the writ was allowed to issue, notwithstanding there were express words taking it away, where the magistrates convicted of an assault, although the complainant asked only for sureties to be found to keep the peace (k). The established practice concerning the issue of a certiorari is, that if it be made to appear to the court that the justice has exceeded his jurisdiction, or did not exercise his jurisdiction properly, the court will grant a certiorari (1); but the court will not grant the writ upon a mere misconstruction of a statute, e. g. where two persons were severally convicted in separate penalties under an act by which the certiorari was taken away (m) for a joint offence, instead of being jointly convicted in one penalty, the court refused to issue a certiorari, upon the grounds that such a conviction was not an excess of jurisdiction, but a mere misconstruction of a statute (n).

When it does not lie.] Also, a certiorari does not lie to`remove other than judicial acts (o); therefore it does not lie to remove a mere order of court, or warrant of apprehension issued by a magistrate (p), nor a poor-rate (q), nor a warrant of distress to levy a poor-rate (r), nor the granting of a spirit license, which is not a judicial act capable of revision by the court on certiorari(s). A certiorari does not issue to correct the exercise of a lawful jurisdiction, but to correct what has been done under a want of jurisdiction, or in excess of jurisdiction; that is the proper object of a certiorari (t).

For the crown.] Even when the statute declares in terms that the proceedings shall not be removable by certiorari, this does

fraud on judicial proceedings, R. v. Alleyne, 4 El. & Bl. 186; 1 Jur. N. S. 869, Shedden v. Patrick, 1 Macqueen, H. of L. Ca. 535.

(k) R. v. Deny, 2 L. M. & Pollock, 230.

(1) R. v. Mayor of Clonmel, 4 Ir. J. N. S. 33.

(m) 1 & 2 Wm. IV. c. 32, Eng. Game Act.

(n) R. v. Staffordshire Js., 32 Law Times, 105.

(9) R. v. Armagh Js. 6 Ir. J. N. S. 212.

(p) R. v. Lloyd, Cald. 309; R. v. Lediard, Say. 6.

not prevent its issuing at the suit of the prosecutor (u). Besides the authority of practice, it has been solemnly decided by the court, upon a review of the subject, that the general words of a statute restraining the issuing of writs of certiorari do not apply to prosecutors (v).

For private person.] But though the certiorari is demandable of right by the prosecutor, it is discretionary in the court either to grant or refuse it at the prayer of the defendant (w). Some special grounds must be laid before the court by affidavit on moving for the rule (x); for where it was moved for, on the ground of the jurisdiction of the justices not appearing on the conviction, and there was no affidavit shewing the want of jurisdiction, the application for the certiorari was refused (y). Excess of jurisdiction may also be shewn by extrinsic evidence upon affidavits, in order to obtain a certiorari (2). It may be shewn by affidavit that the justices had no authority to commence an inquiry, inasmuch as the question brought before them was not one to which their jurisdiction extended; and this, although by misstatement they have made the proceedings on the face of them regular (a). But the court will not grant the writ when they think that the applicant for it has been in any way a party to the act which he seeks to invalidate (b).

Practice in the Crown Office.] Conformable to the general rule, an affidavit is required to ground a certiorari on moving for the writ as in other crown motions. This affidavit requires no stamp. A copy of the conviction sought to be returned should be annexed to or embodied in the affidavit. This affidavit is lodged in the Crown Office, and attested copies are then made out, upon payment of the fees. The motion may then be made ex parte for a rule nisi, which rule, when granted, allows six days

(u) R. v. Allen, 15 East, 333; 2 Chit. Rep. 186; R. v. Farewell, 1 East, 305; R. v. Berkeley, 1 Ken. 80; R. v. Boultbee, 4 A. & E. 498; R. v. Spencer, 9 id. 485, Paley on Conv. 358.

(v) Per Lord Kenyon, 1 East. 305, Paley on Conv. 358.

(w) 2 Hawk. P. C. c. 27, s. 27. (x) 2 T. R. 90.

(y) R. v. Long, 1 M. & Ryland, 139; see R. v. Bolton, 1 Q. B. 66; Paley on Conv. 359, 360. Slight ground is, however, sufficient to be shewn, 2 T. R. 90.

(2) Penny v. South Eastern Railway Company, 7 El. & Bl. 660. (a) R. v. Bolton, 1 Q. B. 66. (b) See R. v. Salop, 29 L. J. M. C. 39; R. v. Leicester Js. id. 203.

for cause to be shewn, and prescribes the parties upon whom the order is to be served.

The party suing out the order then files affidavits of service of the order, if he wishes; and if the party does not shew cause within the six days limited by the order, it is made absolute, by motion of course in court by counsel, grounded upon the certificate of the clerk of the crown, of no cause. If the party means to shew cause, he should file affidavits within the time limited, unless he has made an application to the court by counsel and has had the time extended; it then lies upon the prosecutor to serve a notice to make the order absolute. This notice requires only one clear day's service before motion, and the day upon which the motion is to be made is generally mentioned in the notice. If the prosecutor should not serve this notice, the defendant, if so advised, may serve a notice to discharge the rule nisi, grounded upon his answering affidavit. If notice to shew cause against a conditional order is served within the period named in such order, the party shewing cause is entitled to move; but if such notice is not served within that period, then, whichever party, whether prosecutor or defendant, first serves notice of motion, is entitled to move (c).

