¶1There must be a new trial; and the judge who is to preside at the next oyer and terminer in Dutchess county, will communicate this opinion to the justices of that court; in the mean time the prisoner must give bail for his appearance.
¶2The proceedings which have been brought up here by certiorari, not having been actually received, may be returned.' If they had been filed in this court they could not have been sent back, but must have remained here. No form of process for returning them is to be found in the books. The court must have proceeded to try the defendant at bar, by a jury returned from Dutchess, or have sent the cause, down to'the next circuit, to be held in that'county. We are inclined to think, however, that in a capital case, it' would be otherwise, and that it could not be sent down for trial.
¶3See, The People v Ludlow, Col. Cases, 34. When a record is removed into the court of K, B. m England, it always remains there- 2 Saund. 37, • andn. 2.