costs of an affidavit of the demand of payment, and the costs subsequently incurred. (x)

The statutes authorizing the granting of new trials in criminal cases have been repealed, and now throughout the Dominion there is one uniform law, similar to that of England, on this point. (y) By the law of England, no new trial can be granted in the case of felony. (2) Such was also the law in Quebec, even prior to the recent statute, (a) and in Nova Scotia. (b)

When the record is on the civil side of the court, all the incidents of a civil cause attach to it. (c) Thus, when the indictment has been preferred in the Queen's Bench, or has been removed into the court by certiorari, and is sent down to be tried at nisi prius, as all the incidents of a trial at nisi prius attach to it, a new trial may be granted after conviction. (d) But these remarks can only hold when the charge is of misdemeanor. When the charge is of felony, no new trial can be granted, though the indictment has been removed by certiorari, and sent down for trial at the assizes, on a nisi prius record. (e)

In the case of felony or treason, if a conviction takes place against the weight of evidence, the judge passes sentence, and respites execution till application can be made to the mercy of the Crown; (f) and it would seem that this is the proper course to adopt now in Canada, in cases where formerly a new trial might be had by statute. (g)

(x) Reg. v. Harper, 2 Allen, 433.

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

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

(a) 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.

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

(c) Reg. v. D'Aoust, 10 L. C. J. 223.

(d) S.C. 16 L.C. R. 494-5, per Meredith, J.; see also Arch. Cr. Pldg. 178. (e) Reg. v. Bertrand, L. R. 1 P. C. App. 520, overruling; Reg. v. Scaife, 17 Q. B. 238.

(f) Yearke and Bingleman, 28 U. C. Q. B. 557, per Richards, C. J. (g) See Reg. v. Bertrand, L. R. 1 P. C. App. 520-536; Reg. v. Murphy, L. R. 2 P. C. App. 552, per Sir Wm. Erle; Reg. v. Kennedy, 2 Thomson, 216, per Bliss, J.

The Court of Queen's Bench, in Lower Canada, sitting in appeal and error, as a court of error, in a criminal case, under Con. Stats. L. C., c. 77, s. 56, cannot exercise an appellate jurisdiction, but is confined, as a court of error, to errors appearing on the face of the record. (h)

It is the inherent prerogative right, and, in all proper cases, the duty of the Queen in council, to exercise an appellate jurisdiction in all cases, criminal as well as civil, arising in the colonies, from which an appeal lies, and where, either by the terms of a charter or statute, the power of the Crown has not been parted with. This right of appeal should be exercised with a view not only to ensure, as far as may be, the due administration of justice in an individual case, but also to preserve generally the due course of procedure. The exercise of this branch of the prerogative, in criminal cases, is to be cautiously admitted, and is to be regulated by a consideration of circumstances and consequences. Leave to appeal will only be granted under special circumstances, such as when a case raises questions of great and general importance in the administration of justice, or where the due and orderly. administration of the law has been interrupted, or diverted into a new course, which might create a precedent for the future; and also when there are no other means of preventing these consequences, then it will be proper for the judicial committee to advise the allowance of such appeal. (i)

It is doubtful whether an appeal lies to the Queen in council, against a judgment of the Court of Queen's Bench in Quebec, quashing a writ of error against an order of the court of Queen's Bench, on the Crown side, fining and ordering an attachment against a counsel, for an alleged contempt of court. It would seem, however, that where a fine is imposed, the remedy is to petition the Crown for a

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

(i) Reg. v. Bertrand, L. R. 1 P. C. App. 520; see also Falkland Islands Co. v. Reg., 10 U. C. L. J. 167; 1 Moore's P. C. Cases, N. S. 299.

reference to the judicial committee, under the 3 & 4 Wm. IV., c. 41, s. 4. (j)

But where the court of final resort in criminal matters are not unanimous, an appeal lies to the Supreme Court of Canada, and from that court to the Privy Council. (k)

Special leave to appeal to the Privy Council was granted to the Attorney General of New South Wales, from an order of the Supreme Court in that colony, whereby a ver lict of guilty of murder, obtained by the Crown, was set aside, and a venire de novo for a re-trial ordered to issue. The leave was granted on the same conditions as in Reg. v. Bertrand, and the proceedings in the colony were stayed, pending the appeal. (1)

Leave to appeal has been given from an order of the Supreme Court of Civil Justice of British Guiana, committing the publisher of a local journal to prison for six months, for an alleged contempt of court, in publishing in such journal comments on the administration of justice by that court, with liberty to the judges of the Supreme Court to object to the competency of such appeal at the hearing. (m)

Special leave to appeal will be granted where the question raised is one of public interest, such as the constitutional rights of a colonial Legislative Assembly. (n)

Permission was given to appeal, in forma pauperis, in a case in which the appellant was not heard in the court below, and was denied leave to appeal to Her Majesty in council, the decision being, in fact, ex parte. (0)

Leave to appeal from an order of the Supreme Court of Nova Scotia, suspending an attorney and barrister from practising in that court, has been granted, though, under the cir

(j) Re Ramsay, L. R. 3 P. C. App. 427.

(k) Reg. v. Amer, 2 S. R. C. 593.

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

(m) Re McDermott, L. R. 1 P. C. App. 260.

(n) The Speaker of the Legislative Assembly of Victoria v. Glass, L. R. 3

P. C. App. 560.

(0) George v. Reg., L. R. 1 P. C. App. 389.

cumstances, it was incumbent on the appellant to apply to Her Majesty, in the first instance, to admit the appeal. On a suggestion of the injury and delay which an application to Her Majesty would create, the appeal was allowed by the Privy Council. (p)

Special leave to appeal was granted under the circumstances shown in Reg. v. Murphy. (q)

Special leave to appeal from a conviction of a colonial court for a misdemeanor having been given, subject to the question of the jurisdiction of Her Majesty to admit such an appeal, and it appearing at the opening of the appeal that, since such qualified leave had been granted, the prisoner had obtained a free pardon and been discharged from prison, the judicial committee declined to enter upon the merits of the case, or to pronounce an opinion upon the legal objections to the conviction, the prisoner having obtained the substantial benefit of a free pardon. They accordingly dismissed the appeal. (r)

It seems the Privy Council would entertain an appeal from a provincial Court of Appeal, without express leave of such court. (s)

No appeal to England is expressly given by our statutes, in criminal cases, but several appeals to the Privy Council have been made in the Dominion.

The Crown may issue fi. fas. for the sale of goods and lands in order to satisfy a fine imposed, and may include both classes of property in the same writ; and may make it returnable before the end of twelve months, the Crown not being bound by the 43 Edw. III., c. 1. (t) But the court may, at any time, interfere, as exercising the power of a Court of Exchequer, to restrain undue harshness or haste in the execution thereof. (u)

(p) Re Wallace, L. R. 1 P. C. App. 292-3. (2) L. R. 2 P. C. App. 538.

(r) Levien v. Reg., L. R. 1 P. C. App. 536.

(s) Whelan v. Reg., 28 U.C. Q. B. 186, per Draper, C. J.; Naiker v. Yettia, L. R. 1 P. C. App. 1; Ko Khine v. Snadden, L. R. 2 P. C. App. 50. (t) Reg. v. Desjardins Canal Co., 29 U. C. Q. B. 165.

(24) Ibid.

INDEX.