48 G. 3. c. 58. in the said court, to such indictment or information, it shall be lawful for the prosecutor, upon affidavit made and filed in the said court of the delivery of a copy of such indictment or information, with such notice so indorsed, to such person, or to such gaoler, keeper, or turnkey, as the case may be, which affidavit may be made before any judge or commissioner of the said court authorised to take affidavits in the said court, to cause an appearance and the plea of not guilty to be entered in the said court to such indictment or information for such person, and such proceeding shall be had thereupon as if the defendant in such indictment or information had appeared and pleaded not guilty according to the usual course of the said court; and if upon the trial thereof the defendant so committed and detained shall be acquitted of all the offences charged there upon him, the judge before whom such trial shall be had, although he may not be one of the judges of the K. B., may order the defendant to be forthwith discharged out of custody as to his commitment as aforesaid, and such defendant shall be thereupon discharged.

Process on an escape.

3 Ed. 1. c. 14.

If a defendant appear to an indictment of felony, and afterwards before issue joined make an escape either from his bail or from prison, the common capias, alias, and pluries shall be awarded against him, unless there had been an exigent before, in which case a new exigent shall be awarded. 2 Haw. c. 27. § 19.

By stat. 3 Ed. 1. c. 14., the exigent shall not be awarded against Process against accessaries until the principal shall be attainted. 2 Haw. c. 27. § 130.

accessaries.

8 H. 6. c. 10. Process into a different

county.

Where indictment is removed by certiorari.

By stat. 8 H. 6. c. 10. § 2., on indictments for treason, felony, or trespass, against persons dwelling in other counties than where the indictment is taken, before any exigent awarded, presently after the first writ of capias awarded, and returned, another writ of capias shall be awarded, directed to the sheriff of the county whereof the person indicted was supposed to be conversant by the same indictment, returnable before the same justices or others before whom he is indicted, at a certain day containing the space of three months from the date of the said last writ, where the counties are holden from month to month; and where they are holden from six weeks to six weeks he shall have four months, until the return of the same writ; by which writ of second capias it shall be commanded to the same sheriff to take the person indicted by his body, if he can be found within his bailiwick; and if he cannot be found within his bailiwick, that the said sheriff shall make proclamation in two counties before the return of the same writ, that he which is so indicted shall appear before the said justices or others in the county, liberty, or franchise where he is indicted, at the day contained in the said last writ of capias, to answer to the king of the felony, treason, or trespass, whereof he is so indicted; after which second writ of capias so served and returned, if he which is so indicted come not at the day of the same writ of capias returned, the exigent shall be awarded. §3. And every exigent and outlawry otherwise awarded or pronounced shall be void.

And if any such indictment shall be removed by certiorari, then before the exigent awarded, presently after such first capias returned, another writ of capias shall be directed as before, returnable before the king in his bench.

§ 5. But this shall not extend to indictments taken in the county of Chester.

Chester excepted. If residing in

same county.

$6. Also, if any person be indicted of felony or treason, and at the time of the same felony or treason supposed was conversant within the county whereof the indictment maketh mention, the like process shall be made against the person so indicted, as hath formerly been used; that is, without sending process into the other county. § 4. But every person indicted in the form aforesaid, after he is After acquittal. duly acquit by verdict, shall have an action upon his case, against the procurer of such indictment; and if such procurer be attainted thereof, the plaintiff shall recover treble damages. Which seemeth to be upon account of the distance at which he is supposed to live from the place where he is indicted, and consequently his extraordinary trouble in that behalf.

Dwelling in other counties.] If the defendant be named of B. Where named and late of C., there is no need of any capias to the sheriff of of different the county where C. lies, because it appears that the defendant counties. is at present conversant at B. But if a defendant be named of no certain place at present, but only late of B. and late of C. and late of D., being all of them in counties different from that wherein the prosecution is commenced, a capias shall go to the sheriff of every one of those counties. 2 Haw. c. 27. § 126.

Shall be void.] Not utterly void, but only voidable by writ of Voidable only. error. Id.

County of Chester.] But it may be awarded into the counties Lancaster and palatine of Lancaster and Durham; and it seems that it shall be Durham. directed to and returned by the chancellor of Lancaster, or bishop of Durham; and it hath been said that if he will not return it, the exigent may be awarded as well as if he had returned it; because the court (of the sessions at least) cannot compel him to return it, and the prosecution might be unreasonably delayed, if the proceedings were to be stayed till he should return it. 2 Haw. c. 27. $125. Hale's Sum. 209, 210.

Mr. Marrow saith, that by the equity of this statute, if a person indicted in one county is imprisoned in another, the justices may award an habeas corpus to remove him before themselves. Lamb. 526.

