1792. The KING against YANDELL. livered to the sheriffs three months before the return of it. 5thly, That the writs of proclamation were neither issued nor executed according to the statute. 6thly, That it is not alleged after each proclamation that the prisoners did not appear and render themselves; and 7thly, That the names of the coroners, by whom the outlawry was pronounced, are not subscribed to this record. As to the 1st objection (a), If it were well founded in fact, we think it would have been fatal, according to the judgment of this Court in the case of The King against Barrington. But the two cases are not alike; and it will be sufficient to state the record only, to shew the material distinction between them, and to prove it to be as clear that these prisoners had not a day given to them to appear after the outlawry, as it was that Barrington had such a day given to him. In Barrington's case the prisoner was outlawed on the 21st February; and the writ of proclamation required the sheriff to proclaim him, so that he should be before the justices of the peace at the general sessions of the peace to be holden for the county aforesaid next after the first day of February next ensuing; and the return by the sheriffs to that writ was that he had proclaimed the said George Barrington, that he should be before his Majesty's justices of the general sessions of the peace last within-mentioned. The next sessions of the peace were holden on the 25th February; so that by the terms of the writ, and by the proclamation too, the prisoner had a day given him to appear till the 25th February; (a) In this case it was argued, that the objection in Barrington's case, ante, 3 vol. 449. was of a twofold nature. Ist, That he was required by the writ of proclamation to be before the justices, &c.; and 2dly, That he was required to render himself on a day subsequent to that on which he was outlawed. That though the first of those did not hold in this case, the latter did. That the time was the material point to be attended to. That the prisoners would have answered the exigency of the writ of proclamation, and the proclamations made thereon, by appearing at the assizes on the 9th August, which was subsequent to the time when the judgment of outlawry was pronounced, according to the legal as well as general acceptation of the words "to render themselves to the sheriff, so that he ❝ might have their bodies at the next assizes to be held on the 9th of August." That in the common case of a capias or latitat, where a sheriff is commanded to take a defendant, so that he have his body at the return of the writ, the sheriff complies with the requisitions of the writ by having the defendant on the day of the return. That the terms of these proclamations, which were required in aid of the exigent, and for the purpose of greater notoriety, were calculated to mislead the prisoners: and that the sheriff should either have proclaimed the prisoners to surrender themselves generally, leaving it to them to inquire when the fifth county Court would be held, or he should have specified in his proclamations the day when that Court would be held, requiring them to surrender before they were a fifth time exacted, as was done in R. v. Russell, 30 Geo. 3. and and if he had appeared on that day, he would have complied with the requisition of the writ, and have saved his default; but he was outlawed before that day came, viz. on the 21st February; and upon that ground the Court held the outlawry bad. In the present case the writs of proclamation were issued by the Courts of oyer and terminer requiring proclamations to be made that the prisoners render themselves to the sheriff, so that he might have their bodies before the justices, &c. at the next sessions of oyer and terminer to be holden for the said county and the prisoners were proclaimed at the proper times and places before the return of those writs to surrender themselves to the sheriff. Under these writs it was the duty of the prisoners to render themselves to the sheriff before the 5th county Court; or in default of doing so, they stood liable to the outlawry. It is impossible to allow this objection, without saying in broad terms that an outlawry (which is a legal process, sanctioned by all the authorities in the law both ancient and modern, and interwoven in the constitution itself) never can legally exist in this country. By law, the outlawry must be completed before the return of the writ of exigent. That writ requires the sheriff to call the party from county Court to county Court till he is outlawed: and if the sheriff neither bring in the party on a caption or render before the outlawry, or return a complete outlawry at the time that the writ of exigent is returnable, he has not complied with the writ, or done his duty. In this case, therefore, no day was given to the prisoners to surrender themselves to the justices on the return of the exigent and proclamation, but they were required to surrender themselves to the sheriff; which is the accurate and correct mode of proceeding. The 2d objection is, that the writ of exigent is contrary to the statute of Westm. 1. c. 14. The statute of 3 Ed. 1. c. 14. enacts, That no accessory be outlawed until he that is appealed of the deed be attainted (a); but that statute relates solely to the case of the accessory, and in nowise applies to proceeding against the principal. The statute mentions the case of an appeal only; but it has been determined that it extends to indictments as well as to appeals. And in Bro. tit. Exigent, pl. 44. it is said, that if it appear in the writ of appeal that one is principal and others accessories in an appeal against three, there the exigent shall not issue (a) It proceeds to enact, that "their exigent shall remain until such as be appealed of "the deed be attainted by outlawry, or otherwise." This, it was contended, was equivalent to saying that the exigent should not issue. That it was therefore void not only as to the accessory, 1792. The KING against YANDELL. 