nations as aforesaid (or as the case may be) did issue your order, or seek a remedy for the injury which he (or they) has (or have) P. Q. Attorney for the said Form of Writs of Certiorari. upon which prisoner was committed. George the Fourth, by the grace of God of the United Kingdom of Writ of certioGreat Britain and Ireland, King, defender of the faith, to C. D. and rari to two E. F. esquires, two of our justices assigned to keep our peace in and committing for our county of — and also to hear and determine divers felonies, justices to certrespasses, and other misdemeanors committed within our said tify information examination, county, and to every of them, greeting. We being willing for certain reasons that all and singular infor- and depositions mations, examinations, and depositions, taken by and remaining with you, or either of you, in a certain case of felony, or suspicion of felony, charged against A. B. and for which you, or one of you, have committed the said A. B. to the prison of - as it is said, be sent by you before us, do command you, and every of you, that you, or one of you, do send us, immediately after the receipt of this our writ, all and singular the said informations, examinations, and depositions, with all things touching the same, as fully and perfectly as they have been taken before you, and now remaining in your custody, by whatsoever name the said A. B. is called in the same, together with this writ, that we may further cause to be done therein what of right and according to the law and custom of England we shall see fit to be done. At Westminster, the day of in the our reign. By the Court, (or, as the case may be). year of Witness, Charles Lord Tenterden. George the Fourth, by the grace of God, of Great Britain, France, Writ of certioand Ireland, King, defender of the faith, and so forth. To the ruri to remove keepers of our peace, and to our justices assigned to hear and deter- an indictment mine divers felonies, trespasses, and other misdemeanors committed from the quarte within our county of and to every of them, greeting. We being sessions into th willing, for certain reasons, that all and singular indictments of what- Court of King's soever trespasses, contempts, and assaults; whereof G. A. and M. O. Bench, and its gentlemen, are indicted before you (as it is said), be determined (v) The King v. the Inhabitants of Great Marlow, 2 East, R. 244. return. The return. before us, and not elsewhere, do command you and every of you, that By the Court. Especial care should be taken that the proceedings to be removed are correctly described in the writ; for if there be any variance between the certiorari, and the record to be removed, the justices are not obliged to remove such record. (w) As, ex. gr., if the writ be for the removal of indictment only, it will not be sufficient to remove the whole record after conviction; or if it be directed to the justices of a county, where in fact they are only the justices of a division, or liberty, or other portion of a county, or of a city or borough within that county; or if any other materially erroneous description of person, or place, or previous proceeding occur in it. (x) Some things, however, are considered immaterial, and, in these, trifling errors will not vitiate, as ex. gr., in the mis-spelling of a sur-name, or in giving the name of a person without any addition. (y) But a wrong christian name, or a gross error in the addition of rank or title, will be fatal. (z) The writ, when it is issued to remove any recognizance, or when the defendant is in custody, is signed by a judge of the court from which it issues; but in other cases, only the fiat for its issuing is so signed. (a) The record itself, or the tenor of it, according to the directions of the writ on the circumstances of the case, must be returned; and that without any extraneous matter, or explanation. (b) On non-compliance, a rule issues for the return, and, on disobedience, an attachment; (c) but the writ is of no effect unless delivered before the time for its return has expired. (d) And the return must always be on parchment, for a return on paper has been held to be irregular. (e) (w) Dalt, J. C. 159; Burr. S. C. 112. (a) Hawk. b. 2. c. 27; 1 Salk. 145, 264. (z) 1 Stra. 116. (b) 2 Salk. 492. (a) Hawk. b. 2. c. 27. (c) The King v. Battams, 1 East, R. 298. (d) The King v. Rhodes, Keb. 944; Hawk. b. 2. c. 27. s. 59. (e) The King v. Slow Barden, Cas. Temp. Hardw. 173. The writ if directed to the session, is usually returned by the chairman of the day; if to individual magistrates, by those to whom it is directed. It should be under the seal of an inferior court, if to any such directed; but if to any court not having a common seal, under the seal of the person making the return. (ƒ) A recognizance taken by a justice of peace ought to be certified by such justice only, till it be made a record of sessions; after which it shall be certified in the same manner as the other records of session. (g) And upon a certiorari to remove a conviction by a justice of the peace, a return that the record is returned to sessions, and that a copy is annexed to the writ, is sufficient, because justices ought, in all cases, to return convictions to sessions. (h) The return to a certiorari, for the removal of an indictment, ought to have the clause, " and also to hear and determine divers felonies," &c. in the description of the justices who make the return, whenever such clause is necessary in the caption of the indictment, as for riots, forcible entries, and the like. (i) The writ of certiorari, as has been observed, issues from Practice. the crown-office, and enough has been introduced respecting its form, so far at least as is necessary to be inserted here. The attorney for the party applying for it, or receiving it, if it be directed to a session respecting an order, carries it, together with the recognizance to prosecute, to the clerk of the peace, who draws up, on parchment, a record of the order, in conformity to the entries made in the session's book. If the subject matter be a poor rate, as the rate itself cannot be removed, the entry of appeal must include the title of the rate, and the allowance by the justices. The return to a certiorari for removing an indictment, Form