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Or, for enticing away his servant. Sal. 372.

Or, for throwing down fences contrary to the stat. W. 2. 4. R. 1 Sal. 372. (i)

Or, for a cheat. R. Mod. Ca. 42. (k)
Or, for a disturbance in church. Sid. 54. (1)
Or, for a forcible entry. Mod. Ca. 96.

So a motion for quashing shall not be allowed after a recognizance forfeited. 1 Sal. 380. (m)

(1) Process (n) upon an Jndictment. By the stat. 25 Ed. 3. 14., on an indictment (o) for felony before justices of oyer and terminer, a capias (p) shall (9) be awarded (r) to the

sheriff,

☺) i Sidf. 140. et vide 1 Wils. 325.

(K) 1. 3 Burr. 1841. — 2. Hence not an indictment for selling flower by false weights, though it appears upon the face of it that the flower-scale was the lighter, which must tend to the prejudice of the seller; and though it does not say where the selling was. 3 Burr. 1841.

(1) Cro. Car. 584.

(m) 1. Generally, the application should be made before plea pleaded. Leach, 17. 4 St. Tr. 232. i Hale, 35. 2 Hale, 295. i Vent. 69. Foster, 27. – 2. It may be made upon the last day of term. Burr. 651.-3. And in case of indictments for high treason or misprision thereof, (except only indictments for counterfeiting the king's coin, seal, sign, or signet,) the 7 Will. 3. c. 3. enacts, that none shall be quashed for mis-writing, mis-spelling, false or improper Latin, unless exception concerning the same be taken and made in Court by the prisoner or his counsel assigned, before any evidence given in open court upon such indictment; nor shall any such miswriting, mis-spelling, false, or improper Latin, after conviction upon such indictment, be any cause to stay or arrest judgment thereupon. But nevertheless any judgment given upon such indictment shall and may be liable to be reversed upon a writ of error in the same manner, and in no other, than as if this act had not been made. — 4, Upon which statute it has been holden, that no such exception can be taken after plea pleaded. 4 St. Tr. 673. Starkie, 286. vide 1 East, P. C. 110. — 5. Where an indictment, removed by certiorari, was at issue, and the jury appointed, and the prosecutor afterwards procured a new indictment to be found, alleging the first to be defective, the Court, upon consent of the parties, quashed the first and directed the second to stand in its place. 6 Mod. 262. Starkie, 282.-. But if the prosecutor move, the Court will not quash the indictment unless it appear to be insufficient. Dougl. 153. 240. 1 Starkie, 282. – 7. Nor even then unless another has been found which is sufficient. 2 East, 226. i Starkie, 282.-8. And will not quash it, of course, where the defendant has been put to expense. 3 Burr. 1468. Str. 946. i Starkie, 282. – 9. And if a second indictment be found for the same offence, pending the first, the Court will not quash the first unless the expenses incurred by the defendant upon the first be paid to him. MSS. 1 Starkie, 282.

(n) 1. So denominated because it proceeds or issues forth in order to bring the defendant into court, to answer the charge preferred against bim; signifying the writs or judicial means by which he is brought to answer. i Chit. C. L. 338. Dalt. J. c. 193. Burn's J. Process. Williams J. Process. — 2. That proceeding which is called a warrant before the finding of the bill, is termed process when issued after the indictment has been found by the jury. Ibid.

(0) 1. An indictment may be found against a defendant in his absence. His presence is not essential, since, though present, he could not be heard against the bill. 4 Com. 318. - 2. But after indictment found process must issue to bring the defendant into court; for the indictment cannot be tried, unless he personally appears : according to the rules of equity in all cases, the express provision of the 28 Edv. 3. c. 3. in capital ones, that no man shall be put to death without being brought to answer by due process of law. 4 Com. 318.

(p) A capias may issue against a peer of the realm, in case of treason, felony, or breach of the peace. 2 Hale, 199. Cro. Eliz. 503, i Starkie, 260.

