4Viner 330. (A) Certiorari. Out of what Court it ought to iffue, and to whom ; et è contra.

I.

WH

HERE a replevin is in a court of record, you may remove it by certiorari issuing either out of the court of K. B. or Chancery. Per Lord Chancellor in Woodcraft v. Kinafton, June 21, 1742, 2 Atk. 317.

2. After caufe fhewn why a fuperfedeas fhould not iffue to a certiorari directed to the mayor and corporation-juftices of Berwick, to remove an indictment for an affault; and on the other fide, why attachments fhould not go against thofe to whom the certiorari was directed, for refusing to receive and return it; and it having been strongly infifted in argument that no certiorari lay to Berwick, Lord Mansfield, C. J. in delivering the opinion of the court obferved, that writs not minifterially directed, (fometimes called Prerogative Writs, because they are supposed to issue on the part of the king,) fuch as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no claufe in the conftitution given to Berwick; upon proper caufe they may iffue to every dominion of the crown of England.

There is no doubt as to the power of the court of K. B.; where the place is under the fubjection of the crown of England, the only queftion is as to the propriety.

To foreign dominions which belong to a prince who fucceeds to the throne of England, the court has no power to fend any writ of any kind; they cannot send a habeas corpus to Scotland, or to the Electorate; but to Ireland, the Isle of Man, the plantations, and (as, fince the lofs of the duchy of Normandy, they have been confidered as annexed to the crown of England in fome refpects,) to Guernsey and Jersey, they may; and formerly it lay to Calais, which was a conqueft, and yielded to the crown of England by the treaty of Bretigny.

A certiorari for a proper purpofe lies to any dominion of the crown of England. Mr. Juftice Dodderidge, in Sir John Carew's cafe (Cro. Jac. 484.), fays the regifter makes mention of a certiorari to remove a record taken at Calais.

And there are precedents of certiorari's to Berwick directly. In Eafter 3 Fac. 2. an indictment against Scott, Howlettson, and Watfon for a riot, &c. was removed from Berwick by certiorari; process iffued upon it out of the K. B. against the defendants to appear. In Michaelmas term following, the indictment was quashed,

and the town clerk of Berwick amerced 51. for not returning the caption.

In Trinity vacation 1754, two indictments were removed from Berwick by certiorari, the defendants appeared in B. R. and pleaded not guilty, the court were clearly of opinion, that they had by law fuch a power, notwithstanding what is faid by Lord Coke in Calvin's cafe, 7 Co. 23. b., and Lord Hale in his Hift. Com. Law, page 144. Rex v. Cowle, Trin. 32 & 33 G. 2. Burr. 834.

(B) 1. THE

* To what Court it may be granted.

HE court granted a certiorari for the defendant to the Old Bailey, to remove an indictment for forgery, the defendant appearing to be a man of good repute, and the prosecution upon flight grounds. Rex v. Wells, Eaft. 9 G. 1. Str. 549.

2. A certiorari was granted at the inftance of the profecutor, to remove an indictment from the court of grand feffions for the county of Brecon. Anonymous, Anonymous, Mich. 9 G. 2. Rep. temp. Hardw. 165.

Rex v.
Lewis, Trin.

12 G. 1. Str. 704. vide post, letter (D), pl. 3. S. P. Rex v. Griffith, 3 Term Rep. B. R. 658.; and vide poft, letter (H), pl. 5.

Rex

3. The court refused to grant the defendant a certiorari to remove an indictment for a mifdemeanor from Dorfet allizes. v. Beftland, Hil. 17 G. 2. Str. 1202.

A certiorari ought not to

be granted at the inftance

of a defendant to the judges of affize, without fome fpecial reafon for it; fecùs at the prayer of the crown or profecutor. Ruled, Garland qui tam v. Barton, Mich. 11 G. 2. And. 27.

4. A certiorari had been granted at the inftance of the defendant, directed to the justices of oyer and terminer at Hicks's-hall, to remove an indictment found against her at the feflions there for bigamy: but afterwards Lord Mansfield, C. J. took notice that it was irregular; for a defendant has no right to remove an indictment from Hicks's-ball without the confent of the profecutor; and there having been no confent in this case, his lordship faid the writ iffued improvidè, and must be fuperfeded. Rex v. Duchefs of King fton, Eaft. 15 G. 3. Cowp. 283.

5. It may be granted to a court-leet to remove a prefentment there. Rex v. Roupell, Trin. 19 G. 3. Corup. 458.

(B. 2) What Records shall be removed by it.