No certiorari during appeal depending.] While an appeal is depending at the sessions, there can be no certiorari till the sessions have determined the case (d).

Refused when party should appeal.] But even where there is no objection to the certiorari issuing before the time of appealing is expired, yet the court, in the exercise of its discretion, will refuse to grant it, if, upon the affidavits in support of the application, it appears that the ground alleged for it is more properly the subject of appeal (e). This writ of certiorari will lie to bring up a summary conviction, though the party has a right to appeal, and though he has exercised that right, and though the conviction has been confirmed at quarter sessions; provided always that still there is apparent upon the conviction, error (ƒ).

When the court of quarter sessions quashes a conviction upon the merits, the prosecutor will not be able to bring the matter before the Court of Q. B., as the order will be merely quashing the conviction upon the merits; but it would appear that if any difficulty arises in the case, and that the sessions give the prosecutor a special case, then they may quash the conviction, subject to the case for the opinion of the court; in which event a certiorari may issue to bring up the order of the sessions and the special case (g).

As a matter of practice, it may be well to observe that where an order of quarter sessions confirming an order of justices is removed into the Q. B. by certiorari, the writ does not necessarily bring up the original order of the justices; the rule should be drawn up for the order of the magistrates and the order of the sessions (h).

How sued out, practice.] The writ of certiorari is granted in term time by the court upon motion of counsel; but in vacation a fiat for a certiorari may be allowed at chambers by any judge of B. R., the application being supported by proper affidavits in each case (i). The party seeking for the certiorari must himself make an affidavit to ground a motion for the rule (j). The writ is directed to the justices by whom the conviction was made; but if the person who ought to make the return die, having the record in his custody, it may be directed to his executor or administrator to certify it (k). It is the practice also to direct it to the petty sessions clerk.

Effect of] The writ is of no effect unless delivered before the

(g) R. v. Allen, 15 East, 333; see the only case reported of a special case stated for the court above, M'Master v. Banbridge Union, 4 Ir. Com. L. R. 394; see Coppinger, C. C. 672.

(h) See R. v. Cornwall Js., 1 New Cas. 414, 9 Jur. 110, Q. B.

(i) See Hayes, C. L. 120, &c.; R. v. Newton Ferrers, 1 New Ma. Cas. 568; 7 L. T. 203; see as to title of affidavit, R. v. Walworth, 10 Jur. 96; 4 D. & L. 403; R. v. Chasemore, 2 New Prac. Cas. 266;

R. v. Ward, Batty, 71. If a party has failed on his affidavit to get a conditional order, see R. v. Manchester & Leeds Railway, 1 P. & D. 164. Excess of jurisdiction may be shewn by extrinsic evidence by affi davit, in order to obtain a certificate, Penny v. South Eastern Railway Company, 3 Jur. N.S. 957; 26 L. J. Q. B. 225.

(j) In re Fetherstone, 5 Ir.J.N.S.

118.

(k) 2 Hawk, c. 27, s. 42, see 1 N. & W. J. P. 639.

time for its return is expired (1); but from the time of its delivery it supersedes the authority of the justices below (m), and all subsequent proceedings are void, besides being a contempt of the Court of Q. B., for which the magistrate is liable to attachment and fine (n). It is the duty of the magistrate, therefore, upon receiving the certiorari, to yield obedience to it, by returning all the proceedings comprehended in its mandate, not only previous to the date of the teste, but such also, if any, as originated after the teste (o). It is said, that if the certiorari come after adjudication made, but before the amount of the fine has been agreed upon, it is no contempt to fix the amount, in order to return the judgment complete (p); and if, before any certiorari awarded, a warrant of distress has been made and delivered to the constable who has distrained the goods, he may proceed to sell; for the execution being executed in part before the writ issued, it does not stop the execution of the residue (q). The return.] The return must be made by the person to whom the certiorari is directed (r). The manner of making the return is as follows, viz., on the back of the certiorari should be inscribed, "The answer of, &c." [here insert the name and the style and authority of the person making the return] and write, "The execution of this writ appears by a certain schedule annexed hereto." This is then usually signed by the justice making the return (s). Then, on a piece of parchment, the schedule should be written in this form ::

County of to wit.

I, A. B., Esq., one of her Majesty's justices of the peace for the said county, by virtue of this writ to me delivered, do hereby certify unto

() 2 Hawk. P. C. c. 27, s. 24; Paley on Conv. 369.

88.

(m) Munganv. Wheatley, 6. Exch.

(n) Paley on Conv. 369.

(0) 2 Ld. Raym. 836, 1 Salk. 149; 1 East, 298; Paley on Conv. 370.

(p) R. v. Ellwell, 2 Ld. Raym. 1584; 2 Str. 794; but see Fitzwilliam's case, Yel. 32; Dalt. c. 195; 1 N. & W. J. P. 640; Paley Conv. 370.

(2) R. v. Nash, 2 Ld. Raym. 989;

1 Salk. 147; 1 N. & W. J. P. 643; Paley Conv. 370.

(r) Ashley's case, 2 Salk, 479; R. v. Thrill, Hob. 135; 1 Burn, 620 ; and a return must be made though the writ is irregularly issued, R. v. Mucklow, 1 Keb. 225. A motion may in such case be made to quash the writ, see 1 Ea. 306; 5 T. R. 543; 13 Ea. 416; 1 N. & W. J. P. 640; Paley Conv. 370.

(8) 1 N. & W. J. 640; Paley Conv. 295; but the signature does not