CHAPTER IX.

OF PLEADING.

3 Edw. 1, c. 12, Eng. It is provided also, that notorious Prisoners felons, and which openly be of evil name, and will not put refusing to themselves in enquests of felonies, that men shall charge them plead, shall have peine with before the justices at the king's suit, shall have strong and forte et dure. hard imprisonment, as they which refuse to stand to the common law of the land. But this is not to be understood of such prisoners as be taken of light suspicion.

17 & 18 Geo. 3, c. 45, s. 1. Whereas great delay of justice hath of late years been occasioned by returning persons, who stand outlawed in civil cases, on grand juries: be it &c., Outlawry of that from and after the twenty-ninth day of September, a grand juror (1778), no plea of the outlawry of a grand juror in any civil shall not be case shall be received in avoidance of any act or acts to be pleaded in had or done by any grand jury whatsoever.

in a civil case,

avoidance of any act done

by the jury.

60 Geo. 3, & 1 Geo. 4, c. 4(a), s. 1. Whereas great delays have occurred in the administration of justice, in cases of persons prosecuted for misdemeanors by indictment or information in his majesty's courts of king's bench at Westminster and Dublin, and by indictment at the sessions of the peace, sessions of oyer and terminer, great sessions, and sessions of gaol delivery, in that part of Great Britain called England, and in Ireland respectively, by reason that the defendants in some of the said cases have, according to the present practice of such respective courts, an opportunity of postponing their trials to a distant period, by means of imparlances in the said several courts of King's Bench, and by time being given to try in such respective courts of session; for remedy thereof be it &c., that from and after the passing of this act, Persons where any person shall be prosecuted in his majesty's court of secuted in K. King's Bench at Westminster, or in his majesty's court of meanors, not King's Bench in Dublin respectively, for any misdemeanor, allowed to either by information or by indictment there found, or re- must plead in imparl, but moved into the same respective courts, and shall appear in four days. term time in either of the said courts respectively in person,

pro

B. for misde

(a) Entitled "An Act to prevent delay in the administration of justice in cases of misdemeanor."

60 G. 3, & 1

to answer to such indictment or information, such defenG. 4, c. 4. dant, upon being charged therewith, shall not be permitted to imparle to a following term, but shall be required to plead or demur thereto within four days from the time of his or her appearance; and in default of his or her pleading or demurring within four days as aforesaid, judgment may be entered against the defendant for want of a plea; and in case such defendant shall appear to such indictment or information by his or her clerk or attorney in court, it shall not be lawful for such defendant to imparle to a following term; but a rule requiring such defendant to plead may forthwith be given, and a plea or demurrer to such indictment or information enforced, or judg ment by default entered thereupon, in the same manner as might have been done before the passing of this act, in cases where the defendant had appeared to such indictment or information by his or her clerk in court or attorney in a previons

Court may

time to plead.

term.

2. Provided always, and be it further enacted, that it shall allow further be lawful for the said respective courts, or for any judge of the same respectively, upon sufficient cause shown for that purpose, to allow further time for such defendant to plead

Persons who have been made amen

able, twenty days before sessions or

assizes, shall

unless a cer

tiorari shall

or demur to such indictment or information.

3. That from and after the passing of this act, where any person shall be prosecuted for any misdemeanor by indictment at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery, within that part of Great Britain called England, or in Ireland, having been committed plead thereat, to custody or held to bail to appear to answer for such offence twenty days at the least before the session at which such indictment shall be found, he or she shall plead to such indictment, and trial shall proceed thereupon at such same session of the peace, session of oyer and terminer, great session, or session of gaol delivery respectively, unless a writ of certiorari for removing such indictment into his majesty's courts of King's Bench at Westminster or in Dublin respectively, shall be delivered at such session, before the jury shall be sworn for such trial.

be delivered

before the jury be

sworn.

