Page images
PDF
EPUB

sheriff to summons the sheriff, new summons to the jurors, constables, &c. &c., which was not so in the case above-mentioned.

In counties, the adjournment must be by two justices, at the least; for it is laid down, that if there be not justices enough present to hold a Sessions, there are not enough to adjourn it legally; and if in such a case the Sessions were actually adjourned, every act done at such adjourned Sessions would be void. R. v. Westrington, 2 Bott, 981. In boroughs within the Corporation Act, the adjournment is by the recorder or his deputy; and in their absence it may be by the mayor. 5 & 6 W. 4, c. 76, s. 106. The adjournment is made by proclamation by the cryer of the Court, thus: "Oyez, Oyez, Oyez, All manner of persons who have any thing further to do at the General Quarter Sessions of the Peace for this county, let them depart hence, and give their attendance at [“ this place" or at in this county,"] on ["the morrow" or "Tuesday the 3d day of April instant," as the case may be]“ at [nine] of the clock in the forenoon. God save the King and this honourable Bench." The clerk of the peace makes a minute of the adjournment in his book accordingly.

[ocr errors]

The Sessions may be thus adjourned, either until the next day, or to any other day before that on which the next Quarter Sessions are to be holden. See 2 Str. 832, 865. Thurston v. Slatford, Lutw. 911. Linfield v. Battle, 2 Salk. 605. Where an indictment was found against a constable, for not obeying a justice's order, at the Epiphany Sessions, and the defendant was afterwards tried, convicted, and sentenced at an adjournment of those Sessions holden on the 3d May, (which was after the Easter Quarter Sessions had begun): upon error brought, the Court reversed the judgment, on the ground that the Court of Quarter Sessions have no authority by law to adjourn to a day beyond that on which the next Sessions are to be holden. R. v. Grince, T. 4 G. 1. 19 Vin. Ab. 358. It has therefore been holden, that in stating the style of an adjourned Sessions, in the caption of an indictment, order of Sessions, or the like, it is not sufficient to say at such a Sessions holden by adjournment on such a day,' but the holding of the original Sessions, and the day on which it was holden, must be set forth, and that it was continued from thence to such further time by adjournment, in order to show that no other Sessions had intervened; and for this defect, in one case, judgment upon an indictment was arrested, and in another an indictment was quashed; R. v. Fisher, R. v. Saunders, 2 Str. 865; and in another, an order of Sessions was quashed. St. Michael Coslany v. Ipswich, 2 Str. 831.

Where an application was made to a Court of Quarter Sessions under a particular act of parliament, and the Sessions then entertained it, but adjourned the consideration of it to a future day certain, before which day the act of parliament was repealed; the Court of King's Bench held that the jurisdiction of the Ses

sions was thereby determined, and that they could not proceed any further in the matter. R. v. JJ. of London, 3 Burr. 1456.

6. Decisions of the Sessions, in what Cases, and how revised.

By Writ of Error.] After judgment given against a defendant upon an indictment at Sessions, if the indictment be bad in substance, or the judgment be erroneous, or any other defect in substance appear upon the face of the record, the defendant may have the judgment reversed by writ of error; or where his pro perty, real or personal, is forfeited by the judgment, the writ of error may be brought after the death of the defendant, by his heir or personal representative respectively. See 2 Bac. Abr. Error, A. 1, 2. And in ordinary cases, it is the only way in which the judgment can be reversed. Rice's case, Cro. Jac. 404. R. v. JJ. of W. R. Yorkshire, 7 T. R. 467. 9 Vin. Abr. Error, D. But if the judgment be given by persons who have no jurisdiction in the matter, as where a commission authorizes an indictment to be taken before A, B, C, and twelve others, and by colour thereof the commissioners proceed on an indictment taken before eight persons only, there the books say that the judgment may be falsified, by shewing the special matter, without writ of error, because it is void; 3 Inst. 231. 2 Hawk. c. 50, s. 3. 4 Bl. Com. 390, 391; which appears to me to mean, that upon the record being brought before the Court of King's Bench by certio rari, that Court, upon a statement of the special matter on affidavit, uncontradicted, will reverse the judgment. Or, if such matter appear upon the face of the record, the judgment may be reversed upon writ of error. 2 Bac. Abr. Error, A. 1.

