the clerk in court then enters up the judgment for the defendant for want of the joinder; but when the prosecutor joins in demurrer, the clerk in court makes office copies of the proceedings for the parties, the folicitor gets a motion paper for a concilium figned by counsel, upon which the clerk of the rules draws up the rule and fets the caufe down for argument; and the folicitor ferves the rule on the adverfe folicitor, prepares his brief, &c. and obtains the judgment of the court thereon in the manner already defcribed: or, as it is difcretionary in the court either to quash an indictment for infufficiency on motion or put the defendant to demure'; a rule may be applied for to quath it, when the court will exercife their discretion, and either grant or refuse the application as they see fit.

of the ap the writ on the profe

plication for

the part of

cutor, and

If the indictment is intended to be removed by the prosecutor, though it is difcretionary in the court to grant or refufe it to a common profecutor, yet it iffues of courfe on his application in ordinary cafes, and the clerk in court will therefore make it out on the thereon. plication of the folicitor without any order of

Rex v. Wheatley, 2 Burr, 1125.

• Ante 31. v. Lewis and others, 4 Burr. 2456.

ар

• Same

compelling

the defend

ant's ap

pearance

the

the court or fiat of a judge; and it may be issued even before the indictment is preferred, ready to deliver to the clerk of the peace on the jury's returning the indictment a true bill, as it returns whatever may have been done in the matter between its tefte and return '. As foon as the writ is returned to the Crown Of fice, the prosecutor's clerk in court makes out a venire for the defendant to appear; upon which the folicitor gets him fummoned by the sheriff, and upon the return of it the defendant usually appears, when he is intitled to an imparlance to the following term: but if he does not then appear, the prosecutor's clerk in court, upon the production of the sheriff's return to the venire, makes out a difringas upon which 40s. iffues are levied on the defendant's effects; and if there is no appearance on the return of that, on an affidavit of the writ's having iffued and being returned as above, the court award an alias, and after that a pluries, &c. enlarging the iffues on every writ until the defendant appears, when they will compel him to pay the costs of the writs of diftringas out of the iffues levied. But if the profecutor's folicitor defires it, the theriff will return the venire

The King v. Battams and others, 1 Eaft's T. R.. 298.

non

non eft inventus, and then, upon the production

of such return, the clerk in court makes out a capias for the theriff, to take the defendant into cuftody, which he will do; when the defendant, to procure his enlargement, must put in bail for his future appearance either before one of the judges of the court or a justice of the county, of which twenty-four hours notice at leaft is to be given to the folicitor for the profecution', that he may oppofe them if upon enquiry they should appear to be infufficient.

In either cafe, whether the defendant or profecutor removes the indictment, the proceedings from the trial to the defendant's coming up for the judgment are the fame as upon informations for misdemeanors', except that the notice of the motion for the judgment of the court is given to the bail as well as the defendant", and if the defendant is convicted where he removes the indictment and the prosecutor be the party injured, or is a civil officer and prosecutes on account of any thing that concerns him as fuch, and that appears either by the indictment or an affidavit of the circumstances*,

'Appendix, No. 31. *Rex D. Smith, 1 Burr. 54.

* Ante 12. "Appendix, No. 32.

he

Of the pro

ceedings

from the

trial to the

judgment

court.

he is entitled to his cofts; and if they are not paid within ten days after they are taxed and demanded, he may have an attachment for the recovery of them and the recognizance cannot be discharged till the costs are paid'.

' 5 & 6 W. & M c. 11.

CHAP.

CHAP. VII.

Of Outlawries.

Of the pre

N informations for misdemeanors the pro- di

met out to ceeding to

cefs to bring the party into court to anfwer the charge is a fubpoena, as we haye already seen, and then an attachment, but upon conviction a capias iffues; therefore, if the defendant does not then appear, he may be proceeded against to an outlawry, in order to do which the prosecutor's clerk in court makes out the feveral writs of capias, alias, pluries, and exigent (for it seems the statutes requiring proclamations do not extend to this cafe, and they are not required by the common law '), and the folicitor gets them refpectively returned by the sheriff according to their several natures; and upon the sheriff's return of the defendant's being outlawed, the clerk in court enters up the judgment of outlawry. But as the most scrupulous exactness is necessary, the greatest ftrictness being required in the proceedings, all poffible care fhould be taken in

• Ibid.

• Ante 8. b Rex. Wilkes, 4 Burr. 2527. Same v. Barrington, 3 T. R. 499. Same v. Perry, 6 T. R. 573.

Same v. Almon, 5 T. R. 902

outlawry

on informations.