1. THE

HE ftat. 12 Ann. ft. 1. c. 2. directs application to be made in certain cafes to the next quarter feffions, who are to give the party applying a certificate. Application in a particular cafe having been made to the fecond quarter feffions after the fact, and not to the next; and the juftices being of opinion that the jurifdiction was only to the next quarter feffions, and one having intervened, they, for that reafon, denied the certificate: upon which a motion was made in the K.B. for a certiorari to remove the proceedings; which was oppofed by the Attorney General, because

4 Viner 337.

4 Viner 339.

this was no order of feffions, and a certiorari goes only to fetch up their orders; and the court being of that opinion, denied the certiorari. Cafe of Mayo and Parfons, Mich. 7 G. 1. Str. 391.

2. There is no difference when the proceeding upon the record is to be removed, whether it be before judgment or after; in both cafes the record itself must be removed; if it was not fo, this confequence would follow, that by fending for the tenor of the record the inferior court would be tied up, and yet the fuperior court could not proceed. Per Lord Chancellor in Woodcraft v. Kinafton, June 21, 1742, 2 Atk. 318.

1. THE

(B. 3) Directed to what Perfons.

'HE feffions return an order of two juftices, and it is ob jected, that the certiorari fhould have gone to the two juftices and not to the feffions, because it did not appear any act had been done at the feffions either to confirm or reverse the order. But the court held, that the order was well returned by the feffions; and Eyre, J. faid, It had been determined fo already, for (a)Vide poft, the juftices are fuppofed (a) to return all the orders they make to letter (K), the feffions, where they are to be recorded. Rex v. Ínhabit. de Warminster, Mich. 8 G. 1. Str. 470.

pl. 5. marg.

2. The feffions at Hicks's-hall fit in both capacities, of feffions of the peace, and alfo of oyer and terminet; and they draw up their orders with one title or with the other, according to the degree of the offence; (viz. common affaults and offences of a low nature under the title of the court of feffions; and affaults with intent to ravish, riots, &, and offences of a high nature, under the title of a court of oyer and terminer;) and the certiorari's are directed accordingly. Vide Burr. 10.

"

3. An information on the flat. 1 Jac. 1. c. 22. intitled "The Duty of Tanners, Curriers, Shoemakers, and of others cutting "of Leather," run throughout, that the informers give the lord mayor of London to underftand, &c.; but a certiorari iffued to remove it was directed to the feffions of the city of London, and it was moved to quash it upon the ground that it was not well directed. The return was made by S. T. J. mayor of the city of London, and also one of the justices within written. The court thought the propriety of the direction of the certiorari depended upon the propriety and validity of the information, viz. whether the mayor alone had the jurifdiction under the act, or the mayor in feffions; and that the proper method of bringing the question before the court would be to move to quafh the information; which was afterwards done, the court being of opinion, that the mayor had no jurifdiction to receive and proceed upon it. Rex v. Williams, Trin. 30 & 31 G. 2. Burr. 385.

4. In the cafe of a certiorari to remove the proceedings in a caufe out of the court of Common Pleas of the county palatine of Lancafter into the King's Bench, the writ was directed to the chancellor of the county palatine, and commanded him that, "by

"our writ under the feal of our faid county palatine," he should command the prothonotary to certify the faid plaint to him, "that you may certify the fame to us at Westminster," &c. In obedience to this, a writ was made out directed to the prothonotary in the nature of a certiorari, (but called a mandate in the language of that court,) under the feal of the county palatine, but in the king's name, commanding him to certify the plaint, &c. "to us, fo that the fame may appear to us at Weftminster," &c. Neither of the writs affigned any particular grounds, but only faid, "we being willing," for certain reafons to be certified on a certain plaint, &c. Zinck v. Langton, Trin. 21 G. 3. Doug. 749. (n. 1.)

5. It was moved to quash a certiorari issued to remove a cause from the borough court of Caermarthen, upon an objection taken, that it was directed to the mayor, commonalty, and burgeffes, which was the name of the incorporation; whereas it ought to have been directed to the mayor, recorder, and town clerk, before whom the court was holden. But the court faid, there was no need to answer this objection, for however the proper parties might have objected to make any return of it on account of the writ being improperly directed, yet having, in fact, returned the record into that court, no fuch objection could be started by third perfons. Daniel v. Phillips, Hil. 32 G.3. 4 Term Rep. B. R. 499.

(C) How it fhall be certified. In what Cafes the 4Viner 340, Tenor of the Record fhall be certified, and in what Cafes the Record itself.

1.

