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half to the king, and half to him who shall sue. And the said stat.
IV. JIl-treatment of Cattle.
V, Prohibiting the Importation of vides, Skins, or
other parts of Cattle to prevent Infection. The stat. 9 G. 3. c. 39. j 10., respecting the subject of this section, was repealed by stat. 6 G. 4. c. 105.
Note. - In what particular cases a certiorari will or will not be
issued by K. B., see the respective titles in this work. A
CERTIORARI is an original writ, issuing out of the court Certiorari, judges or officers of inferior courts, commanding them to certify or to return the records of a cause depending before them, to the end that the party may have the more sure and speedy justice, before the king or such justices as he shall assign to determine the cause. 1 Bac. Abr. tit. Tertiorari (A).
Also the justices of the peace máy deliver or send into the What things K. B. indictments found before them, or recognizances of the may be certified peace taken before them, or force recorded by them, without any without a writ certiorari. Dalt. c. 195. p. 475.
of certiorari. Concerning which writ of certiorari it is here shewn,
I. In what Cases it is grantable, p. 528.
IV. How, and on what Terms it is to be granted and allowed;
also of Costs, p. 543. V. The Effect of it, Proceedings in K. B. after its Return,
p. 554. VI. The Return of it, p. 558. c) This statute, however, is considered as having expired. See Raithby's edition of the statutes, and Tyrwh. of Tynd. Dig. tit. Cattle.
I. In what Cases it is grantable. A certiorari lies It requires no special law to authorize a writ of certiorari: for it in all cases
is a consequence of all inferior jurisdictions, whether they be where not spe
ancient or newly created, to have their proceedings returnable into cially prohibited by statute.
the court of K. B. by certiorari, in order to be examined there. 1 Ld. Raym. 469. 580. 2 Haw. b. 2. c. 27. § 22.
No writ of error lies on summary convictions, and therefore the writ of certiorari is the only mode by which a revision of these proceedings by the superior court can be obtained. Paley on Convictions, 212.
In this respect the proceeding by certiorari differs from a right of appeal; (see tit. Appeal, antè, p. 98.): A certiorari always lies, unless it is expressly taken away, and an appeal never lies unless it is expressly given by statute. R. v. Hanson, 4 B. & A.521.
The practice of taking away the certiorari by statute, which Ld. Kenyon thought had become too frequent (see 8 T. R. 512. 511.), did not begin to prevail till the beginning of the reign of W. 3m not long after the introduction of appeal to the sessions, which came into general use towards the latter end of the reign of C. 2.
Paley, Conv. 212. It cannot be The power of granting a certiorari is considered so beneficial to taken away by
the subject, that it is not to be abridged by any thing short of an implication, but express statutory provision. Therefore a certiorari lies to justices only by express of the peace, even in such cases as they are empowered by
statute finally to hear and determine; and the superintendency of the court of K. B. is not taken away without express words. 2 Ha. c. 27. § 23. So if a statute authorizing a summary conviction before a magistrate give an appeal to the sessions, who are directed to hear and “finally” determine the matter, it does not take away the certiorari, even after such an appeal made and determined. R. v. Jukes, 8 T. R. 512.
R. v. Moreley, 2 Burr. 1040. Although the conventicle act (22 C. 2. c. 1.) enacted, that “ no other court whatsoever should intermeddle with any causes of appeal upon that act; but that they should be finally determined in the quarter sessions ONLY; -yet it was decided that the court of K. B. was not ousted of its right by certiorari.
Also, it was said that a certiorari does not go to try the merits of a question, but to see whether the limited jurisdiction have exceeded their bounds. S.C.
Also, that the words above mentioned only meant, that the facts should not be re-examined. S. C.
Also, that where a statute does not expressly take away a cer: tiorari, and direct that “no certiorari shall issue,” the court will grant one. S. C.
R. v. Enton, 27. R.89. On a motion to remove by certiorari a conviction by a justice on stat. 16 G. 3. c. 30. (now repealed) to prevent the stealing of deer, it was objected that no certiorari lay; for by the 23d section it was enacted, that no conviction or judgment should be removed by certiorari.—But the court were of opinion, that the result of the several provisions in the act was, that the defendant had an option either to remove the proceedings from before the
convicting justice by certiorari, or to appeal to the sessions; that if he had adopted the latter mode, the certiorari would have been barred, but not in the former case.