(9) i Unless the defendant is already in custody, or has given bail, or is present in court. - 2. In the first case, he may be brought up and charged with the indict.

ment;

sheriff, and if he return (s) non est inventus, another (t) capias (u) returnable at three weeks, whereby the sheriff shall be commanded to seize his goods, and if the sheriff return non est inventus, and the party does not appear, an exigent issues, and the goods are forfeited. Vide Process, (C.) (x)

If there be an indictment for a trespass, the process shall be a venire; and if the return (y) be, that he has sufficient (), a distringas (a) in infinitum; if the return be nichil, &c. there shall be a (6) capias, alias, and pluries, and an exigent till he appears or is outlawed. Dalt. ch. 193. Vide the stat. 18 Ed. 3. 5. (c)

And

ment; in the second he appears under the recognizance; in the third he may be detained by the Court; and bailed or committed as upon a warrant.- 5. A detainer, however, is matter of discretion; so that the Court may, if they please, refuse to interfere, and leave the defendant to the taker upon the ordinary process. 4 Burr. 2551.

(r) 1. When the king grants an authority of ‘oyer and terminer,' the power to issue process is incident: for there cannot be oyer, if the party does not appear gratis, or be brought by process. Infra, tit. Process (A 1.) - 2. But it is said that under a commission of gaol delivery' only, a capias cannot be issued, since then the jurisdiction extends not beyond a delivery of the gaol, to which end an issuing of process is not necessary, and therefore a power so to do, not incident. 2 Hale, 198. – 3. Justices of the peace in sessions are empowered by their commission to make and coutnue proces ses against persons indicted, until they can be taken, surrender themselves or be outlawed; and the same authority is vested in them by the 5 Edw, 3. c. 11, and i Edw. 4. c. 2. 1 Starkie, 259.

(8) 1. Where the process is awarded from the King's Bench into any other county, there should be an interval of fifteen days at least between the teste and return of every process; but where the process is awarded into the same county where the court sits, this is not necessary. 2 Hawk. c. 27. s. 16. Starkie, 259. — 2. Where it is awarded by the justices of oyer and terminer and general gaol.delivery, it is made returnable at the next session of oyer and terminer, and goal-delivery. i Starkie, 259.

(t) If the prosecutor proceed to outlawry after judgment, one capias only is necessary 1 Starkie, 273. - 2 Hawk. 27. s. 111.

(u.) 1. Upon the return of non est inventus, in cases of treason and homicide, the writ of exigent issues immediately. 2 Hawk. c. 27. s. 112. 1 Starkie, 260.– 2. Bug in indictments for any felonies but homicide, it appears to be doubtful, whether a second capias was not formerly requisite previous to the exigent. Fitz. Cor. 184. 234. Exig. 3. 2 Hawk. c. 27. s. 112. 2 Hale, 194.- 3. Lord Hale however expressly says, that the process in his time, in case of any felony, was one capias and then an exigent. 2 Hale, 195.

Or 1. Under which title is explained, in whose name the process shall issue. 2. If out of the king's courts, it must be in the king's name by 27 Hen. 8. c. 24. 3. If it issue from K. B., it must be tested by the chief justice, or senior judge on a vacancy in that office. i Chit. C. L. 539. Cro. Car. 393. 2 Hale, 199. 2 Hawk. c. 27. s. 8. Williams' J. Process. - 4. If from any other superior court, then by the first in the commission; and here, though a single magistrate may not have authority to determine an indictment, yet it seems he may then authorise the process, i Chit. C. L. 339. 2 Hawk. c. 27. 5. 8. Starkie, 258.

(y) The venire may be made returnable immediately by the justices of oyer and terminer, by the king's bench, in the same county, and by justices at the sessions by consent. 3 Salk. 371.

(2) That is, that he has lands in the county, whereby he may be distrained.' 2 Hawk, c. 27. s. 10.

(a) In case of trespass, a capias issues upon the return of the venire. 2 Hale,'194.

(6) Where a capias does not lie, as in proceedings against hundredors, corporators, &c. and against peers, except in cases of treason, felony, or breach of the peace, the only mode of proceeding is by venire and distringas. 1 Starkie, 273. Burns' J. Process, 80. Tidd's Prac. 110.

