Nor will these facts suffice to postpone the trial, unless the affidavit is positive in its verification of them. Thus, it must state that the absent party is a material witness, without whose evidence the applicant cannot safely proceed to trial, and that he has endeavoured, without effect, to serve him with a subpoena, specifying the exertions used. It should then state, in plain terms, that there is reasonable ground for believing that the delay sought for will tend to the furtherance of justice, and that the testimony of the witness may be obtained at the time to which the trial is proposed to be deferred.

The postponement of trial is seldom granted to a period later than to the next session (z). In one case of a misdemeanour respecting coin, standing for trial at an assize, the defendant was out on bail, and the judge, doubting whether the offence charged was indictable, put off the trial to the next assize by consent, in order to take the opinion of the judges in the interval (a).

The trial will never be put off on account of the absence of witnesses to character (b). The prisoner will never be obliged to pay the prosecutor's costs, where the trial of a felony is postponed on account of the illness of a witness for the prisoner (c); but if, after the trial of a misdemeanour is called on, the defendant procures the trial to be postponed for the absence of material witnesses, the prosecutor will be entitled to costs of the day (d), as in civil cases. In one case, where the trial of a felony was postponed for the absence of a prosecutor who was a material witness, the prisoner was discharged on his own recognizance to appear at a future period, but without receiving costs (e).

More notice has been taken of this particular subject than it may appear entitled to receive; but this has been thought proper, because there is generally no part of the proceedings before courts of quarter session less critically attended to by the courts, or more carelessly executed by the professional attendants.

The following affidavits and notice will suggest like forms, varied according to the circumstances of each particular case.

THE QUEEN ON THE PROSECUTION OF A. B. V. P. Q.

Joint Affidavit of a Defendant and his Attorney, made in order to postpone a Trial.

P. Q. the defendant above-named, and X. Y. of

(z) Bac. Abr. tit. Trial (H).
(a) R. v. Heath, R. & Ry. 184.

(b) Per Lawrence, J., in R. v. Jones,

8 East, 34.

(c) R. v. Hunter, 3 C. & P. 591.

in the county of

(d) R. v. Doyle, 1 Esp. 125; per Lord Kenyon, citing R. v. Vaughan, (not reported).

(e) R. v. Crowe, 4 C. & P. 251.

attorney for the said P. Q. severally make oath and say. And first this deponent, the said P. Q., for himself saith, that one D. D. of in the county of seedsman, and one of the co-partners in the house of C. C., D. D. and Co. at —— aforesaid, in the county of aforesaid, he the said P. Q. is advised, and believes, is a material and necessary witness for him, this deponent, the said P. Q. and that he cannot safely proceed to the trial of the above indictment without he the said D. D.'s testimony. And this deponent, the said P. Q. further saith, that as soon as possible after he received notice of the aforesaid bill of indictment against him, he applied by letter to the said D. D. informing him that he the said P. Q. would require the attendance of him the said D. D. at the trial thereof, and requiring to be informed whether he the said D. D. was then in England, it being known to him, the said P. Q. that the said D. D. is frequently resident at Amsterdam, on account of the dealings and business of the said house of C. C., D. D. and Co. And this deponent further saith, that in answer to his said letter, he was informed by the said C. C. that the said D. D. was at that time at Amsterdam aforesaid, and was not likely to return from thence before the end of the month of then next ensuing, which information the said deponent believes to be true. And the said deponent further saith, that he made another application by letter on the day of instant, addressed to the said C. C. inquiring whether the said D. D. was yet returned from Amsterdam, to which he, this deponent, received an answer so late as last, from the said C. C. informing him, this deponent, that the said D. D. was not yet returned, and that he was not expected to return till the end of the month of next, as before stated, which information this deponent does verily believe to be true. And this deponent, the said P. Q., further saith, that he fully expects to be able to procure the presence of the said D. D. at the next general quarter session of the peace, to be holden for this county of said D. D. will be then and there able and willing to attend the trial of the abovementioned indictment. And this deponent, the said X. Y., for himself saith, that he is the attorney appointed by the said P. Q. to defend him on the trial of the said bill of indictment, on the prosecution of A. B., and that the said D. D. will be a material and necessary witness at the hearing of the same, and that without his testimony the said P. Q. cannot safely go to trial. And this deponent for himself further saith, that on the day of last past, he addressed a letter by the direction of the said P. Q. to the said D. D. at Amsterdam, requesting him to return, if possible, in order to be present at the trial of the before-mentioned indictment, at the present session of the peace, and that he received an answer to the said letter from the said D. D. on the day of last, in which the said D. D. assured him, this deponent, that he could not possibly return to England till after the day of then next ensuing, but that he hoped to be able, and would be willing, to attend at the next general quarter session of the peace, to be holden at for the county of aforesaid. And this deponent, the said X. Y. further saith, that he has no doubt but the said D. D. will be ready and willing to attend at the next session of the peace as aforesaid.

Sworn, &c.

at -, and the

County of

to wit.

Affidavit of Medical Attendant.

O. P. of

in the said county, surgeon, maketh oath and saith, that M. N. of --, carpenter, about ten days since fractured his skull in a dangerous manner, and is still confined to his bed on account of the same, and is utterly incapable of being removed from his said bed without imminent danger of his life.

Sworn, &c.

THE QUEEN ON THE PROSECUTION OF A. B. v. P. Q.

Notice of Application to postpone the Trial.

day of

for the

Mr. A. B. take notice, that I do hereby countermand the notice of trial of the above indictment, dated the instant, and that I shall, on the day of instant, at the sitting of the court of quarter session at county of --, or as soon after as counsel can be heard, move the said court that the trial of the said indictment may stand over till the next general quarter session of the peace for the said county, on account of the absence of a material witness for the defendant in the same, who is absent in foreign parts, and whom I have not been able to serve with a subpoena.

