14 If a peer bring an appeal the defend ant fhall not wage battle Page 601 1 OF TRIAL BY PEERS 592 ch.44 16 Where a peer is to be tried by his peers, the king, by commiffion, conftitutes fome peer high fteward pro hac vice, which reciting the indictment authorifes him to receive and proceed upon the fame, and require the peers to attend him, and the lieutenant of the Tower to bring up his prisoner 34 592 f. 133 17 A certiorari goes out of chancery to certify the indictment before the feward indilate 18 The fteward by precept under feal directs a certain day and place at 593 which it fhall be certified ibid. 19 Procefs of the fame kind is directed to the lieutenant of the Tower to bring up his prisoner ibid. 20 The iteward directs another precept to the ferjeant at arms to fummon the peers. Quere, if the parliament be fitting 593 f. 3 21 By 7 Will. 3. all peers are to be fummoned ibid. (N) 22 The form in which a trial by peers is conducted 593 f. 4 23 The clerk of the crown is to arraign the prifoner, but not to infift on his holding up his hand 594 24 In what manner the evidence and verdict are to be given 594 f. 6 25 None but lords who have a vote in parliament can pafs on fuch a trial 594 f. 7 26 Whether upon the trial of a peer the bishops have a right to vote ibid. 27 It is agreed they have a right to vote in a bill of attainder 598 28 They have also a right to vote in questions previous to the trial of a peer 595 29 By 7 Will. 3. c. 3. all peers who have a right to fit and vote fhall be fummoned zo days before the trial, and take the oaths, &c. ibid. 30 No lord of any other country, or of Ireland, nor the fon or heir of any peer hath a right to such a trial 595 9 31 By 20 Hen. 6. c. 9. dutcheffes, counteffes, baroneffes, indicted of treafon or 2 felony, whether married or fole, fhall be tried as peers of the realm would be tried for the offence of which they fhall be indi&ted Page 595 f. 10 32 A queen, confort or dowager, fole, or married to a fecond hufband, be he a peer or commoner; and all peereffes by birth, fole, or married to peers or commoners; all marchionefles and vicounteffes are entitled to a trial by peers 595, 596 But a peerefs by marriage lotes her dignity by marrying a commoner 596 While the parliament is fitting a bishop fhall be tried by the peers 596 f. 12 35 A trial by peers may be of right upon an indictment of treafon or felony, or mifprifion thereof, but for all other crimes a peer fhall be tried by the country 596 f. 13 36 A peer fhall not be tried by his peers upon an appeal of felony 596 f. 14 37 A peer is not by any privilege exempted from being indicted by a grand jury of commoners, either in the king's bench, before commiffioners of oyer, 597 f. 15 38 If a peer abfent himself and cannot be found, he may be outlawed per judicium coronatorum, Sc. or the coroner 597 1. 16 39 The king's bench may allow a pardon pleaded by a peer to an indictment in that court 597 f. 17 40 The king's bench cannot receive a peer's plea of not guilty, or his confeffion ibid. 41 A peer attainted of treafon or felony, may be brought into the king's bench, and demanded why execution fhould not pass 597 f. 18 42 If the day appointed by the house of lords for the execution of a peer fhould lapfe before execution done, a new time may be appointed by the king's bench, the parliament not then fitting, and the record, &c. being properly removed 597 f. 18 (N) If a peer on an arraignment before the lords refufe to put himself upon his peers, he fhall be dealt with as one who ftands mute 597 f. 19 44 One entitled to peerage who pleads 43 as as a commoner cannot afterwards infift on his peerage Page 597 f. 19 45 No queftion ought to be afked of the lord high steward, or of the judges, in the abfence of the prisoner 597 f. 20 46 After the lords are withdrawn, the judges are not to give them any opi- It nion without confulting the rest of the judges, and openly in court 598 47 But the judges may answer the lord high fteward any question in open court, during the abfence of the pri foner ibid. 48 When a peer is tried before the peers in parliament, the lord fteward withdraws with the rest of the peers (Vide page 7) 598 1. 21 49 Where a peer is tried by the lords in full parliament, the house may be adjourned, and the evidence taken by parcels 598 f. 22 50 Where the trial is by commifl on the lord fteward, after verdict, may take time to advise upon it, and his office continues till judgment ibid. 51 On a trial by commiffioners the lords 4 In an indictment no periphrafis or circumlocation whatsoever will fupply thofe words of art which the law hath ap propriated for the defcription of the offence (Vide Indiament, No. 65. 