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guilty of the crime of being found armed at night as aforesaid, it shall and may be lawful for such justice to admit such person or persons so charged to bail, and, in default of bail, to commit such person or persons to the county gaol until the next general quarter sessions of the peace, or the next general commission of gaol delivery, to be holden for the same county or place, there to be tried and dealt with as by this act is directed; and, if in Scotland, until such person or persons so charged shall be dealt with as any person or persons charged with a transportable offence may be dealt with according to the law and practice of Scotland.

III. And be it further enacted, that if any person or persons persons shall, after the passing of this act, unlawfully found in any enter into or be found in any forest, chase, park, wood, at night,

c. plantation, close, or other open or inclosed ground at night, with any according to the provisions of this act, with respect to what net, engine, shall be deemed night, for the purposes hereof, having any &c. for denet, engine, or other instrument, for the purpose, and with stroying the intent, to destroy, take, or kill, or shall wilfully de- be taken stroy, take, or kill game, it shall and may be lawful to and before a for the ranger and rangers, and to and for the owner and justice. owners, 'occupier and occupiers, of any such forest, chase, park, wood, plantation, close, or other open or inclosed ground, and also for his, her, or their keeper and keepers, servantand servants,and also for any other person or persons, to seize and apprehend, or to assist in seizing and apprehending, such offender or offenders, by virtue of this act, and, by the authority of the same, to convey and deliver such offerder or offenders into the custody of a peace'officer, who is hereby authorized and directed to convey such offender or offenders before some one of his majesty's justices of the peace for the county or place where such offence shall be alleged to have been committed, to be dealt with according to law.

Note.-An indictment on this sta- and one has arms without the know. tute, for having entered into any ledge of the others, the others are forest, chạse, &c., must, in some not liable to be convicted under the way or other, particularize the act: R. v. Southern, id. 444. It will place, as by setting forth the name, be observed, that this statute comownership, occupation, or abuttals; prises “any forest, chase, park, for the offence is substantially local, wood, plantation, close, or other and the defendant is entitled to know open or enclosed ground.” The to wbat specific place the evidence 3 Gev. 4, c. 114 (the hard-labour is to be directed: R. v. Ridley, act), only mentions" any open or R. & R. 515. In the construction enclosed ground.” It has been of the act it has been holden, that if holden, however, that, upon a conseveral are together, and anyone of viction under the 57 Geo. 3, of en. them is armed, the others are liable tering a wood with intent, &c., the to be convicted : R. v. William Smith court may pass sentence for hard and others, R. & R. 368; 5 Burn,611. labour, under the 3 Geo. 4, c. 114 ; But, that if several are out together, R. v. Parkhurst, R. & R. 503.

510

PRISON BREACH.

1 Ed. 2, stat. 2, c. 1. Concerning prisoners which break prison, our lord the king willeth and commandeth, that none from henceforth that breaketh prison shall have judgment of life or member for breaking of prison only, except the cause for which he was taken and imprisoned did require such judgment, if he had been convict thereupon according to the law and custom of the realm, albeit in times past it bath been used otherwise.

Note. As an actual breaking is B. a mortal wound, is committed the gist of this offence, it must be to prison, and then breaks prison, stated in the indictment; and, in and B. dies within the year, but order to bring the offender within after the prison-breaking, in this the intention of this statute, the in- case, though the death has relation dictment must shew that he was to the stroke, yet, because relalawfully in prison, and for such a tions are but fictions, and fictions crime as requires judgment of life are not here intended, this escape or member; and it is not sufficient is no felony: Cole's case, Plowd. Com. to say in general “ that he feloni- 401. To constitute the offence of ously broke prison :" 1 Russ. 381; 2 prison-breach, there must be an Inst. 591. If a person be taken actual breaking, and not such force upon a capias, awarded on an in- only as may be implied by construcdictment against him for a sup- tion of law; therefore, if the party posed treason or felony, he is go out of prison without any

obstrucwithin the statute if he break the tion, as in case of open doors, &c. prison, whether any such crime he is guilty only of a misdemeanor,

or were not committed by 1 H. P. C. 611 ; but there need him, or any other person, for not, it seems, be any actual intent there is an accusation against him to break, to constitute the offence. on record, which makes his commit- Where, therefore, it appeared that ment lawful, however innocent be the prisoner made his escape from may be. So, also, he will be within the house of correction, by tying the statute if he be committed by a two ladders together and placing magistrate, under good grounds of them against the wall of the yard, suspicion : 2 Inst. 590; 1 H. P.C. and, in making his escape, had 610; 1 Russ. 378. With regard thrown down some of the bricks of to the nature of the crime for which the wall, this was held to be a the party is committed, is clear sufficient breaking : R. v. Haswell, that, to make him guilty of feloni. R. & R. 458. It may be observed, ous prison-breaking, the crime for lastly, that the statute extends as which he is committed must be ca- well to a prison in law, as to a pripital, at the time of such breaking: son in deed: 2 Inst. 589. i Russ. 379. Therefore, if A. give

were

511

PROCESS,

1. SUMMARY PROCESS.
2. PROCESS OF OUTLAWRY.

48 Geo, 3, c. 58.
Whereas the provisions contained in two acts of the 26th
and 35th years of his present majesty's reign, for amend-
ing the law with regard to the course of proceeding on
indictments and informations in the Court of King's Bench,
in certain cases relating to the public revenue, have been
found beneficial, and it is expedient to extend the same to
other cases : be it therefore enacted, &c., that whenever When any
any person shall be charged with any offence for which he person is
or she may be prosecuted by indictment or information in with any
his majesty's Court of King's Bench, not being treason or offence, not
felony, and the same shall be made appear to any judge of being trea-
the same court by affidavit, or by certificate of an indict- son or felo-
ment or information being filed against such person in the which he
said court for such offence, it shall and may be lawful for may be
such judge to issue his warrant under his hand and seal, prosecuted
and thereby to cause such person to be apprehended and ment or in-
brought before him or some other judge of the same court, formation in
or before some one of his majesty's justices of the peace, in K. B.; any
order to his or her being bound to the king's majesty with judge of the
two sufficient sureties, in such sum as in the said warrant issue his
shall be expressed, with condition to appear in the said warrant to
court at the time mentioned in such warrant, and to an-

