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further order, for the benefit of the party for whom the judgment shall be given, in such manner as if no certiorari had been granted; the said recognizance to be certified into the King's Bench, and there filed with the certiorări, and order or judgment removed thereby.
According to the words of the statute, it seems unne- When entered
into. cessary to enter into this recognizance, previous to applying for the certiorari. It is sufficient if it be entered into at any time before it is allowed.
Sometimes it may be expedient that a party should re- Party removmove orders, and enter into a recognizance, although he ing an order, ought not to pay costs, if the court should ultimately decide into recog:
nizance, al. the case against him.
ought not to Thus, in an appeal from an order, removing to the be liable for parish of A. from the hamlet of C., the sessions quashed the original order, and stated a case. The clerk of the peace had in his minute-book and book of orders, entered that the order had been confirmed, subject to a case. The parish of A. were obliged to remove the orders, to prevent their being concluded by this false entry of the officers. The recognizance was accordingly entered into by them, and the certiorari moved for by the name of the King v. the Inhabitants of A. The clerk of the peace made his return according to the truth of the fact, stating that the order of two justices had been quashed by the sessions.. To prevent the expences of the recognizance, and the burthen of costs falling upon A. in the event of their not succeeding, a rule was obtained to shew cause, “ Why the certiorari, lately returned into the court with the orders, should not be considered to have issued at the expence of the hamlet of C., and also why they should not enter into a recognizance to pay to the inhabitants of the parish of A. their full costs and charges, to be taxed according to the course of the court, if the order made by the quarter sessions against the said hamlet of C. shall be con
firmed ?” This rule was made absolute without oppoposition. (1)
Of the affidavit.
When these requisites have been complied with, the application must be made upon an affidavit of the person suing forth the writ, and also of others, where it is necessary, that they should join in making one. (2)
It must state, first, that six days' notice has been given; 2d, The date (3) and substance of the proceedings to be removed, and before whom they were bad, including the mention of a case when granted ; 3d, If any other facts are necessary to shew irregularity in the proceedings of the justices or sessions, and to induce the court to grant the writ, they should be inserted. (4)
Application being thus made for a certiorari upon such the certiorari. an affidavit, it is usually granted, in the first instance, by
the court or judge, if a case has been reserved at the sessions for the opinion of the court of King's Bench, or if any palpable irregularity appears to have taken place on
(1) Rex v. Inhabitants of Ashton Underhill, and Rex v. Inhabitants of Charlton, Cald. 416.
(2) The affidavits for the certiorari are entitled, “ in the King's Bench," without giving any name to the cause. In all sessions' cases, the King is the prosecutor, and the parties against whom the last order in the cause is made, are the defendants. Thus, if two justices remove a pauper from Stroude to Lidney, and the sessions on appeal confirma the order, the title of the case is, “ The King against the Inhabitants of Lidney." If they quash the original order, it is “ The King against the Inhabitants of Stroude." See the advertisement prefixed to Burr.S.C. Also if an appeal is against a 'rate, and the sessions confirm it, the title is, “ The King against Hogg” (the appellant). If they quash the rate. « The King against the Inhabitants of St. Nicholas, Gloucester;" (the place for which the rate is made.) See Cald. 262. and ib. 267. Cases thus entitled.
v. Newton, Burr. S. C. 161. (4) See Rex v. Justices of Glamorganshire, 5 Term Rep. 279. Rex ıs Eaton, 2 Term Rep. 89.
the proceedings. Otherwise, the court only grants a rule of serving the to shew cause, in which case a copy of the rule must be duly served upon the magistrates, who have been served with six days' notice previous to the original application ; and if the court so direct, upon the parties interested in the orders made. The justices or parties interested may shew cause against the rule on the day given them; and if they do, the court decide whether it ought to issue. (1)
If no one appears to oppose the rule, it is made abso- of making it lute upon affidavit that it has been served upon
absolute. parties. This service must be either by delivering a copy to the party in person, or by leaving one with an inmate at his place of abode, and, at the same time, shewing the person served, the original rule issued by the proper officer of the court.
There are certain grounds upon which the court always Grounds for refuse the rule, and which, among others, may be shewn refusing the for cause why it should not issue.