of return may be made in the following manner, on a distinct piece from a session. of parchment, First, on the back of the writ, write the following words: "The execution of this writ appears in a certain schedule hereunto annexed." Be it remembered, that at the General Quarter Session to wit.of the peace of our Sovereign Lord the King, held at in and for the said county of on Wednesday in the first week after the close of Easter, that is to say, the day of in the (h) The King v. Eaton, 2 T. R. 285. (f) Hawk. b. 2. c. 27. s. 65; Cald. 297. (g) Cro. Jac. 669. (i) Hawk. b. 2. c. 27. Return of order of sessions confirming convic tion. year of the reign of our Sovereign Lord George the Third, King of the United Kingdom of Great Britain, &c. before A. B., C. D., E. F. and others their fellows, justices of our said Lord the King, assigned to keep the peace of our said Lord the King, within the said county of and also to hear and determine divers felonies, trespasses, and other misdemeanors, in the said county committed, upon the oath of W. J., B. J. &c. (here insert the names of the jurors by whom the bill was found) good and lawful men of the county aforesaid, then and there sworn, and charged to enquire for our said Lord the King, and the body of the said county, it is presented in manner and form, as appears in a certain indictment annexed to this schedule. P. Q. Clerk of the Peace for the said county. This introduction is called the caption of indictment; it is not put on the files of the Court of Quarter Session, and is annexed only on removal. To this schedule is annexed the record of the indictment, and both are remitted together. The return to a certiorari for removing a judgment on a conviction may be as follows: At the General Quarter Sessions of the peace of our Lord the King, held at in and for the said county, on in the first week after the close of Easter, to wit, on the day of in the year of our Lord and in the year of the reign of our Sovereign Lord George the Third, before M. N., O. P. &c. justices of our said Lord the King, assigned to keep the peace of our said Lord the King in and for the county of and also to hear and determine divers felonies, trespasses, and other misdemeanors committed within the said county. day Whereas by a conviction or judgment, bearing date the of in the year under the hands and seals of, &c. thereby setting forth, &c. (set out the whole of the conviction in the third person, and in the past tense). And whereas he the said C. D. (the person convicted) did appeal against the said conviction or judgment, to the then next and now last Court of General Quarter Sessions of the peace, held at in and for the said county of-on TuesAdjournment. day, the day of January, in the year, &c. when the said appeal was ordered to be continued to this present sessions, and of which said order of continuance the said Ã. B. (the prosecutor) had ten days' notice previous to this present sessions. Now, upon hearing the said appeal, and what hath been alledged and proved on each party's behalf, and full debate and consideration had in the premises, it is ordered by this Court, that the first mentioned conviction or judgment shall be and is hereby confirmed and made absolute. And it is further ordered by this Court, that the said C. D. upon sight of this order, or a copy thereof left with him, pay to the said A. B. the sum of l. towards the costs and charges in the law by him the said C. D. reasonably expended in and about the defence of the said appeal. (j) Confirmed. Award of costs where the sessions are required by the statute to award costs on appeal. By the Court. (j) The whole of the conviction as returned by the magistrate is directed to be here set out, but it has been held sufficient to set out the substance. County of to wit. Form of a return from a single justice. { I, A. B. one of the keepers of the peace and justices of our Lord the King assigned to keep the peace within the said and also to hear and determine divers felonies, trespasses, and misdemeanors in the same committed, by virtue of this writ to me delivered, do under my seal return into his Majesty in his Court of King's Bench, the of which mention is made in the same writ, together with all matters touching the same. In witness whereof, I the said A. B. have to these presents set my seal. Given at in the said county, the year of the reign of day of in the Where no particular form is directed by statute, it may reasonably be supposed some little difference of practice may prevail; but the substance of all returns to these writs may be collected from the foregoing. Whatever form, however, the return assume, if from the Return to be session, the orders having been annexed to the writ, the forwarded to the clerk of the peace remits them to the agent of the party applying, to be delivered by him into the crown office. crown office. With the ulterior proceedings, in the court above, we Jlterior procan have little concern here. It will be sufficient, by way ceedings. of general information, to notice, that, after the return has been thus made, the first proceeding is a motion to file the order, after which the regular course is pursued till the subject is argued by counsel. If, upon such argument, there appear any thing defective in the return, the Court will make a rule that the case shall be sent back again, either generally to be re-stated, or for additional information on any particular point of it. This rule, together with the original record, is re-delivered to the clerk of the peace, for enquiry at the next session, if belonging to the sessions of the peace; and the matter, if it relate to doubtful facts, must be enquired into de novo, as if nothing had passed on it before; (k) but otherwise, if it arise from some mere informality to be corrected by the justices. (/) § 4. OF COSTS. Any attempt to compress within the compass of a Costs. section, in a compendium of this description, a general dissertation on the subject of costs, would be useless; and a particular enumeration of instances respecting the allowance of them by statute, or otherwise, under all their different aspects, would be worse than useless; it would mislead, because it could not be sufficiently comprehensive for universal application. |