only obtain more or less delay. And, in cases of misdemeanour, there is the same disadvantage as on a demurrer, that if the prosecutor, instead of allowing the plea, thinks fit to take issue upon it, and it should be found against the party pleading, he will stand convicted on the charge, and be liable at once to receive judgment (b): though, if the prosecutor demur on his part to the plea, and obtain judgment, the defendant may answer over to the merits (c). But now pleas in abatement for a mistake in the name or addition, rarely adopted, will, it may fairly be assumed, be disused altogether; for by 7 G. IV. c. 64, s. 19, the court may, even if satisfied of the truth of the plea by affidavit or otherwise, immediately cause the indictment to be amended, and call on the party to plead to it so amended, as if no dilatory plea had been pleaded. No advantage, therefore, even of delay, can now be obtained by such a plea. Indeed, before the act such a plea of want of addition or misnomer must have given the true name, or a better addition, or was bad (d), and could never have been amended (e).

Pleas in Bar.]—Pleas in bar are either special pleas, or the general issue. Special pleas may allege a previous conviction of the same offence; or a previous acquittal on a valid indictment (ƒ); or a pardon; but these are of too rare occurrence to be particularly considered here. Other special pleas are, in practice, confined to the cases of prosecutions for neglect of duty in repairing highways and bridges; when the parish indicted or presented for omitting to repair a highway, or the county indicted for omitting to repair a bridge, and desiring to throw the liabi lity on some other party, must show that liability by specially pleading it (g). These special pleas have been already considered in Sect. 2, of the last Chapter, as far as consists with the plan of this work.

The General Issue.]-The plea employed in the infinitely greater number of cases in which the charge is denied, both misdemeanours and felonies, is the general issue-not guilty. This plea not only casts on the prosecutor the burden of making out every part of his charge, but it entitles the defendant to give in evidence every possible ground of justification and excuse which can form an answer to the accusation. Thus, on an indictment for an assault, he may not only show, under this plea, that, in fact, no assault was committed; but he may show,

(b) R. v. Gibson, 8 East, R. 107. (c) R. v. J. S. Sutton Cooke, (K. B.) Hil. Term, 1825, MS.

(d) R. v. Checketts and others, 6 M. & S. 88. A case of misdemeanour. (e) R. v. Sutton Cooke, 2 B. & Cr. 871

(decided in 5 G. IV.) case of misdemea

nour.

(f) See Index, tit. Auterfois Acquit. (g) Ante, tit. Nuisances (to Highways).

that though an assault was committed, it is to be justified in defence of his person or dwelling, or by any other lawful cause, all which he must have pleaded specially to an action for the same trespass. In short, the entire question of guilt or innocence of the charge in all its bearings, is put in issue by this plea.

Variances in Indictments.]-Material variances between allegations in indictments, and the proof, e. g. in not proving the felony or misdemeanour charged will be fatal, for a quarter session has no power of amending the record even in misdemeanour, see post.

SECTION III.

OF TRAVERSES AND OTHER POSTPONEMENTS OF TRIAL.

Law of Traverse.] Before the traverse act, 60 G. III, and 1 G. IV. c. 4, parties indicted for misdemeanour, when they pleaded, were always at liberty either to try at that session, or to traverse the indictment, that is, to turn over or postpone its determination to the next session; and it was even doubted whether the sessions had power to proceed on an indictment against a party not present or in custody at the session when it was found.

