tice of the Court; that the copy of the caption is not given in practice by the officer of the Court, and that the practice of the Court is the law of the Court. No doubt that it is the law, but I have not heard of any instance of a rule, or even of a dictum of a Judge before to day, in favour of the position that the party is not entitled, under this Statute, to what has been demanded at the bar. I have not heard of one instance in which an application such as the present one has been refused. I cannot consider that because the objection has not been made, for the case has not arisen during the twenty-four years which have elapsed since the passing of the Statute, that any practice of the court against the application has been shown or established to exist. The course of proceeding of the parties in the instances, and they are not many, in which crown prosecutions have occurred, many have been for the party to make an application to the officer of the Court, who may have refused to give a copy of the caption of the indictment, and the parties may have submitted without remonstrance. But I cannot imagine that because the question never was raised before, even if an occasion for raising it had occurred, that, therefore, this is to be considered as the practice of the Court, binding the Court as law. But then there is another practice adverted to, and that is the practice at the Assizes, where it is said to have been established that, although the party accused is entitled (on paying the usual fees) to a copy of the indictment, he is not entitled to a copy of the caption. I never knew an instance in which this was discussed, or in which it was even mentioned. But it is not in common practice asked for or given. Why? Because the parties apply, at their own expense, for that which is in ordinary cases only material, viz., the body of the indictment. They pay for what they get, and they do not ask for more than they want. No cases are produced in which the caption has been refused where material. I do not think that such negative evidence is sufficient to establish a practice. These are the grounds on which it appears to me that the construction of this Statute ought to be governed by the practice under the Statute of 7 William III. c. 3, and 7 Anne, c. 21, in England, and 5 Geo. III. c. 21, in Ireland. Of course when I am under the disadvantage of differing from the rest of the Court, I must feel that there is every probability that I am wrong. But no other disadvantage will ensue, because the rule of the Court will not be according to my opinion.

[After some discussion on another topic introduced-]

Mr. JUSTICE PERRIN.-My attention has been drawn by my brother Crampton to a passage in 2 Hale, Pl. Cr. which had escaped me, and to which I have not adverted, it is this: "The caption of "the indictment is no part of the indictment, but it is the stile or "preamble, or return that is made from an inferior Court to a supe"rior, from whom a certiorari issues to remove; or when the whole "record is made up in form, for whereas the record of the indict"ment as it stands upon the file of the Court wherein it is taken is "only thus: juratores pro domino Rege super juramentum suorum "presentent, when this comes to be returned upon a certiorari is

"more full and explicit in this form," &c. Lord Hale does here certainly say the caption is no part of the indictment, but not in the sense contended for, nor to the extent, nor that it is not essential to the indictment, as appears in the subsequent pages, when he treats of the caption and of the body of the indictment; so that without observing as fully upon this passage as I should had it been brought to my attention when delivering my opinion, it appears to me subject to the same view as Lord Mansfield's position, and so not to apply exactly to the matter in argument.

TUESDAY, NOVEMBER 14TH.

This being the last day for pleading, according to the rules of the Court, the following plea was handed in in person by Daniel O'Connell, Esq. :

"And the said Daniel O'Connell, in his own proper person, "comes into the Court here of our Lady the Queen, before the Queen "herself, and having heard the said alleged indictment read, and pro"testing that he is not guilty of the premises charged in the said "alleged indictment, or of any part thereof, for plea in abatement "thereto, nevertheless saith that he ought not to be compelled to "answer the said alleged indictment, and that the same ought to be "quashed, because he saith that the said alleged indictment here"tofore, to wit, on the 2nd day of November, 1843, to wit at the "said Court of our Lady the Queen, before the Queen herself, to "wit in the parish of St. Mark, in the county of the city of Dublin, "was found a true bill by the jurors aforesaid upon the evidence of "divers, to wit four witnesses then and there produced before, and "then and there examined by the jurors aforesaid, and that the said "witnesses so then and there produced before, and examined by the "jurors aforesaid, were not, nor was any of them, previous to their "and his being so examined by the jurors aforesaid, sworn in the "said court of our said Lady the Queen, before the Queen herself, "according to the provisions of a certain Statute passed in a session "of Parliament holden in the 56th year of the reign of his late Majesty King George the Third, intituled An Act to regulate "the proceedings of Grand Juries in Ireland upon bills of indict"ment,' to wit in the parish of St. Mark, in the county of the city "of Dublin aforesaid, and this he is ready to verify; wherefore he "prays judgment of the said indictment, and that the same may be quashed, and soforth."

