12. The court will not generally quash an information upon motion; but the party must either plead, demur, or move in arrest of judg ment. 1 Salk. 372. Str. 185.

13. And seeing that an information differs from an indictment in little more than this, that the one is found by the oath of twelve men, and the other is not so found, but is only the allegation of the person who exhibits it, whatsoever certainty is required in an indictment, the same at least is necessary also in an information; and consequently, as all the material parts of the crime must be precisely found in the one, so must they be precisely alledged in the other, and not by way argument or recital. 2 Hawk. 260, 1.

of

14. For this reason, the statutes of Jeofails (from J'ay faille, I have failed) or the statutes that do remedy oversights in pleading, extend not to informations. Wood, B. 4. ch. 4. But this is now altered in Virginia. See 2 Rev. Code, p. 38, sect. 6.

15. If an information contain several offences against a statute, and be well laid as to some of them, but defective as to the rest, the informer may have judgment for so much as is well laid. 2 Hawk. 266.

II. HOW AND IN WHAT CASES AN INFORMATION MAY BE FILED, AND WHEN NOT.

1. It is the general practice not to grant leave to file an information, without first making a rule upon the person complained of, to shew cause to the contrary; which rule is never granted, but upon motion made in open court, and grounded upon affidavit of some misdemeanor, which, if true, doth, either for its enormity or dangerous tendency, or other such like circumstances, seem proper for the most public prosecution. And if the person upon whom such rule is made, having been personally served with it, do not, at the day given him for that purpose, give the court good satisfaction, by affidavit, that there is no reasonable cause for the prosecution, the court generally grants the information; and sometimes, upon special circumstances, will grant it against those who cannot be personally served with such rule, as, if they purposely absent themselves, &c. Haw. B. 2. ch. 26, sect. 7. Bull. N. P. 210. 2 Str. 1044. Cases temp. Hard. 271. [See post. No. 5, as to filing informations in Virginia.]

2. But if the party on whom such rule is made shew to the court a reasonable cause against such prosecution; as that he has been before indicted for the same cause and acquitted; or that the intent of the prosecution is to try a civil right, as the title to land, &c. which is not yet determined; or that the complaint is trifling, vexatious, or oppressive, 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. Haw. B 2 c. 26, sect. 8. Cro. Jac. 212. 4 Burr. 1963, 2024. Cases temp, Hard. 241.

Informations have been denied in the courts in England in the following cases:

3. The court will not grant an information against a private person

for reading a pretended proclamation. (1 BI Rep. 2) Nor against a husband for endeavouring to retake his wife contrary to articles of separation. (1 Bl. Rep. 18.) Nor against persons who assemble with a lawful design, notwithstanding some unlawful and irregular acts ensue. (1 Bl. Rep. 48) Nor against justices acting improperly in their public capacity, unless flagrant proof of corruption appears. (2 Str. 1181. Burr. 785, 1162. Bl. Rep. 432. Doug. 589. 1 Term, Rep. 653.) Nor against ministers for converting brief money. (St. Tr. 113. Bl. Rep. 445.) Nor for bribing electors. (Bl. Rep. 541.) Nor for a perjured intrusion to a living upon an affidavit that it was simoniacal. (Str. 70.) Nor for a libel, if it appear to be true. (Str. 498 (Doug 284. 387. 3 Bac. Abr. 475.) Nor for offences committed upon the high seas. (2 Str. 918.) Nor against a dissenter, for refusing the office of sheriff. (2 Str. 1193. I Wils. 18.) Nor agains an offender for usury, after the penalty for the offence is lapsed to the crown. (2 Str. 1434.) Nor for words spoken of a justice in his public character. (2 Str. 1157.) Nor for attempting subornation (B. R. H. 24.) Nor for sending a challenge, if the informant had previously imparted a challenge. (Burr. 516, 402.) Nor in favor of one cheat against another cheat. (Burr. 548) Nor for a general charge of extortion (Str. 999.) Nor for striking a magistrate in the execution of his office, if the magistrate struck first. (B. R. H. 240.) Nor for an offence against a private statute. (Burr. 385.) Nor if a civil suit is depending, upon the same subject. (B. R. H. 241.) Nor against the members of a corporation, for a misapplication of the corporation money. (Bl. 542.) Nor against a magistrate for having improperly convicted a person, unless the party complaining make an exculpatory affidavit. (Rex. v. Watson, 2 Term. Rep. 199.) 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 application; by the nature of the case; and by the consequences which may possibly result from the granting it. Rex. v. Webster, 3. Term. Rep. 388.

