judgment given thereon (c), or a conviction after judgment given thereon on appeal, without reserving a case (d), though for the purpose of a new trial, on ground of improper rejection, &c. of evidence, &c. by them (e) and a writ of error, if available, is then the only remedy (ƒ). This writ may be granted to remove convictions from individual magistrates (g), as well as proceedings from the court of quarter sessions. If the justice to whom it is directed dies while the recognizance, verdict, or conviction is in his possession, the writ may go to his executor, who must return the record. Having given this general description of this writ, it remains to be noticed more particularly when and how it is to be obtained, and the forms observed in the return. Removing Conviction of Justices at instance of Private Persons before 5 & 6 W. IV. c. 33.]-The court of queen's bench would not grant this writ for the removal of a conviction before justices of the peace, unless the party applying for it showed some probable ground that injustice had been, or would be, done below (h). Nor will the writ be granted, generally speaking, to remove indictments for offences, the heinousness or frequency of which requires speedy punishment, unless a very strong ground be laid for it: as on an affidavit that a fair trial cannot be had in the court below (i), or that the question has some special circumstances involved in it, which require knowledge of law, or attention out of the ordinary course. Nor will it be allowed to remove cases of felony from the Middlesex sessions, because they are entrusted with a commission of oyer and terminer, like the judges of assize (k). These cases, though originally decided as to defendants, are now law as to private prosecutors (1). If an application be made for this writ, on account of special circumstances, by affidavit, the following may be a sufficient illustration of the form which should be adopted: (c) R. v. Jackson, 6 T. R. 145; R. v. Penegoes, 1 B. & C. 142. (d) In re Pratt, 7 Ad. & E. 27; S. C. 2 N. & P. 102. (e) R. v. Oxfordshire (Inh.), 13 East, 411. (ƒ) R. v. Penegoes, 1 B. & Cr. 142; indictment for not repairing a bridge, R. v. Seton, 7 T. R. 373. (9) Cases collected, Paley on Convictions, 3rd ed. 277, 278. (h) R. v. Bass, 5 T. R. 252. (i) R. v. Fawle, 2 Ld. Raym. 1452. (k) R. v. Kingston (Duchess of), Cowp. 283. See as to the Old Bailey, R. v. Gunston, Stra. 583; R. v. Ferguson, R. temp. Hard. 369; R. v. Pusey, Stra. 717. Also 1 Salk. 144, 150, 151. As to the Central Criminal Court, R. v. Wartnaby, 2 Ad. & E. 435. Ante, p. 68.178. (1) See p. 957. Affidavit in support of an Application by Defendant, for Certiorari to remove from Sessions an Indictment found for not Repairing a Highway. In the Queen's Bench (m). A. B. of, &c. gentleman, maketh oath and saith, that at the last general quarter sessions of the peace, holden in and for the county of L., a bill of indictment was preferred and found against the inhabitants of the parish of W. in the said county, for a nuisance in not repairing a certain common queen's highway, leading from in the said county of L. towards and unto the town of H. in the county aforesaid, from a place called opposite, &c. containing in length three quarters of a mile, and in breadth thirty feet, extending from thence in a northern direction as far as W. church, in which said indictment it is alleged that the inhabitants of the parish of W. aforesaid ought to repair and amend the said queen's common highway, when and so often as it shall be necessary; and the deponent saith, that the right or title to repair said highway will come in question upon the trial of the said indictment, as this deponent is advised and verily believes; and the determination of the said indictment may materially affect four other parishes similarly circumstanced, by reason of an act of parliament passed in the year of the reign of his late majesty king intituled, "An act," &c. And this deponent further saith he is advised, and believes that it will be proper, to have the said indictment tried by a special jury, and absolutely necessary that the jury before whom the said indictment is tried, should, previous to the trial thereof, view the said highway, which special jury or view the defendants cannot have the benefit of at the quarter session of the peace (n). A poor-rate cannot be removed by certiorari, on account of the inconvenience that would ensue to the poor by the delay; but all the orders of justices relating to it may be removed (0). When not Granted-(e. g.)—so as to prevent an Appeal, &c.]