certiorari is taken away by statute contains counts charging an offence as to which the certiorari is not so taken away, the writ is issued in respect of the latter offence).

In all other cases the Court has unfettered discretion. The practice in the main is as follows:-An application is made to the Divisional Court by motion for a rule nisi, or, in vacation, or when a Divisional Court is not sitting, to a judge at chambers for a summons to show cause. Such application may be made at any time before the jury is sworn for trial (2 Hawk. P. C. c. 27, s. 59, 8th ed.; 60 Geo. 3, c. 4, ss. 3, 5; R. v. Passmore, 2 Dowl. 529).

Except in the case of the Attorney-General or prosecutor of a body corporate not allowed to appear by solicitor in the Court in which the indictment is preferred, the application must be supported by a sufficient affidavit stating the grounds of the application.

The applicant for an order of removal of an indictment into the King's Bench Division must make it appear to the Court or a judge, either

(1.) That a fair and impartial trial cannot be had in the Court below.

(2.) That some question of law of more than usual difficulty and importance is likely to arise upon the trial.

(3.) That a view of the premises in respect whereof the indictment is preferred is necessary.

(4.) That a special jury is necessary for a satisfactory trial of the indictment. (This only applies to trials of misdemeanour, as a special jury cannot be had for treasons or felonies: R. v. Mayne, 32 W. R. 95.)

It only remains further to say that it requires an exceptional case to obtain an order of the Court to remove an indictment for felony (R. v. Reynolds, 12 L. T. N. S. 516), and that a reasonable probability of unfairness or partiality is sufficient under ground (1), and that the Court has no power to grant costs of an application for certiorari (see, however, Short & Mellor, C. O. Pr. 111, 142).

The other rules dealing with certiorari need not be set out in full. They are sufficiently contained in the Crown Office Rules 28-42, which are to be found in the Appendix.

It may be also pointed out that in the large majority of cases the decision on the merits of the application is given on the argument to make the rule nisi absolute.

RULE 39.-An Order for the removal of an indictfrom an Assize Court into the King's Bench Division is obtained in the same way as a writ of certioruri.

C. O. R. 28.

RULE 40.-A judge of assize may issue a certiorari to remove an indictment found at sessions in the county or district in which he is sitting into his Court (of assize). (5 & 6 Vict. c. 38, s. 2.)

In such a case the application should be made on affidavit in open Court. I cannot, however, find any precedent of such a proceeding.

RULE 41.-An indictment or inquisition which has been removed by certiorari into the King's Bench Division of the High Court may be (1) tried in the High Court by a jury of the county from which it was removed; (2) sent to be tried as a Nisi Prius record in the county from which it was removed; (3) sent to be tried at the Central Criminal Court. Steph. Dig. Cr. Proc., p. 57.

RULE 42.--The venue in an indictment or inquisition removed into the High Court remains as it was before removal, unless the Court orders the venue to be changed, or unless the trial is at bar or at the Central Criminal Court.

R. v. Amery, 1 T. R. 363; 1 R. R. 179; Att.-Gen. v. Churchill, 8 M. & W. 193; Dixon v. Farne, 18 Q. B. D. 45—C. A.

By this is meant that by mere removal the place of trial only is changed. The jury still has to be summoned from the county in which the indictment was found.

RULE 43.-The Court will change the venue (or, in other words, will order the jury to be summoned from another county or district) when they are satisfied on any of the grounds specified in Rule 46, infra, that it is just so to do.

RULE 44.-An indictment found at the Sessions of the Peace for the cities of London and Westmin

ster and the liberty of the Tower of London, the borough of Southwark, and the counties of Middlesex, Essex, Kent and Surrey, may also be removed into the Central Criminal Court by certiorari issued by a Commissioner of oyer and terminer and gaol delivery under 4 & 5 Will. 4, c. 36, being a judge of any of the Supreme Courts at Westminster (now of the High Court), or the Recorder of the City of London.

4 & 5 Will. 4, c. 36, s. 16. See R. v. Sill, Dears. C. C. 16; R. v. Hawdon, 9 D. P. C. 1009; 1 Q. B. 464; 1 G. & D. 135; 5 Jur. 1008; R. v. Morgan, 7 C. & P. 642. The application can either be made on affidavit in open Court or in chambers.