apprehend swer to all and singular indictments or informations for any who shall' such offence; and in case any such person shall neglect or be there. refuse to become bound as aforesaid, it shall be lawful for upon held such judge or justice respectively to commit such person to the common gaol of the county, city, or place where the charge, or offence shall have been committed, or where he or she shall on failure of have been apprehended, there to remain until he or bail, sha!!

be commitshe shall become bound as aforesaid, or shall be dis

ted, &c. charged 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 where any person, either by virtue of such warrant of commitment as aforesaid, or by virtue of any writ of capias ad respondendum, issued out of the said court, is now detained or shall hereafter be committed to and detained in any gaol for want of bail, it shall be lawful for the prosecutor of such indictment or information to cause a copy thereof to be delivered to such person, or to the gaoler, keeper, or turnkey of the gaol wherein such person is or shall be so detained, with a notice thereon

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party ;

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indorsed, that unless such person shall, within eight days from the time of such delivery of a copy of the indictment or information as aforesaid, cause an appearance, and also a plea or demurrer, to be entered in the said court to such indictment or information, an appearance and the plea of not guilty will be entered thereto in the name of such person ; and in case he or she shall thereupon for the said space of eight days after such delivery of a copy of the indictment or information as aforesaid, beglect to cause an appearance, and also a plea or demarrer to be entered in the said court, to such indictment or information, it shall be lawful for the prosecutor of such indictment or information, upon an affidavit being made and bled in the said court, of the delivery of a copy of such indictment or information, with such notice indorsed thereon, as aforesaid, to such person, or to such gaoler, keeper, or turnkey, as the case may be, wbich afbdavit may be made before any judge or commissioner of the said court authorized 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 proceedings 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 that if, upon the trial of such indictment or information, any defendant so

committed and detained as aforesaid, shall be acquitted Party ae- of all the offences therein charged upon bim or her, it shall quitted, may be lawful for the judge before whom such trial shall be be dis

had, although he may not be one of the judges of the said charged.

Court of King's Bench, to order that such defendant shall be forth with discharged out of custody as to his or her commitment as aforesaid, and such defendant shall be

thereupon discharged accordingly. Note.- Process is so denominated signed by a judge or justices of the because it proceeds or issues forth in peace, or two of the latter, to aporder to bring the defendant into prehend the defendant; and, when court to answerthe charge preferred the assizes and sessions are over, against him, and signifies the writs the clerk of assize and clerk of the or judicial means by which he is peace respectively, will, on the apbrought to answer: 1 Chit. Cr. L. plication of the prosecutor, grant a 338. That proceeding, which is certificate of the indictment having called a warrant before the finding been found upon which any judge of the bill, is terwed process when of the King's Bench, or justice of issued after the indictment has been the peace of the proper county, found by the jury: ib. and see Dalt. will grant a warrant for appreJ.c. 193; Burn J. vol. 3, process. It hending the defendant, and will appears now to be the established oblige him to enter into recognizance practice, independently of this sta- to answer, or for want of sureties tute, upon an indictment found for will commit him : see 1 Chit. Cr. L. a misdemeanor at the assizes or ses- 339, and the various authorities sions, to issue a bench warrant, there cited.

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2. PROCESS OF OUTLAWRY.

5 Ed. 3, c. 11. " Item, where in times past some persons, appealed or indicted of divers felonies in one county, or outlawed in the same county, have been dwelling or received in another county, whereby, such felonious persons indicted and outlawed have been encouraged in their mischief, because they may not be attached in another county ; it is enacted, that the justices assigned to hear and determine such felonies, shall direct their writs to all the counties of England, where need shall be, to take such person indicted.”

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18 Ed. 3, c. 5. « Item, that no exigent shall from henceforth go out, in case where a man is indicted of trespass, unless it be against the peace, or of things which be contained in the declaration made in this case at the last parliament holden at Westminster.''

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25 Ed. 3, st. 5, c. 14, Item, it is accorded, that after any man be indicted of felony before the justices in their sessions, to hear and determine, it shall be commanded to the sheriff to attach his body by writ or by precept, which is called a capias : and if the sheriff return in the same writ or precept, that the body is not found, another writ or precept of capias shall be incontinently made, returnable at three weeks after; and in the same writ or precept it shall be comprised, that the sheriff shall cause to be seized his chattels, and safely to keep them till the day of the writ or precept returned : and, if the sheriff return that the body is not found, and the indictee cometh not, the exigend shall be awarded, and the chattels shall be forfeit, as the law of the crown ordaineth ; but, if he come and yield himself, or be taken by the sheriff, or by other minister, before the return of the second capias, then the goods and chattels shall be saved.

Note. At common law, in case practicable, the common law proof felony or treason, there was but cess, in cases of treason and feloone capias, and upon non inventus re- nies, is still retained; the process turned, an exigent was awarded; and consisting only of one capias and an so to the outlawry : 2 H. P. C. 194. exigent : 4 Blac. Comm. 319. This This statute was evidently intended seemns, however, to be contradicted to increase the number of writs ofca- by the case of R, v.Yandall, 4 T. R. pias, and thus to moderate the rigour 524, from which it appears that it is of the law. But, as it extends not usual to issue three writs of capias to treason, and as its provisions in all cases. have been found in most cases im

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