(e) 1 Sid. 226. 12 Mod. 145. 10 Mod. 278. Farresly, 118. (g) 3 Mod. 229, 230. 836. Sect. 23. And accordingly it seems to be agreed, that such a 2 Keble, 81, 82. certiorari lies to (e) justices in eyre; to justices of (f) gaol4 Inst. 294, 295. delivery; to the court of a (g) county palatine; and to the (h) (f) 1 Salk. 144. college of physicians, having a special power by statute to fine and imprison for certain offences; to justices of peace, &c. even in such (i) cases which they are empowered by statute finally to hear and determine; and also to (k) commissioners of sewers, notwithstanding the clause in 13 Eliz. c. 9. s. 5. " that the said "commissioners shall not be compelled to make any certificate or "return of their commissions, or of their ordinances, laws, or «doings, &c. ;" for it hath been adjudged (1) that this is intended to exempt them from returning their orders into chancery, as by the statute of 23 Hen. 8. c. 5. they were obliged to do, and shall not be construed to take away the superintendency of the court of king's bench, without express words. 836. Ld. Raymond, 2 Lev. 223. 1 Salkeld, 146. 148. 1 R. Abr. 395. Aleyn, 49. Farresly, 138. 12 Mod. 197. 1 Hale, 158. Douglas, 723. 1 Salk. 44. 396. (i) 3 Modern, 93, 94. 5 & 6 W. & M. c. 11. s. 5. (h) Carthew, 194. 421. 491. (k) 1 Salkeld, 145. Strange, 609. Fort. 374. Ld. Raymond, 469. 8 Modern, 331. 1 Keble, 129. March, 196, 197. 199. Raymond, 186. () 1 Modern, 44, 45. C. Jac. 336. 1 Ven. 67. 1 Levinz, 288. Raymond, 186. 1042. 1 Lev. 288. 1 Ven. 66, 67, 68. (m) Cowp. 458. (n) Rex v. Bolton, Mich. 26 Geo. 3. (0) Ld. Raym. (p) 1 Lord Raym. 580. (q) Doug. 749. (r) Andr. 27. (s) Strange, 849.944. (t) Stra. 900. 1452. (u)1 Ld. Raym. (v) 1 Str. 470. (1) 2 Bur. 1040. (y) 2 Burr.1458. (4) 4 Burr.2244. 2 Wils. 35. 1 R. Abr. 395. Style, 14. 2 Hale, 212. (c) 2 Lev. 86. 1 Siderfin, 356. 3 Keble, 154. (d) 1 R. Abr. 395. Ld. Raymond, 469. Douglas, 534. Bunb. 61. Strange, 1263. Burrow, + It lies also to remove a presentment in a court-leet, and when removed, the presentment is traversable (m); to remove examinations taken before justices of the peace in pursuance of the 2 and 3 Ph. & M. c. 10. (n); to a jurisdiction created by a private act of parliament (o); to remove proceedings before commissioners of bankrupts (p); to remove proceedings in an action from the courts of the counties palatine (q); to remove informations before justices of assize against a parson for non-residence (r); to remove an indictment for not doing statute labour on the highway (s), or for not repairing a bridge (t); to the quarter-sessions of a corporation (u). So also to remove proceedings before two justices (v); as orders of conviction on the Conventicle Act, 22 Čar. 2. c. ì. (x); an order on an appeal from scavengers rate (y); an order of bastardy if applied for in six months (2). So also it lies to remove an inquisition taken by the sheriff under a private act of parliament, and the verdict and judgment thereon (a). As to the second particular, viz. Whether a certiorari lies to the courts of the Cinque Ports. Sect. 24. It hath been adjudged, that such a certiorari lies to (b) C.Car. 252, 253. 264. 291. such courts to remove an (b) indictment of sodomy there found, or an (c) order made by the justices of peace at a sessions there holden. It is said indeed, by (d) Rolle, that the reason why such an indictment may be removed is, because the offence is made felony by a late statute, and therefore the courts of the Cinque Ports cannot hold plea of it without a new charter; by which it seems to be implied, that, in his opinion, indictments in such courts of crimes whereof they have jurisdiction, are not removeable. But the other books above cited seem to speak generally of all indictments, and to lay it down as a rule, that the privilege of the court of the Cinque Ports, used time out of mind, that the king's writ doth not run there, is to be intended only of civil Hardr. 475,476. (e) causes between party and party. 2 Burrow, 849. Palm. 54, 55, 1 Siderfin, 532. As As to the third particular, viz. Whether a certiorari lies to the courts of Wales. 135. Sect. 25. It seems to be settled, that such a certiorari lies to (1) Vide Rex v. removeany indictment taken in Wales for a crime not capital, (f), Althoes, 8 Mod. either at the (g) grand sessions or at a (h) sessions of the peace where an inbut it is (i) said, that it hath never been granted to remove an dictment for appeal from Wales; (j) neither doth it seem to be clearly settled, murder was rethat it lies to remove an indictment of felony from thence, for such indictments are never (k) quashed, as indictments for inferior Wilson, 320. crimes are. moved. Strange, 553. Atkins, 175. 