In the county where they were committed.] Smith v. Potter, 1 Str. 415. in the K. B. In a qui tam on the 5 Eliz. for exercising a trade Repealed by without an apprenticeship, it was moved to stay the proceedings, 54 G. 3. c. 96. because the nominal plaintiff had released, and the fact was laid See vol. I. p.14. at Cambridge, whereas the jurisdiction of the king's bench is at last settled to be restrained by the 21 J. c. 4. to actions arising in the county where the king's bench sits, so that if they were to go on to trial, the plaintiff could have no effect of his suit; and of this opinion were the court, and they made a rule that proceedings should be stayed. And not elsewhere.] But where a subsequent statute gives a remedy for the recovery of a penalty in any court of record generally, it so far impliedly repeals this restraint, and consequently leaves the informer at his liberty to sue in the courts at Westminster. 2 Haw. c. 26. ₫ 35. Also where a statute limits suits by an informer qui tam to other courts than those of Westminster-hall, yet any one may, by construction of law, exhibit an information in the exchequer for the whole penalty, for the use of the king. 2 Haw. c. 26. § 25. If jurisdiction be given to the sessions to hear and determine, and it is not said by information, this shall be by indictment, and not information. Cro. Car. 112. By the 18 El. c. 5. § 1. Upon every information which shall be exhibited by a (common) informer, except for maintenance, champerty, buying of titles, or embracery, a note shall be made of the day, month, and year of the exhibiting thereof; and it shall be taken to be of record from that time forward and not before; and no process shall be issued on such information, till it be exhibited in form aforesaid. Sessions hath not power with out express words. Time of exhibiting the information to be en tered. And by the 21 J. c. 4. § 3. No officer shall enter any inform- Oath to be made ation, bill, or plaint, count or declaration, till the informer hath on exhibiting made oath before some of the judges of the court that the offence the information. was not committed in any other county, and that he believeth in his conscience that the offence was committed within a year before the information or suit, within the said county where the said information or suit was committed; the oath to be there entered of record. For as a warrant deprives a man of his liberty, a summons only ought to issue, and not a warrant, without information upon oath. 2 Barnard. 34. 77. 101. This statute only applies to penal statutes on which proceedings may be had before the justices of assize, justices of the peace, &c. ; therefore the court of K. B. will not stay proceedings in debt on a penal statute though no affidavit has been filed that the offence was committed in the county where the action is brought, and within a year before the beginning of it. 3 T.R. 362. And in the court of king's bench, by stat. 4 & 5 W. & M. c. 18. Recognizance In cases of informations for trespasses, batteries, and other miss to be given. demeanors, the clerk of the crown shall not (except by order of court) exhibit or receive any information in the name of the master of the crown office for trespasses, batteries, or other misdemeanors, or issue any process thereupon, before he shall have taken or shall have delivered to him a recognisance from the prosecutor, with his place of abode, title, or profession, to be entered, to the person against whom the information is exhibited, in the penalty of 201. that he will effectually prosecute such information, and abide by and observe Rule to shew cause. The person applying must first make an exculpatory affidavit denying the fact. such orders as the said court shall direct; which recognisance the said clerk of the crown, and also every justice of the peace where the cause of such information shall arise, are impowered to take; after the taking or receipt whereof he shall make an entry thereof upon record, and shall file a memorandum thereof in some public place in his office to which all persons may resort without fee. (See § 6. of this act, post.) In the name of the master of the crown office.] From hence it follows, that informations exhibited by the attorney general remain as they were at common law. 2 Haw. c. 26. § 6. And the general practice of the court of king's bench is, not to order an information to be filed, without first making a rule upon the defendant to shew cause to the contrary; and this rule is never granted but upon motion in open court, grounded upon affidavit of some offence of an enormous kind, or dangerous tendency. The defendant must be personally served with the rule, and if he do not at the day given for that purpose satisfy the court by affidavit that the substance of the charge is false or frivolous, or other reasonable cause against the prosecution, the court usually grants the information. 2 Haw. c. 26. § 8. In R. v. Webster, 3 T. R. 388., a rule had been obtained calling on the defendant, who was a justice of the peace for Devon, to shew cause why an information should not be exhibited against him, for having improperly convicted a person for killing a hare, the conviction having been afterwards quashed at the sessions. The party applying for the information charged the defendant. with very gross misconduct; a preliminary objection was taken to the court's entering into the merits, because the party convicted, who applied for the information, had not made any affidavit of his being a qualified person, and that he had taken out a certificate. And it was contended, that it was the constant practice of the court to refuse applications of this sort for acts of injustice done to individuals under pretence of certain improper acts done by them, unless those persons make an exculpatory affidavit denying the fact with which they were