Bench held that their right to issue a certiorari to remove the conviction, even after an appeal, was not thereby taken away. R. v. Moreley, Reeve and others, 2 Burr. 1040. 1 W. Bl. 231. S. P. R. v. Jukes, 8 T. R. 542. So, where a statute creating an offence, punishable upon indictment, directed that any person charged with it should be committed to prison, "there to remain until the next general or quarter sessions, and upon conviction of the said offence at the said general or quarter sessions, shall suffer the pain and penalty of 201.:" it was argued that this, by necessary implication, confined the cognizance of the offence to the general or quarter sessions, and that the court therefore could not remove the indictment from the sessions by certiorari; but the court held otherwise, and the defendants, being tried and convicted at nisi prius before Lord Kenyon, C. J., received judgment in the court of Queen's Bench. R. v. Hube and others, 5 T. R. 542. S. P. R. v.Wadley, 4 M. & S. 508. So, where a statute made the buying of certain yarn punishable on summary conviction, gave an appeal to the sessions, and took away the certiorari by express words, and another statute, the Vagrant Act (which did not expressly take away the certiorari), made the party punishable as an incorrigible rogue; and a party being convicted of one offence under the first statute, and being for a second offence committed until the sessions by a magistrate, appealed against the conviction, which was accordingly quashed for some defect; but the sessions ordered him to be imprisoned and kept to hard labour for two years, as an incorrigible rogue, for the second offence; upon an application for a certiorari to remove those proceedings, which was resisted on the ground that the provision in the first act, taking away the certiorari, must be deemed to extend to the second act by necessary implication: the court held that, as far as the proceedings were had under the Vagrant Act, the certiorari might be awarded, but not as to such of the proceedings as were under the first act. R. v. Terrett, 2 T. R. 735. Where the 12 G. 1, c. 3, which punished cloth manufacturers by summary conviction, for paying their workmen in goods, was extended to silk manufacturers by stat. 22 G. 2, c. 27, which latter statute also created other offences, and by stat. 17 G. 3, c. 56, the certiorari is expressly taken away in all cases of offences against stat. 22 G. 2, c.27; the court held that the effect of 17 G. 3, c. 56, was to take away the certiorari only as to the offences created for the first time by stat. 22 G. 2, c. 27, but that it did not take away the certiorari as to silk manufacturers paying their workmen in goods. R. v. Rogers, 5 B. & Ald. 773. See R. v. Cock, 1 Dowl. N. C. 300, R. v. JJ. of Lancashire, 11 Ad. & El. 144. Where an act relating to appeals by overseers against the disallowance of items in their accounts, took away the certiorari by express words, this was holden not to extend to an order of sessions, upon an appeal by a parishioner against the allowance of overseers' accounts. R. v. Bird, 2 B. & Ald. 522. But where an act, which made it punishable upon summary conviction for masters to employ children in factories more than a certain number of hours in the day, expressly took away the certiorari; and a second act made other provisions and restrictions; and a third act extended the former acts to foremen as well as masters, and made other restrictions, and altered the penalties, &c., and by this last act it was enacted that all the powers, provisions, exemptions, matters, things, &c. in the former acts, should be "as good, valid and effectual for carrying this act into execution, as if the same had respectively been repeated and re-enacted in the body of this act:" Upon an application to remove a conviction against a foreman, under this latter act, the court held that the clause in the first act, taking away the certiorari, must be deemed a "provision" incorporated into the last act by the above words, and they therefore refused the writ. R. v. Fell, 1 B. & Adolph. 380. S. P. R. v. Liverpool, 3 D. & R. 273. It may be necessary to mention, however, that where the party seeking to bring an order of sessions, &c. under the review of the court of Queen's Bench, is in custody upon it, a writ of habeas corpus, and not a certiorari, is in that case the proper remedy. R. v. Bowen, 5 T. R. 156, per Lord Kenyon, C. J. But the court, it should seem, would not interfere in this manner, in a case where the certiorari is expressly taken away by statute. Indeed, where the certiorari is expressly taken away, the court will in no case interfere at the instance of a defendant. See R. v. JJ. of Rippon, 7 Ad. & El. 417. In a case where the certiorari was expressly taken away, the justices made a mistake in entering up