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first, that they are not compellable to grant a special case, if they entertain no doubt whatever of the law: and therefore, though it is certainly, in point of candor, right to comply with the request of either of the litigant parties by doing so, where any reasonable doubt on the subject is sug. gested, they will best consult the interests of the public by refusing it where they believe the application to arise out of mere obstinacy, or a spirit of litigation. Secondly, that their authority to judge of the law, is the only one which

in these cases they reserve for the superior court; whence The facts it follows, that the

facts make no part of the subject matter, on which the court above are to exercise their discretion, and therefore, having been found by the justices, they must be specifically stated in the case, and not the evidence from which they were deduced.* A very few examples may suffice for illustration. On an appeal respecting a pauper's settlement, where the question depends on an equivocal hiring, or a doubtful service for a year, the fact is to be deduced from the evidence, such as it may be, one way of the other, by the justices; and not the evidence, from which they draw their conclusion, stated.t So, whether a master gave a particular consent to his apprentice to serve a third person, is a matter of fact, which, let it resto testimony ever so ambiguous, must be found, and not let doubtful on the face of the statement. I So in a question of settlement by residing on an estate, the session must state the interest which the pauper took, whether he came in by descent, or by purchase; and if the latter, the price of such purchase; that it may appear on the face of the statement,

that it was such a purchase as will confer a settlement. Fraud is a fact.

Fraup is a fact. This, therefore, like all other matters of fact, if it make any part of the case, to influence the opinion of the justices, must be specifically found by then, and stated accordingly; for it is not enough to state such evidence, though clearly leading to the most palpable conclusion of fraud, for the court above to draw such code

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Cases have happened where the conclusion of fact drawn by the session, and the circumstances from which the inferences were deduced, have both been stated. Such a practice leads to this inconvenience; viz. that it leaves the question open for the court above to draw a different conclusion from that which the justices in session drew, and that without the same means of appreciating the credibility of testimony.t The objection, however, to this mode of stating both the evidence and the inference drawn from it, rests entirely on the inconvenient results from so doing, for there is nothing contrary to law or propriety in so doing; and there may arise occurrences in which the justices may even desire to be informed if they have drawn a right conclusion from the evidence stated.

Having seen the methods, by means of which the justices Certiorari, in session may voluntarily refer points of difficulty to be decided by a superior authority, we come lastly to the compulsory process of certiorari, by means of which the parties interested may, under certain defined restrictions, remove subjects cognizable by all inferior jurisdictions into the superior courts at Westminster. The removal of such, from the courts of quarter session, into that of the king's bench, is all, with which we have any concern at present. This writ may be obtained at any time before trial to certify and Reasons for it. remove the proceedings, an it is usually done for one of the following purposes. 1st, To consider, and determine the validity of appeals, or indictments, and the proceedings thereon; and to quash, or confirm, them as there may be cause. 2dly, Where it is surmised that a partial or insufficient trial will probably be had in the court below. 3dly, In order to plead the king's pardon. 4thly, To issue process of outlawry against an offender, in those cases where the process of the inferior court will not reach him. I It requires no special case to authorize this writ, for it is a consequence of all inferior jurisdictions of record, to have their proceedings removable for the purpose of being reviewed by the court of B. R.Ş No writ of error lies on

* i T. R. 458.-7 T.R. 105. + Burr. S. C. 57. 171. 14 Black. Com. 321.

§ Ante, p. 616.

summary convictions, and therefore this writ of Certioreri is the only mode by which such revision can be obtained." So necessary has it been considered for the furtherance of justice, that it cannot be taken away but by the express words of a statute; and no expressions, however strong, which only lead to an inference, however plain and legitimate, that the certiorari was designed to be taken away, will have that effect. This has been repeatedly decided. And even where a statute do in express terms declare that the proceedings shall not be removed by certiorari, even this will not be sufficient to prevent its issuing at the suit of the prosecutor; for he stands in the place of the crown, and can have no interest on applying for this writ

for the purposes of delay. I Supersedes all Such writ of certiorari, when issued and delivered to the the proceedin. inferior court for removing any record or other proceedferior court. ing, as well upon indictments, as otherwise, supersedes

the jurisdiction of such inferior court, and makes all subse quent proceedings entirely erroneous and illegal; unless the court of king's bench remand the record to the court below, to be there tried and determined. It

may

be granted, generally speaking, either at the instance of the prosecutor, or defendant; the former as a matter of right, the latter as a matter of discretion; and therefore it seldom granted to remove indictments from the justices of gaol delivery; or after issue joined, or confession of the fact, in any inferior court. The effect of it is to remove all the proceedings described in it, and the justices are bound to obey, on the production of it to them when sitting in their judicial capacity, and that, although it should have been issued irregularly and improperly.|| But if it be for the removal of an indictment before the justices in session, and be not delivered till after the jury have been sworn for the trial of it, the justices may proceed on it, and may set a fine to complete their judgment.**

