William Dawson, younger, Bonnytoun.
John Trotter, farmer at Stacks.
Robert Taylor, residing at Blackness.
George Turnbull, farmer at Northbank.

City of Edinburgh.

Robert Fraser, jeweller in Edinburgh.
Thomas Richardson, merchant-tailor there.
David Whitelaw, watch-maker there.
Peter Peddie, trunk-maker there.
William Trotter, upholsterer there.
Alexander Russell, coach-maker there.
John Inverarity, upholsterer there.
George, Yule, merchant there.
Alexander Ainslie, saddler there.
John Steel, confectioner there.
James Innes, gunsmith there.
Daniel Forrest, hosier there.
Peter Sawers, saddler there.
George Hunter, merchant there.
- William Ross, tailor there.
Charles M'Lean, draper there.
John Laing, saddler there.
John M'Pherson, tailor there.
Francis Davidson, confectioner there.
William Cooper, boot-maker there.
William Dumbreck, hotel-keeper there.
Town of Leith.

John M'Kenzie, merchant in Leith.
Archibald Cleghorn, corn-merchant there.
Thomas Morton, ship-builder there.
Roberts Paterson, painter there.
Charles Robertson, merchant there.
John Sanders, agent there.
John Glover, wright there.

AD. GILLIES.
D. MONYPENNY.
DAVID DOUGLAS.

Lord Justice Clerk.-William Edgar, what do you say to this indictment? Are you guilty or not guilty of the charges contained in it?

William Edgar.-Not guilty, my Lord.

Mr. Cranstoun.-The prisoner pleads to the indictment which has just been read, I have to state to your lordships, that he is advised to object to the competency of the present proceeding; and I humbly submit that this is the proper time for stating the objection to your lordships.

Your lordships will recollect that the prisoner at the bar was lately indicted upon the statute the 52nd Geo. 3, for the crime of administering unlawful oaths, binding, or purporting or intending to bind, the takers to commit the crime of treason. That indictment was regularly served upon the prisoner-he was brought to the bar-he pleaded not guilty and your lordships, upon hearing a debate upon the relevancy, appointed informations to be given in, and continued the time for doing so until this day.

My lords, that criminal prosecution is still

in dependence against the prisoner. The diet has not yet been deserted so far as I know. I need not tell your lordships, that his Majesty's Advocate cannot desert a prosecution, either simpliciter or pro loco et tempore, without the permission of your lordships. By deserting simpliciter, I mean here, deserting with a view to try upon a new indictment for the same crime.

While the first prosecution was thus in dependence, his Majesty's Advocate has thought fit to execute a second indictment against my client, calling him to answer at your bar for precisely the same crime as was charged in the first indictment. I submit to your lordships, that this proceeding is altogether incompetent-because the diet in the first indictment is not yet deserted; and that it would be equally incompetent to proceed at present on the second indictment, even if, on the motion of the lord advocate, the first should now be deserted. I shall state, in very few words, the grounds upon which I think our objection is irresistible.

It is known to your lordships, that by the criminal law of this country, as now firmly established, every person who is brought to the bar upon a criminal charge is entitled to have the inducia of fifteen free days. What benefit could be derived from the inducia if he could be brought to trial, and during the dependence of that trial inducia might be running against him all the while for another trial on account of the same crime? Why, he would be placed in a situation in which the law certainly never meant him to be placed; he would be perplexed and embarrassed, by being under the necessity of defending two actions subsisting together at one and the same time. Observe how far this principle, if once admitted would go. The prisoner is indicted, he is brought to the bar, an objection is stated to the relevancy of the indictment, and your lordships, after an argument of twelve hours upon the relevancy, find the indictment irrelevant. The next moment his Majesty's Advocate takes a new indictment out of his pocket, and the prisoner is immediately put again upon his trial for the very same offence. Well, the second day you have an argument upon the relevancy of this second indictment, an argument which also lasts twelve hours; and when that indictment is found irrelevant, what happens next? A third indictment is produced by his Majesty's Advocate, and he insists that the prisoner shall again be tried. And thus there might be fifteen different indictments, under which the prisoner is actually kept upon his trial for fifteen days, being the whole inducia contained in the first indictment; and upon the sixteenth charge, the panel might be brought to trial upon a relevant indictment, and without having had one moment's time to prepare his defence.

