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830 TRTAL OF JOHN W. WEBSTER.
of Record; in civil cases, as matter of course. The writ is returnable
in the Court in which judgment is pronounced, when the error is in the
process, through default of the clerks or of some matter of fact, and not
in law."
Such is the common law which has been adopted in this Common-
wealth. Under the statute referred to, the writ issues upon the fiat
of any member of this Court, and is therefore to be taken as a matter
ex gratia. In New York, a writ, under similar curcumstances, cannot
- issue without the sanction of the Attorney General. If he refuse his
approval in a proper case, the Court, upon application, command him
to sign an approval. In this particular case, as the application is heard
before a full Court, the writ will be refused unless a case of reversal
is made out. Independently of any authorities,-and yet at the same
time, as the result of all the authorities,-I submit, that, when-
ever a Court has rendered a judgment without jurisdiction, it will,
upon writ of error or upon motion, vacate it; and whenever a Court
has rendered a judgment which is,not the judgment of the law, if
of competent jurisdiction, it will reverse it.
III. I now proceed to the consideration of the assignment of errors,
and submit: That the Supreme Judicial Court did not acquire juris-
diction of the accusation, or of the party accused.
The jurisdiction of this Court in a capital case does not and cannot
attach, until after the Municipal Court has exercised a certain prescribed
jurisdiction over the accusation and over the party accused, which are
enjoined by statute. Statute of 1844, ch. 44, sec. 4; which has been
read. This statute provides and points out the jurisdiction of the
Municipal Court in capital cases. I will state what seems to be its
result.
1. The Municipal Court must, in the first instance, adjudicate and
say whether an indictment shall be received.
The Municipal Court organize the grand jury, and instruct them 'as
to their duty, and as to the law applicable to the subject-matters which
may come before them for investigation. An indictment must have
the signature of the foreman; and the Municipal Court must determine
whether the signature purporting to be his, is, or is not, in fact, such
signature. Many similar considerations might be adduced to show
that the Municipal Court must say whether an indictment shall be
received.
- 2. If the Municipal Court, at the time an indictment is returned,
has not acquired, it must, by its process, acquire the custody of the
party accused.
3. The Municipal Court must adjudicate the time, within certain
statute limits at which the indictment shall be entered in the Supreme
Judicial Court.
4. The Municipal Court must issue its precept or process to the
sheriff, commanding him to serve a copy of the indictment upon the
accused, and also to notify him of the order of the Court fixing the time
of entry. i
5. The sheriff must serve and return this precept or process to
the Court which issued it.
6. The clerk of the Municipal Court should give notice to the Chief
Justice of the Supreme Judicial Court of the finding of the indictment.
7. The clerk transmits the original indictment to the Supreme
Judicial Court; and the officer whose duty it is to enter the indictment
in the Supreme Judicial Court, produces to that Court a record properly
authenticated, showing that the five first things or matters have been
done in the Municipal Court. The Supreme Judicial Court, in the
language of the statute, "shall then and there have full cognizance
and jurisdiction."
The design and result of these provisions is a legal transfer of the
accusation and of the party accused, from one Court to the other.
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