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called the Habeas Corpus Act. The writ is granted by any of the superior courts in term time, or by the Chancellor or any of the twelve judges in vacation.

How obtained.] The writ is never obtained as of course in the offices; but an application must be made to the court or judge (d). In term time the motion is made by counsel; in vacation upon the documents laid before the judge. If it be made to the court in term, it is grounded on an affidavit of the circumstances (e). If made to a judge in vacation, under the Habeas Corpus Act, there should be a request in writing, signed by the party, or some one on his behalf, and attested by two witnesses (f). This should also be accompanied with a copy of the committal, or an affidavit that a copy has been demanded and refused; and in such case the writ will issue almost as a matter of course, every presumption being made against the legality of the commitment (g). The writ will not, it is said, be granted on the mere affidavit of the prisoner (which, however, should be had if possible) (h); but the application must be supported by additional evidence. The practice which has hitherto prevailed in this country of granting a conditional order for a habeas corpus is now altered, and, in future, assimilating the practice to that in England, a peremptory order will issue in the first instance, absolute as to the issuing the writ, and conditional as to the attachment (i).

Application for a rule.] The application may be for a rule calling on the keeper of the prison to shew cause why a writ of habeas corpus should not issue to bring up the body of the prisoner, and why, in the event of the rule being made absolute, he should not be discharged without the writ of habeas corpus actually issuing, and without his being personally brought before the court; and this is a convenient course, as it saves expense (j). And in the case of ex parte Cross (k), the court granted a rule

(d) 3 Bl. Com. 132; Bac. Abr. Hab. Corp. B. 5; Hayes, C. L. 378. (e) 1 Ch. Criml. L. 125.

(f) 1 Hayes, C. L. 378.

(g) Hobhouse's case, 3 B. & Ald. 420.

(h) In re Parker, 5 Mee. & W. 32.

(i) In re Matthews, 5 Ir. J. N.S. 225.

(j) Ex parte Eggington, 2 El. & Bl. 717; see re Geswood, 2 El. & Bl. 952; Clark v. Smith, 3 C. B. 984; ex parte Jacklin, 2 D. & Lowndes, 103; 5 C. B. 103.

(k) 2 H. & N. 354.

calling on a committing magistrate to shew cause why a writ of habeas corpus should not issue to bring up a prisoner, in order that the validity of the warrant might be discussed on shewing cause. But if no cause be shewn, the writ must issue before the prisoner can be discharged. The rule above mentioned is not applicable to cases of committals on summary conviction, but only to those for safe custody (1).

Proceedings on return.] Upon delivery of the writ, the warrant of commitment is returned along with the prisoner, and if it appears illegal, the court quashes the commitment (m). The depositions upon which the commitment is founded are generally ordered to be returned, that the court, by examining them, may be aware of the amount of the offence, although it may not be fully or correctly stated in the warrant of commitment (n). Form of return.] On the back of the writ write,

"The execution of this writ appears in a certain schedule hereunto annexed.

"So answers

"E. F., Governor of X. Gaol."

On the same or on a separate parchment write,

"I, E. F., keeper of her Majesty's gaol of X., in the writ to this schedule annexed named, do certify and return to our Sovereign Lady the Queen, that, before the coming to me of the said writ [that is to say] on &c., C. D., in the said writ named, was committed to my custody by virtue of a certain warrant of commitment, the tenor of which is as follows [here insert a copy of it]. And these are the causes of the detaining of the said C. D., whose body I have ready, as by the said writ I am commanded. "E. F., Governor."

Ambiguous return.] If there is any ambiguity or uncertainty in the return, the prisoner will be discharged (o); but if the return shews one good cause of detention and another bad, the defendant will be remanded (p).

(1) In re Graham & others, Q. B. Mich. T. 1861, M. S.

(m) See Carth. 508.

(n) R. v. Stewart, Batty, 139.
(0) Nash's case, 4 B. & Alderson,

295; Van Boven's case, 9 Q. B. 669; Deybel's case, 4 B. & Ald. 243; Souden's case, 4 B. & Ald. 294.

(p) R. v. Rogers, 3 D. & R. 607; re Cobbett, 7 Q. B. 187.

Controverting the return.] A fact directly stated on a conviction is not to be controverted (g). There are certain questions which are wholly and exclusively within the province of the tribunal from which the commitment issued, such as the weight of evidence, the innocence or guilt of the defendant, the adjudication of contempt, and the finding of those facts which are referred by statute to the decision of the magistrates, which may not be contradicted upon the return (). On the other hand, there are certain extrinsic and collateral matters which may be controverted by affidavit upon the return (s). In a recent case it has been decided that it may be shewn by affidavits that there was no evidence before the justice of such facts as were essential to his jurisdiction; but if there was any evidence to justify the finding, the courts will not interfere (t). On the other hand, it has been held that it is not competent for the defendant to shew by affidavit that the offence of which he has been convicted was not committed within the jurisdiction of the convicting magistrate; for that would be trying a matter which ought to be decided by the magistrate, and with respect to which, if he decided wrong, he would, in an action against him, be bound to prove that he had jurisdiction (u).

Where certiorari also necessary.] When a person is in custody under an order of justices sitting in petty sessions, the proper course of proceeding is not to apply to the superior court for a certiorari to remove the order of sessions for the purpose of quashing it, but to apply for a writ of habeas corpus, upon the return to which the several documents in the case will necessarily be before the court (v). If the defect be not on the face of the

(2) Brittain v. Kinnaird, 1 B. & Bingham, 432; R. v. Somersetshire Js. 5 B. & C. 816; Brenan's case, 10 Q. B. 492; Crawford's case, 13 id. 613; ex parte Newton, 16 C. B. 97. (r) Paley Conv. 346; Dimes' case, 14 Q. B. 554.

