shall be abated by reason of any dilatory plea of misnomer, or of want of addition, or of wrong addition of the party offering such plea, if the court shall be satisfied by affidavit or otherwise of the truth of such plea. But in such case the court shall forthwith cause the indictment or information to be amended according to the truth, and shall call upon such party to plead thereto, and shall proceed as if no such dilatory plea had been pleaded.

Upon a plea in abatement the prosecutor may on behalf of the crown reply and take issue.

If issue in fact be taken upon a plea in abatement, the trial may take place by a jury of the same county instanter. -1 Chitty, Cr. Law, 450.

If issue in fact be taken, and the judgment be against the defendant, it is final in case of misdemeanor; but in case of felony, it is only that the defendant answer over. If for the defendant, it is that the indictment be quashed or (in case of misnomer) be amended, &c. according to the statute.-1 Chitty, Cr. Law, 450, 451; Arch. 77.

4. A Special Plea in Bar,

These are pleas which, without denying the matter of fact charged, allege some reason why the defendant should not be held liable to the indictment or information.

The only special pleas in bar which are used, are the following.-4 Bl. C. 335.

Plea of Liability to Repair of Highway or Bridge.

To an indictment for not repairing a highway or bridge, if the parish or county indicted contend that the burthen of repairing is upon some other person or persons, not bound of common right to repair, they must plead specially the liability of such party, and show the reason of it; and are not permitted to give it in evidence under a plea of "not guilty."-Arch. 80.

They may, however, show under the plea of not guilty that the parish has been relieved of the liability by a public statute.-3 Camp. 222.

Upon this plea the prosecutor may reply on the part of the crown, joining issue on the liability of the person or persons alleged in the plea.

Plea of Autrefoits Acquit.

This is a plea that the defendant was indicted on a former occasion, for the same offence, and acquitted.-1 Chitty, Cr. Law, 452.

In general this is a good bar to the second indictment, but under particular circumstances it may be no bar.

The true test by which the question, whether such a plea is a sufficient bar in any particular case, may be determined, is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first.-Arch. 82.

Thus an acquittal for murder may be pleaded in bar, not only to a second indictment for the same murder, but also to an indictment for manslaughter; because the defendant might have been convicted of the manslaughter, upon the first indictment.-Ibid.

So an acquittal by a competent jurisdiction abroad is a bar to an indictment for the same offence in this country.— Ibid.

So an erroneous acquittal standing unreversed, is a bar.— Ibid.

So if the prisoner could have been legally convicted on the first indictment, upon any evidence that might have been adduced, his acquittal on that indictment is a bar to a second, whether the proper evidence was in fact adduced on the first indictment or not.-2 Carr. & Payne, 635.

But an acquittal on an insufficient indictment is no bar to a second indictment for the same offence. Arch. 83.

So an acquittal upon an indictment in a wrong county is no bar to a subsequent indictment for the same offence in another county.—Ibid. 82.

So an acquittal for a felony is no bar to an indictment for a misdemeanor, nor vice versa.-Ibid.

So an acquittal as accessary, is no bar to an indictment as principal, and vice versa.-2 Hale, P. C. 244; 2 Hawk. c. 35, s. 11.

The record of the former indictment and acquittal must be set forth in the plea, or the plea will be bad on demurrer.-1 Mau. & Sel. 183.

It must appear to be an acquittal by a verdict of a petit jury.-2 Hale, P. C. 243.

If the indictment be for felony, the defendant should, besides pleading autrefoits acquit, plead over, denying the felony.-Arch. 83.

But though he should neglect to do so, he may still be allowed after the plea of autrefoits acquit found against him to plead not guilty.-Ibid. 84.

To this plea the crown may demur; and if the plea be held bad on demurrer, and the case be a misdemeanor, final judgment will be given against the defendant.-3 Barn, & Cres. 502.

There may also be a replication to this plea, disputing the fact of the acquittal.-1 Chitty, Cr. Law, 460.

