or writ of error. It is, therefore, a general rule that no indictments which charge the higher offences, as treason or felony, will be thus summarily set aside. (c)

The omission of the residences and occupations of grand jurors, in the list and in the panel, was held sufficient ground for quashing an indictment for felony. (d)

Where an indictment charges no offence against law, the objection may be properly taken in arrest of judgment, or the indictment may be demurred to, or a writ of error will lie. (e) But the omission of the word "feloniously" is aided by verdict. (f)

No mere formal defect, in an indictment, can be objected to after the prisoner is found guilty and sentenced at the Court of Oyer and Terminer. (g)

An objection to an indictment, as insufficient in law, made after the swearing of the jury, and after the prisoner was given in charge of them, was held not too late; for otherwise there never could be a motion in arrest of judgment. (h) Also, that an objection may be made at any time for a substantial but not for a formal defect, and that the 32 & 33 Vic., c. 29, s. 32, only applies to the latter. (i)

The forms of indictinent in the 32 & 33 Vic., c. 29, schedule A, are intended as guides to simplify forms of indictments. They cannot be made use of in cases to which they are not applicable, so as to misinform a person of the nature of the offence with which he stands charged. (j) The adoption of the forms is discretionary. (k)

It is sufficient if an indictment be signed by the clerk of

(e) Reg. v. Clement, 26 U. C. Q. B. 300, per Draper, C. J. (f) Reg. v. Quinn, 1 Russ. & Geldert, 139.

(g) Horseman v. Reg., 16 U. C. Q. B. 544, per Robinson, C. J. (h) Reg. v. Ryland, L. R. 1 C. C. R. 99; 37 L. J. (M. C.) 10. (i) Ibid.

(j) Reg. v. Cummings, 4 U. C. L. J. 188-9, per Spragge, V.-C. (k) Ibid.; and see Reg. v. McLaughlin, 3 Allen, 159.

the Crown, (/) or by the counsel prosecuting for the provincial Attorney General. (m)

Before pleading to an indictment, the defendant must submit to the jurisdiction of the court. (n)

The prisoner must plead in abatement before he pleads in bar. (0)

No more than one plea can be pleaded to any indictment for misdemeanor or criminal information. (p)

A prisoner will be allowed to withdraw his plea of "guilty" if it appear that he may have been under some misapprehension when he pleaded, and might thereby suffer injury. (9)

(1) Reg. v. Grant, 2 L. C. L. J. 276.
(m) Reg. v. Downey, 13 L. C. J. 193.
(n) Reg. v. Maxwell, 10 L. C. R. 45.

(o) Whelan v. Reg., 28 U. C. Q. B. 47.

(p) Reg. v. Charlesworth, 1 B. & S. 460; 31 L. J. (M. C.) 26. (g) Reg. v. Huddell, 20 L. C. J. 301.

CHAPTER X.

PRACTICE.

There are three principal modes provided by the law of England for the prosecution of criminals: by indictment preferred by a grand jury; by criminal information to a superior court; and by summary proceedings before justices of the peace, by virtue of special powers conferred on them to that end by various statutes.

As proceedings by indictment usually, though not necessarily, follow the commitment of prisoners by justices of the peace, and as criminal informations are comparatively rare in this country, we will consider first the nature of that body, both with regard to their duties in holding preliminary investigations, and also with regard to their powers of summary conviction; then proceedings on indictments and criminal informations will be treated of; after which, various questions of practice, relating to the trial and the steps subsequent thereto, will be discussed.

Justices of the peace were first appointed in the reign of Edward I., (a) but with powers much less extended than have since been conferred on them.

