the case, having omitted to bring up the record of conviction.

2d. Whether the record should be received on the hearing, it not having been brought up regularly by writ.

PATTERSON, J., said: "I have considered this case attentively, and have looked at the case of The King v. Taylor and others; and without at all meaning to say that what is there decided is not good law, yet it is not an authority binding upon me, because the court merely said there, that they would not look at defects in a commitment until they had before them the conviction itself, and when it was brought before them it appeared to be as defective as the commitment, and therefore the defendants were discharged. It is not therefore an authority to show that a party cannot be discharged on the ground of an error in the commitment. The case of Wicks v. Clutterbuck, 2 Bing., 483, was a commitment for fishing in a pond, the commitment not stating it to be an inclosed pond. If the pond were not inclosed, fishing in it would only amount to a trespass, and would not be within the prohibition of the 5 Geo. 3, c. 14. The court there do not seem to regard whether the conviction was right or wrong. They said this commitment either pursues the conviction or it does not. If it follows the conviction, the conviction is defective; if it does not, then there is no conviction to warrant it, and accordingly decided that an action would lie against the magistrate who issued it.

"Here the certiorari is taken away, and therefore it is not in the power of the defendant to bring before the court the conviction itself, but it was in the power of the prosecutor to do so.

"It is true that on the part of the crown it was offered, in the course of the argument, to produce the conviction; but I cannot look at it, because it ought to be brought here regularly by writ. The certiorari is not taken away from

the crown, and therefore might have been brought before me, and I might have looked at it.”

Defendant discharged.

In a note to the case of Hammond, 9 Ad. & E., 99, N. S., it is said:

"The reporters are informed by Mr. Robinson, the Master of the Crown Office, that the understood practice is, that if the warrant of commitment be bad, and the justices or informer prefer to rely on a good conviction, it is for them to bring up such conviction by certiorari, and that it is not the duty of the defendant to remove a conviction of which he is not supposed to know anything, and which may not exist. If the conviction be not brought before the court, the court will not presume that there is a good one, or any, but will decide on the document actually before them."

In the United States courts the English practice of issuing the writ of certiorari with that of the habeas corpus in cases proper for it, has been followed. Ex parte Bollman & Swartwout, 4 Cranch, 75.

The power to grant the writ of certiorari is not coextensive with the power to grant the writ of habeas corpus. Yet a court or officer on the hearing of a habeas corpus may admit the record of conviction, although it has no power to compel its production by certiorari.

In England the Court of Exchequer has power to issue a habeas corpus, but none to issue a certiorari. In re Allison, 29 Eng. Law and Eq., 406, there was a rule to show cause why a habeas corpus should not issue on the ground of a defect in the commitment. In answer to the rule, cause was shown, and the conviction produced, verified by affidavit.

The reading of the conviction was objected to on the ground that it had not been removed into court by writ of certiorari, and the case of Regina v. Chancy, 6 Dowl. Pr. C., 281, was cited in support of the objection.

ALDERSON, B. "If the court cannot look at a conviction unless it is regularly brought before it by a writ of certiorari, a prisoner, who was improperly convicted, could never obtain relief by habeas corpus in this court. And, moreover, in a case like the present, the consequence would be, that though, on an application to the Court of Queen's Bench, the rule was discharged, yet the party might obtain a different decision in this court, because it has no power to bring the conviction before it by certiorari."

PARKE, B. "Since there is no other mode of bringing the conviction before the court, it is sufficient to produce it verified by affidavit."

The conviction was read and appeared unobjectionable. The commitment also on further examination was found to be in the form prescribed by the statute and the rule was discharged.

But although the court may admit the record where it has no power to issue a certiorari, it does not follow that it has the same power over it which a court authorized to grant the writ possesses. It may examine it to see whether it be void, and if so may discharge the prisoner although the commitment be regular. But it cannot act upon errors or defects which only render it voidable. And herein lies an important difference between the powers of courts having jurisdiction over both writs and those having power only over the habeas corpus. The former, where both writs have been issued, may for errors

which render the conviction only voidable, reverse or quash the conviction and discharge or remand the prisoner. The latter can only remand him and leave him to his remedy by writ of error or certiorari. Stewart's case, 1 Abbott's Pr. Cas., 210; Baker's case, 11 How. Pr. R., 418.

In a late case, In re Freestone, 36 Eng. Law and Eq., 532, the Court of Exchequer discharged a prisoner for a defect which was properly cognizable only on certiorari. By the act 5 Geo. IV., c. 83, sec. 4, it is enacted that "every person playing or betting in any street, road, highway or other open and public place, at or with any table or instrument of gaming, at any game or pretended game of chance," shall be deemed a rogue, &c. The defendant was brought up on habeas corpus and the commitment showed that he was duly convicted, for that, &c., he "did unlawfully play in a certain open and public place, to wit, in a third-class carriage used on the London, Brighton and South-Coast railway," &c.

POLLOCK, C. B. "We are all of opinion that the place of gaming here designated does not come within the statute. For anything that appears to the contrary, the gaming, such as it was, may have taken place in a third-class carriage, used indeed on the line of railway, but at the time of the gaming, shunted away into some yard or warehouse."

Prisoner discharged.

46

CHAPTER VII.

VALIDITY OF LEGAL PROCESS.

4

Section I. JURISDICTION OF THE SUBJECT MATTER.

II. JURISDICTION OF THE PERSON.

III. JURISDICTION OF THE PROCESS.

IV. JURISDICTION MUST BE EXERCISED IN THE MANNER PRESCRIBED BY LAW.

V. PRESUMPTIONS RELATING TO JURISDICTION.

VI. GENERAL WARRANTS.

VIL REQUISITES OF SPECIAL WARRANTS.

VIII. ORDERS OF COURT.

IX. AUTHORITY OF LAW.

X. COMMITMENTS IN EXECUTION.

XI. WARRANT DEFECTIVE, PRISONER NOT ALWAYS DISCHARGED.
XII. WARRANT PERFECT, PRISONER NOT ALWAYS REMANDED.

SECTION I.

JURISDICTION OF THE SUBJECT MATTER.

The various subjects of judicial cognizance being apportioned by statute, or usage having the force of law, to the several courts it is not generally difficult to determine whether in a given case a court had jurisdiction of the subject upon which it assumes to adjudicate. It is oftentimes a question of statutory construction, but in all cases the subject matter, whether relating to prosecutions in criminal or remedies in civil cases, must be such as affords a lawful predicate for the imprisonment. If the liability of officers, for acts done under void process, were the subject of inquiry it would be necessary to note the distinction which obtains between magistrates, who