REG. V. J. MITCHEL. but he may be arraigned upon both at the same time, but if arraigned upon the indictment only, there ought to be an entry of cesset processus upon the coroner's inquest, as to the prisoner, who may otherwise be outlawed upon it." As to the observations of Seditious libel. Mr. Justice Foster, regarding the inaccuracy of Lord Hale's writings, he has, in his second edition, fully retracted what he said, and in his own book he reports a case such as present, Swan & Jeffries' case (Fost. Cr. L. 104), and I cannot see what difference it can make, whether the proceeding be by information or indictment; as to the cases of appeal they are essentially proceedings by private individuals, and to which the crown is no party, and they are, therefore, like qui tam cases, and the argument derived from them is not applicable to cases like the present; but in the impeachment case it was not held a good plea. The defendant might have applied to have the indictment quashed, but the court will not quash an indictment for an Attorney-General, because he can enter a nolle prosequi, which has the same effect: R. v. Dr. Wynne (2 E. 226), Goddard v. Smith (6 Mod. 261.) May 10. Cur. adv. vult. BLACKBURNE, C. J.-To the first of these informations the plea Judgment. commences with stating that the court ought not to take cognizance of the offences therein specified, because an indictment was found in this court for the same offences, on which indictment he was, at the request of the Attorney-General, arraigned, and such proceedings were thereupon had that the Attorney-General came into court and said that he would not further prosecute the said John Mitchel, and that he should go thereof without delay (in mistake for day); the plea then avers that he is the person who was so indicted and arraigned, and that the offences in the indictment and information are the same: and he further saith, that he ought, according to the laws and customs of this realm, and the liberties and privileges of the subjects of this realm, to be free and exempt from being compelled to answer for the offences in the said information mentioned, before any justice or minister of our lady the Queen, or any other judge in any other court, except on indictment found or presentment made on the oaths of twelve lawful men of the body of the county, and this he is ready to verify, and prays if this court will or ought to take cognizance of the information aforesaid, and that he may be dismissed and discharged-there is no averment of the pendency of the indictment-the crown demurs, stating that the matters pleaded are not sufficient in law to preclude the Queen from proceeding on the said information against him, and concludes with praying judgment that the defendant may be convicted. This demurrer is objected to as being informal, and amounting to a discontinuance. On the other hand, the Attorney-General contends that the plea is itself bad, and if it be, that we are bound by the ordinary rule which obliges us to examine the whole record, and to adjudge according to the legal REG. v. J. MITCHEL. Seditious libel. right as it may on the whole appear; the question then is this, is the plea of an indictment depending a bar to this information for the same matter? In support of the affirmative, that it is, there is neither precedent, the authority of any case, the dictum of any judge, or even the opinion of any text-writer: but, on the other hand, there are authorities that such a plea is utterly invalid. In Sir William Withipole's case (Sir W. Jones, Rep. 199), he was arraigned on a second indictment for murder; having pleaded to the first, he objected to plead to the second, and he was obliged to do so. In the same case, as reported in Cro. Charles, it is expressly said that this was no cause of plea, for when he is not acquitted or convicted he may be arraigned on a new indictment. It is true the court most properly quashed the first indictment to avoid any doubt, but this does not detract from the authority of the case, sustained as it is by a mass of other authorities to the same effect. In Hale's Pleas of the Crown (vol. 2, 221, 222), it is stated that if there be a finding of murder by the coroner's inquest and an indictment for the same murder, the course is to arraign him on the former, and if he be acquitted on that, to arraign him on the indictment, and put him to his plea of autrefois acquit; and Hale says, that in such cases, to avoid the trouble of this plea, he usually had the prisoner arraigned and tried on both indictments; so in 2 Hale's P. C. 239, it is expressly stated that if a man be arraigned on a second indictment for murder, it shall not abate, because it is the King's suit. He goes on and states the practice, as in page 222, of arraigning on both indictments, and giving him in charge on both of them. Hawkins is the next authority, in his chapter (34) on Pleas in Abatement, he says, "it has been holden that it is no good plea in abatement of an indictment, as it is of an appeal or information, that there is another indictment for the same offence; but in such case the court in discretion will quash the first indictment if any fault be found with it." This is a most explicit statement of the law, and it requires only a careful attention to the words of the section itself to see that the word information in this passage cannot mean information for a misdemeanor; but Hawkins, precisely