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Prisoners of War.

[52 G. 3. c. 156.]

war to escape.

BY the 52 Geo. 3. c. 156. every person who shall, from and 52 G. 3. c. 156. after the passing of this act, knowingly and wilfully aid or Punishment of assist any alien enemy of his majesty, being a prisoner of war in persons aiding his majesty's dominions, whether such prisoner shall be confined prisoners of as a prisoner of war in any prison or other place of confinement, or shall be suffered to be at large in his majesty's dominions, or any part thereof on his parole, to escape from such prison or other place of confinement, or from his majesty's dominions, if at large upon parole, shall, upon being convicted thereof, be adjudged guilty of felony, and be liable to be transported as a felon for life, or for such term of fourteen or seven years as the court before whom such person shall be convicted shall adjudge.

§ 2. Every person who shall knowingly and wilfully aid or assist Persons guilty any such prisoner at large on parole in quitting any part of his of aiding though majesty's dominions where he may be on his parole, although he they do not shall not aid or assist such person in quitting the coast of any soner in quitting part of his majesty's dominions, shall be deemed guilty of aiding the coast. the escape of such person under the provisions of this act.

assist the pri

escape.

§ 3. If any person or persons owing allegiance to his majesty, Punishment of after any such prisoner as aforesaid hath quitted the coast of any persons assistpart of his majesty's dominions in such his escape as aforesaid, ing, on the high shall knowingly and wilfully upon the high seas aid or assist such seas, prisoners to prisoner in his escape to or towards any other dominions or place, such person shall also be adjudged guilty of felony, and be liable to be transported as aforesaid; and such offences committed upon the high seas and not within the body of any county, shall and may be enquired of, tried, heard, determined, and adjudged in any county within the realm, in like manner as if such offences had been committed within such county.

§ 4. This act shall not be deemed or taken to prevent any Offences may person committing any offence mentioned in this act from being be tried otherprosecuted, in such manner as he might by law have been pro- wise than under secuted if this act had not passed; but nevertheless no person of this act. the provisions prosecuted otherwise than under the provisions of this act, shall be liable to be prosecuted for the same offence under the provisions hereof; and no person prosecuted under the provisions of this act, shall for the same offence be liable to be otherwise prosecuted.

commission.

Process.

Process prior to Indictment, not referable to appearance in
Courts of Record.

See 1. Summons, Vol. V.
2. Warrant, Vol. V.

3. Search Warrant, Vol. V.

4. Commitment, Vol. I.

Process after Indictment, and referable to appearance in Courts
of Record; and herein.

1. To compel an Appearance.
2. Of Outlawry for Non-appearance.

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Process by the BY the commission of the peace, the justices in sessions have power to make and continue processes upon indictments against the persons indicted, until they can be taken, surrender themselves, or be outlawed.

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And by the statute of the 1 Ed. 4. c. 2. indictments and presentments taken in the sheriff's tourn shall be delivered to the next sessions, who may award process thereupon in like form as if they had been taken before themselves.

And the law also in several cases in express words directs process to be made by justices out of sessions; and in other cases by necessary implication; and where a statute doth give power to justices out of sessions, to enquire, hear and determine, there they may make process to cause the party to come and answer, otherwise they cannot proceed to hear and determine; and this may be either before or after presentment or indictment as the several statutes do require: before presentment or indictment it is called a warrant; after presentment or indictment it is properly called process. Dalt. c. 193. page 471.

Commonly an indictment, being but an accusation against a man, is of no force but only to put him to answer unto it. And hereof all process hath the name, because it proceedeth or goeth out upon former matter either original or judicial. Lamb. 519.

And it seemeth plain from the nature of the thing, that there can be no need of process where the defendant is present in court, but only where he is absent. 2 Haw. c. 27.

The process ought to be in the name of the king. And if it issue from the king's bench, it ought to be under the teste of the chief justice; if it issue from any other court, there seems to be the same reason that it ought to be under the teste of the first in the commission. 2 Haw. c. 27. § 8.

