in England, the birth right of the subject: from the earliest periods of English law, from the days of Alfred to this time, it was the absolute right of the prisoner to plead as many pleas as were necessary and proper for his defence, and he boldly challenged any lawyer to produce a single dictum of the worst of the English courts, in the worst of times, to prevent a prisoner from pleading doubly in bar of the prosecution. The reason on which the statute of Anne purports to have been made is, that as duplicity was not allowed in any one plea, and it was frequently proper that several defences should be made, it was deemed right to allow those several defences to be made in several pleas. The reason applies as strongly to criminal as to civil cases, for what can be more reasonable than that a prisoner who has been formerly convicted of the same offence with which he is charged, and who also knows that he has not been guilty of the offence at all should be allowed to plead "not guilty," and "autrefoits convict" at the same time? If then the common law had not given the right of double pleading to prisoners, surely the courts ought by a liberal construction of the statute of Anne, to extend the benefit of it to criminal cases.

But at common law double pleading is allowable. If a prisoner has been convicted, and has craved the benefit of clergy which has been extended to him, this circumstance may be pleaded at the same time that he pleads

"not guilty." So a pardon may be pleaded with the general issue. He referred to Coke's Entries, 355. a. 356. a. and to Crown Circuit Assistant, p. —, to shew instances of double pleading. 1 Hale, 467, on an indictment for murder, the prisoner may plead not guilty as to the murder, and a pardon for the interfectio felonica, or manslaughter. 2 Hale, 239; ib. 248. If a special plea, whether of law or fact, as a plea of pardon in an indictment, or a release in an appeal, or autrefoits acquit, or attaint, be found against the prisoner, he shall be allowed to plead over to the felony not guilty, and this in favorem vitæ. If then a prisoner may plead a special plea in bar, and the general issue, why not plead several special pleas in bar? 2 Hawkins, ch. 23, sect. 128-137, and ch. 34, was cited by him to prove that a prisoner might plead as many several pleas in abatement as he thought proper, unless they be repugnant to each other-that they may be all pleaded at the same time even though they do not require the same kind of trial, as one by the record, another by the country; that if the pleas in abatement are all triable by the country, the defendant must, at the same time, plead with them all his matters in bar, and also plead over to the felony; and that by the better opinion, where the matter in abatement is to be tried by the record, the defendant ought at the same time to plead over to the felony; that divers pleas in bar may be pleaded at the same time with the general issue, and that in appeals of

death, a release and not guilty may be pleaded, and the plea of "autrefoits convict on the party's own confession," and "not guilty" may also be pleaded. Rastall's Entries, 49. a. b. Two pleas in abatement, and two special pleas in bar were pleaded at the same time. In this country the practice in the district courts has been to allow several pleas in bar, and the general issue at the same time. In Bailey's case before the district court of Williamsburg, in 1798, the prisoner pleaded two several pleas in bar and the general issue: the pleas were received, and the attorney for the commonwealth replied nul tiel record to the two special pleas. He said that the cases cited by Mr. Nicholas from Salkeld, Willes, and Strange were not applicable to this case, because they were all in fact civil cases.

Mr. Tazewell controverted the proposition laid down by Mr. Nicholas, viz. that in criminal cases, defects in point of form may be noticed on general demurrer; on the contrary he insisted that no defects of form in the pleas ought to be taken advantage of, on demurrer, unless they are alleged specially as causes of demurrer. It is true that in indictments, great strictness has always been observed, and that the statutes of jeofails do not extend to indictments, and therefore an indictment defective in point of form is not aided by a verdict; but the reason why they do not so extend, is to be found in the

tenderness felt by the courts for the lives of the subject: that rule is adopted in favorem vitæ. But it does not follow that because the statute of jeofails in favorem vitæ don't apply to the accusation, therefore it don't apply to the defence; that construction would be against life. If defects in point of form might be taken advantage of against the prisoner on general demurrer, the consequence might be that his life might be endangered by mispleading, which is not allowable. 2 Hale, 257. He might be entrapped by the commonwealth. The plea of not guilty is generally put in ore tenus-no regard is paid to form: the attorney might demur generally, and the court regarding form on this general demurrer would decide against him on this plea, on the decision of which his guilt or innocence depends, and thus hang him for his mispleading. From these considerations, he inferred, that even if double pleas are not allowable, the fault cannot be noticed by the commonwealth, because that is not specially assigned as cause of demurrer. He also observed that it is now too late to object to the pleas because double, for this reason, that they have been received by the court, and the question before this court is not whether they ought to have been received, but whether each plea is in itself good.

As to the repugnancy of the pleas; repugnancy is matter of form and cannot be noticed on general demur

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rer. The demurrer must be considered as a separate general demurrer to each plea, and as such the truth of each plea is admitted; there cannot therefore be a repugnance between them, because if so, one of them must be false. Besides it is too late to object to them for repugnancy; if repugnancy is a fault, it is a ground for not receiving them, but here they have been received. He contended however that repugnancy in pleas in bar was in fact no objection at all: it results from the right to plead doubly, that the prisoner has a right to plead repugnantly. In England, payment and non est factum cannot be pleaded to a deed, because the defendant cannot plead two pleas without leave of the court who will take care not to permit him to plead inconsistently; but here the right to plead doubly is given in civil cases by the statute, and does not require the permission of the court; here therefore a man may plead payment and non est factum. In criminal cases, as before shewn, the defendant has a right to plead doubly without asking permission, therefore he may plead repugnantly. The pleas of " autrefoits convict" not guilty" are certainly repugnant. So also the plea of a release (on an appeal) and not guilty, and yet they may of right be pleaded together. 2 Hale 255, 6, 7. Hawk. ut supra. In Bailey's case Judge Tucker dissuaded the attorney from demurring, and advised him to reply nul tiel record, which shewed that he had no objection to receiving repugnant pleas. The cases cited by Mr. Nicho

and "