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may be) containing only

pounds (or gallons) each (or not branded

or inspected, as the case may be) contrary to the act of the general assembly, in that case made and provided: These are, &c.

The judgment and proceedings as under the first

warrant.

If the defendant prays an appeal, the justice should take his bond, with security, in double the sum recovered, payable to the plaintiff, and with the following condition :

The condition of the above obligation is such, that whereas the above named AJ hath obtained judgment, upon warrant, before ine, JP, one of the commonwealth's justices of the peace for the county of against the above bound L. J, for being the amount of the forfeiture for barrels of pork, &c. sold to or bartered with NJ, of the said county (or not inspected according to law, as the case may be) from which judgment the said LJ hath prayed an appeal to the next court to be held for the said county of : Now, if the said LJ shall prosecute the said appeal with effect, and perform the court's order and judgment therein, then this obligation to be void, else to remain in full force and virtue.

The form of making up a record may be seen under title GAMING.

(C) The oath of a seller or exporter of pork, beef, tar, pitch or turpentine.

barrels

) is the

You shall swear, that the pork, &c. contained in marked and numbered as above, and by you sold and delivered to A M, of (or by you delivered out, to be exported to identical pork, &c. which was inspected and passed by the inspector legally appointed, who marked and branded the same as above; and that each barrel doth contain the full quantity, without embezzlement or alteration, to your knowledge. So help you God.

The warrant against a cooper, for making his barrels contrary to the direction of the seventh section of the law, as well as for omitting to stamp or brand his name, at full lenghth, on each barrel, may easily be formed from the first warrant under this title.

POSSE COMITATUS. See ARREST.

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A PRESENTMENT [is one of the modes of commencing a pro secution, and] generally taken, is a very comprehensive term; includ ing not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by the grand jury of any offence, from their own knowledge or observation, without any bill of indictment laid before them at the suit of the commonwealth. As the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the commonwealth, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alledged on both sides. Of this nature are all inquisitions of felo de se, of flights of persons accused of felony, &c. Other inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide; for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution. 4 Bl. Com. 301.

As to presentments in the county and superior courts of law, and the process thereon, see 1 Rev. Code, ch. 73, p. 100, sect. 5, 6, 9. & 3 Hen. & Munf, 575.

PRISON BREAKING.

AT the common law, all prison breaches were felonies, if the party. were lawfully in custody for any cause whatsoever. 2 Haw. 123.

But by the laws of Virginia (1 Rev. Code, ch. 173, p. 322) it is declared, That none from henceforth, who, being in actual jail, break eth prison, shall have judgment of life or member for breaking prison only, except the cause for which he was taken and imprisoned did re

quire such judgment, if he had been convicted thereupon according to the law of the land."

If the prison be broken by a stranger, and not by the prisoner, or by his procurement, this is no felony in the prisoner. Hale's Pl. 108. It seems clear, that any place whatsoever, wherein a person under a lawful arrest for a supposed crime is restrained of his liberty, whether in the stocks or street, or in the common jail, or the house of a constable, or private person, is properly a prison; for imprisonment is nothing else but a restraint of liberty. 2 Haw. 124.

And therefore this extendeth as well to a prison in law, as to a prison in deed. 2 Inst. 589.

But there must be an actual breaking; for if the door be open, and he goes out, it is not felony, but a misdemeanor only. 2 Inst. 589. 2 Haw. 125.

But if the prison be fired without the privity of the prisoner, he may lawfully break it to save his life. Hale's Pl. 108.

Also, it seems that no breach of prison will amount to felony, unless the prisoner escape. 2 Haw 125.

False imprisonment is not within this act. 2 Inst. 590. Imprisonment is the restraint of a man's liberty under the custody of another, by lawful warrant, in deed, or in law. Lawful warrant is, either when the offence appeareth by matter of record, as when the party is taken upon an indictment, or when it doth not appear by matter of record, as when a felony is done, and the offender by a lawful mittimus is committed to a jail for the same. But between these two cases there is a great diversity; for in the first case, whether any felony were committed or no, if the offender be taken by force of a capias, the warrant is lawful, and if he breaks prison it is felony, although no felony were committed; but in the other case, if no felony be done at all, and yet he is committed to prison for a supposed felony, and break prison, this is no felony, for there is no cause. 2 Inst.590.

So that the cause must be just, and not feigned, for things feigned require no judgment. Thus if a man give another a mortal wound, for which he is committed to prison, and breaketh prison, and the other dieth of the wound within the year, this death hath relation to the stroke; but because relations are but fictions in law, and fictions are not here intended, this prison breaking is not felony. 2 Inst. 591,

So that the offence for which the party was imprisoned must be a capital one at the time of the offence, and not become such by a matter subsequent 2 Haw. 126.

And the cause must be expressed in the mittimus, although not so certainly as in an indictment, yet with such convenient certainty as it may appear judicially that the offence requireth such judgment; as not for felony generally, but for felony in stealing such a horse, and the like. 2 Inst 591.

