Armstrong versus lisle hill will B R appeal of death by bill exhibit at the  session of gaoldelivery and remove into B R by certiorari skin S C comb Kely  Carth case B R holt Lisle be indict at the session of gaoldelivery for the  county of Cumberland for the murder of Richard Armstrong and be thereupon try  and convict of manslaughter immediate after the verdict John Armstrong brother  of Richard Salkeld er p put into court a bill of appeal of murder and pray by  his counsel that it may be receive and file and that the defendant may be  thereupon arraign but before the appeal be arraign Lisle demand the benefit of  his clergy and then the bill of appeal be by the appellant counsel 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 until what time c this whole proceed be enter upon  the record of the indictment together with the conviction of manslaughter and  return into B R upon a certiorari and the appeal be also return but upon the  record of that no mention be make of any proceed Lisle be also bring up to the  bar by habeas corpus the return whereof be read the appellant move for a copy  of it et per curian it must be first file for it be not before we till file  and we can order nothing concern it till it be before we be file the appellee  pray his clergy to hinder which the appellant take exception to the indictment  conviction and trial et per cur this be the king record in which you can  assign error you be a stranger and perhaps the prisoner have release these  error to the king and you have no warrant of attorney file and ought not to  speak or be hear in the cause nevertheless he be not admit to his clergy this  day and it be move he may be bail but the appellant oppose that unless he may  be permit to arraign the Salkeld appeal or unless the appellee will give bail  to the appeal for if he shall get at large before the arraignment of their  appeal they can have no process against he to bring he in again and so the  appeal will be lose et per cur a appeal by bill be always against one in  custodian and he must be in custody or else you can arraign he then they urge  he ought not to be bail because he be find guilty of manslaughter and no  clergy allow say per cur justice of oyer and terminer can bail in such case  but this court may do it at discretion accord he be bail general on the  Crownside to appear de die in diem at another day Mr solicitor general pray  judgement for the king against the prisoner on the indictment and the  defendant be ask what he have to say why judgement shall not pass against he  pray his clergy et per cur have the defendant pray it at the session of  gaoldelivery it can not have be deny he there now he be here we can give  judgement against he without ask what he have to say why judgement shall not  be give nor can we deny he here what can not have be deny he there hereupon  his clergy be allow he and he be try by the ordinary of who give he a psalm to  read whereof he read the first verse and then sir Samuel astry ask the  ordinary legit well non who answer legit whereupon the executioner burn he  without the bar on the brawn of the leave hand and then the appellee pray to  be discharge say per cur you must still stand upon your recognizance and if  you will discharge the appeal you must sue a to know facias against the  appellant and if he do not appear nonsuit he hereupon a to know facias be take  out returnable at a common day and no return be make by the sheriff the  prisoner move again to be discharge say per cur you must take a new day and  procure a return unless you can get the appellant to appear gratis as he may  if be please and accord the appellant do appear and now it be question whether  the appellee ought to be arraign again on the bill of appeal et per cur the  appellant must arraign the appellee de to make new but be not to make a new  count for the arraignment be no commencer but a revivor thereof like a  resummons vide Ro Rep upon this the appeal be arraign in French by the  appellant counsel who read the count and therein the word wound be use which  holt c j take notice of and dislike not be French and now the clerk of the  crown go to arraign he likewise it be object by the appellees counsel that the  appeal be commence before justice of oyer and terminer and not by they  determine be therefore discontinue Salkeld and so no Salkeld er p appeal  depend and that this objection come in proper time now lest they may by the  arraignment be complete be estopped say per cur though the appeal be without  die yet it be not discontinue and the return of the certiorari make a  continuance and be sufficient to continue it against the prisoner then it be  question on what side the appeal shall be arraign et per cur a civil cause be  always on the Pleaside unless it come in by attachment and Mr Aston say appeal  whether by writ or bill be always arraign in English on the Pleaside unless it  come in by certiorari for then it be on the Crownside accord it be rule in  this case but not to make a precedent and now it become a question how the  appellant ought to appear and prosecute et per cur every appeal must be  commence in person but may be prosecute by attorney unless where wager of  battle lie in such case he must commence in person and prosecute in person  also but where there be no wager of battle there it may be prosecute by  attorney for which there must be a special warrant of attorney file and if the  plaintiff appear by attorney when he ought not c this be a discontinuance it  be also move that the appellee may be bail and the court hold he must be  commit to the marshal upon the appeal and the bail must be corpus pro corpore  and that the recognizance may be either to the king or to the party as it be  in primrose case yet it be hold the better course to take it to the king and  so it be do in this case at last upon the appellees prayer he be allow to  stand upon the old recognizance till another day that he may have time to find  bail and to plead and every thing to be enter as of this day at the day  appoint the appellee plead the indictment and conviction of manslaughter at  the session of gaoldelivery which be remove in B R and that no judgement be  thereupon give and that at the time of the conviction he be and yet be a clerk  and then pray his clergy and offer to read as a clerk if the court will have  admit he thereunto and that afterward know die moon prox post tomorrow pur  Beatrice Mari Virg last be demand by this court why judgement shall not be  give against he he pray the benefit of clergy which be allow he read as a  clerk and be burn in the hand prout per record c with the usual averment and  as to the felony and murder he plead not guilty the plaintiff reply that he  demand the appellee to plead at the session of gaoldelivery and that he refuse  to which the appellee demurrer Salkeld the replication be nought and mere  impertinent the question be upon the bar videlicet whether a conviction of  manslaughter on a indictment of murder and clergy allow thereon can be a bar  to a appeal precedent or concurrent with the indictment for both be return of  one session which be but one day in law the appeal be concurrent at least with  the indictment and precedent to the conviction thereon so that this be insist  on by the counsel for the appellee to be a case at commonlaw and not within  the h c which extend not to a appeal antecedent but subsequent to the  indictment say per cur at commonlaw auter foits convict or acquit be a good  bar to a appeal for no man life ought to be twice endanger for the same  offence and so the law will be at this day have not the h c alter it by which  acquit or convict on a indictment be make no plea in a appeal unless clergy he  have thereupon the word of the statute be general videlicet in a appeal  without say bring or to be bring and therefore extend to all appeal whether  subsequent or antecedent or concurrent and as for the have of clergy it have  be adjudge that pray of clergy be have of clergy within the statute for by  pray the prisoner have do all that he can and the default or delay of the  court in not grant when they shall have grant it ought not to turn to his  prejudice here be indeed no regular prayer make to have clergy at the  gaoldelivery because the defendant be never call to judgement by the court and  if the court will not proceed to judgement and ask the party what he can say  why judgement shall not be against he whereby he have no opportunity to pray  his clergy it be the default of the court and not of the party and therefore  shall not prejudice he and the plea in this case Salkeld er p be hold a good  bar to the appeal a but the appellee be not discharge till Michaelmas term  follow a r send for burr