dictment, by substituting the name by which the defendant has pleaded, for the name in the indictment, and to have it preferred again and found, and the defendant again arraigned upon it; in which case, he will be estopped by his plea in abatement, from again pleading a misnomer.

This issue is generally proved thus: the defendant gives in evidence his certificate of baptism, with evidence of identity, or proves by parole evidence, that he has always been called James and not George; and the prosecutor, on the other hand, proves that upon some occasion he has assumed the name of George, or that he has usually gone by that name, But it may be questioned, perhaps, whether the proof of this issue be not entirely on the prosecutor. It is said, indeed, to have been decided, that if a defendant allege in his plea, that he was baptized by a certain name, he will be held to strict proof of that fact; 1 Camp. 479. 1 Ph. Ev. 220; but this is a mistake; for even supposing the proof of the issue to be upon the defendant, he cannot be called upon to prove the inducement to his traverse, which is neither traversable nor traversed by the prosecutor.

The judgment for the defendant, upon a plea in abatement, is, that the indictment be quashed; See 10 East, 87; and, if the indictment were for a misdemeanor, he is immediately discharged; but if for felony or treason, he is remanded until a new indictment has been preferred. The judgment for the King, in misdemeanors, is final; in treason and felony, that the defendant do answer over.

SECT. 3.

General Issue.

The general issue is pleaded by the prisoner viva voce at the bar, in these words, "not guilty;" the clerk of the arraigns then asks him how he will be tried, and he answers 66 by God and my country.” But when the record is made up, the general issue appears upon it thus: "And he the said J. S., forthwith being demanded, concerning the premises in the said indictment above specified and charged upon him, how he will acquit himself thereof, saith that he is not guilty thereof; and thereof for good and evil he puts himself upon the country." And the similiter is then added thus: "And J. N." (the clerk of the peace or clerk of arraigns,) "who prosecutes for our said

Lord the King in this behalf, doth the like." Therefore let a jury come, &c., so proceeding with the award of the venire.

In informations, and in indictments for not repairing roads and bridges, &c., where the defendant is allowed, er gratiâ, to appear by attorney, the general issue is regularly engrossed, and filed with the proper officer. It is in form thus: "And the said J. S., by A. B. his attorney, cometh into court here, and having heard the said indictment [or information] read, saith, that he is not guilty of the said premises in the said indictment [or information] above specified and charged upon him; and of this the said J. S. puts himself upon the country." Afterwards, in making up the record, the similiter is added thus: "And J. N. who prosecutes for our said Lord the King in this behalf, doth the like," if it be pleaded to an indictment at the assizes or sessions; or if to an indictment in the King's Bench, then thus: "And Edmund Henry Lushington, Esquire, coroner and attorney for our said Lord the King, in the court of our said Lord the King, before the King himself, who prosecutes for our said Lord the King in this behalf, doth the like;" or if to an information, then thus: "And the said attorney general, [or coroner and attorney] of our said Lord the King, who prosecutes as aforesaid, for our said Lord the King, doth the

like.

The general issue makes it incumbent upon the prosecutor to prove every fact and circumstance constituting the offence, as stated in the indictment or information. On the other hand, the defendant may give in evidence, under this plea, not only every thing which negatives the allegations in the indictment, but also all matter of excuse and justification.

SECT. 4.

Special Pleas in Bar,

As all matter of excuse and justification may be given in evidence under the general issue, a special plea in bar seldom occurs in practice; in fact, the only instance, (with the exception of the pleas of auterfois acquit, &c., which shall be treated of in the several sections of this chapter,) in which a special plea in bar seems requisite in criminal cases, is, where a parish or county is indicted for not repairing a road or bridge, &c., and wishes to throw the onus of repairing upon some person or persons not bound of common right to repair it; in which case they must plead specially the lia

bility of the party to repair, and the reason of his liability, so as to take the case out of the common law rule, that every highway shall be repaired by the parish, and every bridge by the county, in which it is situate. See precedents of such pleas, post. The following are the forms of special pleas in bar, replications, and rejoinders.

Special Pleas

"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 our said Lord the King ought not further to prosecute the said indictment against him the said J. S.; ber cause he saith, that," [&c., so proceeding to state the matter of the plea; and concluding thus] "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 said indictment above specified.”

Replication.

"And hereupon J. N." (the clerk of the peace, or clerk of the 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," [&c., go proceeding to state the matter of the replication; and concluding thus:] "And this he the said J. N. prays may be enquired of by the country." 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 be convicted of the premises, in the said indictment above specified.

