the prisoner stood mute of malice, and not by the visitation of God. Whereupon the court immediately passed sentence of death upon the prisoner, who was accordingly executed on the Monday following.

A prisoner who had been previously tried and convicted, but whose trial was deemed a nullity on account of some informality in swearing the witnesses, was again arraigned upon an indictment for the same offence, and refused to plead, alleging that he had been already tried. Littledale, J., and Vaughan, B., ordered a plea of not guilty to be entered for him under this section.-R. v. Bitton, 6 C. & P. 92.

A person deaf and dumb was to be tried for a felony; the judge ordered a jury to be empannelled to try whether he was mute by the visitation of God; the jury found that he was so; they were then sworn to try whether he was able to plead, which they found in the affirmative, and the defendant by a sign pleaded not guilty; the judge then ordered the jury to be empannelled to try whether the defendant was now sane or not, and, on this question, directed them to say whether the defendant had sufficient intellect to understand the course of the proceedings to make a proper defence, to challenge the jurors and comprehend the details of the evidence, and that, if they thought he had not, they should find him of non-sane mind.—R. v. Pritchard, 7 C. & P. 303.

It seems that where a prisoner who is called on to plead remains mute, the court cannot hear evidence to prove that he does so through malice, and then enter a plea of not guilty under this section; but a jury must be empannelled to try the question of malice, and it is upon their finding that the court is authorized to enter the plea.— R. v. Israel, 2 Cox, 263.

A prisoner, when called upon to plead to an indictment, stood mute. A jury was empannelled and sworn to try whether he was mute of malice or by the visitation of God. A verdict of mute of malice having been returned, the court ordered a plea of not guilty to be entered on the record.-R. v. Schleter, 10 Cox, 409.

A collateral issue of this kind is always tried instanter by a jury empannelled for that purpose. In fact, there is properly speaking no issue upon it; it is an inquest of office. No peremptory challenges are allowed.—R. v. Radcliffe, Fost. 36, 40. The jury may be chosen amongst the jurors in attendance for the term of court, but must be returned by the sheriff, on the spot, as a special panel. -Dickenson's Quarter Sessions, 481. If the jury return a verdict of "mute by the visitation of God," as where the prisoner is deaf or dumb, or both, a plea of not guilty is to be entered, and the trial is to proceed in the usual way, but in so critical a case, great diligence and circumspection ought to be exercised by the court; all the proceedings against the prisoner must be examined with a critical eye, and every possible assistance consistent with the rules of law, given to him by the court.-R. v. Steel, 1 Leach, 451. In the case of R. v. Jones, note, 1 Leach, 452, the jury returned that the prisoner was "mute by the visitation of God." It appearing that the prisoner, who was deaf and dumb, could receive and communicate information by certain signs, a person skilled in those signs was sworn to act as interpreter and the trial then proceeded.

It would seem that now, as whether the prisoner stands mute of malice or by visitation of God, a plea of not guilty is to be entered, the only reason why a jury must be sworn to enquire whether the prisoner stands mute of

malice or not is to put the court in a position to know how to act during the trial, as above stated in Steel's and Jones' cases.-R. v. Berry, 13 Cox, 189.

By section 255 of the Procedure Act, see post, it is enacted that: "If any person indicted for any offence be insane, and upon arraignment be so found by a jury empannelled for that purpose, so that such person cannot be tried upon such indictment, or if, upon the trial of any person so indicted, such person appears to the jury charged with the indictment to be insane, the court before whom such person is brought to be arraigned, or is tried as aforesaid, may direct such finding to be recorded, and thereupon may order such person to be kept in strict custody until the pleasure of the Lieutenant Governor be known.

146. In any plea of autrefois convict or autrefois acquit it shall be sufficient for any defendant to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment.-32-33 V., c. 29, s. 35.

This clause is taken from the 14-15 V., c. 100, s. 28, of the Imperial Statutes.