I may be told that this is stating an extreme case, one which is not likely to happen. Such a case certainly may not happen while my

in which it is wished to place my client at present. The principle of the rule in colonel Charteris's case is so well laid down by the learned author of the Commentaries, that I cannot refrain from stating it in his words. In the 4th vol, of Mr. Hume's works, or the 2nd vol. upon the Law of Scotland, as to the trial of Crimes, page 34, after having first stated that the Court erroneously and improperly, in two preceding cases, had repelled that objection, he proceeds to state the case of Charteris, "On the one hand, the prosecutor cannot say, that he is hardly dealt with in being put to make his choice among his several libels, whereof some one at least ought to be correct, and executed in proper form. On the other hand, the panel suffers a disadvantage in conducting his defence, unless such an election shall be made. For there may be blunders in the body of one of those libels, or in the list of witnesses, or in the manner of execution against the panel or witnesses, which may be more or less available to him, and may, perhaps, serve to his acquittal, if the prosecutor insist exclusively on that one. Whereas, according to the latitude allowed in Lindsay's case, even after making good such objections, the panel in nowise profits by his success therein, and is thus perplexed and encumbered with the care of a double set of pleas. I learn from a printed petition and answers (for they are not in the record), that in the case of colonel Charteris, the panel had been served with no fewer than four libels, calling him to several diets, and otherwise differing one from ano ther; and of this proceeding he complains, and insists that the prosecutor shall specify the dittay on which he intends to go to trial. The prosecutor does so accordingly, in his answers to the petition; and it appears from the informations in the case, that the colonel never had to plead to any of those libels but one, which alone appears in the record."

You therefore see, that before colonel Charteris would open his mouth upon that indictment, he was entitled to have every other indictment for the same crime put out of the way.

The lord advocate has followed a different course here, for he first raised one indictment, to which the panel pleaded; and after your lordships had ordered informations, thereby continuing the dependence of the trial, which at this very moment has not been deserted-I say pending that process to which the prisoner pleaded, he has been cited by another indictment, which is also now over his head; and he, and his counsel if they have done their duty, haye been encumbered and perplexed fifteen days in attending to different sets of pleas in these prosecutions. If the objection in the case of colonel Charteris, was sustained, you ought to sustain the objection in this case also. It may perhaps be maintained, but there is no principle to bear out the statement, that the second indictment, virtually imports an abandonment of the first indictment. An indictment

may be abandoned before the panel is brought into court and pleads. The lord advocate may bring twenty indictments; but before bringing the panel to plead, he must desert all of them but one. And I ask, Can any case be pointed out to me, of three or four indictments brought against an individual, and of his being brought to trial, not upon the last, but on the first of these indictments? The principle is, that, where several have been served upon a panel, the second is understood to be a virtual desertion of the first, the third of the second, and so forth. The prisoner is always entitled to plead to one only, and that is always the last. But the principle by which a subsequent indictment is held to imply an abandonment of a former indictment, cannot apply in the case before us; for the moment that issue is joined between the prosecutor and the panel, it is no longer in the power of the public prosecutor to abandon the indictment, unless he do it for ever. When the prisoner has pleaded to an indictment, he is then in manibus curia, and the prosecutor must have the express sanction of the Court for the deserting of the libel. This is laid down in so many words by the learned Commentator at the 28th page of the volume already mentioned: "It is also a case which sometimes happens, that, though still resolved on bringing the panel to justice, the prosecutor sees cause, however, not to insist in 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 panel, 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 prosecator 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. And, indeed, if he be a private prose

