Armstrong versus lisle appeal of murder after a conviction of manslaughter the  defendant be bring by habeas corpus and it be return that at the gaoldelivery  for the city of Carlisle he be indict for the murder of Richard Armstrong and  wonder S find guilty of homicide and be present charge with a appeal of murder  levinz pray d that the clergy may now be allow d he at the bar for when he be  convict of manslaughter he desire clergy and be deny d and then charge with a  appeal holt Ch I I do not understand the reason why clergy shall be delay d to  charge a man with a appeal the judge at the commonlaw do usual delay the  indictment though they may choose till the year and day be pass because the  prosecution in the appeal be more vigorous but if indict before and acquit it  be a good bar to the appeal shall it be in the discretion of the court whether  they l hang a man or no it be argue in the case of gore and deering but it be  fit to be argue again levinz cite h p c that justice of gaoldelivery may bail  one convict of manslaughter that have pardon under seal though not plead and  sty king versus Andrews that one attaint by outlawry may be bail pen a writ of  error which holt admit and say in the first case the bail be special to appear  and plead his pardon it be first produce under the great seal but will not  bail the defendant Comberbach for he say that be to contradict many former  judgement upon a motion note the entry upon the record of gaoldelivery be that  he pray d clergy before he be arraign upon the appeal and then be arraign to  be very pleasing well responders object which holt say be impertinent for they  shall have give judgement against he most book be that it must be the  principal judgement in appeal and not pain fort dure but that he say be out of  door now for he must be arraign anew and if he have plead there all have be  discontinue it be move for the appellant that he may be admit to appear c by  attorney but of that the court doubt because it must appear to the court that  the indictment be for the same offence where battle lie not per stat h the  council for the appellant will have assign error in the conviction but holt  say that they can not do for none but the king or the prisoner can do that  here the appellant be not before we unless be come in voluntary or by to know  facias for by the certiorari the appeal be put without die so that there can  be no nonsuit without a to know facias ad prosequend at another day holt say  the court ought to allow the prisoner his clergy the stat h require a  determination he shall have have his clergy at the assize they may have  adjourn it till the appeal have be try d the same assize but no long et  adjournatur afterward be demand by sir same astry what c he pray d the benefit  of his clergy and the book be deliver by Mr smith the ordinary of Newgate holt  ask the ordinary if this be within his diocese or within the peculiar of the  dean and chapter of Westminster but smith say he have do the same office here  several time before and so be now admit and report quod legit and the prisoner  be burn in the hand