Anon. 1 Barnard. 245. A certiorari was moved for, to be directed to two justices of the peace of the county of Southampton, to remove a conviction upon the statute of 12 Car. 2. c. 23. § 36. for not having paid the excise. The court said, there were several statutes which provided that certioraries should not go in these cases; and they doubted whether this was not onę. But upon the counsel's saying that the words of the statute were only, that no certiorari should supersede the proceedings, he submitted it, that a certiorari might go notwithstanding: and he observed, that where these statutes intend that a certiorari shall not go at all, the words are much stronger; as the 9th of Anne, c. 11. provides, that no certiorari shall be brought or allowed; and accordingly the court made a rule to shew cause.
R. v. Terret, 2 T. R. 735. If a statute creating an offence give Whether by recognizance of it to ove justice, with an appeal to the sessions, and ference to anotake away the certiorari as to all the proceedings, and afterwards ther statute in further powers for the punishment of the offender are given to the pari materia, sessions by another statute, which does not take away the certiorari, the clause for taking away the certiorari in the former act cannot be extended to the proceedings under the latter. Therefore, where there have been proceedings under both statutes, those under the former act cannot be removed, but those under the latter may.
R. v. Rogers, 5 B. & A. 773. S. C. nomine In re Kay, 1 D. & R. 436. Scarlett had obtained a rule nisi for a certiorari to remove an order of sessions, of the town and county of Nottingham, confirming a warrant of distress, signed by two magistrates, for enforcing the payment of wages, said to be due from Thomas Kay. to William Rogers, for work done by the latter in the silk manufacture and the cotton manufactory. The wages for which the warrant issued had been paid previously in goods, which payment the magistrates altogether disallowed. The sessions, on appeal, considered the point of law so doubtful, that they confirmed the order, subject to a special case. The question was, whether the certiorari was taken away.— Denman shewed cause. There is no authority to issue a certiorari in this case. By 12 G. 1. C. 34. $ 3., clothiers in the woollen manufacture were prohibited from paying wages to their workmen partly in goods, and by the 4th section a penalty was imposed on them for so doing. Now the provisions, penalties, and forfeitures under that act contained, were, by 22 G. 2. c. 27. $ 12. expressly extended to workmen in the silk and cotton manufacture, and the penalties and forfeitures were to be inflicted, levied, and recovered, in the same manner as those in the 12 G. 1. c. 34. Then came 17 G. 3. c. 56. $ 22., which took away the writ of certiorari in cases of proceedings for offences against the 22 G. 2. c. 27. The certiorari is, therefore, taken away here ; for this is clearly an offence under the 22 G. 2. e. 27.-Scarlett and N. R. Clarke, contra. The certiorari is not taken away; for this is substantially an offence under the 12 G.1. e. 34. The only effect of 22 G. 2. c. 27. was to extend the provisions of that act to the silk and cotton trade; but the offence was not by that act prohibited, but by the former. There are offences VOL. I.
created by the 22 G. 2. c. 27., for the first time, to which the clause in the 17 G.3. c. 56. most properly applies. Here, a special case, on a nice question of law, has been reserved by the sessions; and, unless the writ of certiorari is expressly taken away, the court will not refuse to grant it.—Bayley J. By the 22 G. 2. c. 27., a variety of specific offences were created; and that having been done, by the last clause the provisions of the act of 12 G. 1. c.34. were extended to the silk and cotton trade. Now, I think that the best construction we can give to the 17 G. 3. c. 56. $ 22., on which this question turns, will be to hold, that it extends only to the offences created for the first time by the 22 G. 2. c. 27. If so, the writ of certiorari, in the present case, is not taken away.--Holroyd J. concurred.
R. v. Mayor of Liverpool, 3 D. & R. 273. 2 M. C. 4. Patteson moved for a certiorari to remove a conviction under the Bread Act, 50 G. 3. c. 73., into the court of K. B. The object of the motion was to determine whether $5. of that statute virtually incorporated SS 36. & 37. of 31 G. 2. c. 29., by the first of which the certiorari was expressly taken away, and by the second an appeal was given to the sessions. He contended, that although $ 5. of 50 G. 3. c. 73. was a general clause of reference to 31 G. 2. c. 29., SG. S. e.6., and 13 6. 3. c. 62., yet it might be satisfied by incorporating the general, without including the special provisions of those statutes, one of which took away the certiorari, and the other gave an appeal. If this were so, then, as the 50 G. 3. c. 73. did not take away the certiorari, it followed, from the general rule of construction in cases of this nature, that the party convicted was entitled to the writ. He cited R. v. Sheppard, 3 B. & A. 414. R.v.
