The law upon this point is very clear — you can find it anywhere — in every book you open it stares you in the face. Thus in 11 Vin.Abr. 65 the certificate of the ordinary is matter of fact — not of law.
Johns, J.The evidence of the defendant to support his plea is a record of the State of Maryland. Is it conclusive here? (See 1 Doug. 1, 1 Dali. 261.)
Bassett, C. J.It is clearly established in Doctrina Placitandi that if a plea in abatement be overruled, on issue joined the judgment is final. So, per curiam in this case.
Then Miller moved the Court to withdraw his plea and plead in chief and cited State Constitution, Art. 6, s. 7.
Miller.Comb. 419 was by Lord Holt, one of the brightest luminaries of the law. In [1] Dali. 458, Chief Justice McKean does not contradict the principles I have laid down.
Bassett, C. J.However hard the case may be, we cannot grant defendant’s motion. It is to alter, not to amend his plea, and the principle would lead to a thousand inconveniences. With regard to Comb. 419, the Statutes of Amendments do not extend to penal actions. Bonfield v. Milken, 2 Burr. 1099. My Lord Holt was a great man, and I think probably Comberbach is mistaken.
Motion denied.
Note. See the case of Rex v. Perkins cited in Chedwick v. Hughes, Carth. 465.