Allowance had been in the Purchase, upon Consideration of the Title to Dower, the same would have been a very material Argument; but in this Case there was none: And therefore 'twas prayed that the Dismission might be affirmed, and it was so.
Dominus Rex v. Baden [1694].
[15 Lds. Jo. 501. See 2 Salk. 495 (A.-G. v. Baden). See 42 & 43 Vict. c. 59, s. 3.]
Whether Outlawry on mesne Process is to be preferr'd to a Judgment not extended.—Writ of Error to reverse a Judgment given in the Court of Exchequer, and affirmed upon a Writ of Error in the Council Chamber before the Chancellor, with the Assistance of the two Chief Justices. The Case upon the Record was only this; One Allen outlaws one Clerk in Debt on a Bond in Mich. 1690. on the seventh of Jan. 1690. by Virtue of a special Capias utlagatum, and Inquisition thereupon, seizes Clerk's Lands into their Majesties Hand. In Hillary Term following the Outlawry and Inquisition are certified into the Exchequer, and Allen obtains a Lease under a Rent. In Mich. 1692. Baden comes and pleads that in Mich. 4 Jac. 2. he recovered a Judgment against Clerk for 1080l. that in Trinity Term 1691 he took out an Elegit, and had a Moiety of the Lands extended, and therefore prays that an Amoveas manus may be awarded. Mr. Attorney replies, That the Lands were seized by Virtue of the Outlawry and Inquisition long before the Elegit was sued, and therefore, &c. Baden demurs, and Judgment for the King.
Argument for Plaintiff in Error. Difference between Outlawry in Civil and Criminal Actions.—It was argued on Behalf of the Plaintiff in the Writ of Error, that this Judgment was Erroneous, for that there's a vast Difference between an Outlawry in a Civil and one in a Criminal Process: That in a Civil Action, 'tis only a Civil Process for the Benefit of the Party; and 5 Edw. 3. cap. 12. the King cannot pardon an Outlawry at the Suit of a private Person. That 'tis only to help one Subject to his Debt from another. That the King hath [73] no Advantage by it, and so no Need of a Preference by Reason of the Prerogative. That at Common Law no Man could be outlawed. That now it is purely given for the Sake of the Plaintiff; that the common Practise is to make a Lease, or grant a Privy Seal to the Party. That by this Outlawry the King hath no Interest in the Land; he cannot cut down the Trees, 9 H. 6. 20. that he cannot Plow or Sow; but only collect and receive the Profits which arise out of the Land. Bro. tit. Outlawry 36. tit. Patents 3. that the King hath not the Possession of the Land, which shews it not to be a Forfeiture to the King, but it remains the Party's, still, in respect of Ownership, he may make a Feoffment, 21 Hen. 7. 7. 2 Inst. 675. Hob. 122. by the Judgment the Lands were bound, tho' the Title was not compleat, till the Elegit was sued out; a Monstrans de droit or Petition did lie, and now the same Matter may be pleaded. 'Twas further argued, That great Mischief must follow, if an Outlawry upon Civil Process may defeat a Judgment. That Judgments with Release of Errors are taken and used as common Securities. That this is most plainly a Device to avoid them. That this can be no Security, if an Elegit may not be sued, but prevented by the Party himself.: For here it is his own Default, not to avoid this Outlawry by Appearance. That no Act of the Debtor could alter the Security, and there's no Reason why his Neglect should. That this Contest is between Baden and Allen, and not between Baden and the King. Allen's Suit was but just begun, and this is merely upon his Suit. If the Person had been taken upon this Capias, he had been the Plaintiff's Prisoner; and if he Escapes the Plaintiff had an Action for it, Yelv. 19. and the supposed Forfeiture is only for his Interest. 3 Cro. 909. And by this Practise the King's Prerogative is to assist one Subject to deceive another. By the Law a Judgment is preferable to a Bond, and binds the Land, which a Bond doth not till Judgment upon it. Now here the first is to be postponed, by Reason of the King's supposed Prerogative, which is only a Right in the King, for the Use of the Party to have the Profits. 2 Roll's Abridg. 808. Vide Stamford 57. 1 Inst. 30. & Hardres 101, 176. 1 Inst. 202. Latch
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