It is a sacred maxim of law that "nemo bis vexari debet pro eadem causa," no man ought to be twice tried, or brought into jeopardy of his life or liberty more than once, for the same offence.

"This section very properly," says Greaves, Lord Campbell's Acts, 31, "abbreviates the form of pleas of autrefois acquit and autrefois convict, and renders it unnecessary to set forth the previous indictment, and to make the many averments of identity, and so forth, which were requisite before the passing of this statute."

These pleas are of the class called special pleas in bar. The following is the form of a plea of autrefois acquit, in answer to the whole of the indictment :

And the said J. S., in his own proper person cometh into court here, and having heard the said indictment read, said, that our said Lady the Queen ought not further to prosecute the said indictment against the said J. S., because he saith that heretofore, to wit, at (describe the court correctly) he, the said J. S., was lawfully acquitted of the said offence charged in the said indictment and this, he, the said J. S., is ready to verify. Wherefore he prays judgment, and that by the court here he may be dismissed and discharged from the said premises in the present indictment specified.-Archbold, 132.

It is not necessary that the plea should be written on parchment; sec. 103 of the Procedure Act, ante.

If there is more than one count in the indictment it is better to plead to each.-R. v. Westley, 11 Cox, 139. The defendant may, at the same time, plead over to the indictment, in felonies, by adding "and as to the felony and larceny (as the case may be) of which the said J. S. now stands indicted, he, the said J. S., saith that he is not guilty thereof; and of this, he, the said J. S., puts himself upon the country." If, however, the defendant pleads autrefois acquit, without, at the same time, pleading over to the felony, after his special plea is found against him, he may still plead over to the felony.-Arch. bold, 133. But it seems that in misdemeanors, if the defendant pleads autrefois acquit or autrefois convict, and the jury find against him on this issue, the verdict operates as a conviction of the offence, and nothing remains to be done but to sentence the prisoner.-Archbold, 134; 1 Chit. 461, 463; 1 Bishop, Cr. Proc. 755, 809, 811, 812, R. v. Bird, 2 Den. 94. As a consequence of this, it has been held, in England, that, in misdemeanors, the defendant cannot, even by separate pleas, at the same

time plead autrefois acquit or autrefois convict, and not guilty.-R. v. Charlesworth, 9 Cox, 44; 1 B. & S. 460. See also R. v. Taylor, 3 B. & C. 502. Though in a later case of misdemeanor a plea of not guilty seems to have been put in with a plea of autrefois acquit.-R. v. Westley, 11 Cox, 139.

In felonies, the jury cannot be charged at the same time with both issues, but must first determine the plea of former acquittal.-1 Chit. 460; R. v. Roche, 1 Leach, 134. The prisoner has the right of challenge in the usual way; 2 Hale, P. C. 267d; R. v. Scott, 1 Leach, 401. See remarks, post, under sec. 163, as to challenges. If the verdict is in favor of the prisoner, and finds the plea proved, the prisoner is discharged, and the trial is at an end. If, on the contrary, the jury find the plea "not proved," they are charged again, this time to inquire of the second issue, i.e., on the plea of not guilty, and the trial proceeds as if no plea in bar had been pleaded.-1 Chit. 461; 2 Hale, 255; R. v. Knight, L. & C. 378. They need not be sworn de novo to try the second issue.-R. v. Key, 2 Den. 347. Formerly when such pleas contained the first indictment, with the judgment, etc., detailed at full length, the prosecutor could demur to it, and then the court pronounced on that demurrer, without the intervention of a jury; but now, with the general form allowed by the statute, the prosecutor meets the plea with a general replication, entered only when the record is made up, after trial, though not necessarily actually pleaded, and the issue must be determined by a jury.-See, however, R. v. Connell, 6 Cox, 178; Archbold, 133; Note by Greaves, 2 Russ. 62. See form and proceedings, R. v. Tancock, 13 Cox, 217.

This replication, and the similiter (as to which see sec.