case willmott against tiler the special plea of autrefois acquit plead to a  appeal of murder may be make a concilium in the absence of the appellee S c  ante S c ld ray S c salk a writ of appeal with less than fifteen day between  the testae and the return be cure by the appearance of the defendant and his  plead to it in chief for it be a defect that can only be take advantage of in  abatement salk be arraign on the appeal before and have have time to plead he  be commit as before be say a and be bring in at another day he put in his  special plea and be remand and at another day it be make a concilium in his  absence which may well be because it be only to assign a day for counsel to  argue the point modern report and now it appear on oyer of the writ that there  be not fifteen day between the testae and the return thereof so the plea be  protestand that the appellee ought not to answer the writ for want of  sufficient number of day between its testae and return pro plea to say and set  forth the indictment before the grand jury c and a capias thereupon at large  direct to sheriff of London by virtue whereof he be take c that at the  gaoldelivery of Newgate at the old Bailey justicehall in the parish of c  London in person such and such ass et associate nest justice of gaoldelivery  of Newgate the indictment be deliver in and that he the appellee be by the  sheriff of London bring into court and set forth his arraignment and plea of  not guilty per native land that a jury be then and there impanel videlicet a b  c that the jury find he guilty of manslaughter that he be immediate ask what  he have to say why judgement shall not pass that he pray his clergy which be  allow he that be then and there read as a clerk and be burn in the hand and  confine eleven month by the court and aver identity of person will c and so  conclude that he ought not to be put to answer again a see marquis of  Carmarthens case foster Lord vane case stram ear stamford case b r h earl  Ferrer case burr Lord howard case Mod lady strathmore case term Rep a ante  modern report er p to this there be a demurrer and a joinder in it first  objection that it appear that the judge before who the trial be be judge of  gaoldelivery of Newgate and it do not appear the defendant be in the gaol of  Newgate answer that objection will destroy all proceed at the gaoldelivery the  indictment be find before justice of the peace and by they send to the justice  of gaoldelivery and the commission run for justice of gaoldelivery for London  a another for Middlesex and the current of precedent be that the party come in  custody of the sheriff pron  interrog  guard ex causan prd commiss to be and  since he say he be in custody of the sheriff of London and since Newgate be  the county gaol both of London and Middlesex we shall intend he in the sheriff  custody in Newgate as by law he ought to be and we must intend Newgate to be  the county gaol for that it do not appear to be a franchise and that objection  have be frequent overrule second objection the old Bailey where the court be  say to have be keep be say to be in parochian c in warda Farringdon extra  London which be nonsense modern report answer the ware of Farringdon extra be  the name of the ware and extra do not denote it to be out of the county of  London but be for opposition to Farringdon within the city wall three  objection justice of gaoldelivery can try any indictment but what be find  before themselves answer it be so at commonlaw but alter by the statute the  four objection the verdict as plead be contradictory for they say he be acquit  of the felony and murder and afterward that he be find guilty of manslaughter  which be felony answer that may have be say better but it must be understand  that they find he not guilty of the felony and murder prout but guilty of  felony and manslaughter then it be insist on that though the writ be nought  for the want of the due number of day between the testae and return yet now  the defendant not have plead it in abatement but take it by a protestand he  have waive the advantage of it but to that it be answer of the other side that  since it appear to the court by the oyer on record to be vicious they must ex  duty take notice of it then it be insist on that by plead in chief he have  admit the writ good for if he have plead in abatement he shall not plead in  chief till the matter in abatement be determine for by plead in chief at the  same time he will have waive the abatement and for this Edward a be strong  insist on but note that book only say that where he plead such matter in  abatement which deny the appellant right of appeal as that he be a bastard or  that another be heir he ought not to plead in chief because such a plea will  admit he capable of sue contrary to the plea in abatement but in that very  case by the sergeant at bar he may plead over in favor vit and so the court  hold here be the constant course for expedition and the book of Edward agree  he ought to plead over where he do not deny the appellant title to the action  which be not do here it be then object that this trial be now above a year ago  and they conclude prout to stand open per record in the old Bailey whereas