now be made, and leave given where such application is made on the part of defendants, any law, practice, or usage to the contrary in anywise notwithstanding."

Under this enactment, as well as by the antecedent practice, a certiorari obtained by one of several defendants, removes an indictment as to all, and the previous recognizances of all are discharged, though the parties applying for the certiorari do not give any fresh security (0). This consequence is a matter for the discretion of the judge as to granting or withholding the certiorari, but is no ground for a procedendo, though the defendants who do not sue out the certiorari do not enter into fresh recognizances (p).

Recognizances of Defendants before Removing Indictment by Certiorari.]-In order to extend the powers of 5 & 6 W. & M. c. 11, intituled "An act to prevent delays of proceedings at the quarter sessions of the peace," it has been since provided by 5 & 6 W. IV. c. 33, s. 2, that instead of the recognizance now by law required to be entered into before the allowance of a writ of certiorari, every person indicted or presented in any court of session, assize, oyer and terminer, gaol delivery, or any other court, who shall obtain a writ of certiorari for removing any indictment or presentment whatever into the court of king's bench, not being in custody for want of bail to answer such indictment or presentment, shall, before the allowance of such writ, enter into a recognizance before one of the justices of that court, or before a justice of peace of the county or place in which the offence is charged to have been committed, or in which such person shall reside, in such sum and with such sureties as the said court of king's bench or one of the justices thereof shall by indorsement on the said writ order and direct, which recognizance shall contain the same conditions as are now by the said act, and 8 & 9 W. III. c. 33, required in cases of indictments removed from the general or quarter sessions of the peace; and thereupon all the clauses and provisions contained in the said several acts with respect to costs or otherwise shall extend to such last-mentioned recognizances; and every person being in custody for want of bail to answer the charge contained in such indictment or presentment shall be detained in custody till the like recognizances as are hereinbefore directed to be entered into (previous to the allowance of such writ of certiorari) shall have been entered into, or until such person be discharged by due course of law.

(0) R. v. Boxall et al. 4 Ad. & E. 513.

(p) Ibid. In R. v. Hunt and others,

2 Chit. R. 130, the court refused a certiorari, because all the defendants did not concur in the application.

Every recognizance acknowledged on the removal of an indictment, order, or other proceeding, or to prosecute any information granted by the court, or for the appearing or answering of any party in the said court, or for good behaviour, shall, after the acknowledgment thereof, be transmitted to the crown office, and filed there (q).

Removal of Summary Convictions, Orders, &c. of Justices by Certiorari.-Limitation of Time.]-" For the better preventing vexatious delays and expense occasioned by the suing forth of writs of certiorari for the removal of convictions, judgments, orders, and other proceedings (r) before justices of the peace, it is enacted (s), That "no writ of certiorari shall be granted, issued forth, or allowed, to remove any conviction, judgment, order, or other proceedings had or made by any justice or justices of the peace of any county, city, borough, town corporate, or liberty, or the general or quarter sessions thereof, unless such certiorari be moved or applied for within six calendar months next after such conviction, judgment, order, or other proceeding shall be so had or made; and unless it be duly proved, upon oath, that the said party or parties suing forth the same hath or have given (t) six days' notice thereof in writing to the justice or justices, or to two of them (if so many there be), by and before whom (u) such proceedings have been, to the end that such justices, or the parties therein concerned, may show cause, if he or they shall so think fit, against the issuing or granting such certiorari."

As to this limitation of the time for moving for a certiorari,-where an act directed justices to make an order for stopping a highway, and that it should be subsequently confirmed by an order of sessions, the period of six calendar months required by this act was calculated from the date of the latter order (x).

(9) Rules, &c. made by the judges of the queen's bench relating to crown office practice pursuant to 6 Vict. c. 20, No. 23, Introduction to Archb. Crown Off. Pract. p. li. See also ante, p. 957, as to Indictments; and p. 973 as to Judg. ments or Orders.

(r) Excluding indictments, 1 East, 298, R. v. Battams.

13 G. II. c. 18, s. 5, ante, p. 941. Semble "given" is satisfied by a service effected by a person who described himself as clerk to the attorney who had signed as attorney the notice served, Reg. v. West Riding Yorkshire (Justices), in Darton v. Bretton West, 1

The writ cannot be granted on

New Sess. C. 406; Reg. v. Darton (Inh.),
14 L. J. (M. C.) 41, S. C.; Reg. v.
Lancashire (Justices), 11 Ad. & E. 144.
See Form of Notice, p. 960.