182. 8 Modern, 146. Rex v. Griffith, where the court granted a certiorari to remove an indictment for a misdemeanour, 3 Term Rep. 658. (g) 1 R. Abr. 394. 2 Roll, 28, 29. C. Jac. 484. Popham, 144. 2 Keble, 471. Cowper, 751. [Note 2.] C. Car. 248. Ld. Raymond, 581. 1 Hale, 157. Strange, 704. (h) 1 Salkeld, 146. Vide 4 Burrow, 2457. It lies also to Berwick, and to other dominions of the Crown. 2 Burrow, 835. 856. 861. 1 Strange, 104. (i) C. Car. 248. 2 Keble, 797, 798. (j) 1 Modern, 64. 68. 2 Keble, 685. 724. C. Car. 331, 332. 1 R. Abr. 394. 1 Ventris, 93. 146. 1 Hale, 158. (k) Vide c. 25. s. 146. Neither do I find it agreed, (7) in what manner the king's bench ( Vide 1 R. shall proceed on any indictment removed from Wales. But it is said, that an indictment of felony so removed, may be tried in the next (m) English county, by force of (n) 26 Hen. 8. c. . But it seems (0) agreed, that the statute extends not to appeals. Abr. 394. (m) 2 Keble, 1 Ventris, 146. 1 R. Abr. 394, 395. (n) Sup. c. 25. s. 41, 42. Parry's Case, Cases in C. L. 101. (0) C. Car. 248. 2 Keb. 797. 1 Vent. 146. 2 Hale, 157. See B. 1. B. R. H. 165. Lord Raymond, 561. 580. 3 Bac. Abr. 351. 2 Burrow, 835 to 858. Douglas, 751. As to the fourth particular, viz. Whether a certiorari lies to the courts of London. 6 Mod. 246. 230. Sect. 26. It seems to be admitted in the late (p) Reports, that (P) 3 Mod. 230. a certiorari may be granted to remove any indictment from Lon- 1 Burrow, 386. don or Middlesex; but it is (q) said, that he who prays it ought Vide 1 Black. to give three days notice to the other side. Also it is said, (r) 3 Mod. 230, &c. that by a certiorari to London, the tenor of the indictment only Hardres, 402. shall be removed by the city charters. And it seems (s) that 419. anciently that city insisted on a privilege, that all indictments and 6 Modern, 246. proceedings of any cause, except felony, should be tried and de- & M. c. 11. termined there, and not elsewhere. Vide 5 & 6 W. (7) Raym. 74. And to remove an indictment from Hicks's Hall for Bigamy the consent of the prosecutor must be had, Strange, 877. Cowp. 283.; or for forgery from the Old Bailey, Stra. 717. (r) 1 Keble, 252. 1 Sid. 155. 230. Vide c. 25. s. 97. (s) C. Car. 128. 265. As to the SECOND POINT, viz. Where the court of king's bench uses a discretionary power in granting, denying, and filing a certiorari. 278. Sect. 27. It hath been (t) adjudged, that wherever a certiorari 10 Mod. 205. is by law grantable for an indictment, the court is bound of right 12 Mod. 390. to award it at the instance of the king, because every indictment 403. 601. 645. is the suit of the king, and he has a prerogative of suing it in Ld. Raymond, what court he pleases. But it seems to be agreed, that it is left 608. 971. 1203. 216. 469. 580. to 1515. (t) Pas. 5 Geo. 1. Burrow, 2456, Strange, 609. 8 Modern, 331. 1 Ventris, 63. 2 Burrow, 861. 1 Mod. 41. (u) 1 Salk. 144. 146. 1 Keble, 4. Far. 118. (v) 1 Salk. 150. Strange, 583. Ld. Raym. 1452. (a) 1 Salk. 149. (y) 1 Vent. 63. 1 Modern, 41. Ld. Ray. 938. (s) 1 Salk. 151. (a) 1 Sid. 54. (b) 1 Salk. 145. It was done in the case of James Duke of York. (c) 3 Jac. 1. c. It is said the the issue. to the discretion of the court either to grant or deny it at the prayer of the defendant. (1) And agreeably hereto, it is laid (u) down as a general rule, that the court will never grant it for the removal of an indictment before justices of gaol-delivery, without some special cause; (v) as where there is just reason to apprehend that the court below may be unreasonably prejudiced against the defendant; (x) or where there is so much difficulty in the case, that the judge below desires that it may be determined in the king's bench (y); or where the king himself gives a special direction that the cause shall be removed; or where the (2) prosecution appears to be for a matter not properly criminal. Sect. 28. It seems, (a) that the court will not ordinarily, at the prayer of the defendant, grant a certiorari for the removal of an indictment of perjury, or forgery, or other heinous misdemeanor; for such crimes deserve all possible discountenance, and the certiorari might delay, if not wholly discourage, their prosecution. Sect. 29. Also it is said, (b) that the court of king's bench will never grant a certiorari for a conviction of a recusancy upon a default at sessions; because by the (c) statute such convictions. are to be removed into the exchequer, and from thence process is to be awarded upon them. But the court of king's bench cannot proceed upon them, and therefore will not suffer them to come thither, lest the statute should be evaded. Sect. 30. It seems from the Year Book of 16 Edw. 4. that it party may waive is a good objection against the granting a certiorari, that issue is Carthew, 6. joined in the court below, and a venire awarded for the trial of (d) 16 Ed. 4. 