¶1The insufficiency of the defendant’s plea is established by the cases of Commonwealth v. Harris, 8 Gray, 470, and Withipole’s case, Cro. Car. 147.
¶2But the court are of opinion that the defendant ought to have been permitted to plead over to the indictment, after his plea in bar thereof was adjudged bad, although the indictment was not for a felony, but for a misdemeanor. By the English law, when a demurrer to a plea in bar of an indictment for felony is sustained, the defendant is allowed to plead over and go to trial before a jury ; but not when a demurrer to his plea in bar of an indictment for a misdemeanor is sustained. In the latter case, final judgment is rendered against him. The King v. Taylor, *505 D. & R. 422, and 3 B. & C. 502. 1 Deac. Crim. Law, 357. In this commonwealth, however, no distinction is recognized, in this matter, between indictments for capital offences and indictments for misdemeanors. In both, the defendant may plead over to the indictment, when a demurrer to his plea in bar is sustained. This was decided, as to capital indictments, in Commonwealth v. Roby, 12 Pick. 510, and Commonwealth v. Wade, 17 Pick. 402; and was declared, by Parker, C. J., to be the law as to indictments for misdemeanors, in Commonwealth v. Goddard, 13 Mass. 455. And so the law has since been understood and administered. Commonwealth v. Peters, 12 Met. 389. Commonwealth v. Goodenough, Thach. Crim. Cas. 132, 137. Commonwealth v. Curtis, Thach. Crim. Cas. 202, 211. See 1 Bennett & Heard’s Lead. Crim. Cas. 343, 344.
¶3Exceptions sustained.