Green v. Commonwealth , 1 Rob. 731 ( 1842 )

LOMAX, J.,

delivered the opinion of the court.'—'The court is of opinion that by the terms of the act of assembly, 1 Rev. Code, cb. 169, § 28, the prisoner not having been tried at or before the third term after his examination, and this case not falling within the exception stated in the same law, he was entitled to be forever discharged of the crimes with which he stood charged. His right to this discharge, upon the adjournment of the circuit court at its last term, became complete and was consummated. That court, however, upon its adjournment, ceased to have a capacity to pronounce by its order the discharge to which the prisoner was entitled by the law. As the right of the prisoner to his discharge from the crimes imputed to him was given him by law, under the circumstances provided for, as a paramount right controlling and terminating all the proceedings by which he had been held in custody before the end of the term of the circuit court, the majority of this court are of opinion that the prisoner is entitled, upon this proceeding, to be now discharged from the custody of his bail, which ought no longer to be allowed after the law has forever discharged him of *the crimes with which he was charged in the circuit court.

From the foregoing opinion, LOMAX and LLIGH, J., dissented.

Petitioner discharged from the custody of his bail.