The return is thus made: first indorse upon the writ these words: "The execution of this writ appears in certain schedules to this writ annexed. The answer of R. B., esquire, one of the justices assigned to keep the peace in and for the county of -"]. Then write a schedule on parchment, in this form: "County of to wit: I, R. B., esquire [chairman of the quarter sessions of the peace for the said county of· and], one of the justices of our sovereign Lady the Queen assigned to keep the peace in and for the said county, and also to hear and determine divers felonies, trespasses and misdemeanors in the said county committed, by virtue of this writ to me delivered, do under my seal [for myself and other the justices assigned to keep the peace in and for the said county] humbly certify unto her Majesty, in her court of Queen's Bench, the [indictment] of which mention is made in the said writ, together with all things touching the same. Given in the said county, the at, in the day of year of the reign of Queen Victoria. Then engross upon parchment a caption of the indictment to be removed, and annex the indictment to it. And these, together with the defendant's recognizance, being annexed to the certiorari, all are forthwith transmitted to the crownoffice and filed there. It is not necessary that the return should be under seal, R. v. Pickersgill, Cald. 297. Atkinson v. R. in error, 3 Bro. P. C. 517, although it usually is so. Procedendo.] If the certiorari have been irregularly obtained, or obtained on a false or fraudulent statement, or if the recognizance have not been properly taken, or if the defendant have not complied with the conditions of the recognizance, the prosecutor may apply to the court, or in vacation to a judge by summons, for a writ of procedendo. If the rule or order be obtained, sue out the writ at the crown-office; and the indictment will thereby be sent back to the clerk of the peace or clerk of assize, with orders to the justices to proceed thereon. Writ of Procedendo. VICTORIA, &c. To- [as in the certiorari] and to every of them, greeting: Whereas by our writ we lately commanded you, and every of you, for certain reasons, that you should send under your seals, or the seal of one of you, before us at Westminster, at a certain time now past, all and singular indictments of whatsoever [misdemeanors] whereof J. N. was indicted before you, as was said, with all things touching the same, by whatsoever name the said J. N. should be called therein, together with the said writ to you directed, that we might cause further to be done thereon what of right and according to the law and custom of England we should see fit to be done: We do now for certain reasons, command you and every of you, that you do wholly supersede whatever is to be done concerning the execution of that our said writ; and that you proceed to the determination of the [misdemeanors] aforesaid, with that expedition which to you shall seem right, and according to the law and custom of England, notwithstanding our writ as before sent to you directed for that purpose. Witness, Thomas Lord Denman, at West minster, the [the day on which the Process, appearance, plea &c.] The certiorari being returned and the indictment filed, the defendant may, if he will, appear and plead voluntarily, or he may wait until he shall be called upon by the prosecutor to do so. The same process, precisely, lies upon an indictment removed by certiorari, as upon one found in this court. See ante, p. 43. But this is never resorted to in practice, as the prosecutor has a much readier remedy upon the defendant's recognizance, to enforce an appearance and plea. For this purpose, obtain from the crown-office a side-bar rule to appear, plead and try, according to the conditions of the recognizance, and serve it upon the defendant or his attorney; and if he do not enter an appearance before the expiration of the rule, then, upon an affidavit of service of that rule, you may move for a rule to estreat his recognizance, or for a procedendo. See, as to the appearance, ante, p. 55. If at the expiration of the rule, the defendant have entered an appearance, but have not pleaded, then you may obtain from the crown-office, either in term or vacation, a side-bar rule to plead, and serve it on the defendant or his attorney; and if the defendant do not plead within ten days after service, you may sign judgment at the opening of the office on the morning of the eleventh day, unless an order of the court or a judge, extending such time, shall have been obtained and served, and in such case judgment shall not be signed until