in the margin, refers to the 63rd section of his 26th chapter on qui tam informations, which states, and shows by authorities, that to an information on a penal statute the pendency of a prior information for the same matter may be pleaded in abatement; there is, therefore, no manner of doubt that the passage from the 34th chapter is a distinct authority against this plea. The next is Swan & Jefferies' case (Foster, C. L. 105). It was decided in 1751 before Wright and Foster, justices, at the assizes; there was an indictment for murder, Swan being charged as principal, and Jefferies as aiding: they were arraigned and pleaded. Afterwards a second bill of indictment was preferred and found, charging Swan with petit treason, and Jefferies with murder; they were arraigned on the second indictment, and pleaded the pendency of the first, and to this the crown demurred; and in support of the plea it was argued that they might be tried, if acquitted on the second indict REG. v. J. MITCHEL. Judgment. ment, a second time on the first, and would have no opportunity of pleading autrefois acquit: the court held that autrefois arraign was no plea. Reg. v. Stratton (Dougl. 240), was an information ex officio, to which the defendants pleaded and issue was joined. There Seditious libel. was a motion by the Solicitor-General to quash the information that another might be filed. This was opposed; the Solicitor argued that the defendant could sustain no injury by the quashing the information, for that the crown could go on on the new information notwithstanding the pendency of the other, for that on indictments and informations for crimes, the pendency of another indictment for the same offence cannot be pleaded as it may to informations for penalties. Lord Mansfield said, if it was proper to stop the proceeding, he did not see why the Attorney-General might not do it by entering a nolle prosequi; and Buller, J., says, "what the Solicitor-General has stated, viz., that the pendency of the first indictment would be no plea to the second, is decisive against this motion." Thus the court adopts, recognizes, the proposition that, in criminal proceedings, there can be no such plea as the present, and makes it one of the grounds of the rule. These authorities, in my opinion, show, without doubt, that the plea in the present case is bad. It has been contended, that because the present is the case of a criminal information filed by the Attorney-General, that the authorities which I have been considering, and of which the subjects are indictments, ought not to govern it. That they should not do so would require what I have not heard, a reason or ground for making it an exception to the rule so clearly established. I cannot discover, in relation to that rule, a distinction between the case of a second prosecution by indictment and a second one by information. The argument which the plea suggests, that because this misdemeanor was in the first instance prosecuted by indictment, the Attorney-General could not afterwards proceed by criminal information, is one for which I cannot see any foundation, and, indeed, I cannot see how it could be made available by a party who had pleaded in abatement. I have only further to add on this part of the case, that even if the plea of a former prosecution depending could be pleaded, the entering of the nolle prosequi would be an answer to it, and this appears to have been plainly decided by the King v. Stratton, in Douglas's Rep. I am, for these reasons, clearly of opinion that this is a bad plea. I have already stated that it is not warranted by precedent or authority, and with the authorities of Hale, Holt, Hawkins, Foster, Lord Mansfield, and Judge Buller against it, I shall not sanction its addition to the number of dilatory pleas. But it is now necessary to advert to an objection that has been made to the demurrer of the crown: it is this, that the plea being in abatement, it concludes with praying judgment, not of respondeas ouster, but of conviction; and this is founded on the authority of cases collected in 2 Saunders, 210, and especially of Bisse v. Harcourt, there cited. These are all cases of civil actions. It is plain that a party pleading in abatement can call on the court to pronounce such judgment only as his REG. v. J. MITCHEL. Seditious libel. Judgment. plea demands: The King v. Shakspeare (10 E. 363.) But the question now to be considered in one of these informations is, whether the prayer of judgment of conviction by the demurrer in the first of these cases, and the replication in the other, is a discontinuance of the suit of the crown, and precludes us from giving judgment for the crown. Without deciding the point, I think it is very questionable whether in pleading there can be on the part of the crown a discontinuance: no case has been cited in which it has been decided that there can; there are two cases that appear to decide that there cannot: (Com. Digest, Pleader, Discontinuance, W. 2.) In the Attorney-General v. Farnham (Hard. 504) upon a quo warranto information, issue was joined on a question whether the corporation had toll by prescription; it was found for the defendant. There was a motion in arrest of judgment, on the ground of a discontinuance, there not having been issue joined as to other liberties claimed: the Chief Baron said they came too soon to urge that, because judgment was not yet given, and