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or felony is a capias (b), by which the sheriff is commanded, that he omit not, on account of any liberty &c. to take the defendant if he be found within his bailiwick, and to produce his body before the court, on a day named, in order to answer the charge.
If this writ issue from the King's Bench, it should be tested by the chief justice (c), or, during a vacancy, by the senior judge; if it issue from any other superior court, it should be tested by the first of those named in the commission (d); and if the indictment be taken before justices of the peace at sessions, though the process must be awarded by two at the least, the capias, it seems, may be tested by one (e).
In all cases, the writ must be in the name of the king (f), though, if it issue within a county palatine or liberty, it must be tested in the name of the owner of such county palatine or liberty.
This writ may be issued by the Court of King's Bench upon any indictment originally found- there, or removed thither, directed to the sheriff of the county where the party is indicted; and upon a non inventus returned, and a testatum that he is in another county, the court may award the testatum capias into any other such county (g).
Justices of gaol delivery cannot issue a capias, for their commission extends only to the delivery of the gaol (h); but justices of oyer and terminer may issue the capias, and proceed to outlawry upon it; and so may justices of the peace (¿).
And Lord Hale was of opinion, that a coroner might make process of outlawry (k).
Justices of the peace in sessions are empowered by their commission to make and continue processes against persons indicted, until they can be taken, surrender themselves, or be outlawed; and the same authority is vested in them by the stat. 5 E. 3. c. 11. and 1 E. 4. c. 2.
Where the process is awarded from the King's Bench into any other county, there should be an interval of 15 days at least between the teste and return of every procèss; but where the process is awarded into the same county where the court sits, this is not necessary (/). Where it is awarded by the justices of oyer and terminer and general goal delivery, it is made returnable at the next session of oyer and terminer and gaol delivery.
The writ is directed to the sheriff, &c. of the county or `division for which the court sits, before which the indictment was taken; but if the defendant dwell in another county, process may be directed thither by virtue of the statute 5 E. 3. c. 11. which 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; and enacts, "That justices, assigned to hear and determine such felonies, shall direct their writs to all the counties of England, when need shall be to take such persons indicted." Since an appeal could not be taken before justices of the peace, it has been doubted, (m) whether they were within the meaning of this statute, but they certainly are within the express words of
(A) 2. Hale 199. 27 Ass. 47.
(m) 2 Haw. c. 27. s. 3.
it; and the intention of the legislature would be in part frustrated by an exclusive construction. 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
A capius may issue against a peer of the realm, in case of treason, felony, or breach of the peace (o).
The sheriff either brings the party into court upon the return of the capias, or returns non est inventus.
Upon the latter return, in cases of treason and homicide (p), the writ of exigent issues immediately; but, in indictments for any felonies but homicide, it appears to be doubtful, whether a second capias was not formerly requisite previous to the exigent (q); Lord Hale, however, expressly says, that the process in his time, in case of any felony, was one capias and then an exigent (r). But to this rule there are some exceptions (s).
1. In favour of those who are charged as accessories either before or after the fact; or, since their guilt is purely derivative, it is an incontrovertible rule, that no accessory can be convicted before the conviction of his principal, and as an outlawry in felony is equivalent to a conviction, it follows, that process of outlawry ought not to issue against the accessory previous to the outlawry of the principal.
2dly. In case of indictments of felony before justices in their sessions.
(o) 2 Hale, 199. Cro. Eliz. 503.
(p) 2 Haw. c. 27. s. 112. (q) F. Cor. 184. 234, F. Exig. 3. 2 Haw. c. 27. s. 112. 2 Hale, 194.
(r) 2 Hale, 195.
(s) An alias and pluries were not unfrequent at common law. See Trem, 280.
3dly. In favour of those whose residence in another county renders further process necessary, according to the provision of several statutes.
1. In favour of accessories, the stat. 1 West. (t) recites, that it had 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; and enacts, that none be outlawed upon such appeal, unless he that is appealed of the deed be attainted, so that one like law be used therein throughout the realm; and directs further, that their exigent shall remain, until such as be appealed of the deed be attainted by outlawry or otherwise.
This statute, it has been holden, extends to indictments as well as to appeals (u): for the reason of the rule comprehends both. They were both upon the same footing at common law (x), and the act itself, from its terms, appears to have been intended to remedy an abuse, which partially prevailed, and not to alter the practice at common law.
Where, then, one is charged in an indictment as the principal, and another as accessory, the process by capias is against all, but the exigent issues against the principal only; and the process should be continued, by capias infinitè, against the accessory till the principal be outlawed, and then an exigent should issue against the accessory, because then the principal is attaint by the outlawry; and if the accessory appear upon the capias, he should be admitted to bail, and have the same day given by bail, till the process be determined against the principal (y).
(t) 3 E. 1. c. 14.
(u) Summ. 210. 2 Hale, 200.
2 Ins. 183.
(a) 2 Haw. c. 27. s. 129.
Brac. 127. Britt. f. 5. 2 Ins. 183.
(y) 2 Ins. 183. St. 1 West. c. 14. Staundf. c. 17. f. 69. 2 Hale, 200.
If A. and B. be indicted as principals in the felony, and C. as accessory to both, it seems the exigent shall stay till both be attainted; but he may be convicted upon an indictment, though it appear that he was accessory to the one only, yet it seems to be otherwise in case of appeals (a).
And if several be appealed, and some appear and plead in abatement of the whole writ, or in bar of the whole proceeding, the suit shall be continued against the defaulters by capias only, and no exigent shall be awarded till such plea be determined (b).
If the exigent issue against both principal and accesBory, who are charged as such, the writ will be good as against the former, though not as against the latter (c); and should an outlawry be pronounced against the accessory, in such case he may traverse it, for its illegality is apparent upon the record (d). But upon an appeal, where the writ is general, and does not distinguish between principal and accessory, it is difficult to say how the accessory is to take advantage of the statute (e).
But if the appellor take out the exigent against all as principals, he is estopped from counting against any of them as accessories, according to the opinions of Staundforde, Lord Coke (f), and Lord Hale (g); this, indeed, has since been doubted by Serjeant Hawkins, on the ground that the defect consists in process only, and therefore is cured by appearance.
But it is to be observed, that here the defect does not
(a) 9 Co. 119. 2 Hale, 200, 201. 2 Ins. 183. 2 Haw. c. 27. s. 132.
(b) Sum. 210. 2 Haw, c. 27. s. 118.
(c) 4 T. R. 521. 2 Haw. c. 27. s. 131. 8 H. 5, 6.
(d) 2 Haw. c. 27. s. 130. 43 E. 3. 17, 18, 34.
(e) 2 Haw. c. 27.
(g) 2 Hale, 200. see 7 H. 4. 27. F. Cor. 80. 40 Ass. 25.