The plaintiff in error was indicted at the Spring Term, 1847, of the Circuit Court of Chambers, for gaming. Two writs of capias were issued against him, both of which were returned, “not found.” At the Spring Term, 1848, the following entry was made upon the record: “Upon motion of the solicitor, leave of the court being first had, this case is withdrawn from the docket, with leave to reinstate if necessary.” No further step was taken to bring the defendant into court until January, 1851, when, upon the order of the solicitor, a capias was issued, and the defendant arrested. At the trial the defendant moved the court to *13strike tbe cause from tbe docket, on. tbe ground that it bad been discontinued; but bis motion was overruled, and be excepted. Tbe overruling of this motion is now assigned as error.
All tbe authorities agree that every suit, whether civil or criminal, may be discontinued. Hawkins’ Pleas of tbe Crown, Vol. 2, 416; Cbitty’s Criminal Law, 864; and a discontinuance may be defined to be a gap or chasm in tbe proceeding, occurring after tbe suit is pending. Cbitty’s Criminal Law, Yol. 1, 364; Hawkins’ Pleas of tbe Crown, Yol. 2, 416; Black. Yol. 8, 296. If we test this case by these rules, it appears to me it is impossible to say there has not been a discontinuance of the suit, for it was pending from the time tbe indictment was returned into court by tbe grand jury, and there has been a chasm in tbe process of more than two years, and this chasm was produced by tbe joint act of tbe solicitor and tbe court, or rather by tbe act of tbe solicitor with tbe approbation of tbe court. If-this be not a discontinuance, then I say that there is no such thing as a discontinuance known to our law. I would not bold that tbe mere failure to issue process would be a discontinuance; because tbe issuing of process upon an indictment is made tbe duty of tbe clerk by our law, and be being a mere ministerial officer, tbe defendant ought not to be allowed to take advantage of bis omissions to perform bis duty; but when tbe cause is taken from tbe docket by tbe solicitor, with tbe permission of tbe court, and no process is issued thereon for more than two years, it must be discontinued, if by law a criminal case can be discontinued by failing to prosecute it regularly.
It is, however, insisted by tbe attorney general that tbe practice of taking indictments off tbe docket, and declining to issue process on them for a time, has been sanctioned by tbe Circuit Courts, for a considerable time, and has been found beneficial in tbe administration of tbe criminal law. This may be true, but I can find no warrant for such a practice in tbe common law, and I am certain in my own mind that our statute law gives none. Tbe second section of tbe eleventh chapter of tbe Penal Code provides that it shall not be lawful for tbe attorney general, solicitor, or other prosecuting officer to enter a nolle prosequi on any indictment, or in any other way *14to discontinue or abandon tbe same, without the leave of the court having jurisdiction to try the offence being first had and entered on its minutes. Clay’s Dig. 460-461. But I can draw no other inference from this act than this; the attorney general or solicitor, who before its passage had the exclusive control of all prosecutions, and could enter a nolle prosequi or discontinue a prosecution, as he saw fit, must, since the passage of the act, obtain the consent of the court before he can do either. But when the one or the other is done with the consent of the court, that is, when there has been a nolle prosequi entered, or the prosecution discontinued, the same consequences follow which would have resulted from a discontinuance or a nolle prosequi before the ¡sassage of the act.
It is also urged that this practice has obtained in Kentucky, and we are referred to the case of the Commonwealth v. Ashlock, 7 B. Monroe, 44. I admit that this case fully sustains the practice pursued by the Circuit Court in this case; but on what authority, or in accordance with what rule, the courts of Kentucky proceed, I know not. If it be in pursuance of a statute of their own, then their decision is correct; but if they profess to proceed according to the practice of the common law of England, then their decision is incorrect; for the common law gives no countenance to such a practice. Indeed, the Court of Appeals of Kentucky admit that the case would have been discontinued if leave had not been obtained to commence again at the time permission was granted to suspend further proceedings; but I am at a loss to know how leave to commence the prosecution afresh, by issuing new process, can prevent the actual chasm in the prosecution, resulting from the omission to prosecute, unless it be declared by the legislative will that such a chasm shall not produce a discontinuance. I therefore infer that the courts of Kentucky are governed by statute law, or if they are not, then I must say that their decision is erroneous, and I cannot follow it. That it would be well for the legislature to adopt such a practice by enactment, I have no doubt; but the court, which is guided by rules as well in practice as in determining upon the guilt or innocence of the accused, cannot. We must be governed by the rules of law, as they exist. We have not the power to introduce new laws, on the ground that they are *15more convenient than tbe old, or that they wonld better subserve tbe purposes of justice.
Tbe ruling of tbe Circuit Court was erroneous, and tbe judgment must be reversed.