the day after the expiration of the time granted by such order. Reg. ss. 16, 18.. See ante, p. 56. The defendant pleads either not guilty, or guilty, which are merely entered in the book at the crown-office. Or (in the case of indictments for the non-repair of roads or bridges), he pleads a special plea, which is filed at the crown-office, and a copy served upon the prosecutor's attorney. If the plea be special, it must be signed by counsel. See the forms, ante, p. 60, 61. Trial, &c.] The defendant is bound by his recognizance to proceed to trial at a particular time. And if he do not give notice of trial accordingly, and do not proceed to trial within the time prescribed, then, on an affidavit of the fact, and of service of the rule to appear, plead and try, you may move for a rule nisi to estreat his recognizance. This however cannot be done, where the trial has merely stood over by order of court, or by the consent in writing of the parties, or by reason of the indictment being made a remanet. Reg. 24. And in cases where it may be done, the rule nisi will in general be discharged upon a peremptory undertaking to try at the next sittings or assizes. The defendant must also make up the nisi prius record, get it sealed and passed, enter it for trial with the marshal,-sue out jury process, tested and returnable as ante, p. 75, get it returned, and annex it to the record,-and get the warrant of nisi prius signed by the attorney-general,—in the manner mentioned ante, p. 70, &c. All this may be done also by the prosecutor, whether the defendant do it or not. And if either party, having given notice of trial, fail to proceed to trial, without countermanding his notice in time, he will be liable to the other for the costs of the day, as mentioned ante, p. 68. See R. v. Watton, 4 Car. & P. 229. R. v. Bartrum, 8 East, 269. The venire is returned by the sheriff's deputy in town; the distringas by the undersheriff in the country. The form of the nisi prius record is the same as that ante, p. 70, except that after setting out the indictment you say "which said indictment our said Lady the Queen, afterwards, for certain reasons, caused to be brought before her, to be determined according to the law and custom of England." The mittimus (when necessary) and warrant of nisi prius are the same as the forms ante, p. 73, 75; and the jury process, the same as ante, p. 78, 79. If the prosecutor be aware of the indictment having been removed, the notice of trial may be the same as the form ante, p. 70, except that instead of "at the sittings," &c., you say at the next assizes to be holden for the county of in the same county." But if he do not know of it, or if it be doubtful whether he know of it or not, the form may be thus: 2 at In the Queen's Bench. Surrey. The Queen v. A. B. [and others.] Take notice that the indictment found against the above-named defendants at the last [sessions] holden at in the county of on the day of -, for certain [misdemeanors] is removed by writ of certiorari, at the instance of the said defendants into Her Majesty's court of Queen's Bench at Westminster; and that they have appeared and pleaded not guilty thereto, and will try the issue thereupon joined at the next assizes to be If the prosecutor of the indictment be not known, notice must be given to the witnesses whose names are on the back of the indictment. In all this, care must be taken, particularly if the indictment have been found at the sessions for a borough, that the jury process, &c., be directed to the sheriff of the proper county. See R. v. Mitchell et al., 2 Ad. & El. N. C. 637. The witnesses are subponed, and the trial had, in the manner described ante, p. 80, 95. Trial in adjoining county.] By stat. 38 G. 3, c. 52, s. 1, in every indictment removed into his Majesty's court of King's Bench by writ of certiorari, and in every information filed by his Majesty's attorney or solicitor-general, or by leave of the court of King's Bench, if the venire in such indictment or in.. formation be laid in the county of any city or town corporate, it shall and may be lawful for the court of King's Bench, at the prayer and instance of any prosecutor or defendant, to direct the issue or issues joined in such indictment or information to be tried by a jury of the county next adjoining to the county of such city or town corporate, and to award proper writs of venire and distringas accordingly, if the said court shall think it fit and proper so to do. A rule for this purpose is obtained at the crown-office, merely upon counsel's signature; and a suggestion to the like effect is afterwards entered