it only lies on judgments in Courts of Record acting according to the course of the common law. (a)

A proceeding by writ of error is the more formal method of getting rid of an erroneous judgment, but, as the writ lies for error in the judgment where the judgment is void, perhaps it would not be the proper course. (b)

After judgment, the only remedy is by writ of error. (c) But error only lies on a final judgment. (d)

Error, as distinguished from appeal, will lie in a criminal case, from the Court of Error and Appeal to the Queen's Bench. (e)

The rule prevailing in civil cases that, when the error is in fact and not in law, the proceedings may be taken in the same Court, but, when the error is in the judg ment itself, error must be in another and superior Court, extends also to criminal cases.

Therefore, the Court of Queen's Bench for Ontario has no authority, in criminal cases, either at common law or by Statute, to issue its own writ for the review of its own judgment upon error in law, returnable in a Superior Court. But the Court of Error and Appeal for Ontario has full power to issue a writ of error in criminal as well as civil cases, and, when the error is in the judgment in the Court of Queen's Bench, the writ of error should be issued out of the Court of Error and Appeal. The writ may be, as nearly as possible, in the form of a writ of appeal given by the orders of the Court, as published in 1850. (ƒ)

A writ of error cannot be granted without the fiat of the Attorney-General. (g)

(a) Ramsay v. Reg., 11 L. C. J. 166.

(b) Reg. v. Sullivan, 15 U. C. Q. B. 198.

(c) See Reg. v. Mason, 29 U. C. Q. B. 435, per Wilson, J.; Reg. v. Smith, 10 U. C. Q. B. 99.

(d) Ex parte Blossom, 10 L. C. J. 42, per Badgley, J.

(e) Whelan v. Reg., 28 U. C. Q. B. 108.

(ƒ) Ib.

(g) Notman v. Reg., 13 L. C. J. 255. See also Whelan v. Reg., supra.

If, in an information of quo warranto, the AttorneyGeneral have granted his fiat that a writ of error may issue, the Court will not interfere, the first being conclusive. (a)

The Attorney-General (or, in his absence, the SolicitorGeneral) alone can authorize the issue of a writ of error, and he cannot delegate that power to another. Where, therefore, a writ of error was issued and signed by Thomas K. Ramsay, acting for, and in the name of, Her Majesty's Attorney-General, and not by the AttorneyGeneral himself, it was held illegal and void. (b)

On error, from the Court of Queen's Bench for Ontario to the Court of Error and Appeal, the party is at liberty, in the Court of Error and Appeal, to assign new errors, in addition to those laid in the Court of Queen's Bench. (c)

It has been already shewn that a Court of Error can only consider matters appearing on the face of the record. It follows, therefore, that matters which cannot be raised upon the record are not examinable in error. The pleadings, the proper continuance of the suit and process, the finding of the jury upon an issue, in fact, if any such had been joined, and the judgment are the only matters which can be raised upon the record, with a view to error. As a bill of exceptions does not lie in a criminal case, there is, therefore, no mode of causing the rul ings of the Judge, upon questions of evidence, or his directions to the jury, to be made part of the record, and, consequently, such rulings or directions of the Judge cannot be reviewed in error. (d)

In this case, it was alleged that, in the course of the trial, a medical witness was ordered to make an analysis

(a) Reg. v. Clarke, 5 U. C. L. J. 263.

(b) Dunlop v. Reg. 11 L. C. J. 271.

(c) See Whelan v. Reg., 28 U. C. Q. B. 110; Reg. v. Mason, 32 U. C. Q. B. 246. (d) Duval dit Barbinas v. Reg., 14 L. C. R. 72-4, per Meredith, J.

for the information of the jury; that he had done so, and made a report, but that the report so made was not placed before the jury, as it ought to have been, and that, thereby, the prisoner was deprived of the advantage of impor tant evidence in his favour:-Held, that, as the report could not have been submitted to the jury, except as part of the evidence, and, as neither the evidence, nor the ruling of the Judge in relation to it, nor his directions to the jury, can be brought under the consideration of this Court by a writ of error, that the plaintiff in error had not a right to have the record amended, so as to place before this Court the said report, and the entries in the register of the Court below respecting it. Nor could the plaintiff in error cause the record to be amended, so as to shew whether the Judge, who presided at the trial, wrote the notes of the evidence himself, or caused them to be written by another person; nor so as to shew what precautions were taken for the safe-keeping of the jury, whilst deliberating upon their verdict out of Court, for the pleadings in a cause, and the judgment pronounced thereon, form the only grounds of the record returned in obedience to a writ of error. (a)

It need not appear, on the face of the record, that the jury, when they retired at the Judge's charge were in the custody of sworn constables. An objection on this ground cannot, therefore, be reviewed in error. Though the improper allowance or disallowance of a challenge is ground of error, yet, strictly speaking, there ought to be an answer in law, or in fact, to the challenge, and a judgment upon the issue raised.

