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If an offender be in prison for want of bail, a copy of the indictment or information may be delivered to the gaoler, with a notice of trial, and proceedings had thereon.
Defendant, if acquitted, to be discharged.
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42. Where any such defendant is or shall be committed to and detained in gaol for want of bail, it shall be lawful for the prosecutor of such indictment or information to cause a copy thereof to be delivered to the gaoler, keeper, or turnkey of the gaol wherein such defendant is or shall be so detained, with a notice thereon endorsed, that unless such defendant shall, within such space of time as shall be for that purpose limited and fixed by the court in which such indictment or information shall be found or filed, or into which the same shall have been removed, cause an appearance and also a plea or demurrer to be entered in the said court to such indictment or information, an appearance and the plea of not guilty will be entered thereto in the name of such defendant; and the prosecutor of such indictment or information shall also be at liberty to endorse on the copy of such indictment or information so delivered a further notice that the issue to be joined on such indictment or information will be tried in the next term, or at the next assizes, or at the next general gaol delivery or Court of Justiciary to be holden in or for the county, shire, division, city, town, or place, in which the offence shall be alleged to have been committed, or the venue laid in such indictment or information; and in case any defendant so committed or detained as aforesaid shall neglect to cause an appearance and also a plea or demurrer to be entered in such court to such indictment or information, within the space of time so to be limited and fixed by such notice as aforesaid, then, upon an affidavit being made and filed in such court, of the delivery of a copy of such indictment or information, with such notice as herein-before first mentioned endorsed thereon as aforesaid, to such gaoler, keeper, or turnkey, as the case may be (which affidavit may be made before any judge or commissioner of the said court authorized to take affidavits in the said court), it shall be lawful for the prosecutor of such indictment or information to cause an appearance and the plea of not guilty to such indictment or information to be entered in the said court for such defendant, and such proceedings shall be had thereupon as if the defendant in such indictment or information had appeared and pleaded not guilty according to the usual course of such court; and if upon the trial of such indictment or information the defendant so committed and detained as aforesaid shall be acquitted of all the offences therein charged upon such defendant, it shall be lawful for the judge before whom such trial shall be had, although he may not be one of the judges of the court in which such indictment or information shall be found or filed, or into which the same shall have been removed, to order that such defendant shall be forthwith discharged out of custody as to such commitment.
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