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Where, on a certiorari to reinove an order, the return Must do it acwas cujus quidem tenor sequitur in hæc verba, and not gui cording to the
purport or quidem ordo sequitur in hæc verba, it was quashed for that tenor, as
directed by reason. (1)
But where the certiorari is only to remove and send up the tenor of the record, it must be obeyed accord, ingly. (2)
A certiorari is of no effect, unless it be delivered before When deli
vered. its return is expired. (3)
If the person to whom it is directed do not make a re. An alias, &c. turn, the modern practice is to issue a rule to return the writ of certiorari, and if that rule be not obeyed, to grant an attachment against the party disobeying. (4)
If a certiorari be not returned, so that an alias be awarded, the return must be upon the first writ, and the other must be returned, quod ante adventum istius brevis ; the matter was certified. (5)
The person to whom a certiorari is directed may make The remedy
for a false rewhat return to it he pleases, and the court will not stop turn. the filing of it on affidavits of its falsity, except only where
(1) Reg. v. St. Mary's, in the Devizes, i Salk. 147.
(2) Dalt. ed. 1727. chap. 195. 674. 4 Hawk. P.C. 163. book i. chap. 27. sect. 71. But the distinction seems to be that the word “ tenor” imports only a true copy. Reg. v. Drake, Salk. 660., and the cases there cited; but the term “ ordo” means the original order.
(3) Rex v. Rhodes, 1 Keb. 944. 4 Hawk. P.C. ead, ed. 160. sect. 59.
(4) See Rex v. Battams, 1 East, 298. The ancient practice is said to have been to issue an alias, that is a second writ; then a pluries, that is a third writ; or causam nobis significes was awarded, and then an attachment. i Burn's Just. tit. Certiorari, cites Crom, 116.; and see Cork v. Baker, 1 Str. 63.
(5) Anon., 1 Vent. 75. Note, this seems to refer to a case, where the record has been actually certified before the issuing of the second writ, but not returned into the Crown Office.
the public good requires it; as in the case of the commissioners of the sewers, or for some other special reason: but regularly, the only remedy against such a false return, is an action on the case, at the suit of the party injured by it, or information, &c. at the suit of the king (1); as also by attachment for the contempt, where the party refuses to make a return. (2)
Practice as to returning certiorari.
The general practice as to the return of a record from the sessions, by writ of certiorari, is as follows:
The attorney for the party, who applies for the writ, receives it from the Crown Office as soon as the rule of court or judges' fiat has been obtained, to warrant the issue. He then carries it along with the recognizance to prosecute, acknowledged before a judge, or some justice of the peace, for the county or place where the order was made, to the clerk of the peace: who, when a case has been granted, draws up at length on parchment, a record of the order of sessions, in conformity to the entries which have been made in the sessions-books respecting it. It commences with the caption, and terminates with the case; but the names of the justices, who made the original orders appealed against, are generally omitted in the caption. (3)
The return in the case of a rate is prepared in a similar manner. And, as the rate itself cannot be removed, the entry of the appeal should include the title of the rate, and the allowance by the justices. (4)
(1) 4 Hawk. P.C. 162. book ii. chap. 27.; cites Reg. v. Norton, Pasch. 11 Ann.
(2) Ante, 595. (4).
(3) Ante, 566. (4). But see an order of sessions, stating a case for the opinion of the court, signed and sealed by the two justices onig who made the first order, (an order of removal,) although many others were named in the caption of the quarter sessions. Rex v. Sowerby, Burr. S.C. 125.
(4) Ante, 589.
