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

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

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. (2)

If a juror against whom there is a good cause of challenge is sworn, and sits on the jury, there would be a mis-trial, 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. (a)

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. (b)

The distinction between a venire de novo and a ne w trial is that the former must be granted in respect of matters appear

ing upon the record, but a new trial may be granted upon things out of it. (c)

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

There is no authority that an abortive trial prevents a venire de novo in a case of misdemeanor; (f) and if a trial proves abortive, a venire de novo nay be awarded in a case of felony as well as misdemeanor. (g)

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. (h)

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; but

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

(d) 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.

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

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

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

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

on appeal to Her Majesty in council, it was 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. (i)

The application for a venire de novo, in this case, was 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. (j)

A sentence of death need not be conformable to the English Act, 23 Geo. II., 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. (k)

A prisoner who has been convicted of felony at the assizes may be brought up into this court to receive sentence. (7)

No warrant is required to execute a sentence of death, for, in contemplation of law, there is a record of the judgment 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. (m) In Nova Scotia, the warrant for execution issued from the court, and the time and place of execution were endorsed on it by the fiat of the governor. (n)

(i) Reg. v. Murphy, L. R. 2 P. C. App. 535.

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

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

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

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

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

In general, there can be no costs allowed in Crown cases; (0) but the rule that the King neither pays nor receives costs is not universal, nor inflexible. (p)

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. (9) Therefore when a defendant, on an indictment for perjury, puts off the trial, he must pay costs on the principle 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. (r)

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 the costs, the court, on application, discharged the rule with costs up to the time of the notice, and costs of said application. (s)

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. (t)

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

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. (v)

The 5 & 6 W. & M., c. 33, s. 3, enacts that, if the defend

(0) Reg. v. Justices of York, 1 Allen, 90.

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

(q) Ibid. 453.

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

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

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

(u) Rector of St. John v. Crawford, 3 Allen, 266; see also Rex v. McKenzie, Taylor, 70.

(v) Re Madden, 31 U. C. Q. B. 333.

ant 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 mau, 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 officers, 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 sidebar 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 ome up on opposing a motion for an attachment, for nonpayment of the costs taxed after demand made, as required by the statute. (w) 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 non-payment of the costs, but before the attachment issued, was informed of the payment to the plaintiff; and it was held that he was not justified in afterwards issuing an attachment for the

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