The opinion of the court was delivered by
Gibson, C. J.No adjudged case supports the dictum of Lord Holt in the Queen v. Goddard, that a defendant call plead over but in treason or felony, nor has it to the extent been adopted by any elementary writer but Lord Hale, who of course, had not in view a distinction presently to be mentioned which has sprung up since his day. — Hawkins, after noticing the defendant’s privilege in felony, says that in this respect an appeal or indictment differs from an appeal of mayhem, and from all other civil actions except certain writs of assize; ‘for it seems to be an established rule,” he adds, “that in appeals of mayhem and all other civil actions^ those above named only excepted, if a plea in abatement triable by the country be found against the defendant, he shall not afterwards be suffered to plead over any new matter, but final judgment shall be given against him.” B. 2, ch. 23, sec. 128. He is certainly for restricting the judgment of respondeat ouster to eases of felony if the plea in abatement or bar has been determined against the defendent on matter of fact; but nothing is said by him to affect the right of the defendant to a like judgment in cases of misdemeanor where such a plea has been determined against *264him on matter of law. Mr. Starkie thinks a defendant ought on principle, to be concluded even in felony where facts necessary to constitute guilt, have been admitted by him on demurrer. Criminal Pleading, 348, Mr. Chitty adopts the principle of Lord Holt, but in referring to the Queen v. Goddard, expresses a doubt of its authority. Criminal Law, 461 note. Lord Hale in his pleas of the crown, 248, 256, 255, says that judgment of respondeat ouster is infavorem vitoe; whence an inference that it is an indulgence, and peculiar to capital cases: yet an undoubted practice has sprung up since his time, by which, in cases of misdemeanor, the defendant has judgment of respondeat ouster upon an adverse determination of his plea in abatement in matter of law. This stops short of the rule in felony, by which no plea; whether in abatement or in bar, or whether determinable as matter of law or matter of fact, precludes the defendant from the benefit of the same judgment. But it is well settled by authorities collected in Starkie’s Crim. Plead. 436, and Chitty’s Crim. Law, 451, that if a plea in abatement be determined against the defendant on demurrer, the judgment is that he' answer over; and why not if a special plea in bar be thus determined, provided it contain no confession of facts that constitute guilt? The difference which there is between the effect of a verdict and of a demurrer, in the determination of a plea in abatement, arises from the presumption the law makes that every plea which is found to be false in fact, was known to be so by him who pleaded it, and he is concluded for having pleaded false; but he is not presumed to have known the matter of law which he left to the court, and is consequently not to be concluded by the determination of it. Chitty Crim. Law, 451. Now it is difficult to see why the same just and salutary discrimination shall not be made in x-espect to the determination of a special plea in bar. Whether the defendant has already had a verdict of acquittal, is a fact of which he is competent to judge; but whether it were on a sufficient indictment, is a matter which he leaves to the court, and is presumed for that reason not to know, so that consistently with the principle indicated by Mr. Chitty, he may at the same time reserve the benefit of his plea of not guilty. But it seems that in the King v. Gibson, 8 East, 112, Lord Ellenborough has said that if pei’Sons indicted of misdemeanors had been considered entitled to the px-ivilege of dreading double as in felony, there would have been many instances of it in the books. The argument, then is found at last to rest on a technical rule of pleading which, having been abolished in civil cases in order to allow a defendant as many pleas as justice may require, where property to the value of a shilling is involved, is nevertheless, we are told, to be sternly enforced where the defendant’s character, liberty, and perhaps the peace of his family, *265are jeoparded. No case can be produced where the point was so ruled; for the King v. Gibson was itself the case of a plea in a abatement, and if it were not, the case is not authority here, nor to be cited as such. The same justice, not to say humanity, which originally dictated a judgment of respondeat ouster in felony, dictates the same judgment in cases of misdemeanor where the defendant's special plea in bar has been determined against him on matter of law, and the case ought therefore to have been put to the jury on the plea of not guilty.
Judgment reversed.