5. it. (*) For it appears by that (d) book, where a certiorari had B. Corone, 162. been granted in such a case, that the court, being afterwards apprised of the matter, remanded the cause. (e) 1 Salk. 149. 6 Modern, 17. Carthew, 6. Strange, 612. 1227. Sect. 31. It seems (e) agreed, that a certiorari shall never be Ld. Raymond, granted to remove an indictment or appeal after a conviction, 137.991. 1372. unless for some special cause; as where the judge below is doubtful what judgment is proper to be given; for unless there be some such reason, the judge who tried the cause shall not be prevented from giving judgment in it; for it cannot be intended but that he is best acquainted with the circumstances of it, and consequently best able to judge what fine, or other punishment, is proper for it. Burrow, 749. 8 Mod. 319. (f) 1 Sid. 296. 2 Keb. 81, 82. Sect. 32. But it hath been adjudged, (ƒ) that a certiorari for the removal of a presentment before justices in eyre of a matter which is inquirable and punishable by the forest law only, shall not be granted before, but only after conviction; for if it should be granted before, the offence would be dispunishable: but it (1) This absolute right to a certiorari relates only to cases where the crown itself, prosecuting by the attorney-general, is specially concerned, 1 Term Rep. 89. and where the matter is prosecuted by a private person, in the name of the crown, it issues unless sufficient cause is shewn against it. But on it. may an application for it by a defendant, there must be a special ground laid to induce the court to grant 4 Burrow, 2458. Strange, 583. 549. 1 Bar. K. B. 445. 2 Bar. K. B. 447. 177. Andrews, 27. 4 Term Rep. 161. may be granted after conviction, in order to give the party, the (g) Vide F. right of whose freehold is concerned in it, an opportunity so far to (g) travese it. B. Forest, 3. 1 Siderfin, 296. Sect. 33. The court has (h) refused to grant a certiorari to remove a recognizance before justices of oyer and terminer, &c. because the court below is most proper to judge, upon the whole circumstances of the case, which are equitably to be considered, whether it ought to be estreated or not. Assize, 42. 4 Inst. 294, 295. 1 Edw. 3. 48. 2 Keble, 81, 82. (h) Rex v. Combs, Hil. 1 Geo. 1. 145. 2 Keble. 157. Sect. 34. There is a rule in the court of king's bench, that no order of commissioners of sewers ought to be filed without notice given to the parties concerned. Also it is every (i) day's (i) Vide 1 Salk. practice of that court, before it will suffer the return of a certiorari for the removal of the order of such commissioners to be seems contrary. filed, to hear affidavits concerning the facts whereon they are grounded and if the matter shall still appear doubtful, to direct the trial of feigned issues, and either to file the return, or supersede the certiorari, and grant a procedendo, as shall appear to be most reasonable, for the trial of such issues, and to give (k) costs () Vide 2 Keb. against the prosecutor of the certiorari, if it appear to have been groundless. 500. + But a certiorari to bring up an order for the removal of their Strange, 609. clerk, is of common right, and not discretionary. + Also the court of king's bench hath refused to grant a certiorari to remove the record and proceedings of a court-leet, in order to inquire into the property of an amerciament where the fine has been estreated into the Dutchy Court of Lancaster. + Also the court will not grant a certiorari to a defendant after he has appealed to the sessions pending such appeal. 8 Mod. $31. Rex v. Ritson, 2 Rex v. Sparrow, 2 Term Rep. 196. notis. Also the court will not grant a certiorari to remove the Rex v. King, 2 assessments of the land tax. rate. Term Rep. 234. Also the court will not grant a certiorari to remove a poor Rex v. King, 2 As to the THIRD POINT, viz. What restraints have been put by the statute upon the granting a certiorari. Term Rep. 235. Sect. 35. By 1 and 2 Ph. and Mary, c. 13. s. 7. it is enacted, 2Ld. Raymond, "That no writs of habeas corpus, or certiorari, shall be granted to 1379. 