When the proceedings on a challenge are regular, they may be made a part of the record, and may be examined in error. (b)

(a) Duval dit Barbinas v. Reg., 14 L. C. R. 52.

(b) Ib. 74-5, per Meredith, J.

NN

If it is desired to take the opinion of the Court on the rulings of the Judge, or his directions to the jury, the proper course is to apply to him to reserve a case, under the Statute, for the opinion of the Court. (a)

It is the common understanding in the profession that a prisoner can consent to nothing. (b) To purge error it would seem that a prisoner cannot consent that the evidence of witnesses given on a former trial should be read in place of a new examination of the witnesses, although the witness was present in Court, and was sworn and heard, his evidence read over, and the parties were told they were at liberty further to examine, and cross-examine him, (c) although this course has been adopted in several cases, (d) with the consent of the prisoner. (e)

A prisoner can consent to nothing manifestly irregular, as that his wife should be examined as a witness, or that the witnesses should be examined without being sworn, or that admissions made by his attorney to the opposite attorney out of Court should be received as evidence in the cause. (f)

A prisoner may consent to withdraw or release his challenge, altogether, or to accept a juror, on his challenge being overruled. He might consent to secondary evidence being given, and it would seem, although no notice to produce had been served. He might consent to withdraw a plea in abatement, and he may withdraw his plea of not guilty, and plead guilty. So he might consent that the jury should take with them plans or writings not under seal, which were given in evidence. (g)

(a) Duval dit Barbinas v. Reg., 14 L. C. R. 74, per Meredith, J.
(b) Reg. v. Bertrand, L. R. 1 P. C. App. 534, per Sir John T. Coleridge.
(c) Ib. 520.

(d) Rex v. Streek, 2 C. & P. 413; Rex v. Foster, 7 C. & P. 495.

(e) Whelan v. Reg., 28 U. C. Q. B. 52, per A. Wilson, J.

(ƒ) Ib. 52.

(g) Ib. 53-4, per A. Wilson, J.

A concilium has been granted for the argument of errors in the Court of Queen's Bench. (a)

It would seem that the Court may direct Crown cases to stand on the new trial paper for argument with ordinary suits between party and party. (b)

If a juror against whom there is a good cause of challenge is sworn, and sits on the jury, there would be a mistrial, and the proceedings would amount to error, and on writ of error brought, the Court would direct a venire de novo, if the party was not allowed to challenge for cause, and was directed to challenge peremptorily. (c)

A mis-trial vitiates and annuls the verdict, in toto, and the only judgment is a venire de novo, because the prisoner was never, in contemplation of law, in any jeopardy on his first trial. (d)

The distinction between a venire de novo, and a new trial, is that the former must be granted, in respect of matters appearing upon the record, but a new trial may be granted upon things out of it. (e)

It seems that a venire de novo can be awarded in a case of felony on a defective verdict. (f)

Unless, there is such an irregularity as to annul all the proceedings on the record, subsequent to the award of the jury process, and render the first trial an absolute nullity, a venire de novo should not be granted. (g)

There is no authorily that an abortive trial prevents a venire de novo in a case of misdemeanor (h); and if a trial proves abortive a venire de novo may be awarded in a case of felony as well as misdemeanor. (i)

(a) Whelan v. Reg. 28 U. C. Q. B. 15.
(b) Reg. v. Sinnott, 27 U. C. Q. B. 539.
(c) Whelan v. Reg., 28 U. C. Q. B. 51-91.

(d) Ib. 137.

(e) Reg. v. Kennedy, 2 Thomson, 215, per Bliss, J.

(f) Winsor v. Reg., L. R. 1 Q. B. 319, per Blackburn, J; Campbell v. Reg., 11 Q. B. 799; Gray v. Reg. 11 Cl. & F. 427.

(g) Reg. v. Kennedy, supra, 223, per Wilkins, J.

(h) Reg. v. Charlesworth, 9 U. C. L. J. 51.

(i) Winsor v. Reg., L. R. 1 Q. B. 319.