3dly. A cause civil or criminal is put without day, when the justices before whom it is depending do not come on the day to which it is continued, the consequence of which is a discontinuance.

Upon such a discontinuance the ancient practice was to award a re-summons or re-attachment, which if special, revived the whole proceeding, if general, the original record only (1).

By the common law, all proceedings upon any indictment, information, or popular action, whereon no judgment had been given, were determined by the demise of the king, and nothing remained but the indictment, information, &c. which were put without day till re-continued by re-attachment (m), &c.; but by the stat. 4 & 5 W. 3. c. 18. and 1 Ann, c. 8. it is provided that such process, &c. shall continue in the same force after the king's death as if he had lived.

Although any error short of an actual discontinuance seems to be cured by appearance; yet, if a man be outlawed, or condemned by default for not appearing to process which is in any respect erroneous, he may for that error, avoid such outlawry or other condemnation, for no one shall be condemned for not appearing where that which should have compelled him to appear is erroneous (n). So if he were subject to any disadvantage in respect of such process, he may avoid it by insisting on the error (o); and, therefore, if a pluries or exigent be erroneously awarded, he shall not lose the advantage of appearing by attorney, or forfeit his goods, though he is liable to answer the original as if the error had not existed.

(1) 7 Co. 20. 2 Haw. c. 27. s. 101.

(m) 2 Haw. c. 27. s. 99. (*) 2 Haw. c. 27, s. 107.

(0) See 2 Haw. c. 27. s. 106. and the authorities there referred to.

299

CHAP. XVII.

Motion to quash the Indictment.

I. At the Instance of the Prosecutor, p. 282.
II. Of the Defendant, p. 283.

WHERE the indictment is defective, the court has a discretionary power to quash it in the first instance, with out putting the defendant to plead to it(a).

But this is a matter of pure discretion, and will not be granted, as of course, at the application of either party (b).

And the defect itself must be very gross and apparent to induce the court to dismiss the indictment in this summary way, instead of leaving the party to his demurrer, motion in arrest of judgment, or writ of error, according to the regular mode of proceeding (c).

And, generally, the application should be made before plea pleaded (d).

The motion is made either by the prosecutor or the defendant.

(a) Com. Dig. Ind. H. Burr. 1127. 4 T. R. 135. 1 Sid. 54. 247. 2 Keb. 128. 1 Keb. 45. Cro. Car. 584. Pal. 389. Salk. 372. 4 St. Tr. 134. Str. 602. 1 T. R. 316. 1 Wils. 325. Ja, 27.

(b) Burr. 1127.
(c) 1 Bl. 275.

(d) 4 St. Tr. 673. Rookwood's case. Leach, 14. Frith's

case.

If the prosecutor move, the court will not quash the indictment unless it appear to be insufficient (e); nor even then, unless another has been found which is sufficient (f).

And will not quash it, of course, where the defendant has been put to expense (g).

And if a second indictment be found for the same offence, pending the first, the court will not quash the first unless the expenses incurred by the defendant, upon the first, be paid to him (h).

Where an indictment, removed by certiorari, was at issue, and the jury appointed, and the prosecutor afterwards procured a new indictment to be found, alleging the first to be defective, the court, upon consent of the parties, quashed the first and directed the second to stand in its place (i).

In case of removal by certiorari, the court will not quash the indictment after a forfeiture of the recognisance by not carrying the record down for trial (k).

And in general the application must be made before the defendant has pleaded (?).

When an information is filed by the attorney-general, ex officio, the court will quash it upon motion, if there be cause; but if the information be exhibited by a private person, the court will not quash it upon motion, because the defendant is entitled to costs (m).

Where the defendant moves, and the indictment plainly appears to be insufficient for the purposes of justice, the court will, it seems, quash it, except in some cases, where the nature of the offence renders it inexpedient to shew any indulgence to the offender. And this has been done, where the court, in which the indictment was found, wanted jurisdiction.

As where an indictment was found at the quarter sessions for perjury at common law (n).

For mere want of form; as where the indictment alleged, that it was presented, &c. without adding, on the oaths of 12 men, &c. (o).

For want of an addition after the first name the addition being inserted after the alias dictus (p).

The caption of an indictment was, "it is presented that the several indictments to this schedule annexed are true bills," and they were quashed upon the objection, that till found they are bills, and not indictments (q).

For misjoinder of defendants: as where an indictment charged six jointly or severally with exercising a trade (r). Or charged several defendants with the same perjury (s). For want of a substantial averment; as where an indictment for not receiving an apprentice did not aver that the binding was within the stat. 43 Eliz. c. 2.

So where the indictment for maintaining a cottage with

(n) R. v. Bainton, Str. 1088. (0) R. v. Burkett. Andr.

226.

(p) The objection may be taken on motion because it appears on the record, and the party is not put to his plea in Abatement, as where there is a wrong addition. R. v. Ward.

York Spr. Ass. 1820. ruled by Park, J. with the concurrence of Bayley, J.

(q) R. v. Brown, Salk, 376. (r) R. v. Weston, Str. 623. (s) R. v. Phillips, et al. Str. 921. see also 6 Mod. 210.

out laying four acres of land thereto, alleged, that the defendant maintained it for habitation, without saying that it was inhabited (t).

So where an indictment for saying to a justice "you do not right," did not aver that the words were spoken to the justice in the execution of his office (u).

Where the facts charged, supposing them to be true, did not amount to an indictable offence (x).

But the court has refused to quash indictments for offences of an heinous nature, such as treason and fe lony (y).

So in case of indictments for offences of a fraudulent nature.

As for cheating by false weights or otherwise (£).

And the court refused to quash an indictment for selling flour by false weights, though it appeared, on the face of the indictment, that the flour-scale was the lighter (a).

So in the case of the King v. Wadsworth (b), the court said it is against the course of the court to quash an indictment against a person for extortion or oppression.

So where an indictment charges any offence immediately affecting the public at large. Upon a motion (c) to quash an indictment upon the stat. West. 2. c. 4. for pulling down hedges, Lord Holt said, we never quash indictments for forgery, perjury, subornation, or any crime concerning the highways (d).

(t) R. v. Burkett, Andr. 230.

(u) R. v. Leafe, Andr. 226. (x) Doug. 153.

(y) Com. Dig. Ind. H.

(≈) 6 Mod. 42. 3 Burr.

(a) 3 Burr. 1841.

(b) 5 Mod. 13.

(c) R. v. Inhabitants of Belton, Salk. 372.

(d) 1 Sid. 140.