Definition
A bill of certiorari is a pleading filed in a court of equity — historically in the Court of Chancery or a superior equity court — seeking a writ of certiorari to remove a pending cause from an inferior equity court to a higher one. The bill alleges that the lower court is incompetent to do justice in the matter, whether because of lack of jurisdiction, procedural irregularities, inability to secure witnesses, or other circumstances that make fair adjudication there unlikely.
The bill is the initiating vehicle. It does not decide the merits of the underlying dispute. Instead, it makes the case for why the cause should be heard elsewhere — setting out the proceedings below, identifying the defect in the inferior court's capacity or process, and praying that a writ of certiorari issue to transfer the record upward.
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Common Confusion
The bill of certiorari is not the writ of certiorari itself. The bill is the pleading that requests the writ; the writ is the court's order directing the transfer of the record. Researchers encountering either term in historical equity materials should take care not to treat them as interchangeable. The modern use of "certiorari" — most familiar as the mechanism by which the U.S. Supreme Court accepts discretionary appeals — is a descendant of the same writ tradition but operates in a substantially different procedural context and is not initiated by a bill in equity.
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Why It Matters in Research
The bill of certiorari is a creature of historical equity practice that does not survive intact into modern American procedure. Researchers will encounter it almost exclusively in pre-merger materials: English Chancery records, early American equity practice before the Federal Rules of Civil Procedure (1938) collapsed the distinction between law and equity, and state equity court archives from the colonial through late nineteenth-century periods.
Several navigational traps arise in corpus research:
First, the terminology is layered. A single procedural event — removing a cause from a lower equity court — could generate a bill of certiorari, the responsive pleadings, and ultimately a writ of certiorari, all under slightly varying labels depending on the jurisdiction and era. Index terms in historical finding aids are inconsistent.
Second, the grounds stated in the bill are substantively important as primary sources. Bouvier notes that the bill must state the incompetency of the inferior court by specific suggestion — distances of witnesses, lack of jurisdiction, and similar defects. These allegations were not boilerplate; they were factual and often contested. For historians of equity jurisdiction, the bills themselves document how parties and practitioners understood the limits of inferior court authority.
Third, researchers should be alert to the difference between equity certiorari practice (the bill of certiorari removing an equity cause) and common law certiorari practice (the writ used to remove proceedings at law or to review administrative and quasi-judicial action). The two tracks share a writ but not a procedure. Conflating the two produces research errors when tracing jurisdictional doctrine.
Fourth, in American state practice, the bill of certiorari persisted in some jurisdictions well into the twentieth century in states that maintained separate equity courts. The timing of its disappearance from practice varies by state and tracks the merger of law and equity in that jurisdiction.
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Historical Dictionary Support
Black's Law Dictionary defines the bill of certiorari as a bill removing a suit in equity from an inferior court to the Court of Chancery or another superior equity court on account of alleged incompetency of the inferior court or injustice in its proceedings, citing Story's Equity Pleading. Bouvier's Law Dictionary is more procedurally specific: the bill must state the proceedings below and identify the reason justice is not likely to be done — citing examples including distance of witnesses and lack of jurisdiction — and must pray the writ of certiorari to remove the record.
The two sources are in agreement on the essential nature of the bill. Bouvier adds procedural granularity that Black's omits, which is characteristic of Bouvier's treatment of equity practice generally. Neither source addresses the American post-merger landscape, which is expected given their vintage, but researchers should note that neither entry signals the obsolescence of the device — a gap that can mislead readers who encounter the definitions without chronological context.
Story's Equity Pleading (cited by Black's) remains the most thorough primary treatment of the bill's requirements in the American tradition and is the appropriate next research step for anyone working with specific historical pleadings of this type.
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Jurisdictional Note
The bill of certiorari as an equity pleading form is effectively obsolete in federal practice following the 1938 merger of law and equity under the Federal Rules of Civil Procedure. In state systems that retained separate equity courts after 1938 — most notably Delaware — variants of historical equity procedure, including certiorari practice, survived longer. Researchers working with any specific jurisdiction should identify when that state merged its courts before treating the device as unavailable or available.
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