57.

(which may be in the forms furnished in the schedule), as if Forms No. 56, the costs had been awarded by the Justice on the original adjudication.

on order

$595. In cases where a conviction or order awarding im- Imprisonment prisonment has been confirmed, the person against whom confirmed. such imprisonment was adjudged will be liable, if he has not Appeals from Justices Act, been imprisoned, to be imprisoned for the period adjudged 1867, s. 33. by the conviction or order; but if he has been imprisoned and discharged, he will be liable to be further imprisoned only for such period as, along with the time during which he has already been in custody, will amount to the period adjudged in the conviction or order.

for defect.

§ 596. No action or other proceeding will lie against a No action, &c., Justice for enforcing such conviction or order, by reason of any defect in it.

when.

§ 597. Power is given by the Act to two Justices of the Estreating Peace to estreat the recognizances; (1) where a party bound recognizances : by recognizance to prosecute an appeal against an order Sec. 34. or conviction by which imprisonment was adjudged, has absconded; or (2), where a party bound to appear before a Justice to abide the judgment of the Court has failed to do so; or (3), where a party bound to prosecute an appeal, and liable, either under the original conviction or order, or under the order of the Court of Appeal, to pay money by way of penalty or otherwise, has no goods whereon to levy.

§ 598. The two Justices, sitting in open Court, after such Howestreated. proof of notice to the parties as is required on estreating Ibid. recognizances under "The Justice of the Peace Act, 1866," (sec. 134,) may make an order estreating the recognizance to such amount as they shall think fit, and for paying thereout any sum which was directed to be paid. to any party by the original conviction or order, or by the order of the Supreme or District Court; and may thereupon

Fees.
Appeals from
Justices Act,

1867, s. 36.
Form No. 58.

Rules of practice. Sec. 35.

issue a warrant for levying the same on the goods of the several persons bound by the recognizance.

$599. The fees to be taken in respect of appeals and matters relating thereto are specified in a Schedule to the Act; and the Governor has power to abolish or vary such fees or fix others by Proclamation in the Gazette.

$ 600. Power is given to the Judges of the Supreme Court to make rules for the practice and proceedings on appeals and cases stated, and other applications under the Act; and the practice of the District Court in respect to such matter is to be the same as that of the Supreme Court.

Habeas on illegal commitment.

The application, by whom and how.

Paley 388.

QUASHING COMMITMENT OR CONVICTION, HABEAS CORPUS,

AND CERTIORARI.

Habeas Corpus.

§ 601. In cases where a defendant is in custody under a commitment in which there is a substantial and not merely a formal defect or illegality, which does not exist in the conviction, he may obtain his discharge by suing out a writ of Habeas corpus ad subjiciendum, which may be granted by any Judge of the Supreme Court, and should be directed to the gaoler in whose custody the defendant is.

§ 602. The application may be made by Counsel; or a wife may move for the writ on behalf of her husband; and where access to the prisoner has been denied, a motion by his father has been allowed. The application should be founded upon an affidavit from the prisoner himself; or it must be shown that he is so coerced as to be unable to make one. A verified copy of the conviction may be brought before the Court, for the purpose of defeating the commitment, even although the Statute under which it was made has expressly taken away certiorari, (the writ proper for removing the proceedings of an inferior tribunal into the superior one, to be reviewed).

§ 603. The most convenient and least expensive form of Form of rule. application, is for a rule calling on the keeper of the prison to show cause why a writ of habeas corpus should not issue, to bring up the body of the prisoner, and why, if the rule should be made absolute, the prisoner should not be discharged without the writ actually issuing, or the body of the prisoner being actually brought into Court.

§ 604. This form of rule, however, does not prevent the If no cause shown, writ necessity for issuing the writ of habeas, if no cause should be issues. shown against its issuing.

Paley 389.

writ.

§ 605. If the writ issues, objections to its regularity ought Objections to to be taken by way of motion to set it aside; and so also ought any objection on the ground of its having been issued through fraudulent misrepresentation.

But the Court will not, generally, quash the writ on grounds which may be set up, as an answer, on the return.