by  a Act of parliament all the record of gaol delivery be to be remove into the  exchequer into the custody of the modern report treasurer and though a record  be not local in itself yet if they plead it in a certain place we may traverse  it holt chief justice suppose they do not remove the record shall that turn to  the prejudice of another and that Act of which you speak be grow obsolete for  indeed they do for the most part remove they into this court and if you plead  nul tiel record a certiorari will go to the judge of gaol delivery and if they  do not certify a record then it be for your advantage and he remember a case  of appeal where the appellee plead a false addition in abatement videlicet  that he be a inhabitant of a without hoe that he be a inhabitant of b as it be  lie and he be order to answer over to the charge and though he may have plead  a modern report er p conviction of manslaughter and allowance of clergy yet to  lie open to the appeal he plead not guilty and it come to trial on both issue  and as to the issne of not guilty he be find guilty of manslaughter and the  other find special that the appellee be accidental at b and not otherwise a  inhabitant there and so the question be whether he can be say to be a  inhabitant at b but that point never receive any determination but the  constant practice be to lie he a inhabitant where the fact be commit and in  favour of life he may plead a special matter in bar and not guilty too but for  expedition sake if he plead in abatement the court will make he plead in bar  beside and the be of oyer of the writ make it part of the record and per totan  curian the conviction of manslaughter and clergy be a good bar of the appeal  without dispute a but per curium the only doubt be whether we shall give  judgement on the writ or on the plea in bar for if we give it on the bar and  the writ be insufficient our judgement will avail nothing accord to vaux case  a for it will be no more than a acquittal upon a have writ and then they may  arraign he again and though vaux case be after verdict and this upon a  demurrer that make no difference but holt chief justice if vaux case be res  integral it will deserve consideration and at another day per cur holt chief  justice deliver their opinion we all agree that judgement final ought to be  give for though clear the writ be have for want of fifteen day between the  testae and the return so as if non be invention have be return and the  defendant sue to a outlawry it have be erroneous yet since he appear to it and  plead in chief he have lose that advantage for the reason why there ought to  be fifteen day between the testae and return modern report appear upon  consideration of the statute of articuli super Chartas c Inst by which statute  it be necessary there shall be fifteen day between the testae and the return  of writ and thus it be ancient for they compute one may travel twenty mile  adais and therefore they hold fifteen day journey sufficient to come from any  part in England and for this a day journey be call dieta b and the reason be  that party may have sufficient time to appear and prepare a answer and if the  process be too straight it be erroneous but if the defendant by appear and  plead in chief dispense with this favour he may and thereby make the writ good  Edward Edward a to know facias upon a fine want the due number of day between  the testae and return and that writ do partake of the nature of a real action  yet if the party appear and plead to it it make it good if a writ of covenant  to levy a fine want fifteen day between the testae and return yet if party  appear and fine be levy it be good this indeed have be afterward question by  some judge but be adjudge to be a state doctrine and needs no new settlement  for if the defendant ppear and answer without take advantage of this fault of  the writ as if it be in assize and be not attach fifteen day before the fault  of the writ be thereby cure et such per cur jud pro to ward off upon the plea  in bar notwithstanding the appellant counsel move instanter for leave to  charge the defendant in custody of the marshal the judgement be in bar upon a  have writ accord to vaux case at which the court be very angry for it be to  arraign their judgement to their face but say they can not help it and the  motion be grant but means to sleep holt chief justice occasional in this case  say first that a clerk in order upon his have his clergy shall not be burn in  the hand second that none can have the benefit of his clergy twice except a  clerk three that in all case before Elizabeth c where a clerk have clergy he  be deliver to the ordinary but in no case since fourthly that where one in  order have his clergy there ought to be a special a salk a   b Britt modern  report er p entry make why he be not burn in the hand and if he be clerk in  order or not be triable by his ordination five that if a clerk show his  ordination he need not have the book because it be presume a clerk in order  can read six that in the time of Edward clergy be deny to one not have  condition et clipping modern report seven that by Edward c peer to have  benefit of clergy without burn in the hand a though they can read