252.) 320. 354 PERJURY. Perjury is not cognizable at common An indictment of perjury on 5 Eliz. 588 610 f. 23 9 Precedent of an information for perjury 370 PER 3 Two witneffes are required upon an indictment of petty treafon 366 f. 144 & p. 603 (N) What is to be done to one who stands mute to an indictment of petty treafon 465 f. 13 5 Quere, whether petty treafon was, at common law, entitled to clergy.—But this is fettled by statute De Clero 7 479 f. 21 6 By 23 & 25 Hen. 8. petty treafon is oufted of clergy 487 f. 50 In petty treason, depofitions taken on the examination, &c. are not fufficient to convict if the deponent be living, though unable to travel, or kept out of the way by the procurement of the prifoner 60; (N) 8 Judgment against a man for petty trea fon is to be drawn to the place of execution, and there hanged, &c. 631 f. 5 9. The judgment against a woman is that fhe fhall be drawn to the place of execution and there burnt ibid. f. 6 10 Whether the wife lofes her dower for PLEADING.-Vide General Issue. Abatement. Bar. Arreft. Juftification. Appeal. Indiment. Inferior judges may be punished by attachment for taking money of a plaintiff or defendant for vicious pleading 226 2 In what manner a defendant is to plead to a qui tam action or information (Vide Information qui tam) 391 to 395 3 How the defect of addition or other error in an appeal may be cured by pleading 5 It does not appear whether there can be any acceffaries in præmunire Page 441 f. 6 6 A pardon of all misprifions, trefpafies, offences, and contempts, will pard in a præmunire 549 f. 26 7 The judgment in præmunire 631f.9 8 The ftatutes of præmunire which give a general forfeiture of all the lands and tenements of the offender extend not to land in tail 644 f. 28 9 It is unfettled whether the forfeiture in præmunire fhall relate to the time of the offence, or only to that of the judg6446 31 ment 2 The king may lawfully claim the franchife of making coroners by prefcription; but no fubject can so do 72 f. 11 3 In what cafes the lord of a leet may prescribe to diftrain for an amerciament 1136. 2 1064 Quere, if a vill may be bound by prefcription to provide a pillory and tumbril 1141.5 5 The caption of an indictment taken at a court leet need not fhew that it was holden by grant or prefcription 115 6.7 PRECEPT-Vide Procefs. Jurors. Gaol-delivery. PREGNANCY. 4 Violent prefumption from plain circumftances is in fome cafes taken for full proof 618 f. 424 5 Probable prefumption is of fome weight; but light presumptions ought not to be regarded at all ibid. tion as to admitting the party to bail Page 166 f. 66 If the commitment be by colour of any ufurped authority or pretended patent, the court will discharge without bail ibid. Ancient opinions and determinations refpecting commitment by the privy 166, 167 council By 16 Car. I. c. 10. perfons restrained of their liberty by warrant from the council board, fhall have a habeas corpus 169 5 Whether the privy council may lawfully commit perfons for treason and for other offences against the ftate 181 & (N) 1, 2, 3 6 By 33 Hen. 8. c. 23. the king's coun cil may examine treasons, mifprifions, and murders, and the prifoners may be tried in any county by the king's commiffion 569 This ftatute, as far as relates to treason done within the realm, is repealed 7 2 601 7 In what inftances of misconduct a prifon keeper may be punished by attach 3 227 4 ment PRIVATELY STEALING. Vide Clergy No. 59 to 64-68 to 74. PRIVY COUNCIL.- Vide Commit ment. 1 Wherever a commitment by the privy council fpecially expreffes the crime, the king's bench will exercife its difcre 569 f. 3 PROCEDENDO.-Certiorari. PROCESS.-Venire. Juftices of the peace by virtue of 1 Ed. 4. c. 2. may award procefs upon indictments found at the fheriff's torn 111 f. 74 In what cafes attachment may be iffued for abuses of the process of the court 230, 231 What process is to be awarded against appellees 297, 298 No procefs without writ can be well awarded on an indictment, &c. from any court out of the county wherein it fits; but by writ it may be well awarded into any county of England either by the king's bench, juftices of eyre, or justices of eyer, and terminer : But justices of the peace have not this power 5 All procefs to which the king is a party ought to have the clause of non omittas, &c. 401 f. 5 400 |