(8) See ex parte Beeching, 4 B. & C. 136; re Clarke, 2 Q. B. 619; re Dimes, 14 Q. B. 554; ex parte Eggington, 2 El. & Bl. 717; ex parte Dakins, 16 C. B. 77; George v. Somers, 16 C. B. 539. It is only by

reference to the affidavits that the
court can fairly judge as to whether
the return is evasive, and it is rea-
sonable that all the affidavits in the
case should be referred to.
In re
Matthews, 5 Ir. J. N. S. 225.
(t) Re Bailey and re Collier, 3 El.
& Bl. 607.

(u) In re Smith, 4 H. & Norman, 227. See re Thompson, 36 L. T. 410, per Pollock. C. B.

(v) R. v. Riall, 11 Ir. C. L. R. 279.

proceedings, as, for instance, where the J. P. has acted in a case where he was interested, the defendant, besides a writ of habeas corpus to bring up the warrant, must also sue out a certiorari directed to the convicting magistrate, or to the sessions, if the conviction has been filed there, to return the conviction into the court above (w).

CHAPTER XXII.

CERTIORARI.

THERE are three modes by which a party may proceed to obtain the reversal of a conviction or order of a justice, viz., Certiorari, Appeal, and a Case Stated to the court above.

The two latter modes have already been fully discussed (a), and it would be foreign to the scope of this work to enter into a minute and voluminous treatise on the law of Certiorari, or furnish to the legal practitioner a summary of all the cases that have been decided upon this writ. The reader will find many instances referred to (where the court will grant a writ of certiorari to review the proceedings of magistrates) in the earlier portion of this work (b). It is chiefly intended to treat of those steps that usually take place before the convicting justices, upon the writ of certiorari being directed to them.

Where grantable.] The certiorari is a writ issuing out of the Crown Office in the name of the Queen, and tested by the chief justice (c). The Court of Q. B. has power to award this writ, to procure an inspection of the proceedings of all inferior courts (d), for it is the common law of the land that the decisions of all inferior courts should be liable to be reviewed by the Court of Q. B. upon certiorari (e). It is a process which is used to keep

(w) Re Allison, 10 Exch. 561; R. v. Riall, 11 I. C. L. R. 279.

(a) Vide ante, chaps. 19, 20. (b) Vide ch. 4, p. 26, et seq. (c) Bac. Abr. 559.

(d) Groenvelt v. Burwell, 1 Ld. Raym. 469; R. v. Manchester and Leeds Railway Co., 8 A. & E, 413.

(e) R. v. Js. of Armagh, 6 Ir. J. N. S. 212, per Fitzgerald J.

courts of inferior jurisdiction within the limits of their authority, and when issued gives to the Court of Q. B. a very wide jurisdiction for reviewing their decisions.

Form of writ.] VICTORIA, by the grace of God, &c., to, one of our justices, &c. We being willing, for certain reasons, that all and singular records of conviction of whatsoever trespasses and contempts against the form of a certain statute, &c., whereof A. B. is convicted before you as in said [or as the case may be, stating the records to be removed], be sent before us, do command you, and every of you, that you, or one of you, do send under your seals, or the seal of one of you before us, on wheresoever we shall then be in Ireland, all and singular the said records of, &c., with all things touching the same, as fully and perfectly as they have been made by you, and now remain in your custody or power, together with this our writ, that we may further cause to be done thereon what of right and according to the law and custom of Ireland we shall see fit to be done. Witness, &c.

Right to the writ.] The right to this writ exists, unless it is specially taken away, by statute (f). A right of appeal, or the power of justices to "hear and finally determine," does not deprive the party of his right to a certiorari (g). Though a statute in express terms takes away the right to a certiorari, as in the Summary Jurisdiction (Ireland) Act, 1851, s. 24, still such express words are inapplicable where there is a want or excess of jurisdiction (h), or where the court has been illegally constituted (i), or the conviction has been obtained by fraud (j). So

(f) 1 Mod. 44; R. v. Moreley, 2 Burr. 1041.

(g) R. v. Blathwayt, 15 L. J. M. C. 48; 2 Hawk. P. C. c. 27, s. 23; R. v. Jukes, 8 Term R. 542; Hartley v. Hooke, Cowp. 523; R. v. Hube, 5 T. R. 542; R. v. Seton, 7 T. R. 373; R. v. Wadley, 4 M. & S. 508.

(h) R. v. Campbell, 3 Ir. C. L. R. 586; R. v. Mayor of Clonmel, 4 Ir. J. N. S. 33; R. v. Sheffield Railway Company, 11 A. & E. 194; R. v. Rose, 1 Eng. Jur. N. S. 802; R. v. Boultbee, 4 A. & E. 498; 6 N. & M. 26, S. C.; Baylis v. Strickland, 1 M. & G. 596; R. v. Js. of St. Albans, 17

Jur. 531; 22 L. J. M. C. 142; R. v. Berkeley, 1 Ld. K. 99; R. v. Derbyshire, Js., 2 id. 209; R. v. Somersetshire, 5 B. & C. 816; R. v. West Riding of Yorkshire, 5 Term R. 629; R. v. Fowler, 1 A. & E. 836, which may be shewn by affidavit, although the conviction may be good ex facie, R. v. Bolton, 1 Q. B. 66; re Bailey & Collier, 3 El. & Bl. 607.

(i) R. v. Cheltenham Commissioners, 1 Q. B. 467; R. v. Cork Js., 2 Ir. Jur. N. S. 431.

(j) R. v. Gillyard, 12 Q. B. 527; Tarry v. Newman, 15 M. & W. 645; see further as to the effect of

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