Where the plea is to an Indictment in the King's Bench, the replication commences thus: "And hereupon Edmund Henry Lushington, Esquire, coroner and attorney of our said Lord the King, in the court of our said Lord the King, before the King himself, who prosecutes for our said Lord the King in this behalf, says, that by reason of," &c. &c. and the conclusion thus: "And this the said coroner and attorney of our said Lord the King, prays,' &c. &c., as above. Where the plea is pleaded to an information, the replication is thus : "And the said attorney general [or coroner and attorney] of our said Lord the King, who prosecutes as aforesaid, says, that by reason of" &c. &c. "And this the said

attorney general [or coroner and attorney] of our said Lord the King, prays" &c. &c., as above.

If the Replication conclude to the country, the similiter is then added, in making up the record: "And the said J. S. doth the like:" therefore let a jury come, &c., so proceeding with the award of the venire. But if the replication cou clude with a verification, the defendant must then rejoin.

Rejoinder.

"And the said J. S., as to the said replication of the said J. N. to the said plea of him the said J. S., saith, that our Lord the King, by reason of any thing by the said J. N. in that replication alleged, ought not further to prosecute the said indictment against him the said J. S.; because he saith, that," [&c., so proceeding to state the matter of the rejoinder; and concluding thus:] "And of this, he the said J. S. puts himself upon the country." Or, if it be necessary to conclude with a verification, the conclusion may be in the same form as in a plea. Vide supra.

Having thus given the forms of special pleas, &c. generally, we shall now proceed to treat of those which usually occur in practice, in this order.

1. Auterfois Acquit.

2. Auterfois Convict.

3. Auterfois Attaint.

4. Pardon.

1. Auterfois Acquit.

When a man is indicted for an offence, and acquitted, he cannot afterwards be indicted for the same offence, provided the first indictment were such that he could have been lawfully convicted on it; and, if he be thus indicted a second time, he may plead auterfois acquit, and it will be a good bar to the indictment. The true test by which the question, whether such a plea is a sufficient bar in any particular case, may be tried, is, whether the evidence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the first. 1 Brod. & Bing. 473. See this case, and see 9 East, 437.

Thus, an acquittal upon an indictment for burglary and larceny, may be pleaded to an indictment for a larceny of

the same goods; because upon the former indictment, the defendant might have been convicted of the larceny. But if the first indictment were for a burglary, with intent to commit a larceny, and did not charge an actual larceny, an acquittal on it would not be a bar to a subsequent indictment for the larceny; see 2 Hale, 245; because the defendant could not have been convicted of the larceny on the first indictment. An acquittal upon an indictment for murder, may be pleaded in bar of another indictment for manslaughter; Fost. 329. 2 Hale, 246; because the defendant might be convicted of the manslaughter on the first indictment. So, auterfois acquit of petit treason, is a good bar to another indictment for murder, and è converso, for the same reason. Fost. 325. 329. 2 Hawk. c. 35. s. 5. So, an acquittal upon an indictment for manslaughter, is, it seems, a bar to an indictment for murder. Fost. 329.

2

But an acquittal upon an indictment in a wrong county, cannot be pleaded to a subsequent indictment for the offence in another county. 4 Co. 45 a. 46 b. Com. Dig. Indictment, L. So, an acquittal upon an indictment for a felony, is no bar to an indictment for a misdemeanor, and è converso. Hawk. c. 35. s. 5. An acquittal as accessary, is no bar to an indictment as principal, and è converso. 2 Hale, 244. Fost. 361. 2 Hawk. c. 35. s. 11. So, an acquittal upon an insufficient indictment, is no bar to another indictment for the same offence. 4 Co. 45 a. Where the defendant was formerly indicted for forging a will, which was set out in the indictment thus: "I John Styles," &c., and was acquitted for variance, the will given in evidence commencing "John Styles," without the "I": it was holden that he could not plead this acquittal in bar of another indictment, reciting the will correctly, "John Styles," &c. R. v. Cogan. 2 Leach, 503.

The following is the form of the plea of auterfois acquit :— "And the said J. S., in his own proper person, cometh into court here, and having heard the said indictment read, saith, that our said Lord the King ought not further to prosecute the said indictment against the said J. S.; because he saith that heretofore, to wit, [at the general quarter sessions of the peace, holden at". -so continuing the caption of the former indictment," it was presented, that the said J. S., (then and there, and thereby described, as J. S., late of the county aforesaid, labourer), on the third day of," &c., continuing the indictment to the end; reciting it however in the past, and not in the present tense. Recite also the remainder of the record to the end of the judgment, in the past tense, in like manner. Then proceed thus] : " As by the record thereof more fully and at large appears; which said judgment still remains in full force and effect, and not in