—A rule of court exists in the queen's bench against granting a certiorari to remove orders of justices, from which appeals lie by either party (p) to the sessions, before the matter be determined on such appeals, whether pending or not (q); for it would hinder that privilege: but if the time (m) Must not be entitled in any cause, R. v. Nohro, 1 B. & Cr. 267; R. v. Lewis, Stra. 704; R. v. Jones (Stephen), 8 D. P. C. 80; but where the cause is in court by the proceeding being returned on certiorari, other affidavits must be entitled in the cause, Ibid. S. C. not S. P. 12 Ad. & E. 684. p. 955; also, 1 M. & S. 631; 12 Ad. & E. 131. See (n) See 1 East, 304; and R. v. Penegoes, 1 B. & C. 142; R. v. Cumber land (Inh.), 6 T. R. 194. Also the form in R. v. Joule, 5 Ad. & E. 539. As to trial in the same county, see ante. (0) 2 Nolan, 4 ed. 603; R. v. King, 2 T. R. 235; R. v. Wavell, Dougl. 116; R. v. Atkins, 4 T. R. 12; R. v. Uttox eter, Stra. 932; R. v. Salop (Justices), Stra. 975; 1 Sess. Ca. 201. (p) R. v. Harman, Andrews, 343; and see 2 Stra. 991. (q) See R. v. Sparrow and another, 2 T. R. 196, note. for appealing be expired, and no appeal is pending, the objection no longer exists (r). And this rule only abridges the authority of the court in cases where the right of appeal is limited to a particular time, as, e. g. to the next quarter session; so that where there is no restriction as to time, the rule does not apply, for otherwise the order might never be removed (s). However, were there no objection to the certiorari issuing before the time of appealing is expired, the court will, in its discretion, refuse to grant it, if, on the affidavits in support of the application, the ground alleged for it appears more properly the subject of appeal (t). It has also been determined that where, by the words of any statute, the certiorari is taken away, but by its general tenor that was only done to give the option of appeal to the sessions, the right of proceeding by certiorari is only barred by the party adopting the method of appeal (u). And if one party has the exclusive right of appealing, he may waive his privilege, and at once remove the proceedings (x). A certiorari does not lie where an appeal is given, and the objection is not to the jurisdiction, but to the merits (y); or to remove any but judicial acts (z); for even though the justices should exceed their authority, and be punishable for so doing, the remedy is not by means of this writ (a). And if such a writ issue incautiously or improvidently, the court of queen's bench will supersede it (b). Granting Certiorari in Term time and Vacation.]—During term time, no writ of certiorari will be issued, unless applied for by the attorneygeneral, or granted at the discretion (c) of the court of queen's bench, or a judge of that court, on motion by counsel in open court. The grounds of the application must be stated in an affidavit (d). In felonies the rule is (r) Reg. Gen. Pasch. 1 An. 1; Salk. 147. (8) Cald. 172; Andr. 343; Stra. 991. (t) Per Lord Mansfield, R. v. Whitbread, Doug. 550. (u) R. v. Eaton, 2 T. R. 89. This result is expressly provided against by the gaming act, 12 G. II. c. 28, s. 6. (x) R. v. Harman, Andr. 343. (y) Dougl. 553. (z) E. g. order of removal as well as of sessions. See p. 941, 956, and 968. (a) R. v. Lediard, Say. 6; R. v. Lloyd, Cald. 329. (b) R. v. Wakefield, 1 Burr. R. 488. (c) Anon. 7 Mod. 118; Arthur v. Yorkshire (Commissioners of Sewers), 8 (d) As there is no cause in the queen's bench, this affidavit should not be entitled in any, R. v. Nohro, ante, p. 954. However, in the case of an indictment, an affidavit entitled R. v. (Deft.'s name) may be read, R. v. Lewis, Stra. 704. The affidavits used by the party who shows cause may be entitled, R. v. Jones, Stra. 705; but need not, R. v. Robinson, Stra. 705, note (approved by Lord Kenyon, 6 T. R. 642). only to show cause; whereas in misdemeanours, unless the case is doubtful, and in instances where the sessions have made an order, subject to a special case, it is absolute in the first instance (e) for removing the indictment, &c. or order of sessions, and any previous order of justices appealed against (e. g. of removal (ƒ),) on counsel's signature only. In vacation, this writ may be obtained, as well for removing indictments as orders, &c. by applying at chambers for the order or fiat of a judge of the queen's bench (g). If the judge grants a rule for issuing the fiat, it will be nisi only that cause may be shown on affidavit, and if drawn up as absolute in the first instance, it will be discharged by the court (h). The certiorari is ultimately made out by the clerk in court, on parchment, and delivered to the person applying for it, together with the recognizance necessary to be given. (See post.) Removing Indictments by Defendants-Recognizances.]