this case; and he prayed a writ of certiorari to be directed to the Right Honourable William Lord Mansfield, Chief Justice of his Majesty's Court of King's Bench, to certify the said information to their Lordships. That the said certiorari can only tend to delay, there being no variance between the said record and information; and therefore praying that the said plaintiff might be ordered to sue forth and return to their Lordships the writ of certiorari obtained by him, by such short day as their Lordships might be pleased to appoint; and that their Lordships might be also pleased to order the said errors to be argued at their Lordships' bar on such day as to their Lordships might seem meet. Whereupon the agents on both sides, as also the clerk in court for the crown in the Crown-office, were called in and heard at the bar; and, being withdrawn, it was ordered that the plaintiff do return the writs of certiorari in two days.

14 December.-The House being informed "that the clerk in court for the King in the Court of King's Bench, attended from the Court of King's Bench with the returns to the writs of certiorari; " he was called in, and delivered the same at the bar, and also the original information annexed to the returns; and then he withdrew.

15 December. Upon reading the petition of the Attorney-General, setting forth that the plaintiff had prayed certiorari; and the information being now certified to their Lordships, and the petitioner having rejoined to the errors assigned; and as the plaintiff had not expedited the proceedings in the said writ of error so much as he might have done, and as the speedy hearing of the same before their Lordships was of the utmost consequence to public justice; praying that their Lordships would be pleased to appoint such short day for arguing the said errors as to their Lordships should seem meet; it was ordered that the House would hear the said errors argued by counsel at the bar on Wednesday next.

The following are precedents of various points of practice respecting certiorari.

Atkinson v. The King, 6 May, 1785.-Upon reading the petition of the plaintiff in error, setting forth at great length that the proper officer, who had refused to enter an award of the several writs of error prayed for, might be ordered to do so; counsel were ordered, and the Judges summoned to attend.

10 June. The opinion of the Judges was given as follows:-"We do not find any instance where a court of error, after errors assigned, and before in nullo est erratum pleaded, has refused to award a writ of certiorari to certify any matter remaining of record in the court from which the record is removed, such matter being referred to in the record of the judgment, and tending to verify such errors. We are therefore of opinion that a writ or writs of certiorari, directed to the Chief

Justice of the Court of King's Bench, may be awarded to certify the writ of certiorari by which the indictment in this case was removed into the Court of King's Bench and the return thereof." Ordered that an award be entered in due form of a writ of certiorari to the Chief Justice of the Court of King's Bench, to certify the original writ of certiorari upon which the indictment against the petitioner was removed into the said Court of King's Bench, and the return thereof; and also to certify the writs of venire facias and the distringas corpora juratorum in the petition mentioned.

Edwick v. Doe, 1 June, 1792.-Petition of the defendant in error, setting forth that the plaintiff had assigned general errors, and that he also alleged diminution, and prayed certiorari; and that the writ of error was for delay, &c.; and praying that he return the writ on such short day as to their Lordships should seem meet. Same day a counter petition by plaintiff, setting forth the standing order, and praying their Lordships to grant him the time thereby allowed. Ordered that the plaintiff do return the said writ of certiorari on this day week.

Britt v. Doe, 12 Nov., 1801.-On defendant's petition for a return of certiorari by a short day, and counter petition by the plaintiff; ordered to make return pursuantly to the standing order.

Summons v. Doe, 13 Aug., 1807.-Plaintiff in error ordered to return the writs of certiorari instanter. See also to the same effect Bradshawe v. Carrick, 6 Aug., 1807.

Lawson v. James, 12 Feb., 1817.-One Warburton, the bearer of the transcript, said that the plaintiff's counsel alleged it was not complete, which the clerk of the errors did not deny, there being a part of the original record (certiorari and return) not included. Ordered that the transcript be delivered in de bene esse, subject to the further orders of the House.

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21 Feb. Whereas plaintiff has assigned errors alleging diminution, and has prayed that his Majesty's writ of certiorari may be awarded ;-ordered that the same be forthwith sued out, and directed in the usual manner as in the like case is accustomed, for the more perfect certifying of the record into this House, within ten days next ensuing the date of this order.

