prosecutes for our said Lord the King in this behalf, in his proper person comes here into the court of our said Lord the King, before the King himself, at Westminster on [Monday next after eight days of the Holy Trinity, in this same term,] and for our said Lord the King, gives the court here to understand and be informed that," &c., so proceeding to state the facts and circumstances constituting the offence, with the same certainty and precision, as in an indictment, and in the same form and according to the same rules, excepting that in introducing averments, instead of the words," And the jurors aforesaid, upon their oath aforesaid, do further present," are used the words " and the said coroner and attorney of our said Lord the King, who prosecutes as aforesaid, further gives the court here to understand and be informed, that," &c. The conclusion is the same as in an indictment.

The second and subsequent counts commence thus: "And the said coroner and attorney of our said Lord the King, who prosecutes as aforesaid, further gives the court here to understand and be informed, that," &c., so proceeding to state the offence, and concluding as in an indictment. And to the conclusion of the last count, are added these words : "And therefore the said coroner and attorney of our said Lord the King, prayeth the consideration of the court here in the premises, and that due process of law may be awarded against him the said J. S. in this behalf, to make him answer to our said Lord the King, touching and concerning the premises aforesaid.”

How filed, &c.] After the court have made the rule absolute, the information may be filed at the Crown Office, King's Bench Walk, Temple, upon the prosecutor's entering into the usual recognizances for costs. Formerly, the master of the Crown Office had the power of filing informations without any controul; and being filed in the name of the King, they subjected the prosecutor to no costs, however groundless they turned out to be at the trial. But some abuses of this power, previously to the revolution, caused it shortly afterwards to be enacted, by stat. 4 & 5 IV. & 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 204. 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 intitled to any costs, beyond the extent of this recognizance. 2 T. R. 145,

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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 1 Str. 185. 1 Sid. 152. They have, however, interfered in this manner, in a very few cases, under particular circumstances. See 2 Str. 1072. 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.

CHAPTER III.

Pleas, Replications, &c.

SECT. 1. Plea to the Jurisdiction.

2. Plea in Abatement.

3. General Issue.

4. Special Pleas in Bar.

1. Auterfois acquit.

2. Auterfois convict.

3. Auterfois attaint.

4. Pardon.

5. Demurrer.

6. Counterplea of Clergy.

SECT. I.

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 jurisdiction, without answering at all to the crime alleged; 2 Hale, 236 as if a man be indicted for treason at the quarter sessions, or for a rape at the sheriff's tourn, or the like; Id.; or if another court have exclusive jurisdiction of the offence.

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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 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. 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, 1 7. R. 316, or the Court of King's Bench, upon the indictment being removed by certiorari, will quash it, 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.

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 precluuled 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 enquired of by the country, &c." Or if it conclude with a verification, then thus: "ind 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 informa tions ex officio. See pust, sect. 4 of this chapter.

SECT. 2.

Plca 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 may plead this matter in abatement. Ante, p. 9. Misnomer, however, is the only case in which a plea in abatement is at all usual in practice. 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 and 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 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. 2 Leach, 535. Annexed to it must be an affidavit, (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 hereunto annexed is true, in substance and matter of fact." It may be necessary to mention that, although usual, it is not essential that the plea should state that the defendant was baptized by such a name; saying that it is his name, and by that name he was always called and known, is sufficient. 6 Mod. 116, 1 Salk. 6. Hardw. 286. Com. Dig. Abatement, F. 17. A plea of misnomer of surname, may be easily framed from the above. See a precedent, Cr. Cir. C, 46. See also a precedent of a plea of no addition of degree or mystery, Cr. Cir. C. 393; false addition of place of residence, Went. 36.

The replication to this plea, is in form thus: "and hereupon J. N." (the clerk of the peace, or clerk of the arraigns), "who prosecutes for our said Lord the King in this behalf, saith that the said indictment, by reason of any thing by the said James Long, in his said plea above alleged, ought not to be quashed; because he saith that the said James Long, long before, and at the time of the preferring of the said indictment was, und still is known as well by the name of George Long, as by the name of James Long, to wit at the parish aforesaid, in the county aforesaid: and this he the said J. N. prays may be enquired of by the country, &c." In general, however, instead of replying, it is better, if the grand jury be still sitting, to alter the in