A bailiff in his own precinct need not shew his warrant. 135 In what cases bailiffs of towns are authorised to arrest suspected persons. 132 Bigamy was anciently debarred of clergy. 471 A special commission may issue to inquire into By 1 Ed. 6. c. 12. although a man be married 24. s. 27 to two wives or more, he shall have his clergy. the oppression of bailiffs. How far justices of assize may inquire into the conduct of bailiffs. BAR. See APPEAL. 472 36, 37 Persons convicted of bigamy may be transported by 35 Geo. 3. c. 67. 513 BILLS OF EXCEPTION. BLANK WARRANT. See ARREST. A trial by battle is in the election of the defendant in appeals of treason before the marshal; The court may grant an attachment against the and in felony either by the appellants or ap- sheriff or bailiff for making an arrest by force of a blank warrant. 587 209. s. 3 provers. The form, manner, and consequence of waging A justice cannot legally grant a blapk warrant. battle. ib. BLOOD CORRUPTED. 130. 639 549. s. 57 An attainder of treason or felony stains the blood, and renders the party ignoble. 647. s. 47 Corruption of blood abolished, excepting treason or murder, by 54 Geo. 3. ch. 145. Instances of the course of descents which may be barred, by the corrupted blood of one, in the line through which it must pass. 648 person whose blood is corrupted, still retains a capacity to purchase lands, but he cannot hold them. ib. s. 50 what case corruption of blood shall create escheat. A In 649 Blood once corrupted, cannot be restored to its original purity, but by the omnipotence of parliament. ib. s. 51 But issue born after pardon, may inherit in the same 649. s. 51 same manner as if the blood of the ancestor A prisoner who breaks a prison on fire in order had never been corrupted. By 7 Ann. c. 21. and 17 Geo. 2. c. 39. after the death of the Pretender and his sons, no attainder for treason shall corrupt the blood. BREAKING. See ARREST. HOUSE-BREAKING. BREAKING-PRISON. See ESCAPE. RESCOUS. act. to save his life, or from any other act of necessity, and thereby escapes, is not within the 186 s. 11 ib. No breach of prison will amount to felony unless the prisoner escape. ib. s.12 Nor is it felony, it is said, in a stranger who breaks a prison, unless felons thereby escape. ib. A prisoner, whose offence is made capital by by any statute since the statute de frangentibus prisonam, is equally within the act, if he break his confinement, as if it had been so by the common law, or made so before the act. ib. s. 13 Breaking of prison was felony by the common law, if the imprisonment was legal, whether it were for a criminal or a civil cause, or whether the prisoner was actually within the walls, or only in the stocks or personal custody of ano ther. 183. ch. 18 It is immaterial whether it be the king's prisoner or one belonging to the lord of a franchise; for every person who is in lawful custody is the king's prisoner, and whoever breaks therefrom is by the statute de frangentibus prisonam guilty of felony. ib. The confession of having broke prison before the coroner is not traversable at the common law. 184. ch. 18 The offence for which the party was imprisoned must be capital at the time the offence is committed. 187 If the mittimus charge the prisoner with an of fence under the degree of capital, and in truth it be not capital, he cannot be guilty of felony by breaking the prison. ib. s. 15 And if in truth the offence be not capital, although the mittimus charge it to be so, it would be difficult to maintain that a breaking would be felony. By 1 Ed. 2. st. 2. none that breaketh prison A shall have judgment of life or member for breaking of prison only, except the offence for which he was taken required such judgment. ib. s. 3 Any place whatsoever wherein a person, under a lawful arrest for a supposed crime, is restrained of liberty, is a prison within the act. ib. s. 4. ib. person committed for felony where in fact no felony hath been done, cannot be guilty of ib. fclony by breaking from his restraint. It is the crime itself, and not the nature of the charge, that constitutes the offence. ib. The question examined, whether, in prison breach, the felony shall be construed from the charge in the mittimus, or from the real nature of the offence. 188 is immaterial, whether the party who breaks his prison were under an accusation only, or actually attainted of the crime for which he is confined. ib. The imprisonment of a person, who is taken on It a capias awarded on an indictment, is lawful, though eventually the prisoner appear to be innocent, or the prosecution groundless. 