Where the plea has been ore tenus the replication of the crown may be immediately put in, the same way; but if the plea be put in writing, so must the replication.-Ibid. 461. Upon this issue a venire is awarded and a jury sworn instanter to try the issue.-Ibid.

The trial of this issue is always by a jury, there being no trial" by the record" in criminal cases.-Arch. 84.

If the judgment be against the defendant on this issue, in case of a felony, it is that he answer over; or, if he has added to his plea of autrefoits acquit, a plea over to the felony, the jury are charged again to inquire of that second issue, and the trial proceeds as if no special plea in bar had been pleaded.-Arch. 85.

In misdemeanors the judgment against the defendant on this issue is final.-Ibid.

When the judgment is for the defendant on this issue, whether in felony or misdemeanor, it is, that he go without day; and he is altogether discharged from the prosecution.-Ibid.

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Plea of Autrefoits Convict.

This is a plea that the defendant was indicted upon a former occasion for the same offence, and convicted.4 Bl. C. 336.

This plea is in general open to the same remarks as that of autrefoits acquit.-1 Chit. Cr. Law, 462. See 2 Hale, P. C. 251; 2 Hawk. c. 36, ss. 10 to 17.

(As to the plea of autrefoits attaint it seems now to be rendered useless by the effect of 7 & 8 Geo. IV. c. 28, s, 4.)

Plea of Pardon.

If the defendant has received a pardon for the offence charged, he may plead it in bar.—4 Bl. C. 337.

And he may plead it either upon arraignment, or after verdict, in arrest of judgment, or after judgment, in bar of execution. Ibid. 402.

But he is bound to plead it at the first opportunity; for if he has received a pardon before arraignment, and instead of pleading it, pleads not guilty, he cannot afterwards avail himself of it in arrest of judgment.-4 Bl. C. 402.

A pardon regularly should be under the great seal.1 Chitty, Cr. Law, 468. But see 7 & 8 Geo. 4, c. 28, s. 13, post, p. 335.

If a pardon under the great seal be pleaded, the letters patent must be set out with a profert.-1 Chitty, Cr. Law, 468.

But if the party be unable immediately to produce it the court will in their discretion indulge him with further time in order to procure it.-Ibid.

If this plea be found against the defendant in case of felony, there will be judgment that he answer over, and in case of misdemeanor the court may proceed to pass sentence as upon a conviction.-1 Chit. Cr. Law, 470.

By 5 & 6 Will. 3, c. 13, when a pardon is pleaded by any one for felony the justices may at their discretion remand him to prison till he enter into recognizance with two sureties for his good behaviour for any time not ex

ceeding seven years; but this power is not usually exercised, and in all cases. if such plea be found for the prisoner, the course is to discharge him.-Ibid.

A pardon by public act of parliament, need not be pleaded, but the court must notice it ex officio.-Fost. 43, 4 Bl. C. 402.

Plea of Not Guilty.

This is otherwise called the general issue.

This is pleaded (in most cases) by the prisoner vivâ voce at the bar, in these words "not guilty."

But in cases where the defendant is allowed to appear by attorney, (vide sup. p. 279,) it is not pleaded vivâ voce, but engrossed and filed with the proper officer.-Arch. 87.

By 7 & 8 Geo. 4, c. 28, s. 1, if any person, not having privilege of peerage, being arraigned upon any indictment for treason, felony, or piracy, shall plead thereto, a plea of "not guilty," he shall by such plea, without any further form, be deemed to have put himself upon the country for trial. And the court shall in the usual manner order a jury for the trial of such person accordingly.

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And by sect. 2, if any person being arraigned upon or charged with any indictment or information for treason, felony, piracy, or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information, every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty" on behalf of such person. And the plea so entered shall have the same force and effect as if such person had actually pleaded the same.

In the case of a peer, the provision of the first section of this statute does not apply; and therefore (as before the statute) after the plea of "not guilty" by a peer, he should be asked how he will be tried.-See 4 Bl. C. 341.

This is the only plea on which the prisoner can receive a final judgment of death; for in all cases of felony, if a special plea in bar, or any other plea, is found against him, he