But the court will not grant an information for a misdemeanor where the offence is charged to have been committed out of the realm, as an information is local; nor where the party complaining comes late, as they will then refer him to the grand jury: but the court will grant a rule nisi, even at the end of a term, for malpractices during the term, though not for any mifconduct before the term'; however, they will not grant a rule where the party complained against is very poor', nor if the complaint is trifling or vexatious, &c'. And if the party making the application mifreprefent the cafe by suppreffing the truth", the court will discharge the rule with cofts; and if upon fhewing caufe the court thould be of opinion that the matter complained of was a mere error in judgment, and that the magiftrate did not wilfully misbehave himself though he acted illegally, the court will not punish him in this extraordinary way, but leave the party complaining to the ordinary legal remedy or method of profecution by action or indictment'; and if > Loft 394- • Ibib. 273.

Rex v. Baxter, 2 Str. 918. Rex v. Smith, 7 Term Rep. 89. Ab. title Informations.

Bacon's

• Loft 155. "Rex v. Wroughton and others, 3

Burr. 1683. * Same v. Palmer and others, 2 Burr. 1162. Same . the justices of Rye, Sayer 25,

they

they fhould think that the magiftrate acted neither illegally or corruptly, or with any bad view or ill intention, they will discharge the rule nifi with cofts; and if they do, the rule fhould be got from the clerk of the rules and taken to the master of the Crown Office, who will give his appointment thereon to tax the cofts, a copy of which must be ferved on the party's folicitor; and then the folicitor for the party who is to be paid the costs attends the appointment with his bill of cofts, when the mafter, in the prefence of the folicitors and their clerks in court or their agents, taxes the bill of cofts, and gives his allocatur for the reduced amount; and if the fame is not paid, on an affidavit of a personal demand by the party to whom they are directed to be paid, the court will grant an attachment to compel the payment of them.

But if the court make the rule nifi abfolute, the prosecutor then enters into a recognizance in 20l. to profecute the information with ef

Rex v. Young, and another, 1 Burr. 556. Same v. Fielding, 2 Burr. 654. Same v. Same, ibid. 719. Same p. Cox, ibid. 785. Same v. Palmer, and others, ibid. 1162. Same v. Price, 7 4 & 5 W. & M. ç. 18. S. 2.

4 Burr. 1925.

fect, and abide by and obferve fuch orders as the court shall direct'; this recognizance the prosecutor's clerk in court prepares and delivers to the folicitor, who then gets it acknowledged before a juftice of the peace where the cause of the information arises, or the clerk of the crown, and afterwards it is filed by his clerk in court. When this is done, the profecutor's folicitor prepares the draft of the information, which, though not abfolutely necessary to be, yet is usually settled by council; and it is prudent it should be fo in every cafe, as particular care must be taken that it is accurately, and fufficiently drawn, it frequently happening for want of its being fo, that the defendant gets off either at nifi prius, or afterwards on his application in arrest of the judgment. When this is done, the profecutor's clerk in court ingroffes and files the information, and makes out a fubpana for the defendant to appear to it, a copy of which the profecutor's folicitor ferves on the defendant, who has four court days to appear to it from the return; within which time his clerk in court ufually enters an appearance, when the defendant's clerk in court delivers the folicitor

an office copy of the information, and the profecutor's clerk in court enters two four-day rules for the defendant to plead, and when they are expired the profecutor's folicitor moves for a peremptory four day rule, which is a motion of courfe, and is drawn up and ferved by the profecutor's clerk in court on the defendant's, who gives notice thereof to the folicitor, and on the expiration of it the profecutor's clerk in court is intitled to fign judgment by default; therefore within that time the defendant's clerk in court usually enters the plea, being in these cases only the general iffue not guilty, unless he means to suffer judgment by default, which in clear cases it is fometimes thought prudent to do, as well to fave the expence of the trial as to operate on the motion for judgment in extenuation of the offence.

The prosecutor's clerk in court then makes up and delivers the issue with notice of trial, and makes the folicitor an office copy of them, and fo does the defendant's clerk in court; and it generally happens now that one of the parties (commonly the profecutor) is defirous

The King v. Genever, 6 T. R. 594.

of

of having the cause tried by a Special jury; in that cafe the folicitor for fuch party gets a motion paper figned by counfel for the rule, which the clerk of the rules draws up on the production of it without any motion, in court, and the folicitor gets the master's appointment on the rule to name the jury; a copy of the rule and appointment is then served on the adverse party's clerk in court, and another at the fheriff's office; this appointment is attended by the folicitors and clerks in court and the fheriff's agent, when the master's clerk extracts out of the fheriff's book of jurors, the names and additions of forty-eight; makes copies for each party, and gives another appointment to frike the jury, which is also served on the adverfe clerk in court; and at the time appointed the clerks in court and folicitors again attend, when each party strikes out twelve alternately, the prosecutor's clerk in court or folicitor beginning firft; but if either party does not attend the master's appointment, the mafter or his clerk ftrikes out for the abfent party, and the remaining twenty-four are put in the jury procefs to be fummoned by the theriff; and if afterwards the caufe goes off at nifi prius for default of jurors,

Rex v. Hart, Cowp. 412.

no