185. s. 5 A commitment by lawful mittimus on suspicion of a felony actually done, although the party be not indicted, is a lawful imprisonment within the act. But if no felony were done, nor the party in- As such assistance given to felons will make an dicted, his breaking from prison is no offence. accessary, so if given to traitors it will make high treason. ib. s. 6 ib. s. 7 A person committed for high treason, becomes 189 If a felony were done, yet no just cause of suspi- A person breaking prison may be arraigned for cion, and the mittimus be not in legal form, the offence before he is convicted for the the breaking prison is no felony. ib. s. 8 crime for which he was imprisoned. ib. But if the causes of suspicion be strong enough The offender cannot be arraigned on the sheriff's to justify the arrest, the breaking will be return of a prison breach; he must be infelony although the mittimus be informal. ib. dicted. ib. s. 19 A justice's mittimus is a good justification of im- It must appear by the indictment that the prisonment, and, under any circumstances, offender was lawfully in prison, and for a camakes it dangerous to break therefrom. 186 pital offence. ib. s. 20 There must be an actual breaking of the prison It is not sufficient to say quod felonicè fregit to come within the act. ib. s. 9 ib. Every indictment for this offence as a felony Breakers of prisons whose offence is under the must have the words felonicè fregit prisonam. degree of capital, shall be severely punished by fine and imprisonment. ib. s. 21 By 16 Geo. 2. c. 31. to assist the escape of a prisoner for treason or felony, or to convey instruments to him for the purpose, is transportation. But if the prisoner be confined 186 If a prisoner escape without using violence, he is An escape through a breach which others have made is not within the act. ib. for 258. s. 97 CAPIAS. Doors may be broke open to execute a capias, In what case a capius shall issue, upon a nihil be- 395. s. 10 A capias is not, properly, the first process on an indictment, under the degree of mayhem, or felony, &c. unless given by some statute. ib. s. 11 A capias is the first process on information against a commoner for intrusion, &c. ib. s. 12 Where a capias shall issue in QUI TAM. ib. s. 13 A capias shall issue on a criminal information, if no appearance be entered in four days after subpæna. 396. s. 14 310 A capias is the first process in all indictments of treason or felony. ib. s. 15 Principals and accessaries before the fact in burglary, excluded from clergy. 497 How many days must be between the teste and An indictment for burglary is insufficient with- BURNING IN THE HAND. 397. s. 19 310 A capias shall issue against a defendant who es- 502. s. 121 What it is. 423 CAPITAGE. 112. s. 2 By 4 Hen. 7. c. 13. convicts for murder, not in holy orders, shall be marked with an M; and for felony, with a T, in the brawn of the left thumb. By 18 Eliz. c. 7. every convict admitted to clergy and burnt in the hand, shall be delivered out of prison, and not to the ordinary. 503. s. 124 By 5 Ann. c. 6. persons convicted of larceny If it appear by the caption of an indictment, The canon law is of no force, except where it is If it does not name the justices, or if it omits allowed by, and is consistent with, the com- the word assignat', it is insufficient. 348 mon or statute law of the realm. ib. s. 2 A caption taken ad magnam curiam cum letá tenIn what instances the common law has been tam, is sufficient. 348. s. 124 received, with respect to the benefit of clergy. A caption taken at a leet, without shewing whe ther the court was held by grant or prescrip- | It lies to the College of Physicians in cases where tion, is sanctioned by many precedents. 349 they are empowered to fine and imprison. 400 The caption of an indictment found at the leet, It lies to justices of the peace, &c. even where or other inferior court, must expressly shew, they are impowered finally to hear and deterthat the jurors were twelve in number; that ib. they were of the place, &c. for which the court It lies to commissioners of sewers, notwithstanding is holden, and that it was found upon their the act says they shall not be compelled to ib. s. 126 certify their proceedings. oaths. mine. ib. It lies to remove a presentment in a court leet. ib. It lies to remove the examination of prisoners before justices of peace taken pursuant to the statutes of Philip and Mary. ib. It lies to a private jurisdiction created by act of parliament ib. ib. And quare, if the omission of the jurors names in the caption is not error. ib. How far the omission of certain technical phrases in the caption will, or will not, vitiate the indictment. ib. The caption of an indictment must set forth the day and year when the court was holden. 350. s. 127 It may be recorded as found in the present tense. It must shew in the year of what king it was A certiorari lies to remove an indictment for not taken. doing statute-duty on the highway, or for not repairing a bridge. It lies to commissioners of bankrupts. ib. orari. ib. If the style of the day or year be set forth in any ib. s. 128 CARRIER. A carrier to whom goods are delivered may have an appeal against those who shall take them feloniously away. CASTLE. A visne may come from a castle. CEPIT. 237, s. 44 256 249. s. 77 CERTIFICATE. "Ne unques accouple, &c. shall be tried by the bishop's certificate. 234. s. 36. 