Certiorari

Certiorari, a writ issuing from a superior to an inferior court, directing the transmission of the records or other proceedings to such superior court, the object being that the judgment of the inferior court may be reviewed, or that the decision and the proceedings leading up to it may take place before the higher tribunal. It is usually applied for before the trial. It lies either for the verification of errors, or for the removal of plaints in replevin, or (more generally) for the removal of criminal cases, in which case the writ may be granted either at the instance of the prosecutor or the defendant. A prosecutor was formerly entitled to it as a matter of right, but a defendant could only obtain it by express leave of the court, and upon his entering into recognisances; but to prevent abuses, by the wanton and improvident resort to this proceeding, certain statutes, passed in the last and the present reign, provide that a prosecutor must obtain the previous leave of the court to issue it, and enter into recognisances, and these and other statutory provisions are incorporated in the Crown Office Rules, 28-42. The practice now largely depends on these rules.

In order to avoid frivolous appeals there is often a restriction or abrogation of the right to a certiorari in the statutes conferring summary jurisdiction on inferior tribunals. A certiorari to remove a conviction, or order made by justices of the peace, must be applied for within six months. The removal of county court actions by certiorari is regulated by section 126 of the County Courts Act, 1888.

In the United States the superior court possesses an inherent right to issue this writ, but provision is very frequently made by statute for the exercise of this jurisdiction, both in civil and criminal matters, and on the same ground, generally speaking, as in England, namely, to arrive at substantial justice between the parties.