wound with intent then and there feloniously and of his malice aforethought to murder," it would certainly not have been open to the objection taken; and the forms given in Archbold are "feloniously and unlawfully did wound with intent to commit murder," whilst if the person the prisoner intended to murder is known, the form is "feloniously and unlawfully did wound with intent, thereby then feloniously, wilfully and of his malice aforethought, the said J. N. to kill and murder."

There is a difference between an indictment which is bad for charging an act which as laid is no crime, and an indictment which is bad for charging a crime defectively. The latter may be aided by verdict, the former cannot.—R. v. Waters, 1 Den., 356. See also, ante, remarks under section 143 of the Procedure Act.

When an indictment is quashed or judgment upon arrested for insufficiency or illegality thereof, the court will order that a new indictment be preferred against the prisoner, and may detain the prisoner in custody therefor.—1 Bishop, Cr. Proced. 739; 2 Hale, 237; 2 Hawkins, 514; R. v. Turner, 1 Moo. C. C. 239.-See Greaves' note in 3 Russ, 321; ante, under sec. 238-243.

In R. v. Vandercomb, 2 Leach 708, the jury, by the direction of the court, acquitted the prisoners, as the charge as laid against them had not been proved; but as it resulted from the evidence adduced that another offence had been committed by the prisoners, and as the grand jury were not discharged, the prisoners were detained in custody, in order to have another indictment preferred against them.

In R. v. Semple, 1 Leach, 420, the court quashed the indictment, upon motion of the prisoner, upon the ground of informality, but ordered the prisoner to be detained till the next session. See, also, 1 Chit. 304.

So, upon a demurrer, if the defendant succeeds, he only obtains a little delay, for the judgment is that the indictment be quashed, and the defendant will be detained in custody until another accusation has been preferred against him, except, of course, where the demurrer has established that the defendant has not committed any legal offence whatsoever, in which case he will be altogether discharged from custody.-1 Chit. 442.

In R. v. Gilchrist, 2 Leach, 657, the prisoner was found guilty of forgery, but, upon motion in arrest of judgment, the court held that the indictment, being repugnant and defective, the prisoner should be discharged from it; but that as the objection went only to the form of the indictment, and not to the merits of the case, the prisoner should be remanded to prison until the end of the session, to afford the prosecutor an opportunity, if he thought fit, of prefering another and better indictment against him. See, also, R. v. Pelfryman, 2 Leach, 563.

In Archbold, page 166, it is said: Upon the delivery of the verdict, if the defendant be thereby acquitted on the merits, he is forever free and discharged from that accusation, and is entitled to be immediately set at liberty, unless there be some other legal ground for his detention. If he be acquitted from some defect in the proceedings, so that the acquittal could not be pleaded in bar of another indictment for the same offence, he may be detained to be indicted afresh. So in 1 Chit. 649, and R. v. Knewland, 2 Leach, 721.

An indictment having been held bad on demurrer, it was quashed so that another indictment might be preferred, not that defendants be discharged.-R. v. Tierney, 29 U. C. Q. B. 181.

In R. v. Bulmer, Montreal, Nov., 1881, though the

indictment had been quashed on demurrer, the court refused to liberate the prisoner, and ordered his detention till the following term.

In R. v. Woodhall, 12 Cox, 240, the verdict was held to be illegal, but the prisoners were bound over to appear at a future session.

247. No omission to observe the directions contained in any Act as respects the qualification, selection, ballotting or distribution of jurors, the preparation of the jurors book, the selecting of jury lists, the drafting panels from the jury lists or the striking of special juries, shall be a ground for impeaching any verdict, or shall be allowed for error upon any writ of error or appeal to be brought upon any judgment rendered in any criminal case. -C. S. U. C., c. 31, s. 139.

This is a statute of Upper Canada extended to all the Dominion. This clause does not take away the right of challenging the array.

A conviction, not by a special jury, in cases where the statute enacts that an offence shall be tried by a special jury, is a nullity.-R. v. Kerr, 26 U. C. C. P. 214.

COSTS.

