Supreme Court of Pennsylvania.
June Term, 1790.
Leave having been granted; on the motion of Serjeant, 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 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 expence 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 forma, the Attorney General must allow his name to be used by the prosecutor.
Last modified: March 24, 2016