the writ fets the caufe down for argument on the crown paper day, the rule nifi is drawn up for, against when the folicitors prepare their briefs, give them to counfel, and attend the court on the day it is fet down for, when the counfel argue the matter, and the court either confirm or quafh the orders. If they are confirmed, the clerk of the rules draws up the rule confirming them, upon which the folicitor obtains a fide bar rule from him for the master to tax the profecutor's cofis, gets the master's appointment, and proceeds to tax the costs in the manner already described, and obtains the mafter's allocature for the fame, upon the production of which the unfuccessful party generally pays them, and thereupon his clerk in court gets his recognizance discharged, as otherwise he is fubject to an attachment if they are not paid within ten days after demanded'; but no costs are payable if any material part of the order returned is quafhed: and if the orders are quashed, a rule is drawn accordingly; the party bringing them up, however, is not intitled to any cofts.

1

CHAP.

Of the general nature of the writ

of certio

what cafes

granted to

remove con

victions, &c.

CHAP. V.

Of Certioraries, removing Convictions, &c.

TH

HE court of King's Bench, as before obferved, having a fuperintendency over

rari, and in all inferior jurifdictions, will remove into that court convictions and orders of juftices of the peace of a judicial nature, by writ of certiorari, on fome foundation of complaint against them", in order that the court may infpect the proceedings, and fee whether they are regular or not, if the writ is not expressly taken away by the act of parliament on which conviction or order has been made; and therefore, if the court think fit, they may grant the writ even though the juftice or juftices making the fame are impowered by the act of parliament to finally hear and determine the fame, inasmuch as the fuperintendency of the court cannot be taken away without the express negative words of the legislature, and even in that cafe the crown is not reftrained unless

Rex v. Lediard, Sayer 6. Same v. Lloyd, Cald. 309.

2 Eunomus, 167.

Rex v. Cleg, 1 Str. 475.

there

there are fome words in the act to fhew that the legislature intended it. And if the act of parliament gives an appeal to the feffions, the writ cannot be applied for before the matter has been determined on the appeal, or until the limited time for appealing is expired; but this rule only extends to cafes where there is a limited time for appealing, and advantage must be taken of it on the motion to file the order or conviction returned, for it will be too late afterwards'. And if the order or conviction is of fuch a nature as to require being obeyed before the validity of it can be determined on an appeal, the court will grant the writ without an appeal'; but if the writ should iffue in a cafe where the act of parliament has taken it away, although it has been returned and filed, the court will order the writ to be fuperfeded, the return taken off the file, and the conviction or order remanded"; and where an appeal fhould have preceded the application for the certiorari, but had not, the court for that reafon quashed the writ'.

'The King v. Davies and others, 5 Term Rep. 626. • Cafe of the borough of Warwick, 2 Str. 991. Order, Eafter, 1 Anne, Salk. 147. 名 Cafe of the borough of Warwick. Rex v. Micklethwayte, 4 Burr. 2522. Same . Frafer, 2 Conft Poor Laws, title Certiorari.

h

Of the application for the writ.

As in private prosecutions, that is such as are not carried on at the particular inftance of the crown by its own officer the attorney general, it is difcretionary in the court to grant or refuse the writ*, their leave must first be had before it can iffue; in order to obtain this, where there are no fpecial directions about granting it in the act of parliament on which the proceeding intended to be complained against is founded, fuppofing it to be founded on an act of parliament, a motion is made to the court for the writ; but previous to the application fix days notice in writing' must be given to the justice or justices, or two of them if the conviction or order was made by more", of the intended application; an affidavit should then be made of the fervice of the notice, and of the application's being made within six calendar months", and also stating the particular ground of complaint, for there must be some ground stated, though a flight one may be fufficient: and it may here be observed, that the objection to the order or conviction must be to the jurifdiction of the juftice or justices

making it, and not to the merits; when this is done, the motion may be made, the court will then exercise their discretion, and either grant or refuse the application; if they grant the writ, a rule will be made for it to iffue in the first inftance.

Upon the production of the rule to the clerk in court he will make out the writ accordingly, and deliver it, with the recognizance to be entered into thereon, to the folicitor, who must first get the fame acknowledged by two housekeepers in the manner already defcribed', and then delivers the writ and recognizance to one of the juftices who made the order or conviction complained of, and he will thereupon return the fame to the Crown Office, but if he does not he may be compelled in the way already mentioned; upon the coming up of which the folicitor moves, in the manner before defcribed, for leave to file the writ, order, and recognizance, and for the rule nifi to quash the order, when the rules are drawn up accordingly; the rule nifi is then served on the party called on to fhew cause,

t

of the fub

sequent pro

ceedings.