(c) 1. If the defendant appear to an indictment of felony, and before issue joined make his escape, the process against him is by capias and exigent, as before, unless there had before been an exigent, and in that case a new exigent shall be awarded. 1 Starkie, 276. 2 Hawk. c. 27. s. 19. - 2. If the default be after issue joined and Nn 2

an

And after outlawry, the justices of assize, or of the peace, may issue a capias utlagatum, as incident to their authority. R. 12 Co. 103.

And though the outlawry be afterwards reversed, the indictment stands in force. Mod. Ca. 115.

By the stat. 5 Ed. 3. 11., justices (d) to hear and determine felony may direct their process against the indictee, into any foreign country.

By the stat. 1 Ed. 6. 7., the process shall not be discontinued by a new commission. — So by the stat. 11 H. 6. 6.

By the stat. 8 H. 6 10., if any, indicted for felony, treason (e), or trespass, dwell in another county, the justices of peace of the county, or franchise, after the first capias is returned, may direct another capias to the sheriff of the county where the party dwells, returnable in three months (if the county court there is held monthly, but if from six weeks to six weeks, then four months) after the teste, commanding such sheriff to take him, or if not to be found, to make proclamation in two counties, before the return of the writ, that he appear before the justices of peace where indicted at the day of the return of the second capias, and then if he appear not, the exigent shall he awarded; but exigent and outlawry otherwise is awarded void. (f)

And by the stat. 10 H. 6. 6. if such indictment be removed by certiorari, such second capias shall be made returnable in B. R. &c.

And if the defendant be in the indictment named of a foreign county (8) with an alias dicť of the came county, yet process goes according to the st. 8 H. 6. 10., for the alias dicť is no part of his name, nor shall he be put to answer to it. i Ed. 4. 1. (h)

And an issue awarded to try it, then if he has been brought in upon a capias, a capias ad audiendam juratam shall be awarded against him. Ibid. - 3. But where he has appeared upon the exigent, and makes default after issue joined, a new czigent should be awarded, and if he appear upon the new evigent, he should, according to Lord Hale, plead de novo; for, by the erigent, it seems both the issue and inquest are without day. i Starkie, 27€. 2 Hale, 225. - 4. But serjeant Hawkins is of opi. nion, that though the inquest is put without day by the exigent, it is not waived, and that the Court may cause the same inquest to try the same issue, unless the defendant fail to render himself before the return of it. Starkie, 276. 2 Hawk. c. 27. 8. 20.

(d) 1. The statute recites, that divers persons appealed or indicted of divers felonies in one county, or outlawed in the same county, had been dwelling or received in another county, whereby such felonious persons, indicted and outlawed, had been encouraged in their mischief, because they might not be attached in another county. - 2. Now since an appeal could not be taken before justices of the peace, it has been doubted whether they were within the meaning of this statute. 2 Hawk. c. 97. s. 3. - 3. But, says Mr. Starkie, they certainly are within the express words of it; and the intention of the legislature would be in part frustrated by an exclusive construction. i Starkie, 259. 260. – 4. Independently of this statute, process by writ might be well awarded into any county of England, either by the King's Bench or by justices of Eyre, &c. upon an indictment before them. i Starkie, 260.

(e) 1. Indictments of felony or treason, originally taken in the King's Bench, are not, it has been holden, within this etatute. 1 Starkie, 266.; who adds quære et vide 2 Hawk. c. 25. s. 124. — 2. But by 6 llen. 6. c. 1. a special provision is made, that, before any exigent awarded, the Court shall issue a capias to the sheriff of the county, where the indictment is taken, and another to the sheriff of that county whereof he (the defendant) is named in the indictment, having six weeks' time or more before the return; and after these writs the cxtgent shall issue as before. i Starkie, 266.

(f) Voidable, according to the construction. 2 Hawk. c. 27. s. 127.

