the prosecutor or his attorney be sheriff or under-sheriff, R. v. Webb, 2 Str. 1068: R. v. Knatchbull, 1 Salk. 150, the writ will be granted. It is said, also, that if the prosecution originate in malice, Bac. Abr. Certiorari, (A), or if there has been vexatious delay, R. v. Morgan, 2 Str. 1049: R. v. Ferguson, Rep. Temp. Hard. 370, or unnecessary expense, the court will grant a certiorari. Com. Dig. Certiorari, (D).

By stat. 60 G. 3 & 1 G. 4, c. 4, s. 4, the certiorari may be applied for before the indictment is found, for a misdemeanor; and so likewise in felony; for it removes any record that shall come within its description before its return. 2 Hawk. c. 27, s. 23. Where there are several defendants, all should concur, either on their own behalf or on behalf of the applicant. R. v. Hunt, 2 Chit. Rep. 130.

If the defendant remove an indictment by certiorari, he will, if convicted, be liable to costs to the prosecutor or party grieved, 5 & 6 W. & M. c. 11, s. 3, on the counts, on which he is convicted. Reg. v. Hawdon, 11 Ad. & Ell. 143; 3 P. & D. 44. See, as to this subject, 1 Burn's Justice, by Chitty, 624.

It may be useful to observe, that where the quarter sessions of a county occur while the judge of assize is proceeding with the trial of prisoners in that county, after the grand jury have been discharged, it has been considered proper that the quarter sessions should not proceed with the trial of prisoners, but, after disposing of their other business, should adjourn to a future day. See 9 C. & P. 790.

By the stat. 5 & 6 Vict. c. 33, it is enacted, that after the passing of that act, (June 30, 1842), neither the justices of the peace acting in and for any county, riding, division, or liberty, nor the recorder of any borough, shall at any session of the peace, or at any adjournment thereof, try any person or persons for any treason, murder, or capital felony, or for any felony which, when committed by a person not previously convicted of felony, is punishable by transportation beyond the seas for life, or for any of the following offences:-1. Misprision of treason; 2. Offences against the Queen's title, prerogative, person, or government, or against either House of Parliament; 3. Offences subject to the penalties of præmunire; 4. Blasphemy, and offences against religion; 5. Administering and taking unlawful oaths; 6. Perjury and subornation of perjury; 7 making or suborning any other person to make a false oath, affirmation, or declaration, punishable as perjury, or as a misdemeanor; 8. Forgery; 9. Unlawfully and maliciously setting fire to crops of corn, grain, or pulse, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern; 10. Bigamy, and offences against the laws relating to marriage; 11. Abduction of women and girls; 12. Endeavouring to conceal the birth of a child; 13. Offences against any provision of the laws relating to bankrupts and insolvents; 14. Composing,

[ *70] *printing, or publishing blasphemous, seditious, or defamatory libels; 15. Bribery; 16. Unlawful combinations and conspiracies, except conspiracies or combinations to commit any offence which such justices or recorder respectively have or has jurisdiction to try when committed by one person; 17. Stealing, or fraudulently taking, or injuring or destroying, records or documents belonging to any court of law or equity, or relating to any proceeding therein; 18. Stealing, or fraudulently destroying or concealing, wills or testamentary papers, or any document or written instrument being or containing evidence of the title to any real estate, or any interest in lands, tenements, or hereditaments.

87

*CHAPTER II.

[ *71 ]

INFORMATION.

SECT. 1. Information ex officio, 71.

2. Information by the Master of the Crown Office, 73.

SECT. 1.

Information ex officio.

What, and in what cases.]-THE information ex officio 'is a formal written suggestion of an offence committed, filed by the Queen's attorney-general (or, in the vacancy of that office, by the solicitor-general, R. v. Wilkes, 4 Burr. 2527; 4 Bro. P. C. 360) in the court of Queen's Bench, without the intervention of a grand jury.

It lies for misdemeanors only, and not for treasons, felonies, Com. Dig., Information, (A. 1); R. v. Prynn, 1 Show. 107: R. v. Brechett, 5 Mod. 459, or misprision of treason; 2 Hawk. c. 26, s. 3; for wherever any capital offence is charged, or an offence so highly penal as misprision of treason, the law of England requires that the accusation should be warranted by the oath of twelve men, before the defendant be put to answer it. The usual objects of an information ex officio are properly such enormous misdemeanors as peculiarly tend to disturb or endanger the Queen's government, or to molest or affront her in the regular discharge of her royal functions; 4 Bl. Com. 308; such, for instance, as seditious or blasphemous libels or words; seditious riots not amounting to high treason; libels upon the Queen's ministers, the judges, or other high officers, reflecting upon their conduct in the execution of their official duties; obstructing such officers in the execution of their duties; obstructing the Queen's officers in the collection, &c., of the revenue; against officers themselves for bribery, or for other corrupt or oppressive conduct; and the like.

