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It is in the discretion of the court in term-time, or of a single judge in vacation, to grant or refuse a certiorari. (1) During term-time, it is granted by the court, upon motion How applied of counsel. (2) But in vacation, a fiat for a certiorari may be allowed at chambers by any of the judges of the court of King's Bench. (3)
Previous to moving the court, or applying to a judge, the party who sues it forth must give six days' notice thereof, in writing, to the justice or justices, or two of them (if so many there be), before whom such proceedings have been, to the end that such justices, or the parties therein concerned, may shew cause, if they think fit, against issuing the certiorari. (4)
This notice is necessary to remove an order of sessions, although made subject to a case for the opinion of the court of King's Bench. (5)
It must be served six days prior to the application to the court of King's Bench for the writ of certiorari; for if the court should grant a rule to shew cause, six days' notice of that rule will not be sufficient. (6) A similar notice is necessary to be served, previous to an original application to a judge at chambers for his fiat. (7)
Where proceedings are to be removed from the session, this notice is usually served upon two of the justices,
(1) Anon., 7 Mod. 118. Arthur v. Commissioners of Sewers in Yorkshire, 8 Mod. 131. Rex v. Eaton, 2 Term Rep. 89.; and see Rex r. Justices of Glamorganshire, 5 Term Rep. 279.
(2) Rex v. Steers, 1 Barnard. K. B. 96.
(3) Rex v. Newton, Burr. S.C. 157. This is often necessary, in order to bring the party within the six calendar months allowed for suing out the writ by 13 Geo. II. c. 18.
(4) 13 Geo. II. c. 18.
(5) Rex v. Justices of Sussex, 1 M. & S. 631.
(6) Rex v. Justices of Glamorganshire, 5 Term Rep. 279. 2 Bott, 754. Pl. 859. Rex v. Nicholls, ib. n.(a).
(7) See Rex v. Newton, ante (5).
whose names stand in the caption of the session, as having
been present there.
Where an order remains with the justices who made it, On the justices they must be served with notice in like manner. (1)
making the order.
But when the original order has been returned to the On the so6quarter sessions (2), or removed thither upon appeal, it is sufficient to serve notice upon the justices at sessions, for that will warrant a fiat for a certiorari as to the order of sessions; and if the writ commands them to return that order, they should return the original order, upon the appeal from which, the order of sessions was made (3), and its effect is to remove all proceedings relating to the subject previous to the return, although some of them may have originated after the teste. (4)
The 13 Geo. II. c. 18. s. 5. further enacts, "That no ertiorari shall be granted to remove any conviction, judgnent, order, or other proceedings, before any justice of the peace, or the general or quarter sessions, unless it be aplied for in six calendar months after such proceedings had or-made."
c. 18. s. 5.
By 13 Geo. II. must be sued for within six
And it must be applied for within six months after the Although sub›rder is made, even where it is made subject to the opinion ject to a case. of the court of King's Bench, on a case to is stated; for
t is beneficial to put a strict interpretation upon the
If the rule for a certiorari be moved for during term, or When in time. he judge applied to for his fiat in the vacation, on the last
(1) See the opinion of Chapple J., ibid.
(2) Per Holt C.J., Anon., 1 Salk. 406. ante, 132.
(5) Rex v. Newton, ante, 582. (3).
(4) Rex v. Battams and others, 1 East, 298., where it was held, that in indictment found at the quarter sessions between the teste and re
urn of the certiorari, ought to have been removed under it.
(5) Rex v. Justices of Sussex, 1 M. & S. 631. ^~
5 Geo. II.
e. 19. of the
day of the six calendar months, it is sufficient to warrant its issuing. (1) Likewise, where an order of sessions is made upon appeal, from an original order of two justices, it seems that an application, within six months after making the order of sessions, entitles the party to remove the original order along with it, although the latter was made before that time. (2)
Also, if a certiorari has been applied for in time, but is afterwards quashed for a defect in the return, it does not seem to warrant the party to apply for a new writ after the six months are expired. (3)
5 Geo.II. c. 19. enacts, that no certiorari shall be alrecognizance. lowed, unless the party prosecuting it (4), before the allowance thereof, enter into a recognizance, with sufficient sureties, before a justice of the county, or place, or before the justices at sessions, where such judgment or order shall have been given or made, or before a justice of the King's Bench, in 50%., with condition to prosecute the same, at his own costs and charges, with effect, without wilful delay, and to pay the party in whose favour the judgment? or order was made, within a month after the same shall be confirmed, his full costs, to be taxed according to the course of the court where such order shall be. And if he shall not enter into such recognizance, or shall not perform the conditions, the justices may proceed to make such
(1) Rex v. Newton, ante, 582. (3).
(2) Ibid. The case does not state this expressly. But as the application to remove both orders was made on the same day, which is mentioned to be the last day of the six months after making the order of sessions upon appeal, the original order must have been made more than six months. See also Rex v. Warminster, Str. 470. In granting ↑ a certiorari to remove an order of the justices, for the removal of a pauper, quære, whether the six months are to be counted from the day of making the order, or from that of executing it, by which the time for appealing is regulated; see ante, 499.
(3) Ut videtur. Rex v. Newton, ante, 582, (3)........
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 certiorari, and order or judgment removed thereby.
According to the words of the statute, it seems unne- When entered 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 ought not to pay costs, if the court should ultimately decide the case against him.
ing an order, into recog nizance, although he 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
Of the affidavit.
firmed?" This rule was made absolute without oppo position. (1)
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 had, 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 confirm 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.
(3) See Rex v. Newton, Burr. S. C. 161.
(4) See Rex v. Justices of Glamorganshire, 5 Term Rep. 279. Rex Eaton, 2 Term Rep. 89.