To this replication the following demurrer was filed::

"And the said John Mitchel, present here in court, in his own proper person, as to the said replication of the said Right Honourable James Henry Monahan, Attorney-General for our said lady the Queen, who for our said lady the Queen prosecutes in this behalf, to the said plea of him the said John Mitchel, says that the said replication and the matters therein contained, in manner and form as the same are above pleaded and set forth, are not sufficient in law to compel him the said John Mitchel to answer the said information against him the said John Mitchel, and that he the said John Mitchel is not bound by law to answer the said replication, and this he the said John Mitchel is ready to verify; wherefore, for want of a sufficient replication in this behalf, he the said John Mitchel prays judgment of the said information, and that he the said John Mitchel may not be compelled to answer the same, and so forth.

And the said John Mitchel states and shows to the Court here the following causes of demurrer in law to the said replication; that is to say

"For that the matters contained in the said replication are not a legal answer to the plea of the said John Mitchel; and also for that the said Attorney-General of our said lady the Queen does not by his said replication confess, avoid, or traverse and deny that the said in dictment so found against the said John Mitchel, and whereon the said John Mitchel was arraigned as aforesaid, was, at the time of the filing of the said plea in abatement, still pending in the court of our said lady the Queen, here before the Queen herself, as by the said John Mitchel, in his said plea in abatement in that behalf, alleged; and also for that the said re plication attempts to put in issue matters impertinent and immaterial to the said information; and also for that the said replication is an argumentative traverse of the matters stated in said plea; and also for that the said replication amounts to a replication of nul tiel record; and also for that the said replication ought to have been nul tiel record; and also for that the said replication tenders an immaterial issue; and also for that the said Attorney-General of our said lady the Queen, by his said replication, hath not offered to verify the same by the record; and also for that the said replication attempts to put in issue upon a trial per pais matter of law, and not matter of fact; and also for that the said replication should have concluded with a special traverse of some of the facts stated in said plea; and also for that the said replication is in other respects defective, uncertain, informal, and insufficient."

| him), in support of the demurrer, again argued that the demurrer to the replication being in abatement, and the joinder to the demurrer in bar, there was a discontinuance; Foxtwist v. Tremaine(a); Anon.(b); Bisse v. Harcourt (c); Carter v. Davis.(d)

Secondly, the replication is bad, for not traversing, or confessing and avoiding, the averment in the plea that an indictment is pending. It is an argumentative traverse, Bourne v. Taylor, (e) Murray v. East India Company.(f) The proper replication would have been nul tiel record, Green v. Watts, (g) Green v. Purdon.(h) If a traverse, the replication is bad, as being an affirmative on an affirmative; and if confessing and avoiding, it is bad for not clearly confessing the matter charged, Gould v. Roxborough, (i) Taylor v. Cole.(j)

BLACKBURNE, L.C.J.: As I understand this replication, it does confess the pendency of the indictment.

O'Hagan: The plea itself is good; the cases referred to by Hawkins are all qui tam informations, but only because the question was never raised as to other informations. All informations are of the civil suit; they are in the nature of a same kind, and partake of the nature of a declaration at the suit of the King, Rex v. Wilkes.(k) The distinction between informations for crimes and informations under penal statutes cannot be maintained. MOORE, J. Informations qui tam are of a mixed nature, between a civil and a criminal proceeding.

:

BLACKBURNE, L.Č.J.: In qui tam informations, the person who first files the information has the right to the penalty.

O'Hagan: In Owen v. Sparry,(1) an action depending in one of the superior courts was held a good plea to an action brought in another court. In his observations on Fitzharris's case, (m) Sir John Hawles argues that an impeachment depending is a good plea. Before the statute of William and Mary, making it necessary to obtain the leave of the Court to file an information, could a private prosecutor, finding that the indictment pending did not come up to his views, go into the Crown Office and file an information ?

(a) 3 Saund. 210 n.

