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will order the return to be taken off the file (1), and grant a writ of procedendo. (2)
When party concluded from objecting.
But a party cannot, after the return is made, and the proceedings removed, object to the issuing of the certiorari, if he has enlarged the rule to shew cause why the proceedings should not be quashed. (3)
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 Form of the Writ of Certiorari.
Of the direction of the 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 Barr. 488.; and many other cases.
(2) Per Holt C, J., Reg. v. George, 6 Mod. 40.
the inferior court itself, and not the officer whom they entrust to keep them.
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
Just 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)
to The sessions returned into the court of King's Bench an When to ses
sions. order 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 When to the person to whom it is directed, such as, an order of appoint- person, ap
pointed. ment, the certiorari must be directed to him. (4)
Care should be taken that the proceedings to be removed Orders reare properly described in the writ. For, " if there be a be described;
(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.
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)
or court will 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 t. 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 bernonsuit. Regina e. Inhabitants of Barking, 2 Salk. 452.
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Of returning the Certiorari.
those to whom
The certiorari must be returned in the name of the Returned by persons to whom it is directed, or some of them. Thus, directed..... where two orders were removed by certiorari, the return Writ directed was quashed; because the return in the schedule annexed to the justices,
returned by 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)
Where a certiorari issues to the sessions, the record By how many may be certified by two of the justices (3); and the prac- certified.
justices to be tice, in many instances, seems to have been so. (4) But By one 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 exeeption. (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
(:) Eliz. Ashley's case, 2 Salk. 479.
(6) Rex v. Darlington, 1 Barnard, B.R. The practice in Surrey is,
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 say. ing 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)
As to the seal. 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
Can return nothing but the order.
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
(1) Rex v. Newton, ante, 593.(4).
(6) Weston Rivers v. St. Peter's, in Marlborough, 2 Salk. 492. post, 601.(4)