ceedings to

mandamus to compel justices to do a certain act, The proare briefly these:- -The party complaining causes obtain the an application to be made upon affidavit (stating writ. all the necessary facts) to the Court of Queen's Bench, which, if a probable case be made out, grants a rule, calling upon the justices and the party on the other side, to show cause why a writ of mandamus should not issue, commanding such justices to do the act required. If the application is granted, a rule issues from the Crown Office accordingly, copies of which are served upon the justices and other parties who are called upon by the rule to show cause.

stances.

cause by

As regards showing cause against the rule by Showing the justices, this will be dependent upon circum- justices. If the application be with reference to some proceeding at sessions, the litigant parties, who are interested in supporting the decision, will probably be those alone who will interest themselves in opposing the rule, and the justices will content themselves with watching the proceedings, and acting afterwards in accordance with the decision of the court above. Should they, however, feel more deeply interested in the question at issue, as where it may involve the legality of some rule or practice framed or adopted by themselves, and think they should vindicate their proceedings themselves, they will do well to instruct the clerk of the peace to take all necessary steps for the purpose. If, however, the motion have been made with reference to some proceeding of justices at petty or special sessions, then, whilst it will equally be open to consider whether or not the duty of showing cause will not properly be left to the party in whose favour the justices have acted, yet, if they determine upon themselves opposing the rule, they will properly instruct their clerk to take all necessary steps for the purpose.

The argu

ment.

The substi

rule for the

writ.

The rule, on coming on for argument, is either made absolute or discharged; and, if the latter, with or without costs, at the discretion of the court. If made absolute, the writ of mandamus issues out of the Crown Office, in which case the justices will either obey it by performing the act they are called upon to perform, or they will make a return, setting forth the reasons why they have not obeyed it. In many cases of doubt and difficulty, the court will direct the writ to issue, in order that a return may, in fact, be made, the better to deliberate upon the facts and law; and in order that the parties interested may have an opportunity of questioning their decisions, upon a writ of error. Upon application also for that purpose, where the justices are indisposed to make a return, the court will permit third parties to make a return to the mandamus, if they can show that they have an interest in the question involved.

It may here be observed, that, to facilitate tution of a justice, and make the performance of the duties of the justices more easy and the better protected, the 11 & 12 Vict. c. 44, s. 5, has given a further process in cases where a mandamus has before been the only one, by enabling the party aggrieved to apply for a rule, calling upon the justice or justices, and the party to be affected by the act of the justice or justices, to show cause why such act should not be done; and it enacts, that if, after due service of such rule, good cause shall not be shown against it, the court may make the same absolute, with or without, or upon payment of costs; and the justices, upon being served with the rule absolute, are to obey it, and do the act required, and no action or other proceeding is to be commenced or prosecuted against such justice or justices for having obeyed such rule. This provision, however, whilst it does not in any way abrogate the

proceeding by mandamus, is applicable only to such simple questions as can be conveniently argued and disposed of upon a rule, and not to the more important questions which will still be the proper subjects of an application for a writ of mandamus.

To pursue this subject further in these pages can hardly be desirable; since to go deeper into it would involve the necessity of considering the entire law of mandamus, and the practice upon it-matters which should be sought and learned in the many useful volumes specially devoted to their consideration.

CHAPTER XXVI.

THE WRITS OF CERTIORARI AND HABEAS CORPUS. In the preceding chapter we have explained the means whereby justices are compelled to fulfil those duties which the law has cast upon them. It will be now convenient to consider by what means and in what manner the proceedings of justices are restrained or reversed where they either act without jurisdiction or exceed it.

certiorari

The Court of Queen's Bench being invested When the with a general superintending power over all writ of courts of inferior jurisdiction, and an exclusive will issue. superintendence over inferior criminal tribunals, is wont to exercise that jurisdiction where its interference is requisite to curb the proceedings of such courts through the means of its writ of certiorari, which is defined to be an original writ directed in the Queen's name to the judge or officers of inferior courts, or to justices at sessions or out of sessions, commanding them to certify or to return the records or proceedings in

When a certiorari will issue.

a judicial matter depending before them, to the end that such further may be done thereon as of right and according to the law and custom of England may seem fit to be done.

Unless (as in some cases it happens) the writ of certiorari is expressly taken away, it is the ordinary mode of testing the legality of the proceedings of justices where those proceedings have assumed the shape of a conviction or order. Its proper purpose (as far as it concerns the subject of their pages) is that of getting a conviction or order of justices removed into the Court of Queen's Bench to the end that it may be quashed for some defect apparent upon its face. The granting of the writ, though not a matter of right, is never refused if a probable ground be shown that the court below has exceeded its powers. The object of the writ is to enable the court above to ascertain whether or not the justices had jurisdiction to do the act complained of. If it appear upon the face of the conviction or order that the justices had in fact jurisdiction, the court will not inquire into the question as to whether or not they came to a sound conclusion; such court not being a court of appeal in these cases, but merely a tribunal to keep inferior courts within the limits of their proper functions. If, therefore, the conviction or order be good upon its face, no allegations can be received impeaching the correctness of its statements, nor can any extrinsic evidence be adduced to contradict or explain its obvious meaning, there being but one purpose for which such evidence can be adduced, namely, to show that the case was not one over which the justices had any jurisdiction, and that their entering upon it in the first instance was wholly unwarranted and illegal: (Brittain v. Kinnaird, 1 Bos. & P. 432; Care v. Mountain, 1 Man. & Gr. 257; Reg. v. Bolton, 1 Q. B. 66.)

moved for.

By the 13 Geo. 2, c. 18, s. 5, the certiorari When cermust be moved for within six calendar months tiorari to be after the conviction or order shall have been made, which period runs from the time when the conviction or order becomes operative, though more than six months may have elapsed since the actual making of such conviction or order, as where it has been the subject of an appeal, in which case the time would commence running from its determination.

motion.

By the same statute it is provided that no Notice of certiorari is to be granted "unless it be duly proved upon oath that the party or parties suing for the same, hath or have given six days' notice thereof in writing to the justice or justices or to two of them (if so many there be) by and before whom such conviction, judgment or order, or other proceeding shall be so had or made," &c.

tion for the

The applicant, being prepared with all necessary The applicamaterials, causes a motion to be made to the court writ. for a rule calling upon the justices to show cause why a certiorari should not issue requiring them to return the conviction and order complained of. If sufficient grounds are presented to the court, the rule will be granted. This will be a rule nisi, and upon its return, the justices will be at liberty to show cause. If the court deem the objection well-founded, it orders the rule to be made absolute for the writ to go. If, however, cause is sufficiently shown, the court discharges the rule with costs.

It is not uncommon for the court, upon the application of the party seeking the rule, to grant the certiorari in the first instance, upon which, without argument, the conviction or order is returned, and, by due process, the case is placed in the crown paper for argument, when, in its turn, it comes on for determination, and in that way receives the judgment of the court. This, indeed, would seem now to be the most usual