¶1By the Court,
¶2The provision contained in § 2 , Act 138, S. L. 1859, was no deubt incorporated into this law *240from § 6028; G. L. It requires that the prosecuting attorney shall endorse the names of witnesses known to him upon the information.
¶3In both cases it was prescribed that the defendant might be fairly “ confronted with the witnesses against him,” and prepare-for his trial; and although in-the form of a direction to the officers of the court, and no part of the information or indictment, and prescribing no penalty for its neglect, yet being of essential benefit to the defendant, miist be held mandatory on the attorney. Being for the defendant’s benefit, He may waive the endorsement. After the information is filed, it is subject to the inspection of the prisoner and his counsel, and if he pleads thereto without requiring such indorsement he must be held to have waived the indorsement which should have been made before filing. If no names are thus indorsed the information is not prepared for filing, and if filed may be taken from the files or the attorney ordered to indorse according to the circumstances. In this stage, viz: before pleading, the proper course would be an order nisi.
¶4Where names are indorsed it is to be presumed the attorney has done his duty and will call no others. Should he call others, there is no other remedy left the defendant but to object to their being sworn.
¶5The ground of objection is not want of competency in the witness, but neglect of duty by the attorney, and the consequent surprise and want of preparation by the defendant. Such objections are addressed to the discretion of the Court. For these reasons the objection of Lilly is denied and the attorney has leave to indorse the information vs. Van Buren.