case lisle against Armstrong if a man be indict of murder and find guilty of  manslaughter appeal will lie the same session and if by default of the court  he have not his clergy it shall not prejudice he S c ante S c Kely S c Trem S  c skin S c Carth S c comb S c salk S c holt appeal of death by lisle as  brother and heir bring by bill at Carlisle and remove into this court by  certiorari the defendant plead that the same session of gaol delivery at  Carlisle wherein this appeal be commence he be try for the same cause on a  indictment of murder and find guilty of manslaughter and thereon pray the  benefit of his clergy which be refuse he there and the record be remove into  this court where he have his clergy in Hilary term last before the plaintiff  pray he shall plead to the appeal the plaintiff reply that when this appeal be  bring at Carlisle as appear by the record of this court he request the  appellee to plead but that he refuse so to do holt chief justice autrefois  convict or autrefois acquit on a indictment be a bar at commonlaw to a appeal  because no man life shall be endanger twice for the same offence and the judge  proceed first on the appeal be mere discretionary the very preamble of Henry c  say that it be only a usage modern report er p among they so to do which  statute oblige the judge to proceed within the year and day to hear and  determine the modern report indictment and not to stay on the account of a  appeal without say to be bring or already bring or whether of both but say you  shall he not then answer to the appeal yes certain the same session if he  plead not guilty the judge may proceed and try he de to make new and hang he  on the appeal if he plead autrefoits convict it be no bar if he will not  answer over his stand mute must be record and judgement give accord either to  be hang by nil to say or the pain fort et dure but if you be not ready and can  go on with your appeal I be afraid your appeal will be go neither a acquittal  nor a attainder upon a indictment shall be a bar to a appeal as it be at  commonlaw but only the have clergy which have be extend so far that if a man  pray his clergy and the court do not give it he he have do what lie in his  power the delay of the court shall not prejudice he now in this case there be  no prayer make to have his clergy but how come that to pass why the party be  never ask and if the court will not proceed to judgement and call he down to  judgement he have no opportunity to ask his clergy and therefore I think it a  good plea in bar a of this opinion be the other three justice and so the  appellee be discharge