original order may be removed by certiorari, and the court will give judgment upon it, and also upon that made at sessions. (1)

case clear

93d, The court will not grant a certiorari, to remove 3d, When the 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 it would prevent the collection of the rate, and the poor 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 move any other proceedings of magistrates, than judicial but judicial acts. (5)

acts.

Although a certiorari has been allowed to issue, and a Court will supersede return has been made and filed, yet the court will super certiorari. 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. 952. Rex v. Uttoxeter, ib. 2 Bott, 295. 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 v. Lediard, Say. 6. Rex v. Lloyd, Cald. 329.

When party concluded

will order the return to be taken off the file (1), and grant a writ of procedendo. (2)

But a party cannot, after the return is made, and the from object-proceedings removed, object to the issuing of the certiorari, if he has enlarged the rule to shew cause why the proceed ings should not be quashed. (3)

ing.

What motions for a certiorari not within these rules.

It is to be observed, that the restrictions upon issuing a writ of certiorari, to remove orders of justices, do not apply to cases: 1st, When any officer of the crown is affected by the order, and the attorney general sues for the writ on the part of the crown. (4) 2d, When a party, in whose favour an order has been made, wishes to remove it into the court of King's Bench, with a view to enforce the execution of it. (5) 3d, When such a party is desirous of removing a defective order, for the purpose of quashing it, and thus to give the justices an opportunity of making a valid one. (6)

In these cases the order may be removed after the expiration of six months. Notice to the justices is not required, nor is any recognizance for the payment of costs

necessary.

Of the direction of the certiorari.

SECT. II.

Of the Form of the Writ of Certiorari.

THE writ must be directed to the person in whose custody the records to be removed are. This is, in general,

(1) Rex v. Eliz. Nicholas, 2 Str. 1227. Rex v. Wakefield, 1 Burr.

488.; and many other cases.

(2) Per Holt C. J., Reg. v. George, 6 Mod. 40.

(3) Rex v. Hartshorne, 2 Burr. 745.

(4) Rex v. Tyndal and others, East. Term, 27 Geo. II.

(5) Rex v. James, Mich. 26 Geo. III. Rex v. Read, Trin. 35 Geo. III. (6) Rex v. Winpenney, East. 35 Geo. III.

the inferior court itself, and not the officer whom they entrust to keep them.

to sessions.

3. In the case of orders made by justices of peace, or at How directed the sessions, it is directed either to the justices of the peace for the county generally, or to some of them in particular by name, and not to the Custos Rotulorum, although he has the custody of the records.” (1)

If an order remain in the hands of a justice of peace, or To a justice. has been sent by him to the clerk of the peace, it ought to be certified on a certiorari for the removal of it by such justice only. But where it is made a record of sessions, it must be certified as one of their records. (2)

sions.

To The sessions returned into the court of King's Bench an When to sesorder of two justices, for the removal of J. S. It was objected, that the certiorari should have gone to the two justices, and not to the sessions, because it did not appear any act had been done at sessions, either to confirm or reverse the order. But the court held, that the order was well returned by the sessions. And Eyre J. said, it had been so determined already; for the justices are supposed to return all the orders they make to the sessions, where they are to be recorded. (3)

Likewise, where an order remains in the hands of the person to whom it is directed, such as, an order of appointment, the certiorari must be directed to him. (4)

Care should be taken that the proceedings to be removed are properly described in the writ. For, "if there be a

(1) 4 Hawk. P.C. Book II. chap. 27. Pie v. Thrill, Hob. 135. (2) 4 Hawk. P.C. 162. Book II. chap. 27. sect. 68. Justices who retain an order or conviction made by them, may be compelled to return it to the sessions, by a writ of mandamus.

(3) Rex v. Warminster, 1 Str. 470. Fort. 326.

(4) Rex v. Inhabitants of Great Marlow, 2 East, 244.

When to the person appointed.

Orders removed must be described;

or court will

variance between the certiorari and the record removed, the justices need not certify such record." (1) Likewise, if they do return records under it, the court will give no judgment upon such as are improvidently removed, but will quash the certiorari. (2)

Thus, where five orders touching the removal of a pauquash the writ. per, his wife and children, were removed by certiorari from the sessions; the court were of opinion, that the four first were not properly described in the certiorari, (there being a variance in the words "his" and "their" children); the fifth order was well removed, being rightly described; but was given up as a bad one, being made whilst the matter was depending before the sessions. Therefore, they quashed the last order of justices, which was well removed, and quashed the certiorari as to the four other orders, which were not well removed by it, for want of being properly described. (3)

(1) Dalt. Just. Peace, chap. 159. p. 674. ed. 1727.

(2) But after the certiorari is quashed, a second may issue to remove them. See Rex v. Hedingham, Sible. Burr. S. C. 114. Rex v. Newton, ib. 157.

(3) Rex v. Hedingham, Sible. Burr. S. C. 112. This point is thus reported, And. 73. Orders were made to remove “A. B. and E. his wife and two daughters, the children of A. B. and E. his wife." The certiorari is to remove all orders for the removal of ❝ A.B. and E. his wife, and the children of A. B. ;" and it was held by the court, that for this reason the orders were not removed.

A certiorari issued to remove all orders concerning the inhabitants of the parish of Barking, Needham Market, and Darmesdon hamlets, and the orders mentioned Barking and Needham, and Darmesden hamlets, without market. Holt C.J., If Needham and Needham Market be the same hamlet, so it should have been returned; but we cannot take notice that there is no such hamlet as Needham Market. If trespass quare clausum fregit at Needham were brought, and the plaintiff found a breaking at Needham Market, he must be nonsuit. Regina v. Inhabitants of Barking, 2 Salk. 452.

directed... Writ directed to the justices, returned by

THE certiorari must be returned in the name of the Returned by persons to whom it is directed, or some of them. Thus, those to whom where two orders were removed by certiorari, the return was quashed; because the return in the schedule annexed to the writ was not made by two justices, but by the clerk clerk of the of the peace, who was not the person to whom the peace, ill. writ was directed, and thereupon a new certiorari was granted. (1) If the writ is improperly directed, the proper parties may object to make any return for that reason; but if they return the record, no third person can object, and move to quash the certiorari on that account. (2)

prac

But

certified. justices to be By one

Where a certiorari issues to the sessions, the record By how many may be certified by two of the justices (3); and the tice, in many instances, seems to have been so. (4) it is laid down, "that all certioraris, though directed to divers justices, may be returned by one, and so is the usual practice." (5) And where it was moved to quash a return to a certiorari, directed to two justices of the peace because it was only made by one, the court over-ruled the exception. (6) It seems unnecessary to sign the return; Form of the but the person who makes it must describe himself as one having authority to do so. A certiorari issued to bring

(1) Eliz. Ashley's case, 2 Salk. 479.

(2) Daniel v. Philips, 4 Term Rep. B.R. 499.

(5) Reeve v. Brown, 1 Keb. 282.

(4) Rex v. Newton, Burr. S.C. 159.

(5) Per Astry, Anop., Comb. 25. and the form of the writ is so. (6) Rex v. Darlington, 1 Barnard, B.R. The practice in Surrey is, to make the return in the name of the chairman of the sessions, to whom the writ is brought, or supposed to be brought, but without stating him to be the chairman, only saying "one of the justices within named." It is signed but not sealed

return.