2. Motion and Rule. Make an affidavit, entitled "In the Queen's Bench," stating the facts of the case; and if it be for a libel or the like, the prosecutor must, in his affidavit, negative very fully what is imputed to him by it; if for a libel in a newspaper, a certified copy of the declaration of the publisher, filed at the stampoffice, must be obtained, and an affidavit made verifying the signature of the commissioners of stamps to such certificate. If the application be against a justice of peace, for any thing done by him in the execution of his office, a notice of the intended application must be given to him, and an affidavit made of the service. Having prepared these different affidavits, let them be sworn either in court, or before a judge of the court, or before a commissioner of the court in the country. Make a brief of them, and instruct counsel to move for a rule nisi. If it be granted, draw it up at the crown-office; pay 2s. Serve a copy, either personally, or by leaving it at the defendant's residence, or, in the case of a libel in a newspaper, by leaving it at the place of publication as mentioned in the publisher's declaration above mentioned; and make an affidavit of service. Afterwards deliver your brief or briefs to counsel, with the affidavit of service, and with a fresh back sheet indorsed to make the rule absolute. The defendant, on being served with the rule nisi, must prepare his affidavits in answer, entitled "In the Queen's Bench," and instruct counsel to show cause against the rule. The rule is then argued in the same manner as rules in ordinary civil cases; and is then made absolute or discharged. If the court think the application frivolous or vexatious, they usually discharge it with costs; and the same, if they think the applicant has suppressed or misrepresented any material fact in his statement. Sometimes where the defendant is in fault, but the court think that he will be sufficiently punished by making him pay the costs, they will discharge the rule on his paying the costs. If the rule be discharged with costs, the costs are taxed, and on being personally demanded, are recovered by attachment, as in ordinary cases. But if the rule be discharged upon payment of costs, then upon the costs being taxed and personally demanded, if they be not paid, the prosecutor may proceed to file his information; he cannot have an attachment.. Having stated thus shortly the practice, we shall now state the law relative to these several proceedings, and give the forms, under the following heads: Notice to justices.] There must be six days' notice given to a justice of the peace, of an intended application for a criminal information against him, for any thing done by him in the execution of his office. This is not required by any statute; but the practice of the court requires it, and the court will not dispense with it. Ex p. Fentiman, 2 Ad. & El. 127. And there must be six days between the day of serving the notice, and the day mentioned therein as the time at which the motion will be made; otherwise the court will not entertain the application, or will discharge the rule nisi, if granted, even although the motion be not in fact made until after the expiration of the six days. Id. In the Queen's Bench. instant, personally serve A. B. notice, by delivering the same to the wife of the said C. D., at his dwelling-house, situate at; and that he this deponent did also on instant, serve E. F., one of her Majesty's justices of the peace for the said county, with a true copy of the said notice, by delivering the same to a female servant of the said E. F., at his dwelling-house, situate at Sworn, &c. Affidavits.] The affidavits for the purpose of obtaining the rule nisi, must contain such evidence as would be sufficient to maintain the information at the trial; they must prove satisfactorily that the offence complained of was committed, and that it was committed by the party or parties against whom the application is about to be made. Upon a motion for an information against two persons for a conspiracy, in endeavouring to raise the price of oil, it was holden that the affidavits should distinctly show that they combined together; for it is no offence for an individual separately to endeavour to do so. R. v. Hilbers, 2 Chit. 163. An affidavit by A., stating that B. had brought him a challenge from C., but that he had refused to make an affidavit that C. had sent him with it, was holden not to be evidence on which the court would grant a criminal information against C. R. v. Willett, 6 T. R. 294. So, upon a motion for a criminal information against C. for sending a challenge to A., an affidavit by A., stating that in a correspondence between him and C., C. had intimated an intention that as soon as certain accounts were settled between them, he should require an apology for certain offensive expressions contained in a letter received by him from A., or "such satisfaction as is usual on such occasions between gentlemen ;" and that afterwards B., a relation of C., came with a letter of A. in his hand, settled the account, and after saying that he had come in consequence of the letter in his hand, delivered a hostile message as from C: this was holden to be insufficient to convict C. with the challenge, and therefore the court refused the rule. R. v. Younghusband, 4 Nev. & M. 850. But the court afterwards, upon this affidavit, granted a rule nisi against B., for delivering the challenge. Id. Where in moving for a criminal information for printing and publishing a libel, the affidavit stated that the defendant, the printer of a certain newspaper, inserted and printed in it a certain scandalous and defamatory libel of and concerning the prosecutor, a copy of which libel was thereunto annexed, and stood near the middle of the fifth column of the second page of the said newspaper, and a copy of which said libel, marked B., was thereinafter contained; and the newspaper itself was annexed to the affidavit: the court held, that this was not sufficient; it was not sufficient at common law, because, according to the affidavit, this was merely a copy of the libel, which would not be evidence at the trial; and the applicant had not proceeded under the statute. R. v. Baldwin, 8 Ad. & El. 168. See R. v. Chappel, 1 Bur. 402. So, an affidavit stating circumstances of suspicion only, without adding the deponent's belief of the defendant's guilt, was holden insufficient; there must be either positive proof of the offence being committed by the party complained