time, by which he loses issues on each default; but if he is not summoned, then a capias issues, and the prosecutor may go on to outlawry, as in felony.

Bench Warrant and Certificate of Indictment found.]-But the prosecutor has also a right in the last-mentioned cases, as well of misdemeanour as felony, during the session at which the bill is found, or the articles exhibited, to have a bench warrant against the offender to apprehend him, and bring him immediately into court to answer, or, if the court is not then sitting, before the signing or some other justice of the county, &c. to find sureties for personal appearance at the then present, or at the next session. This warrant is obtained from the clerk of the peace, and must be signed by two justices at least, and, as is said by Hawkins (s), while the court is sitting. If the sessions are over, the clerk of the peace will, on application of the prosecutor, grant a certificate of the indictment having been found, on which any judge of the queen's bench, or justice of peace of the proper county acting out of session, will grant a warrant for apprehending the defendant, and oblige him to enter into recognizance to appear at the next sessions to answer the indictment, or, for want of sureties, will commit him (t). This is the established practice, independently of 48 G. III. c. 58, s. 1, and other statutes (u).

Practice as to Bench Warrants where Offender though under Recognizance to appear, does not.]-Where the party indicted is under recognizance to appear at the sessions at which the indictment is found, no process can be had against him during that session; because, being looked on at law as one day, whatever may be its duration, the defendant has the whole of it in which to make his appearance (x). But if he has not appeared, the prosecutor may bespeak a bench warrant during the session, which will, it is said, be issued at the close thereof (y). If no bench warrant be applied for before the sessions are over, the clerk of the peace will grant the prosecutor a certificate, that the indictment has been found against the defendant, upon which a warrant will be granted by any single justice of peace for arresting the party, and obliging him to enter into recognizance to appear at the next sessions (viz. after the arrest,

(8) Lib. 2, c. 27, s. 8.

(t) See I Ch. Cr. L. 339, 340.

(u) See 6 Burn J., tit. Warrant, s. 3. (x) 2 Salk. 607; 1 Ch. Cr. L. 342,

1st edit.

(y) Ibid. But see 2 Hawk. c. 27, s. 8, above cited.

and not after the date of the warrant), to answer the indictment. It does not appear necessary to renew this warrant at every session, though it remain unexecuted (z): and it may be backed for execution in any other county (a).

Backing or indorsing Warrant.]—By 24 G. II. c. 55, a justice of the county or place where an offender may be, shall, on proof on oath of the hand-writing of the justice granting a warrant in some other county, &c. indorse his name thereon, thus authorizing the offender to be taken before the justice so indorsing, or any other justice of that county. If the offence be not bailable, or is bailable, but bail are not found, the constable must take the offender before some justice of the county where the offence is committed. If the offence is bailable, and bail are found, the justice who indorsed the warrant is to bail the party, and deliver the recognizance, examination, or confession, and all proceedings to the constable, who is to deliver them to the clerk of the county where the offence is committed.

At common law, if A. committed a felony in the county of B., and then went into county C., a justice of C. might issue his warrant to take him, and take his examination, and commit him to jail in C., from whence he might be removed by habeas corpus to B., to take his trial (b); and a justice might grant a warrant to apprehend a person being within his jurisdiction who had committed an offence in Ireland, or a foreign country (c). By stat. 7 G. IV. c. 38, he may grant like warrant where the offence was committed at sea or within the admiralty jurisdiction.

Fresh Indictment.]-If the bill be not found, or if the indictment is defective and quashed (as to which, see post, Ch. VII. s. 4), a new and more regular one may be framed and sent to the same or a subsequent grand jury, for their finding (d). So that the mere insufficiency of the finding affords no future indemnity to the party indicted (e).

(z) 8 T. R. 110.

(a) See 1 Ch. Cr. L. 339, 343, 1st edit. and forms of capias, alias, pluries exigent, proclamation, &c. as well as bench warrants, certificates of clerk of peace, &c. &c., 4 Ch. Cr. Law, Ch. 8. (b) 1 Hale, 580; 1 Ch. Cr. L. 35, 1st ed.

(c) R. v. Kimberley, Stra. 848; 4

Taunt. 43, per Heath, J. And see statutes collected 6 Burn's J., tit. Warrant, s. 3, as to backing Irish, &c. warrants.

Quære as to issuing warrant for offence committed at sea?

(d) 4 Bla. Com. 305; Bac. Ab. tit. Indictment (D 2), see ante, p. 85, 193. (e) 1 Ch. Cr. L. 325, 1st ed.

SECTION II.

OF PROSECUTION BY PRESENTMENT.

By Grand Jury, and, formerly, by Justices.]—Presentments may be by the oath of any twelve of the grand jury at common law, for offences within their own knowledge (ƒ), with the exception hereafter mentioned as to highways and turnpike roads. If the offence is one of which they can thus take legal cognizance, no bill is sent before them (g). They deliver their presentment into court to the clerk of the peace, who puts it into the form of an indictment, on which process may issue, as in the ordinary case of an indictment found; but the presentment in its first state is only considered a bill on which an indictment is framed (h).

