(e) 1 Black. (f) 1 Black. (h) 2 Strange, 1181. Burr.785.1162. Black. Rep. 432. Douglas, 589. 1 Term Rep. 653. (i) St. Tr. 113. Black.Rep.443. (k) Black. Rep. 541. (1) Str. 70. (m) Str. 498. Doug. 284.387. (n) 2 Str. 918. (0) 2 Stra. 1193. 3 Bac. Ab. 475. 1 Wils. 18. (s) Burr. 316. (t) Burr. 548. (r) B. R. H. (y) Burr. 385. (z) B. R. H. 241. Black. 542. (b) Rex v. Wat son, 2 Term plaint is trifling, vexatious, or oppressive, (1) the court will not grant the information, unless there be some particular and extraordinary circumstances in the case; the determination whereof being wholly left to the discretion of the court, cannot well come under any certain stated rules. Sect. 9. The court will not grant an information against a private person for reading a pretended proclamation (e). Nor against a husband for endeavouring to retake his wife contrary to articles of separation (f). Nor against persons who assemble with a lawful design, notwithstanding some unlawful and irregular acts ensue (g). Nor against justices acting improperly in their public capacity, unless flagrant proof of corruption appears (h). Nor against ministers for converting brief-money (i). Nor for bribing electors (k). Nor for a perjured intrusion to a living, upon an affidavit that it was simoniacal (1). Nor for a libel if it appear to be true (m). Nor for offences committed upon the high seas (n). Nor against a dissenter for refusing the office of sheriff (o). Nor against an offender, although the penalty of the offence is vested in the Crown (p). Nor for words spoken of a justice in his public character (q). Nor for attempting subornation (r). Nor for sending a challenge, if the informant had previously imparted a challenge (s). Nor in favour of one cheat against another cheat (t). Nor for a general charge of extortion (u). Nor for striking a magistrate in the execution of his office, if the magistrate struck first (x). Nor for an offence against a private statute (y). Nor if a civil suit is depending upon the same subject (2). Nor against the members of a corporation for a misapplication of the corporation money (a). Nor against a magistrate for having improperly convicted a person, unless the party complaining make an exculpatory affidavit (b). And in general the discretion of the court in granting an information is guided by the merits of the person applying; by the time of the application; by the nature of the case; and by the consequences which may possibly result from the granting it (c). Rep. 199. (c) Rex v. Webster, 3 Term Rep. $88. (d) Carth. 14. Andr. 310. (g) 1 Wils. 7. (h) 1 Wils. 7. (i) 1 Wils. 41. (k) 2 Burr.1099. (1) 1 Str. 21. (m) 1 Str. 413. (n) 2 Lord Raym, 1377. (0) Str. 788. (p) Str. 834. + The Court will grant an information for reproaching the office of magistracy, or defaming the character of magistrates (d). For taking away a young woman from her guardian, although chancery has committed the offender for a contempt (e). Ör from her putative father (f). For not examining evidence upon oath under a reference and rule of court (g). Or for demanding a shilling, by a justice, to discharge his warrant, and committing the party for not paying it (h). For seducing a man to marry a pauper in order to exonerate the parish (i). For seducing a woman, habituated to drinking, to make her will (k). For voluntarily absenting, by a justice, from sessions (). For refusing to put an act in execution (m). For bribing persons to vote at corporation elections (n). For publishing an obscene book (0). For blasphemy (p). For unduly discharging a debtor by judges of an inferior (1) A party applying for an information must waive his right of action; but if the court on hearing the whole matter are of opinion that it is a pro per subject for an action, they may give the party leave to bring it. Rex v. Sharren, 1 Term Rep, 189. 286. Str. 1097. Str. 1167. inferior court (q) For refusing, by the captain, to let the coroner (4) Hard. 135. come on board a man of war (r). For keeping great quantities of gunpowder (s). For a justice making order of removal and not summoning the party (t). For impressing a captain as a common (t) Andr. 238. seaman maliciously (u). For speaking treasonable words, (u) 1 Black. 19. although the offender has been previously punished; viz. in an academical way, by the vice-chancellor (x). For contriving the (+) 1 Black. 