the borough fund may be removed into the court by certiorari. A resolution was passed by a corporation ordering the payment of certain sums, each exceeding 501., to contractors for costs incurred in paving a street, no contracts having been entered into under the seal of the corporation. On an application for a certiorari to bring up and quash such resolution, on the ground that it was a misapplication" of the borough funds within 1 Vict. c. 78, s. 44:-Held, that as the work was useful and done at a reasonable cost, and there was no suggestion of corruption or partiality, there had been no "misapplication," and the court in its discretion refused to grant the certiorari. Reg. v. Norwich (Mayor), 30 W. R. 752.

Provisional Order by Secretary of State. By 21 & 22 Vict. c. 98, s. 75, the secretary of state, upon a petition of the local board of health, and after inquiry, may, by a provisional order, empower that board to put in force, with reference to the land referred to in the order, the powers of the 8 & 9 Vict. c. 18, with respect to the purchase and taking of land otherwise than by agreement; but the provisional order so made shall be of no validity unless it has been confirmed by act of parliament; and it shall be lawful for the secretary of state, as soon as conveniently may be, to obtain such confirmation, and the act confirming such order shall be deemed to be a public general act :-Held, that such order could not be removed by certiorari in order to be quashed. Reg. v. Hastings Board of Health, 6 B. & S. 401.

Resolution of Vestry.]-A certiorari will not lie to bring up a resolution of the vestry for the appointment of paid constables under 5 & 6 Vict. c. 109, s. 18. Hipperholme (Constables), In re, 5 D. & L. 79; 2 B. C. Rep. 98; S. C., nom. Reg. v. W. R. (Justices), 11 Jur. 713.

Nor the copy of such resolution forwarded to the justices in special sessions, on which they made the appointment. Ib.

But it will lie to bring up the appointment itself made by the justices in petty sessions, where the proceedings in vestry have not been conducted in conformity to 58 Geo. 3, c. 69. amended by 59 Geo. 3, c. 85, a poll having been demanded and refused, and the resolution being carried by a show of hands. Ib.

question. B., an owner of lands adjoining the canal, made a request to the committee for their consent to erect a bridge over the canal, and after twenty-one days' refusal applied to the commissioners, who held a meeting, and after hearing evidence and arguments pro and contra, gave their consent. On motion to quash the above consent and approbation, removed by certiorari :-Held, that it was a judicial proceeding, removable by certiorari. Reg. v. Aberdare Canal Company, 14 Q. B. 854; 19 L. J., Q. B. 251; 14 Jur. 735.

The application was on behalf of B., the owner of land adjoining the canal. In fact, however, the bridge was not wanted for the use of the lands, but to bring coals from a colliery lying beyond them, which coals would be carried by the proposed bridge across the canal to a railway, and by that railway to the town, instead of going by the canal. The chairman, and several directors and shareholders of the railway company, were sworn and acted as commissioners when the application was heard and granted :Held, that by reason of the interest they had in the result, the proceedings were void. ib.

Certificate for Admission of Lunatic into Asylum.]-A certificate for the admission of a lunatic into an asylum, signed by a clergyman and overseer, under 8 & 9 Vict. c. 100, s. 48, is not removable by certiorari. Reg. v. Hatfield Peverel, 18 L. J., M. C. 225.

The objection that such a certificate is not properly the subject of a certiorari, may be taken on shewing cause against a rule to quash the certificate after it has been returned. Ib.

Beer Licence Granted by Excise.]-A licence for the sale of beer granted by the solicitor of excise without the production of a certificate from the overseer, required by 3 & 4 Vict. c. 61, s. 2, is not a judicial act removable by certiorari. Reg. v. Sulford (Overseers), 18 Q. B. 687 ; 21 L. J., M. C. 223; 16 Jur. 907.