But the law on this subject has been entirely altered by 60 G. III. c. 4, which without taking away the right of traverse, has essentially narrowed it, being intended to prevent the delay of the party from interfering with the power of the court to postpone a trial (h), by enacting, "That where any person shall be prosecuted for any misdemeanour by indictment at any session of the peace, or session of oyer and terminer, in England, or Ireland, having been committed to custody, or held to bail to appear to answer for such offence twenty days at the least before the session at which such indictment shall be found, he or she shall plead to such indictment, and trial shall proceed thereupon at such same session of the peace, or session of oyer and terminer, respectively, unless a writ of certiorari for removing such indictment into the courts of king's bench at Westminster or in Dublin, respectively, shall be delivered at such session before the jury shall be sworn at such trial" (¿). And such writ of certiorari may be applied for and issued before such indictment has been found, in the like cases, in the same manner, and

(h) Reg. v. Wilson, 1 New Sess. Cas. 427; 14 L. J. (M. C.) 3; 8 Jurist,

1009, nom. Reg. v. Gloucestershire Js. (i) 60 G. III. c. 4, s. 3.

upon the same terms and conditions, as if such writ of certiorari had been applied for after such indictment had been found (k). And the same statute enacts, "That where any person shall be prosecuted for any misdemeanour by indictment, at any session of the peace, oyer and terminer, or gaol delivery, in England, or Ireland, not having been committed to custody or held to bail to appear to answer for such offence twenty days before the session at which such indictment shall be found, but who shall have been committed to custody or held to bail to appear to answer for such offence at some subsequent session, or shall have received notice (1) of such indictment having been found twenty days before such subsequent session, he or she shall plead to such indictment at such subsequent session, and the trial shall proceed thereupon (m) at such same session of the peace, oyer and terminer, or of gaol delivery, respectively, unless a writ of certiorari for removing such indictment, &c. shall be delivered at such last-mentioned session before the jury shall be sworn for such trial, any law or usage to the contrary notwithstanding."

Removing Indictments found by a Grand Jury of any City or Town.]-Nothing in 60 G. III. extends to prevent any indictment, found by a grand jury of any city or town corporate, from being removed, at the prayer of any defendant, for trial by a jury of the county next adjoining to the county of such city or town corporate, pursuant to 38 G. III. c. 52 (n); and upon such removal, the defendant shall plead, and the trial shall be had according to the provisions of this act, in like manner as if such indictment had been originally found by a grand jury of such next adjoining county (o).

Court may, on sufficient Cause shown, allow further Time for

(*) Section 4.

(1) Defendant's knowledge 20 days before a session, that an indictment had been found against him at a preceding session, will bind him to plead and try at the subsequent session without further notice, Reg. v. Gregory, C. & Kir. 208.

(m) 60 G. III. c. 4, s. 5. When defendant had not been in custody or given bail, and had not given the proper notice of intending to try at the same assizes at which the bill was found, the prosecutor was held not compelled to try before the next assizes, Reg. v. Trenfield, 9 C. & P. 284, Gurney, B. and Patteson, J. (Perjury). In

another case, where, after indictment found at one assizes, defendants had been on bail more than twenty days, but gave no notice of trial for the next assizes, Lord Abinger, C. B., held that the prosecutor could not be compelled to try without such notice, and postponed the trial to the third assize, Reg. v. Minshall, 8 C. & P. 576: qu. if this was a traverse, see Archb. Cr. Pl. 8th ed. 66.

(n) Parker Coke's act. It extended to Bristol, Chester, Exeter, and Berwick. See 5 & 6 W. IV. c. 76, s. 109, ante, p. 163.

(0) 60 G. III. c. 4, s. 6.

Pleading, &c.]-It shall be lawful for the court, at any session of the peace, oyer and terminer, or of gaol delivery, respectively, upon sufficient cause shown for that purpose, to allow further time for pleading to any such indictment, or for trial of the same (p).

Who are deprived of the Right to Traverse.]—Under this act, therefore, all persons who have been in custody, or are out on bail upon the same charge, for more than twenty days, are, on the finding of the indictment, bound to plead and try instanter like parties charged with felony. And where an indictment has been found at a former session, and the party has been afterwards taken, or bailed, or has received notice of the indictment twenty days before the subsequent session, he is bound at such session to plead and try, unless a writ of certiorari first remove the proceedings. This act, however, does not apply to prosecutions for omitting to repair bridges or highways (q), which are subject to traverse as before the statute.

