Consequences

felon was considered as literally out of the pale of the law, and might be killed by any one; but now, of course, it would be murder, unless the killing were caused in an endeavour to apprehend him. Any one may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to give him up to the law (h).

The general consequences of outlawry, both in of outlawry. felonies and misdemeanors, are the following:-The person outlawed is civiliter mortuus. His goods are forfeited from the exigent, his lands from the outlawry, and the Act abolishing forfeiture in general does not interfere with this (i). He cannot hold property given or left to him. He cannot sue on his own contract, nor can he sue for the redress of any injury. be a witness, but cannot be a juror (j).

Reversal of outlawry.

Process on informations.

He may

As to the reversal of the outlawry.—If there has been any mistake or omission in the proceedings, or for other cause-for example, if the defendant was in prison-the accused may have the benefit of this. In cases of felony he must render himself into custody and pay the allowance of the writ of error in person; if it be reversed, he must still meet the indictment. In other cases he may appear by attorney (k).

Process on informations is similar to that on indictments. But the first process is by writ of subpoena, instead of venire; and then, if this is not effectual, a capias. But if it is necessary to proceed to outlawry, the first process is by venire facias (as in an indictment for misdemeanor), and not by subpœna (1).

(k) 4 & 5 Wm. 3, c. 18. v. Solomon v. Graham, 5 Ell. & Bl. 320. (2) v. 1 Chit. Cr. L. 865.

The appearance of the accused having been enforced in this way, or voluntarily made, the next step is to arraign him. But we must first treat of an exceptional proceeding, which sometimes at this stage intervenes to remove the proceedings to a higher

court.

Certiorari.

CHAPTER IX.

CERTIORARI.

WE have already ascertained where the trial of an offence will, in the regular course of things, take place. But any criminal proceeding may be removed by a writ of certiorari into the Queen's Bench Division, the supreme court of criminal jurisdiction. This writ is directed to the inferior court, requiring it to return. the records of an indictment or inquisition depending before it, so that the party may have a trial in the Queen's Bench Division, or before such justices as the Queen shall assign to hear and determine the cause. The result is, that the jurisdiction of the inferior court is superseded; all proceedings there are illegal, unless the Queen's Bench remands the record back to When the writ the inferior court for trial. The proper time to apply should be applied for. for this writ is before issue is joined on the indictment, or at least before the jury are sworn; but it has been allowed at any time before judgment, and even afterwards, when error does not lie. But applications at such a stage are discouraged, and special cause must be shewn (m).

In what cases granted.

In what cases is it granted? It is demandable as of right by the Crown, and issues as of course when the Attorney-General or other officer of the Crown applies for it, either as prosecutor or as conducting the defence on behalf of the Crown (n). Formerly, it was granted almost of course to private prosecutors; but

(m) 2 Hawk. c. 27, s. 28.
(n) R. v. Eaton, 2 T. R. 89.

v. R. v. Garside, 2 A. & E. 266.

now by them, as by defendants, leave must be applied
for, and this may be refused (o). It is also provided
that no indictment (except indictments against bodies
corporate not authorized to appear by attorney in the
court in which the indictment is preferred) shall be
removed into the Queen's Bench Division or Central
Criminal Court by writ of certiorari, either at the
instance of prosecutor or of defendant (except the
Attorney-General on behalf of the Crown) unless it be
made to appear to the court from which the writ is to
issue, by the party applying the same (a) that a fair
and impartial trial of the case cannot be had in the
court below; or (b) that some question of law of more
than usual difficulty and importance is likely to arise
upon the trial; or (c) that it may be necessary to have
a view of the premises in respect whereof the indict-
ment is preferred; or (d) that a special jury may be
required to insure a satisfactory trial (p).
But, among
other cases, an application by the defendant will not be
granted for the removal of an indictment for perjury,
forgery, or other heinous misdemeanors when the delay
tends to defeat the prosecution (q), nor for murder (r).
Nor in general will it be removed from a court of com-
petent jurisdiction where one of the judges presides,
except by consent of the prosecutor (s).

The mode of obtaining the writ is the following:- Mode of The application must be founded on an affidavit sug- writ. obtaining the gesting adequate ground for the removal. Motion must be made in court, or to a judge in chambers, and leave obtained, and this whether the application is made on the part of the prosecution or of the defence (t). When it is granted at the instance of the defendant,

(0) 5 & 6 Wm. 4, c. 33.

(p) 16 & 17 Vict. c. 30, s. 4.
(9) 2 Hawk. c. 27, s. 28.
(r) R. v. Mead, 3 D. & R. 301.
(8) Arch. 104.

(t) 5 & 6 Wm. 4, c. 33, s. 1.

Costs.

Trial at
C. C. C.

the amount of recognizance to be entered into before a judge of the Queen's Bench Division, or a justice of the jurisdiction where the defendant resides, by the defendant and his bail, is ordered by the court and indorsed on the writ (u). Moreover, when at the instance of the defendant, this recognizance must contain the further provision that the defendant, if convicted, will pay to the prosecutor his costs incurred subsequent to the removal of the indictment; and when at the instance of the prosecutor, he must enter into a recognizance with the condition that he will pay the defendant, if acquitted, the costs incurred subsequent to such removal (v). And if such recognizance be not entered into by the parties at whose instance the certiorari is awarded, the court proceeds to trial as if the writ had not been awarded (w). It is after this recognizance has been lodged with the clerk of assize or clerk of the peace that all proceedings in the court below are

erroneous.

Provision is made by statute (x) for the trial at the Central Criminal Court of indictments or inquisitions for felonies or misdemeanors committed out of the jurisdiction of the Central Criminal Court, which have been removed by certiorari into the Queen's Bench Division; and for the removal of such indictment or inquisition by order of the Queen's Bench Division directly into the Central Criminal Court from an inferior court.