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v. MITCHEL.

book 2, ch. 34, sect. 1,) says, “ That it hath been holder that it is Reg. no good plea in abatement of an indictment as it is of an appeal or information, that there is another indictment against the defendant for the same offence. But in such a case, the court, in its discre- Seditious Libel. tion, will quash the first indictment if any fault can be found with Perrin's it.” There is no difference whatever between the case of an in- argüment. dictment and an information (like the present). From the passage in which Hawkins refers to the cases where informations do not lie after a previous information, it is plain that he refers to qui tam informations. In book 2, ch. 26, sect. 1, he enumerates the matters for which an information lies; and in section 4, he says, "As to the second particular, viz., what ought to be the form of similar informations : having already, in the chapter of indictments, incidentally shown the principal points relating to this matter, I shall only take notice in this place, that seeing an information differs from an indictment in little more than that the one is found by the oath of twelve men and the other is not so found, but is only the allegation of an officer who exhibits it, whatsoever certainty is requisite in an indictment the same at least is necessary also in an information, and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alleged in the other, and not by way of argument or recital.” So, in Bacon's Abridgment (title Information, A.), it is said an information may be defined, “an accusation or complaint exhibited against a person.for some criminal offence, either immediately against the King or against a private person, which from its enormity or dangerous tendency, the public good requires should be restrained or punished, and differs principally from an indictment in this, that an indictment is an accusation found by the oath of twelve men, whereas an information is only the allegation of the officer who exhibits it.” Where, in chapter 26, Hawkins treats of a prior suit depending, being a plea to an information, his observation is evidently confined to cases of qui tam informations, for in section 63 he says, “As to the first point, viz., where a prior suit depending may be pleaded to such an information or action, it seems agreed, that wherever any suit on a penal statute may be said to be actually depending, it may be pleaded in abatement of a subsequent prosecution, being expressly averred to be for the same offence.” And in section 66 of the same chapter, he says, “ As to the third point, viz.: what is a good general issue, and where it may be pleaded, I shall observe the following particulars : first that if the defendant plead nil debit to an action or information qui tam, it is the safest to say that he owes nothing to the informer, nor to the King." There is not the slightest reference in this chapter, which is chiefly taken up with qui tam actions and informations, to show that the author refers to informations ex officio, and not one of the cases to which he refers, refers to informations filed ex officio. There is this good reason for the distinction in informations qui tam, that in such cases the informer is entitled to a portion of the penalty, and it would

J. Perrin's

Reg. be a hardship that the defendant should be subjected to a second J. MICHEL prosecution for a pecuniary penalty, while there was a previous

one pending against him. In Sir William Withipole's case (Croke, Seditious Libel. Chas. 147), an indictment having been found against him for

in's murder, his counsel moved “that he ought not to be arraigned argument. • upon this because he had been autrefois arraigned upon an inquisi

tion of murder, found before the coroner, and had pleaded thereto,
&c., and so concluded his plea, by pleading not guilty to the
felony. But it was held by all the court that this was no cause of
plea, for where he is not convicted or acquitted he may be
arraigned in a new indictment.” One of the indictments in that
case was quashed, but that was not done until the court had ruled
that it was not a good plea. And in the case of John Swan and
Elizabeth Jefferys (Foster's Cr. L. 106, and 18 St. Tr. 1194),"the
court was of opinion that the charge in the bill last found must be
answered, notwithstanding the pendency of the former, for autre-
fois arraign is no plea in this case ; perhaps the bill last found is
better adapted to the nature of the case than the former, and the
King's counsel must be at liberty to prosecute in such manner as
may best answer the ends of public justice; but at the same time
the court must take care that the prisoners be not exposed to the
inconvenience of undergoing two trials for one and the same fact."
In Reg. v. Goddard and Carlton (2 Lord Raym. 920), which was
an indictment for forging an assignment of a lease, exceptions
were taken by the defendants, but there having been a new
indictment found pending this matter, it is said “the court would
not determine these exceptions, but made him plead to that where
these things were amended;" counsel for the defendants then
moved “that before the court would make them plead to the new
indictment they would enter judgment for the defendants upon this.
But the court said “they would make no bargains with them.” And
the defendants in that case pleaded to the new indictment, Holt,
C. J., observing that “a man could not plead over in any case but
treason or felony, and not in a case of misdemeanour, and that a
man after he has been found guilty, cannot plead that indictment,
depending in abatement, but must plead autrefois convict.That
case is an additional authority to show that autrefois arraign is not
a plea known to the law. In Rex v. Stratton and others (Douglas,
239, 249), an information having been filed ex officio, the Solicitor-
General applied for a rule to show cause why the information
should not be quashed, on the ground that a new one was ready
to be filed, which stated the offence more particularly, and was
better adapted to the nature of the charge; and, in support of
the rule, observed that the defendant could not suffer any injury,
“ because the crown might go on to trial and judgment on the
new one notwithstanding the pendency of the other; for that on
indictment or information for crimes the pendency of another prose-
cution cannot be pleaded, as it may be to informations for penal-
ties.” Sir William Withipole's case, and Rex v. Swan and Jefferys,
are referred to, and Lord Mansfield observes “that if it was

u. J. MITCHEL.