But judgment must have been given, otherwise a writ of error will not lie. And therefore formerly, when a man was indicted for felony and found guilty, and he prayed his clergy, which was allowed to him, he could not afterwards have a writ of error; for he was convicted only, not attainted. Long's case, Cro. Eliz 489. 2 Bac. Abr. Error, A. 2. Vin. Abr. Error, C.

And the judgment must have been upon an indictment; for no writ of error will lie upon a mere summary conviction; Anon. Vent. 33. Anon. Id. 171. Berry's case, 2 Jon. 167. Vin. Abr. Error, D. 2 Bac. Abr. Error, A.; not even upon a conviction of forcible entry by justices of the peace upon view; Anon. Vent, 171; nor in any other case.

And it must be a judgment against the defendant; 3 Inst. 214. 2 Bac. Abr. Error, A. 1; for there is no instance of error being brought upon a judgment for a defendant after an acquittal.

There seem to be two modes of proceeding, either of which the party may adopt at his option: he may bring the writ of error directed to the justices, and have the record returned to the Court

of King's Bench under and by virtue of it; or he may have the record removed into the Court of King's Bench by certiorari, and then bring a writ of error coram nobis upon it. R. v. Foxley, 1 Salk. 266. 3 Com. Dig. Error, B.

Before a writ of error in a criminal case, however, is sued out, the attorney general's fiat for it must first be obtained. This is granted as a matter of course in misdemeanors, upon sufficient cause being shewn for it; but in cases of felony, it is granted only ex gratiá. 4 Bl. Com. 392. See Com. Dig. Error, A. Eq. Ca. Abr. 414. Gargrave's case, Roll. Rep. 175. Vin. Abr. Error, F. The writ is then sued out in the ordinary way with the cursitor, the fiat being his warrant to do so. It is then delivered to the clerk of the peace, and he immediately makes up the record on parchment in this form, beginning with the caption of the indictment, thus:

in the

day

"Berkshire to wit: At the General Quarter Sessions of the Peace holden at in and for the said county, on the of year of the reign of our sovereign lord William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, defender of the faith, before Ř. B. and H. B. esquires, and others their associates, justices of our said Lord the King, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed, by the oath of twelve good and lawful men of the county aforesaid, sworn and charged to inquire for our said Lord the King and for the body of the county aforesaid, it is presented that [A. B. late of

in the county aforesaid, yeoman," &c. continuing the indictment to the end. And then in continuation, thus:] "And the said A. B. forthwith being asked concerning the premises in the said indictment above laid to his charge, how he will acquit himself thereof, saith that he is not guilty thereof, and of this he puts himself upon the country, &c. And W. S. clerk of the peace for the said county, who prosecutes for our said Lord the King in this behalf, doth the like. Therefore the sheriff is commanded that he cause to come immediately before the said justices &c. twelve &c. by whom &c. and who neither &c. to recognize &c. because as well &c. And the jurors of the said jury by the said sheriff in this behalf impanelled, to wit," [here name the jurors] "being called, now come, who being chosen, tried and sworn to speak the truth of and concerning the premises, upon their oath say that the said A. B. is guilty of the [premises," or in cases of felony, "of the felony] in the said indictmemt above laid to his charge, in manner and form as by the said indictment is above supposed against him. Whereupon all and singular the premises being seen, and by the said justices here fully understood, it is considered by the Court here that the said A. B., for the offence aforesaid, be [imprisoned and kept to hard labour in the house of correction for the county afore

said, at in the said county, for the space of six calendar months," or as the sentence may be.]

It is not necessary to set out the names of the grand jurors in the caption of the indictment; it is sufficient to say "twelve good and lawful men of the county" &c. as in the above form. Aylett v. R., in error, 3 Bro. Parl. C. 529.

Having thus engrossed the record on parchment, let the clerk of the peace indorse upon the writ of error the following return: "The record and proceedings, whereof mention is within made, appear in a certain schedule to this writ annexed. The answer of

the justices within named." Or it may be in a similar form to the return to a certiorari, given post, p. 45. Let the record be then annexed to the writ, and transmitted to the Crown Office of the Court of King's Bench in London.

As to the proceedings in the Court above, upon the writ of error, it is beside the purpose of this little work to treat of them.

