brought for violation of an express undertaking of record, into which the defendant had entered, and that, therefore, the conviction by the Magistrates did not bar the proceedings on the sci.fa. (a)

If a party be charged, before a Justice of the Peace, with an assault, and he dismisses the complaint, giving a certificate, under this clause, the defendant can avail himself of the certificate as a defence to an action for tearing the plaintiff's clothes, on the same occasion. (b)

An acquittal on an indictment for stealing goods, in which the ownership of the goods is not properly laid, is no bar to an indictment sufficiently laying the property. The prisoner having been indicted on a count stating the ownership of property stolen to be in the prosecutor's son, who was only fourteen years of age, and assisted his father without wages, was acquitted and a second indictment was then preferred, laying the ownership in the prosecutor, upon which the prisoner was convicted:Held, that a plea of autrefois acquit could not be sustained. and that the conviction was right. (c) Where the pris oner is tried upon a good indictment for a charge of felony, before a competent tribunal, and has been given in charge to a jury, in due form of law empannelled, chosen and sworn, a new indictment against him may be defeated by a plea of autrefois acquit. (d)

If a plea of autrefois acquit or convict is overruled, the prisoner may plead not guilty, and be tried at the same Court of oyer and terminer. (e)

A plea of autrefois convict is not proved by the production of the record, and verdict endorsed. (ƒ)

(a) Reg. v. Harmer, 17 U. C. Q. B. 555-8.

(b) Julien v. King, 17 L. C. R. 268.

(c) R. v. Green, 3 U. C. L. J. 19; Dears. & B. 113.

(d) Reg. v. Murphy, L. R. 2 P. C. App., 548, per Sir Wm. Erle.

(e) See Reg. v. Magrath, 26 U. C. Q. B. 385.

(f) Re Warner, 1 U. C. L. J. N. Š. 18, per Hagarty, J.

A plea describing a Statute, as passed in the 4th and 5th years of the reign of Queen Victoria, is bad on demurrer. (a) It seems a demurrer must be to the entire count or plea, and not to part of it; and, if it is good upon the whole, anything else which it contains, which by itself would be insufficient, is mere surplusage. (b)

After a demurrer is overruled, to allow a party to plead not guilty is substantially correct, if regarded in what perhaps is the proper view to take of it, as an amendment allowed to the party before final Judgment. (c)

The first count of an indictment on the Con. Stats. Can. c. 6, s. 20, charged that the defendant, after having made the alphabetical list of persons entitled to vote, etc., made out a duplicate original of the said list, and certified by affirmation to its correctness, and delivered the same to the Clerk of the Peace, and that in making out the certified list, so delivered to the Clerk of the Peace, of persons entitled to vote, etc., the defendant did feloniously omit, from said list, the names, etc., which names or any or either of them, ought not to have been omitted. The second count was nearly the same as the first, the word "insert" being used where the word "omit" was used in the first. Upon demurrer to the indictment, the Court held that the omission charged, having been from the certified list delivered to the Clerk of the Peace, or " duplicate original" the words "said list " referring to the words "the certified list so delivered to the Clerk of the Peace" was a sufficient description to identify the list intended.

As to the objection that it did not appear that the persons whose names were charged to have been omitted, etc., were persons entitled to vote, etc. :-Held, that the words

(a) Johnstone v. Odell, 1 U. C. C. P., 406, per McLean, J.; Huron D. C. v. London D. C., 4 U. C. Q. B. 303.

(b) Mulcahy v. Reg. L. R. 3 E. & I. App. 329, per Ld. Cranworth. (c) Ib. 323, per Willes, J.

in the indictment were not a direct, and specific allega tion that those persons were entitled to vote: as to an objection that it was not alleged that the list was made up from the last revised assessment roll, the Court held that by the indictment, it appeared that the assessment roll referred to was the assessment roll for 1863, and that it was sufficiently stated that the alphabetical list was made up for that year, and that the Crown would be bound to prove such a list :-Held, further, that both counts of the indictment were bad, as they should have shewn explicitly, how and in what respect these names should or should not have been on the list, by setting out that they were upon, or were not upon, the assessment roll as the case might be, or at any rate were, or were not, upon the alphabetical list. (a)

Therefore,

Matter of description, in an indictment, though unnecessarily alleged, must be proved as laid. where, in an indictment for assaulting a game-keeper of the Duke of Cambridge, under 9 Geo. 4 c. 69, s. 2, the Duke was described as "George William Frederick Charles, Duke of Cambridge" and it was proved that "George William" were two of his names, but that he had other names which were not proved, and it was found by the verdict that the jury were satisfied of the identity of the Duke, and the prisoners were convicted :-Held, that the conviction was wrong; that under 14 & 15 Vic., c. 100, s. 24, an amendment might have been made at the trial, by which the conviction would have been supported by striking out all the Christian names; but it was now too late and that the Court of Quarter Sessions were not bound to amend : that an amendment, by striking out the two names only, which were not proved would have been wrong. (b)

(a) Reg. v. Switzer, 14 U. C. C. P. 470.