A Writ of certiorari iffued out of the court of Chancery, directed to the mayor and fheriffs of London, commanding them that diftinctly and plainly they fhould fend the tenor of "the record and procefs of a certain plaint," &c. It was moved to quafh or fuperfede this writ, because the tenor of the record was only directed to be removed, and not the record itfelf. And per Lord Chancellor -I think the writ is erroneous, for this reafon: there is a great difference between the record itself and the tenor, for this is only a tranfcript or copy; indeed it must be literal, but still is only a tranfcript; and as this is a certiorari to remove a record out of an inferior court in order to be proceeded upon in a fuperior one, it ought to be the very record, for other wife no proceedings can be had upon it. Woodcraft v, Kinafton, June 21, 1742, 2 Atk. 317.

difference

2. Upon a motion to quafh or fuperfede a certiorari iffued out There is a of Chancery to remove a plaint of replevin in the mayor's court between a of London, and which commanded the mayor and sheriffs to fend babeas cor the tenor of the record and process of the faid plaint; the Lord pus and a Chancellor obferved a difference between certiorari's themfelves, certiorari and faid this writ was framed from certiorari's brought for another moves the purpose, for the precedents found in the curfitor's book, which he body cum B 3

had

that re

caufa; and

then you must begin in the fu

perior court, and declare

de novo, bit on a certio

had looked into, were fuch, and they were in order only to use the record as evidence; for if nul tiel record be pleaded, the court cannot have the record but by certiorari, and then the tenor, if returned, is fufficient as evidence of the record; but when the record is to be proceeded upon, the record itself must be returned. Woodcraft v. Kinaston, June 21, 1742, 2 Atk. 317.

rari you must proceed on the record as it ftands when removed. Per Lord Chancellor, 2 Atk. 317.

4 Viner 342.

(D) Certiorari. Lies, in what Cafes (4).

(a) Vide poft, letter (H); ante, letter (B); and for feveral cafes where a certiorari is not grantable exprefsly by ftatute, vide the Index to the Statutes at large, title Certiorari.

Sed vide Rex v. Pufey, Eaft.

I.

A

Certiorari is the moft proper way of having a conviction before juftices examined in a fuperior court, and not a writ of error, because it is a judgment not in a folemn manner, but in a fummary way. Reg. v. Leighton, Mich. 7 Ann. Fortefcue, 173.

2. The court granted a certiorari for the defendant to the Old Bailey to remove an indictment for forgery, the defendant appearing to be a man of good repute, and the perfecution upon flight Str. 717 grounds. Rex v. Wells, Eaft. 9 G. 1. Str. 549.

13 G. 1.

1 Ca.

315. Vin. Ab. Certiorari (D), pl. 31. Vide also Rex v. Gunstone, Seff. Ca. 314. and Str. 583. and Rex v. Iles, 1 Seff. Ca. 321.; yet vide alfo Vin. Ab. Certiorari (B), pl. 15. cites Comberb. 319. A certiorari was granted to remove an indictment of perjury from the Old Bailey, on the part of the defendant, upon an affidavit that he had twice paid cofts for not going on to trial, the judges being gone away; which the court allowed to be a fpecial reafon to diftinguish this from the common cafe where certiorari's are denied. Rex v. Morgan, Trin. 9 G. 2. Str. 1049.-A certiorari was granted to the Old Bailey in a cafe of perjury ad inftantiam defendentis, on an affidavit that the profecutor's attorney was under-heriff of Middlefex, and attended the grand jury on finding the bill. Rex v. Webb, Hil. 10 G. 2. Str. 1058. Motion for a certiorari to remove an indictment for perjury against the defendant from the Old Bailey. The court would not grant it; and per Lee, C. J. It was done, indeed, in the case of Rex v. Morgan, but that was upon the extraordinary circumstances of the cafe; for that he had been there two feilions, and used his utmoft endeavours, and could not get it to be tried, though he was ready, and paid cofts twice. But if we do it for afking, we shall have all the indictments come up hither. Rex v. Fergufon, Eaft. 10 G. 2. Rep. temp. Hard. 369. It is a good reafon for granting a certiorari to remove an information before the juices of aflize, that they have no jurifdiction of the caufe; as an information before juftices of aflize against a parfon for non-refidence, on the ftat. 21 H. 8. c. 13. f. 26. Garland q. t. v. Barton, Mich. 11 G. 2. And. 27.

Vide ante, (B), pl. 2. poft, (H),

pl. 5.

3. Indictment in the great feffions of Anglefea for embracery; and it was moved, ex parte defendant, for a certiorari. It was admitted, that in capital cafes the certiorari lay by the 26 H. 8. c. 6. f. 6.; but it was contended on the part of the profecutor, that in cafes of misdemeanor it had never been granted; of which the court would advife. At another day feveral precedents were produced, and poftea's, where the indictment removed from the grand feffions had been fent down to be tried in an Englib county, and returned up to the K. B.; therefore, in this cafe, there being an affidavit to induce a suspicion that a fair trial could not be had in Wales, a certiorari was granted. Rex v. Lewis, Eaft. 12 G. 1. Str. 70.4.

4. A certiorari was granted to remove an indictment for not doing the ftatute labour in the highway, on producing a precedent where it was done in the cafe of Rex v. Eachard, 12 G. 1. Rex v. Greenhaw, Mich. 3 G. 2. Str. 849.

5. After