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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A58225 Reasons against passing the bill prepared, concerning writs of certiorari 1693 (1693) Wing R473A; ESTC R14428 2,445 1

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REASONS Against passing the BILL prepared concerning Writs of CERTIORARI IT is alledged in the Bill that by means of Writs of Certiorari whereby Indictments c. are removed into the Court of Kings-Bench Offenders escape Unprosecuted and Unpunished and the King loseth the Fines which would be imposed were not such Indictments removed And also intended to be Enacted in the said Bill That no Certiorari shall be granted but upon Motion in Court and the Cause for granting thereof to be specified in the Writ and the Certiorari shall onely be delivered at the Quarter Sessions of the Peace in open Court c. That all Indictments c. removed by Certiorari shall be effectually prosecuted and brought to Trial or Judgment or otherwise determined within the space of two Terms and within the County Pallatines within six months after the Certiorari returned or else Procedendo's ex Officio gratis shall be made and for default of making the Procedendo's The Master of the Office to forfeit for the first Offence forty pounds and for every other such Offence one hundred pounds It is humbly conceived That the Allegations in the Preamble of this Bill are grounded upon a mistake There being no delay in the proceedings against Offenders in the Court of Kings-Bench process being duly made out and Offenders more speedily and duly punished then at the Sessions of Peace or any Inferiour Court whatsoever For that forthwith after every Indictment is removed into the said Court Process are thereupon duly made out from Term to Term against the Offenders until they are Out-lawed if they do not appear If they do apear they must plead the next Term after or else Judgment may be entred against them If they do plead the Prosecutor may carry it to Trial and be allowed the third part of the Fine if they be Convicted by vertue of a Privy Seal enrolled in Court If the Prosecutor doth not try it the King doth not lose his Fine for unless the Defendent try it himself the next Assizes after his plea or submit to a Fine Process are duly made out until he be Out-lawed and after the Outlary is reversed he must try said Indictment or otherwise legally discharge it That the King doth not lose his Fines by reason of the removal Indictments For that more Fines come to the Kings use imposed upon Offenders in the Kings-Bench upon Indictments removed then out of all the Inferiour Courts though not one Indictment of a hundred is removed into the said Court. As to what is first intended to be Enacted by the said Bill That no Certiorari shall be made but upon motion made in open Court and delivered at the Quarter Sessions of the Peace c. It is Answered That except Certiorari's be made in the Vacation time without Motion in Court Persons can have little or no benefit by them For that the Quarter Sessions of the Peace by Law are to be kept in the Vacation time and before Motion can be made in Court in Term time for the Writ they shall be adjudged an punished without remedy And besides the great charge and trouble the persons will be put to in their Motions c. will prove a Remedy as bad if not worse then the Disease As for Example A man may be Indicted in the beginning of a Summer Vacation for forcible Entry or Detainer by one who pretendeth Title to his House or Land and Turned out of Possession and lose all his Summer profit of his Land and can have no remedy before Michaelmas Term. Or if a man be Indicted at a Private Sessions for a forcible Entry he shall be turned out of possession and have no remedy unless he can have a Certiorarie in the Vacation time And further the charge of a Certiorari by Motion in Court upon cause shewed will be at least a treble charge to the Subject Nay probably six times more than now it is As to what is next intended to be Enacted viz. That all Indictments c. shall be prosecuted and brought to Trial within two Terms c. It is Answered That there are no Assizes between Easter and Trinity Term nor between Michelmas and Hillary Term for Trial of such Indictments and Process cannot be made out but from Term to Term and if a special Plea be pleaded it cannot come to Issue to be tried in so short a time As to the last Clause in the Bill for the making out Procedendo's ex Officio gratis It is Answered That after an Indictment is returned and filed on Record in the Court of Kings-Bench which is immediately done upon the return it cannot be sent back by Procedendo for Process are thereupon immediately made out and the party may be Out-lawed and no Record to warrant it And if the Clerk of the Crown shall make Procedendo's ex Officio gratis and be at the charge of sending Messengers into the several-Counties to the Justices c. with the Indictments It may prove a charge greater than the benefit of his Office And it is further desired to be observed That the issuing forth of Writ of Certiorari out of Court of Kings-Bench for removing of Indictments c. from the Sessions of Peace and other Inferiour Courts hath been alwayes accounted an undoubted Right and Liberty belonging unto the Subject as their Appeal and that no Certiorari is made but by warrant from one of the judges of the said Court though antiently and till of late such Writ were made without any warrants as commonly as Writ of Latitat and such like mean process That it is the undoubted Prerogative of the King to sue and prosecute Offenders in what Court he pleases Especially proper in the Court of Kings-Bench where his Learned Councel most usually attend and where onely Writs of Outlary can be made against Criminal Offenders for want of Appearance c. And it is to be observed that no Clerk of the Assize or Clerk of the Peace do make out Process against Offenders upon Indictments to Outlary notwithstanding they do not appear neither do any of the said Clerks certifie any Records of Outlary into the Court of Kings-Bench as by Law they ought to do Neither can they make out Process out of their own Counties in case the Offenders live or remove into other Counties which frequently happens but Process out of the Kings-Bench can be made against Offenders all the Realm over That for want of Certiorari's The Justices of the Peace may if they please assume an Arbitrary power whereby the people may suffer for want of their Appeal That the Peers of the Realm and their Tenants may suffer much for want of these Writs For though most of the Peers are in the Commissions of the Peace yet they seldom appear at the Sessions Besides their Lands lie dispersed in several Counties The Peers are like more especially to be prejudiced in case of forcible Entries wherein Justices of the peace have power to give possession of Estates without controul except Certioraries be granted aswell in the Vacation as in Term time