charged; as in the case of libels. On the contrary, it was contended, that that was not necessary in a case like the present. This application was not made on account of the injury done to the individual, but on account of the injury done to the public, in a gross abuse of a judicial duty. And whatever might be the acknowledged demerits of the suffering party, still the crime was the same in the magistrate, who acted in open violation of his duty. -Ld. Kenyon Ch. J. The question is not whether the doors of justice shall be stopped, but whether justice shall be approached by this particular avenue. If the defendant has acted improperly, however guilty the party applying might be of the charge which was imputed to him, there are other ways open to him for redress. But we cannot interfere in this particular manner, according to the established rules of the court, without an affidavit from the party complaining that he is innocent of the fact with which he was charged. I remember an application of this sort against Sir John Fielding, for having issued a warrant against one Bernard, upon a charge against him (not upon oath) by the Duke of Marlborough, for sending threatening letters to extort money from the duke; but the information was denied for want of such an exculpatory affidavit from Bernard. Ashhurst and Grose Js. concurred. (Buller J. absent.) Rule discharged. 2 T. R. 198. In granting informations, the court always look to the motive, R. v. Barratt, and when a person applies for an information, he is understood 2 Dougl. 466. R. v. Sparrow, to wave his right to bring an action, unless the court should, on hearing the whole matter, be of opinion that it is a proper subject to be tried in a civil action, and should specifically give him leave to do so; if an information, therefore, be granted, it is of course to stay proceedings in an action for the same cause. The court of king's bench granted an information against a R. v. Woodrow, person refusing to take on him the office of sheriff, because the 2 T.R. 731. vacancy of the office occasioned a stop to public justice; and the year would be nearly expired before an indictment could be brought. information, By the 21 J. c. 4. § 1. The like process shall be awarded upon Process on an an information by a common informer, as in an action of trespass vi et armis at the common law. And consequently, the process in all such suits must be by attachment, or pone per vadios, and after by distress infinite, where by the return the party appears to be sufficient, otherwise by capias. 2 Haw. c. 27. § 13. indorsed. And by 18 El. c. 5. § 1. On every process upon an information Process to be by a common informer shall be indorsed as well the party's name that pursueth the process, as also the statute upon which the information is grounded. formation. But on a criminal information, it is the usual practice of the Process on a crown office, first to award a subpoena; and after the return criminal inthereof, if no appearance be entered in four days, and an affidavit be made of the service of the subpoena, to make out a capias of course, where the defendants are informed against in their private capacity, and a distringas where they are sued as a corpor ation aggregate. 2 Haw. c. 27. § 14. By 21 J. c. 4. §4. If any information, suit, or action shall General issue. be brought against any person on a penal statute, the defendant may plead the general issue, and give the special matter in evidence. The court will not generally quash an information upon motion, Information not but the party must either plead, demur, or move in arrest of judg- quashed upon ment. i Salk. 372. Str. 185. 953. motion. quired in an information, But seeing that an information differs from an indictment in Certainty relittle more than this, that the one is found by the oath of twelve men, and the other is not so found, but is only the allegation of the officer or person who exhibits it; whatsoever certainty is required 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. 2 Haw. c. 26. § 4. And therefore the statutes of jeofails, (from J'ay faille, I have failed,) or the statutes that do remedy oversights in pleading, extend not to informations. Wood's Inst. b. 4. c. 4. Not aided by the statutes of jeofails. If an information contain several offences against a statute, and Information be well laid as to some of them, but defective as to the rest, the good as to part. informer may have judgment for so much as is well laid. 2 Haw. c. 26. § 19. Generally, if a (common) informer shall willinelgly day his Costs against suit, or discontinue, or be nonsuit, or shall have a verdict or judg- the plaintiff, VOL. III. F ment against him, he shall pay costs to the defendant. 18 El. c. 5. § 3. And in the court of king's bench particularly, by 4 & 5 W. 3. c. 18. § 2. if the defendant in such case as in this stat. is aforementioned, shall appear and plead to issue, and the prosecutor shall not at his own costs within a year after issue joined, procure the same to be tried, or if a verdict pass for the defendant, or the informer procure a noli prosequi to be entered, the court of king's bench may award the defendant his costs, unless the judge shall certify that there was a reasonable cause for exhibiting such information. And if the informer shall not, in three months after such costs taxed and demand made, pay the same, the defendant shall have the benefit of the recognisance above mentioned, to compel him thereunto. § 6. But nothing in this act relating to informations shall extend to any other than such as are exhibited in the name of the king's coroner, or attorney in the king's bench, (i. e. the master of the crown office.) Unless the judge shall certify.] R. v. Woodfall, 2 Str. 1131. Upon trial of an information for a libel, the jury acquitted the defendant contrary to the direction of the court. Upon which