If upon inquiry it be found, that he was accused by malice, or not guilty, or se defendendo, or per infortunium, a writ goes to the sheriff de ponendo in ballium usque ad proximas assisas. 2 Inst. 42. Or, to twelve mainpernors. Fl. 1. ca. 26. s. 3. 2 Inst. 42. But the writ de odio et ațiâ does not lie, if a man was indicted before justices in eyre. 2 Inst. 42. (L4.) By homine replegiando. So, (k) a man unlawfully detained in custody may have an homine replegiando, si non captus sit per preceptum regis, vel pro alio retto, quare secundum consuetudinem Angliæ non sit replegiabilis. F.N.B. 66. E. Reg. 77. b. 2 Inst. 55. And he may have an homine replegiando for a negro. Or, an Indian brought by him into England, and detained from him. 3 Mod. 120. [This is an original writ, the party may sue it of right, and it is granted on motion or petition in chancery, without shewing cause, returnable in a court of law, and chancery cannot supersede it. It may be declared on below, and defendant must assign cause why he does not comply; if the party suing has not a right, it must be pleaded.] [If the party suing the writ is party in a suit in this court, it might be otherwise.] [If it is brought by an infant against his testamentary guardian, or by a villein against his lord, they may plead the special matter at law. Treblecock's Case, H. 1757, 1 Atkyns, 633.] (L5.) By discharge for want of prosecution. By the st. 31 Car. 2. 2. if any be committed for treason or feloný expressed in the warrant, on petition in open court the first week of the term, or first day of sessions of oyer and terminer, or general gaoldelivery to be tried, be not indicted the next term or sessions, he shall be bailed on motion, unless oath be, that the king's witnesses could not be then ready. And, if on petition in court the first week of the term, or first day of the sessions to be tried, he be not indicted and tried the second term or sessions after commitment, or be then acquitted, he shall be discharged from his imprisonment. 2 Mod. Ca. 5. (a) 1. Upon an homine replegiando, though the sheriff returns an elongatus, the defendant may plead non cepit. Ld. Raym. 613. 2. If he comes in upon the elongatus, he shall continue at large until judgment. Ibid. 3. And if judgment is given against him, a capias in withernam shall issue against him. Ibid. 4. If he does not come in, a capias in withernam shall issue against him. Ibid. 5. If he is taken upon the capias, the plaintiff shall be demanded at the return of the capias, and unless he appears and declares, be nonsuited. Ibid. 6. If he declares, and the defendant pleads non cepit, he shall be bailed. Ibid. 8. The bail shall be bound in a sum certain for the appearance of the defendant, de die in diem, and in case of judgment against him for his render. Ibid. 9. Upon his render he will be in custody as upon the first capias. Ibid. 10. The defendant shall not, on giving bail, wage deliverance. Ibid. 13 Ii [A' person [A person committed to the Tower for high treason, cannot make his prayer at the Old Bailey, to be bailed or tried. Rex v. Bishop of Rochester, Sept. 8 Geo. Fort. 101.7 [Nor, at Hicks's Hall. Rex v. Ld. North and Grey, Mich. Ses. 8 Geo. Fort. 103.] (M 1.) When delivered out of prison. When a man may be delivered out of prison by bail, vide in Bail. (M 2.) By consent of the party. If a prisoner goes out of prison by consent of the plaintiff, he shall be discharged. Though the plaintiff allows him to treat for an accommodation, and he without a keeper, or a rule of court, comes to the plaintiff for such intent, and no agreement is made. R. Sti. 117. Vide Escape, (D). [The court will discharge a defendant out of custody who is in execution at the suit of a plaintiff some time since deceased, on whose part no will has been proved, nor any administration granted, and whose family, on notice of a motion for the above purpose, decline interfering. Broughton v. Martin, C. P. M. 38 Geo. 3. 1 Bos. and Pull. 176. Wagstaffe v. Darby, C. P. M. 6 Geo. 2. Barnes, 366.] (l) (M 3.) By breaking prison. What shall be an escape out of prison, and the remedy for it, vide in Escape, (B 1, &c.-C-D). Vide Escape. What shall be a rescue, vide Rescous (A) — Justices (R). By the common law, breaking prison in every case was felony. 2 Inst. 589. H. P. C. 87. But by the st. 1 Ed. 2. (which seems to be a confirmation of a like statute made 23 Ed. 1. 2 Inst. 589.) nullus qui prisonam fregerit, subeat judicium vitæ vel membrorum, nisi causa pro quá captus fuerit tale judicium requirat, &c. If a man break out of the stocks, though he was not infra parietes carceris, it is a breaking prison within the statute. 2 Inst. 589. P. C. 107. H. Or, out of the gaol of a lord of a franchise. H. P. C. 107. But if he escape before arrest, it is no felony; for he was not in prison. H. P. C. 111. 2 Inst. 590. Breaking prison is no felony, if the prison be not actually broke. 