that it was the duty of the Court to support sec. 44 of 32-33 Vic. ch. 29, if the Court could possibly do so. It had long been acted upon, and without dispute or question, and it had occasioned, and could occasion, no injustice in point of fact. The rule as to the construction of criminal statutes is, that they should be construed in favorem vitæ, and no grounds of public policy are weighty enough to override that rule of construction.

Irving, Q. C., contra. The deviations from the system of balloting alleged to be errors, are the matters which by the statute are directory only, and not imperative. Such matters as are alleged to be deviations from the law in force at the time of confederation, and which have been under the Ontario Act, and admittedly in accordance therewith, are such as are within the powers of the Court to order otherwise. See Consol. Stat. U. C. ch 31, sec. 63, and the judgment of Blackburn, C. J., in Hayes & Fogarty v. Regina, at page 61, of 10 Ir. Law R., commenting upon the like section in 3 & 4 Wm. IV. ch. 91, sec. 15, of the Irish Jury Act; also Regina v. Conrahy, 1 Craw. & Dix 56. The absence of the Clerk of the Peace as one of the county selectors required by 42 Vic. ch. 14, sec. 3, O., is not error, because the county selectors are such as conform to the 26 Vic. ch. 44, sec. 5, prior to Confederation. But none of the errors assigned can be maintained in the face of the Consol. Stat. U. C. ch. 31, sec. 139, carried into the Revised Statutes of Ontario, page 571: unless in the case of fraud that section must prevail.

The Parliament of Canada by sec. 44 of the Procedure Act 32-33 Vic. ch. 29, have rightfully adopted the jury laws of the provinces. If the matters in question by way of error are such as are within the powers of the Dominion Parliament, and not of the Provincial Legislature, then the Dominion Parliament has power to confer legislative powers upon the Provincial Legislatures: Regina v. Hodge, 7 A. R. 246; Regina v. O'Rourke, 32 C. P. 388; Regina v. Burah, L. R. 3 App. Cas., 889. The argument of the plaintiff in error, that the section 44 being subject to “any

provision in any Act of the Parliament of Canada, and in so far as such laws are not inconsistent with any such Act," means subject to laws of the old Province of Canada, cannot prevail, because the legislation in the 44th section. applied to other provinces than those forming part of the former Province of Canada, and was for the whole Dominion; and if to be considered at all, then the section 139 of the Consol. Stat. U. C. ch. 31, sec. 39, an enactment of the former Province or Canada, and before cited, would be fatal to the view taken by the plaintiff in error in the construction of the section 44.

The selection and summoning of jurors to meet the Courts of Oyer and Terminer, is part of the constitution, organization, and maintenance of the Court, and is not part of criminal procedure. Although commissions are not now ordinarily issued, the constitution of the Court for the trial of offences is to be found by examination of the form of such commission. See Whelan v. Regina, 28 U. C. R. 2, and Per Richards, C. J., 81; and the Court cannot proceed to the trial of offenders without a jury being in attendance; and it is the commission which causes the sheriff to act under precept of the commissioners. It is no part of criminal procedure the bringing together of the jurors in the organization of the Court.

It has been decided that the state of things existing in the Confederated Provinces at the time of Confederation, and more particularly that which was recognized by law in all or most of the provinces, is a useful guide in the interpretation of the meaning attached by the Imperial Parliament to indefinite expressions employed in the British. North America Act of 1867: Corporation of Three Rivers v. Sulte, 5 Legal News, p. 331, and p. 333, per Ramsay, J. In re Slavin and the Corporation of Orillia, 36 U. C. R., 165, per Richards, C. J. Thus, in the former province of Canada, the constitution of the Courts of criminal law, and the jury system in connection with said Courts, are enacted separately as affecting Upper and Lower Canada, while criminal procedure was made by a general Act applicable

to the whole of the former Province of Canada. The other Provinces in the same way. See Forsyth's Cons. Opinions, 169; Regina v. Foley, Stevens' New Brunswick Digest, second edition, 381, deciding that the Acts relating to the attendance of grand and petit jurors at the County Court (a Court of criminal jurisdiction over all crimes not capital) are within the powers of the Local Legislature under the British North America Act, 1867, sec. 92, as pertaining to the administration of justice and the constitution and organization of provincial Courts, and do not belong to the Parliament of Canada under section 91 as procedure in criminal matters. See also Dalton's Justice, ch. 193, p. 529; Brown's Law Dictionary, 152; Niagara Election Case, 29 C. P. 280, per Gwynne, J.; Burton's Case, 4 Leigh's Rep. (Virginia), 645, and 646, per Scott, J.; Thompson and Merriam on Juries, sec. 149; Regina v. O'Connell, 11 Cl. & F. 155, and 347, per Lord Brougham, as to the question of the selection of the jury going to the jurisdiction of the Court.