the defendant moved above for costs on this statute, which provides that in cases where the defendant is acquitted, the court is authorised to award costs to the defendant, unless the judge shall at the trial certify that there was a reasonable cause. In this case, no such certificate was asked; but it was insisted on for the prosecutor that it was discretionary in the court. The chief justice certified ore tenus that it was a verdict against evidence; but then he and all the others held, that it was now too late to enquire into the probable cause; and that it was not discretionary, but compulsory upon them, where there was no certificate. So the defendant had his costs. But it seems to be in a great measure settled, that an informer upon a popular statute shall in no case whatsoever have his costs, unless they be expressly given him by such statute: for it is certain, that he cannot recover them by the common law, for that doth not give costs in any case; neither can he recover them by the statute of Gloucester, which gives the demandant his costs in all cases wherein he shall recover his damages; for this seems to suppose some damage to have been done to the demandant in particular, which cannot be said in any popular action. But it seems agreed, that an action on a statute by the party grieved, for a certain penalty given by such statute, is within the statute of Gloucester, because such penalty is intended him by way of recompense for his particular damage by the offence prohibited, and if he could recover that only and no more by way of costs, it would be in most cases in vain for him to sue for it, since the costs of suit would exceed it. Jackson v. The Inhabitants of Calesworth, 1 T. R. 71. But it is said, that no costs shall be recovered in an action on a statute, which gives no certain penalty to the party grieved, but only his damages in general, if such a statute be introductive of a new law, and give a remedy in a point not remediable at the common law; but there is not that inconvenience in this case, as in the former; because no certain sum being specified, the jury may give the plaintiff a full satisfaction by way of damages. 2 Haw. c. 26. § 57. 18 Eliz. c. 5. § 4. The punishment of an informer misbehaving The compounding of informations on penal statutes is a mis- Compounding demeanor against public justice, by contributing to make the law information on odious to the people. 4 Blac. Com. 136. Therefore, in order to penal statutes. discourage malicious informers, and to provide that offences when once discovered shall be duly prosecuted, it is enacted by 18 Eliz. c. 5. § 4. "That if any person or persons (except the clerks of the court only, for making out of process otherwise than is above appointed) shall offend in suing out of process, making of composition or other misdemeanor, contrary to the true intent and himself in the meaning of this statute, or shall by colour or pretence of process, prosecution of or without process, upon colour or pretence of any matter of offence his suit, &c. against any penal law, make any composition, or take any money, reward or promise of reward for himself or to the use of any other, without order or consent of some of her majesty's courts at Westminster, that then he or they so offending being thereof lawfully convicted, shall stand on the pillory (a) in some market-town next adjoining where the same offence shall be committed, in the open market time, and therein remain by the space of two hours and shall from and after such conviction for ever be disabled to pursue, or be plaintiff or informer in, any suit or information upon any statute popular or penal; and shall also for every such offence forfeit and lose ten pounds of lawful English money, the one half thereof to the queen's majesty, her heirs and successors, and the other half to the party grieved thereby, to be recovered in any court of record, by action of debt or information, in which no essoin, protection, injunction or wager of law shall be permitted or allowed; and that justices of oyer and terminer, justices of assize What justices in their circuits, and justices of peace in their quarter sessions, may hear and shall have full power and authority to hear and determine all determine these offences to be committed or done contrary to the true intent and meaning of this present act." ; offences. Gotley's case, MS. C.C.R. To compound an offence c. 84. § 13. Richard Gotley was tried and convicted before Le Blanc J. at the Shrewsbury Lent Assizes, 1805, on an indictment upon the stat. 18 Eliz. c. 5. § 4. for compounding an offence against the highway act [13 G. 3. c. 84. § 13.] and taking a sum of money without process to prevent an action being brought, without the order or consent of any of his majesty's courts at Westminster, and without law ful authority.—The indictment contained several counts, some of them stated the party of whom the money was taken to have committed the offence, whereby the penalty was incurred; others of them stated only that the prisoner compounded, and took the money by and upon colour and pretence of a certain matter of offence pretended to have been committed. It was satisfactorily c. 5. § 4. proved that Edward Round, the person named in the indictment, from whom the prisoner was charged to have taken money by way of composition, had incurred a penalty of 51., under the stat. 13 G. 3. c. 84. § 13. by suffering his waggon to be drawn on a turnpike road by more than four horses, he being the owner, and that the prisoner had received from him 51. 2s. (the 2s. over (a) By 56 G. 3. c. 158., this part of the punishment cannot now be inflicted. But sect. 2. of that statute empowers the court to pass such sentence of fine or imprisonment, or of both, in lieu of the sentence of pillory, as to the court shall seem proper.. ceeding be depending, is within 18 Eliz. |