Order of Metropolitan Board of Works.]-A certiorari issued to bring up an order of the Metropolitan Board of Works, made under 18 & 19 Vict. c. 120, s. 214, on an appeal from a decision of the district board, by which order compensation was granted to D. as an officer to certain commissioners. The certiorari is taken away by the act. This certiorari was issued on Consent of Commissioners to Erect Bridge.] affidavits, by which it appeared that D. was not By 33 Geo. 3, c. 95, for making a canal, all per- an officer, and that consequently the order was sons having freehold or copyhold estates of 1007. made without jurisdiction. On shewing cause a-year, in the county, and all persons residing in against a rule to quash this order :-Held, that the county and having personal estates of 20007., the Board of Works had jurisdiction on the apwere made commissioners for settling, deter-peal to decide whether D. was an officer or not; mining and adjusting all questions, matters and differences which should arise between the company and proprietors of lands. The company was to make such bridges as the commissioners should judge necessary and appoint, and if owners or occupiers of lands should find the bridges so made insufficient for the commodious use and occupation of their lands, they might with the consent of the committee of the company, upon request, or in case of their refusal for twenty-one days, then with the consent of the commissioners, make bridges at their own expense. By s. 70, no person shall be capable of acting as a commissioner in any case where he shall be interested or concerned in the matter in

and that, even assuming that their decision was wrong in fact, the order was not without jurisdiction. The rule to quash the order was discharged, and the writ of certiorari quashed, quia improvide emanavit. Reg. v. St. Olave's Board of Works, 8 El. & Bl. 529; 27 L. J., Q. B. 5.

Presentment from before Commissioners of Sewers.]-Certiorari granted to remove a presentment from before the commissioners of sewers, where the chairman confessed he was ignorant of the law applicable to the case. Rex v. Lewis, W., W. & D. 60; S. P., 1 Jur, 151.

Time for. The 13 Geo. 2, c. 18, s. 5, only applies to orders, &c., of justices; and there is no general rule of practice which requires an appli- | cation for a certiorari to be made within six months of the making of the order, &c., sought to be quashed. Reg. v. Sheffield (Mayor, &c.), 6 L. R., Q. B. 652; 40 L. J., Q. B. 247; 24 L.

Where an application for a certiorari is not made under 13 Geo. 2. c. 18, s. 5, the parties ap-right of way, a recognizance must be entered On removing an action for obstructing a plying are not limited to six months, but may into, under 19 Geo. 3, c. 70, though the action is apply at any more lengthened period, as the for damages only. Franks v. Quinsee, 2 W., court under the circumstances may think reason- W. & H. 58.

N., esquire, one of the justices, at the dwellinghouse and usual place of abode of him, R. N., at, &c., by leaving a duplicate or counterpart of the notice with W. R., the medical assistant of R. N., he R. N. being ill in bed," is insufficient, as it does not appear that the service of the notice upon W. R. was at the dwelling-house of R. N. Reg. v. Nunn, 1 New Sess. Cas. 49.

Where an indictment was removed by certio- | tices stating, "that the deponent did serve R. rari, at the instance of the prosecutor, who entered into recognizances conditioned to prosecute the same with effect :-Held, that this was not a compliance with 16 & 17 Vict. c. 30, s. 5, and that the prosecutor was therefore not liable to costs; and that the court has no power to order costs to be taxed against the prosecutor. If recognizances have not been duly entered into, the remedy is provided by s. 7, which, in such case, enables the court to which the writ has been directed to proceed to the trial of the indictment, treating the certiorari as a nullity. Reg. v. East Stoke, 34 L. J., M. C. 190; 11 Jur., N. S. 809.

An affidavit must shew distinctly that the justices upon whom the notice of the intended application for the writ was served, were present, and taking a part in the proceedings when the order was made. It was stated in an affidavit that the deponent was present at the sessions on the day when the order was made, and did then and there see E. and L., the justices served, act

On Removal of Presentment.]—If a person against whom a presentment is made by a courting as justices of the peace :-Held, insufficient, of sewers obtains a certiorari to remove it into the Court of Queen's Bench, he must, before the allowance of the writ, enter into the recognizance required by 5 & 6 Will. 4, c. 33, s. 2. Reg. v. Baker, 28 L. J., Q. B. 377.