Lawson v. Molony, 1821.-Petition presented on behalf of the defendant in error, that the plaintiff do show cause why the writ of certiorari, and the return made thereto, should not be quashed. Report from the Appeal Committee, that the matter should be argued by one counsel of a side; and afterwards upon such argument,-Ordered that the writ of certiorari and the return thereto be quashed.

The Standing Order No. 54, while it provided that upon allegation of diminution and prayer of certiorari, "the Clerk of the Parliaments should enter an award thereof

accordingly;" omitted, nevertheless, to arm the party with a warrant, calling on the proper officer to prepare and issue the writ. The consequence was, that in the following case a difficulty arose, which is thus stated in the Journals:

Bernardiston v. Chapman, 19 Feb., 1717.-The House being informed that errors were assigned, and diminution therein alleged, and a certiorari prayed and awarded; and also that application having been made to Mr. Fish, one of the Cursitors of London and Middlesex, for a writ of certiorari accordingly; the same was refused by the proper officer, who insisted on having a special order of the House, or a warrant from the King or Counsel, for that purpose: and the standing order of 1661, No. 54, being read, and the solicitor of the plaintiff being examined, and Mr. Fish having been ordered to attend, it was ordered that the Clerk of the Parliaments do give a certificate that diminution is so alleged, and certiorari prayed and awarded.

With the view of preventing similar impediments for the future, the Standing Order No. 105 () was immediately passed; by which it is provided,

That in all cases upon writs of error depending in this House, when diminution shall be at any time alleged, and a certiorari prayed and awarded before in nullo est erratum pleaded, the Clerk of the Parliaments shall, upon request to him made, give a certificate that diminution is so alleged, and a certiorari prayed and awarded thereof.

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This certificate being produced to the Clerks of the Petty Bag (who now perform the functions of the Cursitors), the writ of certiorari will be prepared, passed under the Great Seal, and issued thereupon in the usual

manner.

The form of the writ of certiorari may be as follows:

Victoria, &c.-To our right trusty and well-beloved the Right Honourable Thomas Lord Denman, our Chief Justice assigned to hold pleas in our Court before us, greeting. Being willing, for certain reasons, to be certified whether any (describing the document) be filed in our Court before us, for one C. D., to prosecute a writ of error for the reversal of the judgment in a plaint which was in our Court before us, between A. B. and the

(4) See Appendix, No. 1

said C. D. of a plea of debt (or as the form of action was); we command you that, searching the files of our same Court before us in your custody of record remaining, what of the said, &c. [describing the document], and what you shall find, you certify to us here, in our present Parliament, without delay, and this writ (*). Witness ourself, &c.

Care must be taken that the writ do not bear teste before the assignment of errors (').

The Judge to whom the writ of certiorari is addressed being attended therewith, his Lordship will thereupon cause the requisite search to be made, and make a return thereupon as follows:

Having searched the files of the Lady the Queen, before the Queen herself, being in my custody of record, I find [describing the document]. And this I certify to the Lady the Queen, in this present Parliament, as within I am commanded. (Signed) Denman.

It is, however, to be observed that in many instances, the sole purpose of alleging diminution is delay; and when such is the case, the party does not sue out the certiorari, his object (ten days' additional time) being attained by merely praying certiorari.

(e) This form may easily be adapted to any circumstances that may arise.

() 1 Archbold, 383, and the authorities there cited.

PRACTICE ON WRITS OF ERROR.

CHAPTER THE SIXTH.

Of Joinder.

Writ of scire facias ad audiendum errores, 406.—Observations of Sir Matthew Hale, ib.-Last example of scire facias, 408.—Modern Practice, 409.-On Default by Defendant, Petition to reverse or to hear ex parte, 410.-Form of Joinder, 411.

THE ancient mode of requiring the defendant in error to appear and join issue in Parliament, was by writ of scire facias awarded upon the assignment of errors.

This writ, issuing out of Chancery, was directed to the Sheriff, requiring him to give notice to the defendant ad audiendum errores.

The methods of proceeding, and the gradual changes introduced from time to time, are thus learnedly discoursed upon by the greatest of Parliamentary authorities (a).

When the Chief Justice brought up the record, the record was read, and, in ancient time, entered of record in the Rolls of Parliament. And then the party complaining assigned his errors in writing, and thereupon had a scire facias to warn the defendant in the error to appear in the next

(*) Hale's Jurisdiction of Lords, p. 148.