Vasse v. Spicer.

BY THE COURT.—It would wear an aspect of hardship, if the trial were to be forced on, at the very time that the plaintiff had engaged the defendant in his service, and sent him to a distance. But let a peremptory rule for trial at the next term be entered.

*RESPUBLICA v. COATES.
Trial by proviso.

[*109

The defendant cannot have a rule for trial by proviso, against the commonwealth. THIS was an action on an official bond executed by the defendant; and the real plaintiff having neglected to strike a jury, the defendant's counsel moved for a rule for trial by proviso; but on a suggestion from the Attorney-General, approved by the court, that such a rule could not be granted against the commonwealth, the motion was made for a peremptory rule to try at the next term; under which, the court said, they would order the jury to be qualified.

Levy, for the plaintiff; Sergeant, for the defendant.

*BORGER v. SEARLE.
Practice.

A rule to show cause of action will not be granted, on the last day of the term.

[*110

ON a capias, returnable to the present term, Lewis, this day, moved for a rule to show the plaintiff's cause of action, and why the defendant should not be discharged on common bail; offering, at the same time, to file an agreement, that the question might be heard before a single judge at his chambers.

Bradford objected, that this being the last day of the term, the motion was out of season. He did not dispute the power of the court; but he appealed to their discretion, whether it would not be unreasonable to suspend the cause for three months, by granting the rule at so late a period.

BY THE COURT.-The motion is certainly out of time. Before the return of the capias, a question of bail may be brought before a single judge; but after the return, it must be decided on an application to the court: which ought to be made, on the first day, or, at least, within a reasonable period, after the commencement of the term. The present motion cannot, therefore, be granted.

The defendant will not be permitted, when the jury is called, to retract his plea, and enter judgment by non sum informatus.

ISSUE had been joined in this cause, and the jury were at the bar, ready to be qualified for trying it, when, Sergeant moved for leave to retract his plea, and to enter judgment by non sum informatus. Rawle and Du Pon

Respublica v. Griffiths.

ceau, for the plaintiff, opposed the motion. And Lewis, as amicus curiæ, observing that the question was of general importance, hoped that the court would take this opportunity of correcting, what he considered to be an unreasonable and unwarrantable practice. In support of his opinion, he re ferred to Style Pr. Reg. 371; Jac. Law Dict., Tit. "Judgment ;" 2 Lill. Abr. 104; 5 Com. Dig. 186; 2 Brownl. 196.

BY THE COURT.-It has been a practice, for the plaintiff's attorney to accept a judgment in the mode proposed by the motion; but the point, for allowing the defendant's attorney, either as matter of right, or indulgence, to retract his plea, under such circumstances, has never been brought before the court, on argument. The inconvenience of the delay, where, in fact, there is no dispute, is, however, so palpable, that we cannot give a judicial countenance to the practice. Therefore, let the jury be called.

Ex parte HOLKER.
Special court.

A going defendant is entitled to a special court, though he has a resident partner, who could remain.

Dallas moved for a special court to try various actions in which Mr. Holker was defendant, jointly with Duer and Parker; but it was objected by Lewis, that the reason of the act of assembly, for granting special courts, did not apply to cases, where there were partners, who could remain, during the usual course of proceeding, to defend the causes, and who did not join in the application.

BY THE COURT.-The objection is not sufficient to justify the refusal of a motion for a special court. The legislature intended to relieve defendants, who were ready and willing to proceed to trial; and accelerating a decision cannot possibly injure the plaintiffs, unless some material witness is absent; which has not been pretended in the present case. The rule for a special court must, therefore, be granted.

*112]

*RESPUBLICA v. GRIFFITHS.
Criminal information.

An information, at the relation of a private person, must be drawn and prosecuted by him, using the name of the attorney-general pro formâ.

LEAVE having been granted, on the motion of Sergeant, to file an information against the defendant, one of the Justices of the Peace for Chester county, it became a question, whether the information should be drawn, filed and prosecuted by the attorney-general, or by the party at whose instance it was awarded.

The Attorney-General (Bradford) objected, that it is not the duty of the attorney-general to draw and file this information. It must, indeed, be in the name of the commonwealth, and the prosecutor may make use of the name of the officer, who prosecutes for the state; but there is, in England,

Walker v. Wallace.

a known and established distinction, between informations filed by the attorney-general, and those filed by him, at the relation of a private person, in the name of the master of the crown office. The former are always filed ex officio; and the court will not, upon motion of the attorney-general, give him leave to file an information against any person. 3 Burr. 1812. They cannot be quashed, on motion of the prosecutor (Dougl. 227); nor is the prosecutor liable for costs. But informations, at the relation of private persons, are in a great measure private suits. They are moved for and conducted, not by the officers of the crown, but by counsel employed by the prosecutor. The prosecutor is, in many cases, liable to costs. 3 Burr. 1270, 1305. The court will not grant it, where the prosecutor appears unworthy. Burr. 548, 869. And on a motion for an information for a libel, oath must be made of the falsity of the charges contained in the libel, a circumstance quite immaterial, where the prosecution is wholly on the part of the public. The prosecutor, therefore, ought to be at the expense and employ his own counsel, in this proceeding, in which he is really interested. If it be the duty of the attorney-general to file this information, it is his duty to prosecute it also.

No informations (except those qui tam) have hitherto been filed in Pennsylvania; and it is of consequence to settle this point. No fees are provided for the duty, in the bill of fees, and the attorney-general ought not, on this occasion, to be considered as the mere drawer of an information, for which he is not to be paid, and with the future prosecution of which he has nothing to do.

