W. & M. c. 18, that the master of the Crown Office should not thereafter file any information without express direction from the Court of King's Bench; and that every prosecutor, permitted to promote such information, should give security by a recognizance of 201. conditioned to prosecute the same with effect; and to pay costs to the defendant, in case he be acquitted thereon, unless the judge who tries the information certify that there was reasonable cause for filing it; and, at all events, to pay costs unless the information shall be tried within a year after issue joined. The defendant, however, upon his acquittal, is not entitled to any costs beyond the extent of this recognizance. R. v. Fleetwood, 2 T. R. 145. See R. Brooke, 2 T. R. 190. In what cases quashed]—The court will very seldom quash an information filed by the master of the Crown Office; indeed, in some of the books it is laid down that they will not quash it in any case. See R. v. Nixon, 1 Str. 185. R. v. Fountain, 1 Sid. 152. They have, however, interfered in this manner, in a very few cases, under particular circumstances. See R. v. Roper, 2 Str. 1072. R. v. Williams, 1 Bur. 385. If quashed on the motion of the plaintiff, it must be upon payment of costs, at least to the extent of the recognizance. Where a criminal information had been granted, and the attorney-general afterwards, for the same cause, filed an information ex officio, the court stayed the former until further order. R. v. Alexander, MS. E. T. 1830. 72 CHAPTER III. PLEAS, REPLICATIONS, &c. SECT. 1. Order, and Time of pleading, 72. 3. Plea in Abatement, 75. 4. Demurrer, 77. 5. Special Pleas in Bar, 80. 1. Auterfois acquit, 82. 4. Pardon, 85. SECT. 1. Order, and Time of Pleading. THE stat. 4 A. c. 16, s. 4, 5, which in civil cases allows a defendant by leave of the court to plead several matters, contains a proviso that nothing therein shall extend to any indictment or presentment of treason, felony, or murder, or any, other matter, or to any action upon a penal statute. Criminal proceedings, therefore, remain under the same restriction which existed as to all matters at common law, and no more than one plea can be put in in answer to any indictment or criminal information. In felonies, however, if the defendant plead in abatement or in bar, he may at the same time, or afterwards if the plea be adjudged against him, plead over to the felony. When brought to the bar and arraigned, the prisoner either confesses the charge, stands mute of malice, or does not answer directly to the charge, which may be entered as a plea of not guilty, 7 & 8 G. 4, c. 28, s. 2, or pleads-to the jurisdiction, or in abatement-or demurs-or pleads specially in bar-or generally, that he is not guilty. In addition to these several modes of pleadings, there were formerly what were called declinatory pleas, the plea of sanctuary, and the plea of clergy. The privilege of sanctuary was abolished by stat. 21 Jac. 1, c. 28, and the plea of clergy was disused, because it was more advantageous for the prisoner to pray clergy after, than to plead it before his conviction. To the prayer of clergy, in certain cases, the crown might counterplead. But, now, the benefit of clergy is abolished, (7 G. 4, c. 28, s. 6), and the plea, and prayer, and counterplea of clergy, are therefore no longer in use. When the defendant has any special matter to plead in abatement or in bar, or if the indictment be demurrable, he should plead it, or demur at the time of arraignment before the plea of not guilty. See R. v. Bankes, 2 Smith, 620. Where a defendant, prosecuted in the court of King's Bench for any misdemeanor, by information or indictment there found or removed into that court, appears in court in term time in person to answer the indictment or information, he cannot imparl to a following term, but must plead or demur thereto, within four days from the time of his appearance; and in default of his pleading or demurring within four days, judgment may be entered against him for want of a plea: if he appear to the indictment by attorney, he cannot imparl to the following term, but may forthwith be ruled to plead; and a plea or demurrer may be enforced, or judgment by default entered thereupon, in the same manner as, before the passing of the act, might have been done had the defendant appeared by his attorney in the preceding term. 1 G. 4, c. 4, s. 1. But the court or a judge may, on sufficient cause, allow further time to plead or demur. 1 G. 4, c. 4, s. 2. At common law, a defendant indicted for a misdemeanor might, after plea, traverse the indictment to the next session or assizes. But now, in all cases, (except for the non-repair of bridges or highways, 1 G. 4, c. 4, s. 10), if the defendant have been in custody, or on bail, twenty days at the least, upon the same charge, he must, upon the finding of the indictment, plead and try instanter; 1 G. 4, c. 4, s. 3; and if the indictment be found at a former session or assizes, and the defendant be in custody, or on bail for the same offence, or receive notice of the indictment twenty days before any subsequent session or assizes, he must, at such subsequent session or assizes, plead and try. 1 G. 4, c. 4, s. 5. But the court may allow the defendant further time to plead. 