Concerning the execution of the process, it is laid down as a To be executed general rule, that wherever the king is a party to the suit (as he by the sheriff'; certainly is to all informations and indictments), the process ought

to be executed by the sheriff himself, and not by the bailiff of

any franchise, whether it have the clause non omittas or not, and

whether the defendant be within a franchise or in the county at though in a large; for the king's prerogative shall be preferred to any fram- franchise. chise: but it is said, that this is to be intended only where in the grant of the franchise no mention is made of causes to which the king is a party. 2 Haw. c. 27. § 17.

And if the party be in a house, if the doors be shut, and the Breaking open sheriff (having given notice of his process) demand admittance, doors. and the doors be not opened, he may break open the doors, and enter to take the offender. 2 Hale, 202.

a

Launock v. Brown, E. 59 G. 3., 2 B. & A. 592. Trespass for breaking and entering plaintiff's dwelling-house, and seizing gun. Plea, not guilty. At the trial before Holroyd J. the defendants, two of whom were constables, and the third the game

In the execution of process against any

man in the

case of a mis

Launock v.
Brown.

necessary to de

mand admittance, before

the breaking of the outer door

of the house can be legally justified.

the case of

felony?

keeper of the manor where the plaintiff resided, justified the trespass under a warrant granted by virtue of the stat. 22 & 23 Car. 2. c. 25. § 2., which empowers game-keepers and other persons, audemeanor, it is thorised by warrant under the hand and seal of any justice of the peace for the county, in the day-time to search the houses of unqualified persons suspected of having in their custody guns, &c. for the purpose of destroying game, and to seize, detain, and keep the same, to and for the use of the lord of the manor, or to cut to pieces and destroy them. The plaintiff was proved to be an unqualified person, but on the warrant being produced, several Quare, if so in objections were taken to it as being informal. And it further appearing that the outer door of the plaintiff's house had been broken open without his having been previously requested to open it, the learned judge was of opinion that the justification was not sufficiently made out, and the plaintiff obtained a verdict. And now, on motion for a rule to shew cause why the verdict should not be put aside, and a nonsuit entered, it was contended that the defendants were justified in obeying the warrant; and that if the warrant was informal, the proper remedy of the plaintiff was not against them, but against the magistrate who had granted it. Then, as to the other objection, that the outer door was broken open, he contended that here there appeared to have been a mis. demeanor on the part of the plaintiff; and that in the execution of criminal process, the outer door may be lawfully broken open. If a previous request be held to be necessary, it will be very incon venient; for in many criminal cases, as, for instance, felony, it will give the party accused notice that he may make his escape. - Abbott C. J. I am of opinion that, in this case, the verdict is right. It is not at present necessary for us to decide how far, in the case of a person charged with felony, it would be necessary to make a previous demand of admittance before you could jus tify breaking open the outer door of his house; because, I am clearly of opinion that, in the case of a misdemeanor, such previous demand is requisite; and that is sufficient for the determination of the present case. It is reasonable that the law should be so; for if no previous demand is made, how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the utmost.- Bayley J. The present verdict is quite right, because, even in the execution of criminal process, you must demand admittance before you can justify breaking open the outer door. That point was mentioned in the judgment of the court, in the case of Burdett v. Abbott, 14 East, 163. Holroyd and Best Js. concurred. R.R.

29 C. 2. c. 7.

Process on a
Sunday.

Process discontinued.

But by stat. 29 C. 2. c.7. §6., no person on the Lord's day shall serve or cause to be served any writ, process, or warrant, order or judgment (except in cases of treason, felony, or breach of the peace); but the service thereof shall be void, and the person serving the same shall be liable to answer damages to the party grieved, in the same manner as if he had done it without any writ, process, warrant, order, or judgment at all. See tit. Lord's Day.

It seems to be agreed that every suit, whether civil or criminal, and also every process in such suit against jurors, ought to be properly continued from day to day from its commencement to

its conclusion, without any the least gap or chasm; the suffering any such gap or chasm is properly called a discontinuance; and the continuing the suit by improper process, (as by a capias instead of a distringas,) or by giving the parties an illegal day, is properly called a miscontinuance; and if the justices before whom the matter is depending, do not come on the day to which it is continued, it is said to be put without day, and cannot be revived without a re-summons on re-attachment. 2 Haw. c. 27. § 89. et seq.

Now process may be discontinued several ways. As, 1. Where How process is the second is not tested on the very same day on which the first discontinued. is returnable. 2. Where this is a sessions intervening between the teste and the return of a capias, that the defendant may not be imprisoned an unreasonable time. But it is no objection to an exigent that it is not returnable the next sessions, because it must allow time for five counties to be holden between its teste and return. 3. Where, after issue or demurrer, the court gives the party a day to a distant sessions, without making any continuance to that immediately following. 4. Where the sessions to which the suit is continued is adjourned, and the suit is not adjourned accordingly. 5. Where any of the parties are described in any continuance of the suit, whether on the roll or by process, by a name or addition variant from those in the original, though only in one letter. 6. Where a venire or distringas is issued, without any award on the roll to warrant them. 2 Haw. c. 27. § 90. et seq.

aided.

