tices named and served were two of the justices by and before whom the appeal was heard and the proceedings had, and who made the order of sessions (t). If it appears on the motion that such notice has not been given, a rule even to show cause why a certiorari should not issue will be refused (u); and it is not too late to object to the notice, after a rule for certiorari granted and enlarged by consent (x). The affidavit should identify the party suing out the certiorari with the prosecutor named in the notice, as also the justices who made the order with those on whom the notice has been served (y). It should not be intituled in any cause, but only "in the court of queen's bench;" but after the proceedings have been removed under the certiorari, the rule is otherwise (z). The jurat must perfectly show that the oath was taken before a party properly authorized to administer it; thus if "before me" is omitted, it is bad, though a commissioner's name is subjoined (a).

If the certiorari issues before the signature of the fiat by the judge, it is irregular (b).

As to the actual service of the notice on the justices, where two justices convict, a separate notice of action must be served on each, for there is no privity between them (c).

If a magistrate present on the bench at the trial of an appeal against

(t) Ante, p. 941, Reg. v. Cornwall (Justices), 1 New Sess. C. 414; Reg. 1. Cartworth (Inh.), 5 Q. B. 201; 13 L. J. (M. C.) 26; Reg. v. Bloxham (Inh.), 1 New Sess. C. 370. It has been held that an affidavit of service of notice of certiorari under 13 G. II. c. 18, s. 5, on A. & B. " two of the justices present at the sessions at which the order was made, and who are two of the same justices whose names are mentioned in the heading or caption of the said order," was under the circumstances, sufficient as against the appellant parish, Reg. v. Sevenoaks (Inh.), 14 L. J. (M. C.) 92. Wightman, J., is reported to have held it sufficient to state that the justices named and served were severally present at the hearing of the appeal, Reg. v. Cornwall (Justices), but quære.

(u) R. v. Sussex (Justices), 1 M. & S. 631, 734; Flounders in re, 4 B. & Ald. 865; R. v. Glamorganshire (Justices), 5 T. R. 279.

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

(y) Reg. v. How and others.

(z) Ante, p. 954, 955, and see p. 952. (a) Reg. v. Bloxham, 2 D. & L. 168;

13 M. & W. 519.

(b) Reg. v. St. Mary, Whitechapel (Inh.), 12 L. J. (M. C.) 85. The sessions made an order subject to a special case. The affidavit to obtain the certiorari was sworn before a commissioner within the six months, no judge being in town, and certiorari issued, but the judge did not sign the fiat till the next day-which was after the six months. Quare whether the certiorari was "moved and applied for" within six months within 13 G. II. c. 18, s. 59 ?

(c) See Reg. v. Bedfordshire (Justices, in re Foster), 11 Ad. & E. 134, on sect. 105 of 5 & 6 W. IV. c. 50, new highway act, Reg. v. Cheshire (Justices), 11 Ad. & E. 139; 1P. & D. 32, on alehouse licensing act, 9 G. IV. c. 61, s. 27, ante, where the word is justice in the singular.

Trespass against two justices and a constable for taking goods under a joint distress warrant of the justices sued. A separate notice of action had been served on each defendant. Objection that as the distress warrant was the act of two, the notice should have been joint, thus enabling them to tender joint amends. Alderson, B., overruled it, saying that if

an order of removal was a rate-payer in the respondent parish, but stated that he should not vote or take part in the proceeding, it seems that service on him of notice of intending to apply for a certiorari is insufficient (d).

What Recognizance is necessary for Removing a Judgment or Order by Defendants.]-By 5 G. II. c. 19, s. 2, no certiorari shall be allowed to remove any judgment or order, unless the party prosecuting such certiorari before the allowance thereof, shall enter into a recognizance, with sufficient sureties, before a justice of the county or place, or before the justices at sessions, where such judgment or order shall have been made or granted, or before a justice of the king's bench, in 50l. with condition to prosecute the same, at his own costs and charges with effect, without wilful delay, and to pay the party in whose favour such order was made, within one month after the said order shall be confirmed, their full costs and charges (e) according to the course of the court. And if he shall not enter into such recognizance, or shall not perform the conditions, the justices may proceed and make such further order, in such manner as if no certiorari had been granted.