*BY THE COURT.-The objection is reasonable and just. But, pro formá, the attorney-general must allow his name to be used by the prosecutor.

[*113

SEPTEMBER TERM, 1790.

WALKER et al. v. WALLACE et al.

Costs.

A garnishee in foreign attachment is not liable for costs, unless more be found in his hands than he admits by his plea or answer.

THIS was a scire facias against the defendants, as garnishees of Waldo against whom a foreign attachment had been issued. On the trial, it was ruled

BY THE COURT.-That if a plaintiff does not prove more in the hands of the garnishee, than he admits by his plea to the cire facias, or his answer upon interrogatories, the plaintiff must pay the costs. But if more is proved, then the costs shall be paid by the garnishee.

The verdict being for no more than the sum admitted in the answers of the defendants, judgment was, accordingly, entered for the plaintiffs, but without costs.

2 DALL.-7

97

FERGUSON, captain of militia, v. BARON, a private.

Certiorari.-Error.

A party cannot object to an error, in his favor; such as, giving him notice, when he was not entitled to it.

On the return to a certiorari, issued to remove the record of the proceedings that were had in this case, before Justices McKnight and Todd, it appeared, that the defendant, having been tried by a regimental court-martial, for a breach of the rules of discipline, was fined to the value of ten days' labor (17. 158.), that on an application made by the plaintiff, who acted as clerk of the company, to the justices, they issued a summons to the defendant; and that, on the return of the process, they gave judgment conformable to the sentence of the court-martial.

Bradford, in support of the judgment, read the proceedings of the courtmartial; and the section of the militia act, relative to the recovery of fines.

Levy contended, that the justices had proceeded without jurisdiction; for, their authority under the act was merely ministerial, to issue an execution; whereas, they had undertaken to hold plea on the subject-matter.

*BY THE COURT.-It is an extraordinary objection, to proceed from *114] the defendant, that he had notice before an execution issued against him. The measure was a liberal and indulgent one; and ought not to be discountenanced, if in general practice.

Judgment affirmed.

OVERSEERS of COVENTRY 0. CUMMINGS.

Certiorari.-Return.

On certiorari, the court must take the case as stated in the return, without travelling into the merits.

CERTIORARI to remove the record of proceedings before Justice Bartholomew, to which the following return was made: "On hearing the matters between the parties, I gave judgment for plaintiffs for a debt of 388., with 17s. 3d. costs: 30s. of which was money said defendants sued plaintiffs for, before Daniel Griffith, Esq., on account of John Ralston, Esq., and self, which thing he had no orders from us to do, and the remainder, 8s., being the costs the plaintiffs paid on said action. Execution granted for said debt. and costs to the plaintiffs; and the costs paid by them."

Lewis and Todd excepted to the judgment, that Justice Bartholomew had undertaken to decide upon a matter, which had been previously decided by another justice.

Bradford and Sergeant objected to go into the merits of the case.

BY THE COURT.-If the return is false, the justice is liable to an action, at the instance of the injured party: if he has acted contrary to justice, an information will be granted against him. But in the present state of the business (though we highly disapprove of the interference of a justice in any

Tarin v. Morris.

matter previously decided by another justice), we must take the case as stated upon the return, without travelling into the merits of the original question.

Judgment affirmed.

VANSCIVER v. BOLTON.

Certiorari-Practice.

The defendant's affidavit, that the case was decided by the justice, upon the plaintiff's oath alone is sufficient to cast the onus probandi upon his adversary.

CERTIORARI to remove the judgment of a justice of the peace. As cause for reversing the judgment, Levy showed, by the defendant's affidavit, that the debt had been proved before the justice, by the plaintiff's oath alone. Howell objected, that this was not sufficient, as the plaintiff might have sworn to his books; and at all events, the exception to the judgment cannot be supported by the mere showing of the defendant's affidavit.

*MCKEAN, Chief Justice. The oath of the interested party cannot [*115 singly be admitted to maintain his demand: nor, is it merely upon a plaintiff's oath, that an original entry in his books is received in our courts as evidence; since that, when allowed its utmost latitude, proves nothing more than the sale and delivery of the goods.

With respect to the mode of establishing the exception to the judgment, the affidavit of the defendant, though not conclusive, must, at least, be deemed sufficient for throwing the onus probandi, if other evidence was produced, upon his adversary.

TARIN V. MORRIS et al.
Costs.

The indorser of a note is liable for costs, though satisfaction be obtained in an action against the maker.

THE plaintiff was indorsee of a note, which was drawn by Gheir, in favor of the defendant, William Morris. Soon after the present action was brought, the defendant became bankrupt; and another suit was instituted on the same note against Gheir, the maker, in which judgment had been obtained for the debt and costs. The defendant's certificate being still in suspense, Ingersoll moved, that judgment should likewise be entered in the present action, for costs; stating that several suits may be brought against all the parties to a bill or note; and that although only one satisfaction can be recovered, yet execution for costs might be issued in all the suits. Bail. B. of Ex. 43; 2 Ves. 115. But Sergeant, for the defendant, urged, that this was a hard case, as his client was originally only an indorser, and had become a bankrupt; that it was at the peril of the holder of a bill or note, so far as respects the costs, if he sued, for one satisfaction, all the parties that were liable to make it; and that, in the case cited, judgment had previously been obtained in all the suits; while, in this case, judgment has not been obtained, and is only requested for costs.