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indictment, viz. the theft committed at the inn at Dunfermline; but reserving to the public prosecutor to proceed against the pannel on that charge in a new indictment, if he shall deem it proper so to do; and therefore restricts the indictment to the two charges of robbery.*

JOHN LINDSAY CRAUFORD and JAMES BRADLEY.

Forgery of writings. January 8. 1812.

Diet continued on motion of pannels till 3d February; did not plead; in the mean time, served with a new libel to stand trial on the 3d of February. Trial proceeded accordingly.

NAPIER and GROTTO. Murder and Robbery.

March 31. 1812.

After pleading to the indictment, the Prosecutor passes from the charge of murder, and all the charges of robbery, except the robbery alleged to have been committed on Peter Bruce and J. Buchan Brodie.*

The Court find the indictment, as limited by the foregoing minute, relevant to infer the pains of law.

THOMAS SOMMERVILLE. Perjury. January 25. 1813.

Pleaded not guilty. Debate on relevancy; and informations ordered to be given in; and diet continued till 15th February. In the mean time, a new indictment served on the pannel, calling him to stand trial on said 15th February. Trial proceeded accordingly; and Sommerville convicted. Imprisoned, fined, and put on the pillory.

JOHN HORN. Selling Forged Notes. June 13. 1813.

Pleaded not guilty. Informations ordered, and diet continued till 12th July. In the mean time new libel raised, and served for trial on 6th July; when pannel again pleaded not guilty, and the order for informations renewed; on advising which, libel was found relevant, on 15th July, when pannel pleaded guilty, and was sentenced to transportation.

• Many cases of abandoning or passing from a part of the charge might be produced; but it must be admitted to be a common practice, as, for example, in cases of child-murder, where the charge at common law is frequently passed from, upon confession of the statutory offence. H. H.D.

BELL and DOUGLAS. Uttering Forged Notes.
January 9. 1817.

Diet against Douglas deserted pro loco et tempore. Bell pleaded guilty. The Court ordered informations on the relevancy of the indictment, and continued the diet against the pannel John Bell, till 3d February. In the mean time, a new libel served for 10th February, when trial proceeded; and Bell pleaded guilty again, and had sentence of transportation, the libel being restricted.*

ADDITIONAL MINUTES of certain CASES beyond the Period of Search.

ISOBEL NICOLSON. Fire Raising. June 25. 1711.

Indicted and accused, &c.

The Lord Justice Clerk and Commissioners of Justiciary, at desire and with consent of her Majesty's Advocate, desert the diet of the first indictment raised at the instance of her Majesty's Advocate against the said Isobel Nicolson, pannel; but prejudice to him to insist in his other indictment already raised and execute against the pannel, as accords.

PATRICK HAMILTON of Green. Murder. July 30. 1714.

Mr Duncan Forbes, his Majesty's Advocate, consents to the deserting of the diet against Patrick Hamilton, younger, of Green, upon this libel, without prejudice to him to insist in the new indictment raised at the instance of his Majesty's Advocate against him. (Sic Sub.) DUN. FORBES.

The Lord Justice Clerk and Commissioners of Justiciary, in respect of the above consent, desert the diet against the above Patrick Hamilton, younger, of Green, upon this in

Note.-There are in this period various examples of diets deserted, on the motion of the prosecutor, pro loco et tempore, after pleading to the charge, and after interlocutor of relevancy, which it is thought unnecessary to produce, as the competency of that proceeding is settled law. H. H. D.

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dictment, without prejudice to the pursuer to insist upon the new indictment, as accords.

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(Signed) AD. COCKBURN, J. P. D.

This after informations given in and recorded, and several adjournments of the diets.

ANDREW FERNIE, and Others. Indicted for Sedition. Debate; and Informations ordered. May 24. 1720.

July 28.-Mr Walter Stewart, his Majesty's Solicitor and Advocate-depute, for his Highness' interest, judicially consents to the deserting of the diet against the within named and designed Andrew Fernie, &c. without prejudice to his Majesty's Advocate of insisting against such against whom new libels are raised, as accords.

The Lord Justice Clerk and Commissioners of Justiciary, in respect of the above consent, desert the diet against the said Andrew Fernic and others, above named, without prejudice to his Majesty's Advocate of insisting against such of them against whom new libels are raised, as accords.

(Signed) AD. COCKBURN, J. P. D.