Paley, 212. + 2 Burr. R. 1040.-1 Barnard, 245.-Cowp. 523. 3 T. R. 522.-5 T. R. 542.

Paley, 215.-15 E. R. 341. § 2 Hawk. 287.-4 Burr. R. 749. Il Crom. 129. ** 2 Lord Raym. 1515.

ceedings of

courts.

This writ may be granted to remove convictions from Removes proindividual magistrates, as well as proceedings from the

individuals ar court of session. If the justice, to whom it is directed, die well as of with the recognizance, verdict, or conviction, in his possession, the writ may go to his executor, who must return the record.

Having given this general description of this writ, it remains to be noticed more particularly, when and how, it is to be obtained, and the forms observed in the return.

It is a general rule that the king has a right in every case When grantin which the crown is a party, to demand a certiorari, and the able. court are bound to grant it. * And even though an act of parliament take away the certiorari in express words, the crown is an exception, and shall not be construed to be included in the general restriction, unless there be words in the statute which shew a specific intention in the legislature that it should be so.

The Court of B. R. will not grant this writ for the removal of a conviction before justices of the peace, unless : the party applying for it show some probable ground that

injustice has been, or will be, done below; in which case it will be granted : + nor, generally speaking, for any indictments for offences, the heinousness or frequency of which, require all possible discouragement, unless a very strong ground be laid for it, as on an affidavit that a fair trial cannot be had below; f or that the question has some special circumstances involved in it, which require some species of attention out of the ordinary course: nor to remove proceedings from a jurisdiction of superior eminence, as from any court wherein any of the judges of the land preside; nor even from the Middlesex sessions, because they are entrusted with a commission of oyer and terminer, like the judges of assize.J If an application be made for this writ, on account of special circumstances, by affidavit, the following may be sufficient illustration of the general form of such an one.

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Affidavit in In the King's Bench. support of ap- A. B., of, &c. gentleman, maketh oath and saith, that at the plication by last general quarter sessions of the peace, holden in and for the defendant, for county of L., a bill of indictment was preferred and found remove an io. against the inhabitants of the parish of W., in the said county, dictinent from for a nuisance in not repairing a certain common King's highway, sessions, for leading from ...... in the said county of L., towards and unto not repairing the town of H. in the county aforesaid, from a place called..., bighway.

opposite, &c. containing in length three quarters of a mile, and in breadth thirty feet, extending from thence in a northern direction as far as W. church, in which said indictment it is alledged that the inhabitants of the parish of W. aforesaid, ought to repair and amend the said King's common highway, when and so often as it shall be necessary; and the deponent saith, that the right or title to repair said highway will come in question upon the trial of the said indictment as this deponent is advised and verily believes; and the determination of the said indictment may materially affect four other parishes similarly circumstanced, by reason of an act of parliament passed in the ...... year ei his present Majesty's reign, entituled “ An Act,” &c. And this deponent further saith he is advised, and believes that it will be proper, to have the said indictment tried by a special jury, and absolutely necessary that the jury before whom the said indicment is tried, should, previous to the trial thereof, view the said highway, which special jury the defendants cannot have the benefit of at the quarter session of the peace.

A poor rate cannot be removed by Certiorari, on account of the inconvenience that would ensue to the poor by the delay; but all the orders of justices relating to it may be

removed. * Not granted so

A rule has obtained in B. R. not to grant a Certiorari to as to prevent remove orders of justices from which appeals lie to the an appeal. sessions, before the matter be determined on such appeals

, because it would take away that privilege: but if the time for appealing be expired, the objection no longer exists. And this rule only extends to abridge the authority of the court in cases where the right of appeal is limited to a particular time, as to the next quarter session; but where there is no restriction as to time, the rule does not apply, for otherwise the order could never be removed. I

It has also been determined that where, by the words of

* 2 T. R. 355.-Doug. R. 116. + Salk. 147.

Cald. Ca. 172

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