To raise the question of the constitution of the jury the objection must be taken by plea, and not by challenge to the array. Challenge to the array is proper when the unindifferency of the sheriff is charged. Challenges to the qualification of the jurors must be by challenge to the polls. But if in respect of neither of said matters, then the objection must be taken by way of plea, because it is by way of plea that the constitution of the Court only can be discussed: 1 Chitty's Criminal Law, 309; Commonwealth v. Cherry, 2 Virginia cases, 20; 2 Hale, P. C. 155; Bac. Ab. Juries, A.; State v. Foster, 9 Texas 67; Sheridan's Case, 31 How. St. Trials, 543; 1 Chitty's Criminal Law, 438. From the nature of this plea it must evidently be pleaded before the general issue, because by pleading not guilty the defendants admits the power of the Court to try him, and refers his cause to their decision; Joy on Confessions and Challenges, 120; Rex v. Johnston, 6 East 583. 4 Black's Com. 33: "Plea to the jurisdiction is, where an indictment is taken before a Court that has no cognizance of the offence."

It is by such plea that the constitution of the Court can only be examined, and it is therefore submitted that such. part of the jury system which stands in lieu of the Common Law mode of selection by the sheriff, and free from the charge against him of unindifferency, is examinable only as a question affecting the constitution of the tribunal, and so becomes part ofthe constitution of the Court.

December 2, 1882. HAGARTY, C. J.-The questions. argued before us on the assignment of errors may be shortly stated.

The prisoner was convicted at the Halton Assizes.

The jurors on the panels of the grand and petit juries were selected and summoned under the Statute of Ontario, 42 Vict. ch. 14, which came into force on the 1st May, 1879.

It is fully conceded by Mr. Murphy that if this Act be in force, his objections must fall to the ground.

It is, therefore, to its validity we have solely to direct our attention.

It professes to amend and to repeal in part chapter 48 of the Revised Statutes of Ontario, and alters in some particulars the manner of selection.

The Revised Statute is, with some slight variations, a reprint of the Consolidated Statutes of Upper Canada, ch. 31, which was the Act in force (in substance) at the date of the Confederation of the Provinces.

Section 129, B. N. A. Act, provides that all laws in force in Canada, Nova Scotia, and New Brunswick, at the Union, and all Courts of Civil and Criminal jurisdiction, and all legal commissioners, &c., and all officers, judicial and administrative, &c., shall continue in Ontario and Quebec, and, as if the Union had not been made, &c., subject to be repealed, altered, &c., by the Parliament of Canada or the Provincial Legislature, &c.

The Criminal Procedure Act, 32-33 Vict. ch. 29, declares that divers Acts had been passed assimilating, amending, and consolidating certain provisions of the 60-VOL. I O. R.

statute law of the several Provinces, and extending them to all Canada, and that it was expedient to assimilate, &c., the provisions of the statute law respecting procedure and other matters not included in said Acts.

Provisions are made as to challenges of jurors, both for the prisoner and for the crown, and for juries de mediatate linguæ, and, when by challenge or otherwise the pane' has been exhausted, for the summoning of fresh jurors by the sheriff, whether on the jurors' roll or otherwise, qualified or not, and for such jurors, whether otherwise qualified or not, being added to the panel, &c., and saving all authorities of the Court or Judge, or any practice or form in regard to trials by jury, jury process, juries or jurors, unless where altered by this Act.

Section 44 says, "And for avoiding doubt it is declared and enacted that every person qualified and summoned as a grand juror or as a petit juror in criminal cases, according to the laws which may be then in force in any Province of Canada, shall be and shall be held to be duly qualified to serve as such juror in that Province, whether such were laws passed before or be passed after the coming into force of the British North America Act of 1867subject always to any provision in any Act of the Parliament of Canada, and in so far as such laws are not inconsistent with any such Act."

Section 79 declares, "that judgment, after verdict upon an indictment for any felony or misdemeanor, shall not be stayed or reversed * * by reason that the jury process has been awarded to a wrong officer, * * nor for any misnomer or mis-description of the officer returning such process, or of any of the jurors, nor because any person has served upon the jury who was not returned as a juror by the sheriff or other officer."

In the interpretation clause, sec. 1, sub. 6, it is declared that the expression, "any Act" or "any other Act," in this Act, shall include any Act passed or to be passed by the Parliament of Canada, or by the Legislature of the late Provinces of Canada, or passed or to be passed by the