HIGH COURT OF JUSTICIA RY.

TUESDAY, APRIL 3, 1839.

THE COURT MET AT TEN O'CLOCK.

PRESENT.

LORDS MEADOWBANK, M'KENZIE, MONCREIFF, Medwyn.

Counsel for the Crown.- ANDREW RUTHERFURD, Esq. Solicitor General; COSMO INNES, ROBERT HANDYSIDE, and ARCHIBALD DAVIDSON, Esquires, Advocates Depute; DAVID CLEGHORN, Esq. W.S. Agent.

Counsel for the Pannel.-PATRICK ROBERTSON, and ADAM ANDERSON, Esqs.; Agent absent.

The pannel took his place at the bar, accompanied by Ephraim Lockhart, Esq. W.S. his agent in the civil actions. After the usual forms had been gone through, Lord Meadowbank thus addressed the pannel: Alexander Hum

phrys or Alexander, calling yourself the Earl of Stirling, you have been served with a copy of the libel, charging you with the crime of forgery, and of fabricating certain documents, knowing them to be forged. Are you guilty or not guilty of this offence?

Pannel. Not guilty, my Lord.

The defence of the prisoner was then read, which denied that he had the slightest ground to suspect that the documents were forged or fabricated, and set forth that he had produced them under legal advice. It stated that he was not in a condition to go to trial, as one of his counsel and his agent had gone to Paris to prepare evidence for his defence, that he was unable to furnish any list of witnesses, and moved the Court for delay, after determining upon the relevancy of the indictment, and that additional defences would be lodged in due time.

Mr Patrick Robertson. My Lords, I have now to move the Court to delay the trial. There is no objection to the relevancy on the part of the prisoner: and before the interlocutor on the relevancy is pronounced, I move the Court not to proceed at present with the trial, on grounds which appear to us essential for the ends of justice. In the indictment, the forgery is said to have been committed between the 21st of December, 1836, and the 27th of July, 1837, a considerable period of time; then in all, there are thirty-eight witnesses for the prosecution, and fifty-three productions. Of the witnesses two of them are described as resident in London; five of them are French witnesses, three of whom are stated to have come to Edinburgh lately, and other two have arrived only within the last two or three days. As soon as the indictment was served, the Counsel for the Earl of Stirling directed their attention to the proceedings. We looked at such productions as were made, as soon as they came into our hands, (and some of them were not made till yesterday,) and after full consideration, it appeared to us essential that one of our junior Counsel and agent, should proceed to London and Paris, to make inquiries necessary for the defence. They have been in London some time, exclusively employed in the investigation, and left London for Paris on Monday last. We are of opinion that we cannot proceed to trial before the first week in May. Your Lordships will see from the extent of the inquiry, and the distance between this and Paris, that we ask for no unjustifiable delay on the part of the prisoner.

Lord Meadowbank. The Sacrament is dispensed in Edinburgh on the first week in May. If it were to be taken in the first week in May we would be interrupted by the fast day. We can therefore neither take the Thursday nor the Friday. If we were to take the Monday after, from the number of witnesses to be examined, the trial may be continued till Friday or Saturday; and Monday the 6th May, is the middle of the Glasgow Circuit.

The Solicitor General. - My Lords, I have no objections to offer to the motion for delay generally; but I beg to state, in reference to one of the grounds stated, namely, that we were late in making the productions, that my learned friend is aware that the greater part of the productions were made at an unusually early period. One of them, of great consequence in the case, was not lodged so soon, because it was not in our hands till yesterday, or the day before yesterday, and it was put into the hands of the prisoner's Counsel, as soon

as we got it, for the purpose of enabling them to facilitate their preparation. Though they had not the production itself, they had a copy of it, which gave them all the requisite information; and accordingly they did use some despatch in sending one of the Counsel, and the agent, to Paris. Now in regard to the day of trial, I have to say that it cannot be delayed beyond the 29th instant. There is no desire on the part of the Crown to hurry it on ; but the interval is perfectly sufficient to enable them to be prepared with their defence. I state that day, not for the convenience of myself or the Court, but from the necessities of the Court. For myself personally, it might be more convenient to put off the trial till the 6th of May, as fixing it for the 29th instant will force me to return to Edinburgh to attend at the trial earlier than I could wish; but the necessities of the Court require that it should come on on the 29th; and I have therefore to move that day for the trial.