Certiorari

may be issued before indict

4. And it is hereby declared and enacted, that such writ of certiorari may be applied for and issued before such indictment found. ment has been found, in the like cases, in the same manner, and upon the same terms and conditions, as if such writ of certiorari had been applied for after such indictment had been found.

If the party have not been

twenty days before the

5. That from and after the passing of this act, where any amenable for person shall be prosecuted for any misdemeanor by indictment at any session of the peace, session of oyer and terminer, great session, or session of gaol delivery within that part of Great Britain called England, or in Ireland, not indictinent is having been committed to custody or held to bail to ap

session at

which the

1

G. 4, c. 4.

notice of the

indictment,

he shall plead

pear to answer for such offence twenty days before the 60 G. 3, & 1 session at which such indictment shall be found, but who shall have been committed to custody or held to bail to found, or if appear to answer for such offence at some subsequent ses- he have had sion, or shall have received notice of such indictment hav- twenty days' ing been found twenty days before such subsequent session, he or she shall plead to such indictment at such subsequent ses sion, and trial shall proceed thereupon at such same session of the peace, session of oyer and terminer, great session, or tiorari be session of gaol delivery respectively, unless a writ of certiorari delivered for removing such indictment into his majesty's courts of King's Bench at Westminster or in Dublin respectively, shall be delivered at such last mentioned session before the jury shall be sworn for such trial, any law or usage to the contrary notwithstanding.

forthwith, unless cer

before trial.

time to plead.

7. Provided also, and be it enacted, that it shall be lawful Court may for the court, at any session of the peace, session of oyer and allow further terminer, great session, or session of gaol delivery respectively, upon sufficient cause shown for that purpose, to allow further time for pleading to any such indictment, or for trial of the

same.

tuted by the

8. That in all cases of prosecutions for misdemeanors, insti- In prosecututed by his majesty's attorney or solicitor-general, in any of tions instithe courts aforesaid, the court shall, if required, make order attorneythat a copy of the information or indictment shall be delivered, general, a after appearance, to the party prosecuted or his clerk in court copy of the or attorney, upon application made for the same, free from all shall be expense to the party so applying; provided that such party, gratis. or his clerk in court or attorney, shall not have received a copy thereof.

indictment

delivered

defendant

9. Provided also, and be it further enacted, that in case any And if the prosecution for a misdemeanor instituted by his majesty's attorneyattorney or solicitor-general in any of the courts aforesaid, general shall not bring such shall not be brought to trial within twelve calendar months to trial in next after the plea of not guilty shall have been pleaded twelve months, the therein, it shall be lawful for the court in which such prosecu- court may tion shall be depending, upon application to be made on the allow the behalf of any defendant in such prosecution, of which applica- to bring on tion twenty days previous notice shall have been given to his the trial. majesty's attorney or solicitor-general, to make an order, if the said court shall see just cause so to do, authorising such defendant to bring on the trial in such prosecution; and it shall thereupon be lawful for such defendant to bring on such trial accordingly, unless a nolle prosequi shall have been entered in such prosecution.

informations

10. That nothing in this act contained shall extend or be This act not construed to extend to any prosecution by information in to extend to nature of a quo warranto, or for the non-repair of any bridge quo warranto. or highway.

9 G. 4, c. 54.

Plea of not

guilty alone,

9 Geo. 4, c. 54, s. 7. That whenever any person, no having privilege of peerage, being arraigned upon ar indictment for treason, felony, or piracy, shall plead thereto shall put the plea of not guilty, such person shall, by such plea, without any further form, be deemed to have put himself herself upon the country for trial; and the court shall, it the usual manner, order a jury for the trial of such perses accordingly.

prisoner on his trial.

If prisoner

refuse to plead, the court may

order a plea of not guilty to be entered.

Attainder not pleadable in bar, unless

for the same

offence.

How the property of

partners &c., shall be laid

in indictments.

Indictments

shall not be

abated by plea

addition, &c.