248. When any person is convicted on any indictment of any assault, whether with or without battery and wounding, or either of them, such person may, if the court thinks fit, in addition to any sentence which the court deems proper for the offence, be adjudged to pay to the prosecutor his actual and necessary costs and expenses of the prosecution, and such moderate allowance for loss of time as the court, by affidavit or other inquiry and examination, ascertains to be reasonable; and unless the sums so awarded are sooner paid, the offender shall be liable to imprisonment for any term not exceeding three months, in addition to the term of imprisonment, if to any, which the offender is sentenced for the offence.-32-33 V., c. 20, s. 78. 24-25 V., c. 100, s. 74.

Greaves' Note.-This and the following clause are new in England; they are taken from the 10 Geo. 4, c. 34, ss. 33, 34 (I.). It had long been the practice in England in

such cases for the courts, after a conviction for an assault, to allow compromises to be made between the parties, and such compromises were legal.-Beeley v. Wingfield, 11 East, 46; Kerr v. Leeman, 6 Q. B. 308; 9 Q. B. 371. Such compromises were usually made by the defendant paying a sum of money to the prosecutor to idemnify him. for his expenses; but where there was an obstinate defendant, it frequently happened that no compromise could be effected, and the court was sometimes placed in an invidious position. These clauses place it in the power of the court to do full justice, without regard to the wishes or consent of either party.

See next section.

249. The court may, by warrant in writing, order such sum as is so awarded, to be levied by distress and sale of the goods and chattels of the offender, and paid to the prosecutor, and the surplus, if any, arising from such sale, to the owner; and if such sum is so levied, the offender shall be released from such imprisonment.-32-33 V., c. 20, s. 79. 24-25 V., c. 100, s. 75, Imp.

See remarks under preceding section. These two sections apply, it seems, to convictions under sections 14, 35, 36 of c. 162, offences against the person, and generally to any conviction for assault, including those under sec. 191 of the Procedure Act.

RESTITUTION OF STOLEN PROPERTY.

250. If any person who is guilty of any felony or misdemeanor, in stealing, taking, obtaining, extorting, embezzling, appropriating, converting or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, is indicted for such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, the property shall be restored to the owner or his representative:

2. In every such case, the court before whom such person is tried for any such felony or misdemeanor shall have power to award, from time to time, writs of restitution for the said property, or to order the

restitution thereof in a summary manner; and the court may also, if it sees fit, award restitution of the property taken from the prosecutor, or any witness for the prosecution, by such felony or misdemeanor, although the person indicted is not convicted thereof, if the jury declares, as it may do, that such property belongs to such prosecutor or witness, and that he was unlawfully deprived of it by such felony or misdemeanor:

3. If it appears before any award or order is made, that any valuable security has been bonâ fide paid or discharged by any person liable to the payment thereof, or being a negotiable instrument, has been bond fide taken or received by transfer or delivery, by any person, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had, by any felony or misdemeanor, been stolen, taken, obtained, extorted, embezzled, converted or disposed of, the court shall not award or order the restitution of such security:

4. Nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent intrusted with the possession of goods or documents of title to goods, for any misdemeanor under" The Larceny Act.”—32-33 V., c. 21, s. 113. 24-25 V., c. 96, s. 100, Imp.

"It is to be observed that the proviso as to trustees, bankers, &c., only excepts cases of misdemeanors from the operation of this section, and leaves all cases of felony within it."-2 Russ. 355, note. The words in italics are not in the English Act; they were in the bill as passed in the House of Lords, but were struck out by the select committee of the Commons.-Greaves' Cons. Acts.

The prisoners were convicted of feloniously stealing certain property. The judge who presided at the trial made an order, directing that property found in the possession of one of the prisoners, not part of the property stolen, should be disposed of in a particular manner. Held, that the order was illegal, and that a judge has no power, either by common law or by statute, to direct the disposal of chattels in the possession of a convicted felon, not belonging to the prosecutor.-R. v. Pierce, Bell C. C. 235. R. v. Corpor. of London, E. B. & E. 509.