1824.

been duly convicted on the oath of a credible witness; but no witness whatever is mentioned from whose testi

Ex parte ALDRIDGE. mony it appears that the prisoner was found "carrying and conveying" the quantity of brandy mentioned, which is the offence, if any has been committed. There is nothing in the remaining part of the conviction to help this objection. The Justice goes on," and it is this day in like manner also proved, on the oath," &c. Now there is nothing to which the words "in like manner" can refer, because there was nothing before stated to have been proved on oath, still less was the manner of the proof set out. The conviction says, that the defendant is convicted, but nothing appears to have been proved against him. The offence consists in being in possession of uncustomed brandy at a certain time, but there is no proof that he has been convicted of that offence.

Shepherd, contrà. The statute 3 Geo. 4. c. 110.(a) gives a form of conviction, which though it has not been strictly pursued in this instance, still, upon the whole, it will be found that this conviction is sufficient both in form and substance. When the Justice begins by stating that the defendant has been duly convicted before him, the Court will reasonably intend that every requisite of the statute has been observed. Admitting that in that part of the conviction no mention is made of the de

(a) The form in the schedule to that statute is as follows: "Be it remembered, that on the day of in the year, &c. A.B. hath been duly convicted, before me, one of his Majesty's justices of the peace, &c. of [here state the offence] by him the said A. B. committed against the provisions of the acts of parliament made and passed for the prevention of smuggling; which offence hath been duly proved before me, on the oath of one or more credible witnesses; and the said A. B. being a seafaring man, and fit and able to serve his Majesty in his navy, I do hereby adjudge the said A. B. to serve in his Majesty's naval service, pursuant to the act passed in the third year of King George the Fourth, entituled, &c. Given," &c.

scription of proof by which the offence is substantiated, still what follows cures the defect. The first part of it is merely a description of the offence of which the defendant has been duly convicted, and then the Justice sets out the evidence whereon the conviction has proceeded. The words "in like manner" may be referrible to the words "hath been duly convicted," that is, "in like manner duly convicted on the oath of Joseph Hancock." It is manifest, upon taking the whole conviction together, that the offence was proved upon the oath of Joseph Hancock; and if that be so, then the conviction is right.

ABBOTT, C. J.-It is not stated on the face of this conviction to have been proved, on oath, that the defendant was found carrying and conveying the brandy in question, and that is the offence alleged against him. All that is said in the beginning of the conviction is, that he has been duly convicted. If the Justice had gone on and said, that it had been proved on oath that the defendant had been found carrying and conveying, it would have been sufficient. Instead of which he states what had been proved. The mere statement that he hath been duly convicted, without shewing that the offence was proved on oath, is not sufficient, and I see nothing to which the words "in like manner" are referrible. It appears to me therefore that this conviction is bad, and the prisoner must be discharged.

BAYLEY, and HOLROYD, Js.(a), concurred.

1824.

Ex parte ALDRIDGE.

(a) Best, J., was absent.

Discharged.

1824.

The KING v. R. S. COOKE.

Monday, THIS was an indictment against the defendant, and

February 9.

An informal plea in abate

ment cannot

be quashed on

motion,

it must be demurred to.

three other persons, for a conspiracy, to which this defendant pleaded the following plea in abatement :-" And Richard Stafford Cooke, Lord Stafford, Baron Stafford, though plead who is indicted by the name of Richard Stafford Cooke, ed for delay; late of the parish of Castlechurch, in the county of Staf ford, gentleman, in his own person comes, and having heard the said indictment read, prays judgment of the said indictment, because he says that on the day of taking the inquisition aforesaid, and long before, he was, and from thence hitherto hath been, and still is, Lord Staf ford, Baron Stafford, and the state, degree, title, and honour of Lord Stafford, Baron Stafford, on the day of taking the inquisition aforesaid, and long before, had and enjoyed, and still has and enjoys, and this he the said Richard Stafford Cooke, &c. is ready to verify, &c. Wherefore, &c." On a former day, Talfourd obtained a rule nisi for quashing this plea, on the ground that it was informally pleaded, and pleaded for the mere purpose of delay.

