TITLE CX.

3 Bac. Abr. 745.

Stat. 1782, c. 19, s. 1.

Persons generally.

OUTLAWRY.

OUTLAWRY is a punishment inflicted on a person for a contempt and contumacy, in refusing to be amenable to, and abide by the justice of that court which hath lawful authority to call him before them.

1. For what offences, a person is liable to outlawry ; and what court has jurisdiction thereof.

2. What acts shall be deemed an absconding, so as to subject a person to outlawry.

3. Of the proceedings previous to sentence of outlawry.

4. Of the power of the court to suspend sentence of outlawry.

5. Of the forfeitures and disabilities consequent upon outlawry.

6. Of the reversal of outlawry; and what shall operate as such.

I. For what offences, a person is liable to outlawry; and what court has jurisdiction thereof.

Such persons are liable to the judgment of outlawry as shall stand charged of any criminal offence before the supreme judicial court of this government, by the indictment or presentment of a grand jury, whether the same indictment or presentment be originally found in that court, or removed thither from any inferior jurisdiction, by appeal, or writ of certiorari, and as shall abscond to avoid answering, or abiding and performing, the judgment that may be given thereon, whether such absconding be before or after the jury shall indict or present the offender.

Stat. 1785, c. 46, 6. 15.

In the case of consta

So if any constable or collector of any town, district, plantation, parish or precinct, shall abscond or secrete himself for the space of one month, having assessments bles or collectors. in his hands unsettled, the selectmen or assessors of such town, district, plantation, parish or precinct, are empowered to charge such constable therewith, by declaration filed in the supreme judicial court, and thereupon to proceed to judgment of outlawry against such constable or collector.

II. What acts shall be deemed an absconding, so as to subject a person to outlawry.

Any person after having appeared and plead to an indictment or presentment, who shall have departed without leave of the court, or shall have broken gaol after commitment upon, and before conviction on, the charge alleged in the bill, or shall fail or neglect to appear and answer according to the tenor of a recognizance regularly taken for that purpose, or when the sheriff of the same county whereof the offender was an inhabitant or resident, at the time of his committing the offence for which he shall stand indicted, or his deputy, shall make return upon a capias issued in consequence of the bill, wherein the term of four months, at the least, shall have elapsed between the issuing the capias and the return day thereof, that after making diligent search and inquiry after such offender, he could not find him in his precinct, shall be deemed and taken as sufficient evidence of the absconding of such person.

III. Of the proceedings previous to sentence of outlawry.

Stat. 1782, c. 19, s. 2.

Ibid. s. 1.

Writ of scire facias

A writ shall issue to the sheriff of the county where the offender was an inhabitant or resident, at the time of finding the indictment, directing him to make known unto to be served on the such offender, that unless he shall appear on the first day of the sitting of the supreme judicial court, and there

offender.

Ibid.

Mode of serving such writ.

Ibid. s. 3.

Capias, and alias capias from the sessions.

traverse the same charge, and abide the judgment that may be given thereon, or appear and give such security therefor, by way of recognizance, as the said court shall order, such person will then and there be declared an outlaw, and be subjected to all the penalties and disabilities in the act declared to be incident to a person under sentence of outlawry.

And the mode of executing the said writ of scire facias, shall be by leaving an authenticated copy thereof, certified by the sheriff, at the offender's dwelling house, or last place of abode, sixty days at the least before the same process shall be returnable, and shall cause an abstract or notification of the subject-matter in the same writ mentioned, sixty days before the return day, at the least, to be printed in one of the most public weekly newspapers, and to be continued five several weeks inclusive, and shall cause him to be publicly called, in every court of general sessions of the peace in his county, that shall be holden while the same process shall be in his custody; which writ of scire facias being served and returned in manner aforesaid, and filed in court, shall be entered on the docket, and the party against whom the same issued, after having been publicly called in the supreme judicial court, to appear and answer the charge alleged against him as aforesaid; if he shall not appear upon such notice and proclamation, his default shall be recorded, and such offender may, by the same court, be declared an outlaw, without any other act or ceremony.

A capias and an alias capias issued from the court of the general sessions of the peace, on a bill of indictment or presentment there found, wherein fifty days, at the least, have elapsed between the issuing and return of the same writs respectively, and returned by the proper officer, that after dilligent search and inquiry after such offender, he could not find him in his precinct (before the removal of the record into the supreme judicial court,) shall render the issuing a like process in the su

preme judicial court before scire facias ut legatum, unnecessary.

Ibid. s. 4.

capias from the S. J C. is returnable.

Where a capias shall issue from the supreme judicial court, to apprehend an offender on a bill of indictment or presentment, in any county where the said court shall When and where a be held but once a year, the same capias may be made returnable to some session of the said court in some other county, at the expiration of five or six months, if the said court shall so order, to the end scire facias ut legatum may timely issue returnable to the next term, if the offender should not be taken on the capias.

IV. Of the power of the court to suspend sentence of outlawry.

It shall be in the power of the said court, when the offence charged shall be by law bailable, to continue the same scire facias, or suspend passing judgment of outlawry thereon, until the next or some succeeding term, in case sufficient bail shall be given for the offender's answering and abiding the judgment of the said court thereon.

V. Of the forfeitures and disabilities consequent upon outlawry.

Ibid. s. 1.

Ibid s. 5.

Such persons disabled from bringing actions,

All persons against whom judgment of outlawry shall be given, shall, during the time the same judgment shall continue in force, be disabled from bringing or maintaining in their own right, any civil action or suit, in any court of law or equity within this government, excepting a writ of error for reversing the outlawry, and shall be under such other disabilities and disqualifications in civil society, as a person convicted and sentenced for the offence charged in the bill upon which he may be outlawed and in all cases where a greater forfeiture does not by law accrue to the commonwealth upon a convic- estate. tion and judgment on such bill of indictment, shall forfeit the issues and profits of all his real estate during the

Other disabilities.

Forfeiture of real

Liability to be appre

life of the outlaw, in case the judgment of outlawry shall so long remain in force, and be further liable to be aphended upon a capias prehended upon capias ut legatum, and sentenced in the ut legatum. same manner as if he was convicted by a jury of the charge alleged in the bill.

Ibid. s. 6.

Real estate bound for fine and costs.

Ibid. s. 7.

From what time the

recognizing, are bound.

The real estate of every person outlawed, shall be held liable, and be bound, from the time of issuing the scire facias ut legatum to respond the judgment that shall be given on the indictment or presentment, so far as relates to the fine and costs.

The lands and tenements of all persons recognizing to the use of this government, before any authority duly lands, etc. of persons authorized and empowered to take the same, are, and shall be, liable to respond the sum mentioned in the same recognizance from the time the same is taken and acknowledged, notwithstanding any transfer or alienation thereof.

Ibid. s. 8.

In the case of persons generally.

Ibid.

VI. Of the reversal of outlawry; and what shall operate

as such.

Every offender that may be outlawed, upon his appearing in open court, and confessing the charge, and receiving sentence thereon, or appearing and traversing the charge, shall be acquitted by a jury, or on demurrer, or any other plea, the same shall be judged insufficient in law to compel the person accused to answer thereunto, or support a judgment thereon; in every such case, the proceeding shall be construed to operate as a full and effectual reversal of the judgment of outlawry, as though a formal reversal had been given upon a writ of error expressly brought for that purpose: Provided, the appearance upon which such acquittal shall be given, shall be voluntary and without compulsion, and within one year and a day after judgment of outlawry shall be pronounced, and the cost accruing on the process of outlawry shall be first satisfied and paid.