a judgment on a verdict, and a mandamus was moved for to direct them to rectify it; but the court held that as the statute did not allow of the proceedings being removed by certiorari, they could not indirectly bring them under review by a niandamus. R. v. JJ. of Yorkshire, 1 Ad. & E. 563. So, in all other cases where the certiorari is expressly taken away by statute, the court of Queen's Bench will not interfere in any way, directly or indirectly, to enable a defendant to remove the proceedings before them, see R. v. Young, 2 T. R. 472. R. v. Casson, 3 D. & R. 136, whether there be any other mode of appeal provided by the statute or not, R. v. JJ. of St. Alban's, 3 B. & C. 698, unless indeed it appear clearly that the proceeding relate to some matter of which the justices have no jurisdiction whatever. R. v. JJ. of Somersetshire, 5 B. & C. 816. R. v. JJ. of W. R. Yorkshire, 5 T. R. 629: and see R. v. Long, 1 Man. & R. 139. R. v. The Sheffield Railway Company, 11 Ad. & El. 194. R. v. The Bristol and Exeter Railway Company, Id. 202, n. R. v. Commissioners of Cheltenham, 1 Ad. & El. N. C. 467. Even where the sessions, upon an appeal against a conviction, confirmed it subject to a case, the court of King's Bench held that no certiorari could issue to bring the case and order of sessions before them; as by a clause in the act on which the conviction was founded, it was provided that no "rate, proceeding, conviction, matter or thing" should be removed by certiorari or any other process whatsoever into His Majesty's courts of record at Westminster. R. v. JJ. of Middlesex, 8 D. & R. 117. But it has been holden, that where an indictment contains several counts, some at common law, some upon a statute by which the certiorari is expressly taken away, the defendant is not precluded, by reason of the latter counts, from having the indictment removed by certiorari; for otherwise the prosecutor, by introducing such a count, might easily deprive a defendant of the right he would otherwise have to remove the proceedings. R. v. Saunders, 5 D. & R. 611. It must be observed, however, that these clauses in acts of parliament taking away the certiorari, however general they may be in their terms, usually affect defendants only; for the general rule is, that the crown is not included in such a restriction, unless there be some clause in the act to show that the legislature so intended it Per Buller, J. in R. v. Davies, 5 T. R. 628. Therefore it has been holden that an indictment on stat. 13 G. 3, c. 78, s. 24, for a nuisance in a highway, might be removed into the court of Queen's Bench by cer-tiorari, at the instance of the prosecutor, although by the act no indictment or presentment should be removed by certiorari, until the same should be traversed and judgment thereupon given; for the court held, that it was clear, from the words, "until such indictment be traversed," that this restriction was not intended to extend to the crown. R. v. Inhabitants of Bodenham, Coup. 78. So, where an indictment for keeping a disorderly house, found at sessions, was removed into the court of Queen's Bench by certiorari, at the instance of the prosecutor, and an application was made to set aside the certiorari quia improvidè emanavit, on the ground that by stat. 25 G. 2, c. 36, s. 10, no such indictment shall be removed by any writ of certiorari into any other court, but such indictment shall be heard, tried and finally determined at the same general or quarter sessions or assizes, where such indictment shall be preferred," &c.: but as there were no words in the act showing that it was intended to extend this restriction to the crown, the court held that the above clause extended only to defendants, and did not prevent the prosecutor from removing the indictment by certiorari. R. v. Davies, 5 T. R. 626. The same doctrine was again laid down by the court of Queen's Bench, in a very elaborate judgment by Lord Kenyon, C. J., in R. v. Inhabitants of Cumberland, 6 T. R. 194, which was afterwards affirmed in the House of Lords. 3 Bos. & P. 354. So, where a statute gave an appeal to the sessions against a conviction relating to the malt duties, and provided that no writ of certiorari should be allowed or brought to set aside any order, &c. of the sessions;" and upon an appeal against such a conviction, it was quashed by order of the sessions: the court held that the crown might remove the order of sessions by certiorari, notwithstanding the above provisions of the act; and afterwards upon motion they quashed this order of sessions. R. v. Allen, 15 East, 333. And, according to the practice of the crown-office, if the attorneygeneral apply for a certiorari on behalf even of a defendant, where such a defendant is an officer of the crown, or a person whose defence the crown for any other reason takes up, the writ is always granted as a matter of course [upon the mere fiat of the attorney-general for that purpose], without any special ground being laid for it, even in cases where the certiorari is taken away by statute. 