other constables in England, for apprehending the party, and bringing him before such judge, or any justice of peace of the county (a).

Fresh Indictment.]-If the bill be not found, or if the indictment is defective and quashed (as to which, see post, Ch. VII. s. 4), a new and more regular one may be framed and sent to the same or a subsequent grand jury, for their finding (b). So that the mere insufficiency of the finding affords no future indemnity to the party indicted (c).

SECTION II.

OF PROSECUTION BY PRESENTMENT.

By Grand Jury, and, formerly, by Justices.]- Presentments may be by any twelve of the grand jury at common law, for offences within their own knowledge (d), with the exception hereafter mentioned as to highways and turnpike roads. If the offence is one of which they can thus take legal cognizance, no bill is sent before them (e). They deliver their presentment into court to the clerk of the peace, who puts it into the form of an indictment, on which process may issue, as in the ordinary case of an indictment found; but the presentment in its first state is only considered a bill on which an indictment is framed (f). But this mode of prosecution is seldom adopted.

The most usual presentment was by a grand jury at common law, or by a justice of peace (g), under 13 G. III. c. 78, s. 24, for default in repair of some "highway, causeway, or bridge;" but that act is now repealed by 5 & 6 W. IV. c. 50, s. 1; and by s. 99, it is declared unlawful to take or commence any legal proceeding by way of presentment (e. g., by a grand jury or justice) against the inhabitants of any parish, or other person, on account of any highway or turnpike road being out of repair. The above repeal being without exception, the power of a justice to present any bridge under s. 21 of the repealed act is gone (h).

It has, however, been judged advisable to retain in this work the

(a) 48 G. III. c. 58, s. 1.

(b) 4 Bla. Com. 305; Bac. Ab. tit. Indictment (D 2).

(c) 1 Ch. Cr. L. 325, 1st ed. See ante, p. 173, as to preferring a fresh bill. (d) 2 Hale, 161; Lambard, 1. 4, c. 5. (e) 2 Hawk. B. 2, c. 2, s. 151.

(f) 4 Bla. Com. 301.

(g) See a late instance, R. v. Derbyshire (Inhabitants), 3 B. & Adol. 147.

(h) Sect. 119. See R. v. Margan (Inhabitants), 8 Ad. & E. 496; 3 Nev. & Per. 502, as to prosecutions pending on 20 March, 1836.

following form of a presentment by a grand jury at common law of a county bridge being out of repair (i). But the more advisable course is for the magistrates in sessions to direct the clerk of the peace to prefer a bill before a grand jury for the offence.

Presentment by a Grand Jury of a County Bridge out of Repair. Berkshire, to wit. Be it remembered, that at a general quarter session of the peace of our Lady the Queen, holden at for the said county, on

the

day of in the said year of the reign of, &c. — before A. B. and C. D., Esqrs., and the Rev. P. Q., clerk, and others, their companions, justices of our said Lady the Queen, assigned, &c. It is presented by the oath, [here add "and affirmation," if any grand juror be a quaker or moravian (j), or having ceased to be such, entertains conscientious objections to taking an oath (k), or is a separatist (1)] of M. N., O. P., Q. R., &c. (stating the names of the grand jurors), good and lawful men of the said county, then and there sworn and charged to inquire for our said Lady the Queen, and the body of the said county, as followeth, that is to say: Berkshire aforesaid; the jurors for our Sovereign Lady the Queen upon their oath present, that a certain bridge over the river T., commonly called bridge, lying and being in the several parishes of N. and M. in the said county of in the Queen's common highway, there leading from the market town of N. in the said county of- to the market town of M. in the said county of also for and during twenty years last past, being a common Queen's highway for all the liege subjects of our said Lady the Queen, with their horses, carts, and carriages, to go, pass, ride, and travel at their pleasure, on, &c., was, and continually from thenceforth, hitherto hath been, and still is, in great decay, broken down, and ruinous, so that the liege subjects of our said Lady the Queen, upon or over the said bridge, with their horses, carts, and carriages, could not, and cannot, go, pass, ride, and travel, without great danger, to the grievous damage and nuisance of all the liege subjects of our said Lady the Queen, upon and over the said bridge going, passing, riding and travelling, against the peace, &c. and that the inhabitants of the county of aforesaid, the common bridge aforesaid (so as aforesaid being in decay), ought to repair and amend when and so often as it shall be

necessary.

being in the said county of said market town of

And the jurors aforesaid, on their oath aforesaid, further present, that a certain other public bridge over the river T., commonly called bridge, lying and in the said Queen's highway, leading from the in the said county of to the said market town of T. in the said county of at the several times hereinafter mentioned, and now being a common Queen's highway for all the liege subjects of our said Lady the Queen, on foot, and with their horses, carts, and carriages, to go, pass, ride and travel on, &c. was, and continually from thence hitherto hath been, and still is, in great decay, ruinous and broken, so that the liege subjects of our said Lady the

(i) See 5 & 6 W. IV. c. 50, s. 5 and

s. 21.

(j) 3 & 4 W. IV. c. 49, s. 1. See ante, 179.

(k) 1 & 2 V. c. 77, and a case of Josiah King, Esq., cor. Alderson, B., 9 C. & P. 78.

(1) 3 & 4 W. IV. c. 82, s. 1.

