Informations.

This is all that it seems necessary to offer on Presentments, in this place especially, as the subject matter of them must be again referred to under title Indictments. For a similar reason, all notice of pleas to Presentments and Indictments on the subject of highways, both general and special, is omitted.

INFORMATIONS. In the nature of penal actions, under particular statutes, are occasionally carried on by criminal process at the sessions, as well as at the assizes, but this so rarely, that a single precedent of such a proceeding, accompanied by such notes as naturally arise out of it, will exhibit sufficient information for a work professedly elementary and condensed.

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INFORMATION.

Be it remembered that A. B. of*........ in County of.... the county of........ gentleman, who as well for our Sovereign Lord the now King, as he himself, doth prosecute on this behalf, cometh before the justices of our said Lord the King, assigned to keep the peace of our said Lord the King in and for the said county of........ and also to hear and determine divers felonies, trespasses, and other misdemeanours in the said county committed, at their General Quarter Session of the Peace, † holden at ... in and for the said county, on ...... the .... day of..... in the.... year ...... of the reign of, &c. in his proper person, and as well for the said Lord the King as for himself, giveth the court here to understand

By 18 Eliz. c. 5. informers upon penal statutes are prohibited from suing otherwise than in person, therefore an extent cannot proceed by information qui tam. Bull. Ni. Pri. 196. By 21 Jac. 1. c. 4. informations on penal statutes may be prosecuted before justices of assize, nisi prius, general gaol delivery, oyer and terminer, or of the peace in general, or general quarter session in the counties, (or cities, boroughs, and towns corporate, respectively,) where the offences were committed, (except in a very few excepted cases) at the choice of the parties who shall prosecute.

The suit must have commenced within a year from the offence committed. 31 Eliz. c. 5.

§ The king may sue for the whole penalty by information in the court of B. R. unless a common informer has already commenced a suit qui tam for the penalty. R. v. Hymen, 7 T. R. 536.

........

.. in

and be informed, that P. Q. late of the parish of... the county of.... yeoman or, &c. at, &c. aforesaid, not regarding the laws and statutes of our said Lord the King, but intending to, &c. (here insert the offence with the same precision as in an indictment) against the form of the statute in that case made and provided, † whereupon the said A. B. as well for our said Lord the King as for himself, prayeth the advice of the court on the premises; and that the aforesaid P. Q. may forfeit the sum of...... according to the form of the statute aforesaid; and that the said A. B. may have one moiety thereof, according to the form of the said statute; and also that the aforesaid P. Q. may come here into court to answer concerning the premises, and there are pledges of prosecuting, to wit, John Doe and Richard Roe: and hereupon it is commanded to the said P. Q. that all other things omitted and all excuses laid aside, he be in his proper person at the next General Quarter Session of the Peace to be holden for the said county, to answer as well to the said Lord the King, as to the said A. B. who, as well for the said Lord the King as for himself doth prosecute of and concerning the premises, and further to do and receive what the said court shall consider in this behalf. ‡

But it need not conclude "against the peace," &c. as an indict

ment must.

+ But if the offence be recognized by more than one statute, the particular statute under which the suit is prosecuted need not be set forth, as the court is bound to notice all public statutes; nevertheless if the statute be recited, and there be a substantial variance between the statute and the recital, it will be fatal. 2 Hawk. c. 25.

All prosecutors qui tam are considered as common informers, and such are not entitled to costs unless expressly given by the statute. 2 Hawk. c. 26.

But by 18 Eliz. c. 5. if any informer, or plaintiff, on a penal statute, shall willingly delay his suit, or shall discontinue, or be nonsuit, or have the trial or matter passed against him, therein by verdict or judgment of law, then he shall pay unto the defendant his costs.

By the same statute (which extends only to common informers, Bull. Nisi Pri. 196.) no informer shall compound or agree with the defendant, but after answer made in court; nor after answer, but by the order or consent of the court; on pain of being set in the pillory, in some market town next adjoining, in open market, for two hours, and of being disabled to be informer on any penal statute, and also of forfeiting 101. half to the king, and half to the party grieved, to be recovered in any court of record, by action of debt or information: and the justices of assize, and justices of the peace in sessions, may hear and determine all offences against this act. N. B. The pillory is abolished (except for particular offences), by a subsequent statute, 56 Geo. 3. c. 138.

Traverses,

The next subject which must occupy the attention of a court of quarter session, and which therefore presents itself in order here, is that which in law language is denominated, "TRAVERSES." The consequences of traversing are so mixed up with the consideration of misdemeanours throughout the whole process of trial, that it is a matter of some difficulty to advance a satisfactory explanation of the necessity for giving the subject a separate discussion, preliminary to the general treatment of trials for misdemeanours; but nevertheless, as a chief object here is to accompany, as it were, the progress of the business of a session, in the precise order in which every portion of it usually occurs, from the commencement to the conclusion, there are some insulated considerations respecting Traverses which become necessary to be separately stated, in order to show why, and in what manner, those charges which are traversed occupy a particular and pre-ordained station in the dispatch of that business.