These are, 1st, If the previous circumstances already 1st, Six
months stated to be necessary have not been complied with : or if
elapsed, &c. six months have elapsed between the date of the proceedings sought to be removed, and that of moving for the writ. (2)
2d, By a general rule of court, no certiorari shall be 2d, Appeal not
determined. granted to remove an order of justices, from which the law has given an appeal to the sessions, before the matter is determined on the appeal, because it hinders the privilege of appealing; and if any order be removed before appeal, it shall be sent down again. (3)
(1) As to the form of proceeding upon a rule to shew cause, see ante, 514.
(2) 13 Geo. II. c. 18. ante, 583.
Exception to this rule.
This rule, however, extends only to eases were ihere is a limited time for appealing; as, otherwise, the order nerer could be removed. (1)
Party may wave it.
Also, if a party has the exclusive right of appealing, he may wave the privilege, and remove the proceedings at once into the court of King's Bench.
“ For where an order of justices is made, and there is but one party who hath a right to appeal (as in cases of orders of appointment, and of orders made upon an over seer's absence, or negligence in the execution of his office, and he waves his privilege of resorting to the sessions, and elects to come to this court, a certiorari lies for removing the order, there being no reason against the party's being
relieved; for the authority of this court is never taken away 78... by an act of parliament, without special words therein for
that purpose. But where there are two parties having a right to appeal, and the time of appealing, being fixed by the law, as in the case of settlements, where the time is limited to the first session, it is not reasonable to grant a certiorari till the time is elapsed; and so is the rule in Salk. 147. to be understood. (2)
Pending an appeal.
It seems further, that if certiorari issues pending an appeal, and before the sessions have determined the case, it may be quashed. (3)
But if a defendant appeals to the sessions against an order of maintenance, and his appeal is dismissed, because it should have been made to the preceding sessions, the
CITI be taken of this rule, upon the motion to file the order, for if filed it is too late. Per Holt C. J. Rex v. Shallington, 1 Salk. 147. But he Lord Hardwicke C. J., “Where an appeal lies, a certiorari granted may be taken off the file.” Rex v. Harman, And. 343.
(1) Rex v. Borough of Warwick, 2 Str. 991. post, 589. (4). Rex !" Harman, ante, 587. (3). Rex v. Houlditch, 2 Bott, 753.856.) braio
(2) Rex v. Harman, And. 343. Rex v. Houlditch; supra, (+)4 (+1 (3) Rex v. Sparrow, 2 Term Rep. 196. n. (a.)
original order may be removed by certiorari, and the court will give judgment upon it, and also upon that made at sessions. (1)
9:3d, The court will not grant a certiorari, to remove 5d, When the
case clear. proceedings, where it appears clear that the justices were warranted in doing what they did. (2)
4th, The poor's rate cannot be removed by certiorari, as 4th, Notreit would prevent the collection of the rate, and the poor
move poor's must remain unprovided for, while the case is depending in the superior court. (3)
But it lies to remove all orders made by the magistrates concerning it. (4)
5th, It is settled, that a certiorari does not lie to re- 5th, Nor any
but judicial move any other proceedings of magistrates, than judicial acts. acts. (5)
Although a certiorari has been allowed to issue, and a Court will return has been made and filed, yet the court will super- certiorari.
supersede sede it where it appears to have issued improvidently, and
(1) Rex v. Stanley, Cald. 172.
(2) Per Lord Kenyon C. J., Rex v. Justices of Glamorganshire; sed quære, if it is not otherwise where the justices at -sessions state a case for the court's opinion.
(3) Reg. v. St. Mary the Virgin, Marlborough, 2 Str. 982. Rex v. Uttoxeter, ib. 2 Bott, 293. Pl. 284. Cunn. 28. more full. Per Ashhurst J. Rex v. King, 2 Term Rep. 235. Also an original rate having been made at sessions prior to 17 Geo. II. c. 38. the court' refused to remove it by certiorari. Rex v. Justices of Shrewsbury, 2 Str. 975.
(4) Rex v. Wavell, Doug. 116. and several cases, post. Appeal from a poor's rate; and the sessions ordered the churchwardens to produce the books at an adjourned day, before which a certiorari was brought to remove that order ; and held to lie, though the appeal is depending; else the order must be obeyed before the validity of it can be determined. Case of the Borough of Warwicke, 2 Str. 991.
(5) Rex o, Lediard, Say. 6. Rex v. Lloyd, Cald. 329. i