SUMMARY PRO CHAP. IV. victing justices might have issued; or if preferred, proceedings CEEDINGS, &c. might be issued to enforce the recognizance given under the 44th section, and which must have been conditioned for obedience to the decision of the Court of Appeal. Mandamus to compel justice to state ovidence, &c. in conviction, c. 23. In general, upon an appeal under the 44th section of 1 & 2 W. 4, c. 32, the respondent ought to begin, and to prove the facts of guilt of the trespass over again, precisely as in evidence to the original information, with the exception of the facts mentioned in the 42d section; and either party might give fresh evidence, not even mentioned on the first occasion. (z) We have seen that if the conviction do not sufficiently state or mistate the substance of the evidence given by the witnesses and not as nearly as possible in the words used by them, and also under 3 G. 4. the defence advanced by the defendant at the time of the hearing, the defendant may, by application to the Court of King's Bench, under the 3 Geo. 4, c. 23, compel the justice to rectify his conviction in this respect. (a) When it is apprehended that the justice has returned or intends to return to the Sessions or to the Court of King's Bench a conviction defective in either of these respects, then the proper course is, antecedent to a motion for a writ of certiorari, to apply to the justice in a courteous manner, and even in writing, and to require him to state the evidence correctly; and if any person present at the bearing took an accurate note of the evidence, it would be proper to send a copy thereof to the justice to assist him, and with an intimation that unless the conviction should contain all the evidence correctly, it will be necessary to apply to the Court of King's Bench for a writ of mandamus; and a motion to the Court should be made accordingly, and the defendant should be fully apprised of the terms of the final conviction before he moves for a writ of certiorari; and if a copy or the necessary information should be withheld, and the defendant thereby fail, he will not have to pay the costs occasioned by the justice's conduct. (b) We have, in the preceding volume, stated the course of proceeding expedient to be observed in cases of this nature, in order to induce the Court to award costs of the proceedings for mandamus. (c) In moving for a mandamus, it may be advisable to pray that in the mean time all proceedings on the conviction be stayed, so as to prevent any distress warrant or imprisonment in the mean time. (2) R. v. Commissioners of Excise, 3 M. & S. 133; R. v. Jeffery, 1 B. & Cres. 654. (a) Ante, 200, 201. (b) R. v. Medlam, 3 Burr. 1720, ante, 200, 201, 212. (c) Ante, Vol. 1, 806 to 810. CHAP. IV. SUMMARY PRO An appeal, we have seen, is a proceeding to obtain a rehearing of the merits, and is in the nature of a new trial, though CEEDINGS, &c. at a Court of Sessions, instead of before only one or two, usually Certiorari. not more than two justices; and we have seen, such appeal can only be had when expressly given; whereas a Certiorari is in the nature of a writ of error removing the conviction (and other proceedings in some cases) from before the justice or from the sessions, before or after the appeal, into the Court of King's Bench, where only objections and defects appearing upon the face of the conviction or in some stage of the proceeding can be discussed; and there cannot, in the Court above, be any rehearing or investigation of the merits, though sometimes affidavits may be heard on each side as to extrinsic proceedings. (c) It is an established general rule, that a Certiorari to remove a summary conviction on any reasonable ground into the Court of King's Bench, always lies as a matter of right, unless it has been expressly taken away; (d) and even where a statute authorizing a summary conviction before a justice gave an appeal to sessions, who were thereby also directed to hear and finally determine the matter, it was nevertheless held that these words merely prohibit a re-investigation of the fucts, and that after the determination of the appeal, the party convicted might remove the conviction by certiorari; and Lord Kenyon observed that he thought it was much to be lamented, in a variety of cases, that certiorari was taken away at all. (e) The present legislative policy appears from the 9 Geo. 4, c. 31, 7 & 8 Geo. 4, c. 29 and c. 30, and 1 & 2 W. 4, c. 32, to be to take away the writ of certiorari, but to allow an appeal, on the principle that the latter affords a re-investigation of the merits before a Court of General Quarter Sessions, who are supposed to be incapable of deliberate injustice, and who may, as regards any question of law, state a case for the opinion of the Court of King's Bench, and which are adequate opportunities for all fair investigation; and that the writ of certiorari is generally a proceeding only to give effect to objection to the form of proceeding. If a statute contain such comprehensive terms as to prohibit the removal of any order, matter, or thing, the latter word seems to comprehend every act whatever. (f) If a conviction contain an adjudication for several penalties, any one of which is removable by (c) R. v. Reason, 6 Term R. 375; R. v. Jukes, 8 T. R. 542. As to the rejection of a competent witness, R. v. 2 Chitty's R. 137. (d) R. v. Moreley, 2 Burr. 1040; and per Lord Kenyon, C. J.; R. v. Jukes, 8 T. R. 544, 5; R. v. Cashiobury, 3 Dowl. (e) Id. ibid. (f) R. v. Middlesex, 8 Dowl. and R. 117. CHAP. IV. certiorari, then the whole conviction is removable, (g) and the SUMMARY PRO- Crown is never, by general words in a statute, deprived of this CEEDINGS, &c. writ. (h) Where, however, the intention of the Legislature to take away that writ is apparent, though only by implication, then such intention must be given effect to; (i) and when a statute expressly takes away a certiorari, and the justices have ventured to frame their conviction so formally and sufficiently as upon the face thereof to bring the particular case within their jurisdiction, and unjustly or erroneously to convict, then although from positive affidavits it may be made appear that the facts did not justify the conviction, or that they had not any jurisdiction, (and although it is an acknowledged principle that justices cannot give themselves jurisdiction by stating a different offence from that which came before them,) yet Lord Tenterden and the Court held that the statute took away their power to issue a certiorari