8. That if any person, being arraigned upon or charged with any indictment or information for treason, felony, piracy, a misdemeanor, shall stand mute of malice, or will not answe directly to the indictment or information; in every such case. it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of not guilty on behalf such person; and the plea so entered shall have the same force and effect, as if such person had actually pleaded the

same.

10. That no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment.

28. And in order to remove the difficulty of stating the names of all the owners of property, in the case of partners and other joint owners; be it enacted, that in any indictment or information for any felony or misdemeanor, wherein it shal be requisite to state the ownership of any property whatsoever. whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons partners in trade, joint tenants, parceners, or tenants in com mon; it shall be sufficient to name one of such persons, and to state such property to belong to the person so named and another or others, as the case may be; and whenever, in any indictment or information for any felony or misdemeanor, it shall be necessary to mention, for any purpose whatsoever, any partners, joint tenants, parceners, or tenants in common, shall be sufficient to describe them in the manner aforesaid: and this provision shall be construed to extend to all joint stock companies and trustees.

30. And for preventing abuses from dilatory pleas, be it enacted, that no indictment shall be abated by reason of any of misnomer, dilatory plea of misnomer, or of want of addition, or of wrong or of want of addition of any party offering such plea, if the court shall be satisfied, by affidavit or otherwise, of the truth of such plea; but in such case the court shall forthwith cause the indictment or information to be amended according to the truth; and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded.

NOTE.

The bills of indictment having been found, and handed in ▷ the clerk of the crown in open court, by some of the grand Arraign. rors, the next step is the arraignment, or the calling the ment. ffender to the bar of the court to answer the matter charged pon him by the indictment, 2 Hale, 216. This can only be one when the defendant appears in person to answer the inlictment. In the King's Bench therefore, upon trials of mislemeanor or mayhem, where, through the favour of the court, he defendant is allowed to appear by attorney, Bacon's Case, \ Lev. 146; R. v. Haddock, Str. 1100, arraignment is dispensed with; but, upon trials for treason or felony, where the personal appearance of the defendant is absolutely required, 2 Hale, 216, arraignment appears to be indispensable; and attainders for capital crimes have been reversed for the want of it, 2 Hale, 217. But it is doubted whether it be necessary to state it on the record, and it seems that if it be stated on the record that he had oyer of the indictment, that imports it, Com. Dig. Indictment, M.; 2 Hawk. c. 28, s. 6. The arraignment is performed in the following manner;-the clerk of the crown desires the gaoler to put forward the prisoner, who advances to the front of the dock, where he stands without any kind of manacle or bond upon him, unless there be manifest danger of a rescue, 2 Hale, 219: if the prisoner be a peeress she is arraigned kneeling, 1 Lea. C. C. 146. The clerk of the crown then says to him, "A. B. hold up your right hand. You stand indicted for that you, on &c., at &c.," (going through all the material parts of the indictment, so as to put the prisoner in full possession of the charge against him, and concluding with the question,) "are you guilty or not?" The indictment is to be slowly read, if the defendant wish it, 2 Lea, C. C. 711. The practice of holding up the right hand is very usual and convenient, but by no means necessary, R. v. Radcliffe, 1 Bl. Rep. 3. It is done for the purpose of identifying the prisoner, as the person named in the record, and if he refuse to hold up his hand, the identification may be effected in any other way, 2 Hawk. c. 28, s. 2. The ceremony is not required in case of a peer, Ld. Delamere's Ca. 4 St. Tr. 211; Ld. Mohun's Ca. 4 St. Tr. 508. If the prisoner confess that he is guilty, the judge usually admonishes him on the effect of his conduct; as, by dispensing with a trial, he excludes all the mitigating circumstances which might appear in evidence. If the prisoner will not retract his confession, the clerk of the crown takes a note of it opposite the prisoner's name in the crown book, and causes him to be put back until it is thought right to call him up for judgment. In such cases, this is usually deferred until the judge has had leisure to read the informations and examinations, and thus to fix the punishment which he thinks