ment, the said (defendants) severally say that they are guilty of the premises in those counts respectively mentioned, as in and by the said indictment is above supposed, and they put themselves, in respect thereof, on the mercy of our said lord the king, &c. the above. And G. H. who for our said lord the king in this behalf Joinder in prosecuteth for our said lord the king saith, that the first and demurrer to second counts of the said indictment, and the matters therein) contained, are good and sufficient in law to compel them, the said [defendants] and each and every of them to answer to the said first, second, third, and fourth counts of the said indictment; wherefore, for want of a sufficient answer in this behalf he prays judgment, and that the said [defendants] and each and every of them may be convicted by the court here of the premises charged upon them in the said first and second counts of the said indictment. the indictment And the said A. B. &c. cometh by C. D. his attorney, Special de. and having heard the indictment read saith, that our said murrer to an lord the king ought* not further to impeach or molest him, wanting an the said A. B. on account of the premises, because he saith allegation of that the said indictment is insufficient in law to put him, the time and said A. B. to answer to the said indictment, and that by place. (9) the law of the land no process ought to be made upon [* 519] said indictment against him, the said A. B. for that it doth not appear by the said indictment upon what certain day, or in what certain place, the offence aforesaid in the indictment aforesaid supposed to have been committed by the said A. B. was committed by the said A. B. as by the law of the land ought to appear; wherefore, for the insufficiency of the said indictment, he prays judgment, and that he may be discharged from the premises by the court here, &c. (p) See similar forms, Hand's Prac. 383. Stark. 707. (q) See Trem. P. C. 270. Starkie, 706. Crim. Law. VOL. IV. 3 Q [* 520] 490 PLEAS IN ABATEMENT, &c. Plea of mis. nomer of the surname, and addition. (a) The King And Elizabeth, (b) the wife of J. H. against (who is indicted by the name of E. S. E. H. wife of J. H. spinster) cometh in her proper person, indicted by the name and having heard the said indictment, of E. S. spinster. she saith that at the time of taking the said indictment, and long before, she the said E, was, and yet is, the wife of the said J. H. and then and long before was, and yet is called and known by the name of Elizabeth H. wife of the said J. H. without this, that she the said Elizabeth, at the said time of the taking of the said indict[* 521] ment, or at any time since, was Elizabeth S. spinster, or then was, or at any time since hath been, or now is, called or known by the name of Elizabeth S. and this she is ready to verify; wherefore she prayeth the judgment of the court (a) Other precedents of pleas of misnomer of the surname, Cro. C. C. 46. 10 East. 83. As to these pleas in general, ante 1 vol. 433 to 478. Formerly it was thought that a misnomer of the surname could not be pleaded in abatement, 2 Hale, 176. Hawk. b. 2. c. 25. s. 39; but this opinion is now exploded, 10 East. 83. As to the accuracy with which the defendant must be described, see 1 vol. 202 to 211; and as to pleas in abatement, id. 445 to 449. The plea may be put in by attorney, 10 East. 83. Hawk. b. 2. c. 34. s. 3. It must be pleaded before any plea in bar, as the defects thus taken advantage of are cured by pleading, 2 Hale, 175. Fost. 16. It may be ore tenus at least in cases of felony or trea son, I Leach, 476. Fost. 105. But it is more usually engrossed and signed by counsel, Cro. C. C. 21. The proper time for pleading it, is immediately on the arraignment, when it is delivered into court by the defendant or his attorney. (b) The real name of the defendant must here be disclosed; and if the name be incorrect he can take no advantage of the mistake; for he is concluded by his own plea, 2 Hale, 238. 4 Bla. Com. 335. The plea ought not to commence, and the said, &c. see 5 T.R. 487. 3 Wils. 418. 3 Went. 210. 2 Chitty on Pleading 2nd Ed. 455, n. d. 464. n. e. here, and that she may be dismissed and discharged of the said indictment. (c) The king christian name. And Elizabeth C. who is indicted Plea, misnoby the name of Sarah C. cometh mer of the E. C. indicted by the here into court in her own proper name of S. C. person, and prayeth judgment of the said indictment, because she saith that she, the said Elizabeth C. from the time of her baptism (d) to this present time was, and still is called and known by the name of Elizabeth, and by the said Christian name is, and during the whole time aforesaid was called, named, and known, without this, that she, the said Elizabeth, now is, or at any time heretofore to this day, was called, named, or known by the name of Sarah, as is supposed by the indictment aforesaid; and this she, the said Elizabeth, is ready to verify; for which reason, and because she, the said Elizabeth, is not named in the said indictment by the name of Elizabeth C. she, the said Elizabeth C. prayeth judgment of the said indictment, and that the same may be quashed. dition of place of And J. G. who in and by the said indictment is called by Entry of plea the name and addition of J. G. late of the parish of Ken- of wrong ad sington, in the county of Middlesex, butcher, in his own person cometh, and having* heard the indictment read, he abode. (e) saith that at the time of taking the said indictment, and [* 522] long before he, the said J. G. was and ever since hath been, and still is inhabiting, resident, and commorant in the parish of Saint James, Westminster, in the county of Middlesex (c) The plea ought to have a proper conclusion, praying judgment of or on the indictment; and usually concludes with a prayer, that the indictment be quashed; but a conclusion, "that he may not be compelled to answer the same," has been holden correct, 10 East. 83. It is said, that in case of felony, the plea ought to answer over to the merits; but this is not requisite, as the judgment on the plea being determined against the defendant, is "respondeas ouster." In misdemeanours, it is certainly improper for reasons already shewn. 