case Elizabeth Bradley against bank Michaelmas term James roll to a appeal of  manslaughter a plea of autrefois convict and not guilty of the felony and  murder aforesaid be not bad SC Bulst SC Yelv   Kely Inst Com dig hawk p c a  indictment on the James c for stab conclude contra form to cause to stand be  good if the capias be not test on the very day the writ of appeal be  returnable it be a discontinuance appeal of the death of her husband for that  the defendant assault her husband not have any weapon draw or strike and stab  he of which thrust he instant die the defendant plead that he be indict before  such a justice of gaoldelivery in the county of York and convict and after  pray his clergy and further to the felony and murder aforesaid he plead not  guilty and hereupon the plaintiff demurrer and now allege for cause first that  the appeal be bring of manslaughter and he defend felon et murdrum and quoad  the felony and murder aforesaid in the conclusion of his plea plead not guilty  whereas no murder be mention in the declaration and therefore he ought to have  defend felon et homicide and conclude to they and not to the murder say non  allocatur for although he plead to the felony and murder aforesaid yet that  refer to the declaration wherein there not be ex ill will praecogitata it be  but homicide second that the conviction be not lawful because the indictment  be that he stab he have no weapon draw nor strike he and so kill he contra  form to cause to stand whereas there be not any statute which prohibit it but  only take away the clergy from such offender and the verdict find that he be  guilty of the homicide against the statute be not good for that reason say non  allocatur for the indictment be frame upon the statute the conclusion be good  and their verdict be pursuant thereof but it be then move for the defendant  that this appeal be discontinue because the writ of appeal be returnable  quinden michaelis which be the that october and the capias ought to be award  the same day and to be fresh prosecute and the capias bare date d october  returnable octab Hillarii all which be enter upon the roll so seven day omit  betwixt the return of the writ of appeal and the award the capias therefore a  manifest discontinuance but it be thereto answer at the bar that be croak  throw all in one term which be but one day in law it be not material also the  appearance of the party aid that discontinuance but all the court resolve the  contrary that it be a discontinuance for when a process be return in a appeal  there ought another instant to issue and no mean day betwixt for then it be a  cessation of the prosecution and absolute discontinue and a discontinuance be  never aid by the appearance or plead of the party vide Henry pl Stamford a but  a miscontinuance of process as where one process be award for another or  misreturned may be well aid by appearance of the party wherefore all the court  resolve for the defendant that it be a discontinuance and he be discharge b  ante post a say vide post contra     light salk l raym show and see hawk p c  croak James er p