245. s. 62 CERTIORARI. ib. It lies to remove an order of bastardy. An appeal of larceny is insufficient without the The king's bench is bound to grant a certiorari to word "cepit." remove an indictment at the instance of the king. ib. s. 27 But if the defendant pray a certiorari it is in the discretion of the court whether they will grant it or not. And the absolute right of a prosecutor to a certiorari is confined to cases where the crown itself is concerned, by the attorney-general. ib. (N. 1) Where a private prosecutor only uses the king's name, it is also granted, unless cause be shewn against it. ib. But every defendant must lay a special ground before the court will grant a certiorari. ib. (N. 1) The court will never grant a certiorari for the removal of an indictment before justices of gaol-delivery, without some special cause. 402 Instances in which the court have removed indictments from justices of gaol-delivery. ib. The court of king's bench will not grant a certiorari for a conviction of recusancy upon a default at sessions. ib. s. 29 It seems a good objection against the granting a A writ or bill of appeal may be removed from certiorari certiorari, that issue is joined below, and a By 5 & 6 W. and M. c. 11. the same is enacted venire awarded. 402. s. 30 concerning certiorari's to the counties palaA certiorari shall never be awarded to remove tine. 407. s. 46 an indictment after conviction, unless for spe- The justices must make a return, although a cial cause. ib. s. 31 proper recognizance be not given according to A certiorari may issue to remove a conviction the act. ib. s. 47 upon the forest law: the reason of it. ib. The above statutes only refer to defendants inThe court will refuse a certiorari to remove a dicted, therefore certiorari's obtained by prorecognizance from justices of oyer and termi- secutors remain as at common law. ib. s. 48 The above statutes do not restrain the power of the king's bench in taking recognizances upon granting certiorari's at common law. ib. s. 49 If such a recognizance varies, either in the sum or the condition, from the directions of the act, yet it is of the same force as before the act was made. ner. 403 No orders of commissioners of sewers ought to be filed without notice. ib. In what manner the king's bench will proceed on a certiorari to commissioners of sewers. ib. ib. certiorari procured by a defendant under the statutes will not be a supersedeas to the courts below, unless the conditions are complied with. ib. If the sureties appear to be worth 201. the justices cannot refuse them. ib. s. 50 By 1 & 2 Philip and Mary, c. 13. no certiorari court. Quare, If some of several defendants find sureties, whether the indictment shall be removed as to all. 408. s. 51 The taxation shall only be of the costs subsequent to the certiorari. ib. s. 52 The prosecutor, by accepting taxed costs, is not restrained from aggravating the fine. ib. s. 53 But under a certiorari at common law, the acceptance of costs is entire satisfaction. ib. 404 The prosecutor, to be entitled to costs, must be either a civil officer, or the party injured. ib. 405 If the prosecutor be a party injured, or a civil officer, and the name is omitted to be indorsed on the back of the indictment, the truth of the fact may be supplied by affidavit. Where a record may be removed into the king's bench without any certiorari. ib. fine, and then applies for his costs under the recognizances, what he has received shall be deducted. ib. By 21 Jac. 1. c. 8. certiorari's for the removal of an indictment of riot, forcible entry, or assault| and battery, from the quarter-sessions, shall be delivered in open court, and before allowance the defendant shall be bound in 10l. with If the prosecutor receive the third part of the sureties, to pay the prosecutor his costs and damages. ib. s. 42 The king's bench, upon the removal of any indictment, required a recognizance from the defendant to carry down the record. 406 By 5 & 6 W. and M. c 11. and 8 & 9 Will. 3. c. 33. defendants prosecuting certiorari's at sessions shall enter into a recognizance of 201. with two sureties, before one justice of the peace, or judge of king's bench, &c. to appear and plead to issue in the king's bench at his own costs, to try the indictment at the next assizes or term, on notice to the prosecutor. 407. s. 44 The payment of the fine does not discharge the defendant's recognizance for the costs. ib. When the costs are taxed they become a vested debt, and the personal representatives of the party may recover them. ib. The court will not order a recognizance at com ib. mon law to stand as a security for costs. But the recognizance shall not be forfeited for not going on to trial, unless the prosecutor give rules according to the practice of the ib. s. 54 After the recognizance, the court will not listen to any motion to quash the indictment or certiorari. 409. s. 55 court. Such recognizances, certiorari's, and indictments, shall be filed in the king's bench, and the name of the prosecutor (if he be the party grieved, or some public officer) indorsed on By 5 Geo. 2. c. 19. No JUDGMENTS OR ORthe back of the indictment. 406 DERS OF JUSTICES OF THE PEACE shall be re- 3 A |