2 Inst. 589. H. P. C. 108. As, if the prisoner goes out when the door is open. 2 Inst. 589. H. P. C. 108. Or, if the prison is broke by others without his privity. 2 Inst. 589. H. P. C. 108. (a) The court will not discharge a prisoner out of execution, because there is no judgment against him docketed, and entered on the rolls of the court. 2 Bos. & Pull. 163. 1 Or, Or, he is rescued out of custody by others, without his privity. 2 Inst. 589. H. P. C. 108. Or, is let out by consent of the gaoler. 2 Inst. 589. H. P. C. 108. Or, if he break prison for necessity, when it is burnt by lightning, or by other persons, without his privity. 2 Inst. 590. H. P. C. 108. Breaking prison is no felony, if the prisoner was committed for an offence which does not require judgment of life or member: as, for petit larceny. 2 Inst. 590. H. P. C. 110. For homicide se defendendo, or by chance medley. 2 Inst. 590. H.P. C. 110. For giving a mortal wound, of which a man dies within a year; for though the death relates to the wound, yet it was not felony at the time of breaking prison. 2 Inst. 591. H.P.C.108. For suspicion of felony not found by record, when no felony is committed. H. P. C. 109. 2 Inst.590. Or, if the prisoner was committed without lawful warrant. 2 Inst. 590, 591. H.P.C.109. Or, if the warrant does not shew a cause, that requires judgment of life or member. 2 Inst. 591. But breaking prison is felony, if the prisoner be committed by a capias upon an indictment, or appeal, or other record finding the felony, though no felony was committed. 2 Inst. 590. H. P. C. 109, Or, if committed only on suspicion of felony, when a felony was committed. 2 Inst. 590. 592. H. P. C. 109. Or, committed for a felony made so by statute subsequent to 1 Ed. 2. H. P. C. 108. 2 Inst. 592. If committed for treason, breaking prison is only felony. 2 Inst. 590. H. P. C. 109. Yet breaking prison with intent to deliver traitors is treason; for it is an abetting of treason, in which there are no accessories. 2 Inst. 590. H. P. C. 109. A man may be indicted for breaking prison, before he be convicted of the felony; for which he was committed. 2 Inst. 592. H. P. C.110. But the indictment ought to be special, and shew that he was committed for felony. 2 Inst. 591. H. P. C. 109. .801.0.9 Vide DUM FUIT INFRA ÆTATEM, (D). INCI INCIDENT. Vide CONDITION, (G 10.)-COURTS, (P 4.)-FRANCHISES, (F 10, &c.) —GRANT, (E 11.) — HOMAGE, (G 2, 3.)— PARCENERS, (A 3, &c.) PROHIBITION, (G 23.) — Rent, (C 4.) INCLOSURE. Vide COMMON-DROIT, (M 1. 2.) IN CONSIMILI CASU. Vide DUM FUIT INFRA ÆTATEM, (E). INCUMBRANCE. Vide CHANCERY, (4 A 10. —4 I 3, &c.) INDENTURE. Vide FAIT, (C 1, 2.) INDICAVIT. Vide DISMES, (M 10.) INDICTMENT. (A) Indictment, what shall be. infra. (B) Presentment, what. p. 496. (C) When necessary. p. 497. (D) For what offence an indictment lies. p. 498. (E) For what, not. p. 504, (F) When an indictment against several is good. p. 506. (G) The form of an indictment. p. 512. (G 1.) Of the party. p. 512. (G 2.) Of the time, and place. p. 521. (G 3.) Of the offence: p. 530. What shall be uncertain. (G4.) And not supplied by innuendo. p. 536. 536. (G6.) Ought to have proper terms of law. p. 541. (H) When quashed, if deficient. p. 545. (1) Process upon an indictment. p. 546. (K) Confession. p. 551. (L) Traverse. p. 551. (M) Arraignment, and trial. p. 554. (N) Judgment. p. 555. (A) Indictment, what shall be. An indictment is an accusation or declaration at the suit of the king (a), for some offence, found (6) by a proper jury of twelve men. Co. Lit. 126. b. (c) And (a) 1. From its being the king's suit, the party prosecuting is a competent witness. 2 Hawk. c. 25. s. 3. -2. Nor, for the same reason, can a party grieved recover damages by indictment, or other criminal prosecution; though the king specially direct that he shall, by the charter constituting the court in which the proceeding is instituted. 1 Rol. Abr. 220. 2 Rol. Abr. 83. Cro. Car. 531. 558. 2 Hawk. c. 25. s. 3. 3. Nor by an indictment founded upon a statute giving him damages for the aggression; unless the statute itself direct their recovery by that mode. Jones, 380. Cro. Car. 448. 1 Rol. Abr. 220. 2 Hawk. c. 25. s. 3.-4. Yet the K. B., having the king's privy seal for that purpose, may, upon every occasion, give to a prosecutor the third part of a fine. 1 Keb. 487. 2 Hawk. c. 25. s. 3.- 5. And it is their constant practice to mitigate a fine, upon an understanding that the defendant compensate the prosecutor for his costs and damages. 2 Hawk. c. 25. s. 3.. 6. For the same reason (that an indictment is the king's suit) it is, that though the party injured, and who moves the proceeding, die, yet will not an abatement be the consequence. 1 Wils. 222. (b) 1. Generally upon ex parte evidence only. 2 Hale, 157. 4 Com. 303. 2 Hawk. c. 25. s. 145. n. — 2. Being sworn, however, to present the truth, they seem thereby authorised to institute any investigation necessary to elicit it. If therefore they are satisfied that they neither have nor can obtain it from the witnesses for the Ii 3 prosecution |