And upon a like motion, the court said, that they would not quash an indictment for enticing away another person's servant, upon motion, or for a nuisance, or for any heinous crime (e).

An indictment charged, that six defendants, along with several others, unlawfully assembled to disturb the peace, and broke and entered a lead mine, and unlawfully took and carried away a certain quantity of lead.

It was moved to quash the indictment on the ground that this was the subject matter of an action of trover or trespass, and not a matter of public concern. But the court, considering the number of persons collected together, held, that the defendants were not entitled to any indulgence, since this assembly was at a time in Cumberland when the judges were trying other persons for the like offence at Carlisle (ƒ).

So the court refused to quash an indictment for a forcible entry (g).

For a disturbance in church (h).

Against overseers for refusing to pay over money to their successors (?).

But where the motion has been accompanied with a certificate that the nuisance complained of has been removed the court has quashed the indictment.

Since informations are preferred for great offences only, and such as are likely to prejudice the commonwealth, the court, it is said, will not quash one upon motion (k). A motion may be made to quash an indictment on the last day of term (1)

(e) Salk. 372. +

(f) R. v. Johnson, 1 Wils.

325.

(g) 6 Mod. 95.

(h) Cro. Car. 584.

(i) R. v. King, Str. 1268.

(k) Vin. Ab. Inf. 415. i. e. at the instance of the defendant.

(1) Burr. 651.

With respect to indictments for high treason or misprision thereof (except only indictments for counterfeit. ing the king's coin, seal, sign, or signet) it is provided by the stat. 7 Will. 3. c. 3. that none shall be quashed for mis-writing, mis-spelling, false, or improper Latin, unless exception concerning the same be taken and made in court by the prisoner or his counsel assigned before any evidence given in open court upon such indictment; nor shall any such mis-writing, mis-spelling, false, or improper Latin, after conviction upon such indictment, be any cause to stay or arrest judgment thereupon. But nevertheless any judgment given upon such indictment shall and may be liable to be reversed upon a writ of error in the same manner, and in no other than as if this act had not been made.

Under this statute it has been holden, that no such exception can be taken after plea pleaded (m).

(m) Rookwood's case, 4 St. Tr. 673. See East. P. Č. 110.

305

CHAP. XVIII.

Arraignment,

In all cases of treason and felony, and of misdemeanors, where the defendant is in custody (a) he is arraigned at the bar of the court; or, in other words, he is asked by the proper officer whether he is guilty or not of the offence with which he is charged.

According to some authorities the accused should be brought to the bar for this purpose free from fetters, un

ap

(a) If the defendant appear upon an indictment of treason or felony, he is generally arraigned or put to plead immediately. Com. Dig. Ind. L. And the rule is the same in case of misdemeanor, if he pear upon the capias, for he was guilty of a contempt in not appearing upon the venire. Ib. So if he appear upon his recognisance, or if he appear in his own person in a case of privilege. Ib. But if the defendant appear upon summons to a venire or subpoena, he is entitled

to an imparlance. Seven Bishops' case, St. Tr. And if he plead immediately, he need not try till the next term. But if he does not plead, until he be served with a peremptory rule, he must give bail to try it at the same term. The Queen v. Orbell, 6 Mod. 42.

If the defendant plead in court, he is committed till trial, unless he give security to try. at his own charge; and if he plead in the office, the plea is not to be received without giving such security. 6 Mod, 114,

less some danger be apprehended. But in Layer's case (b), and in subsequent (c) instances, the courts have distinguished between the time of arraignment, and the time

of trial, and have refused to liberate the prisoner from his irons whilst he was arraigned.

For the purpose of identifying the person of the prisoner, it is usual to direct him to hold up his hand, but this ceremony is not essential; the object is answered if the prisoner admit that he is the same person (d).

The indictment is then read over to him, and he is asked, whether he is guilty of the crime (e) whereof he is indicted or not guilty, and he then either stands mute, or confesses the fact, or pleads to the indictment.

The entry of the arraignment upon the record is in this form: "And being brought to the bar here, in his own proper person, he is committed to the marshal, &c. And being asked how he will acquit himself of the premises (in case of felony, or of the high treasons, in case of treason, above laid to his charge, saith, &c."; and the record, it seems, would be erroneous, if it omitted so important a part of the proceeding (ƒ).

Where there are two indictments against the defendant for the same offence, it is usual to arraign him upon both, and to try him upon both at the same time (g).

At common law, a man appealed of several robberies may be severally arraigned and tried on each appeal (h); in order that each appellant may be equally entitled to restitution of his goods; and so he may upon several indictments, for each prosecutor is entitled to a restitution. of his goods upon conviction, by virtue of the stat. 21 H.