to remove the conviction, or the proceedings or depositions on which the same were founded. (j) In such a case, and where facts are falsely assumed, the only course is, upon full affidavits of the real evidence and defence before the justices, to move the Court of King's Bench for a rule to show cause why a mandamus should not issue, commanding them to set out the evidence and defence pursuant to the 3 Geo. 4, c. 23, (k) (but which only applies when no other more succinct form of conviction is allowed by any particular statute,) or if the justice acted wilfully in mistating the evidence to institute criminal proceedings. It has been suggested, that the Court might prohibit any proceedings upon a conviction, although it might not be removable by certiorari; at least, Holt, C. J. said, that upon affidavits on the part of a defendant of a bona fide defence on the ground of title, and that the justice would not allow any effect to the same, but wilfully persisted in proceeding to convict, the Court of King's Bench might, at any time whilst the conviction remained below and had not been removed by certiorari, issue a writ of prohibition after conviction, so as to stay the justice from proceeding to enforce it. (1) And in a case under the General Highway Act, 13 Geo. 3, c. 78. s. 30, which expressly (g) R. v. Saunders, 5 Dowl. and R. 611. (h) R. v. Anon, 2 Chitty's R. 136; 5 T. R. 542. (i) R. v. Liverpool, 3 Dowl. and R. 275. (j) Anonymous, 1 B. & Adolph. 382. (k) Ante, 200, 201. (4) 2 Lord Raym. 901; and see Crepps v. Durden, Cowp. 640, and the note in 1 B. and Adolph. 386 (a). takes away a certiorari, it was held that the same did not extend to cases where the justices at sessions had acted wholly without jurisdiction; and therefore where the justices at petty sessions had made an order for the allowance of the accounts of a surveyor of highways which had not previously been verified before one justice, pursuant to the requisites of the 38th section of the act, it was held that they acted wholly without jurisdiction, and that their order was not a proceeding had pursuant to the act, and that consequently a writ of certiorari lay to remove it into the Court of King's Bench, for the purpose of having it quashed; (m) but this seems to be contrary to the usual terms of the enactment, taking away a certiorari or any other proceeding. (7) And in another case under the same Highway Act and session, where an order was made by two justices and confirmed by the sessions for diverting a road, professedly under the authority of, but (as was alleged) without pursuing all the formalities required by the act, it was held that the certiorari was still taken away; and after the proceedings had been in fact removed, the Court quashed the certiorari, quia improvide emanavit, and refused to discuss the sufficiency or insufficiency of the order. (0) Sometimes the statute creating the offence is construed, from its terms, to give either an appeal or a certiorari, though not before, and that after adopting one proceeding the party could not resort to another; (p) whilst other acts enable a convicted person to adopt both successively within due time, though not both at the same time. In such a case the proper course in general is to appeal in the first instance, and after affirmance to proceed by certiorari to reverse the conviction for some defect upon the face of the same. CHAP. IV. SUMMARY PRO CEEDINGS, &c. rari must be The general act, 13 Geo. 2, c. 18. s. 5, imposes several terms Time within and restrictions before a conviction can be successfully removed which certioby certiorari. Thus the writ must be moved for within six calen- moved for, and dar months next after the conviction, and exclusive of the day of notice thereof required. its date; (q) nor can the writ be issued until it has been sworn that the party suing out the same hath given six days' notice thereof in writing to the justice or justices who convicted him, to the (m) R. v. The Justices of Somersetshire, 3 Dowl. and Ry. Mag. Cases, 273. (n) It is, however, the practice of the Court of K. B. where there has been an unjust or doubtful acquittal of a defendant on an indictment relative to a highway, to stay the judgment, so as to prevent any prejudice, and allow the prosecutor ano ther opportunity to convict, though they (0) R. v. Cassim, 3 D. and Ry. 36. (q) 13 Geo. 2, c. 18, s. 5; R. v. SUMMARY PRO CHAP. IV. end that the latter may show cause against the issuing or grantCEEDINGS, &c. ing such certiorari in the first instance, and upon the motion that it may be issued. If the party have appealed to the sessions against a conviction, he cannot move for a certiorari before the Court of Sessions have heard and determined the appeal. (s) Notice of motion for certiorari to re thereof. The notice of motion must contain a statement on whose behalf the motion is intended to be made, and should be signed move convic- by such party, and of course must usually be the party who has tion, and affidavit of service been convicted; (t) and a certiorari cannot be issued at the instance of any party who did not sign the notice, although that party has avowedly dropped the proceeding, and it is also too late to give a fresh notice; (u) and a notice to justices of a motion to be made for a certiorari " on behalf of the church"wardens and overseers of S.," if signed only by one churchwarden, is not a sufficient notice "by the party or parties suing "forth" the writ within the statute, 13 Geo. 2, c. 18. s. 5. (v) If two or more persons have been convicted, then all should concur and sign the notice; (w) and the service of a rule nisi for the issuing of a certiorari, although more than six days be thereby given to show cause, will not dispense with the notice; (x) and such notice is requisite, although the Court of Sessions has ordered a case to be stated for the opinion of the Court of King's Bench. (y). In order to support the motion to the Court for the writ, there must always be an affidavit of a due service of the notice, upwards of six days before the day of moving; (2) and if in truth the service was defective, that may be shown in answer to the motion, and until the requisition of the statute has been complied with; (a) and even where a rule nisi for a certiorari has been made absolute, and the writ had issued, the Court afterwards set aside the same upon its being established that no sufficient notice had been given. (b) The affidavit should be entitled "In the Court of King's Bench," but not in a cause. (c) |