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power to reverse, affirm, or amend any judgment, or make such other order as justice may require," authorize the Court to order a new trial or award a venire de novo.

See R. v. Yeadon, L. & C. 81; 31 L. J. M. C. 71; R. v. Martin, L. R. 1 C. C. R. 378; 41 L. J. M. C. 113; 26 L. T. 778; 20 W. R. 1016; 12 Cox, 204; and R. v. Saunders, (1899) 1 Q. B. 490.

The Rules of the Court for the Consideration of Crown Cases Reserved were promulgated on 1st June, 1850, and are—

(1.) That when any cases shall be transmitted by a Court of oyer and terminer or gaol delivery, or Court of quarter sessions, for the consideration of this Court, the original case, signed by the judge or commissioner, or chairman of sessions, reserving the question of law, and seventeen copies of each case, one for each judge and one for each party, shall be delivered to the clerk of this Court, at the Exchequer Chamber, Westminster, at least four days before the day appointed for the meeting of the said Court.

(2.) That every case transmitted for the consideration of this Court shall briefly state the question or questions of law reserved, and such parts only as raise the question or questions submitted. If the question turns upon the indictment, or upon any count thereof, then the case must set forth the indictment or the particular count.

(3.) That no case be heard upon any demurrer to the pleadings.

(4.) That every case state whether judgment on the conviction was passed or postponed, or the execution of the judgment respited, and whether the person convicted be in prison, or has been discharged on recognizance of bail to appear and receive judgment, or to render himself in execution.

(5.) That when any case is intended to be argued by counsel or by the parties, notice thereof be given to the clerk of this Court at least two days previously to the sitting of the said Court.

(6.) That with every case delivered to the judges of this Court (except such cases as shall be reserved by such judges), the fee payable to the clerks of the said judges shall not exceed the fee payable on demurrer and other paper books, as contained in the

table allowed and sanctioned by the judges pursuant to the statute 7 Will. 4 & 1 Vict. c. 30.

This statute has been repealed, and the fees are now as fixed in the Table of Court Fees (Short & Mellor, C. O. Pr. pp. 626, 671).

By 38 & 39 Vict. c. 77, s. 19, the practice in this Court is to be the same as the practice and procedure in similar causes and matters before the passing of this Act. This provision is subject to the first schedule of the Act and any rules of Court to be made. The first schedule was suspended by Rules of the Supreme Court, 1883, which leave the practice as it originally was (Ord. LXVIII. r. 1).

The only other points to be noted on this subject are: the case should briefly present substantial, and not hypothetical, questions on matters other than practice (R. v. Stubbs, Dears. C.C.555; 25 L. J. M. C. 16; 1 Jur. (N. S.) 1115; 4 W. R. 85; 7 Cox, 48) in such a way as to enable the Court to give their decision in the first instance, and that the Court will send back for amendment a case materially faulty. If a counsel is dissatisfied with the form of the case stated, he may communicate with the judge reserving it and suggest an amendment (R. v. Smith, T. & M. 214; 2 Car. & K. 882; 1 Den. C. C. 510; 14 Jur. 92; 4 Cox, 42).

If the judge who presided at the original trial dies without signing the case, as prescribed by 11 & 12 Vict. c. 78, s. 2, it is a question whether the Court can consider it.

In Featherstone's Case (Dears. C. C. 369; 2 C. L. R. 774; 23 L. J. M. C. 127; 18 Jur. 538; 2 W. R. 416; 6 Cox, 376) it was decided that though the judge who reserved the case had died without signing it, another judge named in the commission, being "virtually present at the trial," could sign it.

Quære: If only one judge was named in a commission, could any one of the official commissioners do so? Probably it would be held that he could.

Though ordinarily the Court will not send such a case back for re-statement, it will do so if on the argument it appears that it is, on the merits, imperfectly stated (R. v. Holloway, 1 Den. C. C. 370; T. & M. 40; 2 Car. & K. 942; 18 L. J. M. C. 60; 13 Jur. 26; 3 Cox, 241; R. v. Hilton, Bell C. C. 20; 28 L. J. M. C. 28; R. v. Brummitt, L. & C. 9 ; 3 L. T. 679; 9 W. R. 257; 8 Cox, 413).

RULE 324.-It is very doubtful whether a point of

law arising (at Assizes) on the trial of a record sent down by the King's Bench Division for trial at Nisi Prius may be reserved.

The words of the statute (11 & 12 Vict. c. 78) expressly refer only to Courts of Oyer and Terminer and Gaol Delivery (or Quarter Sessions), and not to a Court sitting under a commission of Assize or Nisi Prius. It would therefore seem that a trial at Nisi Prius is not within the enactment.

RULE 325.-Counsel may appear for one side, whether the other is represented or not, and on the argument counsel for the accused must begin (R. v. Gate Fulford, Dears. & B. 74; 7 Cox, 230).

In R. v. Bird (5 Cox, 20) it was held that where the prisoners had joined in their plea at the trial, and were represented by counsel appearing for them jointly, and not separately, they were not entitled to appear by separate counsel at the hearing before the Court for Crown Cases Reserved.