1 East, 303, n. But the rule here mentioned, is not confined to cases where the crown has an actual interest, but extends to all prosecutions, &c., in the name of the Queen. R. v. Boultbee, 4 Ad. & El. 598. Having treated of the writ of certiorari thus far generally, we shall next consider it more particularly, as used to remove indictments, convictions, orders, &c. SECTION I. Certiorari to remove Indictments. 1. At the instance of a Defendant. In what cases.] An indictment may be removed from the sessions or other inferior jurisdiction, for the purpose of making it a record of the court of Queen's Bench, and having it sent thence to the assizes for trial. But where a defendant applies for the writ, he must show, by affidavit, such reasons as will satisfy the court that it is probable the case will not be fairly or satisfactorily tried in the court in which the indictment has been found, to induce the court to grant it. R. v. Eaton, 2 T. R. 89, per Buller J. R. v. Lewis, 3 Burr. 2458, per Ld. Mansfield, C. J. 542. R. v. Wadley, 4 M. & S. 508. fendant's affidavit showed that he could not have a fair and impartial trial at the sessions, the court granted a certiorari to remove an indictment against him for felony, from the sessions. R. v. Fowls, 2 Ld. Raym. 1452. So, the court granted a certiorari to remove an indictment for petty larceny from the sessions for the borough of Colchester, upon an affidavit of the defendant, stating that he was not guilty, and that from the prejudice entertained against him by the recorder and town clerk, whose advice the mayor took in all See R. v. Hube, 5 T. R. R. v. Duchess of cases that came before him for trial, he could not have a fair and impartial trial at the sessions. R. v. Ward, 4 M. & S. 444, n. But merely showing a general prejudice as existing against the defendant, is not a sufficient ground, unless it be shown to exist in the court below. R. v. Matthews, 1 Chit. R. 571, n. and see R. v. Harris, 3 Burr. 1330. The court have granted a certiorari at the instance of a defendant, to remove an indictment for perjury from the Central Criminal Court, upon an affidavit of the defendant that some points of law would arise at the trial, the proceedings out of which the indictment arose being in Chancery, and the transactions being matters of account. R. v. Wartnaby, 2 Ad. & E. 435. See R. v. Josephs, 8 Dowl. 128. R. v. Caldecott, 3 Id. 315. Kingston, Coup. 283. But the court do not favour applications to remove indictments from the Central Criminal Court, see R. v. Templar, 1 Nev. & P. 91, particularly of cases likely to be tried before the judges. At all events, in such a case, it seems that circumstances must be stated in the affidavit, from which the court may judge of the probability of such points arising; and therefore where the affidavit merely stated that the defendant was advised that several matters of law of the greatest importance would arise upon the trial of the indictment, and that it was fit and proper it should be tried before persons learned in the law, the court refused to grant it, but allowed the defendant to renew the application at chambers if a better affidavit could be obtained. R. v. Harrison, 1 Chit. R. 571. So, where it was merely alleged that points of law would arise at the trial, the court held it to be insufficient, without showing specifically the grounds upon which the difficulties would arise. R. v. Joule, 5 Ad. & El. 539. And the court will not in general grant a certiorari to remove an indictment which is to be tried at the assizes, unless it appear very plainly that it ought to be tried by a special jury. R. v. Morton, 1 Dowl. N. C. 543. Where it was sought to remove an indictment, on the ground of its being vague, and merely charging the defendants with being common cheats, and that they had conspired to obtain goods and chattels, without saying from whom the court refused the certiorari. R. v. Brian and others, 2 Ad. & E. 436, n. As to the right to remove indictments for not repairing highways, see R. v. Inhabitants of Taunton St. Mary, 3 M. & S. 465, R. v. Bodenham, Coup. 78, or for a nuisance to a highway, see R. v. Farewell, 1 East, 305, n. Where the attorneygeneral, on the part of the crown, moved for a certiorari, to remove an indictment for murder, found at the sessions of the city of Rochester against a marine of one of his Majesty's ships, upon an affidavit of the prisoner, disclosing circumstances, from which the court might be induced to think that he would not have an impartial trial at the sessions: the court granted it, although it appeared that the court below, by their |