On parch

ment.

As to the seal.

Can return nothing but the order.

up an original order of removal by two magistrates, and an order of sessions made thereupon: it was objected to the certiorari, that it did not appear to be properly returned; the return was only signed R. Whitton, not saying who or what he was, or that he had any proper authority to return it. It is not even prefaced to be the answer of such a one, which is the usual method. Lee C. J. directed other returns to be looked into, which appeared to run thus: "The answer of A. B. and C. D., two of the justices within named ;" and then desired the counsel to look into it, and see if it could be supported. But they finding it could not, moved to quash their own certiorari. (1)

The return must be made upon parchment (2); and if on paper, it will be quashed as no return. (3)

It is laid down by Hawkins, "that every return ought to be under the seal of the inferior court, or of the justice or justices to whom it is directed; and if such court have no proper seal, it seems that the return may be well made under any other. (4) Also the form of the writ requires the return to be made under seal. It is said, however, in a recent case, that a return to a certiorari, to remove an indictment for a misdemeanour from the sessions, need not be under seal, notwithstanding the words of the writ. (5)

The 'justices have no power by the certiorari but to return the order in hæc verba, and, therefore, what they think fit to return further the court can take no notice of. (6)

(1) Rex v. Newton, ante, 595. (4).

(2) Rex v. Darlington, ibid. (6).

(3) Rex v. Stow Barden, Cas. Temp. Hard. 173.

(4) Hawk. P.C. 161. Book II. chap. 27. sect. 65.

(5) Rex v. Pickersgill, Cald. 297.

(6) Weston Rivers v. St. Peter's, in Marlborough, 2 Salk. 492. post, 601. (4).

purport or

Where, on a certiorari to remove an order, the return Must do it acwas cujus quidem tenor sequitur in hæc verba, and not qui quidem ordo sequitur in hæc verba, it was quashed for that reason. (1)

But where the certiorari is only to remove and send up the tenor of the record, it must be obeyed accordingly. (2)

cording to the tenor, as directed by the writ.

A certiorari is of no effect, unless it be delivered before When deliits return is expired. (3)

vered.

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 the filing of it on affidavits of its falsity, except only where

(1) Reg. v. St. Mary's, in the Devizes, 1 Salk. 147.

(2) Dalt. ed. 1727. chap. 195. 674. 4 Hawk. P. C. 163. book ii. 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. 1 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.

turn.

Practice as to returning certiorari.

Record how

drawn up.

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)

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 only 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.

different counties.

The practice as to making the return, seems to vary in Practice in different counties. At some sessions, the clerk of the 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)

into B. R.

But whatever form is followed in certifying the return, How remitted the orders are annexed to the certiorari, and the clerk of 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 filing the order.

Moving quash.

Drawing up and serving the rule.

Setting down for argument.

SECT. IV.

Of proceedings to quash or affirm Orders, after they are returned into the Court of King's Bench.

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)

This rule must be drawn up, and a copy served upon the opposite party.

Formerly, the motion to make this rule absolute was 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 upon them.

(3) 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.