Outlawry is a good plea in an audita querela, for the outlawry does not depend upon the audita querela ; and the judgment against which relief is prayed, is not to be reversed, but only the execution of it. In error, outlawry upon the judgment which is to be reversed by the writ of error, is not a plea,; for the said judgment being the foundation of the outlawry, the reversal of it reverses the outlawry: but a writ of error, to reverse any other judgment thn that upon which the outlawry depends, outlawry is a good plea. ‘Tis so of an attaint, where the attaint is to annul the verdict ; and by consequence, the judgment upon which the outlawry depends, doth not disable the plaintiff in the said attaint ; for the foundation is to be taken away, and therefore the outlawry in this case is no plea.
Judged by both benches.
If a writ of error be brought to reverse an outlawry in any action, outlawry in another action shall not disable the plaintiff in error; for otherwise, if the outlawry was erroneous, it shall never be reversed.
Exceptio rei cujus dissolutio petitur, nulla est.
Citations:
[1220] EngR 373, (1220-1623) Jenk 37, (1220) 145 ER 28 (A)
Links:
Torts – Other, Litigation Practice
Updated: 18 May 2022; Ref: scu.461285
