in the state of North Carolina, did this day produce to me bills of sale for the within mentioned cattle according to law; and did moreover take an oath before me, that he knew of no more cattle in his drove, than those contained in the within manifest and bills of sale. Given under my hand and seal, &c.

(J) Warrant against a driver for failing to produce a manifest.

To the sheriff, or any constable of the county of

county, to wit:

Whereas complaint hath this day been made before me, JP, one of the commonwealth's justices of the peace for the said county, by A J, that A D hath brought into this county, from the state of North Carolina, a drove of nett cattle, and hath failed to produce to the next justice of the county in this state a manifest, and bills of sale for the said cattle, and to take the oath prescribed by law. These are therefore, in the name of the commonwealth, to authorise and require you to raise sufficient force within the said county to seize and detain the said drove of cattle. And I do further hereby require you to bring the said A D before me, or some other justice of the peace for this county, to answer the premises. Herein fail not at your peril; and make return how you have executed this warrant. Given under my hand and seal, &c.

If the cattle are brought into any county in this state, to be carried into any other state; for neglect to produce a manifest, &c. say: hath brought head of nett cattle into this commonwealth, in order to be driven into the state of Maryland, and hath failed to produce to the next justice of the county wherein they were brought, &c.

(K) Judgment.

On hearing the matter of the within complaint, it is adjudged that the drove of cattle within mentioned, amounting to head, are forfeited; therefore the sheriff is directed to sell the same, in like manner as goods taken in execution, and to return an account of the sales, as also the expence of maintaining the said cattle from the time of their seizure till such sale, to me, or some other justice of the peace for this county, that the same may be adjusted, and the money arising therefrom applied according to the directions of the act of the General Assembly in that case made and provided. Given under my hand, &c.

(L) Justice's order on return of the sales.

The sheriff having returned an account of sales amounting to dollars, and claiming dollars, as his commission thereon, also dollars, as an allowance for keeping the said cattle from the day of the seizure to the day of sale, at the rate of three

cents each for every twenty-four hours, and the same being examined and approved by me; and three months having expired since the sale, and no person except the driver and his employers having claimed any part of the said cattle, the said sheriff is allowed to retain the sum of dollars, for his commission and allowance as aforesaid, and is ordered to pay dollars, being one half of the residue of the amount of sales, to the overseers of the poor of the district, for the use of the said district; and

dollars,

the other half of the said residue, to the said A J, the informer. Given under my hand, &c.

(M) Order of restitution.

To the sheriff, &c. of

the

county, to wit:

county.

Whereas BO hath this day appeared before me, J P, a justice of peace for the said county, and duly proved his property to head of cattle, being part of a drove of

head, driven into this county from North Carolina by A D, and by me adjudged, on the day of last past, on the complaint of A J, to be forfeited, for failure of the said AD to produce to the next justice of the county a manifest, &c. of the said cattle according to law. These are therefore to require you to restore to the said BO the said

head of cattle, he first paying you for the same the sum of three cents per head each, for every twenty-four hours they have been maintained by you; and for so doing this shall be your warrant. Given, &c.

The foregoing precedents are drawn so as to suit those cases where all the business is conducted by the same magistrate. It may sometimes happen that process issued by one magistrate may be returned before another; in that case the precedents can easily be varied, so as to suit the particular situation of the case.

CERTIORARI.

THIS writ, like many others in the law, derives its name from one of the initial words used in it, while all the proceedings were in Latin.

It is an original writ, issuing out of a superior court, directed to the judges of an inferior one, for the purpose of certifying or removing the records of a cause depending before such inferior court to a supe

rior tribunal; and is usually granted upon a suggestion, supported by affidavit, that impartial justice will not be administered in the court below, in such cause.

Under this title will be shewn ;

I. In what cases it is grantable. II. In what manner to be granted and allowed. III. The effect of it. IV. The return of it.

I. IN WHAT CASES IT IS GRANTABLE.

A Certiorari lies in all judicial proceedings, in which a writ of error does not lie; and it is a consequence of all inferior jurisdictions erected by statute, to have their proceedings returnable into the superior court. Ld. Raym. 469, 580.

And therefore a certiorari lies to justices of the peace, even in such cases where they are empowered by statute finally to hear and determine. Haw. B. 2. c. 27. s. 22, 23.

But a certiorari shall never be granted to remove an indictment after a conviction, unless for some special cause; as where the judge below is doubtful what judgment to give. Ibid. sect. 31. But see Ld. Raym.

1452.

A plaintiff in an inferior court of equity will not be permitted to remove his cause by certiorari. Wyatt's Pr. Reg. 101.

See the case of Coopers v. Saunders, &c. (1 H. & M. 413, 420.) and judge Tucker's opinion in Wingfield v. Crenshaw. SH.&

M. 245.

II. IN WHAT MANNER TO BE GRANTED AND

ALLOWED.

