properly sworn before the grand jury. The grand jury are at liberty to find a bill upon their own knowledge only. -R. v. Russell, C. & M. 247; Stephen's Cr. Proc. Art. 185.

The court will not receive an affidavit of a grand juror as to what passed in the grand jury room upon the subject of the indictment.-R. v. Marsh, 6 A. & E. 236; nor allow one of thein to be called as a witness to explain the finding.-R. v. Cooke, 8 C. & P. 582.

On the trial of Alexander Gillis for murder, his counsel called the foreman of the grand jury which found the bill against him to prove that a witness's evidence before the grand jury was different from that given by the witness on the trial. The counsel for the crown objected that a grand juror could not be allowed to give evidence of what took place in the grand jury room:

Held, that a grand juror's obligation to keep secret what transpired before the grand jury only applied to what took place among the grand jurors themselves, and did not prevent his being called to prove what a witness had said.R. v. Gillis, 6 C. L. T. 203.

On this point, see Taylor, Ev., par. 863. Also, Stephen, Ev., art. 114, where it is said: "It is also doubtful whether a grand juror may give evidence as to what any witness said when examined before the grand jury."

TRIAL.

178. Every person tried for any indictable offence shall be adınitted, after the close of the case for the prosecution, to make full answer and defence thereto by counsel learned in the law.-32-33 V., c. 29 s. 45, part.

179. Upon the trial the addresses to the jury shall be regulated as follows: the counsel for the prosecution, in the event of the defendant or his counsel not announcing, at the close of the case for the prosecution, his intention to adduce evidence, shall be allowed to

address the jury a second time at the close of such case, for the purpose of summing up the evidence; and the accused, or his counsel, shall then be allowed to open his case and also to sum up the evidence, if any is adduced for the defence; and the right of reply shall be according to the practice of the courts in England: Provided always, that the right of reply shall be always allowed to the attorney general or solicitor general, or to any Queen's counsel acting on behalf of the crown.-32-33 V., c. 29, s. 45, part.

The law, as it stood formerly, did not allow a prisoner to be defended by counsel in any felony except high-treason. On this, Blackstone says (Vol. IV. 355):

"But it is a settled rule at common law that no counsel shall be allowed a prisoner upon his trial upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner, that is, shall see that the proceedings against him are legal and strictly regular,) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man, which yet is allowed him in prosecution for every petty trespass?"

In England, the 6-7 William IV., c. 114, was the first statute passed to "enable persons indicted for felony to Inake their defence by counsel or attorney," and the addresses of counsel to the jury in felonies and misdemeanors are now regulated by the 28 V., c. 18, s. 2, as follows:

"If any prisoner or prisoners, defendant or defendants, shall be defended by counsel, but not otherwise, it shall be the duty of the presiding judge, at the close of the case for the prosecution, to ask the counsel for each prisoner or defendant so defended by counsel whether he or they

intend to adduce evidence, and in the event of none of them thereupon announcing his intention to adduce evidence, the counsel for the prosecution shall be allowed to address the jury a second time in support of his case, for the purpose of summing up the evidence against such prisoner or prisoners, or defendant or defendants, and upon every trial for felony or misdemeanor, whether the prisoners, or defendants, or any of them, shall be defended by counsel or not, each and every such prisoner or defendant, or his or their counsel respectively, shall be allowed, if he or they shall think fit, to open his or their case or cases respectively; and after the conclusion of such opening or of all such openings, if more than one, such prisoner or prisoners, or defendant or defendants, or their counsel, shall be entitled to examine such witnesses as he or they may think fit, and when all the evidence is concluded, to sum up the evidence respectively; and the right of reply and practice and course of proceedings, save as hereby altered, shall be as at present." See R. v. Kain, 15 Cox, 388.

It will be seen that the only difference between the English and the Canadian clause is, that in the former, it is only when the prisoner is defended by counsel that the counsel for the prosecution is allowed to address the jury a second time, after his evidence is over, when the counsel for the defence does not declare that he intends to adduce any evidence, which it is the duty of the presiding judge to ask him at the close of the case for the prosecution ; whilst in the Canadian clause this right is given, whether the defendant be assisted by counsel or not, and he or his counsel are required to announce at the close of the case for the prosecution their intention to adduce evidence or not, without the clause making it obligatory on the presiding judge to ask the question, though in practice it is obvious

that the judge will always ascertain the intention of the defence on that point, before allowing the prosecutor to sum up when he desires to do so.

The addresses of counsel, as regulated by this clause 179 of the Procedure Act, are therefore to take place as follows:

--

First case: When no evidence for the defence.

Address of counsel for the crown, opening the case; crown's evidence; defendant or his counsel declares that they have no evidence to adduce; counsel for the crown sums up; defendant or his counsel addresses jury; reply of counsel for the crown, but only if attorney or solicit rgeneral, or Queen's counsel, acting on behalf of the crown. Second case: Where the defence adduces evidence.

Crown pros cutor opens the case; evidence of the crown; defendant or his counsel addresses the jury; defendant's evidence; defendant or his counsel sums up; reply of prosecution in all cases.

In the first case supposed, the counsel for the prosecu tion never in practice exercises both the rights of summing up and replying; if the counsel is not the attorney-general or solicitor-general, or a Queen's counsel acting on behalf of the crown, he has to sum up the evidence, after it is over, as he is not allowed to reply; if he is the attorneygeneral or solicitor-general, or a Queen's counsel acting on behalf of the crown, he, in practice, does not sum up, as he is entitled to reply, whether the defendant adduces evidence or not, though in England this right is very seldom exercised, where no evidence, or evidence as to character only is offered; see post,

In the second case supposed, in practice the defence adresses the jury only after its evidence is over; two addresses would generally have no other result but to lengthen the trial, and fatigue court, counsel, and jury.

Opening of the counsel for the prosecution.-A prisoner charged with felony, whether he has been on bail or not, must be at the bar, viz., in the dock during his trial, and cannot take his trial at any other part of the court, even with the consent of the prosecutor.-R. v. St. George, 9 C. & P. 485. A merchant was indicted for an offence against the act of parliament prohibiting slave-trading (felony). His counsel applied to the court to allow him to sit by him, not on the ground of his position in society, but because he was a foreigner, and several of the documents in the case were in a foreign language, and it would, therefore, be convenient for his counsel to have him by his side, that he might consult him during his trial: Held, that the application was one which ought not to be granted.—R. v. Zulueta, 1 C. & K. 215; 1 Cox, 20. A similar application by a captain in the army was also refused in R. v. Douglas, C. & M. 193. But in misdemeanors, a defendant who is on bail and surrenders to take his trial need not stand at the bar to be tried.-R. v. Lovett, 9 C. & P. 452. A prosecutor conducting his case in person, and who is to be examined as a witness in support of the indictment, has no right to address the jury as counsel; R. v. Brice, 2 B. & A. 606; R. v. Stoddart, Dickinson's Quarter Sessions, 152; R. v. Gurney, 11 Cox, 414, where a note by the reporter, supported by authorities, says that such is the law, whether the prosecutor is to be a witness or not.

Sergeant Talfourd, in Dickinson's Quarter Sessions, 495, on the duties of the counsel for the prosecution, says: "When the counsel for the prosecution addresses the jury in a case of felony, he ought to confine himself to a simple statement of the facts which he expects to prove; but in cases where the prisoner has no counsel he should particularly refrain from stating any part of the facts, the