The accessory shall not be outlawed, until after

CHAPTER VII.

OF PROCESS.

3 Edw. 1, ( Westm. I.) c.14, Eng. And forasmuch as it hath been used in some counties to outlaw persons being appealed of commandment, force, aid, or receipt within the same time that he which is appealed for the deed is outlawed; it is provided and granted by the king, that none be outlawed upon appeal(a) of commandment, force, aid, or receipt(b), until he that is appealed of the deed be attainted, so that one like law the principal. be used therein through the realm; (2) nevertheless, he that will so appeal shall not, by reason of this, intermit or leave off to commence his appeal at the next county against them, no more than against their principles which be appealed of the deed; but their exigent shall remain until such as be appealed of the deed be attainted by outlawry or otherwise(c).

attainder of

Justices of over and terminer

5 Edw. 3, c. 11, Eng. 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, any county. because they may not be attached in another county; (2) it is

may award outlawry process in felony to

After indictment of felony, a capias shall

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 persons indicted.

25 Edw. 3, St. 5, c. 14, Eng. Item, It is accorded, that after any man be indicted of felony before the justices in their sessions to hear and determine (d); it shall be commanded to be awarded; the sheriff to attach his body by writ or by precept, which is called a capias; (2) and if the sheriff return in the same writ or precept, that the body is not found, another writ or precept of capias(e), shall be incontinently made, returnable at three

and upon

non est ino. returned, another

capias, re

(a) It seems to be agreed that this statute extends as well to indictments as appeals, 2 Hawk. c. 27, s. 129.

(b) i. e. of being accessories before or after the fact.

(c) If one exigent be awarded against the principal and accessory together it is error only as to the accessory, R. v. Yandell, 4 T. R. 521.

(d) This statute applies only to the general sessions of the peace, and not to the courts of oyer and terminer in Green-street, or at the assizes, R. v. Yandell, 4 T. R. 538; 2 Hawk.c. 27, s. 115.

(e) This second, or alias capias, need not contain a command to the sheriff to seize the goods, R. v. Yandell, 2 Hawk. c. 27, s. 116.

c. 14.

turnable in

weeks after; (3) and in the same writ or precept it shall be 25 E. 3, St. 5. 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; (4) and if the sheriff return, that the body is not three weeks, found, and the indictee cometh not, the exigend shall be shall issue; awarded(a), and the chattels shall be forfeit, as the law of the upon non est inv., crown ordaineth; (5) but if he come and yield himself, or the erigent be taken by the sheriff, or by other minister, before the return shall be of the second capias, then the goods and chattels shall be his goods saved.

awarded, and

forfeit.

awarded

dicted in K.

been awarded

6 Hen. 6, c. 1, Eng. [Recites that indictments had been falsely preferred and found in the King's Bench against absent persons, in order to entail forfeitures upon them.] (3) Our No exigent said lord the king, willing in this case to provide remedy, hath shall be ordained by the advice and assent of the said lords, that before against a any exigent be awarded against such persons indicted before person inthe king in his said bench, writs of capias shall be directed, B., until as well to the sheriff or sheriffs of the county wherein they be capias have indicted, as to the sheriff or sheriffs of the county whereof both to the they be named in the indictments; (4) the same capias having county where the space of six weeks at the least, or longer time, by the dis- found and cretion of the said justices, if the case require it, before the where the return of the same; (5) which writs so returned, the jus- is resident. tices shall proceed in the manner as they have done before this time: (6) and if any exigent be awarded, or any outlawry pronounced hereafter against such persons indicted, before the return of the said writs, the same exigent so awarded, with the outlawry thereof pronounced, shall be void and holden for none. (7) And this ordinance shall indure as long as shall please the king.

