case the queen against sir jacob bank if a prosecutor remove a indictment find  at session into the king bench and the defendant obtain a nisi prius from the  attorneygeneral and carry it down at the next assize by proviso without leave  first obtain from the court and be thereon acquit the court will grant a new  trial S c ld ray S c salk S c Mod sir Jacob bank be indict at the quarter  session in Berkshire for a assault upon Mr Culpepper which be remove hither by  the prosecutor by certiorari modern report er p the prosecutor not carry it  down next assize the defendant the same assize carry it down and try it and  the defendant be find not guilty Mr not move to set aside the trial there not  have be any laches in the prosecutor Powell justice say the try it the very  next assize be too soon and there can not be any laches in the queen nor any  trial carry down by proviso against her but the question be whether the  attorneygeneral by his warrant give consent to a trial at nisi prius shall not  imply his consent throughout holt chief justice say Mr attorney warrant be  only a general warrant to modern report try it at nisi prius and be more of  course than upon enquiry into the merit of the cause Mr attorney say he be no  otherwise concern than to give the same general warrant be do in all case holt  chief justice say it be his opinion that where a prosecutor remove a  indictment it be very hard the defendant shall not volens carry it down the  next assize and try it when perhaps the prosecutor can be ready with his  evidence suppose it be for treason or felony this will put the queen in a  worse case than any subject Powell powys and gold justice agree to what holt  chief justice say and that none of the precedent quote by the solicitor  general who be counsel for the defendant be above five year stand and those  pass sub silence so all be of opinion that a new trial ought to be and holt  chief justice say that no criminal can carry down a venire by proviso a but  see the case of knevit v tailor Leon a but he ought proper to move the court  for relief in case a process bang over his head that the court may see if  there be any laches or neglect in the prosecutor or not and such motion they  shall never grant upon the first instance or bear but give time to show cause  and so they set aside the trial