3. NOTICE.

When necessary.]—A certiorari to remove an indictment from the sessions may be sued out by the prosecutor without giving six days' previous notice. Rer v. Battams, 1 East, 298.

The words "party, person," &c., in the statute, do not include the crown; therefore, a certiorari on the motion of the Attorney-General, was directed to issue, although the time limited by the statute for applications for such writs had elapsed and the directions in it, relative to notice to the justices, had not been complied with by the

crown.

Rex v. Berkeley, 1 Ld. Ken. 80. The notice of such motion must be given to the justices, notwithstanding the order of sessions was made subsequently to the opinion of the court, on a case to be stated, which was the case afterwards stated and settled by the justices at the sessions. Rex v. Sussex (Justices), 1 M. &

S. 631.

Service of.]-Notice of intention to move for a certiorari "on the first day of next term, or so soon after as I can be heard," is irregular, if served on the first day of that term, though the party does not, in fact, move till after the expiration of six days. Flounders, In re, 4 B. & Ad. 865; 1 N. & M. 592.

The notice of application for a certiorari was sworn to have been served on F. S. and another justice, “who were present at the sessions," when the appeal mentioned in the notice was heard, and were and are two of the justices by and before whom the order of sessions mentioned in the notice was made." The notice was signed by J. M., the attorney for the inhabitants of "the respondent parish :"-Held, that the service was sufficient, inasmuch as F. S., under the circumstances, must be considered as a member of the court, and one of the justices who made the order. Reg. x. Suffolk, 18 Q. B. 416; 21 L. J., M. C. 169; 16 Jur. 612.

Service of notice of certiorari upon two justices, sworn to have been present at the hearing of the appeal, is sufficient. Reg. v. Cornwall (Justices). 1 New Sess. Cas. 414; 9 Jur. 110.

Affidavit of. An affidavit of service of notice for a certiorari to remove an order of jus

as not shewing they were the justices by and before whom the order was made, although their names were set out in the caption of the order of sessions. Reg. v. St. James, Colchester, 2 L. M. & P. 314; 20 L. J., M. C. 203; 15 Jur. 467.

On the 20th of April, the quarter sessions granted a case for the opinion of the Queen's Bench; on the 13th October, notice in writing of an intended application for a certiorari, to bring up the order of sessions, was served upon two justices; on the 20th October, an application was made at chambers for a judge's fiat, allowing the issue of a certiorari; no judge being in town on that day, an affidavit of notice to the justices, and of the other necessary facts, was sworn before a commissioner, and on the same day the affidavit was filed at the Crown Office, and a certiorari issued; on the 21st of October, the judge's fiat was obtained, and filed at the Crown Office. Upon motion to quash the writ quia improvide emanavit :-Held, first, that the notice to the justices on the 13th of October, was in abundant time, and that such notice on the 14th of October would have been sufficient. Reg. v. St. Mary, Whitechapel, 2 D., N. S. 964 ; 12 L. J., M. C. 85; 7 Jur. 602.

Held, secondly, that, upon shewing cause against the rule for quashing the writ, which was sought to be sustained, upon the ground that the writ had been granted upon an insufficient affidavit of the service of notice, it was competent to the party shewing cause to produce affidavits in explanation of such affidavit of service. Ib.

An affidavit that notice had been given to J. T. and H. W., two justices of the peace present at the sessions, at which the appeal mentioned in the notice came on for hearing, is insufficient, as it does not shew that J. T. and H. W. were actually present on the bench when the appeal was heard. Reg. v. W. R. (Justices), 1 New Sess. Cas. 406; 2 D. & L. 500; 14 L. J., M.C. 41 ; 9 Jur. 133.

Writ will only issue at instance of Party giving Notice.]-A certiorari cannot be issued at the instance of any but the party who has given such notice, although he avowedly drops the proceeding, and although it is too late to give a fresh notice. Rex v. Kent (Justices), 3 B. & Ad. 250.