37. escape of French prisoners (y). For giving a ludicrous account (3) 1 Black. of a marriage between an actress and a married man (z). For (*) 1 Black.294. contriving pretended conversations with a ghost with intention to accuse another of having murdered the body of the disturbed spirit (a). For procuring a female apprentice to be assigned, though (4) 1 Black.392. with her own consent, to another, for the purposes of prostitution 1 Black.439. (b). Against a justice of peace as well for granting as for refusing an ale licence improperly (c). Against a justice of the peace who from illegal and corrupt motives discharges the person committed by another magistrate under the vagrant act (d). For entering libellous reflections in the books of a corporation respecting the 190. (e) Rex v. Watadministration of justice in a cause in which the corporation were son, 2 Term party (e). Against a person whose trial is coming on at the Rep. 199. assizes for distributing hand-bills in the assize town, vindicating (Rex v. Johis conduct and reflecting on the prosecutors (f). As to the second particular, viz. How the party may be relieved against process issued against him, before any recognizance given according to the statute. Sect. 10. It seems that he may move the court (g) to set it aside, as having issued contrary to the directions of the statute. As to the third particular, viz. Where the defendant shall have costs-I shall observe, 66 66 401. (c) Rex v. Hol- liffe, 4 Term Rep. 285. (g) Salk. 376. 2 Lilly, 61. Hardw. 247. Strange, 1042. Strange, 1131. 1039. 1042. FIRST, That if the information be tried at bar, the defendant (h) Clerk'sCase, can have no costs within this statute; for the words are, (h) that Farresly, 47. the court is authorized to award costs, &c. " unless the judge "before whom the information shall be tried, shall at the trial, in open court, certify upon record, that there was a reasonable cause for exhibiting such information;" which is most naturally 3 Com. Dig.517. to be understood of a trial at nisi prius; and it would be absurd Comb. 345.225. to suppose, that the statute intended that the justices of the king's Douglas, 314. bench, at a trial before themselves, should make a certificate to Salk. 193. themselves. To which may be added, that where a cause is of Bull. N. P. 333. such consequence as to be tried at the bar, it may reasonably be intended to be out of the purview of the statute, which was chiefly designed against trifling and vexatious prosecutions. 3 Black. 1305. 211. Bunt Bunbury, 90. Sect. 11. SECONDLY, That if there be several defendants, and any one of them found guilty, those who are acquitted cannot have (i) costs within this statute; and this is agreeable to the construc- Salkeld, 194. tion made of the statutes which give costs to defendants in civil actions, by force whereof no defendant in such like case could recover costs before the statute of 8 and 9 Will. c. 10. Sect. 12. THIRDLY, That it hath been adjudged in the construction of these words, "The court of king's bench is autho "rized 2 Wilson, 21. (k) Reg. v. Davis, adj. Mich. 10 Annæ, and also Stra. 1131. fall, vide 2 Chan, Case, 191. Vide 19 Geo. 2. c. 34. for costs respecting smuggling informations, and also 4 Geo. 3. c. 15. 3 Burr. 1817. 1819. Rex v. File wood, 2 Term Rep. 145. Rex v. Brooke, 2 Term Rep. 197. Comb. 225.419. 2.Stra. 874. B. R. H. 159. 3 Burr. 1804. 356. “rized to award to the defendant his costs, where the judge who "tries an information does not at such trial certify, that there was “a reasonable cause for the information (k),” that the said court is bound of right, in every such case, to award them, whether the acquittal were upon the merits, or only from a slip in point of form, and howsoever notorious the offence might be; for where a court is authorized by statute to do a matter of justice to the party, upon certain circumstances, it has no discretionary power of considering whether it ought to do it, or not, when a case appears to be within those circumstances. To which may be added, that the statute, being general as to all cases wherein the judge who tries the information doth not certify a reasonable cause, seems to imply, that it shall be left to such judge only for this purpose, to consider whether the prosecution were reasonable or not; and it is the prosecutor's folly not to apply to him. FIFTHLY, That in case the defendant be acquitted on an information, he is