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shew, if he can, that the second indictment has been raised and the first abandoned for unjustifiable purposes; and if he can make out this, your Lordships will desert the diet simpliciter.

Í state these matters with reference to general principle, and not to any thing which has occurred. For there is no plea here of actual hardship, and the pannel cannot be exposed to any injury whatever from what has taken place.

The only point upon which I gave no opinion formerly is now one of the pleas of the pannel, that the service of the second indictment is null in consequence of the first indictment not having been deserted. I said formerly I did not think so, and I remain of that opinion. That opinion is formed upon considering the precedents mentioned in the additional minutes.

With reference to the practice, I need add nothing to what has been said. As to the case of Somerville, we are informed that the difficulty was started; and what was the consequence? The objection on being argued was overruled. In that case, after an indictment had been raised, executed and pleaded to, the Court, without deserting, proceeded to the trial on the second. I had the honour to sit as a Judge upon that trial, and I think we were wrong. I think it was the duty of the Court to have disposed of the first indictment by interlocutor before proceeding to trial on the second; and, in not doing so, our proceedings appear to me to have been erroneous. The proceeding in the case of Hamilton, in which Duncan Forbes" consents to the deserting of the diet without prejudice to him to insist in the new indictment,” appears to be more correct than that in Somerville's case.

The Lord Justice Clerk, &c. in respect of the above consent, desert the diet upon this indictment, without prejudice to the pursuer to insist upon the new indictment as accords." That is the principle upon which I proceed, and that is the precedent which ought to be followed. For I cannot subscribe to the doctrine, that a libel, after having been pleaded to, may be abandoned in any circumstances in such terms as the Lord Advocate chuses to dictate. All that remains is the question, what delay shall be given to the prisoner? At present I give no opinion on that.

LORD PITMILLY.-I have no reason to think, except from the anxiety displayed by the prisoner's Counsel in arguing the point, that the question at issue is of any importance to the prisoner; but it is of importance to the law and to the practice in this Court; and I trust, that, after having

heard and read so much on the subject, we shall be able to pronounce an interlocutor which will set this matter on a proper footing in time to come.

The argument so ably stated by Mr Cranstoun is now reduced into writing, and stands upon the record of the Court; and it appears to me, that in the radical point there is a material error on that side of the bar. It is said in the Minute for the prisoner, that it is incompetent to serve one libel while another, by having been pleaded to, is still current against a pannel. This is the first and radical question. We must first consider whether a second libel can be served while a former is in dependence, and the pannel has pleaded guilty or not guilty to it. Now, upon this point I maintain, there is no authority in the text-books, nor in the precedents of this Court, for the proposition advanced by Mr Cranstoun,

A distinction has indeed been taken between the case of a prisoner having pleaded to the first indictment, and his not having as yet been called upon to plead; and it is true that many of the decided cases which have been noticed, refer only to the case of the pannel not having pleaded. The case of Lawson in 1785-of Burns and Veitch in 1789-of Berry and Robertson, and Callendar in 1793-of Scott in 1794 of Lindsay Crawfurd and Bradley in 1812; the older cases of Nicolson in 1711, and Inglis in 1720, were all of them cases in which the pannel had not pleaded to the indictment; and, in such cases, it is admitted by the prisoner's Counsel in the argument which we have heard, that a second indictment may be served.


But I must venture to state that there is no room for the distinction in principle between the case of a prisoner having pleaded, and his not having pleaded to the indictment, in so far as concerns the right of the public prosecutor to serve a second indictment upon him. If there was room for this distinction, the diet could never be deserted after the prisoner had pleaded to the indictment, and an interlocutor on the relevancy been pronounced; the prisoner would have a jus quæsitum in the proceedings-he would be entitled to say that the Court has no power to desert the diet. This point was most ably argued in the case of Archibald, in 1768, which is reported in M'Laurin's cases. There was much learning displayed in the argument, and the report of the case has assisted me in forming my opinion on the question now before us. It was contended in the case of Archibald, that the pannel having pleaded to the indictment, and an interlocutor of relevancy having been pro

nounced, the diet could not be deserted. But, in the face of this plea, it was found by the Court that the public prosecutor had a right to call upon the Court to desert the diet, and they did desert accordingly.

The truth is, that it is incorrect to speak of joining issue or of litiscontestation in criminal matters; the reason is, that there is no room for the contract upon which, in civil causes, litiscontestation proceeds. The diet may be deserted at any stage of the procedure until the assize is set.. "We have now," (says Mr Hume, when treating of this subject, vol. ii. p. 86.) "advanced to that period of a criminal process when it assumes a new shape, and is in several respects materially altered in its nature by the naming and swearing, or, as we call it, setting of the assize of fifteen persons, who are to pass on the trial of the prisoner. In particular, that step is attended with this change in the condition of the process, that the prosecutor no longer has it in his power for any reason to obtain a desertion of the diet, but must let his interest take its fate with the libel. then, and even after interlocutor of relevancy, the prosecutor, on good cause shewn for it, may still be allowed to desert the instance pro loco et tempore, and save his right of insisting anew, at a more convenient time and on another indictment," &c.


