repeated from time to time, whereby he forfeits on every default the issues returned by the sheriff. But if upon the venire the sheriff return, that the defendant has nothing whereby he can be distrained, a capias issues, and then an aliàs, and then a pluries shall issue, and then the exigent, upon which the defendant may be outlawed (t). But if the prosecutor proceed to outlawry after judgment, one capias (u) only is necessary. Where a capias does not lie, as in proceedings against hundredors, corporators, &c. . and against peers, except in cases of treason, or felony, or breach of the peace, the only mode of proceeding is by venire (x) and distringas. But it was the usual practice before the stat. 48 G. 3. c. 58. for any judge of the court of King's Bench, upon certificate of an indictment found for a misdemeanor, to award a writ of capias immediately, in order to bring in the defendant (p). And in general, unless it be deemed necessary to pursue the offender to outlawry, a capias is issued by the court before which the indictment is found in the first instance. But if the process be continued to outlawry, a greater exactness is necessary, and after the appropriate writs have been issued in regular order, the offender is put in exigent, in order to his outlawry. An outlawry in treason or felony, amounts, as has already been seen, to a conviction and attainder of the offence charged in the indictment, but an outlawry for a misdemeanor, enures only as a conviction of the contempt for not answering, which contempt is punished by the forfeiture of his goods and chattels (z), and all the profits of his real estate. This process lies upon criminal (t) 2 Haw. c. 27. s. 10. (u) 2 Haw. c. 27. s. 111. (x) Tidd's Prac. 110. 4th ed. Burn's Jus. tit. Process, 80. (y) 4 Bl. Comm. 319. (2) R. v. Wilkes, 4 Burr. 2533. informations for offences at common law, as well as upon indictments and presentments (a). The st. 48 G. 3. c. 58. 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 majes ty'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 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 all and singular indictments and 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 in 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. (a) 4 Burr. 2557. U By stat. 48 G. 3. c. 58. s. 3. where any person, by virtue of a warrant of commitment under that act, or by virtue of any writ of capias ad respondendum, issued out of the said court, shall be committed to and detained in any gaol for want of bail, the prosecutor may 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 indorsed, that unless such person shall, within eight days from the time of such delivery, 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 shall, thereupon, for the said space of eight days after such delivery, neglect to cause, &c. appearance, and also a plea or demurrer to be entered in the said court to such indictment or information, it shall be lawful for the prosecutor, upon an affidavit being made and filed in the said court, of a delivery of a copy of such indictment or information, with such notice indorsed thereon as aforesaid, to such person or to such gaoler, &c. which affidavit may be made before any judge or commissioner, &c. of 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, &c. (b). By a late excellent act (c) (b) As to the proceeding, where a person indicted for one part of the united kingdom escapes into another part, or into another county within the same made for the purpose of pre part, see the stat. 24 G. 2. c. venting delays in the trial of persons prosecuted for misdemeanors by indictment or information, in the courts of King's Bench, at Westminster and Dublin, and by indictment at the sessions of the peace, sessions of oyer and terminer, great sessions, and sessions of gaol delivery, in England and Ireland, it is enacted as follows: "That from and after the passing of this act, where any person shall be prosecuted in his majesty's court of King's Bench at Westminster, or in his majesty's court of King's Bench in Dublin, respectively, for any misdemeanor, either by information or by indictment, there found or removed into the same respective courts, and shall appear in term time in either of the said courts respectively, in person, to answer to such indictment or information, such defendant upon being charged therewith shall not be permitted to imparle to a following term, but shall be required to plead or demur thereto, within four days from the time of his or her appearance; and in default of his or her pleading or demurring within four days as aforesaid, judgment may be entered against the defendant for want of a plea; and in case such defendant shall appear to such indictment or information by his or her clerk or attorney in court, it shall not be lawful for such defendant to imparle to a following term, but a rule requiring such defendant to plead may forthwith be given, and a plea or demurrer to such indictment or information enforced, or judgment by default entered thereupon, in the same manner as might have been done, before the passing of this act, in cases where the defendant had appeared to such indictment or information by his or her clerk in court or attorney in a previous term. "By the second section it is provided, that it shall be lawful for the said respective courts, or for any judge of the same respectively, upon sufficient cause shewn for that purpose, to allow further time for such defendant to plead or demur to such indictment or information. "By section 3, that where any person shall be prosecuted for any misdemeanor, by indictment at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery within that part of Great Britain called England, or in Ireland, having been committed to custody or held to bail to appear to answer for such of fence twenty days at the least before the session at which such indictment shall be found, he or she shall plead to such indictment, and trial shall proceed thereupon at such same session of the peace, &c. unless a writ of certiorari for removing such indictment into his majesty's courts of King's Bench at Westminster, or in Dublin respectively, shall be delivered at such session before the jury shall be sworn for such trial. "By sec. 4. it is declared and enacted, that such writ of certiorari may be applied for and issued before such indictment has been found, in the like cases, in the same manner, and upon the same terms and conditions, as if such writ of certiorari had been applied for after such indictment had been found. "By sec. 5. it is enacted, that from and after the passing of this act, where any person shall be prosecuted for any misdemeanor by indictment at any session of the peace, &c. not having been committed to custody or held to bail to appear, to answer for such offence twenty days before the session at which such indictment shall be found, but who shall have been committed to custody or held to bail to appear to answer for such offence at some subsequent session, or shall have received notice of such indictment having been found twenty days before such subsequent session, he or she shall plead to such indict> ment at such subsequent session, and trial shall proceed |