in evidence when offered, without its being necessary to show that an order of a judge has been obtained, sanctioning the delivery of a copy, though it seems the officer having the custody of the records should not deliver it without an order. (u)

Where a conviction has been returned to the sessions, and filed by the clerk of the peace, but quashed on appeal afterwards made to the sessions, the quashing may be proved by an order under the seal of that court, signed by its clerk, directing that the conviction should be quashed, the conviction itself being in evidence, and the connection between it and the order being shown. (v) After the return of the conviction, it becomes a record, and may be proved as other records.

It is not necessary to make up a formal record of the judgment on the appeal, for the 32 & 33 Vic., c. 31, enables the Court of Quarter Sessions to dispose of the conviction, "by such order as to the court shall seem meet." (w)

It would seem that the minute book of the sessions, having an apparently proper caption, and signed by the clerk of the peace, would not be sufficient proof per se of the judgment of the court quashing the conviction without proof of the order following it; but, if the further proof were added that, in practice, no other record is kept or made up, the minute book would be evidence. So the minute book would be evidence as to indictments, verdicts, and judgments in criminal matters, at the sessions. (x)

A conviction, before a police magistrate, can only be proved by the production of the record of the conviction, or an examined copy of it. Where a police magistrate, after hearing a case of common assault, ordered the accused to enter into a recognizance and pay the recognizance fee, but did not order him to be imprisoned, or to pay any fine, it was held

(u) Lusty v. Magrath, 6 U. C. Q. B. O. S. 340.

(v) Neill v. McMillan, 25 U. C. Q. B. 485.

(w) Ibid.

(x) Neill v. McMillan, 25 U. C. Q. B. 494, per Draper, C. J.

that this was not a conviction within the corresponding English section of the 32 & 33 Vic., c. 20, s. 45; and that even if it were, a statement of the above facts by the magistrate's clerk, without producing a record of the proceedings, was not sufficient proof of its existence. (y)

An information, and other proceedings before a justice of the peace, returned to the Supreme Court with a certiorari, and filed with the clerk of the Crown, become a record, and may be proved by an examined copy taken before the originals were filed. (z)

To prove the finding of an indictment at the sessions, it is not sufficient to produce an exemplification of the record of acquittal, without any general heading or caption to it, (a) and it would seem the proper way of proving it is to have the record regularly drawn up, and produce an examined copy. (b)

The production of the original indictment is insufficient to prove an indictment for felony, and a record showing a proper caption must be made up. (c)

A judgment of the Court of Quarter Sessions, affirming a conviction of the defendant, before a magistrate, on a charge of assaulting H. M., "by using insulting and abusive language to him, in his own office and on the public street, and by using his fist in a threatening and menacing manner to the face and head of the said H. M.," is sufficient proof of a breach of the peace. (d)

The court will judicially notice a public statute. (e) By the Interpretation Act, 31 Vic., c. 1, s. 7, thirty-eighthly, every Act shall be deemed to be a public Act, and shall be judicially noticed by all judges, justices of the peace and others,

(y) Hartley v. Hindmarsh, L. R. 1 C. P. 553.

(2) Sewell v. Olive, 4 Allen, 394.

(a) Aston v. Wright, 13 U. C. C. P. 14.

(b) Ibid 19, per Draper, C. J.

(c) Henry v. Little, 11 Ú. C. Q. B. 296; Rex v. Smith, 8 B. & C. 341; see also on this 32 & 33 Vic., c. 29, s. 77.

(d) Reg. v. Harmer, 17 U. C. Q. B. 555. (e) See Reg. v. Shaw, 23 U. C. Q. B. 616.

without being specially pleaded, and all copies of Acts, public or private, printed by the Queen's printer, shall be evidence of such Acts and of their contents, and every copy purporting to be printed by the Queen's printer shall be deemed to be so printed, unless the contrary be shown.

Where an Act of Parliament makes a gazette evidence if it purport to be printed "by the Queen's printer" or "by the Queen's authority," a gazette purporting to be printed by A B., without giving his style as Queen's printer, and purporting to be printed "by authority," is not receivable. But evidence aliunde might be admissible to show that A. B. was the Queen's printer, and that the authority was the Queen's authority. (f)

On a charge of murder, threats made by the prisoner to a third person more than six months before the commission of the crime, that the prisoner would take the law into his own hands, are clearly admissible, though there are friendly relations between the parties afterwards, and if undue prominence is given to these threats in the charge of the jury, the prisoner's counsel should call the attention of the court to it, and request that the jury should be told that if there were subsequent acts of kindness and expressions of friendliness, they would raise a presumption of kindness to rebut that of malice. (g) The reception of evidence in reply is, as a general rule, in the discretion of the judge, subject to be reviewed by the court. Evidence in explanation of some matter brought out by the prisoner's witnesses, is properly received in reply; (h) and witnesses may be recalled for this purpose. (i)

According to the strict practice, a party cannot, after closing his case, put in any evidence, unless by permission of the judge. (j) And in an action for libel, it was held that the plaintiff could not, after closing his case, have a paper which

(f) Reg v. Wallace, 2 U. C. L. J. N. S. 138; 10 Cox, 500. (g) Reg. v. Jones, 28 U. C. Q. B. 416.

