case cross against smith a certiorari lie from the court of common plea to  remove a action from the court in the isle of Ely and if the writ be duly  serve on the judge below and he afterward proceed to try the cause the proceed  be erroneous for the charter give this court the conusance of plead do not  oust the commonlaw court of their ordinary jurisdiction post in this term  tailor v reignolds S c salk S c salk S c Mod S c ld ray error of a judgement  in the court of Ely in a action for word the error assign be that after the  plaint levy and before issue try a certiorari issue out of the court of common  plea to remove the proceed into that court which writ be duly serve upon the  judge before the jury swear and allow by he that notwithstanding he proceed to  try the cause and so give judgement which be void as be in person non judge to  this the defendant plead the charter of creation of the franchise of conusance  of plead to the predecessor of the bishop of Ely and a allowance thereof in  the court of Westminster hall and on demurrer the case be argue several time  at the bar and now holt chief justice deliver the judgement of the court sure  if the certiorari be well pen it be a supersedeas of all proceed below and the  counsel can be in earnest when they pretend to make the franchise of Ely in  equal degree with that of a county palatine and admit the charter have be to  hold plea of all matter arise within that precinct can any man think that by  this all the king subject shall lose the benefit of the king court which be  part of the constitution of the government and part of every man birthright to  sue and be sue in and it will be very inconvenient if it be so for suppose a  man go to market within this jurisdiction there he be arrest and if he have  not bail live within their jurisdiction he must go to gaol for bail out of the  jurisdiction will not do because their modern report er p process can reach  such bail and beside be shall have his cause try by stranger to he and  acquaintance of the plaintiff live within the jurisdiction and sure it never  be in the power of the crown to deprive the subject of their birthright as to  make such a grant bind upon they second the grant be that the bishop shall  have conusance of plead what be that that one live within that jurisdiction  shall implead another in the bishop court for a cause of action arise within  that jurisdiction and who be to claim this if the action shall be commence  above not the defendant for he can plead modern report it to the jurisdiction  of the superior court but the course be for the lord of the franchise by  himself his bailiff or attorney to come into the superior court and produce  his charter of conusance or if it be very ancient to show a allowance of it in  that court and pray conusance and upon allowance of his claim the court above  appoint he a day to hold this court on and direct the party to go down on that  day and if justice be not do below the record remain here above and the court  have a constant superintendency over the cause so that if justice be not do  below as if the defendant live without the franchise and have nothing within  the franchise by which he may be summon or if the judge do not do right the  plaintiff may come up and show this matter to the court and thereupon a  resummons shall go upon the record here and the court shall proceed to do  justice here so that though conusance be allow accord to the grant yet the  matter shall be bring back hither if right be not do below and all this be for  the benefit of the lord of the franchise and even this be hard enough upon the  subject and there be great reason for this course in former day when great man  do abet and maintain party and these great franchise general obtain by abbot  and churchman who then have three part of the land of the kingdom in their  possession and they receive legitimacy more from length of time than from any  reason that there be for they and so be the statute of Henry c concern  resumption of liberty that all these jurisdiction be detrimental to the king  and his prerogative and for that reason their power of pardon in county  palatines and make of justice be take away and there have be always certiorar  to correct abuse in these jurisdiction exempt jurisdiction be this and be  grant to city or town corporate for the benefit of trade it be a grant to the  freeman of such a city or town that they shall not be implead out of their  city or town and this grant be good if there be a court in the city or town to  hold plea of the matter and if such inhabitant in that case be implead in any  other court he shall plead this franchise to the jurisdiction and if he be sue  below he may have a certiorari and remove it up for the privilege of be sue no  where else be for his advantage be may wave it so there be no court can stand  against a certiorari in London they have away of proceed by foreign attachment  yet it be every day practice to remove modern report the cause up hither by  certiorari and thereby all the proceed below upon the attachment be dissolve a  three sort of franchise be rashly placita that be power to hold plea of matter  within such a precinct but do not exclude any other jurisdiction nor entitle  the lord to claim conusance Henry pl case be removable out of inferior base  court by to think over or pone as the case shall require but to remove out of  a court of record it must be by certiorari and to say such a writ be not find  in the register ergo it do not lie be no argument for half the writ use ill  westminsterhall be not in the register the statute of Elizabeth mean certiorar  by the word other writ and it be remarkable that the thing complain of there  be not that the writ be use when in truth they do not lie but that a abuse be  make of they videlicet that they be bring after trial and therefore it provide  that no certiorari or habeas corpus shall be swear or allow unless it be  deliver before the jury swear and again the statute of James c take notice of  certiorari and only complain of the oppressive manner of use they videlicet  after party have proceed a considerable way below and likewise remove cause of  small value and therefore the court below be allow to detain cause under five  pound and likewise where the certiorari or habeas corpus be not deliver before  issue join so that it be not join within six week after c both which statute  show this writ be lawful but abuse and the abuse be only cure and if the writ  be not legal the parliament will have condemned it as well as the abuse of it  and the king modern report er p court be for his subject and people as well as  for himself and as when it be grant to a corporation to hold a session of the  peace within their borough before such and such justice that be freeman of the  town though such a grant be a franchise to they and it be as much their right  to hold session and take conusance of matter proper for their jurisdiction as  it be the bishop of ely right in this case yet by daily practice certiorar go  to they to remove indictment from before they to this court so by the same  reason it will lie here and it be more just and honourable for the subject to  receive justice in the king immediate court and from judge appoint by himself  than from judge name by his fellow subject and there be as much difference  between the king modern report court and those that be hold by franchise as  there be between the people be govern by himself and those he govern by his  viceroy in his plantation and he quote a case in roll Abr Jonson v Ellis a  action be bring in the court of Maidstone and a habeas corpus bring and serve  in due time and notwithstanding judgement give below and this judgement be for  this error reverse so here if the certiorari be good in the form and frame of  it that be if it describe the record right without doubt the judgement be  erroneous and holt chief justice say be wonder the people do not bring a  habeas corpus and not a certiorari for the defendant may well say I will not  be sue in this inferior court but will be sue above and there I will put you  in such bail as the court above will reach though your process can come at  they and that I can give you such bail as you can reach and so he may well  remove the cause by habeas corpus and in such case if he do not put in such  bail above as the action will require below a procedendo shall be grant for if  by the course below there ought to be special bail though common bail will do  if it have commence above original yet special bail must be give above or a  procedendo shall go and if one action require special bail and another not and  that do not appear to be do fraudulent to hold to special bail there we will  hold it to special bail or grant a procedendo but if fraud appear we will  retain it and though the principal case be between two person dwell within the  isle of Ely yet that make no difference and be say he have know inferior court  hold to hard play than this for he have know in the common plea that in escape  out of execution upon a judgement in a inferior court the officer be let in to  allege that the original cause of action be not within their jurisdiction  though it be lie to have be within it admit by the party so to be but I think  that bare because it be a court have jurisdiction and since they have show the  matter within that jurisdiction and that have be admit on record I hold the  party himself will be after conclude to say that it be not within and by  consequence the officer be so too and it have be hold that false imprisonment  will lie against a officer for the arrest if the cause have not arise within  their jurisdiction though it have be allege by the plaintiff to have arise  within it and so confess by the defendant but that be bare but the best way be  to modern report make right use of their jurisdiction and not to pretend to  hinder the subject of his right of use the king court and property be much  large now than former for then there be many villain but now we be all freeman  so per curium it be apparent error but then a exception be take to the writ of  certiorari