Contents of.]-The notice must state upon the face of it the name of the party applying for the writ. Rex v. Lancashire (Justices), 4 B. & A. 289.

notice by the "party or parties suing forth" the writ. Rex v. Cambridgeshire (Justices), 3 B. &

In support of an application for a certiorari to remove an order of justices, the party suing forth the writ must be identified on affidavit ¦ Ad. 887. with the party who gave the notice to the justices. Such notice ought to specify the name of the party intending to sue forth the writ. Reg. v. Shrewsbury (Justices), 9 D. P. C. 501; 5 Jur. 291; S. C., nom. Reg. v. How, 4 P. & D. 320; 11 A. & E. 159.

It must also appear, affirmatively, on affidavit, that the justices to whom notice was given were the justices who made the order. The court will not infer the identity from the mere coincidence of names and descriptions in the order and notice, and affidavit of service. Ib.

The enlargement by consent of the rule nisi for the certiorari will not cure objections to the notice. Ib.

The quarter sessions having confirmed an order of removal subject to a case, a notice of the intention of the appellant parish to apply for a certiorari was addressed to “J. S. and T. H., two of her Majesty's justices," for the West Riding of the county of York; and an affidavit of service of such notice stating, that the deponent served J. S, and T. H. M., two of her Majesty's justices of the peace" for the West Riding, is insufficient, by reason of its not stating, that the justices so served were two of the justices before whom the order of sessions was made. Reg. v. Cartworth, 1 D. & L. 837; 3 G. & D. 162; 5 Q. B. 201; 13 L. J., M. C. 26; 7 Jur. 1129.

The caption of an order of sessions contained the names of A. and B. as two of the justices before whom the order was made; and it was also sworn on behalf of an applicant for a certiorari, who was not at the sessions, that A. and B. were two of the justices present at the sessions at which such order was made:-Held, against the party serving the order of sessions, that notice of motion for the writ upon A. and B. was sufficient. Reg. v. Serenoaks, 1 New Sess. Cas. 595; 7 Q. B. 136; 14 L. J., M. C. 92 ; 9 Jur. 489.

It is necessary that the notice should be, in the first instance, sworn to have been given to two justices, before whom the order was made; and an omission in this respect cannot be supplied by a subsequent affidavit. Reg. v. Gilbersome, 13 L. J., M. C. 346; S. C. nom. Reg. v. Gilberdyke, 5 Q. B. 207; 8 Jur. 792.

A notice "in six days from the giving of this notice, or as soon after as counsel can be heard," is sufficient. Reg. v. Bailey or Rose, 3 D. & L. 359; 2 New Sess. Cas. 166; 15 L. J., M.

C. 6.

An affidavit that the notice of motion was served on three justices (naming them), and that they were present at the trial and hearing of the appeal, is a sufficient notice to the justices making the order. Reg. v. Wilts (Justices), 9 D. P. C. 524; 5 Jur. 291.

Length of.]—The notice must be made six days, computing one day exclusively and one day inclusively, before the rule nisi is applied for. Rex v. Cumberland (Justices), 4 N. & M. 378; 1 H. & W. 16; S. P., Rex v. Goodenough, 2 A. & E. 463.

By whom signed.]-A notice to justices of a motion to be made for a certiorari "on behalf of the churchwardens and overseers of S," if signed by one churchwarden, is not a sufficient

A notice signed "W. & S., attorneys for the overseers of the parish of K.," is sufficiently signed. Reg. v. Westmoreland (Justices), 7 Jur. 899; S. P., Rex v. Abergele, 1 N. & P. 235; 5 A. & E. 795; 2 H. & W. 375.

A notice, signed in the name of a solicitor, who describes himself "solicitor for the present churchwardens and overseers of Market Harborough," is sufficiently signed. Reg. v. Solly, 9 D. P. C. 115 ; 1 W. P. C. 6.

Where the applicants are the churchwardens and overseers of a parish, it is unnecessary that it should give their names. Ib.