Form of it.]-The form of an information ex officio is thus :Trinity Term, 8 Vict. "MIDDLESEX :-Be it remembered that Sir Frederick Thesiger, Knight, attorney-general of our Sovereing lady the Queen, who for our said lady the Queen prosecutes in this behalf, in his proper person comes into the court of our said lady the Queen before the Queen herself at

Westminster in the county of Middlesex, on [Wednesday after three weeks of the Holy Trinity in this same term], and for our said lady the Queen gives the court here to understand and be informed, that," &c., so proceeding to state the facts and circumstances constituting the offence, with the same certainty and precision as in an indictment, and in the same form, and according to the same rules, excepting that, in introducing averments, instead of the words "And the jurors aforesaid, upon their

oath aforesaid, do further present," are used the words, "And [ *72 ] the said attorney-general of our said lady the Queen, for our * said lady the Queen, further gives the court here to understand and The conclusion is the same as in an indictment.

And

be informed, that," &c. The second and subsequent counts commence thus: "And the said attorney-general of our said lady the Queen, for our said lady the Queen, further gives the court here to understand and be informed, that," so proceeding to state the offence, and concluding as in an indictment.. to the conclusion of the last count are added these words: "And therefore the said attorney-general of our said lady the Queen, prayeth the consideration of the court here in the premises, and that due process of law be awarded against him the said J. S. in this behalf, to make him answer to our said lady the Queen touching and concerning the premises aforesaid."

This information is filed in the crown office, without any leave previously obtained of the court for that purpose; and the court therefore will not entertain a motion by the attorney-general for a criminal information at the suit of the crown, as in the ordinary cases of an information by the master of the crown office at the suit of an individual; R. v. Phillips, 3 Burr. 1564: R. v. Plymouth, 4 Burr. 2089; (n.) 672; nor will the court, upon the application of the defendant, restrain the attorney-general from filing an ex officio information, upon the ground that a criminal information has already been granted for the same cause. R. v. Alexander, MS., E. T. 1830.

The court will not quash an information ex officio at the instan ce of the prosecutor, because the attorney-general may, if he will, enter a nolle prosequi; R. v. Stratton, 1 Doug. 239, 240; and even upon the motion of the defendant, they will seldom quash it, but generally put the defendant to demur, &c.; see Com. Dig., Information, (D. 4): R. v. Gregory, 1 Salk. 372; and after demurrer the information may be amended. R. v. Holland, 4 T. R. 457.

The information having been filed, the defendant, after appearance, upon application to the court, is entitled to a copy of it free of expense. 60 G. 3 & 1 G. 4, c. 4, s 8. If the attorney-general delay bringing the information to trial, the defendant cannot take it down by proviso; R. v. M'Leod, 2 East, 202; but if it be not brought to trial within twelve calendar months next after the plea of not guilty has been pleaded, the de

fendant may, after twenty days' notice to the attorney or solicitor-general, apply to the court in which the prosecution is depending, and the court may authorize the defendant to bring on the trial, who may bring it on accordingly, unless a nolle prosequi be entered. 60 G. 3 & 1 G. 4, c. 4, s. 9. The attorney-general is entitled, if he please, to a trial at bar; R. v. Johnson, 1 Str. 544; and on the trial has the right of reply, even though the defendant call no witnesses. R. v. Marsden, M. & M. 439. The same right exists also in prosecutions by a government office, in which the counsel for the prosecutor states that he appears as the representative of the attorney-general. Reg. v. Gardner, 1 C. & K. 628.

If the defendant is acquitted, or a nolle prosequi be entered, he has all his own expenses to defray, as it is beneath the dignity of the crown to receive costs or to pay them. Hullock, 557.

*SECT. 2.

Informations by the Master of the Crown Office.

[ *73 ]

What, and in what cases.]-An information by the Master of the Crown Office is a formal written suggestion of an offence committed, filed in the Court of Queen's Bench, at the instance of an individual, with the leave of the court, by the Master of the Crown Office, without the intervention of a grand jury.

This, like the information ex efficio, (see ante, p. 71), lies for misdemeanors only, 2 Hale, 151, and not for treasons, felonies, or misprision of treason. Although the court have it in their discretion to give leave to file a criminal information of this description for any misdemeanor whatever, yet they usually confine it to gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind, not peculiarly tending to disturb the government; (for those are left to the care of the Attorney-General; but see R. v. Harvey, 3 D. & R. 464; 2 B. & C. 257); but which, on account of their magnitude or pernicious example, deserve the most public animadversion. Thus, for instance, they have granted a criminal information for an attempt to bribe a privy councillor to obtain a patent of an office under government; R. v. Vaughan, 4 Burr. 2494; for an attempt to bribe at an election for members to serve in Parliament; R. v. Robinson, 1 W. Bl. 541: R. v. Isherwood, 2 Ld. Ken. 202: R. v. Pitt, 1 W. Bl. 380; 3 Burr. 1335; for bribing persons, either by money or promises, to vote at elections of officers of corporations; R. v. Plympton, 2 Ld. Raym. 1377; for bribery in the election of an alderman, who, by virtue of his office, is a justice of the peace; R. v. Stewart, 2 B. & Ad. 12; for attempting to bribe jurymen, R. v.