§ 606. After the writ of habeas is issued, it is delivered Delivery and to the gaoler or other person having the custody of the return. prisoner; who thereupon brings up the body of the prisoner and the warrant of commitment. The return should set forth the description and authority of the persons by whom the commitment is made; and the Court will make no inferences respecting matters which ought to have been made the subject of distinct and positive allegations. The return need not be verified by affidavit, but will be treated, prima facie, as true.

§ 607. If the commitment appear to the Court to be Quashing and discharge. illegal or insufficient, on the face of it, the Court will quash Paley 390, 391. it, and order the prisoner to be discharged; or if the return to the writ be insufficient, ambiguous, or uncertain, the prisoner will be discharged.

§ 608. Affidavits are admissible in such case, as in cases Affidavitsof application to quash convictions, in order to show a want or want or excess of jurisdiction.

Paley 400.

Convictionwhen bad, must be brought up.

Quashing commitment after imprisonment.

Commitments

of convictions.

excess of jurisdiction, although they may directly contradict facts stated in the return, which, if true, would show jurisdiction, and no excess of it.

§ 609. If the defect be not on the face of the commitment, but in the conviction, the defendant, besides the writ of habeas corpus to bring up the warrant, must also bring the conviction before the Court, by certiorari or otherwise, as he must in cases where he is not in custody, but desires the conviction to be quashed.

§ 610. It may be a question whether a person who has already suffered the whole term of his imprisonment, under a warrant of commitment, illegal on grounds not contained in the conviction or order, ought not to have it quashed before he brings an action against the Justices issuing it, (under the Justices of the Peace Protection Act, s. 5); as, for instance, where the commitment has exceeded the amount of punishment awarded in the conviction.

If such a proceeding should be deemed necessary, it would appear that it might be taken either by applying for a certiorari to bring up the conviction, if not filed, and the commitment, or upon affidavit showing the contents of the commitment, and of the conviction, if filed.

§ 611. With respect to commitments which are in their in the nature nature convictions, such as commitments for contempt of Court, for profane swearing in the presence of a constable, for certain offences on the view, and for want of sureties for the peace or good behaviour,—it would seem that they may with propriety be treated as convictions; and that, therefore, they ought to be filed with the Registrar of the Supreme Court, and thus become liable to be quashed, as well as other convictions, for substantial defects.

Quashing con

viction after time for

appeal.

Certiorari, &c.

§ 612. In cases where a conviction is substantially invalid, and not merely informal-for instance, where it differs from

the actual adjudication, or shows no jurisdiction, or no offence, or an illegal punishment or penalty,—but the defendant, through ignorance or inadvertence, has not, or in case of variance from the actual adjudication, has been unable, to appeal within the time prescribed by the Act, it would appear that he may apply to the Court to quash the conviction for a substantial defect.

§ 613. It has already been mentioned that the means by Certiorari in England. which a conviction or order of an inferior Court is brought before the Court of Queen's Bench in England, to be reviewed, is by the writ of certiorari, or certiorari facias; and the right to sue out this writ in particular cases, has been, in a great variety of instances, taken as the test whether a convic- Test. tion or order is liable to be quashed.

It has already been stated that, while the right to appeal When taken must be expressly given by Statute, the right to a certiorari away. can be taken away only by express words; and that the express words will not have the effect of doing so in cases of want, or excess, of jurisdiction.

New Zealand.

§ 614. Now, it may be a question whether, in New How far apZealand, where, by virtue of "The Justices of the Peace plicable to Act, 1866," secs. 22 and 45, convictions and orders are to be drawn up formally when required, and lodged with the Registrar of the Supreme Court to be filed by him, there is any necessity for the writ of certiorari.

If the conviction or order is already filed in the Court, the writ would be useless; and if not, the Magistrates, on application, would probably draw up and lodge the document (which they would be bound to do, subject to Mandamus and attachment), and so the proceedings would be actually in the Court; and could be brought before it either on production by the Registrar, or on affidavit by the party. But there seems to be no doubt that a certiorari might issue to the convicting Magistrate to bring up the proceedings before they are lodged in the Supreme Court, even although the other course might be open also; and the language of "The