1792. The KING against YANDELL. issue against the accessories, until the principal be outlawed. accessory, but as to the principals also, it being an entire writ. That there was a distinc- and judgment against Scudamore v. Scriven, (a) The original writ of appeal; see 44 Ass. p. 16. See also 45 Ass. pl. 9. and 3 Inst. 233. Sed vid. Plowd. 98. marg. + The outlawry was accordingly reversed as to Joseph Yandell; and he was afterwards bailed. only only against him; and the others shall be put to answer; for they are in law as several indictments; and so in trespass. If the indictment be considered as several against each defendant, which we think it must be, this objection, though it is material and has already been allowed in the case of the accessory, cannot avail the principals; and so it is laid down by Serjt. Hawkins in b. 2. c. 27. s. 130. who says, "That it seems to be agreed "that wherever some of the defendants are expressly charged as "principals, and others as accessories, before the award of the "exigent, the outlawry of those charged as accessories cannot be "but reversible." I lay out of the case all the authorities quoted relative to civil actions, because they proceed on a very different ground. There the judgment given for damages is entire; and if it cannot be supported against all, it must be reversed in toto; because the Court cannot sever the damages, and say that each defendant shall be severally liable for his proportion of them; but even in those cases, if different parts of a judgment can be severed, the Court will reverse it in part, and affirm it for the residue; as appears by the case quoted from 2 Rol. Rep. 136. and many more modern determinations (a). The third objection is, that the 2d writ of capias is bad, because it does not contain a command to the sheriff to seize the goods of the prisoners, which it was argued was required by the statute, for the purpose of giving the party notice. This objection is founded on the stat. 25 Ed. 3. st. 5. c. 14. which enacts, "That after any man is indicted of felony before the justices in their sessions "to hear and determine, it shall be commanded to the sheriff to "attach his body by writ, or by precept, which is called a capias: "and if the sheriff return that the body is not found, another "capias shall be incontinently made returnable at three weeks "after; and in the same writ it shall be comprized that the sheriff "shall cause to be seized his chattels, and safely to keep them till "the day of the writ returned; and if the sheriff return that the "body is not bound, and the indictee cometh not, the exigent "shall be awarded, and the chattels shall be forfeit, as the law of "the crown ordaineth: but if he come and yield himself, or be "taken by the sheriff before the return of the second capias, then "the goods and chattels shall be saved." If this statute were ever intended to apply to a Court of assizes, and oyer and terminer, to be sure the language of it is very incorrect: for when an act mentions justices in their sessions, the natural and most (a) Vide 5 Rep. 58. 2 Ld. Raym. 1384. 1 Str. 188: 2 Str. 808. and 4 Burr, 2022. obvious 1792. The KING against YANDELL. 1792. The KING against YANDELL. obvious meaning of those words is the justices of the peace in their general or quarter sessions; but the provision made by it is totally incompatible with a Court of assizes, and oyer and terminer; for there never was a period in the annals of this country when that Court sat from three weeks to three weeks. Lord Ch. J. Hale, in 2 Pl. Cr. 195. considers the statute as inapplicable to this Court or to any Court where the justices sit by commission; for (says he) the second capias is to be returnable at three weeks after, which may be out of term, or after the sessions of the justices are ended. We concur in this opinion; and we think it is strongly fortified by the stat. of 8 H. 6. c. 10. and the construction which Lord Ch. J. Hale has put upon it. That act consists of two parts: 1st, That a second capias shall issue where the party is in a foreign country; 2dly, If the party be conversant in the county where he was indicted at the time of the felony, the process shall be as hath been used before this time; which words Lord Ch. J. Hale renders thus: The process shall be as it was at common law. In the same page Lord Ch. J. Hales states it, as clear and unquestionable, that at that day the process in case of an indictment of any felony was only one capias, and then an exigent. If so, undoubtedly the stat. of 25 Ed. 3. which requires two capiases could not extend to all Courts of oyer and terminer; and if it do not, it must necessarily be confined to the sessions of the justices of the peace. Hawkins makes a distinction as to the process upon indictments and appeals for offences which are or are not capital: but I shall not pursue that inquiry farther, because we do not feel ourselves called upon to say in this case whether two capiases were necessary, or whether one only was sufficient. Lord Ch. J. Hale makes a quære as to the usage on the stat. of 25 Ed. 3. If that usage has been consistent with what we consider as the true and plain construction of the words of the statute, it will greatly fortify that opinion: if, on the contrary, the usage has been the other way, it will be incumbent on the Court, notwithstanding what is said by Hale, to see if the statute can be made consistent with it. All the precedents which we have been able to find on this subject, are one way. In the King v. Morley, Trem. Ent. 280; in the King v. Cranstoun, and in the King v. Barrington, there was a second capias; and in neither of them is there any command to seize the goods. The King v. Morley was a case of some authority beyond the mere precedent; for it appears in the 3 Keb. 125. that a writ of error was brought; and though objections were taken to the indictment, yet none were made against the process. The words of the statute them selves, |