This is by 33 & 34 Vict. c. 23, s. 2, which also provides that such an order may be satisfied out of any moneys taken from such person on his apprehension, or may be enforced by any person liable to pay (e.g., the prosecutor), in the same manner as a judgment debt (see also R. v. Roberts, L. R. 9 Q. B. 77; Re Parkinson, 76 L. T. N. S. 715).

(2.) When he has put in a special plea of justification to an indictment or information for the publication of a defamatory libel, and the issue has been found in favour of the prosecutor. The order for costs would be enforceable as a judgment debt, and for the amount of the costs sustained by reason of the plea.

6 & 7 Vict. c. 96, s. 8 (see Richardson v. Willis, Rule 276, infra). (3.) When he has been convicted of any indictable misdemeanour under the Criminal Law Amendment Act (48 & 49 Vict. c. 69) or of any indecent assault.

Ibid., s. 18.

(4.) When he has been convicted on indictment of an assault.

The Court may issue a distress warrant and if the sum awarded shall not be sooner paid, the Court may award an additional term of three months' imprisonment (24 & 25 Vict. c. 100, ss. 74, 75). (5.) When he has been released under the Probation of First Offenders Act, 1851.

50 & 51 Vict. c. 25. The Act is silent as to the manner in which the order is enforceable, but it would probably be as a judgment debt.

(6.) (Doubtful?) When he has been convicted of Corrupt Practices at a Parliamentary or Municipal Election.

It is stated, in a leading text book on Criminal Pleadings, that on prosecutions for corrupt practices at elections, in the event of acquittal the Court may, it appears, order the defendant to pay the costs of the prosecution," and in support thereof

reference is made to 46 & 47 Vict. c. 51, s. 53, sub-s. 1; s. 57, sub-s. 2, and the Acts incorporating them.

I cannot find in any of the incorporating Acts any foundation for the statement, or in the statute cited in the text.

The first statute of importance which deals with election offences is 17 & 18 Vict. c. 102. By sects. 10 and 13 of that Act, any criminal Court before which any prosecution shall be instituted for any offence may order payment to the prosecutor of such costs and expenses as have been reasonably incurred, such prosecutor having entered into a recognizance to pay the defendant's costs in case of acquittal, &c.

That provision does not in terms empower the Court to order the defendant to pay costs, and, having regard to its generality and the provisions in other statutes dealing with costs, it would seem that it only allows the payment of costs out of the public funds.

This view appears to be borne out by the fact that by sect. 12 of the same Act a successful defendant is expressly declared to be entitled to be paid his costs by the prosecutor.

By the statute 35 & 36 Vict. c. 33, s. 24, the expenses of a prosecution for personation "shall be allowed by the Court in the same manner in which Courts are empowered to allow the same in cases of felony." These words cannot, without unduly straining their meaning, authorize payment of the expenses by the defendant.

By the Corrupt and Illegal Practices Act, 1883 (46 & 47 Vict. c. 51), s. 53, sub-s. 1, 17 & 18 Vict. c. 102, sections 10, 12, 13 are incorporated therein; and by sect. 57, sub-s. 2, "The costs of any prosecution or indictment for an offence punishable under this Act... shall so far as they are not paid by the defendant, be paid in like manner as costs in the case of a prosecution for felony are paid."

In this statute, again, there is no enactment making costs payable by the defendant, unless it is contained in the sections of 17 & 18 Vict. c. 102, incorporated therein. By the Municipal Elections (Corrupt and Illegal Practices) Act, 1884 (47 & 48 Vict. c. 70), the above-named sections of the Act of 1883 are incorporated therein, and nothing more is said on the subject in question, except that in sect. 32, sub-s. 2, there is a declaration that any costs ordered to be paid by any person under the Act are to be a simple contract debt due from such person to the person to whom they are to be paid or to His Majesty. That section speaks of sums dealt with "under the order of an election Court, or otherwise under this Act," and again impliedly refers back the authority for granting costs against anyone to 17 & 18 Vict. c. 102.

The Local Government Acts, 1888 (51 & 52 Vict. c. 41), s. 75,

and 1894 (56 & 57 Vict. c. 73), s. 48, incorporate the preceding provisions.

Altogether, it seems far from clear that there is any power in a Court to order the defendant in such trials to pay the costs. If there is such a power, it is derived from the general provision in 17 & 18 Vict. c. 102, which has been discussed, supra.

The Costs of the Defence.

RULE 275.-The Court before which an accused is prosecuted or tried (or for trial before which he may be committed or bailed to appear) for any felony or misdemeanour, even where there is no power to allow the costs of the prosecution, may in its discretion order payment out of the public funds of the expenses of witnesses who attend, on recognizance, to give evidence for the defence, as in the case of witnesses for the prosecution (30 & 31 Vict. c. 35, s. 5).

