A verdict, on a charge of felony, has been held to be a nullity and a venire de novo awarded in cases of defect of jurisdiction, in respect of time, place, or person, or where the verdict is so insufficiently expressed, or so ambiguous that a judgment could not be founded thereon. (a)

A prisoner having been tried and convicted of a capital felony, by a Court of Oyer and Terminer, in New South Wales, and sentence of death passed, and the judgment entered upon record, an application was made to the Supreme Court, sitting in Banc, for a rule for a venire de novo on an affidavit which stated that one of the jury had informed the deponent that, pending the trial, and before the verdict, the jury having adjourned to an hotel had access to newspapers which contained a report of the trial as it proceeded, with comments thereon. The Supreme Court made the rule absolute, considering that there had been a mis-trial, and ordered an entry to be made on the record of the circumstances deposed to, that the judgment on the verdict should be vacated, and a fresh trial had; on appeal to Her Majesty in Council:--Held by the Judicial Committee that a venire de novo cannot be awarded after verdict upon a charge of felony, tried upon a good indictment and before a competent tribunal, where the prisoner has been given in charge to a jury in due form of law empanelled, chosen and sworn, secondly, that if a venire de novo could be awarded upon an application, by way of error on appeal, the proceeding in the Supreme Court, was defective in form, and not warranted by the suggestion entered on the record, and, therefore, thirdly, that the order for vacating the judgment, and for a venire de novo must be set aside. (b)

The application for a venire de novo, in this case, was

(a) Reg. v. Murphy, L. R. 2 P. C. App. 548, per Sir Wm. Erle. (b) Rea. v. Murphy, supra, 535.

considered as an attempt to obtain a new trial by the exercise of discretion, and the principal ground of the decision was that a new trial could not be granted in a case of felony. (a)

A sentence of death need not be conformable to the English Act, 23 Geo. 2, c. 17, s. 1, and a sentence in these words "that you be taken to the place of execution at such time, as His Excellency the Lieutenant-Governor may direct," is sufficient. (b)

A prisoner, who has been convicted of felony at the Assizes, may be brought up into this Court to receive sentence. (c)

No warrant is required to execute a sentence of death, for, in contemplation of law, there is a record of the judg ment which may be drawn up at any time. It is not necessary that a Judge of a criminal Court should sign any warrant or sentence directing any punishment. (d) In Nova Scotia, the warrant for execution issued from the Court, and the time and place of execution was endorsed on it by the fiat of the Governor. (e)

In general, there can be no costs allowed in Crown cases. (f)

But the rule that the King neither pays nor receives costs, is not universal, nor inflexible. (g)

On putting off the trial of an information for penalties at the instance of the defendant, the Court will make payment of costs a condition in the same way as in civil cases. (h) When a defendant, on an indictment for perjury, puts off the trial, he must pay costs on the principle

(a) See Reg. v. Bertrand, L. R. 1 P. C. App. 520.

(b) Reg. v. Kennedy, 2 Thomson, 218.

(c) Rex v. Kenrey, 5 U. C. Q. B. O. S. 317.

(d) Ovens v. Taylor, 19 U. C. C. P. 53-4, per Hagarty', J.

(e) Reg. v. Kennedy, 2 Thomson, 213.

(f) Reg. v. Justices, York, 1 Allen, 90.

(g) Rex v. Ives, Draper 456, per Macaulay, C. J.

(h) Ih. 453.

that an indulgence is granted to him, which ought not to occasion additional expense. When the King is a party costs may be receivable, when there has been default on one side or an indulgence on the other, although, upon a conviction or acquittal, none would be taxable. (a)

Where after a rule nisi for a mandamus had been served, the applicant gave notice that it would not be proceeded with, but did not offer to pay any costs, the Court, on application, discharged the rule with costs up to the time of the notice, and costs of said application. (b)

The Court will not entertain an application for costs of an appeal against the decision of a Justice, under the 20 & 21 Vic., c. 43, in the term after that in which judgment is pronounced. (c)

An attachment cannot be granted against a corporation for a non-payment of costs. (d)

Under 32 & 33 Vic., c. 31, s. 65, and 33 Vic. c. 27, the Court of Sessions has no power to award costs, on discharging an appeal for want of proper notice of appeal for the words "shall hear and determine the matter of appeal" mean deciding it upon the merits (e)

The 5 & 6 W. & M., c. 33, s. 3, enacts that, if the defendant prosecuting a writ of certiorari be convicted of the offence for which he was indicted, then the Court shall give reasonable costs to the prosecutor, if he be the party grieved or injured, or be a Justice of the Peace, mayor, bailiff, constable, head borough tithing man, churchwarden, or overseer of the poor, or any other civil officer who shall prosecute upon the account of any fact committed or done that concerned him or them, as officer or offi

(a) Rex v. Ives, Draper 454, per Robinson, C. J.

