In other cases.] The several Acts of Parliament for making railways and other public works, usually contain provisions for awarding compensation to the owners and occupiers of property taken for the purposes of the works, or affected or injured thereby. The provision usually made, is, by requiring the proprietors of the railways or works, upon request of the owner or occupier of the property, to issue their precept to the sheriff of the county, to summon an inquest or jury, to assess the compensation to the party injured. And if there be any defect on the face of the inquisition, or if it appear that the sheriff or the proprietors have in any manner acted beyond the authority given to them by the particular statute under which they act, the court may grant a certiorari to bring up the inquisition, for the purpose of quashing it, in order that a regular and correct inquisition may be taken. See R. v. The Trustees of the Norwich and Watton Road, 5 Ad. & El. 563. And if the objection be to the form of the inquisition, a copy should be set out in the affidavits on which the rule is moved, or it should be sworn that the deponent could not procure a copy, and then to swear on information and belief; it is not sufficient to say that he "objects" that the inquisition does not contain certain requisites pointed out. R. v. Manchester & Leeds Railway Company, 8 Ad. & El. 413. But where a statute directed that a railway company should not take lands, unless such as were set out in a schedule to the act, or should be certified by justices to have been omitted by mistake, it was holden not to be sufficient to show that the lands, which were the subject of the inquisition, were not in the schedule, without negativing the fact of their being certified by justices, even although it were also stated generally that the act did not authorize the taking of the lands. Id. In all cases, however, even where there are fatal defects upon the face of the proceedings, it is entirely in the discretion of the court, whether they will grant the certiorari or not. Id. And the court will take into consideration even the conduct of the party applying, in determining whether they will grant the writ. Therefore where a certiorari was applied for to bring up an inquisition taken by a compensation jury, on the grounds, 1, that the inquisition did not state such a notice to treat for compensation as was required under the act, in order to give jurisdiction: 2, that the jury had ordered a fence to be erected for the benefit of the applicant, in addition to a money compensation, instead of giving the whole compensation in money; 3, that the applicant held in right of his wife, and that the tenure was copyhold, and no compensation was awarded to the wife or lord: but it appeared by affidavit on the other side, 1, that the applicant had agreed to waive the notice to treat, and had requested the jury to be summoned for a day too soon to admit of proper notice being given under the act; 2, that he had discussed the amount of the compensation proper to

be given, upon the supposition of the fence being erected for him; 3, that he did not now swear that the jury had awarded less money in consequence of the award of the fence; 4, that in the dispute in regard to the land, he never mentioned his wife's interest, or the nature of the tenure, but had acted throughout as if the property were his own freehold: the court held that under these circumstances they were warranted in refusing the certiorari. R. v. South Holland Drainage,

8 Ad. & El. 429.

But the court will not grant a certiorari to bring up a poorrate; R. v. JJ. of Middlesex, 9 Ad. & El. 540. R. v. Uttoxeter, 1 Bott. 292. R. v. King, 2 T. R. 235; or, a warrant of distress to levy a poor-rate; Exp. Taunton, 1 Dowl. 54; or a land-tax assessment; R. v. King, 2 T. R. 234; or, the proceedings out of a court-leet, to inquire into the propriety of an amerciament, when the fine has been estreated and paid; R. v. Ritson, 2 T. R. 184; or, an information before justices. R. v. Jukes, 8 T. R. 625. Nor, will the court grant a certiorari to remove an appointment of surveyors of a highway; R. v. JJ. of St. Alban's, 3 B. & C. 698; the remedy being by appeal. And in one case, for the same reason, they refused to grant the writ to remove an appointment of overseers, even upon a suggestion that it was made from improper or corrupt motives; R. v. JJ. of Somersetshire, 1 D. & R. 443; but it has since been often done. See R. v. Standard Hill, 4 M. & S. 378.

CHAPTER II.

Writ of Error.

SECTION I.

Writ of Error from Inferior Courts to the Court of
Queen's Bench.

In what cases.] After judgment given against a defendant upon an indictment at sessions or the assizes, if the indictment be bad in substance, or the judgment be erroneous, or any other defect in substance appear upon the face of the record, the defendant may have the judgment reversed by writ of error; or where his property, real or personal, is forfeited by the judgment, the writ of error may be brought after the death of the defendant, by his heir or personal representative respectively. See 2 Bac. Abr. Error, A. 1, 2. And in ordinary cases, it is the only way in which the judgment can be reversed. Rice's Case, Cro. Jac. 404. R. v. JJ. of W. R. Yorkshire, 7 T. R. 467. 9 Vin. Abr. Error, D. But if the judgment

be given by persons who have no jurisdiction in the matter, as where a commission authorizes an indictment to be taken before A, B, C, and twelve others, and by colour thereof the commissioners proceed on an indictment taken before eight persons only, there the books say that the judgment may be falsified, by showing the special matter, without writ of error, because it is void; 3 Inst. 231. 2 Hawk. c. 50, s. 3. 4 Bl. Com. 390, 391; which appears to me to mean, that upon the record being brought before the court of Queen's Bench by certiorari, that court, upon a statement of the special matter on affidavit, uncontradicted, will quash the whole proceeding. Or, if such matter appear upon the face of the record, the judgment may be reversed upon writ of error. 2 Bac. Abr.