proper to stop the information, he did not see why the Attorney. Reg. General might not do it, by entering a nolle prosequi, without the interference of the court." But the judgment of Buller, J., is a clear authority in favour of my argument, he adopts the argument Seditious Libel. of the Solicitor-General in these words : “What the Solicitor- j pory General has stated, viz., that the pendency of the first information argument. would be no plea to the second, is decisive against this motion.” In Rex v. The Mayor of Plymouth (4 Bur. 2089), and Rex v. Phillips and others (3 Burr. 1565), Lord Mansfield said the Attorney-General had power of himself to exhibit an information on behalf of the crown if he thought proper, and therefore refused to grant a motion for leave to exhibit one ; Rex v. Burnby (5 Q. B. Rep. 348, per Lord Denman). In Rex v. Stratton the very distinctions are taken which are referred to in Hawkins, that to an indictment for crimes it is no answer whatever that another prosecution is pending. Rex v. Webb (3 Burr. 1468), is an authority to show that the fact of the proceeding of a former indictment is no bar to sending up a fresh bill to the grand jury, and, therefore, that the pendency of the first was no ground of objection to the second (Rex v. Wynne, 2 E. 226). To the text writers on Criminal Law I refer, not as authority, but as showing what the received opinion on the subject is. In 1 Chitty's Cr. L. 466, 467, it is said, “ it has been holden to be no good plea in abatement of an indictment, that another prosecution for the same offence is depending, though it will be a ground for the court to quash one of them on motion, if it should appear to be defective;" and in 1 Starkie's Cr. Pl. it is said, in page 314, that “where a second indictment is found against a defendant, upon which he is arraigned, after pleading to the first, but before trial, and both indictments are founded on the same transaction, the defendant cannot plead the pendency of the first in abatement, because it is the King's suit;" that is the reason laid down in all the cases, and I submit therefore, that the defendant's plea is bad on that ground. There is a case also, which occurred in this country in 1712, which supports my argument; Reg. v. Dudley Moore (Append. to the Comm. Journ. 275), that case was a good deal canvassed in 1829, in the case of the Bottle Conspiracy, and the legality of the course was never questioned. It was relied on by Lord Plunket as an authority, when the case was afterwards investigated in Parliament; and the court will not restrain an Attorney-General from filing an ex officio information, upon the ground that a criminal information has been already granted for the same cause (Archb. Cr. Pl. 72–78, Rex v. Alexander). These authorities show conclusively that it was no ground of objection, or else the court would have interfered. But secondly, even if the court should think the pendency of a previous indictment a good plea to this information, I contend that the objection does not exist in this case, and that the indictment has been put an end to by the entry of a nolle prosequi. The Attorney-General has furnished me with some authorities from the Crown office in England, on the subject, which establish the proposition. In Rex y. Doctor Purnell.

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n informati was enteredRex v. Franciation filed;

REG. which is also reported in W. Blackst. 37, and in Rex v. West, in J. Mirchen 1801, a nolle prosequi was entered, and then a new information filed;

- so in R. v. Switzer, in 1812, and in case of Rex v. Francis Kinchela Seditivus Litel. and others, a nolle prosequi was entered by Mr. Attorney-General J. Perrin's

Plummer, that an information might be filed against them, and an argument. information was filed against them afterwards. In Coke Litt. 139a,