(b) Reg. v. Justices, Huron, 31 U. C. Q. B. 335.

(c) Budenberg and Roberts, L. R. 2 C. P. 292.

(d) Rector St. John v. Crawford, 3 Allen, 266. See also Rex v. M'Kenzie, Taylor, 70. (e) Re Madden, 31 U. C. Q. B. 333.

cers, to prosecute or present. The defendants were indicted before the General Quarter Sessions of the Peace for a nuisance, in obstructing a highway, and they removed the indictment into the Court of Common Pleas, where they were afterwards, severally, convicted and judgment given against them. A motion was made for a rule absolute ordering the costs of prosecuting the indictment to be taxed by the master, and that the said costs should be allowed to the Municipality as the prosecutors of the indictment, and paid by the said defendant to the said Municipality. The Court refused the rule, and laid down that the regularly established practice was to issue a side-bar rule to tax the costs, and when the side-bar rule is obtained, the officers do not proceed to taxation until notice has been given to the bail.

The question, who, as prosecutors, were entitled to the costs might be discussed on a motion to set aside the side bar rule, when both parties are before the Court, or it might come up on opposing a motion for an attachment, for non-payment of the costs taxed after demand made, as required by the Statute. (a) The defendant, after a demand of costs, under a rule of Court, by the plaintiff's attorney, paid the amount to the plaintiff. The attorney, afterwards, obtained a rule for an attachment, for nonpayment of the costs, but, before the attachment issued, was informed of the payment to the plaintiff :-Held, that he was not justified in, afterwards, issuing an attachment for the costs of an affidavit of the demand of payment, and the costs subsequently incurred. (b)

The Statutes authorizing the granting of new trials, in criminal cases, have been repealed, and now, throughout

(a) Reg. v. Gordon, 8 U. C. C. P. 58.

(b Reg. v. Harper, 2 Allen, 433.

the Dominion, there is one uniform law, similar to that of England, on this point. (a)

By the law of England, no new trial can be granted in case of felony. (b) Such was also the law of Quebec, even prior to the recent Statute, (c) and in Nova Scotia. (d)

When the indictment has been removed into the Queen's Bench, by certiorari, and is tried at the Assizes, it seems the Court has power to grant a new trial, where an individual or a corporation has been acquitted on a charge of misdemeanor. (e)

The Crown, or the prosecutor, had no right to a new trial, under the Statutes, in case of an acquittal. (ƒ)

Superior jurisdictions cannot grant a new trial upon the merits, but only for an irregularity. (g)

It would seem that the Court of Queen's Bench will not grant a new trial, after conviction of misdemeanor at the Assizes, and before judgment, upon the Judge's report of the evidence. (h)

The Court has power, at common law, to grant a new trial in any case of misdemeanor, tried at the Assizes, on a record from the Queen's Bench. (i)

But until the passing of the 20 Vic., c. 61, a new trial could not be granted in any criminal case in Ontario, tried at a Court of Oyer and Terminer and Gaol Delivery, or Quarter Sessions. (j)

Where an indictment is preferred at the Sessions, or

(a) See 32 & 33 Vic. c. 29, s. 80.

(b) Reg. v. Bertrand, L. R. 1 P. C. App. 520; Reg. v. Murphy, L. R. 2 P. C. App. 535.

(c) Reg. v. D' Aoust, 10 L. C. J. 221; S. C., 9 L. C. J. 85, overruled; Reg. v. Bruce, 10 L. C. R. 117; Gibb v. Tilstone, 9 L. C. R. 244.

(d) Reg. v. Kennedy, 2 Thomson, 203.

(e) Reg. v. G. T. R. 15 U. C. Q. B. 121; but see Reg. v. Johnson, 6 U. C. L. J. 287; 6 Jur. N. S. 553; 8 W. R. 236.

(f) Reg. v. Seddons, 16 U. C. C. P. 395, per A. Wilson, J.

(g) Yearke v. Bingleman, 28 U. C. Q. B. 557, per Richards, C. J.; Rex v. Oxford, 13 Ea. 416 n.

(h) Yearke v. Bingleman, supra, 557, per Richards, C. J.

(i) Reg. v. Fellowes, 19 U. C. Q. B. 51, per Robinson, C. J.

(j) Reg. v. Fitzgerald, 20 U. C. Q. B. 546.