(s) Since the party must have been conversant in the county where the offence was committed, he may be named of the place where the fact was committed, in the indict. ment, and then the process is to go as at common law. And where a felony is committed at A., in the county of B., the usual course is to allege, that J. S., late of A., in the county of B., &c. 2 Hale, 196. Starkie, 267. . (k) But if the description be J. S., late of A., in the county of B., late of C., in the

county

And for the same reason, if he be named of the county where the indictment is taken with an alias dictum of the other county, he shall not have process upon that statute. i Ed. 4. 1.

By the equity of the said statute, if the indictee be imprisoned in another county, the justices of peace may award an habeas corpus to bring him before them.

If a person indicted before justices of peace find surety in Chancery to appear at the return of the writ, he shall have a supersedeas to such process. F. N. B. 237. C. (i)

So, if he find surety before two justices of peace, 1 Quorum.

By the stat. 4 & 5 W. & M. 22. S. 4. (which continued for three years) on exigent in criminal cases before conviction, proclamation shall go to the sheriff of the county, where the party dwells, according to the st. 31 El. 3.

And if a capias issue upon an indictment for a misdemeanour before a venire, it is error. R. Raym. 275. (k)

But

county of D.; upon the return of a capias in the county of B., a capias with proclamations shall issue to the sheriff of D., under the statutes. 2 Hale, 196. 1 Stark. 267.

(i) 1. If a person be apprehensive that an indictment has been found, and that a warrant will be issued to apprehend him for some trivial misdemeanour; and is desirous of preventing an arrest, he may, whether he is under recognizance to appear or not, apply to the clerk of the peace, or search his office to see if any indictment has been found against him, and procure a certificate of such finding, and thereupon attend a judge of the king's bench, or one of the justices of peace at the police offices in town, or a justice of the peace in the county, and produce the certificate, together with two sufficient bail, who will take a recognizance to appear and answer, and grant him a supersedeas, which will protect him from arrest. i Chit. C. L. 346. Dalt. c. 175. 193. Lamb. 500. C. C. C. 16. - 2. After this has been granted, it is said that no judges' or justices' warrant, or even a capias, or exigent in proceeding to outlawry, can be of any avail, as the defendant has only to produce it, and it must be respected by the officer. i Chit. C. L. 347. C.C. C. 16.; but a quare is added by Mr. Chitty.

(k) 1. The 26 Geo. 3. C. 18., reciting that persons who have been guilty of assaulting or obstructing officers of the customs or excise in the due execution of their offices, or of rescuing, or attempting to rescue goods seized by such officers, or of offences against the laws respecting quarantine, being prosecuted for the same by indictment or information in his majesty's court of king's bench, do frequently escape punishment by reason that such persons have not been usually put under any recognizance to answer such indictment or information, unless in cases where some specific pecuniary penalty is imposed, or where the offence having been committed in the county of Middlesex, an indictment for the same has been originally found in the said court of king's hench ; for remedy thereof enacts, that whenever any person or, persons shall be charged with assaulting or obstructing any officer or officers of the customs or excise, in the due execution of his or their office or offices, or any person or persons acting in his or their aid or assistance, or with rescuing or attempting to rescue by force any uncustomed or prohibited goods, after seizure thereof by such officer or officers, or with any offence against any law respecting quarantine, and the same shall be made appear to any judge of his majesty's court of king's bench, by affidavit or by certificate of an indictment or information being filed against such person or persons in the said court for such offence; it shall and may be lawful for such judge to issue his warrant in writing under his hand and seal, and thereby to cause such person or persons to be apprehended and brought before him, or some other judge of the said court, or before some one of his majesty's justices of the peace, in order to his, her, or their being bound to the king's majesty with two sufficient sureties in such sum as in the said warrant shall be expressed, with condition to appear in the said court at the time mentioned in such warrant, and to answer to all and singular indictments or informations for any of the offences aforesaid; and in case such person or persons shall neglect or refuse to become bound as aforesaid, it shall be lawful for such judge or justice of the peace, respectively, to commit such person or persons to the common gaol of the county, city, or place, where the offence shall have

Nn 3

been

But in treason, or felony, if the process be a venire(l) and not a capias, it is error. Semb, 3 Mod. 265. Sho. 75.

