¶1Criminal practise.
¶2The act of 1705, requiring the prosecutor’s name to be indorsed on an indictment, applies only where there is an actual prosecutor; and proof of the person prosecuting cannot be made by the defendant.
¶3Indictment for a nuisance. Mr. Dickenson, for the defendant, moved that a prosecutor should be indorsed on the indictment, agreeable to the act of assembly, (c) before the defendant should be put to plead.
¶4Mr. Chew, attorney-general, urged that such a construction ought to be put on the act, as that public justice may not be eluded; and that there should be no necessity to indorse a prosecutor, unless it be proved that there is some person active in carrying on a prosecution; because, if it took its rise from the grand jury, or a justice of the peace, no person could be indorsed ; and offenders of the highest nature would escape being brought to justice.
¶7It often happens that all the witnesses necessary to support a public prosecution, are brought unwillingly to give evidence ; and the act could never intend there should be a prosecutor ^indorsed, J unless there was really a prosecutor existing, for the words in the act *7are, the prosecutor. And as no person in the present ease is. proved to ’be active in carrying on the prosecution, the defendant must plead to the indictment, without any indorsement.
¶8It was then moved, that the defendant himself might be sworn to prove the person prosecuting; but denied by the Court, who said, it must be proved by indifferent witnesses, (a)