11 Mod. 174. remove any prisoner out of any gaol, or to remove any recogni- 12 Mod. 2, 3. zance, except the same writs be signed (7) with the proper hands (1) Vide Salk. "of the chief justice, or, in his absence, of one of the justices of 150. "the court out of which the same writ shall be awarded or made; 2 Strange, 895. "upon pain that he that writeth any such writs, not being signed as is aforesaid, to forfeit for every such writ five pounds." Sect. 36. By 5 and 6 Will. and Mary, c. 11. also it is enacted, "That in Term-time, no writ of certiorari whatsoever, at the pro "secution of any party indicted, be granted out of the king's bench to remove any indictment or presentment from any Burrow, 451. "general quarter-sessions, before trial, but upon motion of DD 2 "counsel (m) 1 Salk. 150. Holt, 133. (n) 3 Keb. 13. 4 H. 6. 15, 16. S. P. C. 64. (0) Dalt. c. 134. 2 Levinz, 223. the other parts of this section. (9) Dyer, 163. (r) Reg. 74. 78. (5) Reg. Jud. 76. Sup. c. 9. s. 42. (t) 2 Hale, 211. Rastal, 55. 263. "counsel and by rule of court made in open court." But it is provided, "That in vacation such writ may be granted by any justices of the said court, whose names shall be indorsed "thereon, and also the name of the person at whose instance it " is granted." As to the FOURTH POINT, viz. How the fiat for a certiorari is to be signed. Sect, 37. It is said, (m) that if a certiorari be taken out in vacation, and tested of the precedent term, the fiat for it must be signed by some judge of the court, some time before the essoin-day of the subsequent term, otherwise it is irregular, and the court upon motion will order a procedendo. But it is said, that there is no need of any judge to sign the writ of certiorari itself, but only in such cases wherein it is required by statute. As to the FIFTH POINT, viz. To whom the writ of certiorari is to be granted. Sect. 38. It seems, that notwithstanding (n) regularly it ought to be directed to the judge of the inferior court, yet in some cases it may be directed to the proper (0) officer known to have the custody of the record to be removed, and in some other cases to (p) others, as shall be most agreeable to the usual course of approved precedents, which (q) seems to be the best guide. whereby to judge of this matter. And accordingly it seems, that for an indictment or confession of an approver before a coroner, it shall be directed to the coroner alone; (r) and for an appeal, both (s) to the sheriff and coroner; and for an indictment in the Cinque Ports, to the (†) mayor and jurats; and for an indictment at an assize in a county palatine, to the chancellor of such (u) county, who shall send for it to the justices of assize. C. Car. 252, 253. 264. (u) 1 Lev. 223. 3 Keble, 279. (x) 2 Keb. 750. 8 H. 4. 3. 5. Sect. 39. If the person who ought to certify a record, as a justice of peace, (x) &c. who hath taken a recognizance, &c. or a (y) judge of nisi prius, who hath taken a verdict, or a (r) coroner, who hath taken an inquest, &c. happen to die, having such a record in his custody, it seems, that a certiorari may be directed to his executor or administrator to certify it. (a) Also it hath been (3) B. Certio. 9. adjudged, that it may be directed to a justice of assize to certify a record of assize taken before his companion in his absence. 2 Inst. 424. 2 R. Abr. 629. Indictment, 23. 43 Assize, 40. (a) B. Rec. 81. 70.77. Rastal, 263. (c) Reg. Orig. 90. F. N. B. 81. (d) Lamb, b. 4. 11 H. 7. 5. Sect. 40. All the precedents I am able to find of certioraris for (b) 1 Reg. Jud. the removal either of (b) indictments or (c) recognizances from sessions, are directed either to the justices of peace for the county generally, or to some of them in particular by name, and not to the custos rotulorum; and according to (d) Lambard, they are never directed to him. Yet it is taken for granted in the (e) Year Book of Henry the Seventh, that after a recognizance for the peace is brought in to the custos rotulorum, it shall be certified by him. But surely, if the certiorari be directed generally to the justices of the county or any one of them, it may be as well returned by any of them as by the custos rotulorum. And I question c. 7. (e) 2 H. 7. 1. whether |