The practice as to making the return, seems to vary in Practice in different counties.
different At some sessions, the clerk of the
counties. peace makes an indorsement on the back of the writ, as follows: “ The answer of A. B. one of the justices within named.” “The execution of this writ appears in certain orders to the same writ annexed.” Opposite to this indorsement is affixed a seal, supposed to be that of the magistrate in whose name the return is made. The order of sessions, and the original order of the magistrates, which are directed to be removed, together with the recognizance to prosecute the writ with effect, are then annexed to the writ. (1)
According to the form in Burn's Justice, the officer should make out a schedule on a separate piece of parchment, containing the justice's return of his execution of the writ, to which it must be annexed. The records which are required to be certified, are then enclosed within the schedule, and sealed up. (2)
But whatever form is followed in certifying the return, How remitted the orders are annexed to the certiorari, and the clerk of
into B. R. the
peace sends the return up by some person, in whom he can confide, (usually the agent for the party who has sued out the certiorari,) who must deliver it to the proper officer at the Crown Office.
(1) Such is the practice in the office of the clerk of the peace, for the county of Surrey.
(2) See 1 Burn's Just. tit. Certiorari, with which the form for the return to a certiorari to remove an indictment, as stated in Lambard's Eirenarcha, tit. Processes, agrees,
Of proceedings to quash or affirm Orders, after they are
returned into the Court of King's Bench.
Of filing the order.
After the return has been thus made by the clerk of the peace into the Crown Office, a motion is made to file the orders. (1)
The party, wishing to have them quashed or confirmed (2), moves the court, upon an office copy of the orders procured at the Crown Office, for a rule to shew cause, why it should not be done accordingly. (3)
Drawing up and serving the rule.
This rule must be drawn up, and a copy served upon the opposite party.
Setting down Formerly, the motion to make this rule absolute was for argument. moved as part of the ordinary business of the court, upon
any day which suited the counsel's convenience, after that appointed for shewing cause by the rule. But Lord Mansfield introduced it as a standing order, “ that all rules, to shew cause why orders should not be quashed, should be peremptory rules, and the causes be set down in the crown paper; and that a copy of the orders should be left with the junior judge of the court, two days before such day for
(1) Rex v. Nether Heyford, Burr. S.C. 479. But this motion is not made in court, the signature of counsel being considered as an authority to the officer. The reason for the motion is, to give the party an opportunity of objecting to the return before filing, if he thinks proper.
(2) In Rex v. Oulton, Burr. S.C. 68.; a motion was made to confirm the orders, unless cause should be shewn to the contrary before the last day of term; two terms being elapsed since they came in, and nothing done
them. (5) See Rex v. St. Issey, Burr. S.C. 826, &c. Rex v. Moor Critchell, 2 East, 66.; where the form of the rule stating the objection to the order is given.
shewing cause (1).” By a subsequent regulation, the court directed, that a copy of the orders should be delivered to each of the judges, two by the clerk in court for the prosecutor, and two by the clerk in court for the defendant. (2)
These cases are now set down by the clerk of the rules on the crown side of the court, in the crown paper, to be argued on the day given for shewing cause by the rule, being a crown paper day, that is one of those days in Crown paper term, which the court has set apart to hear arguments in days. criminal cases, prior to all other business. They are every Wednesday and Saturday in term, except the first and last day.
The clerk of the rules on the crown side of the court, Delivering and the clerk in court employed for the prosecutor, make copies to the
judges. each a copy of the record removed, one of which is delivered at the chambers of the chief justice, and the other at those of the senior puisne judge, two days before the case comes on for argument. The secondary and clerk in court, employed for the other side, make, and deliver in like manner, one to each of the junior judges. It is likewise proper for both parties to furnish all the four judges with an abstract of the points upon which it is intended to impeach, or support the orders. (3)
The case being thus set down in the cause-book, upon of the arguthe crown side of the court, is called on in turn. If counsel appear only to support the rule, and the clerk in court, on his side, has delivered the paper-books to the judges, he may move to have it made absolute, upon affidavit of
(1) 13 Feb. 1775. Burr. S.C. 806. (2) Trinity term, 11 Geo. III.
(3) Mich. 45 Geo. III. Lord Ellenborough C.J., with the concurrence of the other judges, desired that this should be done in future, in all arguments upon the civil side of the court.