Error, A. 1.

But judgment must have been given, otherwise a writ of error will not lie. And therefore formerly, when a man was indicted for felony and found guilty, and he prayed his clergy, which was allowed to him, he could not afterwards have a writ of error; for he was convicted only, not attainted. Long's Case, Cro. Eliz. 489; 2 Bac. Abr. Error, A. 2; Vin. Abr. Error, C.

And the judgment must have been upon an indictment; for no writ of error will lie upon a mere summary conviction; Anon. Vent. 33. Anon. Id. 171. Berry's Case, 2 Jon. 167. Vin. Abr. Error, D. 2 Bac. Abr. Error, A.; not even upon a conviction of forcible entry by justices of the peace upon view; Anon. Vent. 171; nor in any other case.

And it must be a judgment against the defendant; 3 Inst. 214; 2 Bac. Abr. Error, A. 1; for there is no instance of error being brought upon a judgment for a defendant after an acquittal.

Attorney-general's fiat.] Before a writ of error in a criminal case, however, is sued out, the attorney-general's fiat for it must first be obtained. First, therefore, obtain a certificate from counsel that there is error in the record; and upon producing that, and a verified copy of the indictment or record to the attorney-general, he usually grants his fiat for the writ of error. This is granted as a matter of course in misdemeanors, upon sufficient cause being shown for it; but in cases of felony, it is granted only ex gratiá. 4 Bl. Com. 392. See Com. Dig. Error, A. Eq. Ca. Abr. 414. Gargrave's Case, Roll. Rep. 175. Vin. Abr. Error, F.

Writ of error and return.] There seem to be two modes of proceeding, either of which the party may adopt at his option: he may bring the writ of error directed to the justices, and have the record returned to the court of Queen's Bench under and by virtue of it; or he may have the record removed into

the court of Queen's Bench by certiorari, and then bring a writ of error coram nobis upon it. R. v. Foxley, 1 Salk. 266; 3 Com. Dig. Error, B. The former, however, seems to be the most approved mode of proceeding. Upon producing the fiat for the writ at the cursitor's office, the cursitor for the county will make out the writ. Deliver the writ then to the clerk of the peace or clerk of assize, who has the record, and he will return the writ. For the purpose of returning it, he first makes up the record on parchment in this form, beginning with the caption of the indictment thus:

It is not necessary to set out the names of the grand jurors in the caption of the indictment; it is sufficient to say "twelve good and lawful men of the county," &c. as in the above form. Aylett v. R., in error, 3 Bro. Parl. C. 529.

Having thus engrossed the record on parchment, let the clerk of the peace indorse upon the writ of error the following return : "The record and proceedings, whereof mention is within made, appear in a certain schedule to this writ annexed. The answer of the justices within named." Or it may be in a similar form as the return to a certiorari, given ante, p. 164. Let the record be then annexed to the writ, and transmitted to the crown-office.

Assignment of errors.] As soon as the writ is returned, and the return filed, get the assignment of errors drawn and signed by counsel, engross it on paper, and, in misdemeanors, file it at the crown-office; but in cases of felony, the defendant must appear in court, and assign errors in person.

Joinder in error.] After filing the assignment of errors, let the plaintiff in error obtain a side-bar rule to join in error, and serve it, together with a copy of the assignment, on the prosecutor or his attorney; and if he do not file a joinder in error within eight days after service of the rule, the plaintiff in error may sign judgment as for want of a joinder, at the opening of the office on the morning of the ninth day, unless an order of the court or of 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. 17, 18.

The prosecutor, within the time here mentioned, must get his joinder in error drawn, engrossed on paper, and signed by counsel, and must file it at the crown-office.

Argument, &c.] Upon the joinder in error being filed, either party may obtain a rule for a concilium at the crown-office, and serve it on the opposite party; and then the case is set down in the crown paper for argument. The rule specifies the day on which the case will be put into the paper, and must be drawn up and served six days at least before such day within forty miles of London, and within eight days in other cases. Reg. 21. But in all cases where the defendant is in prison, or otherwise undergoing his sentence, the court, upon application on his behalf, will in general fix some day in the term for the argument; and a rule must be drawn up accordingly, which must be served on the prosecutor or his attorney.

Paper books are then delivered by the parties respectively to the judges, and the case argued, in the same manner as upon a demurrer; see ante, p. 64; and the court then deliver their judgment. In cases of felony, the defendant must be present at the argument. Each party pays his own costs.

Judgment, &c.] The judgment of the court is, either that the judgment be affirmed, or quod cassetur. If the judgment of the court below be affirmed, the court will remand the defendant to his former custody, in order that he may undergo his punishment. But if the court decide in favour of the defendant, they do not pronounce the judgment which ought to have been given by the court below, nor do they send back the record to that court to do so; but they merely award that the judgment be reversed and the defendant discharged. R. v. Bourne et al., 7 Ad. & El. 58.