Who may still Traverse.]-With this last exception, the right to traverse an indictment just found at the sessions is now confined to parties who have not been in custody, or out on bail twenty days, in respect of the charge; and the right to traverse an indictment previously found is confined to such as have not received twenty days' notice of the indictment pending against them. In these instances, the right remains; and it may be proper here to observe, that it exists, if the degree of the accusation is altered, although the party may have been twenty days in custody on a charge arising out of the same transaction, as if he were committed for felony, and the bill be found for misdemeanour. This point arose in the case of the King v. Edward Gibbon Wakefield, at the Lancaster Spring Assizes, 1827. The defendant had been committed for a felony, more than twenty days before the assizes; but, at the assizes, it being thought right to indict him jointly with others for a misdemeanour, Allan Park, J., after much consideration, decided that he had a right to traverse (r). A party arrested during sessions under indictment for a misdemeanour cannot be discharged on bail without pleading and traversing (s).

(p) 60 G. III. c. 4, s. 7.

(q) Sect. 10.

(r) S. P. in R. v. Williams, 1 M. & Rob. 503; R. v. Robinson, 1 M. & Rob. 503. So, if the grand jury ignore a bill presented to them for the felony, and find a bill for the misdemeanour in attempting it, R. v. James, 3 C. & P. 222. If a person is indicted for a misdemea

nour differing from that for which he has been committed or held to bail, he is entitled to traverse though he has been committed or bailed for more than 20 days, see Reg. v. Howell and others, 9 C. & P. 437, Littledale, J.

(8) Reg. v. Wettenhall, 2 M. & Rob. 291, Rolfe, B.

Proceedings where a Party Traverses.]-Where a party has a right to traverse, it is usual that he should appear in court with his sureties (t). The clerk of the peace reads the indictment to him; he pleads not guilty; and his plea is recorded. He then gives to the clerk of the peace, or, in some counties, to his deputy out of court, the names and additions of two responsible persons who are ready to be bound for him in recognizance that he shall appear and try at the ensuing sessions; and the prosecutor may, if he think fit, then examine the proposed sureties as to their sufficiency in point of estate. If they are unopposed or accepted, the recognizance of the defendant and his sureties is read over by the clerk of the peace to them in the following form:

Form of Recognizance to try a Traverse.

A. B. you acknowledge to owe to our sovereign Lady the Queen the sum of and you C. D. and E. F. severally acknowledge to owe, &c. the respective sums of and to be respectively levied of your goods and chattels, lands and tenements, to her majesty's use, by way of recognizance, upon condition that you A. B. shall appear at the next session of the peace to be holden for this county, to try your traverse upon this indictment to which you have now pleaded not guilty, and not depart without leave of the court.

To this the accused and the pledges answer that "they are content," and depart the court. The accused cannot afterwards by surrendering avoid the fees customary on the entering a traverse (u).

Notice to Prosecutor by Defendant of trying his Traverse.]-If the defendant is anxious to dispose of the charge, he should cause the prosecutor to be served with a true copy of a notice, to the following effect (x):

THE QUEEN ON THE PROSECUTION OF Y. Z. v. A. B.

Mr. Y. Z. Take notice, that I intend to appear at the next general quarter session of the peace, to be holden at in in and for the county of

(t) See 1 Chit. Cr. L. 411, 1st ed. In Q. B. a defendant charged with a misdemeanour, may appear and plead by attorney, ibid. And see 10 East, 83; 1 Keble, 809, but not at sessions, 9 C. & P. 469; Reg. v. Birmingham and Gloucester Railway Company, ante.

(u) Reg. v. Bishop, 2 M. & Rob. 291, Rolfe, B. See Debates in Parliament, 6th April, 1843, 2nd May, 1843.

(x) The time before the sessions when

the notice should be served, varies according to the practice of the session. Eight days' notice is requisite before assizes, and it is usual to give two or three days' notice for sessions, Cro. Cir. Comp. 17, 48. In Middlesex, four clear days' notice is deemed sufficient; at some other sessions a longer period, as ten days' notice is required, the last-mentioned period being that required for trial at the assizes.