authorities, and he himself is a great authority, that the prosecutor, public or private, cannot abandon his indictment after the relevancy is pleaded to. He has no right to give it up. He has no more right than any other litigant has to give up any case without the leave of the Court. I apprehend you cannot reasonably have any doubt as to this point, that no prosecutor can of his own authority desert the diet, or abandon the libel, or prevent the Court from discussing that libel. The matter must be judged of by the Court. This is expressly laid down by Mr Hume, and I am surprised my learned friend should use his own authority against Mr Hume's authority, without offering any argument upon the subject. "It is also a case which sometimes happens," says Mr Hume, (Trial for Crimes, vol. ii. p. 28.)" that though still resolved on bringing the pannel to justice, the prosecutor sees cause, however, not to insist on the trial of him on that particular libel. Because, perhaps, he has discovered some flaw in it or the executions thereof, or on account of new and material evidence which has lately come to his knowledge, and which requires an addition to his list of witnesses, or may occasion a difference in the laying of his charge. In situations of this sort, which, notwithstanding all due pains on the prosecutor's part, must sometimes happen, it is necessary to the advancement of justice that he have the power of deserting his present libel, without prejudice to his right of insisting anew at the time, and in the form which he shall find advisable. If, indeed, he had the absolute and uncontrolled privilege of throwing up his process as often, and for what causes soever he pleased, this would be dangerous to the pannel, who might thus, under false or affected pretences, be harassed with repeated libels. Our custom does not, therefore, trust the prosecutor to that extent, but allows him only to move the Court to desert the diet pro loco et tempore; in which request they may refuse to gratify him, if they see cause to believe that he intends any thing oppressive or improper, or if they are not satisfied that there are good reasons for such an indulgence. It is true the style has crept into practice, of the prosecutor deserting the diet, because it so often happens that his motion for such a purpose is successful. But in truth this is a loose and inaccurate expression for the act of desertion is not his act, but that of the Court, without whose permission and deliverance the process cannot be withdrawn in this temporary form." There is a great deal more to the same effect.

Lord GILLIES.-Mr Drummond says this is not a desertion of the diet, but an abandonment of the indictment.

Mr CLERK.-It is clear that the whole of this passage applies to the case now before the Court. I shall put this case to your Lordships. Suppose that a libel is serv ed on a pannel with a list of witnesses annexed, that the pannel objects to the relevancy, that the Court takes the libel into consideration, and that, in the course of the argument, the prosecutor discovers he could strengthen his case by throwing up that libel. Suppose that he therefore brings a new libel with a new list of witnesses: May not the pannel reasonably object, I have disclosed my witnesses in pleading to the former libel, and therefore it is improper the prosecutor should have power to throw up the former and bring a new libel accusing me for the same crime?

What Mr Hume says is, that the Court may allow the prosecutor to throw up, or desert his libel, but that he cannot do so without leave of the Court. Were the prosecutor to be allowed of himself to desert his indictment and bring a new one, he might make such an attack on the prisoner, as the prisoner might find difficulty to parry. That would be a hardship on the prisoner, and one produced partly by the discussion on the first indictment. And if the first indictment were to be discussed, and the pannel to be tried on it, the case might be such, or the very evidence such, as to entitle him to an absolvitor. That is an important consideration. The authorities are clear with me. The prosecutor of himself has no right to throw up his libel after it has been pleaded to. "The act of desertion is not his act, but that of the Court, without whose permission and deliverance the process cannot be withdrawn in this temporary form."

A private prosecutor must give caution to insist in his libel. "Indeed if he be a private prosecutor, the Court have already caution from him to insist on that libel, and to this they may hold him and refuse to give new letters if they see cause. Accordingly, in the debate in the case of Archibald, the prosecutor frankly disowns all pretensions to any such arbitrary power. His Majesty's Solicitor represents, "that he observes, in the information on the part of the pannel, very alarming consequences are endeavoured to be grafted on the doctrine pled in behalf of the prosecutor in this case, as if it gave to the public prosecutor a very arbitrary power of oppressing the subjects in this country, by deserting diets as often as his fancy suggested. But as all the alarming consequences pointed out are founded

upon the supposition of a doctrine which he never meant to plead, he thinks it now proper to have this matter clearly understood, as the public prosecutor never pleaded, nor does he desire it to be believed by the subjects in this country, that he has any arbitrary power of deserting diets without the authority and intervention of the Court; which circumstance totally removes all those apprehensions which the Counsel for the pannel has grafted upon the supposition that an arbitrary power of deserting diets was claimed in this or in any other case by the public prosecutor."

Really, my Lord, after reading that passage, and the whole of the passages in Mr Hume, I submit that it is quite idle to maintain that the public prosecutor has it in his power in all cases to desert his libel, and throw up his process. He may do so before the pannel has pleaded; but the moment the pannel has joined issue with him, then the pleasure of the Court must be taken as to a new trial.