Mr Robertson. In regard to the document, which is a most important one, I wished merely to state the fact that we did not see it till we went to the Justiciary Office yesterday. I have no right to dictate the day, but I do not see that there can be any objection to the motion I have submitted.

Lord Meadowbank. - Monday the 6th May is in the middle of the Glasgow circuit, and there is a great deal of business there to be got through, which must render it impossible for any of us to come here on that day.

Mr Robertson. - We are anxious to have the day so fixed that there can be no farther pretence for delay on the part of the prisoner.

We

Solicitor General. The Prisoner's Counsel may be perfectly prepared by the 29th. I will take their chance. are obliged to fix it for that day, in consequence of the necessities of the Court. It will be for my learned friend to shew grounds for continuing the diet. The Counsel and agent have been in Paris for ten days.

Mr Robertson. They left London for Paris on Monday. They had inquiries to make in London which they conducted with all speed and anxiety, and they have important inquiries to make in Paris. I have a letter from Mr Inglis giving me an account of what they have done.

Lord M'Kenzie. There is an immense deal of business before the Glasgow circuit, and Lord Meadowbank cannot possibly leave it.

Lord Meadowbank. - The 29th of the month is the only day which the Court, consistently with its duties, can fix.

Solicitor General.-There are but six Judges in the Court, and I can only have such a Court as there is now, and we must make some allowance in case of accidents.

Lord Moncreiff-You have sufficient time for preparation,three weeks from the time your counsel and agent left London · for Paris.

Lord Meadowbank.— Well, delay it till the 29th.

Mr Robertson. I do not mean to press the right, if I have the right, for a landed Jury. I shall take a common Jury. Solicitor General. - Your Lordship will pronounce the interlocutor with respect to the relevancy of the indictment, in respect of the prisoner having waived his privilege as a landed

man.

Mr Robertson.

I do not know if I have the privilege. Lord Moncreiff. Counsel declares that he does not mean to ask for a landed Jury.

Solicitor General. The time of this delay, being created by the prisoner, is to be deducted from the time allowed for the running of the letters.

Mr Robertson. Certainly.

Lord Meadowbank. There are a multiplicity of documents referred to, and it may be necessary for the Counsel for the prisoner to have copies made for themselves at the office; or it may be necessary for the Judges to attend at the office to make themselves masters of the purport of the documents before the trial. The Crown will have no objections, I presume, to furnish for the prisoner's Counsel whatever copies of the documents they may deem necessary. I mean to ask for copies of those papers, and it is proper that this should be done with the knowledge of the prisoner's Counsel, or to go to the office to inspect them. There can be no objections, I presume, to that?

Mr Robertson. No certainly. The most of them are printed, a great many of them were printed for the civil case. Perhaps the Crown may make a reprint of the whole.

Solicitor General. I have no objections to make a reprint of whatever may be deemed necessary.

Mr Robertson. A minute ought to be lodged on the part of the Crown, in regard to documents in the Register office, which we cannot bring here.

Lord M'Kenzie. And also to give access to such docu

ments to the prisoner's Counsel and agents at all convenient times.

The following additions to the ordinary interlocutor were then read:

3d April, 1839. Thereafter, and in relation to the motion of adjournment made in the defences, to which the Public Prosecutor states no objection, the Lords continue the diet against the Pannel till the 29th day of April current, at 10 o'clock forenoon, and ordain all concerned then to attend, each under the pains of law, it being expressly declared, on the motion of the Solicitor General, and with the consent of the Pannel and his Counsel, that, as the motion for delay proceeded from the Prisoner, and was granted for his accommodation, the period of adjournment shall not be reckoned in the running of the letters of intimation. Farther, the said Lords ordain the Pannel, in the meantime, to be carried to and detained in the Tolbooth of Edinburgh.

(Signed) A. MACONOCHIE.

The names of the common Jurymen were called over, to prevent any mistake, and were summoned apud acta to attend on the 29th April.