-Stat. 21 J. I. c. 8 regulates the removing by certiorari of indictments of riot, forcible entry, or assault and battery, found at the quarter sessions. But as the act was limited in its purview, it was subsequently provided by 5 & 6 W. & M. c. 11, s. 2 (i), that all the parties indicted (k) at the general or quarter sessions of the peace, prosecuting a certiorari, shall before the allowance thereof, find two sufficient manucaptors, who shall enter into a recognizance in the sum of 201. before one or more justices of the peace of the county or place, or else before one of the (e) Reg. v. Spencer, 8 D. P. C. 127. In Reg. v. Deane and others, 2 Q. B. 96, a special case had been refused at the sessions. The attorney-general moved for a certiorari to bring up their order. It was intended to show cause in the first instance, but Lord Denman thought it better to grant a certiorari at once, and bring up the order, when it might be argued on a concilium, and all the affidavits for and against the jurisdiction of the sessions might be used. This was done, and the points for the Judges were furnished on both sides. (f) R. v. Newton, Burr. S. C. 157; 2 Nol. 583. See ante, p. 941, 955; post, p. 969; R. v. Madley, Stra. 1198; R. v. Great Chart, Burr. Set. C. 194; R. v. Moor Critchell, 2 East, 222; R. v. West Cranmore, 2 Nol. 623, n. The sessions may return the order of removal; for justices are supposed to return all the orders they make to the sessions, there to be recorded, R. v. Warminster, Stra. 470; Fortescue, 326. (g) R. v. Newton, supra. (h) R. v. Chipping Sodbury, 3 Nev. & M. 104; 2 id. Mag. Cas. 99. As the order of sessions which it was sought to quash stated specially that it quashed an order of removal for informality on the face of it, this resembled a special case. (i) Made more effectual by 8 & 9 W. III. c. 33, s. 2, and 5 & 6 W. IV. c. 33, s. 2, post, p. 958, intituled "An act to prevent delays of proceedings at the quarter sessions of the peace." (k) Viz. for trespass or misdemeanour. Thus extending only to certioraris procured by persons indicted, so that those procured by the prosecutors of indictments remained as at common law, till 5 & 6 W. IV. c. 33, s. 2, (p. 958). The acts of W. III. only extend to indictments at the general or quarter sessions of the peace. judges of the court of king's bench (in which case such judge shall make mention of it under his hand, on the back of the writ). And also that the recognizance shall be with condition, at the return of such writ, to appear and plead to the indictment or presentment in the court of king's bench, and at his own costs to procure the issue that shall be joined upon the said indictment or presentment, or any plea relating thereto, to be tried at the next assizes for the county wherein the indictment was found, after such certiorari shall be returnable, if not in London, Westminster, or Middlesex and if there, then to cause it to be tried the next term after that wherein such certiorari shall be granted, or at the sittings after the said term, if the court of king's bench shall not appoint any other time for the trial thereof; and if any other time shall be appointed by the court, then at such other time, and to give due notice of such trial to the prosecutor, or his clerk in court; and also that the party prosecuting such certiorari shall appear from day to day in the said court of king's bench, and not depart until he shall be discharged by the said court. "And such recognizances, certioraris, and indictments, shall be certified into, and filed in the king's bench, and the name of the prosecutor (7) (if he be the party grieved or injured, or some public officer), to be indorsed on the back of the indictment (m); and if the person prosecuting such certiorari, being the defendant, shall not, before allowance thereof, procure such manucaptors to be bound as aforesaid, the justices of peace may proceed to trial of the indictment, notwithstanding such certiorari." As to the necessary recognizances, see post, p. 958. Removal of Indictments and Presentments by Prosecutors.]—In order" to prevent prosecutors of indictments and presentments from vexatiously removing them out of inferior courts into the court of king's bench," it has been enacted (n), that "no writ of certiorari shall issue from the court of king's bench at Westminster, for removing into that court any indictment or presentment from any court of session, assize, oyer and terminer, or gaol delivery, or any other court, at the instance of the prosecutor or any other person (except his majesty's attorneygeneral), without motion first made in the court of king's bench, or before some judge of that court, and leave obtained to remove such indictment or presentment in the same manner as similar motions may (1) See R. v. Boughey, 5 Ad. & E. 797. (m) As to this, see post, Sect. IV. tit. Costs. (n) 5 & 6 W. IV. c. 33, s. 1, called Lord Denman's act. |