A notice of an intended application for a certiorari to remove an order relating to a borough, signed by "A. and B., solicitors for C., a ratepayer of the township of M., within and part of the said borough," is primâ facie proof of notice from the party suing forth the writ, without any affidavit by C. that the solicitors acted by his authority. Reg. v. Lancashire (Justices), 3 P. & D. 86; 11 A. & E. 144; 4 Jur. 121.

A notice of motion for a certiorari to remove an order of quarter sessions, made on appeal, setting forth the names of the appellant and of the respondents, and subscribed by “J. B., attorney for the respondents," is sufficient, though it does not expressly state that the respondents are the parties suing forth the writ. Reg. v. Wilts (Justices), 9 D. P. C. 524; 5 Jur. 291.

A notice for a certiorari to bring up an allowance of accounts by a poor-law auditor, under 7 & 8 Vict. c. 101, s. 35, signed by an attorney on behalf of the inhabitants of a parish, is sufficient. Reg. v. Chiddingstone, 7 Jur., N. S. 125.

4. LIMITATION OF TIME.

Six Calendar Months.]-A certiorari to remove a conviction must be applied for within six months after the date of such conviction. Rer v. Boughey, 4 T. R. 281.

|
So, to remove an order of sessions. Anon.,
Lofft 544; S. P., Reg. v. Anglesey (Justices), 1
B. C. Rep. 75 ; 10 Jur. 816.

So, to remove an order of sessions confirming an order of removal by two justices, must be moved for within six calendar months after such order of sessions made. Rex v. Sussex (Justices), 1 M. & S. 631.

So, where the order is subject to a case to be stated, the certiorari must be applied for within six months after making the order of sessions, and not within six months after settling the case. Rex v. Sussex (Justices), 1 M. & S. 734.

How calculated.]-The six months run from the date when the sessions adjudicate on the appeal, and not from the date of the original order of justices. Reg. v. Morrice, 2 D. & L. 952; 1 New Sess. Cas. 585; S. C., nom. Reg. v. Hertfordshire (Justices), 9 Jur. 731.

A certiorari to remove an order for stopping a highway may be applied for within six calendar months after such order has been confirmed at sessions, though more than six calendar months have elapsed since the order was made. Rex v. Middlesex (Justices), 5 A. & E. 626.

Where the sessions commenced on the 5th

April, and an order of sessions was made on the 7th April, an application made at judges' chambers on the 3rd October, and allowed on or before the 7th October, for a certiorari to remove an order of removal, was within sufficient time. Rex v. Abergele, 1 N. & P. 235 ; 5 A. & E. 795; 2 H. & W. 375.

If a certiorari has been applied for in time, but the allowance of it is quashed for a defect in the recognizance, the court under circumstances will send the writ down again to be properly allowed. Ib.

Affidavits in support of an application to quash a certiorari, bringing up an order of justices for stopping up a road, must be intitled in the names of the parties in the proceeding, and not merely in the Queen's Bench." Reg. v. Jones, 8 D. P. C. 80; 4 Jur. 365.

Affidavits on which a rule nisi is obtained to set aside a rule absolute for a certiorari before it has issued may be intitled "in the Queen's Bench," without naming the parties. Reg. v. Chasemore, 12 Jur. 11.

In August, 1841, a sewers' jury made a pre- Contents of, where Decision sought to be set sentment of several persons, who received bene- aside by reason of Justices being interested.]— fit, or avoided damage, from certain sewers; one W. having applied to the licensing justices for a of the persons, at a subsequent court, delivered license for a new hotel, and the three justices in a paper purporting to be a traverse of the who were sitting having refused it, afterwards presentment. This was specially demurred to by applied to the court for a mandamus to have the the clerk to the commissioners for informality; case heard again on the ground that B., one of and in September, 1841, the traverse was held the justices, was interested as owner in one of insufficient, and an amended traverse refused, the licensed houses near the proposed hotel. The and an assessment made upon the party. In affidavits shewed that B.'s wife had succeeded to July, 1842, he was distrained upon for the the licensed house, and was tenant for life, but amount of the assessment :-Held, that an it was a small house without hotel accommoapplication for a certiorari to remove the pre-dation, and not likely to be injured by the new sentment and other proceedings, in Easter Term, 1843, was made too late. Reg. v. Tower Hamlets (Commissioners of Sewers), 13 L. J., Q. B. 12;

