THE SOLICITOR'S PRACTICE ON THE CROWN SIDE OF THE COURT OF KING'S BENCH. CHAP. L Of Informations against Magiftrates for Mifdemeanors. THE HE Court of King's Bench exercising a fuperintendency over all inferior jurisdictions, and having a difcretionary power of inflicting exemplary punishments on inferior magistrates, as well as private perfons, when they are found guilty of misdemeanors, &c. will accordingly inflict, either fine, imprisonment, or other infamous punishment, as the nature of the Of the application for the information. cafe, confidered in all its circumstances, fhall require, and will punish juftices of the peace, and other inferior magiftrates, by information filed in the name of the master of the Crown Office', when in the execution of their office they act intentionally illegal, or wilfully mifbehave themselves by acting corruptly, partially, or malicioufly, or with any bad view or ill intention. But before any private fub'ject can file an information, the leave of the court must be obtained for that purpose, which is granted on the motion of counfel to the court, fupported by an affidavit of the material circumstances, wherein the innocence of the party applying for the information muft appear; it being the general course of the court to refuse the rule for the information, unless the party complaining exculpates himself in the affidavit on which the application is made. Previous to the application, a notice in writing of the intended motion for the information, stating the ground of the complaint", is to be given to the magiftrate, which should be ferved on him perfonally, or at leaft left at his dwel * See Ba. Ab. title Court jof K. B. 18. s. 2. Doug. 270, and Same v. Webster, 3 T. R. 388. ! Appen dix, No. 1. ling house, in fufficient time to enable him to oppose the application in the first instance if he fhould think fit; but that the magistrate very feldom does, as when the rule nifi is granted, the affidavit containing the particular charges of the alledged mifconduct is filed, which enables him to answer the complaint more compleatly than he could poffibly do before; an affidavit of the fervice and the affidavit of the circumftances of the cafe fhould then be prepared, these affidavits fhould not be intitled in any caufe, for if they are, they cannot be read, as, until the rule nifi is granted, there is no caufe in court to intitle it in; and particular care fhould be taken that the facts are fully and accurately stated in the affidavit of the merits, especially as it is the general rule of the court not to permit fupplementary affidavits to be received; the motion is then made for a rule to fhew caufe why an information fhould not be filed for the mifdemeanor complained of, and being granted, the clerk of the rules in the crown office draws it up, and a copy of it is ferved by the folicitor; but it does not require perfonal fervice, as leaving • See Jones on the demife of Griffiths v. Marth, 4 T. R. 464. it at the party's houfe with his wife is fufficient"; the original rule however muft at the fame time be shewn to the perfon on whom the copy is ferved, and an affidavit of the fervice is then to be made to support the motion for making the rule absolute in cafe no cause fhould be thewn against it; and that used commonly to be the course, for it was thought more prudent to fuffer the information to be granted than to expofe the party's defence before the trial; but now the party called on, generally thews caufe against the rule nifi on his affidavit of the circumftances of the cafe, which need not be intitled in any caufe*, though it may be', and generally is in the name of the King against the person called on by the rule nisi, and this feems to be the regular way, as every affidavit must be intitled in the court and caufe to which it applies; for if it is not, the court have no jurifdiction over the matter, and therefore it cannot be read, even with the confent of the parties". It frequently happens that upon the motion 1 Same Rex v. Badouin, 2 Stra. 1044- i Appendix, No. 3. The King v. Harrison and others, 6 T. R. 60. "Owen v. Hurd, 2 T. R.643. The King 7. Robinson ante 3. v. The Sheriff of Middlefex, 3 T. R. 133. Wood v. Webb, ibid. 253. to to make the rule abfolute, if not before, the party complained against, applies to the court to enlarge the time for fhewing cause, either upon the ground of the rule nisi having been ferved late, or for fome other reason, when, if the court think the reason fufficient, they will make a rule enlarging the time; but will thereby oblige the party called on, to file his affidavits in answer to the application by a particular day, and confent, in cafe the rule should be made abfolute, to appear and plead immediately if the rule is enlarged from one term to another. When the time for fhewing causes arrives, the court, on the production of the affidavit of the service of the rule nifi, if it has not been enlarged and no cause is shewn, or on hearing the counsel for the party called on, will make the rule abfolute, if they fhould be of opinion that under all the circumstances they ought to fend the matter to be tried by a jury; it should however be recollected, that the party complaining, by his application for the information waives his right of action, unless the court on hearing the whole. matter, are of opinion it is a proper fubject to be tried in a civil action, and fpecifically give him leave to try it in one accordingly". * Rex v. Fielding, 2 Burr. 719. Same v. Sparrow and another, 2 T. R. 198. B 3 But |