
    *The Commonwealth v. Bailey Hagerman.
    Outlawry — Exigent — When Awarded. — An Exigent should not be awarded, until a Pluries Capias has been returned “not found.”
    Same — Exaction of Defendant. — if a sufficient number of County Courts should not intervene, to enable the Sheriff to exact the Defendant five times, a new Writ of Exigent should issue, reciting the first Writ, with the return of its partial execution, and requiring the party to be exacted from County Court to County Court, so that with the first he be exacted five times,
    This was a Case adjourned from the Superior Court of Kanawha county, on an Indictment for assault and battery. Its circumstances are sufficiently detailed in the following opinion of the Court, prepared by Judge Bouldin:
    “The Indictment in this Case being found by the Grand Jury, a Summons was issued to answer it, and returned ‘.executed,’ but the Defendant .not appearing, a Capias was awarded, returnable to the first day of the nextTerm, which being returned ‘ not found,’ an Alias Capias was awarded, which was in like manner returned ‘ not found,’ and on motion, the Exigent was awarded and returned ‘ not fully executed.’ A new Writ of Exigent was awarded, which was returned in like manner, and was again renewed, which last Writ was returned ‘ quinto ex-actus,’ in due form by the Sheriff, but no judgment of outlawry was pronounced. Upon which return, the Attorney for the Commonwealth moved the Court for a judgment of outlawry, and the questions arising upon the said motion, being considered new and difficult, were adjourned to this Court.
   On consideration whereof, the Court is of opinion :

“ That the Defendant might be prosecuted to outlawry upon the Indictment found against him ; but, in order to have such judgment of outlawry regularly pronounced, in a prosecution for a misdemeanor, a Pluries Capias should be awarded and returned ‘ not found,’ before the Exigent should issue: whereupon, the said Writ should issue, and if a sufficient number of County Courts should not intervene to enable the Sheriff to exact the Defendant at five successive County Courts, a new Writ should issue reciting the first, with the Sheriff’s return thereon, (which should state the manner in which it had been partially executed,) and requiring the party to be exacted from County Court to County Court, so that with the first he be exacted five *times, after which fifth exaction, and before the return day of the Exigent, the Defendant should be outlawed by the judgment of the Coroner of the county, whose name should appear by the return of the- Sheriff. This Court is therefore of opinion, that the motion of the attorney for the Commonwealth, for a judgment of outlawry upon the said proceedings, should be. overruled : and it being now impossible for judgment of outlawry to be pronounced by the Coroner upon the aforesaid proceedings according to Eaw, it is the opinion of this Court, that a new Capias should issue against the Defendant, and subsequent proceedings be had thereupon, conformable to the foregoing opinion.
“ All which is directed to be certified to the said Superior Court of Eaw.”  