X. Y.

Attorney to the defendant in the said prosecution.

To Mr. A. B. Prosecutor, &c.

(or to his Attorney.)

Postponement of Trial of Misdemeanour where some Defendants do not traverse.]—The postponement of a trial (see ante, p. 468) may emanate from the court, independently of the desire of the parties prosecuting or defending. Thus, if several be in custody for a conspiracy or other joint misdemeanour, and bills have been found, and one or more of them prefer to take their trial immediately, and the others to traverse with their pledges according to the regular form, the court will put off the trial till the period when, by the customary expiration of the traverse, all the parties can be tried together. This seems to be the established practice, and the reason given for it is, that were it otherwise, as there is generally a difference in the guilt of the different offenders, or in the evidence which is to attach guilt to them, those who have the best chance of being acquitted would always offer themselves for immediate trial, in order that they might afterwards become witnesses for their confederates on the trial of their traverses (ƒ). On the point of expediency there may be force in this reasoning; but at the same time it appears to be a great hardship to keep a person in prison without trial, who is willing to be tried, because another, who is more fortunate in

(f) R. v. Teal, 11 East, R. 307; R. v. De Berenger and others, 3 M. & S.

67. And see Gittin's case, Plowd. 98, ante.

obtaining sureties, prefers to have his trial postponed. It may, therefore, be a question, whether in such a case the court is justified in rejecting such security as the parties so offering themselves for trial are able to offer, though it should be only by their own recognizance, to be forthcoming at the same time with their co-defendants, when such rejection would detain them in prison without trial.

Delivering Copy of Indictment to Defendant in some Cases.]-By 60 G. III. & 1 G. IV. c. 4, s. 8, in prosecutions for misdemeanours, instituted by the attorney or solicitor general, in any session of the peace, the court shall, if required, order a copy of the information or indictment to be delivered after appearance, to the party prosecuted or his atttorney, on application, free of all expense, provided that he has not previously received a copy.

SECTION IV.

OF ARRAIGNMEnt, Challenge, AND OTHER PRELIMINARIES
OF TRIAL.

Order of trying Felonies and Misdemeanours.]—The practice of different courts of quarter sessions varies as to the order of trying indictments they are, however, usually tried in the order in which they stand on the file of the clerk of the peace. He should file them in the order in which he receives them from the grand jury, after calling them over in their presence.

Felonies should be tried before misdemeanours, except in some few cases of traverse; and those cases of misdemeanour in which the defendants are in custody before other misdemeanours. Of bills brought in at the same time by the grand jury, those in which any counsel is engaged for the prosecution, are, by indulgence of the court, often heard before the others; if no special reason exists to the contrary.

Arraignment.]-In cases of felony, no traverse being allowed when bills are found, a convenient number of the prisoners are placed at the bar, viz. in the dock (g) for arraignment; which is the legal term for calling on a prisoner to answer to a charge of felony. The arraignment in felony consists of three parts; the calling the prisoner to the bar by

(g) Reg. v. Zulueta, post.

his name, and requiring him to hold up his hand; the reading over the indictment to him; and the asking him whether he is guilty or not guilty (h).

Requiring the Prisoner to hold up his Hand.]-The first is done by the officer addressing him thus :- -"A. B. hold up your hand," which is intended to identify the prisoner in court, viz. to the justices and the jury, as the party indicted, or to ascertain, if two or more are indicted, which is A. and which B. (i). A compliance with this requisition is not, however, indispensable (k); and it has been said that it is usual to omit it when a peer is to be tried (1). If, therefore, the prisoner decline to hold up his hand, but make no objection that he is not the party intended (m), the trial may proceed.

Returning Money, &c. taken from Prisoner.]-If, on the apprehension of the party indicted, or since, money, &c. has been taken from his person, there have been cases, in which, on its appearing clearly to the court from the depositions or on affidavit, that the money, &c. so taken, was in no way material to support the charge against him or connected with it, judges have granted motions for its being returned to him, in order that he might not be deprived of the means of defence afforded by it. But the discretion of a court will never be thus exercised, where, from any testimony or depositions before it, there is reason to believe that the money or other article of which the prisoner has been so deprived, is in any way connected with the offence charged, as if it belonged to the prosecutor or some third person; or if a probability appears that it was stolen, or the produce of stolen property; or if it forms part of the evidence to be adduced in support of the indictment (n).

Indictment read.]-The second proceeding, the reading of the indictment, is more material, because, as in cases of felony, the prisoner is not in general (0) allowed a copy, it is the only means by which, be

(h) 2 Hale, 219. See Dalton, 459, c. 185.

(i) 2 Hawk. c. 38, s. 2; Dalt. c. 185, p. 459.

(k) R. v. Radcliffe, 1 W. Bla. 3. (1) 2 Hale, 219.

(m) A collateral issue of identity thus raised is always tried instanter by a jury impannelled on the spot by the sheriff. No peremptory challenges are allowed, R. v. Radcliffe, 1 Bla. R. 4; Foster, 40, S. C.

(n) See R. v. O'Donnell, 7 C. & P. 138; R. v. Jones, 6 C. & P. 343; both cases before Patteson, J.; R. v. Barnett, 3 C. & P. 610. A. Park, J. An instance of taking away the watch, &c. of a party charged with rape, was severely censured, and its immediate return ordered, R. v. Kinsey, 7 C. & P. 447, Gurney, B., and Patteson, J.

(0) The rule of practice at the Old Bailey against granting such a copy is alluded to in 15 East, 343: and Kelynge,