(u) See ante, p. 941, and post, p. 962. (x) R. v. Middlesex (Justices), 5 Ad. & E. 626; S. C. 1 N. & P. 92.

A sessions began on 5th April, and made an order on an appeal against an order of removal on the 7th. On 3rd October an application was made at a judge's chambers for a certiorari to remove the order of removal, and the writ was granted on or before 7th October. Held in time, R. v. Abergele (Inh.), 1 N. & P. 235; 5 Ad. & E. 796, n. S. C.

an application made later than six calendar months from the making the order, &c. which is sought to be removed, whatever has been the cause of the delay (z), e. g. time exhausted in settling a case reserved, &c. (a).

The exceptions to this rule of limitation are, where the crown is a party, and requires the issuing of the writ; (as in case of indictments) (b), or where an order of justices being defective, it becomes necessary to remove it, to give them an opportunity of reviewing the case, in order to make a valid one; and lastly, where an order having been made in favour of a party, he is obliged to resort to this remedy in order to enforce the execution of it. The restrictions of six months for the application, as well as the notice to the justices, are dispensed with (c). A certiorari obtained within the six calendar months,

(2) R. v. Bloxham, 1 Ad. & E. 386. (a) R. v. Sussex (Justices), 1 M. & S. 631, 734; S. C. in 2 Nolan, 625.

(b) R. v. Battams and others, 1 East, 298.

(c) Form of Notice to Justices of Moving for a Certiorari.

To A. B. esq. one of her majesty's justices of the peace in and for the [or, as the case may be].

Whereas you did, on the

in the year of our Lord take the examinations of

-day of

and and upon such examinations as aforesaid [or, as the case may be] did issue your order, or did convict, &c. [or, as the case may be]. And whereas it appears that [here state the objections to the order, conviction, or other proceeding,] and moreover that the said [order, conviction, or other proceeding], was irregular and illegal, wherefore the said

being resolved to seek a remedy for the injury which he [or, they] has [or, have] received and sustained by means of the said [order, or, conviction, or other proceeding], I do hereby on behalf of the said according to the form of the statute in that case made and provided, give you notice that her majesty's court of queen's bench will in six days from the time of your being served with this notice, or as soon after as counsel can be heard, be moved on the behalf of the said for a writ

of certiorari to issue out of the said court, and to be directed to [the proper officer of the quarter sessions of the peace, if it be a record of session, or

otherwise, to the justice in whose_possession it ought to be] (R. v. Great Marlow, 2 East, 244), for the removal of [the record of, &c. as the case may be] into her majesty's said court of queen's bench. Dated, &c.

P. Q. attorney for the said

FORMS OF WRITS OF CERTIORARI. Writ of Certiorari to Two Committing Justices to Certify the Information, Examination, and Depositions, upon which a Prisoner was committed.

Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, defender of the faith, to C. D. and E. F. esquires, two of our justices (1 Q. B. 715; 2 T. R. 285), assigned to keep our peace in and for our county of —, and also to hear and determine divers felonies, trespasses, and other misdemeanours committed within our said county, and to every of them, greeting.

We being willing for certain reasons that all and singular informations, examinations, and depositions, taken by and remaining with you, or either of you, in a certain case of felony, or suspicion of felony, charged against A. B. and for which you, or one of you, have committed the said A. B. to the prison of

as it is said, be sent by you be fore us, do command you, and every of you, that you, or one of you, do send us immediately after the receipt of this our

but not used for a long time afterwards, does not therefore become invalid (d).

Notice to Justices of Motion for Certiorari.]-The object of requiring notice to the justices was to enable them to show cause in the first instance against a motion for issuing a certiorari (e). Such notice must be served six days before the day on which the rule for a certiorari is applied for (f); computing those days, one day exclusive and the other inclusive of the day of moving (g).

It is equally necessary to serve the notice as above, whether the case which the certiorari is intended to bring up, has been granted by the sessions for the opinion of the court of queen's bench (h), or whether their order has been merely irregular and void (i).

Writ of Certiorari to Remove an Indict

ment from the Quarter Sessions into the Court of Queen's Bench, and its Return.

Victoria, by the grace of God, of Great Britain and Ireland Queen, defender of the faith, and so forth. To the keepers of our peace, and to our justices assigned to hear and determine divers felonies, trespasses, and other misdemeanours committed within our county of

and to every of them, greeting. We being willing, for certain reasons, that all and singular indictments of whatsoever trespasses, contempts, and assaults, whereof G. A. and M. O. gentlemen, are indicted before you (as it is said), be determined before us, and not elsewhere, 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 the morrow of All Souls, wheresoever we shall then be in England, all and singular the said indictments, with all things touching the

same, by whatsoever name the said G. A.
and M. O. are therein called, 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
England, we shall see fit to be done.
Witness, Thomas Lord Denman, at
Westminster, the
day of
in the

year of our reign.

