CERTIFICANDO - The Law Mind Legal Dictionary

CERTIFICANDOAuthored

The Law Mind • 680 words

Definition

A writ issuing out of a superior court directed to an inferior court or tribunal, commanding it to certify and return to the superior court the record or proceedings in a cause pending before it, so that the superior court may examine what has been done and determine whether the inferior tribunal has proceeded correctly. The writ functions as a mechanism of supervisory control, compelling the lower court or officer to make an official certification of its acts or records.

The name derives from the Latin gerund meaning "to be certified" or "of certifying" — the operative word in the writ's traditional Latin formula directing the court below to certify the proceedings upward.

Common Confusion

CERTIFICANDO should not be confused with CERTIORARI, though the two writs share supervisory functions and a Latin root. Certiorari is the broader and more familiar writ by which a superior court calls up a case for review on its own motion or at a party's petition; it operates to remove the entire proceeding. Certificando is narrower and more ministerial in character — it compels certification or return of specific records or official acts, and historically appeared in particular contexts such as compelling justices of the peace or inferior officers to certify their proceedings or returns. In older practice, the terms were sometimes used loosely as near-synonyms, which can create confusion when reading historical sources.

Why It Matters in Research

Researchers encounter certificando almost exclusively in historical sources — English and early American practice materials, treatises on prerogative writs, and colonial-era court records. The writ had fallen into disuse by the time modern appellate procedure was codified, and most modern procedural systems have absorbed its function into certiorari or statutory certification procedures.

The principal research trap is mistaking certificando for certiorari when reading pre-nineteenth-century court records or writs. Because early reporters and clerks sometimes used the terms interchangeably, context must guide identification. Look for the specific command language in the writ itself: certificando directs certification and return of records; the operative formula differs from certiorari's.

Researchers working in the Law Mind corpus on writs, prerogative process, or judicial supervision of inferior tribunals will find certificando appearing in the company of mandamus, prohibition, certiorari, and procedendo — the cluster of writs through which superior courts controlled inferior ones. Understanding where certificando fits within that cluster is essential to reading historical procedural arguments correctly.

The secondary research concern is jurisdictional survival. A handful of American states retained certificando in their procedural codes longer than others; researchers examining state court records from the eighteenth and nineteenth centuries should not assume uniform national obsolescence.

Historical Dictionary Support

The source dictionaries consulted for this entry do not contain a direct entry for certificando. The Black's Law Dictionary material provided is a Latin maxim regarding certainty of pleading (certa debet esse intentio), which does not address this term. The Bouvier's material provided concerns uncertainty of contract. Neither is responsive to certificando.

This gap itself is informative. The absence from the standard reference shelf suggests the writ was already receding from active practice when the major American legal dictionaries were compiled in their most influential editions. Researchers relying solely on Black's or Bouvier's would not find it.

The more productive historical sources for this writ are English treatises on prerogative writs — particularly those dealing with the supervisory jurisdiction of the Court of King's Bench — and Tidd's Practice, which catalogued the available writs for compelling inferior courts and officers to act. Blackstone's Commentaries touches on the cluster of supervisory writs from which certificando derives its practical context.

Jurisdictional Note

Certificando was primarily an English common law writ. In American practice it appeared unevenly and was never uniformly adopted; most American jurisdictions accomplished the same supervisory function through certiorari. Researchers should not assume the writ had operative force in any given American jurisdiction without consulting local sources.

CERTIFICANDOmain

Black's Law Dictionary • 1891

Certa debet esse intentio, et narratio, et certum fundamentum, et certa res quæ deducitur in judicium. The design and narration ought to be certain, and the foundation certain, and the matter certain, which is brought into court to be tried. Co. Litt. 303a.

CERTIFICANDOmain

Bouvier's Law Dictionary • 1928

then. neither at law nor in equity can effect be given to it; 1 R. & M. 116. If it is impossible to ascertain any definite meaning, such agreement is necessarily void; [1892] Q. B. 478. As to uncertainty of contract see 93 Mich. 491; 75 Md. 80; 70 Hun 575; 8 Wash. 458. It is a maxim of law that that is certain which may be made certain: certum est quod certum reddi potest; Co. Litt. 43. For example, when a man sells the oil he has in his store at so much a gallon, al- though there is uncertainty as to the quantity of oil, yet, inasmuch as it can be ascertained, the maxim applies, and the sale is good. See, generally, Story, Eq. § 240; Mitf. Eq. Pl., Jeremy ed. 41; Cooper, Eq. Pl. 5; Wigram, Disc. 77. In Pleading. Such clearness and dis- tinctness of statement of the facts which constitute the cause of action or ground of defence that they may be understood by the party who is to answer them, by the jury who are to ascertain the truth of the allegations, and by the court who are to give the judgment. 13 East 107; 2 B. & P. 267; Co. Litt. 303; Comyns, Dig. Pleader, c. 17. See 21 Or. 435. Certainty to a common intent is attained by a form of statement in which words are used in their ordinary meaning, though by argument or inference they may be made to bear a different one. See 2 H. Bla. 530; Andr. Steph. Pl. 384. Certainty to a certain intent in general is attained when the meaning of the statute may be understood upon a fair and reason- able construction without recurrence to possible facts which do not appear; 1 Wms. Saund. 49; 9 Johns. 317; 5 Conn. 423. Certainty to a certain intent in particular is attained by that technical accuracy of statement which precludes all argument, inference, and presumption against the party pleading. When this certaincy is required, the party must not only state the facts of his case in the most precise way, but add to them such as show that they are not to be controverted, and, as it were, an- ticipate the case of his adversary; Lawes, Pl. 54. The last description of certainty is re- quired in estoppels; Co. Litt. 303; 2 H. Bla. 530; Dougl. 159; and in pleas which are not favored in law, as alien enemy;8 Term 167; 6 Binn. 247. See 10 Johns. 70; 1 Rand. 270. With respect to an indict- ment, it is laid down that "an indictment ought to be certain to every intent, and without any intendment to the contrary; " Cro. Eliz. 490; and the charge contained in it must be sufficiently explicit to sup- port itself; for no latitude of intention can be allowed to include anything more than is expressed; 2 Burr. 1127; 92 U. S. 542; 96 id. 360; 40 Ia. 148; 81 Me. 401; 114 Mass. 263; 71 Mo. 460; 58 N. H. 348; 19 Tex. App. 383. These definitions, which have been adopt- ed from Lord Coke, have been subjected to severe criticism, but are of some utility in drawing attention to the different de- grees of exactness and fulness of statement required in different instances. Less certainty is required where the law pre- sumes that the knowledge of the facts is peculiarly in the opposite party: 8 East 85; 13 id. 112; 3 Maule & S. 14; 13 Johns. 437. Less certainty than would otherwise be requisite is demanded in some cases, to avoid prolixity of statement. 2 Wms. Saund. 117, n. 1. See, generally, 1 Chit. Pl.

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