1 G. 4, c. 4, s. 7. SECT. 2. Plea to the Jurisdiction. WHERE an indictment is taken before a court that hath no cognizance of the offence, the defendant may plead to the juris E diction, without answering at all to the crime alleged; 2 Hale, 286; as, if a man be indicted for treason at the quarter sessions, or for a rape at the sheriff's tourn, or the like; Ib.; or if another court have exclusive jurisdiction of the offence. But although the defendant may plead to the jurisdiction in such a case, there are but few instances in which he is obliged to have recourse to such a plea. If the offence were committed out of the jurisdiction of the court, the defendant may take advantage of this matter under the general issue; see R. v. Johnson, 6 East, 583; or if the objection appear upon the face of the record, he may demur, or (it should seem) move in arrest of judgment, or bring a writ of error. See R. v. Hewitt, R. & R. 158. If, on the other hand, the offence were committed within the jurisdiction of the court, but the court have not cognizance of it, (which can occur only in the case of indictments in inferior courts, such as the court of quarter sessions), the defendant may have advantage of it upon general demurrer; R. v. Fearnley, 1 T. R. 316; or the Court of King's Bench, upon the indictment being removed by certiorari, will quash it; R. v. Bainton, 2 Str. 1088; or the court, where the indictment is preferred, will in general give the defendant advantage of the objection, at the trial, under the general issue. As pleas to the jurisdiction, therefore, seldom occur, it is not necessary to treat of them here, at any length. The form of them is thus: "And the said J. S., in his own proper person, cometh into court here, and having heard the said indictment read, saith that the court of our lord the King here ought not to take cognizance of the [trespass and assault] in the said indictment above specified; because, protesting that he is not guilty of the same, nevertheless the said J. S. saith, that" [&c. so proceeding to state the matter of the plea. See the precedents, 1 Went. 10. 18. 4 Went. 63. Conclude thus:] "And this he the said J. S. is ready to verify; wherefore he prays judgment if the said court of our lord the King now here will or ought to take cognizance of the indictment aforesaid; and that by the court here he may be dismissed and discharged, &c." Then add profert of any letters patent which may have been set forth in the plea. The form is the same in the King's Bench, excepting that the court is described as the court of our said lord the King before the King himself here;" and, in the case of informations, the words, "having heard the said indictment read," are omitted. The plea must be verified by affidavit. 66 The form of the replication to this plea is thus: "And hereupon J. N.," (the clerk of the peace or clerk of arraigns), "who prosecutes for our said lord the King in this behalf, says, that notwithstanding any thing by the said J. S. above in pleading alleged, this court ought not to be precluded from taking cognizance of the indictment aforesaid; because he says, that," [&c. stating the matter of the replication]. "And this he the said J. N. prays may be inquired of by the country, &c." Or if it conclude with a verification, then thus: "And this he the said J. N. is ready to verify; wherefore he prays judgment, and that the said J. S. may answer to the said indictment." Where the plea is pleaded in the court of King's Bench, the replication is in the name of the master of the Crown Office, in the case of an indictment or of an information filed by him; or in the name of the attorney-general, in the case of informations ex officio. See post, Sect. 5 of this Chapter. SECT. 3. Plea in Abatement.. If the indictment assign to the defendant no Christian name, or a wrong one, no surname or a wrong one, or no addition or a wrong one, he can only object to this matter by plea in abatement, ante, p. 26; for although formerly, if no addition were given, the court would perhaps have quashed the indictment, see R. v. Thomas, 3 D. & R. 621, an application for that purpose would not now, since the recent statute, 7 G. 4, c. 64, s. 9, be entertained. Misnomer was the only case in which, before the late statute, a plea of abatement was at all usual in practice, and the modern enactment, although it has not abrogated the rule of law which requires that the defendant should be described by his Christian and surname, and has not repealed the statute of additions, has entirely superseded every advantage formerly derived from that form of plea. The following is the form of a plea of misnomer :-"And James Long, who is indicted by the name of George Long, in his own proper person cometh into court here, and having heard the said indictment read, saith, that he was baptized by the name of James, to wit, at the parish aforesaid, in the county aforesaid, and by the Christian name of James hath always since his baptism hitherto been called or known; without this, that he the said James Long now is or at any time hitherto hath been called or known by the Christian name of George, as by the said indictment is supposed: and this he the said James Long is ready to verify: wherefore he prayeth judgment of the said indictment, and that the same may be quashed, &c." See R. v. Shakespeare, 10 East, 87. This plea should be engrossed on parchment or paper, although it is said to have been decided that it may be pleaded ore tenus. R. v. Dean, 2 Leach, 535. Annexed to it must be an affidavit, (R. v. Grainger, 3 Bur. 1617), intituled in the court and cause, to this effect: "James Long, of the defendant in this prosecution, maketh oath and saith, that the plea |