been committed, or where he, she, or they shall have been apprehended, until he, she, or they shall have become bound as aforesaid, or shall be discharged by order of the said court of king's bench in term time, or by one of the judges of the said court in vacation; and the recognizance or recognizances to be taken thereupon shall be returned and filed in the said court, and shall continue in force until such person or persons shall have been acquitted of such offence, or in case of conviction shall have received judgment for the same, unless sooner ordered by the said court to be discharged. — 2. The 48 Geo. 3., reciting that these provisions have been found beneficial, and that it is expedient to extend the same to other cases, enacts, that whenever any person shall be charged with any offence for which he or she may be prosecuted by indictment or information in his majesty's court of king's bench, not being treason or felony, and the same shall be made appear to any judge of the same court by affidavit, or by certificate of an indictment or information being filed against such person in the said court for such offence, it shall and may be lawful for such judge to issue his warrant under his hand and seal, and thereby to cause such person to be apprehended and brought before him or some other judge of the same court; or before some one of his majesty's justices of the peace, in order to his or her being bound to the king's majesty with two sufficient sureties, in such sum as in the said warrant shall be expressed, with condition to appear in the said court at the time mentioned in such warrant, and to answer to all and singular indictments of informations for any such offence; and in case any such person shall neglect or refuse to become bound as aforesaid, it shall be lawful for such judge or justice, respectively, to commit such person to the common gaol of the county, city, or place where the offence shall have been committed, or where he or she shall have been apprehended, there to remain until he or she shall become bound as aforesaid, or shall be discharged by order of the said court in term time, or of one of the judges of the said court in vacation, and the recognizance to be thereupon taken shall be returned and filed in the said court, and shall continue in force until such person shall have been acquitted of such offence, or in case of conviction shall have received judgment for the same, unless sooner ordered by the said court to be discharged; and that, if upon the trial of such indictment or information, any defendant so committed and detained as aforesaid shall be acquitted of all the offences therein charged upon him or her, it shall be lawful for the judge before whom such trial shall be had, although he may not be one of the judges of the said court of king's bench, to order that such defendant shall be forthwith discharged out of custody as to his or her commitment as aforesaid, and such defendant shall be thereupon discharged accordingly. - 3. The 38 Geo.3. C. 52. s. 4., enacts, that whenever, in pursuance of this act, any bill or bills of indictment shall be found by the grand jury of the county of any city, or town corporate, against any person or persons, for any offence or offences committed, or charged to be committed, within the county of any city, or town corporate, that it shall and may be lawful for any courts of oyer and terminer, and general gaol-delivery for the county at large, to issue process for apprehending the person or persons against whom such bill or bills of indictment shall be found, if not in custody, in like manner as in cases of indictment found in any such court of oyer and terminer and general gaol-delivery, for offences committed within the county at large. — 4. Independent of these statutes, the practice, in the case of misdemeanours, where no outlawry was even contemplated, was for any judge of the court of king's bench, upon certificate (by the clerk of assize or clerk of the peace, respectively) of indictment found, to award a writ of capias immediately, in order to bring in the defendant. 4 Com. 319. – 5. And it is the established usage likewise, upon an indictment found for a misdemeanour during the assizes or sessions, to issue a bench warrant, signed by a judge or at least two justices of the peace, to apprehend the defendant. i Chit. C. L. 339, 540. 2 Hawk. c. 27. s. 8. C.C.C. 9.15. Toone, 61, 62. Cowp. 289. - 6. The practice in issuing the bench-warrants is stated to be, that where the parties are not under recognizance, the prosecutor has a right, during the assizes or sessions, to this process against them, to bring them immediately into court to answer. But that when the parties are under recognizance, no process can be had against them during the assizes or sessions, because it is looked upon in law as but one day, and the defendant has the whole to make his appearance. i Chit. C. L. 342. C. C. C 9.15. Williams, J. Process. 2 Salk. 607.-7. In such case, however, the prosecutor may, if the defendant has not appeared, bespeak a bench-warrant during the assizes or sessions, which will be issued at the close thereof. — Ibid. . (1) If thc entry is ideo vcniat inde juralu, when it should be præccptum est vice

comiti,

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