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namely the prosecutor, and an affidavit of the service of it prepared " to read in cafe no cause fhould be fhewn: the remaining proceedings are fimilar to those on orders of feffions*. And if, when the cause is called on, no cause is shewn, or the court fhould think the conviction or order cannot be fupported, they will order it to be quafhed, and the clerk of the rules will draw the rule up accordingly; but if they think the order or conviction is fufficient, they will direct a rule discharging the rule nifi and confirming the order, when the profecutor will be intitled to his cofts, and may proceed to recover them in the way already fhewn".

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CHAP. VI.

Of Certioraries removing Indictments.

INTO

NTO this court indictments from all inferior jurisdictions may be removed by writ of certiorari, and tried either at bar or nifi prius by a jury of the county out of which the indictment is brought'; and if a fair or impartial trial cannot be had in fuch county, the court will order it to be tried in the next adjoining one. This writ the King has a right to demand; but to a common profecutor, who only uses the King's name as of course, the court may either grant or refuse it at their difcretion, and a defendant must fhew a special ground for it to the court. In general the writ will not be granted to a defendant to remove an indictment before justices of affize or gaol delivery, as from the Old Bailey, without the confent of the profecutor, unless there is fome very special reason for it, as, if the pro

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4 Blac. Com. c. 19.

Rex v. Harris and others, 3 Burr.
Same v. Lewis and others, 4 ibid. 2456.

1330.
v. Elford, ibid. 877. Same v. Bestland, ibid. 1202.

• Same

e Same v.

Rex v. Gunston, 1 Stra. 580. Same

Pufey, 2 Stra. 717.

D. Morgan, 2 Stra. 1049.

D 3

fecutor's

Of the writ

of certiorari

to remove

indictments.

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fecutor's folicitor be under-fheriff", or the prosecution is upon flight grounds, and the defendant is a person of good character".

In order to obtain the writ on the part of the defendant to remove an indictment for a trefpafs or misdemeanor, an affidavit of the cir cumstances is prepared, upon which, in term time, his counsel makes a motion to the court, when, if they think there is reafon for it, they will grant a rule for the writ to iffue; but in vacation, the folicitor lays the affidavit before one of the judges at chambers, who, if he fees a fufficient reason in it, will grant his fiat for the writ; and then, upon the production of either the rule in the former case or the fiat in the latter, the clerk in court makes out the writ and delivers it to the folicitor with the recognizance directed by the act of parliament to be thereupon entered into before one of the judges of the court, or a juftice of the county, by two persons, in the fum of 201. conditioned for the defendant to appear and plead at the return of the writ, and at his own expence cause the issue to be

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tried at the next affizes after the return if in the country, or the next term if in town, unlefs the court fhall otherwife order, and to give due notice of such trial to the prosecutor or his clerk in court, and to appear from day to day, and not to depart until difcharged by the court this recognizance the folicitor then gets acknowledged by two housekeepers, and delivers it with the writ to the clerk of the peace at the feffions, clerk of the arraigns at the Old Bailey, or clerk of affize at the affizes, and having paid him for the return, he returns it' accordingly without delay, or may be compelled to do fo in the manner already mentioned.

pro

ceedings from the

return of

the trial.

When the return comes up, if the bail in Of the prothe recognizance are exceptionable, the fecutor's folicitor may compel the defendant the writ to to add fufficient bail by taking out and ferving on his clerk in court a judge's fummons for a procedendo unlefs better bail is put in; as otherwise, upon the attendance of the fummons, the judge will order the proce dendo to iffue; and the profecutor's folicitor compels the defendant to proceed on to trial agreeably to his recognizance, by taking out ! Appendix, No. 29. D 4

and

Of demur. ring and quafhing

the indiet. ment, &c.

and serving on his clerk in court a fide bar rule to eftreat the recognizance, unless the defendant appears and pleads to the indictment within the term, and proceeds to try the fame at the fittings of nifi prius to be held after the term, if in town, and at the affizes, if in the country; and the subsequent proceedings to the trial the clerks in court conduct in the fame manner as thofe on informations for misdemeanors".

But as the indictment is frequently removed by the defendant before the trial for the purpofe of obtaining the judgment of the court as to the validity of the proceedings; if the indictment appears to be infufficient, the defendant, instead of pleading not guilty, may demur to it even after he has pleaded; indeed, at any time before the trial, on his folicitor's obtaining a common fide bar rule from the clerk of the rules for leave to enter a retraxit of the plea. If the defendant is advised to demur, his folicitor gets the demurrer drawn, engroffes it, and the clerk in court files the fame, and thereupon gives the common rules for the prosecutor to join in demurrer; and if he does not do fo by the expiration of them, "Appendix, No. 30.

- Ante 9.

the

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