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Similar pleas were handed in by the several other traversers in person.

The Attorney-General objected to those pleas being received, as at that stage of the proceedings the traversers were not entitled to plead in abatement; he, at all events, applied as a matter to the discretion of the Court, that those pleas should not be received, until he had an opportunity of considering the question.

Mr. Hatchell, on the part of the traversers, contended that the pleas should be then received, and that if the Attorney-General objected to them, he could afterwards move to have them set aside.

The Court postponed hearing the matter discussed until the following day, it then being a late hour, without prejudice, however to the traversers, if the Court should be of opinion that the pleas should have been then received.

WEDNESDAY, NOVEMBER 15TH.

The Attorney-General.-My Lords, the question before the Court now is, whether those pleas in abatement which have been pleaded by the several traversers, ought to be received, and that will be found to depend on the construction of the 60 Geo. III. c. 4, and I contend that under that Statute they were bound to plead in abatement, when charged with the indictment; that has been the practice both in felonies and misdemeanors, 1 Chitty, C. L. 447; 4 id. 520, note; 2 Gabbett's Cr. L. 328; 1 Burns' Justice, Abatement, 2; Rex v. Kirwan, 31 State Trials, 578. These cases show what the practice has been, and the form of the plea is the same in Rex v. Kirwan as in this case. But I submit, upon the true construction of the Act, it does not apply to pleas in abatement. Looking to the preamble of the Act, so far from giving facility to dilatory pleas, it shows that such a construction would not be in accordance with its intention, for it expressly recites that delays had occurred, and that it is for remedy of those delays the Act was passed; and looking to the latter branch of the section, it is clear we are entitled to compel a party to plead in that term, in the same manner as he might have done prior to the Act, on an imparlance to another term. Now, before the passing of the Act, if there had been an imparlance, the party would not have been entitled to plead in abatement. Bacon's Abr. Plea, c. 3. Under this section, when giving the party four days to plead or demur, it was never in contemplation that he was to put in a dilatory plea. In the ordinary rule of this Court, the eight day rule to plead does not permit the party to plead in abatement, or to the jurisdiction; that should be pleaded in four days.

Mr. JUSTICE PERRIN.-It was only in cases of treason or felony, that the party was bound to plead on his arraignment.

The Attorney-General.-If that be so, then this plea is late under any circumstances. In civil cases and in misdemeanors, the rule is the same, and a dilatory plea should be filed within four running days. The rule in this case commenced to run on Friday, and should have been filed on Monday, as Sunday counts as one of the four days. It is clear then that prior to the passing of the Act, those pleas could not have been received. Now what is the construction they seek to put on the Act? They call on you, notwithstanding the preamble of that Act, to extend the time for receiving those dilatory pleas, which clearly would have been irregular before the passing of the

Act. Further, supposing those pleas were received, and I take a demurrer to them, if I succeed on that demurrer, I could only get a judgment of respondeat ouster, 1 Chitty's Cr. Law, 451, and according to the construction put upon the Act, by the other side, the effect would be, that an Act passed for the purpose of preventing delay, would create delay. This is a strong reason to show that the pleas thereby meant should be pleas which would lead to a final judgment, and not pleas which would lead to a judgment of respondeat ouster, and thereby give the parties new time for pleading. Further, if a party appears by attorney, there can be no imparlance, but the party shall be compelled to plead, and if I be right, that there cannot be a plea in abatement, or to the jurisdiction after imparlance, this plea does not meet this second branch.

Mr. JUSTICE PERRIN.-Do you infer from this that a plea in abatement is taken away ?

The Attorney-General.-No. Either they are to plead on arraignment, or to plead in four running days. If they are to plead in four running days, the Statute has no reference to pleas in abatement, it has only reference to pleading in bar or demurring, and has not the effect of extending the time for pleading.

