Crown Office. 2 Hawk. c. 26. S. 1. 3 Bacon's Abr. tit. Inform. 3dly, Where by many penal ftatutes the profecution upon them is by the acts themfelves limited to be by bill, plaint, information or indictment, there, without doubt, the profecution may be by information as well as by any other of thefe methods': alfo of common right fuch an information, or an action in the nature thereof, may be brought for offences against ftatutes, whether they be mentioned by fuch ftatutes or not, unless other methods of proceeding be particularly appointed, by which all others are impliedly excluded. 2 Hule's Hift. c. 20. 2 Hawk. . c. 26. f. 2. 4thly, Informations in nature of a quo warranto may be, and frequently are exhibited, with leave of the court, for ufurping privileges, franchifes, &c, which in fome refpects is a civil fuit, as it is ufed as a proper means to try a right, though it punishes the misdemeanor, fuch as the ufurpation 3 Bacon's Abr. tit. Inform. 2. II. In what cafes an information will lie. Hawkins fays that it is every day's practice, agreeable to numberlefs precedents, viz. either in the name of the king's attorney general or of the mafter of the Crown Office, to exhibit informations for batteries,-cheats,-feducing a young man or woman from their parents, in order to marry them against their confent, or for any other wicked purpofes 3,-fpiriting away a child to the plantations,— reícuing perfons from legal arrefts,-perjuries and fubornations thereof,--forgeries,--confpiracies, (whether to accufe an innocent perfon, or to impoverith a certain fet of lawful traders, or to procure a verdict to be unlawfully given, by caufing perfons bribed for that purpose to be fworn on a tales) and other fuch like crimes, done princi pally to a private pèrfon, as well as for offences done. principally to the king; as for libels,-feditious words 4, 1 This will be fully treated of under the title INFORMATION QUI TAM. 2 It does not feem neceffary to enlarge on this kind of inforination in the prefent work, as the fubject does not fall within the scope of the principal defign. And an information has been granted for taking away a young woman from her gardian, although Chancery has committed the offender for a contempt. 2 Shange, 11 7—and even for taking an infant from her putative father. 2 Strange, 1162. 4 And that although the offender has been previously punished, viz. in an academical way, by the vice chancellor. 1 Black. R.p. 37. D 3 riots, Information to be only granted on motion. riots,-falfe news,-extortions 5,-nuifances, (as in not 2 Hawk. III. In what manner they are to be laid. As an information differs from an indictment in little more than this, that the one is found by the oath of twelve men, and the other is not fo found, but is only the allegation of the officer who exhibits it; whatsoever certainty is requifite in an indictment, the fame at leaft is necessary alfo in an information. 2 Hawk. c. 26. f. 4. IV. How informations are to be filed and proceeded on. It seems to be the established practice at this day, not to admit of the filing of any information, (except those exhi bited in the name of his majesty's attorney general) without first making a rule on the perfons complained of to fhew caufe which rule is never granted but upon motion made in open court, and grounded upon affidavit of fome mifdemeanor, which, if true, doth either for its enormity or dangerous tendency, or other fuch like circumftances, feem proper for the most public profecution; and if the perfon on whom fuch rule is made, having been perfonally ferved with it, do not, at the day given him for that purpose, give the court good fatisfaction by affidavit, that there is no reasonable caufe for the profecution, the court generally grants the information; and fometimes, upon fpecial circumstances, will grant it against thofe who cannot be perfonally served 5 As if a justice demand a fhilling to discharge a warrant, and commit the party for not paying it. with fuch rule; as if they purpofely abfent themfclves, or the like. 2 Hawk. c. 26. f. 8. But it is a general rule not to grant an information for a private libel, which charges a specific and particular offence, fuch as the having been concerned in a certain monopoly, or the like; unless the prosecutor, in the affidavit on which the rule to fhew caufe is granted, hath fworn directly and pofitively to his innocence. 1 Doug. 8vo ed. 283. 387. However, this exculpatory affidavit is not infifted upon where the party libelled is abroad at a great diftance; nor is it at all neceflary where the fubject matter of the libel is general imputation, fuch as, that the party is a traitor, a thief, a fodomite, or the like, for it would be abfurd to require a profecutor to deny fuch a general charge. 1 Dong. Svo ed. 390. And this rule in regard to libels holds equally good, when the application is grounded upon acts of injuftice done to individuals, under the pretence of improper als done by them; therefore the court will not grant an information against a magiftrate for having improperly con- ' victed a perfon, unless the party complaining makes an affidavit that he is innocent of the fact with which he was charged. The K. v. Webfter, Tr. 29 Geo. 3. Rep. 389. 