But if the offence for which the party is committed be supposed in the mittimus to be of such a nature as requires a capital judgment, yet if in the event it be found to be of an inferior nature, and not to require such a judgment, it seems difficult to maintain, that the breaking of the prison, on a commitment for it, can be felony. 2 Haw. 126. But if a man be committed by lawful warrant, for suspicion of felony done, if he break prison, he may be indicted for that escape, albeit the

commitment be for suspicion of felony, and yet no judgment can be given against him for suspicion, but for the felony itself, whereof he is suspected. 2 Inst. 592.

And an indictment that such a person feloniously broke the prison generally, is not good; but it ought to rehearse the specialty of the matter, that he, being imprisoned for such or such a felony, broke the. prison. 2 Inst. 591.

But if the party be only arrested for, and in his mittimus charged with a crime, which doth not require judgment of life or member, as petit larceny, or homicide by self defence or by misadventure, and the offence be in truth no greater than the mittimus doth suppose it to be, it is clear, from the express words of the statute, that the breaking of the prison cannot amount to felony. 2 Haw. 126.

But if a felony be made by a subsequent statute, and an offender is committed thereupon; if he breaks prison, it is felony. For, since all breaches of prison were felonies by the common law, which is restrained by this statute in respect only of imprisonment for offences not capital; when an offence becomes capital, it is as much out of the benefit of the statute, as if it had always been so. Hale's Pl. 108. 2 Haw. 126.

Also, it is said, that the party may be arraigned for prison breaking, before he be convicted of the crime fo which he was imprisoned: for that is not material whether he was guilty of such crime or not. 2 Haw.

127.

But if he is first indicted and acquitted of the principal felony, he shall not be indicted for the breach of prison afterwards; for it being cleared that he was not guilty of the felony, he is in law as a person never committed for felony, and so his breach of prison is no felony. A H. H. 612.

But the jailer shall not be punished as a felon for the party's breach of prison, unless he voluntarily consented to it; but it seems to be a negligent escape in the jailer, by which he may be punished by fine and imprisonment, because there wanted either that due strength in the jail, or that due vigilance in the jailer or his officers, that should have prevented it; and if jailers might not be punished for this as a negligent escape, they would be careless either to secure their prisoners, or to take them that escape. H. H. 601.

And therefore if a criminal, endeavouring to break the jail, assault his jailer, he may be lawfully killed by him in the affray. 1 Has. 71. Indictment for breaking out of jail.

county, to wit.

The jurors for the commonwealth upon their oath present, that A O, late of in the county aforesaid, labourer, on the year of the commonwealth, at

day of in the aforesaid, in the county aforesaid, was arrested, imprisoned, and detained in the jail of the commonwealth, for a certain felony by him committed, that is to say, for the felonious taking and carrying away one black gelding, the property of of the value of

on the

day of

and that he the said A O, in the year aforesaid, with force and arms, the aforesaid jail of the commonwealth, at aforesaid, in the county aforesaid, feloniously did break, and thereby did escape from and

out of the said jail, against the peace and dignity of the commonwealth.

So much of prison breaking as falls under the legal notion of an escape, both in criminal and civil cases, will be found under title Escapes. It will therefore be sufficient in this place, to refer to that title for precedents. See the act of assembly in the Revised Code, ch. 79, as to escapes in civil cases.

The magistrate should always be particular in expressing the cause of commitment, prior to the escape.

PROCESS.

1. PROCESS is so called, because it proceedeth or goeth out upon former matter, either original or judicial. (Lamb. 519.) Before presentment or indictment, it is called a warrant; after presentment or indictment, it is properly called process. Dalt. c. 193.

2. In a presentment to the county or corporation court, if the penalty of the offence exceed not five dollars, or three hundred pounds of tobacco, or to the district court (now the superior court of law) if the penalty exceed not twenty dollars, or one thousand pounds of tobacco, no information (or indictment) thereupon shall be filed; but a summous shall be issued against the defendant to answer the presentment. And if the prosecution be in the county or corporation court, if he do not appear, having ten days notice, the court may enter judgment against him for the penalty; and if he do appear, the court shall proceed to hear and determine the matter of the presentment, in a summary way, without a jury, and without regard to any matter of form. (1 Rev. Code, ch. 73, sect. 6, p. 100.) The grand jury of a county or corporation may present all offences made penal by the laws of Virginia; although the recovery of the fines for the same may be otherwise directed, and although such fines do not amount to five dollars, or two hundred pounds of tobacco. But the grand juries in the district courts cannot present any offence, where the penalty is under the sum of five dollars, or two hundred pounds of tobacco. 1 Rev, Code, ch. 73, sect. 5, p. 100, & sect. 9, p. 101.

3. Upon a presentment made by the grand jury, of an offence not capital, the court shall order the clerk to issue a summons, or other proper process, against the person or persons so presented, to appear and answer the same at the next court. 1 Rev. Code, ch. 74, sect. 28, p. 106.

4. When the grand jury shall have presented to the district court a bill of indictment against any person charged with treason or felony, if he be not already in custody, the sheriff shall be commanded to at

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