process of law may be awarded against him the said J. S. in this behalf, to make him answer to our said lady the Queen, 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 control; 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 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 recognisance 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 *ac- [ 78 ] quittal is not entitled to any costs beyond the extent of this recognisance. R. v. Filewood, 2 T. R. 145. See R. v. Brooke, 2 T. R. 190.

When the information is filed, process issues to compel the appearance of the defendant, if an appearance be not already entered for him. He then either pleads to it, or applies to quash it; and, on issue joined, the proceedings are brought on to trial. 3 Chitt. Burn. 368.

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 Burr. 385. If quashed on the motion of the prosecutor, it must be upon payment of costs, at least to the extent of the recognisance. 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.

THE stat. 4 Anne, c. 16, ss. 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 pleaded to any indictment or criminal information. In felonies, however, if the defendant plead in abatement, or specially 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 pleading, 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 J. 1, c. 28, and the plea of clergy was, before the recent statute, disused, because it was more advantageous for a prisoner to pray clergy after, than to plead it before, his

conviction. To the To the prayer of clergy, in certain cases, the Crown might counterplead. But, now, the benefit of clergy, and also the like privilege of peerage, given by the stat. 1 Edw. 6, c. 12, s. 13, are abolished, 7 G. 4, c. 28, s. 6; 4 & 5 Vict. c. 22, 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. [*80 ] See R. v. Bankes, 2 Smith, 620. Where a defendant prosecuted in the Court of Queen'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 its 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. 60 G. 3 & 1 G. 4, c. 4, s. 1. But the court or a judge may, on sufficient cause, allow further time to plead or demur. 60 G. 3 & 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, 60 G. 3 & 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; 60 G. 3 & 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. 60 G. 3 & 1 G. 4, c. 4. s. 5. But the court may allow the defendant farther time to plead. 60 G. 3 & 1 G. 4, c. 4, s. 7. Where the defendant 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 defendin was entit ed to traverse this latter indictment. R. v. James, 3 C. & P. 222. (See ante, p. 67.)

13

SECT. 2.

Plea to the Jurisdiction.

WHERE an indictment is taken before a court that hath no cognisance. of the offence, the defendant may plead to the jurisdiction, 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. 4 Bl. Com. 383.

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 ; 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. 58. If, on

the other hand, the offence were committed within the jurisdic[*81]tion of the court, but the court has not cognisance 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 Queen'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 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 lady the Queen here ought not to take cognisance 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 lady the Queen now here will or ought to take cognisance 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 Queen's Bench, excepting that the court is described as "the court of our said lady the Queen before the Queen herself 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 assigns], who prosecutes for our said lady the Queen in this behalf, says, that notwithstanding anything by the said J. S. above in pleading alleged, this court ought not to be precluded from taking cognisance 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 Queen'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.

Ir 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. 30); for, although formerly, if no addition were given, the court would, perhaps, have quashed the indictment, R. ". Thomas, 3 D. & R. 621, an application for that purpose would not now, since the recent statute, 7 G. 4, c. 64, s. 19, be entertained. Misuomer was the only case in which, before the recent 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 scribed by his Christian and surname, and has not repealed the Statute of Additions, 1 H. 5, c. 5, has entirely superseded every advantage formerly derived from that form of plea. The following is the form of a plea of misnomer:

should be de- [ *82 ]

"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 afaresaid, 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