3 Term. before filed. By 4 Will. & Mar. c. 18, the clerk of the crown in the Recognizance to court of King's Bench fhall not, without exprefs order given in be entered into pen court, file any information for any trefpafs, battery, or other misdemeanor : or fue any process thereupon, before he fball have taken a recognizance from the perfon procuring fuch" information, with the place of his abode, title or profeffion, to be entered in to the perfon against whom fuch information is to be exhibited, in the penalty of 201. that he will effectually profecute fuch information, and abide by and obferve fuch orders as the court hall direct; which recognizance the clerk of the crown, and alfo every juftice of peace (where the cause of fuch information fhall arife), are empowered to take-and the clerk of the crown fhall make an entry thereof upon record, and fball file a memorandum thereof in his office. f. 2. to be tried. And in cafe any perfon, against whom any information fhall within what be exhibited, fhall appear and plead to iffue, and the profecutor time information fhall not at his own cofts within one year after iffue joined procure the fame to be tried, or if upon fuch trial a verdict pass for the defendant, or in cafe the informer procure a noli profequi, the court is authorized to award to the defendant his cofis, unless the judge before ruhom fuch information fhall be tried, fhgll at the trial certify upon record, that there was a reasonable caufe for exhibiting fuch information;—and in cafe the informer fball not, within three months after the cofts taxed and demand made, pay to the defendant the faid cofts, the defendant shall have the benefit of the faid recognizance. f. 2. But nothing in this act fhall extend to any other informations than fuch as are exhibited in the name of their majesties coroner or attorney in the court of King's Bench, commonly called the mafter of the Crown Office. 1. 7. Trefpaffes, batteries, or other misdemeanors.] This ftatute extends to all informations whatsoever exhibited by the mafter of the Crown Office; and though it may be objected, that an information in the nature of a quo warranto, though a proper remedy to try a right, is not within the meaning of the words trefpaffes, batteries, or other misdemeanors, which may be reafonably confirued to intend fuch other mifdemeanors only as are of an inferior nature, like what have been already fpecified; yet as this is a remedial law, and ought to be largely conftrued, and fuch informations may be as vexatious as any other, and always fuppofe an ufurpation of fome franchife, and every fuch ufurpation is a mifdemeanor, it hath been fettled that this ftatute doth extend to them. 2 Hawk. c. 26. f. 7. Or iffue out any process thereupon before he shall have taken a recognizance.] The meaning of this ftatute is, that the clerk of the crown fhall not file any information without leave; nor iffue procefs thereupon without recognizance. Caf. Temp. Ld. Hardw. 247. And if procefs be iffued on fuch information before fuch recognizance is given as the ftatute directs, the party may move the court to fet it afide, as having iflued contrary to the directions of the ftatute. 2 Hawk.c. 26. s. 10. The court is authorized to award to the defendant bis cofts, unless the judge before whom such information shall be tried shall at the trial certify. No cofts can be had on this statute on an acquittal at a trial at bar, not only because these words feem only to have a view to trials at nifi prius, but also because a caufe which is of fuch confequence as to be thought proper for a trial at bar, cannot well be thought within the purview of the statute, which was chiefly defigned against trifing and vexatious profecutions. 2 Hawk. c. 26. f. 11. And if there be feveral defendants, and fome of them acquitted, and others convicted, none of them can have colts'. 2 Hawk. c. 26.f. 12. Shall 6 Hence informations exhibited by the attorney general ex officio remain as they were at the common law. 2 Hawk. c. 26. s. 6. 7 For till 89 Will. 3. c. 11, (which provided that in trefpafs, affaulty falfe imprisonment, or ejectinent against feveral, every one acquitted fhould recover his colts, unlefs the judge thould certify in the record that there was a rea fonable ground for making him a defendant) no plaintiff ever paid any colts in any action, if but one defendant were found guilty; and the 45 Will. Shall at the trial certify] If the profecutor does not apply to the judge at the time of trial for this certificate, and obtain the fame, he must at all events pay cofts, whether the profecution were reafonable or not; for the court above is bound of right to award them, whether the acquittal were upon the merits, or only from a flip in point of form, and howfoever notorious the offence might be; for where the court is authorised by statute, to do a matter of juftice to the party, upon certain circumstances, it has no difcretionary power of confidering whether it ought to do it or not, when a cafe appears within thofe circumftances; and the ftatute being general as to all cafes, wherein the judge who tries the information doth not certify a reafonable caufe, it feems to be wholly left to the judge to confider whether the profecution were reasonable or not, and it is the profecutor's fally not to apply to him. 2 Hawk. c. 26. f. 13. AN Information Qui Tam. N information qui tam is partly the fuit of the king and partly the fuit of the party. 2 Hawk. c. 26. f. 16. And this having a great affinity with an action qui tamt on the ftatute, the confideration of both will fall under the prefent title, and that in the following order: I. In what cafes they lie. II. What ought to be the form of them. III. In what courts they may be brought and where laid. IV. Within what time they may be brought. Mar. cannot be intended to make profecutors otherwife liable than as plaintiffs zhen were in other actions. Salk. 197. Buller's Nifi Pri. 334. 1 They are called qui tam, because they are profecuted or brought by a perfon qui tam pro domino rege quam pro feipfo, &c. that is, tubo as well for our lord the king, as for himself, in that beba fues. And they both lie, whereever a statute gives a penalty for the neglect of fome duty or the commiffion of fome crime, part to the king, the poor, or fome other public ufe, and part to the informer or profecutor, The action qui tam is alfo fometimes called a popular action, because it is given to the people in general. F. What |