(b) 1 Wils. 302; Carth. 137.

(c) 1 Show. 155; 1 Salk. 177.

(d) 1 Show. 255; 1 Salk. 218; Carth. 187. (e) 10 East 189. (f) 5 B. & Ald. 212. (g) 1 Ld. Raym 274. (h) 2 Huds. & Br. 274. (i) 1 Cr. M. & R. 254. (j) 3 T. R. 292. (k) 4 Burr. 2,569. (1) 5 Rep. 62a. (m) 8 St. Tr. 243.

John Perrin, contra: The precedents for demurrers to pleas in abatement, and replications thereto, are precisely as here. The plea of an impeachment depending was of a suit in full course of proceeding. If, as suggested, we had pleaded nul tiel record, the record would have been produced; and if we had replied with a special traverse of the pendency of the indictment, the defendant would have replied that the nolle prosequi did not put an end to the indictment. If the defendant's plea be, as it is submitted, bad on a general demurrer, it is not necessary to do more than fall back upon it.

Sir C. O'Loghlen: If there be a discontinuance on the part of the Crown, it is immaterial whether the plea is bad or good, Bisse v. Harcourt, (a) Davenant v. Rafter. (b) The replication here is not according to precedent. In Archbold, the distinction between the conclusions of pleas in bar and pleas in abatement, and between replications in bar and in abatement, is clearly taken. Demurrers are held to be in bar or in abatement according to the conclusion, Anon.(c) Here there is a double discontinuance, caused by the replication and the joinder in demurrer. In a replication, a party must either traverse, or confess and avoid, or introduce new matter and conclude with a special traverse; but the Attorney-General introduces new matter and concludes praying judgment.

Assuming for a moment that the repli. cation is good, a nolle prosequi is no answer, as it does not put an end to the indictment, the only effect being that the defendant goes without a day, Goddard v. Smith.(d) The effect of a cesset processus would be different, Rex v. Benson. (e) MOORE, J. Here there is a judgment of the Court.

:

Sir C. O'Loghlen: It is the mere act of the Attorney-General. That case decides that the Court will give no judgment.

MOORE, J.: But if the Court has done it? Sir C. O'Loghlen: It is erroneous, and as it is still in paper, may be altered. A nolle prosequi puts an end to an information, but not to an indictment.

CRAMPTON, J.: What is the result of letting the defendant go without day?

Sir C. O'Loghlen: That the party cannot be brought in again without a new attach

ment.

CRAMPTON, J.: If so, it is the process which brings him in.

Sir C. O' Loghlen: That is another ques

(a) 1 Show. 155; 1 Salk. 177.

(b) 2 Ld. Ravm. 1053.

Sir C. O'Loghlen: The form in 6 Mod. is inde non vult ulterius prosequi; there is no ideo consideratum est, no judgment of the Court.

As to the plea itself, in civil cases the pendency of another action has always been held a good plea; a fortiori it should be in criminal cases. The general opinion of the profession to the contrary may well be erroneous, as it proved about challenges in felonies not capital, Gray v. The Queen (in error),(a) or about discharging juries in capital cases, Conway and Lynch v. The Queen.(b) The law discountenances multiplicity of suits. At common law a party might be prosecuted at the suit of a private party, i.e., by appeal, secondly at the suit of the Crown, thirdly by presentment of a jury. The pendency of one appeal was a good plea to another appeal, 2 Hawk. P.C. c. 23. s. 126, but an indictment was no bar to an appeal, for one was at the suit of the King, and the other of the subject; nor was an acquittal on an indictment, as a subject could not have two accusations pending at the same time, so neither should the King. The supposed rule to the contrary rests entirely on Withipole's case. (c) It is badly reported, and it is doubtful if the plea was in bar or in abatement; but it is only a decision that a coroner's inquisition pending is no plea in abatement to an indictment, not that an indictment pending was not a good plea. The reporter says that the judges were not free from doubt, and to avoid doubt it was held that the inquisition should be quashed. Hale, who is not an accurate writer, Fost. Cr. L. 26, proceeds on the authority of this case. Hale's reason, "because it is the King's suit," is clearly wrong, for informations qui tam are at the King's suit. Foster's decision in Swan and Jeffereys' case, decided on circuit in 1751, Fost. Cr. L. 104, also followed Withipole's case, but the reason assigned for the judgment is untenable

"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."