8 East. 107. Cro. Eliz. 495. If the plea of misnomer in case of misdemeanour be found for the defendant, the judgment in K. B. will be entered as follows;-" whereupon all and singular the premises being seen (d) It should seem with analo- (e) See similar precedents, 3 Burr. 1517. Stark. 704. 2 Rich. C. P. 157. See ante 1 vol. 435 to 478. The like in another aforesaid, without this, that he, the said J. G. now is, or at the taking of the said indictment, or at any time before, was inhabiting, resident, or commorant at the parish of Kensington, in the county of Middlesex, as by the said indictment is supposed; and this he is ready to verify, for which reason, and because he, the said J. G. is not called in the said indictment, J. G. late of the parish of Saint James, Westminster, he the said J. G. prays judgment of the said indictment, and that the same be quashed. And now, to wit, on Wednesday next, after fifteen days of Easter, in this same term, in the court of our said lord form. (f) the king, before the king himself here, to wit, at Westminster, in the county of Middlesex, P. P. of the parish of Saint Martin in the fields, in the said county, refiner, who by virtue of the writ of our said lord the king, is had here to answer our said lord the king of the premises contained in the indictment aforesaid, and thereby above alledged against him the said P. P. in his proper person, and having heard the said indictment read, he the said P. P. saith, that he ought not to be compelled to give any answer thereto, because protesting that the said indictment is insufficient in law for plea in this behalf, he the said P. P. saith that he the said P. P. before, and at the taking of the inquisition aforesaid, and of finding the said indictment against him the said P. P. was, and from thence hitherto hath been, and still is conversant in the said parish of Saint Martin in the fields, in the said county of Middlesex, and he, the said P. P. at the time of the taking the said inquisition, and the finding the said indictment against him, the said P. P. or at any time before or afterwards hitherto, was not, nor was, nor hath he been conversant in the parish of St. Margaret, Westminster, in the said county of Middlesex, as by the said indictment is above supposed, and this he, the said P. P. is ready to verify; wherefore, inasmuch as in the said indictment addition is not made of the place of the which he, the said P. P. at the time of the taking the said inquisition, and of finding the said indictment was, and still is, and in which he then was, and still is conversant, according to the form of the statute, of additions in indictments in which the exigent may [* 523] be awarded, he the said P. P.* prays judgment of the said indictment, and that the same may be quashed, &c. Plea in abatement that defendant is an And immediately being asked how he would acquit him (f) From 1 Wentw. 36. See earl, and not ante 1 vol. 433, to 478. described as such. (g) (5) This plea is translated from Trem. P. C. 12. When a peer is indicted for an offence by reason of which process of outlawry lies against him, and he may be tried by his peers, he must set forth his title in his manner, in order to claim his privilege, because the plea is to be determined by the record, 6 Co. 53, b. 2 Hale, 240. See ante 1 vol. 433 to 478. self of the premises above laid to his charge, he says, that he is the person in the indictment aforesaid mentioned, and described by the name of C. K. in the parish of Saint Giles in the Fields, in the county of Middlesex, esquire, and against whom the indictment aforesaid is preferred, for the murder and felony aforesaid, [or as the case may be] and says, that he ought not to be compelled to answer the said indictment, because he says that the lord Charles the first, late king of England, &c. by his letters patent under the great seal of England, bearing date at Canterbury the 18th day of August, in the second year of his reign (which said letters patent sealed with the great seal aforesaid, the said Charles earl Banbury now brings here into court) of his special favour and certain knowledge, and mere motion, constituted, raised and created William then viscount Wallingford to the state, degree, dignity, and honour of earl Banbury; and by the same letters patent gave and bestowed upon him the said William the name, state, style, dignity, title, and honour of earl Banbury; and by the same letters patent, invested, ennobled, and adorned him the said William with and by the same name, state, title, style, honour and dignity by girding him with the sword, cape, and placing upon him the golden ring to have and to hold the same name, state, degree, dignity, style, title, and honour of earl Banbury, with all and singular the pre-eminences, honours, &c. to the name, state, degree, dignity, style, title, and honour of earl Banbury appertaining or belonging to the said William and the heirs male of his body issuing for ever, willing and granting by the same letters patent for himself, his heirs and successors, that the said William and his heirs male aforesaid, the name, state, degree, title, and honour aforesaid, should successively have and wear, and any one of them should have and wear, and by the name of earl Banbury should successively be called, as by the same letters patent more fully appears, by virtue of which letters patent the aforesaid William was created earl Banbury, and became and was seised of the state, degree, title, and honour of earl Banbury in his demesne as of fee tail, to wit, to himself and the heirs male of his body* issuing, and being so [* 524] seised thereof as aforesaid, the said William earl Banbury died so thereof seised, to wit, at the parish of St. Giles in the Fields aforesaid, in the county of Middlesex aforesaid; after whose death, the state, degree, title, and honour of earl Banbury aforesaid descended to Edward Knollis, as son and heir male of the body of the aforesaid William, earl Banbury, by means whereof the said Edward became earl Banbury, and was seised of the estate, degree, title, and honour of earl Banbury aforesaid in his demesne as of fee tail, to wit, to himself and the heirs male of the body of the aforesaid William issuing, to wit, at, &c. and being so thereof |