By the Court. As to costs, see 14 L. J. (M. C.) 24. (d) Per Patteson, J., R. v. Abergele (Inh.), 5 Ad. & E. 799. See Reg. v. Cartworth (Inh.), 13 L. J. (M. C.) 26.

(e) Reg. v. How and others, 11 Ad. & E. 159; 9 D. P. C. 501; 4 P. & D. 321, S. C.

(f) Where the notice stated an intention to move for a certiorari" on the 1st day of next term, or so soon after as I can be heard," and was served on the 1st day of the term, the rule for the certiorari was discharged, though the motion was not made till after the expiring of six days from the day of service, Flounders, Esq. in re, 4 B. & Adol. 865, Lord Denman dubitante.

(g) R. v. Cumberland (Justices), 4 N. & M. 378; R. v. Goodenough, 2 Ad. & E. 463, S. P.

(h) R. v. Sussex (Justices), 1 M. & S. 631, 734; Reg. v. West Riding Yorkshire (Justices), in Darton v. Bretton West, 1 New Sess. C. 406; S. C. 14 L. J. (M. C.) 113: overruling an argument that the grant of the special case was a consent to the issuing a certiorari, which had been apparently adopted in Reg. v. Cartworth (Inh.), 13 L. J. (M. C.) 26. (i) Reg. v. Spackman, 9 D. P. C. 1060.

The notice should state that it is given by the party intending to sue for the certiorari, and should specify who he is (j), naming him (k). The certiorari can only be issued at the instance of the party giving the notice; for if he avowedly drops the proceeding, it cannot issue at the instance of any other, though it may be too late to give any fresh notice to the justices (1). If the application for the certiorari is intended to be made on behalf of parish officers, the notice must be signed by all or at least a majority of them, and if signed by one only, and shown to the court to be unauthorized by the rest, nor signed on their behalf, it is insufficient (m). It seems it may be signed by a party who describes himself as solicitor or attorney for the parties applying for the certiorari (n).

If the notice only alleges that the justices served were “two of the justices present at the sessions at which the appeal mentioned in the notice came on for hearing," the certiorari obtained on it will be quashed (o), even though the special case has been brought up and set down for argument (p); for they may not have been in the commission of the peace when the sessions made the order (9).

Nor can this omission be supplied by issuing a fresh writ on sufficient affidavits, or by exhibiting them on showing cause, if more than six calendar months have elapsed since making the order (†).

The affidavit of service of the notice should state, that the two jus

(j) Reg. v. How and others, 11 Ad. & E. 159, &c.

(k) R. v. Lancashire (Justices), 4 B. & Ald. 289. See also R. v. Cambridgeshire (Justices), 3 B. & Ad. 887.

(1) R. v. Kent (Justices), 3 B. & Adol. 250. The six months after the making the order had elapsed.

(m) R. v. Cambridgeshire (Justices), 3 B. & Ad. 887 (as explained in Reg. v. Lancashire (Justices), 11 Ad. & E. 144, 3 P. & D. 88). See 5 Ad. & E. 796. (n) R. v. Lancashire (Justices), 4 B. & Ald. 289.

A notice more full in this particular, viz. notice of application for a certiorari to remove an order of justices relating to the gaols of M. signed by "A. & B. solicitors for W. G. a ratepayer of M." was held good; for the signature of W. G. was not required by the act, nor did the justices show that the notice so given was not authorized by W. G., Reg. v. Lancashire (Justices), in re Manchester (Borough), 11 Ad. & E. 144; 3 P. & D. 86, S. C. A notice

signed by A. B. "attorney for the present churchwardens and overseers of M. O." was held sufficient, Reg. v. Solly and another, 9 D. P. C. 115. See 14 L. J. (M. C.) 94. Again in R. v. Abergele (Inh.), 5 Ad. & E. 795, the notice was signed by the "attorney for the respondents," and no other account of it was given in the affidavit, but it was held sufficient, and the certiorari was granted. This signature, "J. B. attorney for respondents," will suffice, if appellants and respondents' names are stated and notice is given to every justice present at the hearing, Reg. v. Wilts (Justices), 9 D. P. C. 524.

(0) See 2 Nolan, 576; Reg. v. West Riding Yorkshire (Justices), in Darton v. Bretton West, supra.

(p) Reg. v. Cartworth (Inh.), 5 Q. B.