Upon an indictment in sessions (for a misdemeanor, not being felony,) there must be fifteen days between the teste and return of the venire; but if the entry be by consent of parties, the venire

may be returnable immediatè, and the trial be the same day.

3 Salk. 371.

Process on an indictment for felony, by the 25 Ed. 3. c. 14. Process for is two capias's and then an exigent. Hale's Sum. 209. 2 Haw. felony. c. 27. § 115.

The ordinary processes upon all indictments of trespass against Process under the peace, or of other offences against penal statutes, not being felony. felony, or a greater offence, are as follow: first, if the offender be absent, a venire facias, which is but in the nature of a summons to cause the party to appear, shall be awarded, except where other process is directed by some statute, 2 Haw. c. 27. § 9.

If it appear by the return of such venire that the party hath lands in the county whereby he may be distrained, the distress infinite shall be awarded from time to time till he do appear, and by force thereof he shall forfeit on every default so much as the sheriff shall return upon him in issues. But if a nihil be returned on such a venire, then three capias's, that is a capias, alias, and pluries, shall issue. 2 Haw. c. 27. § 10.

Where the inhabitants of a parish are indicted or presented, the process is, first a venire then a distringas.

every

Process on informations.

By the 21 J. 1. c. 4. by which all popular actions on penal statutes 21 J. 1. c. 4. are restrained to their proper counties, the like process in popular action, bill, plaint, suit, or information on a penal statute, before the quarter sessions, (or higher courts) shall be awarded as in an action of trespass vi & armis at the common law.

And consequently, the process in all such suits must be by attachment or pone per vadios; and after by distress infinite, where by the return the party appears to be sufficient, otherwise by capias. 2 Haw. c. 27. § 13.

filed, any judg of K. B. may apprehend and

By 48 Geo. 3. c. 58. § 1. it is enacted that whenever any per- 49 G. 5. c. 58. son is charged with any offence for which he may be prosecuted When any perby indictment or information in the king's bench, not being with an offence son charged treason or felony, and the same shall be made to appear to any prosecutable sy judge of the same court by affidavit, or by certificate of an in- indictment or dictment or information being filed against such person in the information said court for such offence, such judge may issue his warrant (not being treaunder his hand and seal, and thereby cause such person to be apson or felony) on certificate prehended and brought before him or some other judge of the of indictment same court, or before some one justice of the peace, in order to his being bound with two sufficient sureties in such sum as the said warrant shall express, with condition to appear in the said court at the time mentioned in the said warrant, and to answer all and singular indictments or informations for any such offence; and if he shall neglect or refuse to become so bound, such judge or justice may respectively commit him to the common gaol of the county, city, or place where the offence shall have been conmitted, or where he shall have been apprehended, there to remain until he shall become bound as aforesaid, or be discharged 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 judg

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hold the part to bail, &e.

48 G. 3. c. 58. ment 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, or by virtue of any writ of capias ad respondendum issued out of the said court, is now or hereafter shall be committed or detained in any gaol for want of bail, it shall be lawful for the prosecutor to cause a copy thereof to be delivered to such person, or to the gaoler, keeper, or turnkey of the gaol, wherein he is or shall be so detained, with a notice 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 shall thereupon for the said space of eight days after such delivery of a copy of the indictment or information as aforesaid neglect to cause an 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 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 king's bench, 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.

Process against

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 3 Ed. 1. c. 14. The exigent shall not be awarded against accessaries. accessaries until the principal shall be attainted. 2 Haw. c. 27. $ 130.

8 H. 6. c. 10. Process in a

By the 8 H. 6. c. 10. On indictments for treason, felony, or trespass, against persons dwelling in other counties than where the foreign country. 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 be fore whom he is indicted, at a certain day continuing 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 com- 8 H.6. e. 10. manded 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. 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.

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

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.

But every person indicted in the form aforesaid, after he is 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. and late of C., there is no need of any capias to the sheriff of the county where C. lies, because it appears that the defendant 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 error. Id.

County of Chester.] But it may be awarded into the counties palatine of Lancaster and Durham; and it seems that it shall be 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.

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