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.

But if a doubt arises whether the prisoner is mute of malice, and whether the refusal to plead does not really proceed from inability, the court, instead of ordering a plea to be entered at once, will (as before the statute) impannel a jury to try whether he stands obstinately mute or whether he is dumb ex visitatione Dei.-4 Bl. C. 324, n. (5), by Ryland.

This jury may be any twelve persons who may happen to be present.-1 Chitty, Cr. Law, 424.

Upon such issue the prisoner's counsel is allowed to address the jury.—Ibid.

If upon an issue whether obstinately mute, or dumb ex visitatione Dei, the latter is found by the jury, the court will use means to make the prisoner understand the arraignment and convey his answer; but if this be impossible, will direct a plea of not guilty to be entered and the trial to proceed. In such cases it is the duty of the court to examine all the points for him on the trial as counsel for the prisoner, to see that he hath law and justice.-4 Bl. C. 325; 1 Chitty, Cr. Law, 424.

But if convicted, it seems that in such cases judgment even of death, may lawfully be pronounced.-1 Chitty, Cr. Law, 425.

When the party indicted is deaf and dumb, he may, if he understand the use of signs, be arraigned, and the meaning of the clerk who addresses him conveyed to him by signs, and his signs, in reply, explained to the court.-1 Chitty, Cr. Law, 417.

In the case of insanity, it is provided, by 39 & 40 Geo. III. c. 94, s. 2, that insane persons indicted for any offence and found to be insane by a jury impannelled on their arraignment, shall be ordered by the court to be kept in custody till his Majesty's pleasure be known. (Et vide sup. p. 4.)

2. It may also happen that upon arraignment the prisoner confesses the indictment; and in this case, if he merely confesses, the court has nothing to do but to record the confession and award judgment; but it is usually very backward in receiving and recording such confession in capital cases, and will generally advise the prisoner to retract it and plead to the indictment.-4 Bl. C. 329.

But there is a kind of confession called approvement. That is, where a person indicted of felony, and arraigned for the same, confesses the fact before plea pleaded, and accuses others as his accomplices of the same crime, in order to obtain his pardon. The approvement (which can only be in capital cases) is considered as a sort of indictment; and the accused or appellee must go to trial upon it, and if found guilty, must suffer the judgment of the law; and if acquitted, the approver, on the other hand, must suffer the judgment of the law as upon his own confession. But it is in the discretion of the court whether it will allow an approvement or not; and in practice the proceeding has been long disused.-4 Bl. C. 330; 1 Chitty, Cr. Law, 602.

It has been usual, however, for the justices of the peace before whom any persons charged with felony, are committed to gaol, to admit some one of their accomplices to become a witness, (or, as it is generally called, king's evidence,) against his fellows, upon an implied confidence, which the judges of gaol delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and all other felonies in which they have been concerned together, and to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for any offence in respect to which he has thus made disclosure.-4 Bl. C. 331, and note by Chr.

But he has no claim to pardon with respect to other offences in which he was not concerned with the prisoners. -Ibid. n. (13), by Ryland.

And the judges will not in general admit an accomplice as king's evidence, if it appear that he is charged with any other felony than that on the trial of which he is to be witness.-Ibid.

3. The prisoner, on an indictment, instead of confessing or standing mute, may plead.

CHAPTER XXV.

OF PLEA AND ISSUE.

THE plea is the defensive matter alleged by the defendant in answer to the indictment or information, supposing him neither to confess nor to stand mute.

The time for pleading on an indictment for felony, in any court, is in general instanter upon the arraignment.— 1 Chit. Cr. Law, 432; 6 East, 587.

By 60 Geo. 3, and 1 Geo. 4, c. 4, in all cases of indictment for misdemeanor, at sessions or assizes, (except for not repairing of bridges or highways,) if the defendant have been in custody or on bail twenty days at the least upon the same charge, he must upon the finding of the indictment plead and try instanter; and if the indictment be found at a former sessions or assizes, and the defendant be in custody or on bail for the same offence, or receive notice of the indictment twenty days before any subsequent session or assizes, he must at such subsequent session or assizes plead and try. But the court may allow him further time to plead or try, upon cause shown.

By the same statute, where the defendant is prosecuted for misdemeanor, by information, or by indictment found, in the King's Bench, or removed into that court, he must plead or demur within four days from the time of his appearance, and in default thereof judgment may be entered against him for want of a plea. But the court or a judge may, on sufficient cause, allow further time to plead or demur.-Ibid.

The court have a discretionary power at common law, of allowing a party indicted to defend in formâ pauperis.1 Chitty, Cr. Law, 413.

The effect of being allowed to defend in this manner, is, that he has counsel and clerk assigned him by the court, and he is not liable to pay office fees.-1 Chitty, Cr. Law,

413.

There are various proceedings in the nature of plea.

1. A Plea to the Jurisdiction.

This is where an indictment is taken before a court that hath no cognizance of the offence, as if a man be indicted for a rape at the sheriff's torn, or for treason at the quarter sessions, or if another court have exclusive jurisdiction of the offence. It consists of an exception to the jurisdiction of the court, without answering at all to the crime alleged. It must in order of time be pleaded before any other plea, and in general must be supported by affidavit.—4 Bl. C. 333 ; Arch. 74.

But this kind of objection may be taken not only in the form of a plea to the jurisdiction, but (in general) under the plea of not guilty also; and where the case is such that it appears on the face of the record, it may also be taken by demurrer, motion in arrest of judgment, or writ of error; and as these latter modes of proceeding give the defendant the additional chance of an acquittal on the merits, a plea to the jurisdiction is of rare occurrence.-Arch. 74.

To this plea the crown may demur or reply instanter; and if the plea is found against the defendant, he has judgment, in case of felony, to answer over to the felony. But in case of misdemeanor no judgment of respondeat ouster is of right demandable after the plea is found against the defendant upon matter of fact; for the decision operates as a conviction. But as a matter of favour he may still be admitted to plead not guilty.-1 Chitty, Cr. Law, 439.

2. A Demurrer.

This is when the fact alleged is allowed to be true, but exception is taken to the indictment or information in point of law, as insufficient on the face of it to charge the defendant; and the insufficiency may be either in matter of