GRANTED. where judges of an inferior court, illegally give freedom to a IN WHAT CASES debtor confined in their prison (a)—and where a justice exceeds his power, in bailing a person accused of felony (b). An information also lies against magistrates for a malicious conviction (c), corruptly granting or refusing a licence to keep an ale-house (d), for illegally demanding a fee, previous to the discharge of a party arrested, and committing him on his refusal to pay it (e); against any magistrate, or collector of taxes, for extortion (ƒ), for abusing the King's commission, to the oppression of the subject(g), and for making a false return to a mandamus of matters known to be untrue (h). But where a magistrate appears to have acted with [ 875 ] pure and upright intentions, the court will not thus interfere, but leave the party who thinks himself aggrieved, to the more ordinary remedy (¿). And as it is but reasonable that those, who, in general, assist the public justice, and police of the country, should be protected in the honest discharge of their official duties, strong ground for an information must be laid, before the court will consent to allow it, and some flagrant proof of corruption must appear (k), And, where the application is made by a party, who alleges himself to have been illegally convicted, or otherwise aggrieved by the justice, in the way of his official duties, he will be required to make an affidavit, exculpating himself from the charge originally made against him, and which formed the ground of the adverse proceedings (4). In favor of magistrates also, the time within which any appli- Time of motion. cation of this kind must be made against them is limited. Thus, (a) Rep. temp. Hardw. 135. Hawk. b. 2. c. 26. s. 9. Bac. Abr. Informations, B. in notes. (b) 2 Stra. 1216. (c) Cald. 305. (d) 1 T. R. 692. 13 East, 270. 322. 3 Burr. 1317. Hawk. b. 2. c. 26. s. 9. Bac. Abr. Informations, B. in notes. (e) 1 Wils. 7. Bac. Abr. Informations, B. in notes. () 1 Sess. Cas. 159, 160. (g) Hawk. b. 2. c. 26. s. 1. Bac. Abr. Information, B. (h) 1 Salk. 374. Hawk. b.2. c. 26. s. 1. Bac. Abr. Infor- (i) 2 Burr. 719. 722. 1162. TIME OF MOTION. Notice of motion for rule nisi. the court will not grant an information at the end of the term, so late, that cause cannot be shewn before the next, for any misconduct alleged to have taken place before its commencement, though they will do so if the circumstances complained of arose within it (a). And it seems, that after the expiration of two terms, no motion of this kind will be entertained at all (b); nor, indeed, so late in the second term, as to prevent him from shewing cause before its conclusion (c), and this rule is strictly adhered to; and where facts, tending to criminate a magistrate, took place twelve months before the application to the court, they refused to grant a criminal information, although the prosecutor, in order to excuse the delay, stated, that the facts had not come to his knowledge till a very short time before the application was made (d). Another difference between the case of magistrates and that of private individuals, in favor of the former, is the necessity of [ 876 ] giving notice of the motion for the rule nisi, in the first instance. This, in every information against a justice, is necessarily the first proceeding (e). The notice should state the ground of complaint, and should be served personally on the party to whom it is addressed; and, if that be impracticable, left at his usual place of abode (f). Aud this must be done in sufficient time before the motion, to enable him, if he think proper, in the first instance, to oppose the motion for the rule nisi; but he seldom avails himself of this opportunity, as he can more effectually make his defence, when the affidavit, containing all the circumstances of the charge is filed, on shewing cause why the rule should not be made absolute (g). An affidavit of the service must then be made, in order to induce the court to grant the rule nisi, in case no opposition is made on the part of the defendant (h). When the court, on the application to make the rule absolute, Of discharging the rule nisi, think that there is no ground for permitting an information to be with costs. filed, and the only question is, how the costs already incurred shall be defrayed, they will consider the circumstance of the party accused being a magistrate, and acting in the discharge of his official duties, as very material to their decision. And, therefore, where the court was moved to grant a criminal information against magistrates, and several others, for a misdemeanor, relating to the conviction of a poacher, they discharged the rule, with costs to be paid to the magistrates, and left the others to defray their own expences (a). And, in general, whenever the charge is altogether groundless, costs will be directed to be paid to the magistrate; and that not only by the prosecutor himself, but by his attorney, who joined in the affidavit for the rule, if his motives be proved to be malicious (b). But where the justice, though cleared from all oppressive intentions, appears to have acted irregularly, the court, while they will discharge the rule, will leave him to pay his costs, as if he were a common defendant (c). From this stage of the proceedings the course seems to be the same, whether the object of the prosecution be a magistrate or a private individual. It need only, therefore, be observed, that the court incline, throughout the prosecution, to protect those whose authority it is important to maintain, and who must be liable to error, in the honest discharge of their numerous and complicated duties. [ 877 ] INDEX. ABATEMENT OF PROSECUTION, death of prosecutor does not abate, 2 ABATEMENT, PLEAS IN, when may be pleaded, 445, (see title Indictment.) for defective name or addition, 445 for objection on the face of indictment, more usual to quash, ib. may be made for mistake in name, &c. under statute of addi- no distinction between christian and surname, ib. want of addition, ground of, ib. another prosecution depending, no ground for, ib. alias dictus, ib. only mode of taking advantage of errors in name or addition, 447 time and manner of pleading in, 447 in misdemeaner by attorney, ib. before plea in bar, 447. 423 should be on arraignment, 447 in treason in writing, and signed by counsel, ib. if demurred to, when defendant must instantly join, ib. form and requisites of, 447 when may be ore tenus, ib. more regular to engross on parchment, and have it signed by must disclose real name, ib. when by peer, of right, to be tried by peers, must set out the writ of his title, ib. should answer over to felony, ib. not demurrable, though it does not answer over, ib. in misdemeanor, no answer over, ib. proper conclusion of, ib. affidavit of truth necessary, ib. whether necessary on trial of high treason, at bar, ib. proper entry of name in plea of misnomer, 449 demurrers to, ore tenus, 449 informal plea not to be quashed, ib. or amended, ib. joinder to, immediately, ib. may be to replication, ib. |