thereupon at such same session of the peace, session of oyer and terminer, great session, or session of gaol delivery, respectively, 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 last-mentioned session before the jury shall be sworn for such trial, any law or usage to the contrary notwithstanding.

"By sec. 6. it is provided that the act shall not prevent indictments found by a grand jury of any city or town from being removed to an adjoining county to be tried. 38 G. 3. c. 52.

"And by sec. 7. that the court may, on sufficient cause shewn, allow further time for pleading, &c.

"By sec. 8. that in prosecutions by the attorney or solicitor-general, copy of the information or indictment to be delivered to the party.

By sec. 9. that in case such prosecution is not brought to trial within twelve calendar months, it shall be lawful for the court in which such prosecution shall be depending, upon application to be made on the behalf of any defendant in such prosecution, of which application twenty days previous notice shall have been given to his majesty's attorney or solicitor-general, to make an order, if the said court shall see just cause so to do, authorizing such defendant to bring on the trial in such prosecution; and it shall thereupon be lawful for such defendant to bring on such trial accordingly, unless a nulle prosequi shall have been entered in such prosecution.

"By sec. 10. it is enacted, that nothing in this act contained shall extend or be construed to extend to any prosecution by information in nature of a quo warranto, or for the non repair of any bridge or highway."

III. The stat. 21 J. 1. c. 4. directs that the like process

in every information (by a common informer) to be commenced, sued, or prosecuted by force of or according to the said act, be had and awarded to all intents and purposes as in an action of trespass vi et armis at the common law; and, therefore, the process must be by attachment and distress infinite, where by the return the party appears to be sufficient, otherwise by capias (d).

Process upon default.

If the defendant appear to an indictment of felony, and before issue joined make his escape, the process against him is by capias (e) and exigent, as before, unless there had before been an exigent, and in that case a new exigent (f) shall be awarded. If the default be after issue joined and an issue awarded to try it, then if he has been brought in upon a capias, a capias ad audiendam juratam should be awarded (g) against him. But where he has appeared upou the exigent, and makes default after issue joined, a new exigent should be awarded, and if he appear upon the new exigent, he should, according to Lord Hale (h), plead de novo; for, by the exigent, it seems both the issue and inquest are without day, but Serjeant Hawkins (i) is of opinion, that though the inquest is put without day by the exigent, it is not waived, and that the court may cause the same inquest to try the same issue, unless the defendant fail to render himself before the return of it.

IV. Of defects in process.

It would swell out this branch of the subject to an insufferable length, to detail the tedious string of decisions founded upon petit defects in process; it would not,

(d) See 2 Haw. c. 27. s. 13. (e) 2 Haw. c. 27. s. 19. (f) 19 H. 8, 1, 2 Haw. c. 27. s. 19.

(g) 2 Haw. c. 27. s. 19.
(h) 2 Hale, 225.

(i) 2 Haw. c. 27. s. 20.

however, be proper to dismiss the subject without some general observations.

1. A discontinuance is of two kinds, the first consists in suffering a total chasm in the proceedings, whether on the roll or in the process, by not giving a fresh continuance instanter upon the 'determination of the preceding one (). As where a second writ is not tested on the day of the return of the preceding one (1), or where, after issue joined, the process is not continued, from time to time, against the jurors, returnable on the same day to which the suit is continued on the roll against the parties (m). And with respect to discontinuances of this description, it is a general rule that they are not cured by the appearance of the party, or even by his pleading over (n).

The second kind of discontinuance seems to consist of cases where, though there is an actual continuance upon the roll and of process, yet it is defective and void in point of law; as where a whole term intervenes between the teste and return of a capias, which the law will not permit least the defendant should be imprisoned an unreasonable time (o), but the same objection does not apply to continuance of an original by any other process, though a term should intervene between the teste and return (p).

So, if after issue or demurrer a day is given to a distant term without making any continuance to the next (q).

Or if any of the parties be described in any continuance of the suit, whether on the roll or by process,

(k) 2 Haw. c. 27. s. 102.

(7) 1 Salk. 51. 6 Mod. 281. Yel. 204.

(m) 2 Haw. c. 27. s. 90.

(n) 1 Buls. 143. Yel. 204.

2 Haw. c. 27. s. 102.

(0) 2 Haw. c. 27. s. 8. Dy.

175.

(p) Ib.

(g) Cro. J. 236. Yel. 169. 1 Buls. 144. 3 Buls. 233.

by a name or addition which varies from the original (r); or if a venire omit any of the parties (s); or if a venire or distringas be issued without any award on the roll to warrant it (t).

But a discontinuance of this kind, the defendant having a day on the roll, is cured by his appearance (u); for, it has been asked, would it not be as trifling, to dismiss a person only in order to send for him again. And in criminal cases it could not but be of the utmost inconvenience to give the defendant, who is actually in the power of the court, an opportunity of escaping (x).

But a discontinuance of any kind, in process against jurors, has the same effect with a chasm in the process: but such a discontinuance will not abate the original proceeding. If it appear before the trial, the court will direct new process to be awarded where the first fault happened (y); if after trial, a new venire, to have the whole issue tried again, for the first trial was unwarranted. But if judgment be given on a verdict by a jury erroneously procured, it will be erroneous (2).

So it seems that any other error in the process against jurors, will occasion a mistrial as much as those which are termed discontinuances (a); as where an improper process (b) is awarded, where it is directed to a wrong offi

cer (c), has a wrong (d) venire, misrecites former (e) process, is misreturned or not returned (f) at all. But if the error consists in a mere misprision of the clerk, and be discovered before trial, it seems to be amendable at common law (g).

2ndly. A miscontinuance appears to be any error in process which does not amount to a discontinuance.

It has not unfrequently been holden, that if a defendant, upon his appearance, expressly except to an inferior error of this nature before he has pleaded over, he ought to be discharged, and that new process should issue where the defect first happened; but stronger authorities deny this doctrine (h); from these it appears that if the original be good, and the defendant be present in court, he shall be compelled to answer it notwithstanding any defect in the process, provided it do not amount to a discontinuance; for the end of a process is to compel an appearance, and that end being served, and a legal charge appearing against the defendant no way discontinued, the law will not so far regard a slip in the process as to let the defendant out of court in order only to have him brought in again in better form (i). In the case of Widdrington v. Charlton, it was resolved by the court of King's Bench, upon great deliberation, that the defendant upon an appeal of death coming in upon the exigent, which was erroneous for want of the words de morte viri, had cured the error by his appearance, although he craved oyer of the process and demurred (k).

(c) Cro. Eliz. 574. 586. Yel.

15. 5 Co. 36.

(d) Cro. Eliz. 468. (e) Cro. J. 89.

(f) 8 Co. 310. 2 Haw. c. 27. s. 105.

(g) 2 Haw. c. 27. s. 105.
(h) 2 Haw. c. 27. s. 102.

Sid. 100. 260. F. Error, 47. 46 E. 3. 30. B. Error, 28. 2 Haw. c. 27. s. 102.

(i) 2 Haw. c. 27. s. 102. (k) 10 Mod. 86. 1 Salk. 59. Note, Mr. J. Powell differed from his brethren.