, not exceeding 40s., as such justice shall direct; and if the parish, township, or place, to which the removal is made, or was ordered to be made, before the death of such person as aforesaid, be without the jurisdiction of the justice issuing the warrant, then such warrant shall be transmitted to any justice having jurisdiction within such parish, township, or place, who upon receipt thereof is to indorse the same for execution (1).

Where the Sum to be paid on Account of Costs exceeds 201.-Appeal to Sessions.]-But by the same section (m), if the sum so ordered

(h) By 49 G. III. c. 124, s. 1, any other justice or justices of peace of the county or other jurisdiction within which such order of removal or [vagrant] pass shall be made, have power to order it to be executed, and to direct payment of the charges incurred by the suspension, and to carry into execution such suspended orders as fully as the said respective powers can or may be executed by the removing justices, or the justice who grants the pass.

(i) This does not apply to cases where costs are incurred after the removal has taken place, e. g. appellant's costs of an appeal against a suspended order which

had been refused by sessions to the appellants on quashing it, Reg. v. Monmouthshire (Justices), 12 L. J. (M. C.)

127.

(k) This notice saves him from the inconvenience of a distress, but if he gives no such notice he retains his right of appeal, it being given him in the same terms as an appeal against an order of removal, R. v. Bradford, 9 East, 97.

(1) A mere ministerial act which must be done by the justices, R. v. Kynaston, 1 East, 117.

(m) 35 G. III. c. 101, s. 2 (continued).

to be paid, on account of such costs, exceeds the sum of 207. the party aggrieved may appeal to the next general or quarter session, as they may do against an order of removal (n); and if that session is of opinion that the sum so awarded be more than of right ought to have been directed to be paid, such court may strike out the sum contained in the said order, and insert the sum which, in their judgment, ought to be paid, and in every such case shall direct that the said order so amended shall be carried into execution by the justices, by whom it was originally made, or, in case of the death of either of them, by such other justices as the court shall direct.

The right of the removing parish to the costs of maintenance after a suspended order of removal, depends on their having served a copy or duplicate of that order, (with the suspension indorsed,) together with notice of chargeability, and a copy of the examination on the overseers of the parish to which the removal is intended to be made, and within ten days after making the order of removal (o). The original suspended order of removal, or a duplicate original, must be served. It will suffice to serve a copy, but the original must, in that case, be shown; and if this last step is neglected, an appeal against the order is in time, if made to the next sessions after the actual removal, whenever that event may take place (p). It was always good ground for quashing a suspended order of removal on appeal, to show that it had not been served in reasonable time after it was made (q); but if that appeal is not made to the next sessions after the actual service of such order (r), the remedy against the order for costs of maintenance is gone (s).

6. Of costs of Appeal against Accounts of Parish Officers, and against Disallowance of Items in their Accounts.]-It has been

(n) This appeal is given by 3 W. & M. c. 11, s. 9, to the party aggrieved, and such grievance arises in this case from the costs of suspension which the justices may direct to be levied on the parish to which the removal is made, notwithstanding the death of the pauper before actual removal: and the right of appeal attaches against the suspended order of removal, and the subsequent order for costs, notwithstanding such death of pauper, and though the costs are under 207.; for the right of appeal arises on the determination of the justices respecting the pauper's settlement, R. v. St. Marylebone (Inh.), 13 East, 51. The time for appealing against a

suspended order of removal is to be computed from the time of serving such order, and not from the time of making such removal under and by virtue thereof, 49 G. III. c. 124, s. 2.

(0) 4 & 5 W. IV. c. 76, s. 84. (p) R. v. Alnwick, 5 B. & Ald. 184, ante.

(q) R. v. Lampeter, 3 B. & Cr. 454. There three years had elapsed between the making and suspending the order of removal, and the service of it, with an order for costs of maintenance.

(r) R. v. Penkridge (Inh.), 3 B. & Ad. 538. See 49 G. III. c. 124, s. 2. (8) S. C.

observed before, that stat. 43 Eliz. c. 2 gives an appeal, indefinite in point of time, to the quarter sessions against overseers' accounts; and that 17 G. II. c. 38 gives a similar appeal, but confines it to the next session, and accompanies it with an authority to order costs to either party. So where items in accounts of parish officers are reduced or disallowed by special sessions, and they appeal to the quarter sessions against such reductions, &c. the quarter sessions may, "if they think fit, make an order that such churchwardens and overseers shall have the costs incurred by them defrayed out of the poor-rates of the parish or place" (t).

Costs under Vagrant Act.-Prosecutions for Third Breach of Public House Licenses.-Of Justices whose Acts are reversed on Appeal.]— The quarter sessions have, under the vagrant act, express power to grant costs to parties bound over by a justice to support a conviction against a party convicted as an incorrigible rogue, on the trial of an appeal against such conviction (u). And under the ale-house licensing act, 9 G. IV. c. 61, where peace officers are bound to prosecute at sessions parties charged with a third breach of the terms of their licenses, their expenses are (by sect. 22) to be paid out of the county rates. And by sect. 29, the expenses of justices whose acts are appealed against and reversed, may, if the court see fit, be paid from the same source.