it is said “the King's Majesty cannot be nonsuited, because in
judgment of law he is ever presentin court; but the King's attorney
qui sequitur pro domino rege,may enter an ulterius non vult prosequi,
which hath the effect of a nonsuit; but in an information by an
informer, qui tam, &c., the informer may be nonsuited.” In The
Attorney-General v. Buckeridge (Hardr. 83), it is said “if the King,
by his attorney, enter a non vult ulterius prosequi, the King cannot
afterwards proceed in the same suit, but he may begin anew, and
this by reason of the prejudice which otherwise might accrue to
the subject;" Rex v. Pickering is there cited as an authority for
the position, but I have not been able to discover the case. God-
dard v. Smith (1 Salk. 21, and 6 Mod. 261, S. C.), Rex v. Stratton
(Dougl. 239) is also an authority to the same effect. In 1 Salk.
p. 20, the case of Goddard v. Smith is reported in this way: “An
action was brought for a malicious indictment, whereof the plain-
tiff was legitimo modo acquietatus, and upon the trial it appeared he
was acquitted no otherwise than by the entry of a nolle prosequi ;
the court held this evidence did not support the declaration, for
the nolle prosequi is a discharge of the indictment, but is no ac-
quittal of the crime ; and the Chief Justice doubted as to the latter
matter, and was of opinion that the crown, notwithstanding the
nolle prosequi, might award new process upon the same indict-
ment.” But from the better report of the case in 6 Mod. (p. 261,
case 374), it seems that, whatever the Chief Justice thought, the court
made no rule, and Harcourt, the master of the office, stated that
there never had been any proceedings after a nolle prosequi, and
Powell, J., quoted a case in Hardres, in which a nolle prosequi was
entered on an information, and held to be a discharge of it, Attorney-
General v. Bagg & Marsham (Hardr. 126). Turner v. Gallilee
(Hardr. 153), seems to throw some doubt upon it, but the propo-
sition which was doubted by Hardres, that a nolle prosequi is no
bar to further proceedings, is laid down in a note to Salmon v.
Smith, in 1 Saunders, 207, note 2. The course adopted here by
the Attorney-General is the only one he could properly have pur-
sued; if he had asked the court to quash the indictment, they
would have said he could have entered a nolle prosegui (2 Hayes
Cr. L. 573). There is also an ambiguity in the defendant's plea;
it does not distinctly appear whether it is a plea in bar or in
abatement; it alleges that an indictment has been found against
the defendant for the same offence, but does not say that it is
pending. If that be so, it is a plea in bar, and not in abatement.

Sir Colman OLoghlen.-On the record, as it stands, there has been a discontinuance, and the crown is now out of court. The plea states that an indictment was found this term, and that the defendant was duly arraigned on the said indictment, and that

REG.

J. MITCHEL.

such proceedings were thereupon taken, that afterwards, to wit, on the 20th day of April, in the said term, the Attorney-General came J. M into the court of our said lady the Queen, and said that he would not further prosecute the said John Mitchel, on behalf of our said Seditious Libel. lady the Queen, on the said indictment, and that the said John Sir Com Mitchel should go thereof without day; the plea then states that O'Loghlen's the defendant is the same person against whom the indictment was argument. found, and that he ought not to be compelled to answer for the said supposed offences in the information specified, except upon indictment found, or presentment made, on the oath of twelve good and lawful men of the county in which said supposed offences were committed, and it prays judgment, if the court will or ought to take cognizance of the information, and that he may be discharged, and so forth. That is a plea in abatement. It is not indeed a plea of an indictment pending, but it is a plea raising this question, whether the Attorney-General can proceed by ex officio information, after having proceeded by indictment; in fact, whether by proceeding by indictment he does not thereby lose his privilege of proceeding ex officio. The demurrer in this case is a demurrer in bar to a plea in abatement, and therefore there is a discontinuance, and the crown are out of court. The demurrer prays conviction ; it should have prayed that the defendant should answer over. A discontinuance may be either caused by the non-entry of proper continuances, or, secondly, by mispleading, which creates a chasm in the regularity which ought to exist in a suit from its commencement to its conclusion. A demurrer in bar to a plea in abatement, is a discontinuance, Carter v. Davis (1 Shower, 255, 1 Salk. 218), Saunder's Rep. 210, e, (note), Cochrane v. Fitzpatrick, 8 Ir. Law Rep. 187, 2 Com. Dig. tit. Pleader, W. 2. If a defendant plead in abatement, and the plaintiff reply as to a plea in bar, this is a discontinuance; Alice v. Gale (10 Mod. 112). The rules of criminal and civil pleading are the same. It may be said that this is a plea in bar, but this argument cannot be maintained, as the beginning and conclusion determines the nature of the plea. “It is the conclusion of a plea, and not the matter of it, that makes a plea in abatement, so that, should a man plead a plea that, for the matter of it, might have been pleaded in bar, and conclude petit quod breve cassetur, it would be but a plea in abatement, and the judgment could be no other than a respondeas ouster, and vice versa, Alice v. Gale (10 Mod. 112). “If a man pleads matter which goes in bar, but begins and concludes his plea in abatement, it will be a plea in abatement, for it is the beginning and conclusion that make the plea,” per Holt, C. J., De Medina v. Stoughton (1 Ld. Raym. 593). “If a plea, commencing in abatement, show matter in bar, and concludes in abatement, it is a plea in abatement, not in bar,Godson v. Good (6 Taunt. 587). This is a plea in abatement: it begins and concludes properly: it is analogous to a plea of privilege by an attorney, stating his privilege not to be compelled to answer to an action commenced against him by bill. In Chatland v. Thornley (12 E. 544), the conclusion of the plea was the same as the plea here. The plea there was a plea of

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