permits outlawry for treason, to be awarded against persons residing abroad,)-if a person so outlawed shall, within one year, yield himself to the chief justice, and offer to traverse the indictment, he shall be admitted so to do; and, being acquitted of the indictment, shall be discharged of the outlawry.

[Thus much for process to bring in the offender after indictment found; during which stage of the prosecution it is, that writs of certiorari facias are usually had, though they may be had at any time before trial (q);]—or, as it seems, at any time before judgment is given, and even afterwards, where error does not lie (r);-[to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction, into the Court of Queen's Bench. Which is the sovereign ordinary court of justice in causes criminal;] and has consequently the power of issuing this writ to any court of rank subordinate to its own in causes of this description, unless the certiorari be taken away by the express words of some Act of Parliament (s). A certiorari is frequently granted [for one of these four purposes: either, 1, to consider and determine the validity of indictments, and the proceedings thereon, and to quash or confirm them as there is cause ; or, 2, where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed in order to have the person against whom it is found, tried at bar, or before the justices of nisi prius (t),] according to the course of a civil action (u); or, 3,-[it is so removed in order to plead the royal pardon there; or, 4, to

(q) As to certiorari in civil proceedings, vide sup. p. 29.

(r) 1 Chit. Cr. L. 380. (s) Vide sup. p. 399.

(t) See, however, the provision of 19 & 20 Vict. c. 16, post, pp. 471,472.

(u) 14 Hen. 6, c. 1; 6 Hen. 8, c. 6; 4 Rep. 43; 2 Hale, P. C. 41; et vide sup. p. 387. By 11 Geo. 4 & 1 Will. 4, c. 70, s. 9, the judg

ment in such cases, may be pronounced during the sittings or assizes by the judge before whom the verdict shall be taken; and the judgment shall be indorsed on the record, and afterwards entered on the record in court; and it shall be lawful for the judge either to issue an immediate order for execution, or to respite the execution, &c.

[issue process of outlawry against the offender, in those counties or places where the process of the inferior courts will not reach him (x). Such writ of certiorari, when issued and delivered to the inferior court, for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction of such inferior court; and makes all subsequent proceedings therein entirely erroneous and illegal,] unless the Court of Queen's Bench remands the record to the court below, to be there tried and determined. [A certiorari may be granted at the instance of either the prosecutor or the defendant;] and the former was once entitled to demand it as a matter of right, though the application of the latter has always been dependent on the discretion of the court (y). But now, by 5 & 6 Will. IV. c. 33, and 16 & 17 Vict. c. 30, s. 5, no certiorari shall issue at the instance of the prosecutor, or of any other person (except the attorney-general), without motion first made in the Court of Queen's Bench, or before some judge of that court, and leave obtained, in the same manner as where application is made on the part of the defendant: and moreover, before the allowance of any writ of certiorari, the party on whose behalf it is applied for, must enter into a recognizance before a judge of the Queen's Bench or justice of the peace, in such sum and with such sureties as the court or a judge may direct, and with such conditions as are contained in the previous statutes 5 & 6 W. & M. c. 11, and 8 & 9 Will. III. c. 33, passed in relation to the same subject (z).

(x) 2 Hale, P. C. 210.

(y) 4 Bl. Com. 321. In the exercise of this discretion, a certiorari has been seldom granted to remove indictments from the justices of gaol delivery; or after issue found, or confession of the fact, in any of the courts below. (See Hawk. P. C. b. 2, c. 27, s. 27; R. v. Gwynne, Burr. 749; R. v. Kingston, Cowp. 283; R. v. Harrison, 1 Chit. Rep. 571.)

(2) By 5 & 6 Will. 4, c. 33, a recognizance was required only where the writ was obtained on the part of the defendant. But by 16 & 17 Vict. c. 30, s. 5, it is also required from the prosecutor; and this last statute provides, moreover, for the payment of the costs incurred subsequent to the removal, either by the defendant or the prosecutor, according to the ultimate issue of the proceedings.

