pafs the fentence, take into confideration whatever imprisonment he may have previously undergone'. But upon the recommendation of the court, the defendant, in these as in profecutions for assaults, libels, &c. to avoid the judgment, often confents to go before the master; that is, to refer the whole of the matter to him, and comply with what he shall think fit to direct the parties to do. When that is the cafe, his appointment must be got on the rule, which the clerk of the rules will draw up on the occafion, and a copy ferved by the profecutor's folicitors, on the defendant's clerk in court or folicitor: the folicitors then attend the appointment, and deliver him the briefs and affidavits that may have been made in aggravation or mitigation, when he will confider the fame, as well as any other affidavits or matters the parties' folicitors may think proper to lay before or state to him; after which he will deliver the folicitors, his opinion on the matter, and with that it is ufual for the defendant to comply, as otherwise the court will proceed to pass their fentence on him. In these cases the master frequently directs the defendant to pay the cofts, and make the pro

'The King v. Wilkes, 4 Burr. 2527. Same v. Waddington, 1 Eaft. Term Rep. 143.

fecutor

fecutor fome specific compenfation, either by apology or otherwife; and when he directs the defendant to pay the profecutor's cofts, the profecutor's folicitor makes out his bill, and gets and ferves the master's appointment on the rule to tax them, and then attends the fame with the bill, when the mafter will tax the cofts, upon which the defendant commonly pays them. But if, inftead of a reference, the court proceed to pass fentence and fine the defendant, the prosecutor is intitled to a third of the fine towards his cofts; to obtain which, when the defendant has paid it to the master, the prosecutor's folicitor gets his bill of cofts taxed by the mafter, who thereupon certifies that the profecutor has been put to fuch an expence; and upon the production of it to two of the judges, they fign a fiat for the allowance of the third which the master pays accordingly and if that is infufficient to reimburse the profecutor his expences, the crown will fometimes allow him a fufficient part of the refidue of the fine on a memorial to the treasury for that purpose stating the particular circumftances of the cafe.

But if the defendant is acquitted on the trial, or the profecutor does not proceed on

C

to trial within a year after the iffue is joined, or enters a noli profequi, the court are to award the defendant his cofts, (unless the judge before whom the information is tried fhall certify at the trial in court on the record that there was a reasonable caufe for exhibiting the information); and then if the cofts are not paid within three months after they are taxed and demanded, the defendant is intitled to the benefit of the recognizance entered into by the prosecutor to compel the payment of them; and, on the other hand, the profecutor is intitled to have the recognizance difcharged on paying the 201 mentioned in it', although the taxed costs may amount to double the fum, the confequence of which is, that the defendant will at all events be the remainder beyond the 207. out of pocket.

e

4 & 5 W. & M. c. 18. §. 2. another, 2 T. R. 145.

The King v. Filewood and

CHAP.

CHAP. II.

Of Informations against private Perfons for
Mifdemeanors.

IN

for

N this court informations may alfo be filed by the mafter of the Crown Office upon the complaint or relation of a private subject any grofs and notorious misdemeanors, such as riots, batteries, libels, and other immoralities of an atrocious kind not peculiarly tending to disturb the government (for these are left to the care of the attorney general), but which, on account of their magnitude or pernicious example, deferve the most public animadverfion; but fuch information cannot be filed without the exprefs direction of the court, which is obtained in the fame manner as the informations against magistrates, except that no notice of the motion for the rule nifi is neceffary; and in this cafe, as well as that, the party complaining muft exculpate himfelf in the affidavit on which the application is made, unless he is at a great distance abroad, or the charge is only general, or of criminal

b

* 4 Blac. Com. c. 23.
As to the title of it fee p. 3, ante.

4 & 5 W. & M. c. 18.

of the apformation

plication for the in

fequent

and the fub

proceedings thereon.

ap

language in parliament". But as it is difcretionary in the court to grant or refuse the plication, they will not affift in this extraordinary proceeding cheats and gamblers against other cheats and gamblers, but leave them to their ordinary remedy, though, wherever a ftrong ground is laid, the court will grant the information if the subject matter is fit for this mode of profecution': after the leave of the court is obtained to file the information, the profecutor enters into the recognizance, the folicitor prepares the draft of the information", which his clerk in court ingroffes and files, and thereupon makes out the fubpoena for the appearance; in fhort, the fubfequent proceedings are fimilar to those already pointed out under the head of informations against magistrates".