to prevent the likelihood of a fair trial (o); the prosecutrix having been bribed and kept out of the way to prevent her giving evidence (p), &c. &c. But the most usual ground is the absence of a material witness for the prosecution, or defence; whether occasioned by illness (q), being kept out of the way by the other side (r), or other circumstances (s). These are so various, that all which can be advanced with precision on the subject is, that as the granting this delay at the instance of an accused, though expedient to justice, is an indulgence, and not a right, laches or undue forbearance by him in endeavouring to serve a subpœna, or to procure the attendance of the absent witness, will be fatal to his application (t). The motion can only be made on an affidavit sworn at least two days before the intended trial; unless the facts affecting the witness were not known till afterwards (u). The affidavit must, in general, be made by the party on whose behalf the postponement is sought; but his absence, age, or sickness, or other sufficient cause, will let in his attorney, or even a third person, to swear it. The illness of the absent witness is best established by the affidavit of his medical attendant, such being deemed sufficient to prevent the estreat of his recognizance (v). His name and place of abode, his continued absence, or actual incapacity to attend at any (0) Reg. v. Bolam, 2 M. & Rob. 192, Parke and Alderson, Bs. (p) R. v. Gutteridge and others, Worcester Spring Ass. 1840. Indictment having been found for rape without the evidence of the prosecutrix, Patteson, J., committed the prisoners till the Summer Assize (citing Reg. v. Chapman, 8 C. & P. 558), and estreated the prosecutrix's recognizance after calling her on it. At the Summer Assize she did not appear; but the prisoners were convicted of the assault, and sentenced to three years' imprisonment with hard labour. (g) Reg. v. Bowen, Glocester Sp. Ass. 1840, Gurney, B.; and Summer Assize, 1840, Williams, J., indictment for shooting at one Yarworth. At the Spring Assize, 1840, the prosecutor was too ill to be examined; Gurney, B., postponed the trial to the next assize, and another material witness for the prosecution was then too ill to attend. prosecutor had died in the interval. Williams, J., postponed the trial. See Reg. v. Chapman, 8 C. & P. 538, S. P. 31 Car. II. c. 2, s. 7, Habeas Corpus Act. The (r) See Peake, 97, Duberley v. Gunning, and R. v. Gutteridge, supra. (8) R. v. Owen and others, Stafford Summer Ass. 1839; after the grand jury were discharged, the prisoners were acquitted of the rape of Christina Collins. One Orgill, being on his trial for bigamy before the other judge at the time the trial for rape was proceeding, was convicted and sentenced to imprisonment; he then disclosed to the gaoler matters which Owen had told him in their cell, respecting the death of C. C. Williams, J., remanded Owen and the other prisoners, till the next assizes. On 13 March, 1840, Orgill, then in prison, received a free pardon, and gave evidence on the 16th in support of the indictment for murder. The prisoners were con. victed, and two were executed. (t) If laches appears, the court will sometimes, in misdemeanours, impose terms on the accused, e. g. to consent to examine a witness for the crown on interrogatories, he being about to leave the country, R. v. Morphew, 2 M. & S. 602. (u) See 1 Ch. Cr. L. 1st ed. 494. (v) Toone, 7. time during the session, and the use of every reasonable effort to compel such attendance, must be distinctly specified, and the materiality of his evidence in the case shown. 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 (w). 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 (x). The trial will never be put off on account of the absence of witnesses to character (y). 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 (z); 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 (a), 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 (b). 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. (w) Bac. Abr. tit. Trial (H). (y) Per Lawrence, J., in R. v. Jones, 8 East, 34. (2) R. v. Hunter, 3 C. & P. 591. (a) R. v. Doyle, 1 Esp. 125; per Lord Kenyon, citing R. v. Vaughan (not reported). (b) R. v. Crowe, 4 C. & P. 251. 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. in the county of And first this deponent, in the county of then next And the said on the P. Q. the defendant above-named, and X. Y. of attorney for the said P. Q. severally make oath and say. the said P. Q. for himself saith, that one D. D. 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 ensuing, which information the said deponent believes to be true. deponent further saith, that he made another application by letter 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 bis 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 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 day of at —, and the at for the county of aforesaid. And this déponent, 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. 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 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 —— for the 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 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 (j). On the point of ex (j) 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. pediency 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 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.]-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 attorney, 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 for arraignment; which is the legal term for calling on a prisoner to answer to a charge of felony. The arraignment consists of three parts; the calling the prisoner to the bar by his name, and requiring |