(b) Reg. v. Frost, 1 U. C. L. J. 135; Dears. 474; 24 L. J. (M. C.) 116.

An indictment could not be amended at common law, without the consent of the Grand Jury, on whose oath it was found. (a)

The 32 & 33 Vic., c. 29, s. 70, et seq. contains provisions as to the amendment of indictments in certain cases. It would seem that a defect, in laying the property in an indictment, might be amended under s. 71. (b) Under a section of an English Act, somewhat analogous to s. 71, it was held that the Judge had power to amend an indictment for perjury, describing the Justices, before whom the perjury was committed, as Justices for a county, where they were proved to be Justices for a borough only. (c)

Where an amendment has once been made, the case must be decided upon the indictment, in its amended form. (d)

The amendment must, in all cases, be made before verdict. (e)

It seems, however, that an amendment may be made, after the prisoner's counsel has addressed the jury. (ƒ)

Upon an amendment of the indictment at the trial, no postponement of the trial will be granted, if the prisoner is not prejudiced in his defence. (g)

S. 72 of the 32 & 33 Vic., c. 29, enacts that after any such amendment, the trial shall proceed, whenever the same is proceeded with, in the same manner, and with the same consequences, both with respect to the liability of witnesses to be indicted for perjury, and in all other respects as if no such variance had occured.

(a) Re Conklin, 31 U. C. Q. B. 167, per Wilson, J.

(b) Reg. v. Jackson, 19 U. C. C. P. 280; Reg. v. Quinn, 29 U. C. Q. B. 164, per Richards, C. J.

(c) Reg. v. Western, L, R. 1 C. C. R. 122; 37 L. J. (M. C.) 81.

(d) Reg. v. Barnes, L. R. 1 C. C. R. 45; 35 L. J. (M. C.) 204.

(e) Reg. v. Frost, Dears. 474; 24 L. J. (M. C.) 116; Reg. v. Larkin, Dears. 365; 23 L. J. (M. C.) 125.

(f) Reg. v. Fullarton, 6 Cox, 194; Arch. Cr. Pldg. 207; but see Reg. v. Rymes, 3 C. & K. 326.

(g) Reg. v. Senecal, 8 L. C. J. 287.

A count on an indictment charging a prisoner with unlawfully and carnally knowing and abusing a girl, under the 32 & 33 Vic., c. 20, s. 52, and also with an assault at common law, might be objectionable, on the ground of duplicity. (a)

Where different felonies are charged in different counts of an indictment, and an objection is taken to the indictment, on that ground, before the prisoner has pleaded, or the jury are charged, the Judge, in his discretion, may quash the indictment, or, if it be not discovered until after the jury are charged, the Judge may put the prosecutor to his election on which charge he will proceed. (b)

Counts under the 39 Geo. 3, c. 85, for embezzling bank notes, might have been joined with counts for larceny at common law, (c) and the prosecutor would not, at the opening of his case, have been put to his election as to whether he would proceed on the statutory or common law count, though he would have been limited to one state of facts relating to one single act of offence. (d)

But counts ought not to be joined in an indictment against a prisoner, for stealing and also for receiving, and the reason is, because they are, in fact, totally distinct offences, and the prisoner cannot be found guilty of both. But when the two facts charged form part of one and the same transaction, and are not repugnant, they may be properly joined, as in indictments for forgery, where one count is inserted for forgery, and another for uttering the forged instrument. (e)

It would seem that, where there is only one offence

(a) Reg. v. Guthrie, L. R. 1 C. C. R. 242, per Bovill, C. J.

(b) Young v. R. 3 T. R. 106; Reg. v. Heywood, L. & C. 451; 33 L. J. (M. C.) 133; Arch. Cr. Pldg. 70.

(c) Rex v. Johnson, 3 M. & S. 539.

(d) Reg. v. Cummings, 4 U. C. L. J. 184, per Draper, C. J.

(e) Rex v. Blackson, 8 C. & P. 43, per Parke, B.