8 Hen. 6, c. 10, s. 1, Eng. [Recites that persons had often been falsely indicted in counties where they were not resident, and thus, for want of appearance, they became outlawed, and their goods forfeit.]

indictment

defendant

per

sons reside

counties than

2. And therefore the same our lord the king, of his special Where grace, and by authority of this parliament, for ease and tran- in other quillity of his faithful lieges of this realm, hath caused to be ordained and stablished, that upon every indictment or appeal, by the which any of the said lieges dwelling in other coun- are found, ties(b) then there where such indictment or appeal is or

where the indictments

after capias

(a) After the sheriff hath returned cepi, if he have not the body at the day, the court will not award an exigent on the suggestion of an escape, unless the sheriff will return one, 2 Hawk. c. 27, s. 117.

(b) If the defendant be described in the indictment as "A. B. in the county of L." alias "C. D. of the county of M." the case does not come within this statute, because that which comes under the alias dictus is no way traversable or material. If he be named as of the county of L. and late

and before exigent, another

capias shall to the sheriff

be awarded

of their counties.

8 H. 6. c. 10. shall be taken of treason, felony, and trespass, to be taken hereafter before the justices of peace, or before any other having power to take such indictments or appeals, or other commissioners or justices in any county, franchise, or liberty of England, before any exigent awarded upon any indictment or appeal, in the form aforesaid to be taken, that presently after the first writ of capias, upon every such indictment or appeal awarded and returned, that another writ of capias be awarded, directed to the sheriff of the county, whereof he which is so indicted is or was supposed to be conversant by the same indictment, returnable before the same justices or commissioners before whom he is indicted or appealed at a certain day, containing the space of three months from the date of the said last writ,* where the counties be holden from month to month; and where the counties be holden from six weeks to six weeks, he shall have the space of four months, until the day of the return of the same writ; (2) by which writ of second capias, be it contained and commanded to the same sheriff, to take him which is so indicted or appealed, by his body, if he And if he be can be found within his bailiwick; (3) and if he cannot be not found by found within his bailiwick, that the said sheriff shall make such sheriff, proclamation proclamation in two counties before the return of the same shall be made. writ, that he which is so indicted or appealed, shall appear be

Exigents awarded contrary hereto shall

be void.

fore the said justices or commissioners in the county, liberty, or franchise where he is indicted or appealed, at the day contained in the said last writ of capias, to answer to our lord the king, or to the party, of the felony, treason, or trespass, whereof he is so indicted or appealed; (4) after which second writ of capias so served and returned, if he which is so indicted or appealed come not at the day of the same writ of capias returned, the exigent shall be awarded against such persons indicted or appealed, and every of them.

3. And if any exigent hereafter be awarded upon any such indictment or appeal, against the form aforesaid, or any outlawry be upon that pronounced, as well the exigent so awarded, as the outlawry upon that pronounced, and every of them, shall be holden for none and void(a); (2) and that the party upon whom such exigent against the form aforesaid is awarded, or outlawry pronounced, be not endamaged, nor put to loss of his goods or chattels, lands or tenements, nor of his life.

4. [Persons acquitted upon such indictments may have an

of the county of M., the capias need not go to the sheriff of M.; but if he be described as late of the county of M., and of the county of N. &c., without stating a present abode, the capias must run to all those counties, 2 Hawk. c. 27, s. 126.

(a) Not void, but only voidable on writ of error, 2 Hawk. c. 27, s. 126.

action against the procurers of them, and recover treble da- 8H. 6, c. 10. Images](a).

|

issue, if the

party reside

6. Provided also, that if any of the said lieges, or any their The ordinary heirs, be or shall be appealed or indicted of felony or treason, process shall and at the time of the same felony or treason supposed, he is and was conversant within the county whereof the indict- in the counment or appeal maketh mention, the like process be made indictment against such person so indicted or appealed, as hath been used found. always before this time(b).