As to filing this recognizance in crown office, see ante, p. 959. This enactment does not apply to prosecutors under penal acts, but to defendants only (f). The recognizance entered into must be a single one for an entire sum of 501., and if a defendant and his sureties enter into recognizance for two sums of 251. each, it is bad (g). But where a parish prosecutes a certiorari in order to remove an order of sessions, it is sufficient if the recognizance required by 5 G. II. c. 19, s. 2, is entered into by any inhabitant on behalf of the rest of the parish, with two inhabitants sureties in a joint sum of 501. (h).

a joint notice had been given, the plaintiff could not have brought a separate action against each magistrate, as he might have done under the separate notice. Verdict for plaintiff, Selwood v. Mount and another.-MSS. Tyr. This objection was not renewed on the motion for a new trial.

The notice was left in a letter-box in the door of the chambers of a justice in Lincoln's Inn on the last day but one allowed by the act. Some time afterwards the justice acknowledged he had duly received it within the allowed time, as appeared by affidavit made subsequent to the granting the certiorari. The service was held proper and duly proved, Reg. v. St. Mary Whitechapel (Inh.), 13 L. J. (M. C.) 85.

(d) Reg. v. Herefordshire (Justices), 1 New Sess. C. 413, n.

(e) See Reg. v. Latchford (Inh.), post. (f) Reg. v. Spencer, 9 Ad. & E. 485; S. C. nom. Spencer, ex parte, 1 P. & D. 358; conviction quashed by order of quarter sessions, which order was removed by original prosecutor into Q. B.

(g) R. v. Dunn, 8 T. R. 217; and see 5 Ad. & E. 798.

(h) R. v. Abergele (Inh.), 5 Ad. & E. 795. But though the certiorari had issued on a recognizance insufficient on this account, the court would not quash the writ, but only the allowance, and enlarged the return to the writ, sending it back to sessions that it might be duly allowed after the parties prosecuting it had entered into recognizance, S. C.

Recognizances on Indictments removed by Certiorari.]-Where one of several defendants has removed an indictment by certiorari, under 5 & 6 W. & M. c. 11, s. 2, (ante, p. 956,) and has entered into a sufficient recognizance alone, a procedendo will not be awarded (k). The new act 5 & 6 W. IV. has made no difference herein (1), nor will the court impose terms on the defendant as to the time of proceeding to trial (m).

As to preliminary affidavit and security before issuing any writ of certiorari to remove any county rates, made in pursuance of the statute, or any orders or proceedings of the general or quarter sessions touching such rates, see 12 G. II. c. 29, s. 21.

The Return.]-If there be any variance between the description in the certiorari of the matters sought to be removed, and the record, the justices are not obliged to remove such record (n): e. g. if it be directed to the justices of a county, where in fact they are only the justices of a division, or liberty, or other portion of a county, or of a city or borough within that county; or if any other materially erroneous description of person, or place, or previous proceeding occur in it. If the writ be for the removal of the indictment only, it will not be sufficient to remove the whole record after conviction (o). Some things, however, are considered immaterial, and, in these, trifling errors will not vitiate, e. g. in the mis-spelling of a surname, or in giving the name of a person without any addition (p). But a wrong christian name, or a gross error in the number of the defendants, or in the addition of rank or title will be fatal (q).

The writ, when it is issued to remove any recognizance, or when the defendant is in custody, is signed by a judge of the court from which it issues; but in other cases, only the fiat for its issuing is so signed (r). The record itself, or the tenor of it, according to the directions of

(k) R. v. Newton and others, 2 N. & P. 121. Semb. the prosecutor of an indictment who removes it must himself enter into recognizance; R. v. Boughey, 4 T. R. 281; as to which case see the report by the crown officers in 5 Ad. & E. 797.

(1) R. v. Boxall and others, 4 Ad. & E. 513.

(m) R. v. Hunt, 6 D. P. C. 5. (n) Dalton, Chap. 159; Burr. Set. C. 112. But when a case comes on to be argued in Q. B. it is too late to object that the order or document brought up in return to the certiorari differs from

that required by that writ, the proper course being, to have moved before argument to quash the return, Reg. v. Fordham (Inh.), 11 Ad. & E. 73; 3 P. & D. 95, 100; qu. however R. v. Bird, 2 B. & Ald. 524, ante, seems contra. See also R. v. Uske, ante.

(0) Hawk. B. 2, c. 27, s. 80, et seq.; 1 Salk. 145, 264.

(p) Hawk. B. 2, c. 27, s. 86, et seq.; Cro. El. 172.

(q) Hawk. B. 2, c. 27, s. 86, et seq.; Cro. El. 172.

(r) Hawk. B. 2, c. 57, s. 40.

the writ on the circumstances of the case, must be returned; and that without any extraneous matter, or explanation (t).