By Certiorari.] The writ of certiorari is a writ issuing from the crown side of the Court of King's Bench, directed to the justices at Sessions, justices of the peace, or the judges of inferior courts, requiring them to certify to that Court some indictment, conviction, order of Sessions, order of justices, or other matter of a judicial nature (See 1 Burn J., by D. & W. 536.) depending before them, in order that the same may be disposed of there in such manner as to the Court shall seem fit. (See the form of the writ, 10 Went. 473.) By means of this writ, the Court of King's Bench exercises its superintending jurisdiction over those inferior tribunals, and quashes or confirms their acts, or assumes to itself the cognizance of matters which, from circumstances, can be proceeded upon with more certainty of justice to the parties before that Court, than before the inferior tribunal. And this jurisdiction is so inherent in the Court of King's Bench, that nothing can deprive it of the right to issue this writ, or parties of their right to apply for it, but the express words of an Act of Parliament, forbidding them to do so. R. v. Abbott, 2 Doug. 553, n. 113. Thus, where a statute gave an appeal to the Sessions against a conviction, and provided that it should be finally determined there only, and no other Court should intermeddle with causes of appeal upon that Act: yet the Court of King's Bench held that their right to issue a certiorari to remove the conviction, even after an appeal, was not thereby taken away. R. v. Moreley, Reeve and others, 2 Burn, 1040. i W. Bl. 231. S. P. R. v. Jukes, 8 T. R. 542. So where a statute creating an offence, punishable upon indictment, directed that any person charged with it should be committed to prison, "there to remain until the next General or Quarter Sessions, and upon conviction of the said offence at the said General or Quarter Sessions, shall suffer the pain and penalty of £20.:" it was argued that this, by ne

cessary implication, confined the cognizance of the offence to the 'General or Quarter Sessions, and that the Court therefore could not remove the indictment from the Sessions by certiorari; but the Court held otherwise, and the defendants, being tried and convicted at nisi prius before Lord Kenyon, C. J., received judgment in the Court of King's Bench. R. v. Hube and others, 5 T. R. 542. S. P. R. v. Wadley, 4 M. & S. 508. So, where a statute made the buying of certain yarn punishable on summary conviction, gave an appeal to the Sessions, and took away the certiorari by express words, and another statute, the Vagrant Act, (which did not expressly take away the certiorari,) made the party punishable as an incorrigible rogue; and a party being convicted of one offence under the first statute, and being for a second offence committed until the Sessions by a magistrate, appealed against the conviction, which was accordingly quashed for some defect, but the Sessions ordered him to be imprisoned and kept to hard labour for two years, as an incorrigible rogue, for the second offence upon an application for a certiorari to remove those proceedings, which was resisted on the ground that the provision in the first Act, taking away the certiorari, must be deemed to extend to the second Act by necessary implication; the Court held that, as far as the proceedings were had under the Vagrant Act, the certiorari might be awarded, but not as to such of the proceedings as were under the first Act. R. v. Terrett, 2 T. R. 735. Where the 12 G. 1, c. 3, which punished cloth manufacturers by summary conviction, for paying their workmen in goods, was extended to silk manufacturers by stat. 22 G. 2, c. 27, which latter statute also created other offences, and by stat. 17 G. 3, c. 56, the certiorari is expressly taken away in all cases of offences against stat. 22 G. 2, c. 27: the Court held that the effect of 17 G. 3, c. 56, was to take away the certiorari only as to the offences created for the first time by stat. 22 G. 2, c. 27, but that it did not take away the certiorari as to silk manufacturers paying their workmen in goods. R. v. Rogers, 5 B. & Ald. 773. Where an Act relating to appeals by overseers against the disallowance of items in their accounts, took away the certiorari by express words, this was holden not to extend to an order of Sessions upon an appeal by a parishioner against the allowance of overseers' accounts. R. v. Bird, 2 B. & Ald. 522. But where an Act, which made it punishable upon summary conviction for masters to employ children in factories more than a certain number of hours in the day, expressly took away the certiorari; and a second Act made other provisions and restrictions; and a third Act extended the former Acts to foremen as well as masters, and made other restrictions, and altered the penalties &c., and by this last Act it was enacted that all the powers, provisions, exemptions, matters, things &c. in the former Acts, should be "as good, valid and effectual for carrying this

« PreviousContinue »