case gore against deering if a person on a indictment for murder be convict of  manslaughter but before clergy allow or sentence pass the widow of the decease  enter a appeal of murder he can plead autrefois convict and that he be ready  to pray his clergy in bar to such appeal for after appeal enter the court can  ask he what he have to say so as to let he into the benefit of his clergy and  thereby defeat the appeal yet quaere S c Carth SC comb SC show SC Trem   Inst    Ent Kely side show Mod salk Leon and hawk p c comens Mod Mod Mod ld ray corn  dig Mod Peer wms   Ent appeal for the murder of Henry gore Esq bring by his  widow the defendant plead that he be indict for the say murder at the  sessionshouse in the old Bailey in Middlesex that he be find guilty of  manslaughter and not of murder prout to stand open per record that he be  clergyman et a preparation to be to send with a commission ut clergyman if the  court will have admit he and that he be the same person c to this plea the  appellant demurrer the truth of this case be that after the conviction and  before the sentence a appeal be bring so that the defendant have not a  opportunity to pray his book Mr pollexfen for the appellant argue that if the  statute of Henry c be not in the way this plea may be a good bar to the appeal  because before the make of that law auterfoits convict c have be a good plea  but now that statute deprive the defendant of that benefit for it be enact  that if any man be acquit of murder at the king suit or the principal attaint  the wife or next heir to he so slay may take and have their appeal of the  murder within a year and a day after the say murder do against the say petsons  so acquit or attaint if they be alive and the benefit of clergy notam at this  time clergy be allow for murder but now take away by the statute of Henry c  hale p c note to former edition a before not have now though the party be  neither acquit or attaint but be only convict of manslaughter yet the word  attaint in this statute signify the same with convict and this appear by the  pen of the Act in that clause which mention the benefit of clergy videlicet  that if any man be attaint of murder the heir shall have a appeal if the  benefit of clergy be not have modern now a attainder suppose a conviction for  one be the consequence of the other and if it shall not signify the same thing  in this place then that clause will be in vain because if it shall be take for  the judgement give upon the conviction then it be too late for the party to  have any benefit of his clergy thus it be hold in the second resolution of the  case of Wrot v Wigg   a b that the word attaint in this very Act shall not be  intend only of a person who have judgement of life but also of one convict by  confession or verdict it be true it be say in that case and so likewise in  Holecrofts case ander c that auterfoits convict of manslaughter upon a  indictment of murder be a good bar to a appeal at the commonlaw as well as if  the clergy have be allow the reason may be because in both those case the  judgement be by modern er p confession so that the court ought to have grant  the clergy but this be a conviction by verdict which alter the case sir George  Treby e contra for the appellee Auterfoits convict be a good plea at the  commonlaw in all case treason only except at this day first it appear by the  statute of Henry c that the year and day which be the time allow for the  appeal and in which time the king indictment can not be try be a usage but not  a law therefore that Act provide that the king shall proceed upon the  indictment within the year and a day and not stay for the appeal of the party  if the party be attaint or acquit the wife or next heir shall have a appeal  but not if he be convict but now admit that the word attaint have the same  signification with the word convict yet this be a good plea both within the  word and the equity of the statute this appear upon the construction of that  law which must be expound accord to the vulgar sense and signification of the  word and therefore where the statute say that a appeal lie where the benefit  of clergy be not bad it mean where it be not have de jure but the clergy in  this case be de jure and the defendant be ready to read if he have be admit  thereunto by the court thus be the statute of marlbridge about the take away  of ware videlicet si parent to complain that be if they bad cause to complain  second this statute have be expound accord to equity for though it give a  appeal to the wife or next heir of he slay yet if a woman be kill her next of  kin shall bring a appeal modern therefore by the same equity these word  videlicet the benefit of clergy not have shall be construe have by the grant  of the court for if a man be indict without the addition of clerk he can  demand his clergy unless the court ask he but if he be indict with that  addition then he may demand it because it be suppose by the court that he can  read three that this appeal be not well bring these exception be take ground  upon the statute of Gloucester Edward c by which seven thing be require in a  appeal of murder videlicet that the appellor declare the fact the year the day  the hour the year of the king the town where the fact be do and with what  weapon the party be slay now in this case there be a defect in two of the  thing require by that statute first the hour be lie too general for it be  daughter of the Sun horan eight which be not certain enough second they have  lie no will for it be that the defendant do assault the husband of the  appellant in parochian consecrated Martini in plain now though that word  parochian have creep into fine and recovery and likewise into indictment it  must not be allow in appeal there may be several will in one parish and though  this be rule good in indictment it ought not to be so here because of the  difference between a indictment and a appeal for in indictment you need not  mention the hour but it must be do in appeal a parish be a ecclesiastical  division and though such may be a will it be not necessary ex way termini that  it shall be so the chief justice afterward in Trinity term James deliver the  opinion of all the judge who except street justice be assemble for that  purpose at sergeant in that this be no good plea and that the court ought not  to ask the prisoner what he have to say and so to let he into the benefit of  his clergy yet qure for it be otherwise resolve this resolution to the  contrary be in the case of Armstrong v Lisle Hilary term will Lisle be indict  at the summer assize at Carlisle for the murder of Armstrong and find guilty  of manslaughter the brother and heir of the decease immediate after the  verdict exhibit his appeal but before the appeal be arraign and after Lisle be  take from the bar a friend pray that he may be admit to his clergy and then  the appeal be read in open court and Lisle appear to it and pray to be bail  but refuse to plead upon which he be remand to gaol the prisoner and the  proceed against he be remove into the king bench where the prisoner plead the  indictment and conviction of manslaughter at the assize that no judgement be  give thereon that he have pray his clergy and be ready to receive it if the  court will have admit he thereto and that afterward be demand by the court why  judgement shall not be give against he be demand the benefit of clergy which  be allow to he the question be whether this plea be good in bar of the appeal  and it be resolve by the whole court to be a good plea S c skin SC salk S c  Kely it seem therefore to be full settle by this case that a conviction of  manslaughter on a indictment of murder and the prayer of clergy thereupon may  be plead in bar of a appeal of the same death whether such prayer be make upon  the party be call to judgement or not hawk p c and the law of this case have  be since confirm in the case of smith v tailor Trinity term Geo burr a modern  er p