the least reversed, or made void. And the said J. S., in fact saith, that he the said J. S., and the said J. S. so indicted and acquitted as last aforesaid, are one and the same person, and not other and different persons; and that the [felony and larceny] of which he the said J. S. was so indicted and acquitted as aforesaid, and the [felony and larceny], of which he is now indicted, are one and the same [felony and larceny], and not other and different [felonies and larcenies]. And this he the said J. S. is ready to verify: wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the present indictment specified."

If the indictment be for felony or treason, the defendant, besides this plea of auterfois acquit, should also plead over to the felony, &c. In such a case, therefore, continue the the plea thus] : And as to the felony and larceny of which the said J. S. now stands indicted, he the said J. S. saith that he is not guilty thereof; and of this he the said J. S. puts himself upon the country.

Where the offence is alleged in the two indictments to have been committed at different times, or places, they are nevertheless sufficiently identified by the above general averment, that they are one and the same offence. But if one of the indictments appear to be for the murder of a person unknown, or for larceny of the goods of a person unknown, and the other for the murder of J. N., or for larceny of the goods of J. N.: the plea should also aver that the person so described as a person unknown, and J. N., are one and the same person, and not different persons. So, if one indictment be for the murder of J. N., or for larceny of the goods of J. N., and the other indictment be for the murder of J. G., or for larceny of the goods of J. G., the two offences may be identified by an averment that the said J. G was known as well by the name of J. N. as J. G. See 2 Hawk. c. 35. s. 3. It may be necessary to observe, that the record of the former indictment and acquittal, must be set out in the plea; otherwise it will be bad upon demurrer. 1 M. & S. 183.

In the case of a plea of auterfois acquit, a jury are sworn instanter to try the issue; 2 Leach, 541; and therefore there is no replication actually pleaded upon the part of the crown. But a replication and similiter must be entered upon the record, when afterwards made up. The form may be thus: "And hereupon A. B." (the clerk of the peace, or clerk of arraigns), "who prosecutes for our said Lord the King, in this behalf, says, that by reason of any thing in the said plea of the said J. S. above pleaded in bar alleged, our said Lord the King ought not to be precluded from prosecuting the said indictment against the said J. S.; because he says, that there is not any record of the said supposed acquittal, in manner and form as the said J. S. hath above in his said plea alleged; and this he the said A, B,

prays may be enquired of by the country. And the said J.S. doth the like." Therefore let a jury come, &c. Or instead of tendering an issue as to the record, the prosecutor may (it should seem) tender an issue as to the identity of the party. The replication concludes to the country, and no day is given to bring in the record, as in civil actions; because in criminal cases, there can be no trial by the record, it must be by jury only.

The proof of the issue lies upon the defendant. To prove it, he has merely to prove the record, in the manner pointed out hereafter, under the title evidence, Ch. 2. s. 3.; and secondly, to prove the averments of identity contained in his plea.

2. Auterfois Convict.

A man convicted of a clergyable felony, and who has prayed the benefit of clergy, may plead such conviction and prayer of clergy, in bar of any subsequent indictment, either for the felony of which he was convicted, or for any other clergyable felony committed by him previously to his conviction. See stat. 25 Ed. 3. c. 5. 8 El. c. 4. 18 El. c. 7. 2 Hawk. c. 36. This plea, like that of auterfois acquit, must set out the record of conviction to the allowance of clergy or judgment, inclusive, and must contain an averment either that the offences charged in the former indictment and in the present one, are one and the same offence, and not other and different, or that the felony charged in the present indictment was, (if at all) committed previously to the former

conviction.

3. Auterfois Attaint.

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If a man be attainted of treason or felony, he cannot afterwards, whilst the attainder remains in force, be indicted for another felony, whether such other felony were mitted before or after his attainder; because, being already attainted, and therefore dead in contemplation of law, and his property forfeited, a prosecution for any other offence would be useless. To this, however, there are some exit cannot ceptions. Where the attainder is reversed for error, be, pleaded; although it may be pleaded until actually reversed, however erroneous it may be upon the face of it: and secondly, where it is necessary to indict the defendant as principal in a felony, in order to bring the accessaries to justice, the former attainder is no bar. An attainder of felony, also, is no bar to an indictment for treason. Where an attainder is reversed by parliament, or the judgment

vacated by the King's pardon, it may still be pleaded in bar of the felony of which the party was attainted, but not of felonies committed afterwards. See 2 Hale, 250, &c. 4 Bl, Com. 330.

The plea of auterfois attaint merely sets out the record, with an averment as to the identity of the defendant, and concludes in the usual form.