For proceedings on writs of certiorari, as regulated by the laws of Virginia, see Rev. Code, p. 64, sect. 9; p. 67, sect. 51; p. 81, sect. 45; p. 81, 82, sect. 49, 50; p. 92, sect. 67; p. 163, sect. 26. Also, 2 Rev. Code, p. 135; p. 154, sect. 7; p. 155, sect. 12. Sess. Acts, 1808, ch. 6, sect. 13. See also, 2 Stra. 1227. 3 Burr. 1262, 2 Burr, 749. 2 Ld. Raym. 1452. 4 Burr. 2456.

III. THE EFFECT OF IT.

After a certiorari is allowed by the court below, it makes all the subsequent proceedings on the record that is removed by it erroneous. Haw. B. 2. c. 27. sect. 62.

But if a certiorari, for the removal of an indictment before justices of the peace, be not delivered before the jury be sworn for the trial of it, the justices may proceed. Ibid. sect. 64.

And the justices may set a fine to complete their judgment, after a certiorari delivered. Ld. Raym. 1515.

A certiorari removes all things done between the teste and return. Ld. Raym. 835, 1305.

A certiorari removes the record itself out of the inferior court, and therefore, if it remove the record itself against the principal, the accessory cannot there be tried. Haw. B. 2. c. 29. sect. 54.

And if the defendant be convicted of a capital offence, the person of the defendant must be removed by habeas corpus, in order to be present in court, if he will move in arrest of judgment. And herein the case of a conviction differs from that of a special verdict, where the presumption of innocence may be supposed to continue, and therefore the personal presence of the defendant in that case is not necessary at the argument of it. 2 Burr. 930.

If a supersedeas comes out of a superior court to the justices, they ought to surcease, although the supersedeas be awarded against law; for they are not to dispute the command of a superior court, which is a warrant for them. Cromp. 129.

IV. THE RETURN OF IT.

Every return of a certiorari ought to be under the seal of the inferior court, or of the justice or justices to whom it is directed; and if such court have no proper seal, the return may well be made under any other. Haw. B. 2. c. 27. s. 70.

Also, every such return must be made by the very same person to whom the certiorari is directed. For if it be directed to the justices of the peace of such a place, and the clerk of the peace only return it; or to the constable, or to the recorder of B, and the deputy constable, or deputy recorder return it, without shewing in the return that the principal had power to make a deputy, nothing is removed. Ibid.

sect. 71.

If the certiorari issue to use the record as evidence, then the tenor, if returned, is sufficient, and countervails the plea of no such record; but if the record is to be proceeded upon, the record itself must be removed, and this, whether it be before judgment or after; and in this case, the writ must be superseded, and not quashed, which can only be done on a view of the record itself. 2 Atk. [318.]

If the person to whom a certiorari is directed make a false return, the court will not stay filing it, on affidavit that it is false, except in a public case; because the remedy for a false return is either an action on the case at the suit of the party, or an information at the suit of the commonwealth. Dalt. c. 195.

If the person to whom a certiorari is directed do not make a return, then an alias, that is, a second writ; then a pluries, that is, a third writ, or causam nobis significes, shall be awarded, and then an attachment. Cromp. 116.

Besides these general rules, which are common to all certioraris, there are many times special directions about them, in particular

cases.

Form of a return of a certiorari, to remove an

indictment.

First, on the back of the writ endorse these or the like words:

The execution of this writ appears in a schedule to the same writ

annexed.

And that schedule may be thus, on a piece of a paper by itself, and annexed to the writ.

county, to wit:

I, JP, one of the commonwealth's justices of the peace for the county aforesaid, by virtue of this writ, to me delivered, do under my seal certify, unto the commonwealth's judges of the court of

the indictment of which mention is made in the within writ, together with all things touching the same indictment. In witness whereof I, the said JP, have set my seal to these presents. Given at

in the said county, the

day of

in the year of our Lord year of our foundation.

and in the Then take the record of the indictment, and close it within the schedule, and seal and send them up both together with the certiorari. It must be observed, that the above form will not suit every return. However, it may easily be varied so as to comply with the injunctions of the writ, which is all that is necessary.

CHALLENGE. See JURIES.

I. By the common law. II. By statute.

I. BY THE COMMON LAW.

CHEATS, punishable by the common law, may in general be described to be deceitful practices, in defrauding, or endeavouring to defraud, another of his known right, by means of some artful device, contrary to the plain rules of common honesty; as by playing with false dice, or by causing an illiterate person to execute a deed to his prejudice, by reading it over to him in words different from those in which it was written; or by persuading a woman to execute writings to another, as her trustee, upon an intended marriage, which in truth contained no such thing, but only a warrant of attorney to confess a judgment; or by suppressing a will, and such like. Haw. B. 1. c.

71. sect. 1.

2. It seems to be the better opinion, that the deceitful receiving of money from one man to another's use, upon a false pretence of having a message and order to that purpose, is not punishable by a criminal prosesution, because it is accompanied with no manner of artful contrivance, but wholly depends on a bare naked lie; and it is said to be needless to provide severe laws for such mischiefs, against which common prudence and caution may be a sufficient security. Ibid. sect. 2.