Mr. Moore-My Lords, if I understand the Attorney-General, he is applying for an order that the officer should not receive those pleas, and in strictness he is bound not to make that application without notice; but I do not seek to turn him round on this point, I submit on principle and on the true construction of this Act, that those pleas are regular. There is no controversy, but that we had the whole of yesterday to put in pleas of some kind or other. The first ground of his argument was, that if the Statute had not passed, we are not at liberty to plead in abatement, unless at the time of arraignment. It becomes therefore necessary to consider at what period a party is said to be arraigned. In 2 Hale, P. C. 219, arraignment is the time given to the party as to the period he is called on to answer and to say whether he is guilty or not, and that time, according to the rules of the Court, did not arrive until yesterday, and we were not bound to say whether we would plead in bar or in abatement. The second question for the consideration of the Court is the construction of the Statute, and whatever doubt may have existed antecedent to the Statute, there is not a particle of doubt with respect to the right to plead in abatement under the Statute. It is clear that at common law in misdemeanor cases, the party had a right to imparl to the ensuing term. The Queen v. Rawlins, 3 Salk. 185. But then it is said, if we had entered an imparlance we should have been bound not to have pleaded in abatement. Whatever be the rule in civil cases I know of no authority to show that after an imparlance in a criminal case, the party is deprived of his right to plead in abatement. Whatever may be the principle applicable to civil cases, the Court would be slow to extend the rule to Crown cases, which would have the effect of depriving a party of benefit he would otherwise be entitled to, for a plea in abatement may be a plea to the merits; there is no doubt but the parties had a great privilege in being allowed to imparl, that right

was given to him to afford him every opportunity in point of time, of making himself acquainted with the charge against him. A great advantage is thus taken away by the operation of this Act. and it is to be considered as a penal Act, because it goes to abridge the common law right; it therefore should receive the fullest interpretation in favour of the party. It is said, that it appears by the preamble, that the Statute was intended to prevent delay; now the object of it was, to do away with the right of imparling, and to substitute in its place, that the party be required to plead or demur in four days, and you are called on to construe it as if it said, a plea in bar in four days. A plea in abatement is as valid as a plea in bar, and may go equally to the merits; and when a common law right is taken away, why should a party be deprived of a privilege the Act gives him? Upon no principle can the Court give the Act this narrow construction, if the Legislature intended to confine it to pleas in bar, they would have inserted those words, but the Court would not be warranted in introducing them.

Mr. Hatchell.-My Lords, on the part of Mr. Ray, I submit, that those pleas ought to be received. When on Friday the rule to plead was entered, we applied to the Clerk of the Crown to be informed at what time it was necessary to put in a plea, and we got a certificate from him stating, that we had the whole of Tuesday, so that if we relied on this certificate alone, this plea ought to be received. There is no doubt that at common law, if a party appeared in person, he had a right to imparl to the next term, but if he neglected to appear in proper time, he was deprived of that right, 1 Gude, Cr. Law, 90; Rex v. Cox, 1 Show. 56. This plea is said to be a dilatory plea, but it raises a very important question. There has been no practice to regulate the construction of this Act, and the Court will not, therefore, give it such a construction as will exclude this plea.

Mr. Brewster.-My Lords, in reference to the certificate, the officer was misled; he was asked to inform the traversers when the rule to plead would run out, but that rule had nothing to say to pleas in abatement, and the party when they made this application, should have stated whether they intended to plead in abatement or in bar. As to the nature of the plea, it is purely a dilatory plea, and does not go to the merits of the case. The authorities are clear, that upon the civil side of the Court, he has but two days to plead in abatement, Jennings v. Webb, 1 T. R. 277. Another rule is, that there can be no plea in abatement after a general imparlance, Duncombe v. Church, 1 Salk. 1; Evans v. Stevens, 4 T. R. 227. Pleas in abatement in criminal cases, are looked on as in civil cases. Under the Statute of Anne, they must be verified by affidavit, Rex v.Grainger, 3 Bur. 1617, and in that Statute, pleas in abatement are called dilatory pleas. In misdemeanor, there are two courses not accurately distinguished, traversing and imparling. The party desiring to traverse, when called on to appear, must appear and plead.

Mr. JUSTICE PERRIN.-My impression is, that when a party applies to traverse in prox. he is not called on to plead until the next

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