not intitled to costs beyond the extent of the recognizance entered into by the prosecutor, which is limited by the statute to Twenty Pounds. + SIXTHLY, That the court will not (on motion) compel the prosecutor of an information to give security for the costs, in case the defendant should be acquitted, over and above the recogni zance in Twenty Pounds required by the statute 4 and 5 Will. and Mary, c. . S. + SEVENTHLY, That the prosecutor of an information for a misdemeanor shall pay costs for not proceeding to trial pursuant to notice, notwithstanding issue may not have been joined a 1 Black. Rep. twelvemonth. twelvemonth. But the liability of a prosecutor of an information to pay costs for not going on to trial, must be understood to relate only to cases where the prosecution is carried on entirely at the instance of a private individual; for if the king's name be more than barely made use of, then the general rule, that the crown neither pays nor receives costs, attaches. 1 Bac. K. B. 275. Rex v.Chamberlain, 1 Term Rep. 103. + EIGHTHLY, That under the statute of 4 and 5 Will. and Mary, c. 11. s. 3. the representatives of the prosecutor are entitled to the costs taxed during his life, though no personal demand was ever made by him; for though it takes away the remedy by attachment it does not affect the debt, and when costs are taxed they become a debt. But where a rule had been made for the prosecutor of an information to pay costs for not proceeding to trial pursuant to notice, it was held that the executor of the defendant (who died after the making of the rule, but before the costs were Hullock, 578. taxed) was not entitled to them; nor would he have been liable if the testator had been ruled to pay them. 2 Stra. 874. As to the fourth particular, viz. Whether the before-mentioned statute 3 and 4 Will. and Mary, c. 18. extends to all kinds of in formation. Sect. Carth. 504. 1 Com. 485. Sect. 13. It seems clear, that this statute extends to all infor- Finch, 322. mations whatsoever exhibited by the master of the CROWN OFFICE. 2 Inst. 282.495. And though it may be objected, that an information in the nature of 1 Salk. 374. a Quo Warranto, being a proper means to try a right, is not within La. Raym. 426. the meaning of the statute; which mentioning trespasses, batteries, Strange, 1042. and other misdemeanors, may be reasonably construed to intend Bul. N. P. 210. such other misdemeanors only as are of an inferior nature, like to 3 Com. 263. those specified, which are generally wrangling and frivolous ones; 4 Com. 307. yet seeing this is a remedial law, and therefore ought to be largely 1 Black. 34. 46. construed, and that such information may be as vexatious as any 1 Bur. 402. others, and always supposes a usurpation of some franchise, and 1 Wils. 244. every such usurpation is certainly a misdemeanor, it hath been settled that this statute doth extend to them. 66 187.579. st. 2. c. 13. 1564. 1963. 2523. Sect. 14. But when the offices so usurped were annual offices, it was found very difficult and oftentimes impracticable by the laws in being to bring to a trial and determination the right of such See 1 Geo. 1. persons to the said offices within the compass of the year. And when the offices were not annual, divers acts prejudicial to the good order of such cities were done before the right could be determined. It is therefore enacted by 9 Ann. c. 20. "That in case Burr. 402. 575. any person or persons shall usurp, intrude into, or unlawfully 869,1485.1812. "hold and execute, the office or franchise of mayor, bailiff, port- 2022. 2024. reeve, or other office within a city, town corporate, borough, 2120. 2147. or place in England or Wales, it shall and may be lawful, to 2143. 2277. "and for the proper officer of the court of queen's bench, the Black. 95. court of sessions of counties palatine, or the court of grand ses- Coke's Ent. "sions in Wales, with the leave of the said courts respectively, to 527. "exhibit one or more information or informations, in the nature "of a quo warranto, at the relation of any person or persons desiring to sue or prosecute the same, and who shall be mentioned "in such information or informations to be the relator or relators against such person or persons so usurping, intruding into, or unlawfully holding and executing any of the said offices or franchises, and to proceed therein in such manner as is usual in cases of informations in the nature of a quo warranto.” 