The most usual presentment was by a grand jury at common law, or by a justice of peace (i), under 13 G. III. c. 78, s. 24, for default in repair of some "highway, causeway, or bridge;" but that act is now repealed by 5 & 6 W. IV. c. 50, s. 1, so that the power of a justice to present any bridge is gone (k). By s. 99, it is declared unlawful to take or commence any legal proceeding by way of presentment (e. g., by a grand jury or justice) against the inhabitants of any parish, or other person, on account of any highway or turnpike road being out of repair.

This mode of prosecution by a grand jury, even for non-repair of a county bridge, is disused.

In many counties constables were accustomed from early times to make presentment at the quarter sessions of various offences within

(ƒ) 2 Hale, 161; Lambard, 1. 4, c. 5. The form of a presentment by a grand jury resembles an indictment, (see, however, Andrews's R. 285,) except in its commencement, which is here subjoined.

the

Berkshire, to wit. Be it remembered, that at a general quarter session of the peace of our Lady the Queen, holden at for the said county, on day of in the said year of the reign of, &c. before A. B. and C. D., Esqrs., and the Rev. P. Q., clerk, and others, their companions, justices of our said Lady the Queen, assigned, &c. It is presented by the oath, [as to adding "and affirmation," if any grand juror be a quaker or moravian, see

ante, p. 200] of M. N., O. P., Q. R.,
&c. (stating the names of the grand
jurors), good and lawful men of the said
county, then and there sworn and charged
to inquire for our said Lady the Queen,
and the body of the said county, as fol-
loweth, that is to say: Berkshire afore-
said; the jurors &c., as in an indict-
ment.

(g) 2 Hawk. B. 2, c. 2, s. 151.
(h) 4 Bla. Com. 301.

(i) See a late instance, R. v. Derbyshire (Inhabitants), 3 B. & Adol. 147.

(*) See 13 G. III. c. 78, s. 21, s. 119. See R. v. Mawgan (Inh.), 8 Ad. & E. 496; 3 Nev. & Per. 502, as to prosecu tions pending on 20 March, 1836.

their districts. They were, however, of no validity, unless they went before the grand jury and made oath to the truth of the facts which they presented (1). As much expense and vexation had arisen from presentments by constables, which they were required to sign at a petty sessions, in order to their being delivered by the high constables to the ensuing quarter sessions, it was enacted by 7 & 8 G. IV. c. 38, that " no petty constables shall be required, at any petty session or elsewhere, to make, nor shall any high constable be required at any general gaol delivery, great session, or general, or quarter session of the peace in England, to deliver any presentment respecting popish recusants, persons absenting themselves from their parish church, or any other place of religious worship licensed by authority, rogues and vagabonds, inmates, retailers of brandy, ingrossers, forestallers, regrators, profane swearers and cursers, servants out of service, felonies and robberies, unlicensed or disorderly ale-houses, false weights aud measures, highways and bridges, riots, routs, and unlawful assemblies, and whether the poor are well provided for, and the constables are legally chosen and sworn." As this enumeration comprises almost, if not all matters, which ever were presented (m), it may be fairly assumed that, except perhaps in Middlesex (m), presentments by constables will be discontinued, and that in future, indictments will be substituted in the necessary cases; particularly as a presentment when made by a constable carries no case further than appearance, till it is taken up by a private prosecutor.

SECTION III.

OF PROSECUTION BY INFORMATION.

Prosecutions by information at the quarter sessions can only be instituted in cases where, by a penal statute, an informer is allowed to take this course to recover the penalty. See 21 J. c. 4; 18 El. c. 5; 31 El. c. 5. As this proceeding is general disused, the space occupied in the last edition will be here devoted to more pressing matters.

(1) See R. v. Bridgwater and Taunton Canal Company, 7 B. & C. 514. It is worth notice that though this case was not argued till some time after the passing of 7 & 8 G. IV. c. 38, that act does not appear to have been mentioned in the argument. Its authority is therefore of less weight. See also R. v. Somerset

shire (Justices), 1 Man. & R. 272.

(m) As to presentments made by petty constables of Middlesex, to the grand jury of Middlesex, see 1 Chit. Cr. L. 310, and Mr. Justice Littledale's charge to the grand jury of Middlesex, Michaelmas Term, 1837, post, Chap. VI. s. 17, and 1 Chit. Cr. L. 1st ed. 167.

CHAPTER V.

OF FELONIES USUALLY PROSECUTED AT SESSIONS, WITH FORMS OF INDICTMENTS.

SECTIONS.

SECTION I.

OF THE CUSTOMARY JURISDICTION OF THE SESSIONS IN

CASES OF FELONY.

OFFENCES, which may be made the subject of prosecution at sessions are felonies and misdemeanours. Of these, felonies demand the first notice, as of the higher degree, and taken first in order of trial.

Felonies, what.]-The word " felony " in an ancient act (e. g. Mag. Ch. ch. 22), means all manner of felonies punished by death, and not petty larceny, which is notwithstanding "felony " (a). Felony ex vi

(a) 2 Inst. 37.