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Plea that the

seised, the said Edward earl Banbury, died thereof seised without heir male of his body issuing, to wit, at, &c. after whose death the estate, degree, title, and honour of earl Banbury aforesaid descended to Nicholas Knollis as heir male of the body of the said William earl Banbury, to wit, brother and heir of the aforesaid Edward, son and heir of the aforesaid William, by means whereof the said Nicholas became and was earl Banbury, and seised of the state, degree, and honour of earl Banbury aforesaid, in his demesne as of fee tail, to wit, to himself and the heirs male of the body of the said William then late earl Banbury, to wit, at, &c. aforesaid; and being so thereof seised, the said Nicholas earl Banbury died so thereof seised, to wit, at, &c. aforesaid, after whose death the state, degree and honour of earl Banbury aforesaid descended to the said Charles as heir male of the body of the said William late earl Banbury issuing, to wit, son and heir of the aforesaid Nicholas late earl Banbury, brother and heir of the said Edward, son and heir of the said William, whereby at the time of the caption of the said indictment, the said Charles was and still is seised of and in the state, degree, and honour of earl Banbury in his demesne as of fee tail, to wit, to himself and the heirs male of the body of the aforesaid William issuing, and still is earl Banbury, to wit, &c. aforesaid; and this he is ready to verify, wherefore because he is not named in the indictment aforesaid by the said name of earl Banbury, he prays judgment of the indictment aforesaid, and if he ought to be compelled further to answer that indictment.

And A. B. comes in his proper person, and having heard defendant is the said indictment read, says, that he at the time of the not describ- taking of the said indictment, and long before, was and yet editionary is a yeoman; and that the said indictment does not contain degree or an addition of the said* estate of the said A. B. nor of any mystery. (h) estate, degree, or mystery of the said A. B. and this he is [* 525] ready to verify; wherefore, for want of the addition of the

of

addition of

estate, degree, or mystery of the said A. B. in the said indictment, he prays judgment of the said indictment, and that the same may be quashed.

Entry of plea And now at this day, that is to say, on Wednesday next in abatement after the obtave of St. Hilary in this same term, in the court for want of of our said lord the king, before the king himself here, to degree to an wit, at Westminster, in the county of Middlesex, H. H. of indictment, W. in the county palatine of Durham, gentleman, who by removed into virtue of the writ of our said lord the king, is had here to B. R. (i) answer our said lord the king of the premises contained in the indictment aforesaid, above alledged against him, the

(h) See a similar precedent, Starkie, 705. See ante 1 vol. 433 to 478.

(i) See a similar precedent, Cro. C. C. 393. See ante 1 vol. 433 to 478.

said H. H. comes in his proper person, and having heard the said indictment read, saith, that he ought not to be compelled to give any answer thereto, because protesting that the said indictment is insufficient in law; nevertheless, for plea in this behalf the said H. H. saith, that the said indictment doth not contain any addition of the estate, degree, or mystery of the said H. H. in the said indictment named; and this the said H. H. is ready to verify; wherefore he prays judgment, and that the said indictment may be quashed, &c.

abatement of

as the one

And C. D. comes and defends the force and injury, when, Plea in &c. and all the felony and whatsoever, &c. because he says, a writ of apthat he the said C. D. is by that writ appealed by the name peal, that of C. D. late of the parish of Saint James, Westminster, in there is no the county of Middlesex, gentleman, whereas in truth and in such parish fact there is a certain parish in the county of Middlesex named in it. called and known by the name of the parish of Saint James (4) within the liberty of Westminster; but that there is not within the said county of Middlesex, neither was there on the day of obtaining the said original writ of appeal, neither hath there since been any parish, town, or place known and called by the name of the parish of Saint James, Westminster, as the said A. B. by his writ aforesaid, above supposes; and this he the said C. D. is ready to verify; wherefore he prays judgment of the said writ, and that the same may be quashed, &c.

