Cooke v Champness
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1732 |
| Date | 01 January 1732 |
| Court | Court of the King's Bench |
English Reports Citation: 94 E.R. 749
IN THE COURT OF KING'S BENCH
9. COOKE versus champness. Case lies for the party, against the sheriff, for an escape suffered upon an outlawry, on mesne process. J. S. was outlawed upon mesne process at the suit of the plaintiff, and taken by a capias utlegatum, but suffer'd to escape by the defendant; whereupon the plaintiff brought an action on the case qui tarn for the said escape : whether the action lay, was the point saved at the trial. Gapper, for the defendant, insisted, that where the outlawry is upon mesne process, the party outlawed is in custody merely at the suit of the King, and that the plaintiff has no interest in his body; but where the outlawry is after judgment, the party is in execution for the plaintiff, Cro. El. 706, 707. By the outlawry upon mesne process, the plaintiff is at the end of his suit, he cannot declare against the defendant, bat must bring a new original, 13 H. 4, 1. Nor is the nature of the debt changed by the outlawry; all which the Court admitted : and therefore the defendant's counsel would insist that the plaintiff could have no loss by the escape. He then excepted to the declaration, viz. that the exigent was awarded to a foreign county, and then by statute 6 H. 8, cap. 4, proclamation should have been made in the county of which the defendant then was; and that not being so, the...
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