By the Court,
It is contended in support of the demurrer, that the oyer and terminer can receive from the sessions only such indictments as are found there, but that they have no authority to receive back or try an indictment which they have once sent down to the sessions.
The powers of courts of oyer and terminer are defined by statute, 2 R. S. 205, § 29 ; they have power, 1. To inquire of all crimes and misdemeanors committed within their respective counties ; 2. To hear and determine all such crimes and misdemeanors; and 3. To deliver the jails of their respective counties of all prisoners therein, according to law. It is correctly observed by the counsel for the people, that their power of general jail delivery conferred by the statutes, must be considered at least as ample and comprehensive, as that conferred upon the justices of assize at-common law, by their special commission to deliver the jails; and in relation to them it seems to be well settled, that they may try indictments found before.other courts, as well as those found before themselves, when the prisoners are in jail; and a person admitted to bail is constructively in prison, his bail being his keepers, 1 Chitty’s Cr. L. 119. It is true that the 30th section of the act concerning circuit courts and courts of oyer and terminer, 2 R. S. 205,. expressly authorizes courts of oyer and terminer to try all indictments found in the courts of general sessions, which shall
There is no force in any of the other objections taken to the declaration; they are merely formal, and in most cases verbal criticisms.
Judgment for plaintiffs on demurrer,- with leave to defendant to plead.