7 Jur. 1169.

The preliminary step for applying for a certiorari at chambers to quash a conviction was taken on the 22nd August, the six months from the date of the conviction not expiring until the following day. Subsequently the judge dismissed the summons, indorsing it, no order— without prejudice to any application to the court:"-Held, that an application to the court within the first four days of the following term was too late. Reg. v. Hodgson, 2 L. T.

290.

Application made within Six Months Absence of Judge.]—If a party attends with all necessary materials for making an application for a certiorari on the last day of the six months allowed for making such an application, and leaves his papers with the judge's clerk for the purpose of being laid before the judge, and states the nature of his application, the application will be considered in time, even though no judge should be at chambers on that day, and no decision given till a subsequent day. Reg. v. Allen or Hodgson, 33 L. J., M. C. 98; 10 Jur., N. S. 796; 9 L. T., 761; 12 W. R. 423.

license being granted :-Held, (a) that a mandamus could not be granted because the decision, not having been set aside or quashed on certiorari, the case could not be heard again; (b) If a certiorari were applied for, the affidavits ought to state that the party applying and his solicitor did not know at the time that one of the justices was interested. Reg. v. Kent (Justices), 44 J. P. 298.

Jurat.]—In the jurat of an affidavit sworn in the country for a certiorari, the commissioner's name should be preceded by the words "before me," and the omission of them is a fatal defect, and not a mere irregularity. Reg. v. Norbury, 2 New Sess. Cas. 344; 15 L. J., M. C. 264; S. P., Reg. v. Bloxham, 1 New Sess. Cas. 370; 2 D. & L. 168; 8 Jur. 1117; 6 Q. B. 528.

For what Admissible.]—On a return to a certiorari for bringing up an order of magistrates, made in a matter over which an act of parliament had given them original and final jurisdiction as to the merits, affidavits are admissible to shew that the charge made before the magistrates was one over which they had no jurisdiction; but when a sufficient charge, appearing on the face of the information to be within their jurisdiction, is brought before them, they act The court refused a certiorari to bring up an within their jurisdiction in commencing the order of sessions made subject to a case more inquiry, and affidavits are not admissible to than six months after the making of the order, shew that they came to a wrong conclusion. where application had been made at chambers | Reg. v. Bolton, 4 P. & D. 679; 1 Q. B. 66 ; 5 within the time, but had failed in consequence | Jur. 1154. of non-attendance of a judge there until after the six months had expired. Lanbeblig, In re, 2 New Sess. Cas. 315; 15 L. J., M. C. 92 ; S. P., Reg. v. Anglesea (Justices), 1 B. C. Rep. 75; 10

Jur. 816.

5. AFFIDAVITS.

The court will not allow the evidence in the court below to be supplemented by affidavit of other facts which occurred at the time of the offence, but were not given in evidence before the court below. Reg. v. Cork (County) JJ., 15 Cox, C. C. 78.

When Necessary.]-Where a certiorari is How intitled.]-In moving for a rule for a moved for to bring up the depositions against a certiorari, it is irregular to intitle the affidavits person charged with felony, in order to have on which the motion is founded in any cause; him bailed in the country, an affidavit that he and if they are intitled they cannot be read. cannot afford to be brought up into court by Nohro, Ex parte, 1 B. & C. 267; S. P., Reg. v. habeas corpus is not necessary. Reg. v. Gregory, Walworth, 1 B. C. Rep. 258; 4 D. & L. 403; 101 W. P. C. 4 ; 4 Jur. 1015. Jur, 967.

In moving for a certiorari to bring up deposi