And by 16 & 17 Vict. c. 30, s. 4, reciting that by reason of the establishment of a court of criminal appeal, the removal of indictments by writ of certiorari is seldom necessary for the decision of questions of law, it is enacted, that no indictments, except against bodies corporate not authorized to appear by attorney in the court in which the indictment is preferred, shall so be removed into the Court of Queen's Bench, or into the Central Criminal Court, either at the instance of the prosecutor or of the defendant, (other than the attorney-general acting on behalf of the Crown,)-unless it be made to appear to the court from which the writ is to issue, by the party applying for the same, that a fair and impartial trial of the case cannot be had in the court below; or that some question of law of more than usual difficulty and importance is likely to arise upon the trial; or that a view of the premises in respect whereof any indictment is preferred, or a special jury, may be required for the satisfactory trial of the same.

Another Act of recent date (19 & 20 Vict. c. 16) with regard to the trial of offences, the indictment or inquisition for which has been removed by certiorari into the Court of Queen's Bench,-contains provisions, of which some notice is proper in this place. 1. Whenever any indictment or inquisition for any felony or misdemeanor committed or supposed to have been committed in a place out of the jurisdiction of the Central Criminal Court, has been so removed, the Court of Queen's Bench (or a judge thereof in vacation) is empowered to order the trial thereof to be at the Central Criminal Court,-if it shall appear expedient to the ends of justice that such course should be taken (a). 2. Wherever any person shall have been

As to the terms on which a certiorari will be granted, see The Queen v. Jewell, 7 Ell. & Bl. 140. No recognizance on removal is required from the prosecutor, in the case of an indictment found at quarter sessions

against a corporation. (See The Queen v. Manchester, ib. 463.)

(a) 19 & 20 Vict. c. 16, s. 1. By sect. 2, on notice of such order, the indictment or inquisition is to be transmitted, by the proper officer of

committed or held to bail for any such felony or misdemeanor, the Court of Queen's Bench, or judge in vacation, if it shall appear expedient to the ends of justice that the person charged should be tried at the Central Criminal Court, may make an order to that effect (b); and thereupon a writ of certiorari shall be issued to the justices of oyer and terminer, or of the peace, or coroner, (as the case may require,) commanding them to certify and return to that Court any indictment or inquisition which is then pending or shall thereafter be found against such person (c). 3. Wherever any certiorari shall be delivered to any court for the purpose of removing any indictment or inquisition therefrom, any person charged by such indictment or inquisition who shall then be in prison, shall not be discharged by such court, but shall remain there till discharged by due course of law (d).

[At this stage of the proceeding also-viz., after indictment found, and before arraignment-it is, that indictments found by the grand jury against a peer must, in consequence of a writ of certiorari, be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain (e). And also, that in places two universities, indict

of exclusive jurisdiction, as the ments must be delivered up, on challenge and claim of conusance, to the courts therein established by charter,

the Queen's Bench, to the proper officer of the Central Criminal Court.

(b) By 25 & 26 Vict. c. 65, a similar provision is made in reference to the trial of persons subject to the Mutiny Act, who are charged with having committed murder or manslaughter out of the jurisdiction of the Central Criminal Court, on persons subject to that Act..

(c) Sect. 3. By sect. 4, the justice, coroner, clerk of the peace or of assize, or other person having the custody of the indictment or inquisition, is to transmit any recogni

zances, depositions, examinations, or informations relating to the offence charged, which shall be in his possession, to the proper officer of the Central Criminal Court.

(d) Sect. 11. See ss. 8, 9, 10, as to the recognizances required, (in cases of orders made, or writs of certiorari issued under this Act,) from the person charged, or the prosecutor, or witnesses, to take their trial, prosecute or give evidence, (as the case may require,) at the Central Criminal Court. (e) Vide sup. pp. 382, 383.

[and confirmed by Act of Parliament, to be therein respectively tried and determined (f).]

Of process upon informations, not much requires to be said. In general the course of proceeding is similar to that upon indictments: but the first process is by writ of subpæna instead of venire; and if the defendant does not appear on this, a capias is awarded (g). Supposing it to be necessary, however, to proceed to outlawry, the first process is by venire facias, as in the case of an outlawry upon an indictment for a misdemeanor, and not by subpœna (h).

(f) Vide sup. p. 405 et seq. (g) 1 Chit. Cr. L. 865.

(h) 1 Chit. Cr. L. 866.