And it seems generally to be taken as an undoubted principle, Process once that a discontinuance by suffering a total chasm in the proceed- discontinued ings, whether on the roll or in the process, by not giving a fresh cannot be continuance instantly upon the determination of the precedent, shall never be aided by any appearance of pleading over; but it is Aliter, where it holden by the greater number of authorities that if the original be is erroneous or good, and the defendant present in court, he shall be compelled defective. to answer to such original, let the process whereon he came in, or the execution of it, be never so erroneous or defective, so that it never were discontinued; for the end of process is to compel an appearance, and the end being served, and a legal charge appearing against the defendant no way discontinued, the law will not so far regard a slip in the process, as to let the defendant out of court, in order only to have him brought in again in better form. 2 Haw. c. 27. § 107.

bail.

The processes (as well of capias as of outlawry) may be stayed Process stayed by a supersedeas issuing from other justices (out of sessions), testi- by putting in fying that the party hath come before them, and hath found sureties for his appearance to answer to the indictment, or to pay his fine. Dalt. c. 193.

And it seemeth that even any one justice may bail persons indicted at the sessions for any offence under the degree of felony; for that the statutes relating specially to the power of justices in granting bail do not in this case seem to take away the power which one justice had before the making of the said statutes. 2 Haw. c. 15. § 54. See tit. Bail.

One justice may bail after indictment for felony.

offence under

Process of out

lawry.

Meaning of the word outlaw.

Process as to women.

Infant under
twelve.
For what

offences a
person may
be outlawed.

31 E. c. 3.

Outlawry to be
proclaimed at
the sessions,
&c.

4 & 5 W. 3.

c. 22.

II. Of Dutlawry for Non-appearance.

[31 Eliz. c. 3.- 3 & 4 W. 3. c. 9. — 4 & 5 W. 3. c. 18. c. 22.]

Judgment of outlawry is given by the coroner, at the fifth county court, upon the party's not appearing to the exigent (which is a writ commanding the sheriff to cause the defendant (exegi) to be demanded from county court to county court until he be outlawed). And such judgment is entered thus, Therefore by the judgment of the coroners of our lord the king of the county aforesaid he is outlawed. 2 Haw. c. 48. § 21.

The word outlaw (utlaghe), utlagatus, cometh not immediately from the Latin lex, but is derived to us through the Saxon laga, which signifieth law. And a person outlawed signifies one that is out of the protection of the king, and out of the aid of the law.

And a man which is outlawed is called outlawed; but a woman which is outlawed is called waved, and not utlagata; for that women are not sworn in leets or tornes, as men at the age of twelve or more are; and therefore men may be called utlagati; that is, extra legem positi, but women are waviata, that is, derelicte, left out or not regarded, because they were not sworn to the law; wherein it is to be noted, that of ancient time a man was not said to be within the law that was not sworn to the law, which is intended of the oath of allegiance in the leet. 1 Inst. 122.

Hence it is, that a man under the age of twelve years cannot be outlawed. 1 Inst. 122.

Process of outlawry lies in all indictments of treason or felony, and on all returns of rescous; and also on all indictments of trespass with force and arms; and it seems probable that it lies on an indictment of conspiracy or deceit, or any other crime of a higher nature than a trespass with force and arms; but not on any indictment for a crime of an inferior nature. And it seems agreed that it lies not on any action on a statute, unless it be given by such statute, either expressly, as in the case of a pramunire, or impliedly, as where a recovery is given by an action wherein such process lay before, as on a writ of trespass for a forcible entry, on stat. 8 H.6. c. 9., because the statute expressly gives a recovery by such a writ, and such process lies in it by the common law. 2 Haw. c. 27. § 113.

By stat. 31 Eliz. c. 3., in every action personal, wherein any exigent shall be awarded out of any court, one writ of proclamation shall be awarded out of the same court, having day of teste and return as the writ of exigent shall have, directed and delivered of record to the sheriff where the defendant dwells; which writ of proclamation shall contain the effect of the action; and the sheriff shall make one proclamation in the open county court, and another at the general quarter sessions where the defendant dwells, and another a month at least before the quinto exactus, by virtue of the said writ of exigent, at or near the most usual door of the church or chapel where the defendant shall be dwelling at the time of the exigent awarded, upon a Sunday immediately after divine service.

Also by stat. 4 & 5 W.3. c. 22. § 4., upon issuing any exigent out of any of the king's courts against any person for a criminal