At the quarter sessions, in prosecutions for misdemeanours, where the defendant is not in actual custody, the justices have no power to compel him to take his trial at the same court at which he pleaded, * except in some few particular cases specially excepted by statute; † though there is nothing to forbid his doing so, if he prefer it.

In the technical term Traverse, is betrayed, as in an hundred other instances of our juridical expressions, a Norman origin; for it is doubtless immediately derived from the French word Traverser, which signifies to cross, come athwart, or impede; which is precisely the effect of

* 4 Black. Com. 351.

† On indictments on the swindling act of 30 Geo. 2. c. 24. as also on indictments against receivers of stolen goods on 2 Geo. 3. c. 28.

Various have been the conjectures respecting the derivation of this term. In the former edition of this work, in deference to the opinion of preceding writers, a different source was attributed to the expression. Etymology is of such inferior importance, however, in a mere practical epitome, that the reasons for the compiler's change of opiuion are not of sufficient moment to be dwelt upon. Respecting the application of the term there are no differences of opinion.

this process on the course of a prosecution. In the application of it to the subject under consideration, it is used for an issue taken upon an indictment for a misdemeanour, and means nothing more than placing a bar or impediment in the way of trial, till a following session or assize. To traverse an indictment, then, is to take issue upon the chief matter thereof; or to deny the point of the indictment; but to be tried at a future period. The trial of these Traverses, at this point of time during the session, or sitting of the justices, and while the grand jury are still supposed to be considering of the bills arising out of the calendar of the day, pre-supposes the subjects to have been traversed at the preceding session. It becomes necessary, therefore, for a moment, to travel back to that preceding session, and even somewhat previous to it, in order to trace the steps by which the subject, now to be tried by the petty jury, has been prepared and placed in a condition for such trial. The persons bound, then, by recognizance at the last session, are called to prosecute their Traverses at the present session; for if a person indicted of a trespass, or other misdemeanour, appear, and plead not guilty, and traverse the indictment, he, of course, enters into recognizance to prosecute his Traverse at the next session; for, as we have before seen, the justices of the peace may not inquire, and determine, civil offences, in one and the same day, because the party is to have convenient time to provide for trial.*

ment of traverse proceed

The very commencement, then, of the business is thus: CommenceIf the complaint have (as is usually the case in assaults and other breaches of the peace) been in the first instance made ings. to a justice out of session, such justice has probably taken a

Cro. Car. 448. In felonies, a mere matter of fact, (the offence alleged to have been committed,) is to be tried; but in civil offences which are allowed to be traversed, many questions of right, which require much time for inquiry and preparation, may be involved; as in presentments for nuisances in not scouring a ditch, or repairing a road : for both the fact of its being a highway, and the obligation of the party indicted, or presented, to cleanse it, may come in question.

recognizance with sureties for the appearance of the party accused at the next session, to plead to an indictment. On his appearance, pleading, and traversing, the proceedings take place which have been just described. If the first step in the prosecution be an indictment at the session, (as is usually the practice in cases which are neither felonies nor breaches of the peace, nor directly leading thereto) as in nuisances ex gr. then the first process for procuring an attendance, issues from that session, and the party appears at the ensuing session, for the purpose of pleading and entering into recognizance for traversing till the next subsequent session.

Now the party indicted comes into court, and brings with him two sufficient pledges, and he, or his solicitor, delivers them, with their proper additions, to the clerk of the peace; which clerk then reads the indictment, to which the defendant pleads not guilty: then the clerk of the peace calls upon the party indicted, by name, to enter into recognizance before court (which is taken in the following form) to try his traverse at the next session.

RECOGNIZANCE TO TRY TRAVERSE.

A. B. you acknowledge to owe to our Sovereign Lord the King the sum of...... and you C. D. and E. F. severally acknowledge to owe, &c. the respective sums of... and

.... to be respectively levied of your goods and chattels, lands and tenements, to his Majesty's use, by way of recognizance, upon condition that you A. B. shall appear at the next session of the peace to be holden for this county, to try your Traverse upon this indictment to which you have now pleaded not guilty, and not depart without leave of the court.

To this the accused and the pledges answer that "they are content," and depart the court.

Two days, at least, before a Traverse for a misdemeanour is intended to be tried at a session of the peace,* the attorney for defendant draws a notice thereof, and serves the prosecutor with a true copy, according to the following form.

Two days for the sessions of the peace, and eight for the assizes.