The assertion is manifestly groundless, that the public prosecutor may abandon an indictment after it has been pleaded to, and bring a new indictment. Before such pleading he may execute a new indictment, which is understood as an abandonment of the old. But it is contrary to principle and authority to suppose, that, after a pannel has pleaded, the prosecutor may throw up his libel, and have recourse to a new indictment. He may be compelled to discuss the libel to which the pannel has pleaded. If it be thrown out upon the relevancy, the prosecutor may bring forward a new indictment. But suppose that it is not thrown out upon the relevancy, that the case comes to trial, and that the pannel obtains an absolvitor upon that trial, the prosecutor cannot bring a new trial for the offence there charged. Therefore, I say that the public prosecutor has no right, without the authority of the Court, to abandon this indictment; and although he has taken upon himself to execute a new indictment, he cannot abandon the old indictment without the authority of the Court. If this proposition is true, the public prosecutor must do something more, or you must do something more for him, before he is entitled to proceed on the indictment before your Lordships.

As to the case of Colonel Charteris, we are told in answer, that for some time past it has been the practice for the public prosecutor to abandon a first indictment, without taking any notice of it to the Court at all, but merely by executing a new indictment. The pannel may no doubt be tried on this new indictment, if he is more afraid of the old than the new one. But whenever the point of objection is

stated, you must go back to the principles and judgments of your Lordships in parallel cases; and upon these it is clear, that till the public prosecutor gets the first indictment out of his way, which he has not yet done, he cannot proceed on the second.

If he should move to desert the diet simpliciter on the first libel, which he may do, the question will be, Whether he is entitled to go on de plano with the second? We have been only paving the way for this last question, which is the true subject for your consideration. The question comes to be, Whether the public prosecutor, upon now giving up the first libel, is entitled to proceed on the second? We submit that he is not. For it appears from the case of Charteris, that the Court would not allow the public prosecutor to have in dependence several libels at the same time. They forced him to abandon three of his libels altogether, and then Colonel Charteris went to trial on the fourth. Supposing it had been dismissed upon the relevancy, and that the public prosecutor had been allowed to depart from that libel by the Court, he might have brought a new indictment. But I ask this, upon which the whole point now depends; Would it have been competent for the public prosecutor, after having been forced by the Court to withdraw three of the libels, before the pannel was obliged to plead to the fourth one, to have on the same day executed these other three libels, and forced the pannel to go on and plead to them? This would have been considered so great an evasion of the justice done by the Court just before, that it would not have been endured. No public prosecutor could have set his face to that. Yet, where is the difference between that proceeding and the proceeding in the present instance? The first libel here is in dependence, and a new one has been executed upon the same grounds, though not in the same form. The prosecutor executes a new indictment before the old one has been disposed of. Is there any difference between this case and the case of Colonel Charteris, as it would have existed, if the public prosecutor, after abandoning three indictments, had proceeded in the manner which I have just supposed?

Your Lordships have been told, that there is no intention to do any injustice to my client. I do not say there is. I say they have gone wrong in point of form-in point of power-they have no right to proceed as they are doing. Though the public prosecutor now may not be disposed to do injustice, his successor may; and we might as well set afloat

the whole forms of the Court at once, upon saying that the public prosecutor intends no injustice.

It was said, that the Counsel for the pannel had notice that a new indictment was to be executed, and that the former indictment was to be abandoned. I am one of the parmel's Counsel, and I did not get notice of this. But what signifies the notice? It is binding on nobody-it is not binding on the prosecutor, or on the pannel. Such a thing could not be done without the Court. It was very well in my Lord Advocate to have such polite intentions toward the pannel; but it is not for his Lordship to determine this matter. It is the Court, which are to do or not do what he wishes, according to their opinion of the merits of the case.

This kind of specialty pleaded by the prosecutor signifies nothing. Down to the present hour, my client and his Counsel have been forced to the consideration of both indictments; and no little consideration has been given to both-and that is the hardship which it is the object of the law to prevent. Upon the whole, therefore, I hope that I am not obliged to answer this indictment before the first shall be disposed of-and then I am entitled to the benefit of full inducia, after the first libel shall be abandoned. am not bound to answer to this indictment without any warning. If the prosecutor had no right to execute that indictment, it must be considered as not executed at all. Fifteen days, at all events, must be allowed after the first indictment shall be legally abandoned.

Mr JEFFREY.-There are only two points

I

LORD ADVOCATE.-I object to more than two Counsel for the pannel in reply.

LORD HERMAND.-As many of the pannel's Counsel as please may speak.

LORD ADVOCATE.-As many of them as wished might have spoken before the Crown was called upon to answer, but they cannot now all be allowed to speak. It is also irregular for a junior Counsel to speak after a senior Coun

sel.

Mr JEFFREY.-What have you to do with that?