RULE 45.—An indictment found out of the jurisdiction of the Central Criminal Court may be ordered by the Court of King's Bench (or, in vacation, a judge thereof) to be tried therein, and thereupon a writ of certiorari shall issue and remove the indictment into the Central Criminal Court (19 & 20 Vict. c. 16, s. 3), in which Court the venue shall be laid. See Rule 48, infra.

An application for such an order shall during the sittings be made to a Divisional Court of the King's Bench by motion for an order nisi, and in vacation to a judge at chambers for a summons, and the order may be made absolute or granted on such terms as the Court or the judge shall consider reasonable; and the same procedure is followed when an application is made under the Act for the trial at the Central Criminal Court of an indictment removed by certiorari into the King's Bench Division.

RULE 46.-The Attorney-General can demand a change of venue, but the subject must first show very substantial reasons why there should be a change. He must show either that

(1.) A view in another county is necessary (R. v. Clerk, 9 H. L. Cases, 184; R. v. Dunn, 11 Jur. 287); or

(2.) A fair and impartial trial cannot be had in the county in which the venue has been properly laid.

(3.) The inhabitants of a county are indicted, and all of them are necessarily interested in the event of the trial (R. v. Southampton (Inhabitants), 17 Q. B. D. 424).

The expenses attendant on the change are borne by the applicant (R. v. Newton, 1 Cox, 195). See also Rule 43, supra.

RULE 47. If an indictment or inquisition is removed by certiorari from the Central Criminal Court, the writ of certiorari shall specify the county or jurisdiction in which the same shall be tried, and a jury shall be summoned and the trial proceed in the same manner in all respects as if the indictment had been originally preferred in that county or jurisdiction.

C. O. R. 41.

RULE 48.-If an indictment or inquisition is removed into the Central Criminal Court under 19 & 20 Vict. c. 16, s. 7, the venue is to be laid in the Central Criminal Court.

19 & 20 Vict. c. 16, s. 7.

RULE 49.-An application to change the venue may be made to a judge of assize without certiorari or summons (a), or when the trial is in the King's Bench Division to the King's Bench Division after certiorari and when issue is joined.

See appeals, R. v. Rudge, 16 Q. B. D. 459; 55 L. J. M. C. 112. Short & Mellor, C. O. Pr. 204; C. O. R. 254.

(a) This does not apply to the Central Criminal Court.

Vexatious Indictments.

RULE 50.-No bill of indictment for any of the offences below enumerated shall be presented to or found by any grand jury—

(1.) Unless the prosecutor or person presenting such indictment has been bound by recog

1

nisance to prosecute or give evidence against the accused; or

(2.) Unless the accused has been committed to or detained in custody; or

(3.) Unless the accused has been bound by recognisance to appear to answer an indictment to be preferred against him for such offence; or (4.) Unless such indictment for such offence, if charged to have been committed in England, be preferred by the direction or with the consent in writing of (a) a judge of one of the Superior Courts of Law at Westminster; or (b) of his Majesty's Attorney-General or Solicitor-General for England; or (c) in the case of an indictment for perjury by the direction of any Court, judge or public functionary authorized by 14 & 15 Vict. c. 100, to direct a prosecution for perjury; or (5.) Unless with the consent of the Court in or before which the same is preferred.

22 & 23 Vict. c. 17; 30 & 31 Vict. c. 35.

A County Court judge has power to commit for offences against the Bankruptcy Act (46 & 47 Vict. c. 52, s. 165).

The direction of the judge may be obtained ex parte (R. v. Bray, 3 B. & S. 255; 32 L. J. M. C. 11).

The provisions of the Vexatious Indictments Act shall not extend or be applicable to prevent the presentment to or a finding by a grand jury of any bill of indictment containing a count or counts for any of the offences mentioned in the Act

(a) If such count or counts be such as may now be lawfully
joined with the rest of such bill of indictment; and
(b) If the same count or counts be, in the opinion of the
Court in or before which the same bill is preferred,
founded upon the facts or evidence disclosed in any
examination or depositions taken before a justice of the
peace in the presence of the person accused or proposed
to be accused by such bill, and transmitted or delivered
to such Court in due course of law.

And nothing in the said Act shall extend or be applicable to prevent the presentment to or finding by a grand jury of any