
    Commonwealth against Jailer of Allegheny County.
    A person labouring under an infectious disease is not entitled, of right, to be tried at the second term.
    
      HABEAS CORPUS for the body of William Phillips, committed for horse stealing. The prisoner was indicted at May sessions 1838, but had obtained a continuance for the absence of witnesses. He had been brought up again for trial at the June sessions, but was found to be labouring under small pox. Though convalescent, his aspect was so loathsome as to spread a general panic; and on the testimony of the physician of the prison that he might still communicate infection, he Was remanded, though insisting on being tried. And now,
    
      Mahan moved for his discharge under the third section of the habeas corpus act.
    
      Ipoin, for the Commonwealth,
    insisted that the case was not distinguishable in principle from The Commonwealth v. The Sheriff and Jailer of Allegheny County, 16 Serg. & Rawle 304.
   Per Curiam.

There is no doubt that necessity, either moral or physical, may raise an available exception to the letter of the habeas corpus act. A court is not bound to peril life in an attempt to perform what was not intended to be required of it. The legislature intended to prevent wilful and oppressive delay; and it is sufficient that there is no colour for an imputation of it.

Prisoner remanded.  