In R. v. Moore (17 Cox, 458) the counsel who appeared for the prisoners at the trial was allowed to state the fact to the Court as amicus curia. There is, seemingly, no reason why he should not have argued the case as well.

If deemed desirable by the Court, a point reserved may be ordered to be re-argued before all the judges, and this course is adopted when the judges differ on a point of law; but if the difference is as to fact, the judgment of the majority that a conviction should be quashed is taken (R. v Burrell, L. & C. 354; 33 L. J. M. C. 54; 9 L. T. 426; 12 W. R. 149; 9 Cox, 368; R. v. Lewis, Dears. & B. 328; 6 W. R. 41; 7 Cox, 406; R. v. Woolley, 4 Cox, 454; R. v. Dolan, Dears. C. C. 486; 3 C. L. R. 295; 6 Cox, 456 n.; 24 L. J. M. C. 59; 1 Jur. N. S. 72; 3 W. R. 177; R. v. Hornsea, Dears. C. C. 291; 23 L. J. M. C. 59, 62 n.).

RULE 326.-The Court of Crown Cases Reserved has no power to allow costs to either side, and the

costs of the prosecution proceedings in that Court should be taxed by the Court reserving the case.

See supra, Chap. XIII., pp. 187, 188.

(3.) Bill of Exceptions.

RULE 327.-No bill of exceptions lies in a criminal

case.

"If a judge at the trial of a cause at Nisi Prius mistake the law, either in directing a judgment of non-suit, or in refusing or admitting evidence or challenges and other matter, the counsel for the party dissatisfied with the ruling might tender a bill of exceptions at any time before verdict, and require the judge to seal it" (Wharton's Law Lexicon, 97).

The case always went to the jury, and as soon as the bill of exceptions was completed, and judgment had been given upon the verdict, the mode of proceeding was by bringing error on the judgment, and having the matter determined in a Court of Error and not in the Court out of which the record issued for the trial.

Nowadays, the ruling of a judge, which once formed the subject of a bill of exceptions, is questioned by motion for a new trial.

In criminal trials a bill of exceptions was never allowed in treason or felony, but in misdemeanours it was held to lie. However, in 1854, in Alleyne's Case (Dears. C. C. at p. 507), Campbell, L. C. J., said: "A bill of exceptions could not lie, for the Statute of Westminster II. is confined to civil causes."

In R. v. Esdaile (1 F. & F. 213), in 1858, Campbell, L. C. J., said: "A bill of exceptions cannot be tendered in a criminal case; I once thought otherwise (see 10 Cox, 554), but I have fully considered the subject, and am satisfied that it cannot be." In 1867, the same was held in R. v. Jelly (10 Cox, 553). The law, therefore, at the present time may be taken to be as set out in the rule.

(4.) New Trial.

RULE 328.-A new trial may be granted on the application of a defendant who has been convicted

of a misdemeanour, on an indictment which has been preferred in, or removed for trial into, the King's Bench Division (R. v. Mawbey, 6 T. R. 638; 3 R. R. 282), or on an information or inquisition. It cannot be granted in cases of treason or felony (R. v. Bertrand, L. R. 1 P. C. 520; 4 Moo. P. C. (N. S.) 460; 36 L. J. P. C. 51; 16 L. T. 752; 16 W. R. 9; 10 Cox, 618; R. v. Murphy, L. R. 2 P. C. 535; 38 L. J. P. C. 53; 6 Moo. P. C. (N. S.) 177; 21 L. T. 598; 17 W. R. 1047; 11 Cox, 372), or on acquittal, if on the trial the defendant, if found guilty, might have been sentenced to imprisonment or fine (R. v. Brice, 2 B. & Ald. 606; Chit. Cr. L., Vol. I., p. 352; and infra).

It is doubtful, if the trial is purely concerned with the determination of a civil right, whether a new trial lies on acquittal. In R. v. Brailsford (2 L. T. 508), it was held that, on an indictment for non-repair of a highway, the Court may order a new trial on the ground of misdirection; but the contrary is laid down in Steph. Dig. Cr. Proc. 202, where R. v. Duncan (7 Q. B. D. 198; 50 L. J. M. C. 95; 44 L. T. 521; 30 W. R. 61; 14 Cox, 571; 45 J. P. 456) is cited; and in R. v. The Inhabitants of the County of Southampton (19 Q. B. D. 590; 56 L. J. M. C. 112; 57 L. T. 261; 16 Cox, 231; 52 J. P. 52) it was held that, where a verdict of not guilty has been returned upon an indictment for nonrepair of a bridge, which substantially was a question of civil right, a new trial will not be granted; but under very special circumstances the Court may order all proceedings upon the judgment to be suspended, so that another indictment may be presented. In that case the decision of Ellenborough, L. C. J., in R. v. The Inhabitants of Wandsworth (1 B. & Ald. 63; 18 R. R. 434) was approved.

It was there held, that where the defendant has been acquitted, on an indictment for not repairing a road, the Court will not grant a new trial, yet they will under very special circumstances suspend the entry of judgment, so as to enable the parties to have the question reconsidered upon another indictment without the prejudice of the former judgment.

It therefore seems that, on an acquittal, no new trial will be