ty where

10 Hen. 6, c. 6, Eng. s. 1. [Recites 8 Hen. 6, c. 10, s. 2, down to *]. (2) By which clause of the same statute, that is to say, returnable before the same justices or commissioners before whom he is indicted or appealed, some do think that the writ of capias ordained by the said statute which shall be directed to the sheriff of the county, whereof he that is so indicted or appealed is or was supposed to be conversant by the same indictment or appeal, shall be returned before the same justices or commissioners, or other before whom the indictment or appeal was taken, and not elsewhere. (3) And imagining to defraud and make frustrate the said statute, do sue to remove such indictments and appeals out of the hands of the justices or commissioners aforesaid, into the King's Bench and elsewhere, by certiorari and otherwise, unknown to the party so indicted or appealed, and thereupon sue the process used at the common law before the making of the said statute in the King's Bench and elsewhere, after the removing, to the great impoverishing and vexation of the king's faithful subjects. (4) Wherefore the Confirmation same our lord the king, by the advice and assent aforesaid, of 8 H. 6, and at the special request of the said commons, by authority aforesaid, hath ordained that the said statute be holden and kept, and put in due execution in all points; (5) joined to After indictthe same, that if any such indictments taken, or to be taken ment removbefore any justices of peace, or before any other having power and before to take such indictments or appeals, or other justices or com- exigent missioners in any county, franchise, or liberty of England, ther capias shall be removed before the king in his bench or elsewhere, by shall go to certiorari or otherwise, then after such removing, before any the county in exigent awarded upon any such indictment or appeal in the which the form aforesaid taken, or to be taken, that presently after the was resident. first writ of capias upon every such indictment or appeal awarded and returned, that another writ of capias be awarded,

(a) Which seemeth to be on 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, Burn, J. Process 1.

(b) i. e. as it was at common law. And this is the usual course at this day, that if the felony be committed in A, in the county of B, the indictment uns, "quod I. S. nuper de A, in comitatu B, prædicto," where the indictment is taken, 2 Hale, 196.

c. 10.

ed into K. B.

awarded, ano

the sheriff of

defendant

10 H. 6, c 6. directed to the sheriff of the county, whereof he that is so indicted or appealed, is or was supposed to be conversant by the same indictment or appeal, returnable before the king in his bench at a certain day, containing the space of three months, or four from the date of the said last writ of capias, according to the manner and form that the justices of peace, and other in the said first statute contained, ought to have done, before such removing after the making of the said first statute; and moreover, to make process according to the effect and purport of the said first statute. (6) And if any such exigent be hereafter awarded upon any such indictment or appeal, after such removing against the form aforesaid, or any outlawry thereupon pronounced, as well the same exigent so awarded, as the outlawry thereupon to be pronounced, and every of them, shall be holden for none and void, according as in the said first statute is more fully contained.

33 Hen. 6, c. 1. At the request of the commons, where before this time divers commissioners of our sovereign lord the king, within this land of Ireland to hear, inquire, and determine of felonies, trespasses, and treasons, have put out process of outlawry against divers men before them indyted, as well against men dwelling in other shires, as within the same shire, where the said commissioners sit. And for that, that before commissioners there is no common dayes limitted, as there is in the bench of the king, they will send one capias returnable at this day, and one alias returnable within two days then ensuing, and one pluries returnable within other two dayes then following; and that so done, then they will award one exigent, by the which exigent so awarded, the party shall lose his goods and chattels that not knowing; and so by such mean, every man dwelling in far shires may lose his goods and chattels, they not knowing. Whereupon, the premises consilawry in trea- dered, it is ordained and established by authority of the said son or felony, council, that every exigent for the king, of felonies or treasons to be awarded be void, if not that it be in the bench of the king. And if it be within liberties, for lords of the said liberties, that then it be before their judges of their places, and not before commissioners.

Exigents upon out

shall be

awarded only out of K. B., or by the judges of liberties.

Persons

misdemeanor may be

48 Geo. 3, c. 58(a), s. 1. [Recites the beneficial effects of charged with the English acts, 26 Geo. 3, c. 77, s. 18, and 35 Geo. 3, c.96.] Be it &c., 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,

arrested by warrant of K. B. and

held to bail.

(a) Entitled "An act for amending the law with regard to the course of proceeding on indictments and informations in the court of King's Bench in certain cases; for authorizing the execution in Scotland of certain warrants issued for offences committed in England; and for requiring officers taking bail in the King's suit, to assign the bail bonds to the king."