The ends of public justice do not require two indictments to be pending at the same time, as when a second indictment is preferred, the previous one may be quashed.

The above authorities, and the passage in Hawkins following them, are all the authorities on the pendency of two indict

ments at the same time.

As to informations, the only authority in favour of the Crown is the obiter

dictum of the Solicitor-General in Rex v.

Stratton. (a) In all the cases where there have been two informations, the first has always been put an end to by entering a nolle prosequi before the second was filed. The first case was Rex v. Redpath, (b) the next Rex v. Dr. Purnell, (c) in 1748 Rex v. Stratton.(d)

A nolle prosequi puts an end to an information, but not to an indictment, Goddard v. Smith, (e) Rex v. Benson.(ƒ) The case in Archbold Cr. L., referred to by Perrin, where the Court refused to prevent the Attorney-General from filing an information because an information had been filed by leave of the Court, was a motion to the discretion of the Court, and it appears that the Court stayed the private prosecutor.

Attorney-General in reply: Sir Colman O'Loghlen has answered himself in one respect. If the entry of a nolle prosequi was no final judgment, we could not have pleaded nul tiel record.

MOORE, J.: You are met by another argument that the replication states argumentatively that the indictment is not pending.

CRAMPTON, J.: Do they not show that, by analogy to civil cases, you should have pleaded nul tiel record.

Attorney-General: The entry is that further proceedings be stayed. The replication would only be argumentative if the proceedings were out of court; the replication states that the suit is pending, but that proceedings have been stayed. In what other way could it be pleaded? But the plea is bad on general demurrer; it does not state that the defendant has pleaded to the first indictment. As in Withipole's case, the defendant might have applied to quash the indictment. In 2 Hale P.C. 221-2 it is said

"If there be an inquisition before the coroner of murder, and returned, and likewise an indictment for the same offence by the grand inquest, it is usual to arraign the prisoner upon the indictment, but he may be arraigned on both at

(a) Dougl. 240.
(b) 10 Mod. 152.
(c) 1 W. Bl. 37.

(d) 21 St. Tr. 1049; Dougl. 240.
(e) 6 Mod. 261.
(f) 1 Sid. 420.

the same time, but if arraigned on 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."

In his second edition Mr. Justice

Foster fully retracted his criticism on Hale, and he reports a decision on this point himself. It cannot make any difference whether the proceedings are by indictment or information. Appeals were essentially proceedings by private individuals, and informations qui tam to some extent resemble them. As to impeachments, in Fitzharris's case (a) an impeachment pending was not held a good plea to an indictment. The defendant might have had the indictment quashed, but the Court will not quash an indictment for an Attorney-General, because he can enter a nolle prosequi.

JUDGMENT.

BLACKBURNE, L.C.J.: To the first of these informations the plea 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 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, wherefore he prays judgment if this Court will or ought to take cognizance of the information aforesaid, and that he may he 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

(a) 8 St. Tr. 243.

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 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, nor even the opinion of any textwriter: but, on the other hand, there are authorities that such a plea is utterly invalid. In Sir William Withipole's case, (a) 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

TT

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 and Jeffereys' case. (a) It was decided in 1751 before Wright and Foster, JJ., at the assizes; there was an indictment for murder, Swan being charged as principal and Jeffereys as aiding; they were arraigned and pleaded. Afterwards a second bill of indictment was preferred and found, charging Swan with petit treason and Jeffereys 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 indictment, 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 (b) was an information ex officio, to which the defendants pleaded and issue was joined. There 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