before judgment there is no discontinuance in the King's case, for the Attorney-General may still proceed by the King's prerogative, to take issue on the rest, or may enter a nolle prosequi: Rex v. Griffith (1 Rolle, Abr. 486) was a scire facias, on a recognizance. The defendant imparled, and a day was given to him, but not to the plaintiff (the crown). This is not a discontinuance, because the King is the party; and where the King is a party, no day is given to him, because he is at all times present in court. But suppose that there may be, what is technically, a discontinuance, we are now to consider how the precedents and authorities are. It is to be observed, that where issue in fact is taken in pleas in abatement, in indictments, for misdemeanors, they should always conclude with a prayer of final judgment for them, for if the fact be found for the crown the judgment must be final; the judgment cannot be of respondeas ouster: Rex v. Shakspeare (10 E. 83.) As to precedents of demurrers to pleas in abatement, I believe they are in both ways, sometimes in bar, sometimes in abatement; we have precedents in 4 Chitty, Cr. L., and Foxwist v. Tremaine (2 Saunders, 110), and Reg. v. O'Connell, all concluding with a prayer of final judgment. The authorities, Rex v. Taylor, and Lug v. Goodwin, are, however, quite decisive that the informality of the prayer of the demurrer is no ground of objection, or that the court is thereby precluded from giving the right judgment on the whole matter. Another authority has been supplied by Mr Justice Crampton, The King v. Taylor (5 B. & C. 302); this was an indictment for keeping a gaming-house; plea that the defendant was indicted for keeping a gambling-house, and acquitted, and that the offences are the same. There was a demurrer to this, concluding with a prayer of judgment of respondeas ouster; this plea was held bad, then the question arose, what judgment the crown could have, the plea having been a plea in bar. Lord Tenterden said, "The court is not bound by the prayer with which any part of the pleadings in bar may conclude, but is to give such judgment on a plea in bar as by law REG. v. J. MITCHEL. Judgment. ought to be given. This was settled in Le Brett v. Papillon (4 E. 502), and The King v. Shakspeare (10 E. 83), if the demurrer in this case had concluded by a prayer of a judgment, that the defendant be convicted, yet the court would only have given a judg- Seditious libel. ment to answer over if the latter had been the proper judgment. We are, therefore, to consider the question as a matter of law, entirely independent of the particular prayer that has been entered on the record," and final judgment was given for the crown. Lug v. Goodwin (1 Ld. Ray. 393), was a scire facias; there was a plea in abatement, the plaintiff demurred in bar, there was judgment of respondeas ouster, the defendant then pleaded the same matter in bar, and the plaintiff demurred. Carthew objected the discontinuance, because the demurrer had concluded in bar, sed non "allocatur, for when the defendant pleads a good plea in abatement, and the plaintiff replies new matter, he ought to maintain his suit; but if the defendant pleads an ill plea, though the plaintiff replies, and concludes in bar, it is not material." These cases are authorities for holding, as we do, that we are bound to give judgment on the whole record, and that, the plea being bad, the crown is entitled to judgment. In the second information in which the defendant has demurred to the replication of the crown, we think that there should also be judgment for the crown: the same arguments and authorities apply to it as to the first; but as to the objections to the form of the replication, it is manifest they are all plainly of no moment, if the plea be, as I think it is, bad. But as to the objection to the replication, that it prays judgment of conviction, and not of respondeas ouster, it is to be observed, that the replication introduces matter on which issue may be taken, and I apprehend that by doing so, the crown was entitled to pray final judgment, as that to which it might be entitled, if issue were joined, and the fact found for it. The case of Bonner v. Hall (1 Ld. Raym. 338), is an important authority on this point, and is the more so because it shows that the case of Bisse v. Harcourt, so much relied on by the defendant, is put by Lord Holt on its true ground,—a ground on which it is expressly distinguished from both the cases which are before us. It will be seen from the report of it, that there was judgment for the defendant Harcourt, because he had pleaded a good plea. In the present case, we are of opinion that the plea in abatement is utterly bad. Now the case of Bonner v. Hall was this: "In indebitatus assumpsit the defendant pleaded in abatement another action depending in curia nostra de C. B. for the same cause;" the plaintiff said there was not any action depending for the same cause, not calling for judgment of respondeat ouster, but calling for judgment of debt and damages: the defendant demurred, the plaintiff joined, and concludes rightly, and it was admitted that the plea was ill, because he pleads a cause depending in his court of C. B., and for other reasons. The plea being ill, the plaintiff fell "back on it,"-just what they have done here-but then it is said "Mr Ward moved that there was a discontinuance," and the case of Bisse v. Harcourt was |