CHAPTER XIV. CERTIORARI. A certiorari is a writ issuing from a superior, and directed to the judges of an inferior court, commanding them to certify and return their records of a cause. At common law, this writ is resorted to, for various purposes; but in this state, its only object is, the correction of errors in certain cases, committed by the inferior tribunals. It differs from a writ of error, in the nature of the cases, to which it applies, the mode, in which it is granted, and in the judgment rendered. From what court it issues. A writ of certiorari, in this state, can issue from the Supreme Judicial Court only. Cases in which it lies. A writ of certiorari is the appropriate remedy for the correction of errors, committed by inferior courts, who either have no common law jurisdiction, or whose proceedings, in the particular cases, are not according to the course of common law; for, in these cases, a writ of error will not lie.' A certiorari lies, therefore, 1. In all proceedings before the former court of sessions, now the county commissioners, in laying out highways.2 2. In proceedings in the Court of Common Pleas, 1 Commonwealth v. Ellis. 11 Mass. Rep. 462. 2 Commonwealth v. Coombs, 2 Mass. Rep. 489. on complaints by the owners of lands, flowed by milldams;'—and on complaints against the putative father of a bastard child.2 3. In proceedings before a justice of the peace, on complaints for neglect of military duty;3 and on references, entered into before a justice of the peace. In proceedings on complaints, before a justice, for the violation of the law of the road prescribed by Stat. 1820. ch. 65. and on appeals, in such cases, from the justice, to the Court of Common Pleas.* But a certiorari does not lie to remove the proceedings of a court martial; if their proceedings be erroneous, they are merely void. Nor has this writ ever been resorted to, in proceedings before the probate court; probably because the remedy by appeal is sufficient, or where not sufficient, the proceedings are considered void. In some cases, where the proceedings have been improperly brought before the court by writ of error, instead of certiorari, the court have considered the questions as coming up on certiorari, so as to affirm or quash them. But this indulgence has never been granted, unless a question of general consequence arose, when it was important to have the law settled and known, for the 1 Lowell v. Spring, 6 Mass. Rep. 398. Commonwealth v. Ellis, 11 Mass. Rep. 462. Vandusen v. Comstock, 3 Mass. Rep. 184. 2 Gile v. Moore, 2 Pick. Rep. 386. Drowne v. Stimpson, 2 Mass. Rep. 441. 3 Pratt v. Hall, 4 Mass. Rep. 239. 4 Clark v. Commonwealth, 4 Pick. Rep. 125. › Ex parte Dunbar, 14 Mass. Rep. 393. Drowne v. Stimpson, 2 Mass. Rep. 441. 239. Winslow v. Anderson, 4 Mass. Rep. 376. Rep. 670. Ball v. Brigham, 5 Mass. Rep. 406. Pratt v. Hall, 4 Mass. Rep. information of the people, and for the regulation of proceedings in inferior jurisdictions.' Mode of procuring a writ of certiorari. The certiorari is not, as in cases of error, a writ of right, demandable at the pleasure of the party; it is granted or refused by the court at their discretion, upon application and a hearing of both parties. The course of proceeding to obtain a certiorari, is to make a petition to the court, stating the substance of the proceedings complained of, and the errors alleged. This may be presented and heard in any county. An order of notice will be made upon motion of the petitioners, returnable as the court shall order, to the opposite party, to shew cause why a writ of certiorari should not issue. It is the duty of the petitioners, to take care that the order of notice embraces the proper persons, and all persons entitled to notice; and where a writ issues without such notice to the opposite party, the court will quash it, as having issued improvidently.s The petition may be heard and granted, at a term holden by one judge; and as it is a matter within his discretion, it seems doubtful whether exceptions can be taken to his decision. Before granting the application, the court will always look into the record, and even into the circumstances attending the process, and if the error be merely in the forms of the proceedings, not affecting the substantial justice of the case, the court will refuse 3 Commonwealth v. Downing et al. 6 Mass. Rep. 72. the writ.' The reason assigned is, that after the writ is granted, and the record brought up, if any error appear, the court are bound to quash the whole proceedings, and that this might in many cases, prejudice one party to the benefit of another, who had suffered no material injury. The same reason applies with equal force to writs of error, and there seems to be no more difficulty in the exercise of the same discretion where the record is before the court, than where application is made for the writ. The rule conflicts with the general principle, that all inferior jurisdictions are to be strictly confined to prescribed forms, and it operates as a virtual abolition of all the forms, however positively enjoined by law, which the court may think not connected with the essential justice of the case. The rule, however, has been uniformly acted upon, and in one case, the court examined papers not recorded, and considered facts alleged and not denied, in forming their conclusion to reject the petition. If the writ be granted and issued, an order of notice of the writ and its return day is made, which must be served upon the parties interested. the parties interested. Where upon a writ of certiorari to remove the record of the court of sessions, relative to the altering of a county road, one of the locating committee was served with notice, and he alone made a party to the suit, the court objected that there seemed to be no proper parties, and said that notice ought to be given to the county, if they were interested, and another to the town in which the 1 Ex parte Weston et al. 11 Mass. Rep. 417, 2 Inhabitants of New Salem et al. Petitioners, 6 Pick. Rep. 470. road lay; for that the committee of the sessions had no interest in the cause.' The hearing upon the writ of certiorari, must be by the full court, and a new assignment of errors is not necessary.2 If a certiorari issue, requiring only a part of the record of the cause to be certified, the court will quash the writ, as having issued improvidently. If an incomplete return be made by the inferior court, the petitioner may suggest a diminution of the record, and a new certiorari will issue. Where the several parts of the proceedings in the case are so connected together, as to make the validity and force of one part, to depend on the other, the whole must be quashed or affirmed. But the court may quash the proceedings in part, and affirm the residue, where the part quashed is independent, and unconnected with the part affirmed.5 Judgment on a writ of certiorari. The proceedings below must be either quashed or affirmed, as they stand; no new judgment can be entered by the court, as in case of a writ of error; if there be error, they merely vacate the former decree, and no costs are allowed." 6 1 Commonwealth v. Peters, 3 Mass. Rep. 229. 3 Thatcher et al. v. Miller, 11 Mass. Rep. 413. 4 Commonwealth v. New Milford, 4 Mass. Rep. 446. 5 Commonwealth v. Blue Hill Turnpike Corp. 5 Mass. Rep. 420. 6.Commonwealth v. Ellis, 11 Mass. Rep. 462. 7 Thatcher et al. v. Miller, 11 Mass. Rep. 413. |