| Chap. 195. |
Certiorari.
Then take the Record of the Indictment, and close
it within the Schedule,
and seal and send them up both together with the Certiorari. |
533 |
|
Now to shew what is farther meet for the Justice
of peace to know
concerning this Writ of Certiorari, and their Certifying or Return
thereof. |
|
|
After an Indictment found before Justices of peace,
a Certiorari is
procured by the means of some party indicted or grieved, thereby to
remove such Indictment from the said Justices, and to convey it to Justices
of a higher Authority, to the end the party may either traverse
such Indictment above, or may there avoid it for insufficiency of form
or
matter. |
|
| Hob. 135. |
' Although the Custos Rotulorum keep the
Records, yet must the Justices
' return the Certiorari; for the Writ is directed to them, and not
to him;
and the Record it self must be returned, and not Tenor Records. |
|
Fitz. 245.
a. |
And this Certiorari is the Kings Writ, issuing
sometimes out of the
Chancery, and sometimes out of the Kings Bench, and may be directed
to any inferiour Court of Record, or Officer of Record, (as to a Justice
of peace, Sheriff, Coroner or Echeator) to be certified of any Record
which is before any of them. And first an Alias, then a Pluries,
and
lastly an Attachment lieth against them that should send it, (if the Record
be not certifed accordingly.) Or it seemeth a Sub pœna is
used at
this day. |
|
|
If it be returnable into the Chancery, then the
words are, In our Chancery;
and if into the Kings Bench, then the words are, Nobis mittatis;
and
if into the Court of Common Pleas, then Coram Just' nostris de Banco. |
|
|
' This Writ is not to be slighted, nor are any Proceedings
to be after
' the delivery thereof, although the Return be past; for by the delivery
' the hands of the Justices are closed. A Forcible Entry was found,
' and Restitution awarded but not executed. A Writ of Certiorari
comes
' to a Justice of peace, and he refuses to open it till he had spoke with
' his Companions. Restitution was given in the Kings Bench, and Restitution
' prayed and granted, and the Justice of peace much chid.
' Yelv. 32. |
|
| Plo. 393. |
The Certiorari may be sometimes to remove
and send up the Record it
self, and sometimes but only the Tenor of the Record, (as the words therein
be) and it must be obeyed accordingly. |
|
Fitz. 245.
b. |
If there be variance between the Certiorari and
the Record which is to
be removed, the Justices need not to certifie such Record, Lamb. 500. |
|
Cro. 130. a.
& 135. b. |
A Justice of peace may deliver or send into the
Kings Bench an Indictment
found before him, or a Recognizance of the peace taken by him, or a
Force recorded by him, without any Certiorari: but if a Justice
of peace
having a Record in his hands be discharged of his Office, now he cannot
certifie it without a Certiorari, although he be made a Justice
of peace
again, See 8 H. 4. f. 5. Br. Record 64. |
|
| 6 Ed. 4. 5. |
If a Certiorari be to send up the Indictment
of A. in which Indictment
some others be indicted with the same A. yet need not the Justice
of
peace to make Certificate concerning any but A. For although
they be
named joyntly, yet they be indicted severally, and the King may pardon
A.
without forgiving the other, 6 Ed. 4. 5. |
|
6 H. 7. 16.
Br. Jud. 17. |
If a Certiorari shall come to the Justices
of peace to remove an
Indictment, and the party sueth not to have it removed, but suffereth
it to lie still after the day of Return of the Certiorari; yet it
seemeth
the Justices of peace ought ex officio to send it away, because
the
Writ containeth in it self a Commandment to them so to do; and so is a |
|
|
 |