At the preliminary inquiry before a magistrate, witnesses may be bound over to attend the trial and give evidence. Such witnesses may be (and generally are) allowed their expenses as of course. If witnesses for the defence have not been so bound over, or, semble, if there has been no previous magisterial inquiry, there is no jurisdiction to allow their expenses, which must be borne by the defence itself.

The words supra in brackets clearly refer to the case where the accused is not actually put on his trial, e.g., where the grand jury throw out the bill.

The words in italics were suggested to me by Mr. Henry A. Read, who further stated that the law conveyed therein is "not generally understood, and is not pointed out in any text book, so far as I know."

By 25 & 26 Vict. c. 65, the Court may order payment of the expenses of prisoners' witnesses in trials under the Act, whether such are under recognizance or not.

RULE 276.-If judgment shall be given for accused on an indictment or information for defamatory libel in a private prosecution, the accused shall be entitled to recover his costs from the prosecutor (6 & 7 Vict. c. 96, s. 8); and may sue for such costs when taxed (Richardson v. Willis, L. R. 8 Ex. 69; 42 L. J. Ex. 68; 28 L. T. 71; 12 Cox, 351).

The wording of this section is curious, and seems to imply

that no order of the Court is necessary in such a case. However, the taxing officer would probably require an order of the Court, and it is therefore desirable to apply to the Court for the order. The order for costs would also be enforceable as a judgment of a civil Court.

RULE 277.-Any person who has been unsuccessfully prosecuted for any corrupt practice at a parliamentary or municipal election is entitled to be paid his costs by the prosecutor.

Here, again, there is no discretion vested in the Court (17 & 18 Vict. c. 102, s. 3, and see the statutes incorporating same set out in rule).

Although, as has been seen supra, there is a substantial doubt whether in such a prosecution the Court may, on the conviction of the accused, order him to pay the costs of the prosecution, there is no doubt that, where there is an acquittal, there is jurisdiction to order payment of the costs by the prosecutor to the defendant. The section (supra) runs: "In the case of any indictment or information by a private prosecutor for any offence against the provisions of this Act, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the defendant by reason of such indictment or information, such costs to be taxed by the proper officer of the Court in which such judgment shall be given."

Such judgment may be sued upon.

RULE 278.-A Court before which an accused is acquitted on an indictment preferred under 22 & 23 Vict. c. 17 (the Vexatious Indictments Act), and who had not been committed to or detained in custody, or bound by recognizance to answer such indictment, may order the prosecutor to pay the costs of the accused, and such order is enforceable in the same manner as a judgment of the High Court.

30 & 31 Vict. c. 35, s. 2. This does not, in general, apply to the Director of Public Prosecutions.

In Stubbs v. Director of Public Prosecutions (24 Q. B. D. 577; 59 L. J. Q. B. 201; 62 L. T. 399; 38 W. R. 602; 17 Cox, 1; 55

J. P. 69), the facts were as follows:-A charge of conspiracy was made before a magistrate, who refused to commit the persons charged. The prosecutor thereupon entered into his recognizances under 22 & 23 Vict. c. 17, and preferred an indictment against the defendant, which was found by the grand jury. The Director of Public Prosecutions then undertook the prosecution. The defendants were tried and acquitted, and the Court ordered the Public Prosecutor to pay the costs. The original prosecutor had given no security for costs. It was held that sect. 7 of 42 & 43 Vict. c. 22, imposed no further liability on the Public Prosecutor than that from which the original prosecutor was relieved, viz., the costs for which he was liable under his security, and that the order was therefore invalid.

This case is cited sometimes as an authority for the position that in no case can the Public Prosecutor be called upon to pay costs under the Vexatious Indictments Acts; but that question was left open by Cave, J., in giving his judgment.

From the case, it appears that if an original prosecutor has given security for costs, on the intervention of the Public Prosecutor, he would be released therefrom, and the Public Prosecutor would be liable to the extent of the security. With great respect to the learned judges who decided this case, it is extremely doubtful whether their decision therein is correct (see 42 & 43 Vict. c. 22, s. 7).

RULE 279.-Where a trial is obtained in the Central Criminal Court on the application of the Crown, the Court granting the application may order the accused to be paid a sum not exceeding 201., to enable him to defray the expenses of the attendance of his witnesses (19 & 20 Vict. c. 26, s. 25).

"The Court" is the Court of King's Bench in term time, and the judge thereof in vacation.

See also as to witnesses being bound over to appear for the defence.

RULE 280.-The expenses of the defence of a prisoner under the Poor Prisoners Defence Act, 1903, including the cost of a copy of the deposi

B.R.