The second libel being called,

Intran Andrew Fernie, &c. Indicted and accused, &c. Debates and informations ordered. The informations afterwards given in, found relevant, and trial proceeds.

JAMES INGLIS, Indweller in Leith. Indicted and Accused as guilty of Theft, Robbery, and Prison-breaking, &c. August 24. 1720.

Diet continued till 26th September, and afterwards to 17th October. On which day,

Intran James Inglis. Indicted and accused, ut in die precedenti.

Mr Robert Dundas, his Majesty's Advocate, for his Highness' interest, judicially consents to the deserting of the diet of the within indictment against James Inglis, pannel, without prejudice of insisting in the new indictment, as accords. (Signed) Ro. DUNDAS.

The Lords Commissioners of Justiciary, in respect of the above consent, desert the diet upon this libel against the

said James Inglis, without prejudice of insisting on the new libel, as accords.

Intran James Inglis, pannel.

Indicted and accused on the new indictment. Informations ordered.

MONCRIEFF stated, That in compliance with the order of the Court, a search had been made in the Books of Adjournal for precedents applicable to the question now before the Court. That a search from the year 1777 downwards, had first been made, and the result had been communicated to the pannel's Counsel some days ago; but that after this a farther search had, it seems, been made, which appears to go back to the beginning of the last century; and the statement of the cases so found was only communicated late on this day. (May 23d.)

That on the part of the pannel it may now be assumed, that the Court has before it every one example which his Majesty's Advocate has been able to discover, in the course of more than a century, of any proceeding which he thinks calculated to support the measure which has been adopted in this case, or to meet the objection founded on the clearest principles of law.

That on the result of this search the following remarks are humbly submitted:

1st, That there is not one example in the whole practice of the Court, in which the same objection which is here insisted on was stated to the Court, and repelled by a judg

ment.

2d, That the Lord Advocate has printed the statement with regard to those cases on which it is presumed he means to rely; and that, as far as the pannel's Counsel can discover, the only cases in the long period which have the smallest tendency to shew any practice in favour of the prosecutor, or which even require notice as having such a tendency, are two cases in 1714 and 1720, one case in 1804, two in 1813, and one in 1817. Between the year 1720, and the year 1804, the prosecutor has not been able to find one single case in the record, in which, after a pannel had pleaded to an indictment, a libel was served and sustained without a previous desertion of the diet on the first indictment.

3d, That to shew this, he should shortly take notice of each of the cases printed by his Majesty's Advocate.

On the first search, the following statement is submitted :

John Lawson, 1785.-In this case the pannel had not pleaded.

Burns and Veitch, 1789.-Pannels had not pleaded. Berry, Robertson, and Callander, 1793.-Pannels had not pleaded.

Alexander Scott, 1794.-Pannel had not pleaded.

Richard Mendham, 1804.-In this case the pannel had pleaded not guilty. Informations were ordered; and several continuations of the diet took place, the last to the 14th November. On that day, it is said, the instance was dropped: And in the mean time a new indictment had been raised on the 3d November. This, therefore, is one case, in which, after a party had pleaded, a new indictment was served before the diet on the other had been deserted by the authority of the Court, and without any such desertion. But the Court will be pleased to observe, that in that case the pannel clearly had no interest to make the. objection, but quite the reverse. For the second indictment was equally irrelevant with the first; and accordingly the Court, after full debate, ordered informations; and after various adjournments, the libel was found not relevant, and the pannel was dismissed from the bar. Most clearly, therefore, it was not his interest to make any objection to the service of the second indictment.

Alexander Campbell, 1809.—This is not a case applicable to the point at all. There was no question about any new indictment; and the circumstance of the public prosecutor passing from particular charges in an indictment, intending or reserving the power afterwards to raise a new indictment, is wholly immaterial to the question. But at any rate, it is humbly apprehended, that even this takes place only with the consent of the Court, which is expressed by the terms of the interlocutor of relevancy.

Lindsay Crauford and Bradley, 1812.-This is one of the cases which was quoted in the debate. But the pannels had not pleaded; and therefore it is altogether inapplica

ble.

Napier and Grotto, 1812.-This case is of the same nature with that of Alexander Campbell. There was no second indictment, and no question about a second indict

ment.

Thomas Somerville, 1813.-This case is so far applicable, that the pannel had pleaded to the first indictment; that the

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