Informations have been granted in the courts in England, in the following cases.

4. The court will grant an information for reproaching the office of magistracy, or defaming the character of magistrates. (Carth. 14.) For taking away a young woman from her guardian; although chancery has committed the offender for a contempt. (2 Str. 1107. Andr. (310) Or from her putative father. (Str. 1162.) For examining a person on oath, upon an arbitration, on an indictment, without putting the depositions into writing, the defendant being a commissioner appointed for taking affidavits. (See 1 Salk. by Evans, 374, note (1) For demanding a shilling by a justice, to discharge his warrant, and commiting the party for not paying it. (1 Wils. 7.) For seducing a man to marry a pauper, in order to exonerate the parish. (1 Wils. 41.) For seducing a woman habituated to drinking to make her will. (2 Burr. 1099.) For voluntarily absenting, by a justice, from sessions. ( Str 21.) For refusing to put an act in execution. (1 Str. 413.) For bribing persons to vote at corporation elections. (2 L. Raym 1377.) For publishing an obscene book. (Str. 788.) For unduly discharging a debtor by judges of an inferior court. (Hard.

183.) For refusing, by the captain, to let the coroner come on board a man of war. (Str. 1097.) For keeping great quantities of powder. (Str. 1167.) For a justice making order of removal, and not summoning the party. (Andr. 238.) For impressing a captain as a common seaman, maliciously. ( Bl. 19.) For contriving the escape of prisoners of war. (1 Bl. 286.) For giving a ludicrous account of a marriage between an actress and a married man. (1 Bl. 294.) For contriving pretended conversations with a ghost, with intention to accuse another of having murdered the body of the disturbed spirit. (1 Bl. 392, 401.) For procuring a female apprentice to be assigned, though with her own consent, to another, for the purposes of prostitution. (1 Bl. 439.) Against a justice of peace, as well for granting as for refusing an ale licence improperly. (Rex. v. Holland, 1 Term. Rep. 692.) Against a justice of the peace, who, from illegal and corrupt motives, discharges the person committed by another magistrate under the vagrant act. (Rex. v. Brooke, 2 Term. Rep. 190.) For entering libellous reflections in the books of a corporation, respecting the administration of justice, in a cause in which the corporation were party. (Rex. v. Watson, 2 Term. Rep. 199.) Against a person whose trial is coming on at the assizes for distributing hand-bills in the assize town, vindicating his conduct and reflecting on the prosecutors. Rex. v. Jolliffe, 4 Term. Rep. 285.

5. By the laws of Virginia, No information for a trespass or misdemeanor shall be filed in any court, but by express order of the court, entered on record; nor unless the party supposed to be culpable shall have failed to appear and shew good cause to the contrary, having been required so to do by a summons, appointing a convenient time for that purpose, served upon him, or left at his usual place of abode.' 1 Rev. Code, p. 105, sect. 24.

This law further required, that the name and surname of the prosecutor, with his residence and addition, should be written at the foot of the information before it be filed, and of every bill of indictment for a trespass, or misdemeanor before it be presented to the grand jury. Ibid.

But it was afterwards declared, That where any information shall be filed by the attorney for the commonwealth, by express order of the court entered of record, the party supposed to be culpable having failed to appear, and shew good cause against such order, having been required so to do by summons, appointing a convenient time and place, served upon him, or left at his usual place of abode, no prosecutor shall be required on such information. Nor shall any prosecutor be required on an information or bill of indictment for a trespass or misdemeanor, filed or sent to a grand jury, which shall be filed or sent to a grand jury, on, and in consequence of a previous presentment of a grand jury made on their own knowledge, or on the information of any two of their own body.' 1 Rev. Code, p. 431.

6. If the grand jury, to whom a bill of indictment for a trespass or misdemeanor be preferred, do not find the bill; or if the defendant appear to shew cause against filing such information or indictment, and the prosecutor does not proceed further; or if the defendant be found not guilty by the petit jury, he shall recover his costs against the prosecutor, where one is required. 1 Rev. Code, p. 105, sect. 25.

7. In all such cases the fine or amercement, which ought to be according to the degree of the fault and the estate of the defendant, shall be assessed by a jury, &c. Ibid. sect. 26.

Form of an information qui tam.

county to wit.