4. Pardon.

A pardon may be pleaded in bar to the indictment; or, after verdict, in arrest of judgment; or, after judgment, in bar of execution. But it must be observed, that it is necessary to plead it the first opportunity the defendant may have of doing so; for if, for instance, he have obtained a pardon before arraignment, and instead of pleading it in bar, he plead the general issue, he shall be deemed to have waived the benefit of it, and cannot afterwards avail himself of it in arrest of judgment. I Ron. Rep. 297. Kel. 25. What has now been mentioned, however, relates to the King's charter of pardon only; for a statute pardon need not be pleaded, Fost. 43. Standf. 103 a. 3 Inst. 234. Plowd. 83, 84, unless there be exceptions in it; 2 Hale, 252. 3 Inst. 234; nor can the defendant lose the benefit of it by his own laches or negligence.

The plea must allege the pardon to be under the great seal. 1 B. & P. 199. See W. Bl. 479. 2 Id. 799. The letters patent are set out in it, with profert; and it concludes thus: 66 By reason of which said letters patent, the said J. S. prays that by the court here he may be dismissed and discharged from the said premises, in the said indictment specified." If there be any variance in the description of the offence or party between the pardon and the indictment, it may be made good in the plea by averments of identity, in the same manner as in the plea of auterfois acquit. See ante, p. 53.

SECT. 5.

Demurrer.

A demurrer in criminal cases, seldom occurs in practice. The defendant seldom demurs to the indictment, because he may have the same advantage upon the plea of not guilty, or by motion in arrest of judgment, that he could have upon a demurrer; 2 Hale, 257; and because also it is matter of

doubt whether judgment against the defendant upon a demurrer to the indictment be not final, and not merely a judgment to answer over. A demurrer upon the part of the crown, also, is very unusual, as special pleas in fact seldom occur in practice. The following are forms of demurrers and joinders.

Demurrer to an Indictment or Information.

"And the said J. S., in his own proper person, cometh into court here, and having heard the said indictment [or information] read, saith that the said indictment [or information] and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law, and that he the said J. S. is not bound by the law of the land to answer the same: and this he is ready to verify. Wherefore, for want of a sufficient indictment, [or information] in this behalf, the said J. S. prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment [or information] specified."

Joinder.

"And J. N., who prosecutes for our said Lord the King, in this behalf, saith, that the said indictment, and the matters therein contained, in manner and form as the same are above stated and set forth, are sufficient in law to compel the said S. S. to answer the same; and the said J. N., who prosecutes as aforesaid, is ready to verify and prove the same, as the court here shall direct and award. Wherefore, inasmuch as the said J. S. hath not answered to the said indictment, nor hitherto in any manner denied the same, the said J. N., for our said Lord the King, prays judgment, and that the said J. S. may be convicted of the premises in the said indictment specified." The like form, mutatis mutandis, may be adopted in the case of informations, and af indictments in the court of King's Bench.

Demurrer to a Plea in Bar.

"Ana J. N., who prosecutes for our said Lord the King in this behalf, as to the said plea of the said J. S. by him above pleaded, saith, that the same, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to bar or preclude our said Lord the King from prosecuting the said indictment against him the said J. S.; and that our said Lord the King is not bound by the law of the Land to answer the same: and this he the said J, N., who pro

secutes as aforesaid, is ready to verify. Wherefore, for want of a sufficient plea in this behalf, he the said JN., for our said Lord the King, prays judgment, and that the said J. S. may be convicted of the premises in the said indictment specified." The like forms, mutatis mutandis, may be adopted in the case o informations, and of indictments in the court of King's Bench

Joinder.

"And the said J. S. saith, that his said plea by him above pleaded, and the matters therein contained, in manner and form as the same are above pleaded and set forth, are sufficient in law to bar and preclude our said Lord the King from prosecuting the said indictment against him the said J. S.; and the said J. S. is ready to verify and prove the same, as the said court here shall direct and award. Wherefore, inasmuch as the said J. N., for our said Lord the King, hath not answered the said plea, nor hitherto in any manner denied the same, the said J. S. prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment specified.”

A demurrer upon the part of the crown, or of the defendant, has the effect of laying open to the court, not only the pleading demurred to, but the entire record, for their judgment upon it as to the matter of law; Hob. 56, per Hobart. 1 Saund. 285 n. 5; and if two or more of the pleadings be bad in substance, the court will give judgment against the party who committed the first fault. Thus, for instance, if the indictment be bad, there shall be judgment for the defendant, although the bar be also insufficient. 5 Co. 29 a. see Arch. Pl. & Ev. 319, 320. Or, even if it appear upon the face of the record, that the court have no jurisdiction of the offence charged in the indictment, the defendant may take advantage of this matter upon the demurrer. 1 T. R. 316.

SECT. 6.

Counterplea of Clergy.

BESIDES pleas in abatement, the general issue, and special pleas in bar, there were formerly what were termed declinatory pleas, namely, the plea of sanctuary, and the plea of clergy. The plea of sanctuary, however, is no longer in use, privilege of sanctuary having been abolished by stat. 21 Jac. 1.