Page:Borden v. State ex rel. Robinson.pdf/15

Rh he was not outlawed, and parcel of the record came by chancery out of B. R. into the Exchequer: and Justice of B. R., came into the Exchequer and said he was not outlawed, but that it was misprison of the clerk. , said though all the justices would record the contrary they shall not be credited when we have recorded that he is outlawed. Querae, what remedy is for the party? It seems it is a writ of error inasmuch as there is no original against him but only record of outlawry without original. (Br. Record, pl. 49) and in the same book, pl. 4, cites ''Br. Error, pl.'' 78, it is said the diversity is this, that a man may assign error on a thing separate or out of the record but he cannot falsify it." The custom of foreign attachments, by which goods in the hands of a third person might be sold or money attached and unless the debtor appeared within one year and successfully disputed the debt, he was forever concluded as to his rights in the property or money, was also inconsistent with such an idea to its full extent.

The rule of the absolute verity of the return of the sheriff that he had executed process, although in fact and in truth he had never done so, was directly inconsistent with the idea that notice before judgment was a natural law because if so, the rule of the verity of the sheriff's return would have been an absolute nullity. An appearance of an unauthorized attorney was of the same class. So was the Scotch law of Horning. It was assimilated to the custom of foreign attachments in several respects. There is a case in 4 Bing. 686, (Douglass et al. assignees, vs. Forrest ex. of Hunter,) where, in an action in England on one of these judgments of horning, it was contended that the judgment should be held as a nullity upon the principle of universal justice, as the counsel expressed it, there having been no notice previous to the judgment of horning. But the English court refused to so hold and said, "On this question we agree with the defendant's counsel that if these decrees are repugnant to the principles of universal justice, this Court ought not to give effect to them. But we think these decrees are perfectly consistent with the principles of justice. If we hold that they were not consistent with