P

Queen, upon or over the said bridge, on foot, and with their horses, carts, and carriages, could not and cannot go, pass, ride and travel, without great danger, to the grievous damage and nuisance of all the liege subjects of our said Lady the Queen, upon and over the said bridge, going, passing, riding, and travelling, and against the peace of our said Lady the Queen, her crown and dignity.

And the jurors aforesaid, on their oath aforesaid, further present, that the inhabitants of the said county of the said last-mentioned public and common bridge (so as last aforesaid being in decay, broken down, and ruinous), ought to repair and amend when and so often as it shall be necessary (m).

No inhabitant of the county where the nuisance arises ought to sit as a juror on the trial, though, both at common law and by statute, he may be examined as a witness (n).

In many counties constables were accustomed from early times to make presentment at the quarter sessions of various offences within their districts. They were, however, of no validity, unless they went before the grand jury and made oath to the truth of the facts which they presented (o). As much expense and vexation had arisen from presentments by constables, which they were required to sign at a petty sessions, in order to their being delivered by the high constables to the ensuing quarter sessions, it was enacted by 7 & 8 G. IV. c. 38, that "no petty constable shall be required, at any petty session or elsewhere, to make, nor shall any high constable be required at any general gaol delivery, great session, or general, or quarter session of the peace in England, to deliver any presentment respecting popish recusants, persons absenting themselves from their parish church, or any other place of religious worship licensed by authority, rogues and vagabonds, inmates, retailers of brandy, ingrossers, forestallers, regrators, profane swearers and cursers, servants out of service, felonies and robberies, unlicensed or disorderly ale-houses, false weights and measures, highways and bridges, riots, routs, and unlawful assemblies, and whether the poor are well provided for, and the constables are legally chosen and sworn." As this enumeration comprises almost, if not all matters, which ever were presented (p), it may be fairly assumed

(m) As to the law respecting the liability of counties to repair bridges, see post, tit. Nuisances. In the case of a presentment it does not seem necessary to state who ought to repair. Andrews, R. 285.

(n) 6 Mod. 307; 1 A. st. 1, c. 18, s. 13; post, Ch. VI. s. 19.

(0) See R. v. Bridgwater and Taunton Canal Company, 7 B. & C. 514. It is worth notice that though this case was not argued till some time after the pass

ing of 7 & 8 G. IV. c. 38, that act does not appear to have been mentioned in the argument. Its authority is therefore of less weight. See also R. v. Somersetshire (Justices), 1 Mann. & R. 272.

(p) As to presentments by petty constables of Middlesex, to the grand jury of Middlesex, of common Sabbath breakers, see 1 Chit. Cr. L. 310, and Mr. Justice Littledale's charge to the grand jury of Middlesex, Michaelmas Term, 1837. The crown office of the

that, except perhaps in Middlesex (q), presentments by constables will be discontinued, and that in future, indictments will be substituted in the necessary cases; particularly as a presentment when made by a constable carries no case further than appearance, till it is taken up by a private prosecutor.

SECTION III.

OF PROSECUTION BY INFORMATION.

Prosecutions by information at the quarter sessions can only be instituted in cases where, by a penal statute, an informer is allowed to take this course to recover the penalty. As this proceeding is generally disused, a single form will suffice for this place.

County of

{

Information.

the

Be it remembered that A. B. of (r), in the county of gentleman, who, as well for our sovereign lady the now Queen, as for himself, doth prosecute on this behalf, cometh before the justices of our said lady the Queen, assigned to keep the peace of our said lady the Queen, 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 sessions of the peace (8) holden at in and for the said county, on — of the reign of, &c. in his proper person, and as well for the said lady the Queen as for himself (u), giveth the court here to understand and be informed, that P. Q. late of the parish of county of yeoman, on, &c. at, &c. aforesaid, not regarding the laws and statutes of our said lady the Queen, but intending, &c. [here insert the offence with the same precision as in an indictment] (v) against the form of the statute in that case made and provided (w), whereupon the said A. B. as well for our said lady the

- day of -in the

year (t)

queen's bench has the power to call for these presentments in Middlesex; see post, Ch. VI. s. 17, note to precedent of indictment for nuisance in keeping open shop on Sundays.

(9) See last note; 1 Chit. Cr. L. 1st ed. 167, 168.

(r) By 18 El. c. 5, informers upon penal statutes are prohibited from suing otherwise than in person or by attorney; therefore an infant cannot proceed by information qui tam. Bul. Ni. Pri. 196.

(8) By 21 Jac. I. 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, bo

in the

roughs, 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.

(t) The suit must have commenced within a year from the offence committed, 31 El. c. 5.

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

(v) But it need not conclude " against the peace," &c. as an indictment must.

(w) But if the offence be recognized by more than one statute, the particular statute under which the suit is prose

Queen 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 per. son at the next general quarter session of the peace to be holden for the said county, to answer as well to our said Lady the Queen, as to the said A. B. who, as well for our said Lady the Queen as for himself, doth prosecute of and concerning the premises, and further to do and receive what the said court shall consider in his behalf (x).

cuted 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.

(a) 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 El. 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, Bul. N. P. 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 an informer of any penal statute, and also of forfeiting 107. 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. But the pillory was abolished (except for perjury and subornation thereof) by a subsequent statute, 56 G. III. c. 138, and is now entirely taken away by 7 W. IV. and 1 V. c. 23.