The Justices of Surrey, 2 T. R. 510. R. v. Dove, 3 B. & A. 596., and Kay's case, i Dowl. & Ry. 436.- Hollingshed shewed cause in the first instance, and contended, first, that the certiorari was by necessary interpretation taken away by 50 G.3. c. 73. $ 5., and, second, that if not taken away, the defendant was entitled to appeal, under 31 G.2. c. 29. 837., and therefore the
motion for a certiorari came too early. He cited R. v. Sparrow, 2 T. R. 198., and R. v. Eaton, id. 89.– The court took time to consider of the case, and judgment was delivered by Abbott C. J.—This was a motion for å certiorari to remove a conviction under 50 G. 3. c. 73. It was contended that the writ of certiorari is in effect taken away by that statute
, and that an appeal is given to the sessions. We are all of opinion, that the writ of certiorari is taken away, and that an appeal lies to the sessions. The act in question is entitled “ An act to alter, explain
, and amend the laws now in force respecting the trade of bakers, residing out of the city of London, or the liberties thereof, or beyond ten miles of the Royal Exchange.” The title therefore shews that the object of the statute was to alter, explain, and amend the laws then in force. It begins by reciting the title of an act of 31G. 2. c. 29., another of 3G. 3. c.6., and another of 13G. 3. c.62, and then it proceeds, “ And whereas some of the regulations and provisions contained in the said several acts have been found defective, and in some respects injurious to the bakers and the public; and it is therefore expedient that the same should be altered and amended, and more effectual provisions made for ascertaining the due weight of bread, and for the better observance of the Lord's day, commonly called Sunday." The former actk, therefore, are not in terms repealed, except so far as they are hereby altered. The first section imposes a penalty on bakers for selling bread short of weight; the second requires that bakers shall keep weights and scales; the third contains a provision against baking on Sunday; the fourth contains an exception in favour of the rights and liberties of the universities; and then comes the 5th section, upon which arises the question whether this or any of the other acts is to be construed so as to take away the certiorari. The language of it is this: “That all powers, authorities, provisions, directions, penalties, forfeitures, clauses, matters, and things contained in the several acts now in force, not altered or varied by any of the provisions of this act, as far as the same can be made applicable and can be applied for the carrying into execution the purposes of this act, shall be used, exercised, and put into execution, for enforcing the regulations, provisions, and directions of this act, in such and the same manner as if the same were herein contained, and were at large re-enacted and made part of this act; and the penalties by this act inflicted shall be recovered and applied in like manner as the penalties by the said several other acts inflicted are directed to be recovered and applied.” The question therefore turns upon the effect of this fifth section, founded as it is on other acts, which it notices as bearing on the same subject. Now a general, and, I must say, an important question is raised upon this motion. It is perfectly clear, that, according to the general rules and principles of law, a certiorari issues from this court, unless some act of parliament has taken it away
express terms. So, on the other hand, an appeal to the sessions against a conviction of magistrates does not lie, unless the act of parliament gives it. These two general principles are now clearly established. The question, therefore, turns entirely upon the construction of this section. The clause itself is not altogether free from ambiguity. Construing the statute as a repeal of the recited acts of parliament as to those purposes for which it was passed, we see that it makes alterations in some clauses of the previous acts, and amends others; but it does not make any alteration as to what had been previously established by 31 G. 2. c. 29. $S 36. and 37, which give the appeal, and take away the certiorari. We are therefore of opinion, and feel ourselves called upon to say, upon the whole, that although some obscurity exists in this particular section, by the introduction of too many words, yet that it was the intention of the legislature to leave the provisions of the former acts, as they regard the appeal and certiorari, in full force; and, consequently, that the appeal still lies, and the certiorari is taken away. We are of opinion, therefore, that the party applying must take nothing by his motion.
R. v. Fell, i B.& Adol. 380. By stat. 42 G. 3. c. 73. penalties were imposed on masters and mistresses working children in cotton mills more than a certain time during the day, and no certiorari was allowed. By 6 G. 4. c. 63. additional restrictions were imposed as to working on Saturdays, and the penalties (increased in amount) were extended to foremen ; and it was further provided, that all the powers, provisions, exemptions, penalties, forfeitures, payments, remedies, matters, and things contained in the former act, except as varied by the present statute, should be as effectual for carrying the same into execution as if re-enacted: the court of K. B. held, on conviction of a foreman for employing children on