(h) Ibid.

(i) Reg. v. Sparham, Rob. & Jos. Dig. 929.

(j) Cross v. Richardson, 13 U. C. C. P. 433.

he had proved before, read and filed, except in the discretion of the judge trying the case. (k)

Before the 32 & 33 Vic., c. 29, s. 80, did away with the granting of new trials in criminal cases, it was held that the rule is the same in the latter as in civil cases; at any rate, where the prisoner is defended by counsel, that any objection to the charge of the presiding judge, either for non-direction or for misdirection, must be taken at the trial, when it can be directly cured; and if not then taken, it cannot be afterwards raised on motion for new trial or otherwise, especially when the evidence fully sustains the verdict; that non-direction is not an available objection when the verdict is not against evidence, and where the law is clear, it is no misdirection to leave the facts simply to the jury, for they are judges of the evidence; that misdirection could only be on a point of law, and not on a matter of fact. (1)

The improper reception of evidence upon a criminal trial is not necessarily a ground for quashing the conviction, if the other evidence adduced be amply sufficient to sustain it. (m)

It would seem that, as the law now stands in Canada, when material evidence has been incorrectly admitted or rejected, or the verdict, though regularly obtained, is manifestly contrary to the evidence, the proper remedy for the prisoner is an application to the Crown for a pardon. (n)

A bill of exceptions will not lie in a criminal case. (v) It follows that, on a charge of that nature, a question as to the reception of evidence, or the rulings of the judge thereon, or his directions to the jury, cannot be raised on the

(k) Cross v. Richardson, 13 U. C. C. P. 433.

() Reg. v. Fick, 16 U. C. C. P. 379; see also Cousins v. Merrill, 16 U. C. C. P. 120.

(m) Reg. v. Foster, 1 U. C. L. J. 156.

(n) Reg. v. Kennedy, 2 Thomson, 216, per Bliss, J.; ibid. 225, per Wilkins, J.

(0) Whelan v. Reg. 28 U. C. Q. B. 132, per Draper, C. J.; (in E. & A.) ; Reg. v. Pattee, 5 U. C. P. R. 292; 7 C. L. J. N. S. 124, per Dalton, J.; Duval dit Barbinas v. Reg., 14 L. C. R. 74, per Meredith, J.; ibid. 79, per Duval, C. J. (in error).

record, so as to constitute a ground of error; (p) for the effect of a bill of exceptions is to raise the point excepted to specifically on the record, so as to be subject to revision in error. (q)

An indictment in a criminal prosecution of the defendant is not admissible as evidence in a civil suit against him. (r) And on the trial of an indictment for receiving goods which one M. had feloniously stolen, evidence is not admissible to show that M. had previously been tried for the larceny and acquitted. (s)

The fabrication of evidence by a prisoner, or inducing a witness to swear in his favor, is most damaging to the prisoner's case. (t)

The reading to witnesses of the judge's notes of their evidence, taken on a former trial, should be discouraged. Where, on a second trial, at the same sitting, before another jury, some of the witnesses having been re-sworn, the evidence given by them at the first trial was read over to them from the judge's notes, liberty being given, both to the prosecution and to the prisoner, to examine and cross-examine the witnesses, it was held that this proceeding was irregular, and could not be cured by the consent of the prisoner. (u)

But witnesses may refer to memoranda for the purpose of refreshing their memories. And a witness was allowed to look at a time book, from which he made up the amounts due to the employees of the establishment in which he was pay clerk, for the purpose of proving sums paid to them, though the entries were made by another person. (v)

On a trial for common assault, or when a higher crime is charged but only common assault proved, the prisoner is a

(p) Winsor v. Reg. L. R. 1 Q. B. 312, per Cockburn, C. J.

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

(r) Winning v. Fraser, 12 L. C. J. 291.

(8) Reg. v. Ferguson, 4 Pugsley & B. 259.

(t) Reg. v. Jones, 28 U. C. Q, B. 416.

(u) Reg. v. Bertrand, L. R. 1 P. C. App. 520. (v) Reg. v. Langton, L. R. 2 Q. B. D. 297.