Campbell now shewed cause. It is not pretended that if this plea is well pleaded in point of form, it is not a good plea to this indictment. Then if it be informally pleaded, the proper course for the prosecutors to adopt is to demur; because it is quite unusual to call upon the Court to quash a plea in abatement, for informality. The effect of this application is to deprive the defendant of his writ of error, for if this plea should be quashed, he would have no remedy. No case can be cited on the other side in which the Court has ventured to quash a

plea in abatement. In Thomas v. Smithies (a), the Court of Common Pleas refused to quash even a nonsensical plea in abatement, but left the party to sign judgment at his peril. The objection, it seems, to the plea is, that the patent by which the defendant's peerage is created; has not been set out, and that the defendant has not deduced his pedigree from the person under whom he derives his title; but this seems unnecessary, Rex v. Knowles (b), Co. Lit. 16. b. and n. 3. Countess of Rutland's case (c), 2 Hale's P. C. 240. But the preliminary objection is, that the Court cannot quash this plea, let it be never so informally pleaded. [Abbott, C. J. We are certainly not called upon to decide the sufficiency of the plea; the question is, whether we shall quash it, as being utterly bad. It certainly is a strong measure to quash the plea altogether; we will hear the other side.]

Scarlett and Talfourd contrà. The object of this plea is, in the first place, to obtain a different mode of trying the defendant's supposed title to the peerage, than that prescribed by law; and, in the second, to delay public justice. The question is, whether this is a bonâ fide plea ; for if it be not, the Court, in its discretion, will quash it. In all criminal proceedings, if a plea be bad, or improperly pleaded, the Court, in its discretion, will either quash it on motion, or leave the prosecutor to demur. This discretion is not exercised with reference so much to the degree of informality apparent on the face of the plea, as to the degree of injury and delay by which the purposes of public justice may be affected. With respect to indictments, it is laid down in Com. Dig. tit. Indictment (H), that a defective indictment may be quashed upon motion; and there seems no good reason

(a) 4 Taunt, 668.

(6) 1 Ld. Raym. 10. (c) 6 Rep. 53.

1824.

The KING

v.

COOKE.

1824.

The KING

v.

COOKE.

why the same power should not be exercised by the Court with respect to defective pleas. Here is a plea obviously pleaded for delay, and which ought not to be encouraged. In Rex v. Grainger (a), the Court quashed a dilatory plea, because there was no affidavit to verify it; this at least is an authority to shew, that the Court does exercise a discretion where the plea is pleaded for delay.

ABBOTT, C. J.-No instance has been mentioned in which the Court has, upon motion, quashed a plea of this description; and I believe none can be found. The case of Rex v. Grainger is no authority for this purpose, because the plea there not being verified by affidavit, according to the statute (b), it could not be received at all as a plea. Indictments may be quashed on motion, but the same reason does not apply to pleas, which stand upon a very different footing. Whatever may be our opinion as to the merits or demerits of this plea, we think it too strong a measure to quash it on motion.

The other Judges concurred.

Rule discharged.

(a) 3 Burr. 1617.

(b) 4 and 5 Anne, c. 16. s. 11.

Monday, February 9.

nal cases that

tions are ad

The KING V. MEAD.

It is a general INDICTMENT for perjury assigned upon evidence rule in crimi- given by the defendant upon the trial of an information dying declara- in the Court of Exchequer, against a person named James Law, whom the defendant had sworn to have been premissible only where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration; therefore where a defendant had been convicted of perjury, and had obtained a rule nisi for a new trial, pending which he shot the prosecutor, and on shewing cause against the rule for a new trial, an affidavit of the dying declaration of the prosecutor, relating to the transac tion out of which the prosecution for perjury arose was proposed to be read: Held,

that it was inadmissible.