free from all bias or prejudice, so mild, so unimpassioned, that all persons present, even the losing party himself, if possible, may be convinced that justice has been fairly administered. These are my reasons for the few observations I have above made as to the manner of charging a grand jury at a Court of Quarter Sessions. It may be said that judges at the assizes do not confine their charge within the limits I have here suggested, but often observe upon matters relating to the general affairs of the county, and other topics, not in any manner suggested by the calendar of the prisoners to be tried. Judges do so, no doubt, and in most cases rightly; but it must be recollected that they are at the time addressing a grand jury, many of whom are Magistrates, and all of whom are men of the first consequence and influence in the county, to whom a few hints from a judge of great legal knowledge and experience, either as to the manner in which they should exercise their duties as magistrates, or use their influence as country gentlemen, in furtherance of the welfare of their county and its inhabitants, must be extremely valuable, and are, I have no doubt, proportionably appreciated both by the grand jury, and the public, who hear the charge delivered. But there is really no necessity for any thing of this kind, in addressing a grand jury, at a Court of Quarter Sessions.

Petty Jury called.] The petty jurors are then called, and the first twelve who answer to their names usually go into the jury box. The rest are then called over, and the names of those who appear are ticked off upon the list or panel by the clerk of the peace. The names of the defaulters are then called over twice; and with respect to those who do not appear, the summoning officers who served them with the notices to attend, are then called, sworn and examined as to the respective services, and if no excuse by oath or affidavit be offered for their non-attendance, the Court order them to be fined, as mentioned infra.

Fine for Non-attendance.] If any man summoned to attend upon a jury, shall not attend in pursuance of such summons, or being thrice called shall not answer to his name, or if any such man or any talesman, after having been called, shall be present but not appear, or after his appearance shall wilfully withdraw himself from the presence of the Court: the Court shall set such fine upon every such man or talesman so making default, (unless some reasonable excuse shall be proved by oath or affidavit,) as the Court shall think meet. 6 G. 4, c. 50, s. 38. The stat. 5 & 6 W. 4, c. 76, s. 121, as to jurors at the quarter sessions in boroughs, contains a similar enactment, with this addition, that if the fine be not paid, the Court shall make an order that the same may be levied by distress and sale of the party's goods.

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2. Bills preferred and found.

The bills in ordinary cases are prepared in the Indictment Office at the Sessions, by the proper officer there; they must be on parchment, and are usually filled up on blank printed forms. But where the indictment is required to be special, or in any manner different from the common forms, or where any doubt or difficulty occurs as to the manner in which the indictment should be framed, it will be prudent to have it drawn or at least settled by a barrister, and at most Courts of Quarter Sessions the fee paid in this respect is allowed to the prosecutor in costs. When drawn by a barrister, it must be ingrossed on parchment; which is sometimes done by the prosecutors' attorney, but usually in the Indictment Office. The names of the witnesses, intended to be examined before the grand jury, are then indorsed upon the bill, and the words "sworn in Court," added after them.

The witnesses, whose names are thus indorsed upon the bill, come into Court; and the bill being given to the crier, or other officer appointed for the purpose, he swears the witnesses, the chairman or recorder signs his name on the back of the bill, and it is then handed to the grand jury. All this must be done in open Court, and during the time that the Court are sitting.

The witnesses are then severally called in before the grand jury, and examined by them; and if a majority of the grand jury (amounting to twelve at the least) be of opinion that the evidence thus adduced, make out a sufficient case against the prisoner, to warrant his being put upon his trial before the petty jury, the foreman indorses on the bill "A true Bill," and signs his name to it, "A. B. foreman." But if a majority of the grand jury be of a different opinion, then the words " Not a true Bill" are indorsed. Having found one or more bills, the grand jury then come into Court, and hand the bills to the clerk of the peace, who thereupon addresses them thus: "Gentlemen of the grand jury, you are content that the Court shall amend all matters of form, altering no matter of substance: Against C. D. for [felony or a misdemeanor'] you say a true bill; Against E. F. for," &c. The indictments are then filed by the clerk of the peace, in the order in which he has thus received and called them over; and the prisoners are usually tried in the order in which their respective indictments thus stand upon the files of the Court, the felonies however being taken first before the misdemeanors, and of the misdemeanors, those cases being taken first in which the defendants are in custody.

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Where the bill is against two or more defendants, the grand jury may find it a true bill" as to one, and "not a true bill" as to the others. So, where the bill contains two counts, the grand jury may find a true bill" as to one count, and " not a true bill" as to the other. R. v. Fieldhouse, Cowp. 325. They

cannot however find a true bill as to part of a count, and ignore the rest of it. 2 Hawk. c. 25, s. 2. It is laid down indeed in the old text books, that where a bill for murder is preferred to a grand jury at the assizes, they may find it a true bill for manslaughter. But this is not done in modern practice; if a grand jury now intimate to the Court their wish to find a true bill for manslaughter only, the judge will order the bill to be altered, so as to make it a bill for manslaughter, and will direct it to be again laid before the grand jury.

3. Arraignment, Plea, &c.

Traverse.] Formerly, in all misdemeanors, the defendant was not bound to submit to have the indictment against him tried at the same assizes or sessions at which it was found: but if he was in custody, he was called upon to plead to the indictment, and he might then traverse it until the next assizes or sessions; and the same, if he were brought in by process during the assizes or sessions at which the bill was found; but if he were not in custody when the bill was found, or not brought in by process during the assizes or sessions at which it was found, but was brought in or bound over by recognizance previously to some subsequent assizes or sessions, then he was bound, not only to plead to such indictment, but to submit to be tried upon it also, at such subsequent assizes or sessions.