of, or the affidavit must state such circumstances as cannot, by possibility, lead to any other conclusion, or if only suspicious circumstances be stated, the deponent must add his belief of the defendant's guilt. R. v. Williamson, 3 B. & A. 582. But it is no objection, that the sole affidavit is made by a particeps criminis, if the offence be one against the public interest, such as bribery at the election of an alderman, who by his office was a justice of the peace, R. v. Steward, 2 B. & Ad. 12, or the like. Care must be taken that the affidavits do not contain any harsh or slanderous observations on the defendant, not necessarily forming part of the offence complained of; for although the court will not reject the affidavit on that account, they may consider it as indicating a vindictive motive in making the application. See R. v. Burn, 7 Ad. & El. 190. Formerly, where the libel was contained in a newspaper, there was often some difficulty in proving that the defendant was the printer or publisher; and the same difficulty occurred in applications for criminal informations. To remedy this, it was enacted by stat. 6 & 7 W. 4, c. 76, s. 8, "that copies of the declarations therein mentioned [namely, declarations to be filed with the commissioners of stamps in Westminster, or with the distributors of stamps in the country, and by them transmitted to the commissioners, by all printers and publishers of newspapers, stating the title of the newspaper, the houses or buildings where it is to be printed or published, and the true names, additions and places of abode of the printer and publisher and two of the proprietors thereof, and to be signed by them, Id. s. 6] certified to be true copies, as thereinafter directed, shall respectively be admitted in all proceedings civil or criminal, and upon every occasion whatsoever, touching any newspaper mentioned in any such declaration, or touching any publication, matter or thing contained in any such newspaper, as conclusive evidence of the truth of all such matters set forth in such declaration as are herein required to be therein set forth, and of their continuance respectively in the same condition down to the time in question, against every person who shall have signed such declaration, unless it shall be proved that previous to such time such person became lunatic,- -or that previous to the publication in question on such trial such person did duly sign and make a declaration that such person had ceased to be a printer, publisher or proprietor of such newspaper, and did duly deliver the same to the said commissioners or to such officer as aforesaid,‚—or unless it shall be proved that previous to such occasion as aforesaid, a new declaration of the same or similar nature respectively, or such as may be required by law, was duly signed and made and delivered as aforesaid respecting the same newspaper, in which the person sought to be affected on such trial did not join." "And the commissioners, or the proper authorized officer by whom such declaration shall be kept according to the directions of this act, shall upon application in writing made to them or him respectively by any person requiring a copy certified according to this act of any such declaration as aforesaid, in order that the same may be produced in any criminal or civil proceeding, deliver such certified copy or cause the same to be delivered to the person applying for the same, upon payment of the sum of one shilling, and no more." Id. "And in all proceedings and upon all occasions whatsoever, a copy of any such declaration, certified to be a true copy under the hand of one of the said commissioners or of any officer in whose possession the same shall be, upon proof made that such certificate hath been signed with the handwriting of a person described in or by such certificate as such commissioner or officer, and whom it shall not be necessary to prove to be a commissioner or officer, shall be received in evidence against any and every person named in such declaration as a person making or signing the same, as sufficient proof of such declaration, and that the same was duly signed and made according to this act, and of the contents thereof; and every such copy so produced and certified, shall have the same effect, for the purposes of evidence against any and every such person named therein as aforesaid, to all intents and purposes whatsoever, as if the original declaration, of which the copy so produced and certified shall purport to be a copy, had been produced in evidence and been proved to have been duly signed and made by the person appearing by such copy to have signed and made the same as aforesaid; and whenever a certified copy of any such declaration shall have been produced in evidence as aforesaid against any person having signed and made such declaration, and a newspaper shall afterwards be produced in evidence, intituled in the same manner as the newspaper mentioned in such declaration is intituled, and wherein the name of the printer and publisher and the place of printing shall be the same as the name of the printer and publisher and place of printing mentioned in such declaration,—or shall purport to be the same, whether such title, name and place printed upon such newspaper shall be set forth in the same form of words as is contained in the said declaration, or in any form of words varying therefrom :-it shall not be necessary for the plaintiff, informant or prosecutor, in any action, prosecution or other proceeding, to prove that the newspaper to which such action, prosecution or other proceeding may relate, was purchased of the defendant, or at any house, shop or office belonging to or occupied by the defendant, or by his servants or workmen, or where he may usually carry on the business of printing or publishing such newspaper, or where the same may be usually sold."-Id. Where upon a motion for a criminal information for a libel in a newspaper, the stamp-office certificate of the publisher's declaration, verified by affidavit, was produced, and there was an affidavit setting out the alleged libels, and stating that they were contained in a newspaper, the title and date of which, and the names of the printers and publishers, corresponded with the declaration at the stamp-office, but the newspaper was not annexed, it was merely shown to the court on moving for the rule, and of course the rule was not drawn up on reading such newspaper; afterwards in showing cause against the rule, it was objected that this was no evidence |