ment to in

And sir James Burrow, knight, coroner and attorney of Demurrer to our sovereign lord the king, in the court of our said lord the plea in abate. king, before the king himself, for our said lord the king saith, dictment. (!) that by reason* of any thing by the said H. F. &c. above, [* 526] in pleading alledged the said indictment ought not to be quashed, because he says that the said plea and the matters therein contained are not sufficient in law to quash the said indictment, to which said plea, in manner as the same is above pleaded, our said lord the king is not under any necessity nor obliged by the law of the land in any manner to answer, and this he the said coroner and attorney of our said lord the king, for our said lord the king, is ready to verify; wherefore, for want of a sufficient plea in this behalf, our said lord the king prays judgment, and that the said Henry Finch, &c. may be convicted of the premises in the said indictment mentioned.

demurrer.

(m)

And the said H. F. &c. say, that the said plea, and the Joinder in matters therein contained, are sufficient in law to quash the the said indictment, which said plea, and the matters therein contained, they the said H. F. &c. are ready to verify and prove in such manner as the court here shall direct; wherefore, in as much as the said coroner and attorney of our said

(k) 2 Starkie, 705. Ante 1 439, &c.

(m) 1 Went. 24. Ante 1 vol.

vol. 433 to 478.

(7) 1 Went. 24.

Ante 1 vol. 440.

Replication to a plea in abatement. (n)

Demurrer to

(0)

lord the king, for our said lord the king, hath not yet an swered the said plea, nor in any wise denied the same, the said H. F. &c. pray judgment of the said indictment, and that the said indictment be quashed, &c.

And J. S. knight, attorney-general of our lord the king and lady the queen, who for the said lord the king and lady the queen, prosecutes in this behalf, protesting that he doth not know that any thing in the plea of the said Charles is true; says that the said C. K. in the indictment aforesaid mentioned ought to answer that indictment, because he says that, &c. [here set forth the matter of the replication], and this he is ready to verify; wherefore he prays judgment, and that the indictment aforesaid may be adjudged good, and that the said C. K. may further answer to that indictment, &c.

And the said Charles, in his own person, comes and says, a replication that the said replication of the said attorney-general of our to a plea in abatement. said lord the king and lady the queen, in form aforesaid above pleaded and the matters therein contained, are not sufficient in law to compel the said Charles further to answer the said indictment. Wherefore for want of a sufficient replication to the aforesaid plea of the said Charles in that behalf pleaded, the said Charles as before prays judgment of [* 527] that indictment, and that from that indictment* he may be here, by the court, exonerated and discharged, &c.

Joinder in

And the said J. S. knight, attorney-general of the lord the demurrer to king and lady the queen, who for the said lord the king and a replication lady the queen prosecutes in this behalf, says that the aforeto a plea in abatement. said replication of the attorney-general of our lord the king .(p) and lady the queen in form aforesaid above pleaded and the matters therein contained are good and sufficient in law to compel the said Charles further to answer the said indictment. Which said replication above pleaded, and the matters therein contained, the said attorney-general of the said lord the king and lady the queen, for the said lord the king and lady the queen is now ready to verify as the court here shall direct and award, &c.

Judgment

for defendant upon plea and abate ment. (9)

Whereupon all and singular the premises being seen and fully understood by the court of our said lord the king now here, and mature deliberation had thereupon, it is considered and adjudged by the said court here, that he the said Samuel Shakespeare be not compelled to answer the said indictment, but that he depart hence without day in this behalf

(n) This was the replication to the Earl of Banbury's plea of nobility ante 523. It was holden insufficient on demurrer, and the defendant was never tried. The substance therefore is not given. Trem. P. C. 13. Ante 1 vol. 449,

450.

(0) From Trem. P. C. 14. Ante 1 vol. 453 to 478.

(p) From Trem. P. C. 14. Ante 1 vol. 433 to 478. (q) See 10 East. 88.