By 29 Vic., c. 12, the oath of qualification of a justice may be taken either before some other justice of the peace, or before any person assigned by the governor to administer oaths and declarations, or before the clerk of the peace of the district or county for which the justice intends to act; and all such oaths theretofore taken before the lastmentioned officer, or before a commissioner assigned by Dedimus potestatem to administer oaths, or before a person (a) Reg. v. Atkinson, 17 U. C. C. P. 300, per J. Wilson, J.

acting as, but not being, a duly qualified justice of the peace for the same county, are confirmed. (b)

The fact of a justice acting as such is prima facie evidence of his appointment to the office; (c) and the mere production of a certificate, purporting to be under the hand and seal of the clerk of the peace, that there is no declaration of the justice's qualification filed in his office as required by the above statute, is not sufficient to rebut the presumption. (d)

Under the commission of the peace, justices have a general power for conservation of the peace, and the apprehension of all persons charged with indictable offences, and, on examination, to discharge, admit to bail, or commit for trial; (e) and their duties with regard to the same are prescribed by the 32 & 33 Vic., c. 30.

A justice's jurisdiction is confined to the county for which he has been appointed, (f) and of course he has no power to administer an oath or take any examination within the limits of a foreign country. (g) And where the justice has no jurisdiction, the consent of the prisoner cannot confer it. (h)

There should properly be an information laid; (2) but this is not essential to confer jurisdiction to hold a preliminary investigation; for so long as the prisoner is before the magistrate, the manner of his getting there is of little moment. ()

Though a justice of the peace have jurisdiction over an offence in other respects, still, special circumstances, as, for

(b) Sec. 2; and see Herbert q. t. v. Dowswell, 24 U. C. Q. B. 427.

(c) Berryman v. Wise, 4 T. R. 366.

(d) Reg. v. White, 21 U. C. C. P. 354.

(e) Connors v. Darling, 23 U. C. Q. B. 543, per Gowan, J.

(f) Reg. v. Wheton, 3 All-n, 269.

(g) Nary v. Owen, Ber. 377.

(h) Reg. v. Hebert, 5 Revue Leg. 424.

(i) Caudle v. Ferguson, 1 Q. B. 889; Friel v. Ferguson, 15 U. C. C. P. 594, per A. Wilson, J.

(j) Reg. v. Mason, 29 U.C.Q.B. 431; Reg. v. Hughes, L. R. 4 Q. B. D.

instance, where he is interested in the prosecution, (k) will render him incompetent to act; and any steps he may take in violation of this rule will be set aside. (1)

But as a general rule, the justice should decide any question involving an exception to his jurisdiction, or an exemption from any other cause, in order that the superior court may judge of the sufficiency of the same. (m)

Under R. S. O., c. 72, s. 4, a police magistrate for a city is ex officio a justice of the peace for the county in which such city lies. Under this section an alderman is not ex officio legally authorized to act as a justice of the peace until he has taken the oath of qualification as such. (n)

The plain import of the statute is to establish certain local courts, having limited criminal jurisdiction, and to define the respective jurisdictions of the police magistrate of a city situate within a county, and of the justices of the peace of that county, in respect of offences committed within the city and county respectively. (0)

By the 38 Vic., c. 47, any person charged with any offence in Ontario for which he might be tried at the General Sessions, may, with his consent, be tried by a police or stipendiary magistrate, and if found guilty, sentenced in the same manner as he might have been before the sessions.

Where a statute confers summary jurisdiction on two justices, or any stipendiary or police magistrate, a conviction by the latter must show that he is such a magistrate. (p) And it may be doubted whether, under such circumstances, one justice could sit for such a magistrate, or whether two would not be necessary. (q) And clearly, if not sitting for a magistrate, a conviction by one would be bad. (r)

(k) Reg. v. Simmons, 1 Pugsley, 158; Reg. v. Milledge, L. R. 4 Q. B. D. 332; Reg. v. Meyer, L. R. 1 Q. B. D. 173; Reg. v. Gibbon, L. R. 6 Q. B. D. 169; Re Holman, 3 Russell & Chesley, 375.

(1) Reg. v. Simmons, supra.

(m) Re Dubord, 14 L. C. J. 203.

(n) Reg. v. Boyle, 4 U. C. P. R. 256.

(0) Reg. v. Morton, 19 U. C. C. P. 27, per Gwynne, J.

(p) Reg. v. Clancey, 7 U. C. P. R.; and see 32 & 33 Vic., c. 28.

(7) Ibid.; see 36 Vic., c. 48, s. 305; and see Re Crow, 1 U. C. L. J. N. S.

302; 1 L. C. J. 189.

(r) Re Crow, supra.