Accordingly, we have a number of authorities for the proposition that the public prosecutor may, before the assize is set, desert the diet, and serve a second indictment on the pannel. We have the old cases of Hamilton in 1714, of Fernie in 1720; the case of Mendham in 1804, of Somerville in 1813, of Horn in 1813, and of Bell and Douglas in 1817. There are these six cases at different periods in the practice of this Court, in which a second indictment has been served before the first was disposed of. It has been suggested, that the Court proceeded incautiously in allowing the second trial to proceed before the first indictment was disposed of. I shall speak to that point afterwards. At present I am considering whether the second indictment was regularly served; and the cases now referred to are quite invincible authorities to show that a second indictment may be served while a first is undisposed of. If this were a nullity and incompetent, is it possible to suppose that the Court would have allowed the trial on the second indictment to proceed? The cases now mentioned leave my mind without a shadow of doubt, that a second indictment for the same crime may be served while a former one is not disposed of and has been pleaded to.

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There was an attempt made to rear an argument against this proposition, on the circumstance that the diet cannot be deserted without the leave of the Court; and it was said the second indictment ought not to be served, pending the first, because the inducia are given to enable the pannel to prepare his defences, and he cannot prepare himself when he is uncertain which of two charges he is to meet. This, however, is merely an equitable plea against going to trial on the particular day, and is just one of those pleas which must be left to the discretion of the Court. A pannel comes forward, and states that he is harassed by the depending of two indictments, and therefore he moves the Court that the trial should be delayed. This does not prove that the service of the second indictment was irregular, and a nullity; but it may be a good reason for granting delay.

Here, then, I bottom my opinion. My fundamental proposition is, that a second indictment may be served while the first is not disposed of, and has been pleaded to.

The second link in the argument is, that if the service of the indictment was regular, then the induciæ of fifteen days must run from the date of the service. The inducia cannot run from the abandonment or desertion of the first libel. There is no period known to me from which the induciæ can run but from the period of service.

The second indictment, then, was regularly served, and the induciæ run from that date.

In the next proposition all are agreed, viz. that no person can be made to answer upon more than one indictment for the same offence. The question then comes to turn upon this single point, Whether it is necessary in point of form for the Court to desert the diet of the first indictment? or whether it shall be held as virtually abandoned by the mere service of a second indictment? This is the only question before the Court, Whether upon a pannel coming here with two indictments, both regularly served, is it necessary, in point of form, to desert the first by an interlocutor of Court; or whether is it already virtually abandoned by the service of the second? The whole question comes to this, and the opinion I give upon it, after looking to the precedents, is, that it is more regular to desert formally when the pannel desires it.

I am aware that the doctrine of virtual abandonment has been acted upon in many cases. But in none of these cases was it explicitly brought under the notice of the Court, except in the case of Somerville, and in that case no objection to it was taken by the pannel. It does, therefore, appear

to me, that when it is seriously objected by a prisoner, as in the present case, that a first indictment is hanging over his head, we should desire a Minute from the prosecutor passing from the first indictment, and should pronounce an interlocutor deserting the diet.

At the same time it is plain that the pannel could not suffer any injury from the virtual abandonment; because the prosecutor, by executing a second, means to abandon the first. The pannel, too, knew, that the moment a second was served, he was quit of the first. Knowing this, he was free from any perplexity arising from a double plea. There fore there is a great deal of equity in the doctrine that the first indictment falls ipso jure, by the serving of a second for the same crime, and I would not be for altering the practice when the pannel makes no objection. But when the pannel comes and states that there is a first indictment hanging over him, and desires it should be given up, the Court should declare it deserted, and then the pannel should go to trial on the second indictment. The result is, that the trial proceeds upon the very day to which the induciæ run. On Monday last we had nothing to do in this case but to declare that the first indictment was at an end; and the second being regular, and the induciæ having run, we might have proceeded to the trial, or might have given a delay if asked for, and upon cause shewn for the indulgence.

LORD RESTON.-The Judges who have gone before me have anticipated the grounds of my opinion. I am not ashamed to confess that I have altered my opinion. There are two questions to be decided. One is, whether we are entitled to take into consideration the second indictment till the first is expressly abandoned. And the second is, whether the service of the second is to be considered a service at all, as the first was not expressly abandoned. I confess that last day I was of opinion that both these points should be decided in favour of the pannel-that the authority of the Court was necessary-and that the former service, before authority was obtained to the abandoning the first indictment, was not a good one. But, upon considering the subject further, I think I was wrong, in part, in that opinion. I think the prosecutor has no right to pass from his libel, to the effect of making us consider a new one without the authority of the Court. After a first indictment has been pleaded to, the authority of the Court. should be had for its abandonment.


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