497

PLEAS* IN BAR TO THE INDICTMENT AUTRE [* 528] FOIS ACQUIT.

an indict

AND the said J. V. and J. A. protesting that they were Plea of autre not guilty of the premises charged in the said indict- fois acquit to ment (b) demand judgment of the said indictment and all ment of burand every part thereof, they having heretofore by a jury of the glary. (a) country in due form of law been acquitted and discharged of the premises in the said indictment above specified and charged on them, and for plea to the said indictment says, that our said lord the king ought not further to prosecute them by reason of the premises in the said indictment mentioned, because they say, that heretofore, to wit, at this now present delivery of the king's gaol of Newgate, now holding for the county of Middlesex at justice hall in the Old Bailey, in the suburbs of the city of London, they the said J. V. and J. A. stood indicted by the names and description of J. V. late of, &c. and J. A. late of, &c. for that, &c. [Here set forth the indictment verbatim.] As by the said indictment now here remaining affiled of record in the said court of the delivery of the said gaol of our said lord the king at Newgate more fully and at large appears, on which said indictment they the said J. V. and J. A. afterwards, to wit, at the same session of gaol delivery now* [* 529] holding for the county of Middlesex as aforesaid, in due

(a) As to pleas of autre fois acquit, in general, see 1 vol. 452 to 461. The above, which was the plea in Vandercomb and Abbott's case, 2 Leach, 712, was holden bad on demurrer; not on the ground that the form was defective; but that the acquittal was not for the same offence. See Crim. Law.

1 vol. 456. See a plea of autre
fois acquit. Rast. Ent. 385, a. 4.
Burn, J. indictment, XI. which
appear to be defective.

(b) This is necessary, 2 Leach,
712, n. a. 2 Hale, 255. Though
the jury cannot be charged to
try the merits till the plea in bar
is decided, 1 Leach, 435.
VOL. IV.
3 R

Demurrer to the above plea of autre

fois acquit. (c)

form of law were tried, and by a jury of the country then and there in due form of law chosen, tried, and sworn to speak the truth of and concerning the premises in the said indictment last above mentioned, specified then and there in due form of law, were acquitted and found not guilty of the premises in the said last mentioned indictment specified and charged on them as they the said J. V. and J. A. in their plea to the said last mentioned indictment in that behalf have alledged, whereupon it was considered and adjudged by the said last mentioned court there, that they the said J. V. and J. A. of the premises in the said last mentioned indictment specified, should be discharged and go acquitted thereof, and the said J. V. and J. A. further say, that they the said J. V. and J. A. now here pleading, and the said J. V. and J. A., in the indictment aforesaid named and thereof acquitted as aforesaid, are the same identical persons and not other or different persons, and that the said burglary in the said dwellinghouse of the said M. N. and A. N. in the indictment aforesaid above pleaded, specified, and supposed to be done and committed by them the said J. V. and J. A. is the same identical and individual burglary as in the said indictment to which they the said J. V. and J. A. are now here pleading is supposed and alledged to have been done and committed by them the said J. V. and J. A., and not other or different, to wit, at, &c. aforesaid, and this they are ready to verify, &c. Wherefore they pray judgment of the court here whether our said lord the king will or ought further to prosecute, impeach, or charge them on account of the premises in the said indictment to which they the said J. V. and J. A. are now here pleading, contained, and specified, and whether they ought further to answer thereunto, and that they may be dismissed this court without delay.

Newman Knowlys.
J. W. Knapp.

And T. S., esquire, who prosecutes for our said lord the king, in this behalf cometh and saith, that for and notwithstanding any thing in the said plea of the said J. A. and J. V. by them above pleaded, our said lord the king ought further to prosecute them the said J. A. and J. V. by reason of the premises in the said indictment to which the said plea is above pleaded mentioned, because he saith, that the said [* 530] plea and the matters therein* contained are not sufficient in law to bar our said lord the king from further prosecuting them the said J. A. and J. V. by reason of the premises in the said indictment to which the said plea is above pleaded mentioned. And this the said T. S. is ready to verify; wherefore he prays judgment that our said lord the king

(c) 2 Leach, 712. Ante 1 vol. 452 to 461.

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