An attorney's bill for business done at quarter sessions is we have seen (ante p. 155) taxable by the officers of the queen's bench (x).

SECTION V.

OF OUTLAWRY.

Outlawry is a punishment inflicted on a person for contempt and contumacy, in refusing to be amenable to the justice of that court which hath lawful authority to call him before them; and its process may issue in a prosecution for any crime whatever (y). Outlawry in felony is of itself an attainder, and subjects the party to such an award there

(t) 50 G. III. c. 49, s. 2. See ante, Appeal against Overseers' Accounts. (u) 5 G. IV. c. 83, s. 9.

(x) Ex parte Williams, 4 T. R. 496.

See id. 124; 9 Bing. 388; Barns, 122. (y) 2 Hawk. c. 27, s. 113; 4 Burr. 2537.

upon, to be made by the court where he is brought, as is provided for the offence for which he is indicted and outlawed; for the law interprets the party's absence a sufficient evidence of his guilt, and without requiring further proof or satisfaction, accounts him guilty of the fact, on which ensues absolute forfeiture of his whole estate real and personal; indeed many men who never were tried have been executed upon the outlawry (z). If a man be indicted before justices of the peace, and thereupon outlawed, and be taken, and committed to prison, the justices of gaol delivery may award execution of this prisoner, for they are commissioned to deliver the gaol (a).

By stat. 34 H. VIII. c. 14, the clerks of the crown, clerks of assize, and clerks of the peace, are to certify into the king's bench the names of all persons outlawed, attainted, or convicted; and upon letters from the justices aforesaid, certificates shall be made of such persons to the justices of gaol delivery.

Effects of Outlawry.]-Though an outlawry for a capital crime is equal to an attainder (b), and à fortiori to a conviction, or sentence by verdict or confession, it does not subject the party to any severer punishment than the crime does for which the outlawry was pronounced; and, therefore, where it took place on an indictment for a crime for which clergy was allowable before its abolition, the party outlawed was allowed his clergy, in the same manner as a party convicted by verdict or confession (c).

It is said by Blackstone, that any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him to punishment (d).

Issuing Process of Outlawry.]-Process of outlawry, viz. of capias or exigent may and usually does issue from the queen's bench; justices of oyer and terminer may also issue it (e).

And justices of the peace in their sessions may proceed to outlawry in cases of indictment found before them, and that by the common law; and also in cases of popular actions by the statute of 2 Jac. I. c. 4. It is said that they cannot issue a capias utlagatum, but must return the record of the outlawry into the king's bench, and there process of utlagatum shall issue (ƒ).

Co. Lit. 128; 4 Burr. R. 2549.

(a) 2 Hale, 35.

(b) 4 Bla. Com. 40, 132, 381.

(c) Hawk. B. 2, c. 33.

(d) 4 Bla. Com. 320.

(e) 2 Hale, 198. Justices of gaol delivery only cannot issue it, ibid.

(f) Dalt. Ch. 192; 2 Hale, 52; Lambard, 521.

Nevertheless, it has been holden by high authority, that if one be outlawed before justices of peace upon an indictment of felony, they muy award a capias utlagatum; for they that have power to award process of outlawry, have also power to award a capias utlagatum, as incident to their authority and jurisdiction (g).

Exigent, what.]-The writ of exigent, which is the immediate precursor of outlawry, lies in indictments of felony, where the party is not forthcoming, and on all indictments for trespass vi et armis, and offences of a higher nature; but not on those of an inferior kind. It does not lie on any offence created by statute, unless specifically given, or necessarily to be inferred (h).

The writ is directed to the sheriff to proclaim and call the defendant five county court days, one immediately following the other, charging him to appear upon pain of outlawry. If he come not at the last proclamation, he is said to be quinquies exactus, and is then outlawed. No person under twelve years of age can be outlawed, because that was the earliest age at which they could be sworn to their allegiance in the torn or leet.

Effect and Reversal of Outlawry.]-Outlawry in felony gives the forfeited lands to the lord of whom they are immediately holden. The bare judgment, without the return thereof of record, gives no escheat. But it must be returned by the sheriff, with the writ of exigent: or, it must be removed by certiorari; for the county court not being a court of record, the judgment given by the coroner in it is not matter of record (i). All outlawries may be reversed upon the defendant coming in upon the capias utlagatum, and pleading errors either of fact or law. If it be in a criminal matter, he must plead in person; but in civil cases may do it by his attorney. After a reversal of outlawry, the party is restored to his former rights (k). This is all that it is thought necessary to submit on this subject, the proceeding to outlawry being out of the ordinary course of practice at sessions.

(g) 12 Co. 103; 2 Hale, 199. See

ante, p. 589.

(h) Hawk. B. 2, c. 27.

(i) 2 Hale, 206.

(*) Co. Lit. 288; Hawk. B. 2, c. 30.