Be it remembered, that A J, of in the county of gen. tleman, who, as well for the commonwealth as for himself, doth prosecute, cometh before the justices of the peace for the commonwealth, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said county committed, at a court holden at in and for the said county, the day of in the year of our lord and in the year of the commonwealth, in his proper person; and as well for the commonwealth as for himself, giveth the court here to understand and be informed, that A O, late of aforesaid, yeoman, on the

in the county

day of in the year aforesaid, at aforesaid, in the county aforesaid, not regarding the laws and statutes of this commonwealth, but intending to, &c. with force and arms 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 aforesaid A J, as well for the said commonwealth, as for himself, prayeth the advice of this court in the premises; and that the aforesaid A O may forfeit the sum of according to the form of the statute aforesaid; and that the same A J may have one moiety thereof, according to the form of the statute aforesaid; and also that the aforesaid A Ō may come here into this court, to answer concerning the premises.

If the information is filed by the attorney for the commonwealth, ex officio, and not at the instance of a common informer, as in the foregoing precedent, then the form may be thus:

Be it remembered, that

the court of

attorney for the commonwealth in who for the said commonwealth in this behalf prosecutes, in his own proper person comes here into the court of the said commonwealth, on the

and in the

day of

and in the year

year of the commonwealth, and for the said commonwealth gives the court here to understand and be informed, &c. For an information against slaves, see title SLAVES.' INNS, INNKEEPERS, See ORDINARIES. INQUISITION, see PRESENTMENT.

INSOLVENTS.

1. By the humane policy of the Virginian laws, the idea of relieving poor persons imprisoned for debt was very early conceived. So early as the year 1644, we find an act which, after reciting that several poor persons were then lying in the sheriff's hands, under execution for

tobacco, corn, and other commodities, which truly in kind they had not,' declared, that in such cases the inventory of their estate being produced, upon oath, in presence of the creditor, the commissioners (justices of the peace) should determine what should be valued for satisfaction of the debt. (See 1 Stat. at large, p. 296.) In an act of 1647, the same principle is preserved, varying only in its application. By that act the creditor was compelled to accept of property tendered to him by his debtor, who is in execution; to be appraised by two honest men mutually chosen; and if they could not agree, then the two next adjoining commissioners to determine the value. (See 1 Stat. at large, p. 346.) In the revisal of 1657, the last mentioned law was re-enacted, with a proviso, that the debtor should not be at liberty to give up what part of his property he pleased, but that the sheriff should seize any part, acting indifferently between the debtor and creditor. 1 Stat. at large, p 453. See also acts of 1705, ch. 37, 51.

2. The principle of the insolvent laws, as they now exist, and have existed since the year 1726 (see L. V. edit. 1733, p. 364, 5.) is, that the debtor shall deliver in a schedule of his whole estate, real, personal, and mixed, whether in possession, remainder, or reversion, or whether held by himself or by any other in trust for him; and having taken the oath prescribed by law, he may be discharged; but the creditor may, at any time afterwards sue out a scire facias, to have execution of any lands, goods or chattels, which the debtor may acquire.

The details of this law are too lengthy for insertion; but whatever relates to the discharge of an insolvent debtor may be found in the following parts of the first volume of the Revised Code, viz. ch. 176, sect. 2, p. 324. Ch. 151, sect. 38, 39, 40, 41, 42, 43, 44, 45, 46, 52. Ch. 249, sect. 8, p. 391, which see. Also, 2 Rev. Code, p. 135, by which it appears, that after a debtor has had the prison bounds for one year, he shall be committed to close prison.

3. The thirty-eighth section of the act of 1793 ( Rev. Code, p. 303) having given to a superior court, or to two judges thereof, when the court is not sitting, power to discharge an insolvent debtor, and the act of 1794 (1 Rev. Code, ch. 176, p. 324, sect. 2.) having, in terms, given such power to two justices of the peace only, and moreover the thirteenth section of the last recited act having repealed so much of the thirty-eighth section of the act of 1792, as is contrary to the act of 1794, some of the judges of the general court have refused, in any case, to discharge an insolvent debtor, supposing that the power is now conferred on the inferior courts, or two justices thereof, exclusively.

4. If the debtor be able to pay his own prison fees, the jailor cannot demand them of the creditor, as for an insolvent debtor. Thus when the debtor took the benefit of the prison rules, and hired a house within the bounds thereof, and was able to maintain himself; but the jailor demanded and received from the creditor the per diem allowance for the prison fees, which he regularly paid over to the debtor, the creditor was permitted to recover them back from the jailor, in an action for money had and received to the plaintiff's use. 1 Call. 540.

5. So, where a debtor had given bond and security for the prison bounds, and rented a house therein, in which he resided, and not in the prison, and was transferred from one sheriff to his successor, who