her Majesty in her Court of Queen's Bench the conviction of which mention is made in the same writ, together with all matters touching the same, as by the said writ I am commanded. In witness whereof I, the said A. B., have hereunto set my hand and seal at in the said county, this in the year of our Lord

day of
A. B.

What should be returned.] The certiorari is obeyed by transmitting the record itself, formally made up, and not a mere transcript or copy of it, to the court into which the writ is made returnable (t). In a return to a certiorari removing a conviction, the evidence upon which the conviction was founded need not be returned; but if it is, it becomes part of the record before the court. The court will then consider its sufficiency, and if satisfied that it is insufficient to sustain the conviction, it will be quashed (u). The conviction to be returned should, strictly speaking, be written upon parchment; and in one case the return was quashed because it was upon paper (v). The return must also be under seal, and it will be sent back to be amended if the justices do not put their seals to it (w). It need not be any particular seal; anything professing to be one will be sufficient.

When to be filed.] The instruments to be returned should be enclosed with the writ and certificate, made as above mentioned, and together remitted to the Crown Office in the Q. B., where they are filed (x).

False return.] If a false return be made, the court will not, unless in public cases, stay the filing of it on affidavits of its falsehood; but the persons making it will, according to the circumstances, be liable to an action at the suit of the party aggrieved, or a criminal information (y).

Affidavits.] In the argument on a certiorari and return, the

seem indispensable, id. ib.; Anon. 6 Mod. 43.

(t) Palmer v. Forsyth, 4 B. & C. 401; Franks v. Wicks, 9 Dowl. 489; Lyons v. Purcell, 1 Hud. & Bro. 1.

(u) R. v. Rowan M'Naghten, 9 Ir. L. R. 93.

(v) R. v. Darlington, 1 Bur. 113;

1 Burn, 621; 1 N. & W. J. P. 641. (w) R. v. Kenyon, 9 D. & R. 694; 6 B & C. 640; R. v. McNamara, Al. & N. 61.

(x) 1 N. & W. J. P. 642.

(y) R. v. Bolton, 5 Jur. 1154; S. C. 1 Ad. & E. 66; 1 N. & W. J. P. 642.

court will not refer to affidavits (2); but on an argument as to whether the certiorari should issue, they will (a).

Counsel.] In the argument on a certiorari and return, junior counsel should be retained, but counsel may arrange among themselves which of them shall argue the case, and in what order (b).

Costs.] There is no general rule as to costs upon certiorari on removing convictions; the practice upon this subject is entirely discretionary with the court.

Procedendo.] The writ of certiorari, if it has been issued. where it would not lie, or if it be misdirected (c) or otherwise bad in point of law, may be quashed by the court, and a procedendo awarded (d). A procedendo cannot be moved for while the certiorari is on the file of the court (e). The operation of the writ is to remove the suspension created by the writ of certiorari, so that the cause may be proceeded with in the court below. If the court below state in their return to the certiorari circumstances from which the court judge that the writ ought not to have issued, a procedendo will be awarded (ƒ).

When a conviction has been removed into the Q. B., and affirmed, whether after an appeal or otherwise, the penalty, if not already paid, must be levied by process from the Q. B. (g).

Practice.] The writ must be signed at the Crown Office on the affirmance of the conviction, or on filing the previous writ of execution, with the return thereto, as the case may be, and must be sealed (h). But where the act of parliament on which a conviction, which had been brought up by certiorari and affirmed, was framed, gave the convicting justices a discretionary power to imprison the offender for a limited period, in case of there being no sufficient distress to levy the penalty, the Court of Q. B. after a levari facias had been issued, to which a return of nulla bona was made, held that they had no power to exercise the dis

(a) R. v. Hamilton, 6 Ir. J. N. S. 154.

(a) R. v. Bolton, Q. B. 66.

(b) R. v. Hamilton and another, 6 Ir. J. N. S. 154.

(c) 2 Atk. 318.

(d) 2 Atk. 318; Say. 156.

(e) R. v. Clace, 4 Burr. 2456.

(f) Watson v. Clerke, Carth. 75; Pope v. Vaux, 2 W. Bl. 1060; Jones v. Davies, 1 B. C. 143.

(g) R. v. Pullen, 1 Salk. 369; R. v. Speed, id. 379; Corner's C. P. 79. (h) Corner's C. P. 80.

cretion (which the convicting justice would have) as to the term of imprisonment, and refused to issue a ca. sa., but sent back the conviction by procedendo, in order that the justices might cause it to be enforced (i). A procedendo can be issued in such a case only upon a rule of court first obtained on motion for that purpose().

CHAPTER XXIII.

PROHIBITION.

PROHIBITION is a writ to keep the different courts of justice in the realm each within its own peculiar jurisdiction (a), so that, wherever an inferior court exceeds the limits of its jurisdiction, whether as to person, place, or the amount or nature of the thing sued for, or where the court has no jurisdiction, a prohibition will lie (b). And a prohibition may issue to control a court of criminal jurisdiction, equally as a court exercising civil jurisdiction (c). And where one inferior court infringes upon the jurisdiction of another, a prohibition will lie, and it is not necessary that the court which grants the prohibition should itself have jurisdiction over the subject matter for which the prohibition is granted (d). In England it has been held that, although the Court of Chancery may have jurisdiction to grant a writ of prohibition, yet, as such applications interfere with the equity business of the court, it is better to proceed in a court of law which is more conversant with this subject (e).

When granted.] It has been said that in all cases it is discretionary with the superior courts to grant a prohibition (ƒ). But

(i) R. v. Neville, 2 B. & Ad. 299; Corner's C. P. 80; See R. v. Bushworth, 1 New Sess. Ca. 415.