This is in some degree altered by stat. 60 G. 3, and 1 G. 4, c. 4, by the 3d section of which it is enacted, that "where any person shall be prosecuted for any misdemeanor by indictment at any session of the peace, session of oyer and terminer," &c. having been committed 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," &c. unless the indictment be removed by certiorari. But, by sect. 5, where any person shall be so prosecuted, "not having been committed to custody, or held to bail to appear to answer for such offence twenty days before the session at which such indictment shall be found, but who shall have been committed to custody or held to bail to appear to answer for such offence at some subsequent session, or shall have received notice of such indictment having been found twenty days before such subsequent session: he or she shall plead to such indictment at such subsequent session, and trial shall proceed thereupon at such same session of the peace," &c. unless the indictment be removed by certiorari. By sect. 6, however, the Court, in both of the above cases, may allow a further time for pleading or trial, upon sufficient cause shewn for that purpose. Where a prisoner was

committed for a rape, more than twenty days before the assizes, and afterwards at the assizes the grand jury threw out the bill for the rape, but found a bill for an assault with intent to commit it: Vaughan, B. held that the prisoner was entitled to traverse this latter indictment. R. v. James, 3 Car. & P. 222.

By the 10th section of the above statute, it is provided that it shall not extend to prosecutions for the non-repair of any bridge or highway; which therefore may be traversed in the same manner as might have been done before the statute. It may also be necessary to remark, that there can be no traverse in a case of felony; but the Court, even in that case, may put off the trial until the next assizes or sessions, if they deem it necessary for the ends of justice; and in more than one instance, where the principal witness has been of such tender years, and so imperfectly instructed in religion, as not to warrant her being sworn, the judge at the assizes has ordered the trial to be put off until the next assizes, and directed the child to be in the meantime fully instructed in her religion, and particularly as to the nature and obligation of an oath.

Where the defendant appears at the sessions or assizes, and pleads to the indictment, and traverses it to the next sessions, he is obliged to enter into a recognizance with sureties to appear and try the case at the next assizes or sessions. And two days at least before such assizes or sessions, the defendant should give the prosecutor a notice of trial: for it is only upon proof of such notice, that the defendant can claim to be acquitted at the next assizes or sessions, in case the prosecutor does not appear. The notice may be in this form: "Take notice that, in pursuance of my recognizance in this behalf, I shall appear at the next General Quarter Sessions to be holden on ———, in and for the county of and then and there try my traverse upon the indictment for an [assault and battery] which you have preferred against me. Dated," &c. If the prosecutor appear at the trial, he waives all want of notice, or any irregularity or defect in a notice given. R. v. Hobby, 1 Ry. & M. 241.

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Arraignment.] After the grand jury have found a true bill against a prisoner, the clerk of the peace orders the gaoler to bring him to the bar. When he appears, the clerk of the peace addresses him thus: "A. B. hold up your hand: You stand indicted by the name of A. B, late of," &c. "for that you on the,” &c. [as in the indictment, to the end, except that it is addressed to the prisoner in the second person.] "How say you, A. B., are you guilty of this felony whereof you stand indicted, or not guilty?"

The holding up of the hand is a mere ceremony, and not of any importance; it is principally done where there are two or more arraigned upon the same indictment, for the purpose of

ascertaining which of them is A. B., which C. D., &c. See 2 Hawk. c. 28, s. 2. R. v. Ratcliffe, 1 W. Bl. 3.

Formerly, when there was more danger of rescue and escapes than there is at present, it was no uncommon thing for prisoners to be brought to the bar of the Court in irons. And they were obliged to stand in irons during the arraignment, and until they had pleaded, the judges saying that they had no authority to order them to be struck off until the trial. R. v. Layer, 16 How. St. Tr. 94, 99, 129. R. v. Waite, 2 East, P. C. 570. 1 Leach, 28,36. At the trial, however, the irons were always struck off. Id.

Standing Mute, &c.] If any person, being arraigned upon or charged with any indictment or information for treason, felony, piracy or misdemeanor, shall stand mute of malice, or will not answer 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 of such person; and the plea so entered, shall have the same force and effect, as if such person had actually pleaded the same. 7 & 8 G. 4, c. 28, s. 2. And for the purpose of ascertaining whether a person, who stands mute, is mute of malice or by the act of God, the judge will immediately charge the jury to try this collateral issue, and the gaoler or such other person as can give evidence upon the subject, shall be sworn and examined. See R. v. Mercier, 1 Leach, 183. R. v. Steele, 1 Leach, 451. Where a prisoner, on his arraignment, stated that he was deaf, and the indictment was thereupon read over to him, but he appeared not to understand it: Gifford, C.J. immediately directed a jury to be impanelled, to try whether he stood mute of malice, or by the act of God. R. v. Halton, 1 Ry. & M. 78. Where a prisoner, who had already been tried and convicted, but whose trial was deemed a nullity, on the ground of some informality in the swearing of the witnesses who gave evidence before the grand jury, was again arraigned upon an indictment for the same offence, and refused to plead, alleging that he had been already tried: Littledale, J. and Vaughan, B. ordered a plea of not guilty to be entered for him, under the above statute. R. v. Bitton, 6 Car. & P. 92. But if the jury, upon being so impanelled, find that the prisoner is insane, the Court shall record such verdict, and order the party to be kept in strict custody, in such place and in such manner as to them shall seem fit, until his Majesty's pleasure shall be known. 39 & 40 G. 3, c. 94, s. 2. See ante, p. 79.

Plea in Abatement.] Formerly, if the indictment gave the defendant no christian-name or a wrong one, no surname or a wrong one, no addition of degree or mystery or a wrong one, &c. the defendant might plead this matter in abatement. But by