secutions, and the verdict returned in another, You would not force him into the preliminary step of pleading and arguing the relevancy until every indictment but one was withdrawn. Now, I beg leave to ask the question where is the difference between pleading to one indictment, and having other three afterwards served, or having all the four served, and being compelled to plead to one? In the first case, just as much as in the second, the four prosecutions are coexistent, and that is the hardship complained of. The prosecutor has placed my client in the very same predicament in which you found colonel Charteris could not be placed. I maintain, therefore, that the second indictment was served erroneously, because it was served while the prisoner was under trial for the crime charged in that indictment. For it cannot be disputed, that the prisoner is under trial from the moment that he pleads, although, according to our forms, the jury have not then entered upon their functions.

cutor, the Court have already caution from him to insist on that libel; and to this they may hold him, and refuse to give him new letters, if they see cause. Accordingly, in the debate on the case of Archibald (March 1, 1768), 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 panel, 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 Court: which circumstance totally removes all those apprehensions which the counsel for the panel has grafted upon the supposition, that an arbitrary power of deserting diets was claimed in this, or in any other cause, by the public prosecutor." And it is stated in still stronger terms in his notes as to desertions simpliciter, and desertions pro loco et tempore.

If this were an open point, I cannot hesitate for a moment to believe, that your lordships would decide it in the manner which I now suggest; for the hardships which would arise from any other decision are plain and great. But I submit that it is not open; for though it was not decided in terminis in the case of colonel Charteris, the objection there maintained is exactly the same in principle. Upon these grounds I humbly submit to your lordships, that the objection which I have stated is well founded.

I think I have already observed, that the mistake cannot be rectified by the public prosecutor deserting the former prosecution at this stage of the business. The reason is, that the panel has already suffered all the perplexity and embarrassment which two co-existing pro secutions for the same crime must necessarily occasion; and he has in consequence been deprived of the benefit of his inducia. Both indictments have been suspended over his head; and the desertion of the first now at the very hour of trial, will never authorize you to proceed with the second. To what hardship was colonel Charteris exposed in going to trial upon one indictment, while others were hanging over his head, to which the prisoner is not exposed in the present case? Colonel Charteris knew well, that if he was once sent to a jury in one indictment, the rest were for ever at an end. But the Court thought, that he was not bound even to plead with four indictments hanging over him; that he was not bound to take his chance of the relevancy being argued in one of these pro

Now, if a prisoner can be brought again and again to trial for the same crime, and he may be brought twenty times to trial for the same crime, while the act 1701 is suspended, as it is at present,-it is but fair that he should have fifteen free days hetween each of these trials; namely, the ordinary inducia of the law.

If you once admit the principle on which the lord advocate proceeds, you might have these twenty trials going on for twenty consecutive days, without respite either to the prisoner or to yourselves. I beg to ask, If this would not only be to harass and perplex him, but to deprive him altogether of the benefit of his inducia? Could fifteen days so spent be called fifteen days allowed for preparation? The prisoner would be perfectly confounded, not knowing upon what day, or under what indictment, he was to be sent to the jury.

I humbly submit, therefore, that the point is clear and established in principle, that the inducia of no one indictment can run, even after the prisoner has pleaded to another indictment for the same crime, consequently, although your lordships were to allow the lord advocate to desert the first indictment, that the prisoner, not having had his inducia under the second, is not bound to plead to it.

Mr. Home Drummond.—I do not think that it is necessary for me to say much in answer to this objection, as the point has been settled in practice long ago. The whole question in discussion here seems to be, whether it is necessary now for the prosecutor to pass expressly from the other indictment, or whether it is already virtually passed from? The learned gentleman was quite incorrect in speaking of the prosecutor "deserting the indictment," instead of "passing" from it; as it is not the indictment which is said to be deserted, but the diet and besides, the desertion is not the act of the prosecutor, but of the Court. If the diet were to be deserted, there might be a doubt whether both indictments would not