on the nisi prius record, before the awarding of the venire. In cases not within this statute, also, an application may be made by either party, for leave to enter a suggestion, to have the trial in another county, as mentioned, ante, p. 66. Postea, judgment, &c.] The party entitled to postea, must get the record of nisi prius from the associate, and indorse the postea upon it, if he have not done so; see the form, ante, p. 95. And if the defendant have been convicted, he will afterwards be brought up for judgment, and sentenced, in the manner mentioned, ante, p. 101, &c., if not sentenced by the judge immediately after the trial. See ante, p. 103. In the case of road indictments, however, if the defendants be found guilty, or plead guilty, or allow judgment to pass against them by default, formerly the practice was to sue out writs of distringas ad infinitum, see the form, ante, p. 114, until the defendants obtained a certificate of two justices that the road was in perfect repair; and then judgment was given usually for a nominal fine. But the more modern practice is, for the prosecutor to pray for judgment, and that a fine be imposed sufficient to put the road in repair, upon proper affidavits of surveyors, &c.; then a rule nisi for such fine is granted, and is enlarged from term to term, whilst the defendants proceed to put the road in repair, and until they procure a certificate as above mentioned. Costs.] By stat. 5 & 6 W. & M. c. 11, s. 3, "if the defendant prosecuting such writ of certiorari, be convicted of the offence for which he was indicted, then the said court of King's Bench shall give reasonable costs to the prosecutor, if he be the party grieved or injured, or be a justice of the peace, mayor, bailiff, constable, headborough, tithing-man, churchwarden, or overseer of the poor, or any other civil officer, who shall prosecute upon the account of any fact committed or done that concerned him or them as officer or officers to prosecute or present, which costs shall be taxed according to the course of the said court; and that the prosecutor for the recovery of such costs shall, within ten days after demand made of the defendant, and refusal of payment, on oath, have an attachment granted against the defendant by the said court for such his contempt; and that the said recognizance shall not be discharged, till the costs so taxed shall be paid." It will be perceived that the statute does not limit the costs to the amount for which the recognizance has been given: whatever the amount of the taxed costs may be, the prosecutor is entitled to his remedy by attachment for them; R. v. Teal, 13 East, 4; or he may move to estreat the recognizance, and recover to the extent of the amount thereof, at his option. R. v. Hawdon et al., 1 Ad. & El. N. C. 464. And the prosecutor is entitled to all the costs incurred by him since the removal of the indictment, even the costs of conveying the defendant to prison in execution of sentence; R. v. Gilbie, 5 M. & S. 520; but not to costs previously incurred. R. v. Passman, 1 Ad. & El. 603. If the prosecutor die after the costs are taxed, though before any demand made of them, his executors will be entitled to them. R. v. Chamberlayne, 1 T. R. 103. And if the defendant die after verdict, although before judgment, his sureties will be liable for the costs, to the extent of the recognizance. R. v. Finmore, 8 T. R. 409. R. v. Turner, 3 B. & C. 160. But in all other cases the prosecutor is not entitled to costs, until judgment has been pronounced, and consequently not where judgment is arrested. R. v. Turner et al., 15 East, 570. To be entitled to costs under this statute, the party apply. ing must be the actual prosecutor, that is to say, he must prosecute the indictment at his own expense. And on the other hand, it is not sufficient of itself that a party has prosecuted the indictment at his own expense; this alone does not make him a party grieved or injured within the meaning of the statute. R. v. Incledon, 1 M. & S. 268. Therefore, if the prosecution have been carried on by subscription, the nominal subscribers are not parties grieved, within the meaning of the statute. R. v. Cook, 1 Man. & Ry. 526. So, where the defendant was prosecuted for a libel on the governor of a workhouse, and the prosecution was carried on by orders of the select vestry of the parish at their expense, it was holden that he was not liable for costs. R. v. Dewhurst, 5 B. & Ad. 405. So, where the defendant was prosecuted for an assault upon a watchman, and the prosecution was carried on by order and at the sole expense of certain paving and |