(j) Corner's C. P. 80.

(a) Bac. 6th vol. Abr. Proh. A. 2. Inst. 601-12 Co. 65.

(b) B. N. P. 219.

(c) R. v. Herford, 29 L. J. 249, Q.B. It lies to a coroner to prohibit him

further holding an inquisition, id.

(d) Litt. Rep. 42; 2 Roll. 471. (e) In re Foster, 3 Jur. N. S. 1238, S. C. 24 Beav. 428; see Montgome ry v. Blair, 2 Sch. & Lef. 136, Wright v. Cattell, 13 Beav. 81.

(f) See authorities, Bac. Abr. 6th vol. 564, Proh. B.; Vin. Abr. 18th vol. 548.

a prohibition for the Queen is said to be ex debito justitiæ, and not in the discretion of the court (g). Martin, B., in giving judgment in Jackson v. Beaumont (h), says, "The writ is of right, but not of course. Its true nature and character were pointed out by Mansfield, C. J., in the case of Buggin v. Bennett (i), namely, that where a party has established the facts upon which he founds his application to the satisfaction of the court, he is entitled to the writ as of right. In this respect it resembles a mandamus and quo warranto." And Alderson, B., in giving judgment in the same case, says, "It appears from Willmott's Notes, at page 82, that 'a writ which issues upon a probable cause, verified by affidavit, is as much a writ of right as one which issues of course.' In my opinion, that position contains as much good law as it does good sense."

There are very few reported cases where prohibitions have been granted against J. P.'s. The court has jurisdiction to grant a writ of prohibition after conviction, to stay the justices from proceeding upon it, if the magistrates acted without jurisdiction (). It is said that a prohibition will not lie unless the grounds upon which it is sought have been taken as an objection in the court below, at least for defects not appearing on the record (k), nor before the party summoned in the court below has appeared (); nor will it be granted till the court below actually have acted in the matter or manner they should not, for the presumption is that they will do right (m). It is said that, if the party admits the jurisdiction of the inferior court, he cannot afterwards dispute its authority, or have a prohibition upon a suggestion of such facts, for he is precluded by having admitted the inferior jurisdiction (n).

(g) 2 Inst. 601, 602.

(h) 11 Exch. 303. (i) 4 Burr. 2037.

(j) Vide R. v. Burnaby; 2nd Ld. Raym. 900; Rich. v. Anderson, 3 Ir. Chan R. 463.

(k) See Borough v. Fowler, 1 Ld.

Ken. 354.

(1) Ex parte Law, 2 A. & E. 45; 2 Dowling's P. C. 528.

(m) Griffin v. Ellis, 11 A. & E. 743; Hall v. Maule, 7 A. & E. 721;

Hallack v. Univ. of Cambridge, 1 G. & Davidson, 100.

(n) Mendyke v. Stint, 2 Mod. 272. Per Holt in Lucking v. Denning, 1 Salk, 201; 1 P. Wms. 476. And this seemed to be the opinion of the court in the R. v. Donegal Js. 5 Ir. J. N. S. 185, where the defendant appealed to the Q. S. from the decision of the magistrates before applying for his writ of prohibition.

Where the want of jurisdiction does not appear upon the face of the proceedings, if the defendant below will lie by, and suffer that court to go on under an apparent jurisdiction, it would be unreasonable that he should apply for a prohibition after sentence against him below, and suggest the collateral matter as a cause of prohibition, after his acquiescence in the jurisdiction of the court below (p). But if the want of jurisdiction, or irregular mode of using it, appear on the face of the proceedings, a prohibition will lie, though the party did not object in the court below (q). So if the party has been prevented from objecting in the court below by the artifice of his adversary (r). But if sentence has been given in the latter court, the court in which application is made for a prohibition will presume that there was no excess of jurisdiction, unless such excess be distinctly proved (s), or be apparent on the face of the proceedings (t). Prohibition lies in all cases where an inferior court exceeds its jurisdiction, and it lies after judgment because all is a nullity; it is coram non judice (u). But a prohibition will not lie in a case in which the judge of the inferior court has made a mistake in a point of law, in deciding what it was competent to him to decide (v), for a prohibition will never issue where the court has jurisdiction, merely because its judgment is unwise or unjust (w). A writ of prohibition will not lie to review the decision of the court below as to the sufficiency of service of a summons (x). The judgment given by Coleridge, J., in Marsden v. Wardle (y). may be useful to practitioners in shewing when a prohibition will be granted where want of jurisdiction exists, though it does not appear upon the face of the proceedings, e. g. when a J. P.

(p) Per Ld. Mansfield, Buggin v. Bennett, 4 Burr, 2037.

(9) See Marsden v. Wardle, 3 Ell. & Bl. 695; 2 Salk, 551; 2 Inst. 602; Lutw. 1026.

(r) 2 Mod. 278; 2 Inst. 230; Lutw. 1026.

(8) Which may be by affidavit, Marsden v. Wardle, sup.

(1) Vanacre v. Spleen, Carth. 33; Hart v. Marsh, 5 Ad. & Ell. 591.

(u) Buggin v. Bennett, 4 Burr. 2036; Gould v. Gapper, 5 East, 345;

1 Smith's R. 528. S. C.; see Hallack v. the Univ. of Cambridge, 1 Q. B. 593; 2 Q. B. 1; Toft. v. Rayner, 5 C. B. 162; Jones v. Jones, 5 D. & L. 628; Jackson v. Beaumont, 11 Exch. 300.

(v) Toft. v. Rayner, 5 C. B. 162. (w) Zohrab v. Smith, 5 D. & L. 635.

(x) Robinson v. Lenaghan, 5 D. & L. 713.

(y) 3 Ell. & Bl. 701.