66 66 And by 9 Ann. c. 20." If it shall appear to the said respective "courts, that the several right of divers persons to the said offices "or franchises may properly be determined on one information, "it shall and may be lawful for the said respective courts to give "leave to exhibit one such information against several persons, "in order to try their respective rights to such offices or franchises." 66 And by 9 Ann. c. 20. “ Such person or persons against which "such information or informations in the nature of a quo warranto "shall be sued or prosecuted, shall appear and plead as of the same Term or sessions in which the said information or infor“ mations shall be filed, unless the court, where such informations shall be filed, shall give further time (1) to such person or (1) After the rules are made absolute against divers defendants, the court may direct that there persons Salkeld, 374. shall be only one information against all. Burr. 573. 1270. Vide Cowp. 489. (8) 5 Com. Dig. 389. 2 Modern, 234. Str. 582. 952. Burr. 2277. 2143. 4 Modern, 58. Rex v. Ponson persons against whom such information shall be exhibited, to "plead." And by 9 Ann. c. 20. "Such person or persons who shall sue or prosecute such information or informations in the nature of "a quo warranto, shall proceed thereupon with the most con"venient speed that may be." 66 Sect. 15. And by 9 Ann. c. 20. it is further enacted and declared, "That in case any person or persons, against whom any informa❝tion or informations, in the nature of a quo warranto, shall, in any of the said cases, be exhibited in any of the said courts, "shall be found or adjudged guilty of au usurpation, or intrusion into, or unlawfully holding and executing any of the said offices or franchises, it shall and may be lawful to and for the said Queen v. Blag-courts respectively, as well to give judgment of ouster against "such person or persons, of and from any of the said offices or franchises, as to fine such person or persons respectively for his or their usurping, intruding into, or unlawfully holding and executing any of the said offices and franchises, &c." (8) by, 25 Geo. 2. den, B. R. H. 248. Sayer's Law of (9) 11 Hen. 4. c. 3. (10) 14 Ed. 3. c. 6. 9 Hen. 5. c. 4. 4 Hen. 4. c. 3. 8 Hen. 6. c. 12. 66 "And by 9 Ann. c. 26. s. 5. it shall and may be lawful to and "for the said courts respectively to give judgment that the rela"tor or relators, in such information named, shall recover his or "their costs of such prosecution: and if judgment shall be given "for the defendant or defendants in such information, he or they "for whom such judgment shall be given, shall recover his or "their costs therein expended against such relator or relators, "such costs to be levied by a capias ad satisfaciendum, fieri facias, "or elegit." Sect. 16. And by 9 Ann. c. 20. s. 7. "the statute for the "amendment (9) of the law, and all the statutes of jeofails (10) "shall be extended to informations in nature of a quo warranto, "and proceedings thereon, for any of the matters in the said act " mentioned." 18 Eliz. c. 14. 21 Jac. 1. c. 13. 16 & 17 Car. 2. c. 8. (styled in 1 Ven4 & 5 Ann. c. 16. 9 Ann. c. 20. 5 Geo. 1. c. 13. 4 Burr. 1099. and 15. 32 Hen. 8. c. 30. Causes, 4 Burr. Rep. 1963. 2524. Rex v. Dicken, 4. Term Rep. 282. From the 1st day of Trinity Term, 1793, de fendants to in formations in the nature of quo warranto, for the exercise of any office, may plead the Upon this statute a rule was made to regulate the discretion of the Court, that after twenty years possession of a corporate franchise, no information in the nature of quo warranto should be granted to disturb it; but that since that time each case stood on its own circumstances; but this being found too long a period, a new general rule was made by the Court, that when a person had been in quiet possession of a corporate franchise for six years, they would not under any circumstances suffer it to be disturbed. But the legislature interposed soon afterwards. And now by 32 Geo. 3. c. 58. in order to secure the freedom of election, and the quiet, good order and tranquillity of cities, boroughs, and towns corporate, it is enacted, "that the "defendant or defendants to any information in the nature of a quo warranto, for the exercise of any office or franchise in any holding it six years or more, &c. city, |