On non-compliance, a rule issues for the return, and, on disobedience, an attachment (u); but the writ is of no effect unless delivered before the time for its return has expired (x).

And the return must always be on parchment, for a return on paper has been held to be irregular (y).

The writ, if directed to the session, is usually returned by the chairman of the day; if to individual magistrates, by those to whom it is directed. The return should be under the seal of an inferior court, if to any such directed; but if to any court not having a common seal, under the seal of the person making the return (z).

A recognizance taken by a justice of peace ought to be certified by such justice only, till it be made a record of sessions; after which it shall be certified in the same manner as the other records of sessions (a).

And upon a certiorari to remove a conviction by a justice of the peace, a return that the record is returned to sessions, and that a copy is annexed to the writ, is sufficient; because justices ought, in all cases, to return convictions to sessions (b).

The return to a certiorari, for the removal of an indictment, ought to have the clause, " and also to hear and determine divers felonies," &c. in the description of the justices who make the return, whenever such clause is necessary in the caption of the indictment, as for riots, forcible entries, and the like (c).

Practice.]-The writ of certiorari, as has been observed, issues from the crown office, and enough has been introduced respecting its form, so far at least as is necessary to be inserted here. The attorney for the party applying for it, or receiving it, if it be directed to a session respecting an order, carries it, together with the recognizance to prosecute, to the clerk of the peace, who draws up on parchment a record of the order, in conformity to the entries made in the sessions book. If the subject matter be a poor-rate, then, as the rate itself cannot be removed, the entry of appeal must include the title of the rate, and the allowance by the justices.

(t) See as to the distinction in this respect between certiorari and habeas corpus, Hetherington v. Reynolds, Fortesc. R. 269.

(a) R. v. Battams, 1 East, R. 298. (x) R. v. Rhodes, Keb. 944; Hawk. B. 2, c. 27, s. 59.

173.

(y) R. v. Stow Bardon, Cas. t. Hardw. See R. v. Gunston, Stra. 583. (z) Hawk. B. 2, c. 27, s. 65; Cald. 297.

(a) Cro. Jac. 669.

(b) R. v. Eaton, 2 T. R. 285.
(c) Hawk. B. 2, c. 27.

Return to a Certiorari for removing an Indictment.]-The return to a certiorari for removing an indictment, may be made in the following manner, on a distinct piece of parchment.

First, on the back of the writ, write the following words:

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

Then write on the schedule the Caption of the indictment thus :Berkshire And so on as given, ante, p. 71, as far as the word presented incluto wit. sive; and then add, "in manner and form as appears in a certain indictment annexed to this schedule."

G. B. Morland, Clerk of the Peace for the said county.

This is not put on the files of the court of quarter session, and is annexed only on removal. To this schedule is annexed the record of the indictment, which is to be copied at length (e) and are both remitted together.

Return to Certiorari of an Order of Sessions confirming a Conviction, or relating to an Appeal (f).]—The return to a certiorari for removing a judgment on a conviction may be as follows:

Return of Order of Sessions confirming Conviction (g).

At the general quarter sessions of the peace of our lady the Queen, held at in and for the said county, on in the first week after the -, to wit, on the

day of

in the year of our Lord

" and in the

year

of the reign of our sovereign lady Victoria, before M. N., O. P., &c. justices of our said lady the Queen, assigned to keep the peace of our said lady the Queen in and for the county of and also to hear and determine divers felonies, trespasses,

and other misdemeanours committed within the said county.

Whereas by a conviction or judgment, bearing date the ---- day of

in

the year under the hands and seals of, &c. thereby setting forth, &c. [set out the whole of the conviction in the third person, and in the past tense]. And whereas he the said C. D. [the person convicted] did appeal against the said conviction or judgment, to the then next and now last court of general quarter sessions of the peace, held at in and for the said county of -on- day,

the day of January, in the year, &c. when the said appeal was ordered to be continued to this present sessions, and of which said order of continuance the said A. B. [the prosecutor] had ten days' notice previous to this present sessions. Now,

(d) An erroneous statement of the style of the sessions, when an indictment is thus removed, is a sufficient cause for quashing it, R. v. Roysted, 1 Lord Ken. 255. See 3 Burn's J., 28th ed. 413.

(e) Faulkner's case, 1 Saund. 248, n.

Carthew, 223.

(f) See as to form in case of appeal, 11 Ad. & E. 73; Reg. v. Fordham, 13 L. J. (M. C.) 162; Reg. v. St. Olave, Southwark.

(g) 4 Ch. Cr. L. 257.