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second indictment was served without any previous desertion of the first; and that the pannel was tried and convicted. But even with regard to this case, it is to be observed, that the crime of which the pannel was accused was that of perjury, the punishment of which could not exceed imprisonment and pillory; and that the pannel was at a very serious expense in defending himself at every diet of the Court. It was therefore obviously better for him that the trial should go on, whatever might be the event, than that it should be merely put off for fifteen days. Accordingly, the objection was not stated by his Counsel, and could not be judged of by the Court.

John Horn, 1813.-This person was indicted for uttering and selling forged notes; the first of which is a capital offence. He pleaded not guilty, and informations were ordered. Then a new indictment was served without any desertion; and a pleading on the relevancy again took place. But the Court will observe what followed. When the new indictment was found relevant," Pannel pleaded guilty" to the second charge, and was sentenced to transportation. In such a case, though the pannel had an inte rest to object to the relevancy of the charge itself in both indictments, it is evident that it would have been very much against his interest to object to the powers exercised by his Majesty's Advocate, or to the regularity of his proceedings.

Bell and Douglas, 1817.-Nothing can be drawn from this case. Bell pleaded guilty to both indictments; and as to Douglas, the diet was deserted. It is submitted, that it has no analogy to the present question.

These are all the cases selected by his Majesty's Advocate, from the first note of search, from 1777 downwards. And it is obvious, that none of them have any analogy to the case, except those of Mendham, Somerville, and Horn; and, even as to these, the explanations appearing on the face of them are quite sufficient to account for the objection not being stated; which, after all, is the utmost that can be drawn out of them.

The additional notes mention four cases.

Isobel Nicolson, 1711.-Pannel in this case had not pleaded.

Patrick Hamilton, 1714.-The fact is not distinctly stat ed, nor does it at all appear what became of the case. Though the minute and interlocutor speak of the "new indictment raised," this may, in truth, refer merely to the notice of the Lord Advocate of an intention to raise a new indictment immediately thereafter. Without seeing the

dates, it is impossible to draw any correct inference. Besides, though it is mentioned in a note that informations had been given in, it does not follow that the pannel had pleaded. The informations might be on the form of citation, or on other points not necessarily implying that there had been a plea to the indictment.

In one view, however, this case is, with many others, a fatal precedent against the doctrine maintained by his Majesty's Advocate. For it will be observed, that Mr Duncan Forbes never thought of maintaining, that, after pleading, the service of a new indictment ipso facto put an end to the first, or that it could be abandoned otherwise than by an express interlocutor of the Court.

Andrew Fernie and others, 1720.-This case is nearly on a footing with the preceding. It does not appear when the new indictments were raised. But it does distinctly appear that his Majesty's Solicitor and Advocate-depute of that time did not imagine, that he had any power to abandon the first indictment otherwise than by a motion to the Court; and an express interlocutor was accordingly pronounced.

James Inglis, 1720.-Pannel had not pleaded.

This is an analysis of the whole cases founded on by his Majesty's Advocate. And the Court will now see, that there are none bearing even the appearance of analogy, except only, 1st, Hamilton in 1714; 2d, Fernie, &c. in 1720, the circumstances of both of which are imperfectly known; 3d, Mendham in 1804, in which both indictments were found irrelevant; 4th, Somerville in 1813; and, 5th, Horn in 1813, who at last pleaded guilty, and got the libel restricted to the charge which only subjected him to an arbitrary punishment.

That it would be for the Court to judge, whether there is any thing in these cases, picked out of the practice of more than a century, to overturn the established principle of law, which was explained in the debate, and is laid down by the first authority on the subject, that after a pannel has pleaded, the Lord Advocate has no power to abandon the indictment, except by express motion to the Court; and that if he cannot do it expressly, still less can he do it virtually, or by implication.

4th, That, annexed hereto, there is the whole search of the records from the 1st January 1777, downwards; and that from that list, the Court will perceive a much stronger practice, by which the Lord Advocate finds it necessary to move the Court expressly to desert the diet, intimating at

the same time, that he intends instantly to raise another indictment. And more particularly, there are many cases in which this is done after the pannel had pleaded.

Cumming against Lesslie, 1785.-Desertion after interlocutor of relevancy.

Walter Ross, 1786.-Had pleaded not guilty. Diet deserted pro loco et tempore.

Brown and M Nab, 1793.-Desertion after interlocutor of relevancy, expressly for the purpose of serving a new libel.

Charles Sinclair, 1794.-Diet deserted after relevancy found.

Gavin Simpson, 1811.-Diet deserted after interlocutor of relevancy.

These are cases in which the pannel had pleaded. There are many others in which the record bears a desertion pro loco et tempore, for the purpose of immediately serving a new libel.

David Dalgleish, &c. 1780.

John Grant, 1783.

William Tenant, 1789.

Thomas Wilson, 1790.
Jacob Tait, 1795.
O'Neils, 1796.
Urquharts, 1797.

Kirby, 1799.

Richard Mendham, 1800." Diet deserted before pleading, as the advocate stated he meant to serve a new libel this afternoon."

Clark and Brown, 1802.

Monro and M'Farlane, 1809.

That from this evidence of practice, to which may be added all the cases in the additional notes, it is humbly submitted, the inference is irresistible, that no such principle ever was recognized as that maintained by his Majesty's Advocate, that by executing a new indictment, a previous indictment to which the pannel had pleaded is ipso facto extinguished. The law has acknowledged no such power in the Lord Advocate, and it is as little sanctioned by any practice. On the contrary, the uniform practice, with the exception of a few straggling instances, all since the year 1804, and all but one since the year 1812, is directly the reverse, the Lord Advocate having always thought it necessary expressly to move the Court to desert the diet.


That on the whole, it was humbly submitted, that this search into the practice, instead of supporting the plea of his Majesty's Advocate, founded on a mere allegation of practice, in opposition to the principle of law, tends very strongly to support the plea of the pannel, and to shew the incompetency of the proceeding here objected to: That if there were nothing more to be stated, it would be enough, that between the year 1720 and the year 1804, there is not one example of a second indictment raised after a pannel had pleaded to the first, and before a desertion of the diet by authority of the Court. The case in 1804 has been explained; and it will be for the Court to judge, whether a practice, which really rests on one, or at the utmost two cases in 1813, can make law, in opposition to principles otherwise clearly established.







26th May 1817.

Right Hon. DAVID BOYLE, Lord Justice Clerk.


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His Majesty's Advocate.

JAMES WEDDERBURN, Esq. Solicitor-General.
HENRY HOME DRUMMOND, Esq. Advocate-Depute.

Counsel for the PANNEL.


J. P. GRANT, Esq.

J. A. MURRAY, Esq.

WILLIAM EDGAR was placed at the Bar.

LORD JUSTICE CLERK.-Your Lordships remember the objection that was stated in this case. You ordered Minutes to be given in for the parties, stating the practice relative to the objection. These are now upon the table; and you are to say how they are to be disposed of.

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