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

ordered in any circumstances, and that the utmost the Courts will do, and that only in an exceptional case, is to arrest judgment in order that a fresh indictment might be preferred. The point, however, is not entirely free from doubt (see R. v. Yorkshire (West Riding), 2 East, 353, n.; 6 R. R. 447, n.; R. v. Chorley, 12 Q. B. 515; R. v. Cricklade, 3 E. & B. 947, n.; R. v. Russell, 2 E. & B. 942; 23 L. J. M. C. 173; 18 Jur. 1022; 2 W. R. 555; R. v. Botfield, 1 Jur. N. S. 594, n.).

In R. v. North Eastern Rail. Co. (70 L. J. K. B. 548; 84 L. T. 502; 49 W. R. 524 (1901)), an indictment against the defendants for obstructing a highway was removed by certiorari from quarter sessions into the High Court of Justice. The defendants pleaded not guilty, and the record was sent down to the Durham Assizes to be tried at Nisi Prius by a special jury. A verdict of not guilty was returned. Thereupon a rule nisi was obtained directed to the defendants to show cause why the entry of judgment upon the verdict should not be stayed until further order, the applicants alleging misdirection on the part of the learned judge at the trial.

It was held by Alverstone, L.C.J., and Lawrance, J., that the rule laid down by Ellenborough, L.C.J., in R. v. Inhabitants of Wandsworth (ubi supra), could not apply to a case of highway obstruction, the offence being a continuing one, in respect of which a fresh indictment would lie. It also appears from this case that it is immaterial on what ground the rule is moved; and here again, the better way would have been to move for a new trial.

It is further laid down in Chitty, Cr. L., Vol. I., p. 654, that "it seems to be the better opinion that where the verdict was obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutor's witnesses, or neglecting to give due notice of trial, a new trial may be ordered."

RULE 329.-Although it may generally be laid down that a new trial cannot be had of an indictment tried on the Crown side at assizes (or in the Central Criminal Court), it is submitted that in a proper case the Court of King's Bench would order the record of such a trial therein to be returned

into it for the purpose of an application for a new trial.

In R. v. The Inhabitants of the County of Oxford (13 East, 411; 12 R. R. 486), it was held that a certiorari would not lie to an inferior Court (e.g., quarter sessions) for the purposes of a new trial; but an Assize Court, since the Judicature Acts, is now part of the High Court, and it is conceived that, if deemed desirable, the Court would order the record to be returned into it, so as to allow of an application for a new trial being made (Judicature Act, 1873, ss. 16, 29; R. v. Dudley and Stephens, 14 Q. B. D. 223, 560; 54 L. J. M. C. 32; 52 L. T. 107; 33 W. R. 347; 15 Cox, 624; 49 J. P. 69). The point has not been definitely settled, but in principle the rule seems to be valid.

As to the Central Criminal Court, it is questionable whether it is part of the High Court. It certainly has been held to be a superior Court (R. v. Boaler, 17 Cox, 569; 67 L. T. 354; 56 J. P. 792); but having been created by statute (4 & 5 Will. 4, c. 36) it is open to great doubt whether it comes within sect. 16 of the Judicature Act, 1873, which vests in the High Court the jurisdiction of (sub-sect. 11) the Courts created by commissions of assize, of oyer and terminer, and of gaol delivery, or any of such commissions, and sect. 29, which declares such Court to constitute "a Court of the said High Court of Justice."

See also 1 Leach, 370; 2 Lord Raym. 1577; R. v. Marshall (1899), 34 L. J. N. 48.

RULE 330.-An application for a new trial shall be by motion to a Divisional Court for an order nisi, and must be made within the time limited in C. O. R. 166. All the defendants must be present in Court when the motion is made, unless excused by the Court.

The Crown Office Rules with reference to the application for a new trial are contained in C. O. R. 166-169, which are set out in the Appendix.

In R. v. Caudwell (17 Q. B. 503; 21 L. J. M. C. 48; 2 Den. C. C. 372, n.; 15 Jur. 1011), it is stated in the head note: "Semble :

B.R.

Q

that where there are several defendants, all need not be present in Court in order to enable one or more of such defendants to move for a new trial; but the authority is questionable" (see contra, R. v. Teal, 11 East, 307; R. v. Askew, 3 M. & S. 9; 15 R. R. 380; R. v. Cochrane (Lord), 3 M. & S. 10, n.; 15 R. R. 380, n.); and now the practice is as stated above.

If some defendants have been acquitted and others convicted, it is, of course, unnecessary for those acquitted to take any part in suing for a new trial (R. v. Mawbey, 6 T. R. 619; 3 R. R. 282).

RULE 331.-The ground for granting a new trial may be any ground on which a new trial may be sued for in a civil case.

Steph. Dig. Cr. Proc. 202.

A new trial will be granted for misdirection or improper admission or rejection of evidence, or because the verdict was against the weight of evidence (R. v. Berger, (1895) 1 Q. B. 23), or that the other side were taken by surprise (R. v. Whitehouse, Dears. C. C. 1), or when a new trial is necessary, "in order to fulfil the purposes of substantial justice" (Chitty, Cr. L. Vol. I. p. 653), or when one of the jurors who tried the case is disqualified by nonage from serving on a jury, or is without any qualification, or is not on the panel (R. v. Tremearne, 7 D. & R. 684; 5 B. & C. 254; 4 L. J. (O. S.) K. B. 157; 29 R. R. 234).

In other words, wherever it appears to the Court of Appeal that it is desirable in the interests of justice that there should be a new trial, such will be ordered.

RULE 332.-If evidence not legally admissible against the accused is admitted at the trial, a new trial may be ordered, notwithstanding that there was other evidence before the Court properly admitted and sufficient to warrant a conviction.

This is the effect of the decision in R. v. Gibson (18 Q. B. D. 536; 16 Cox, 181), which decided, on a case stated for the Court of Crown Cases Reserved, that a conviction obtained in such circumstances was bad.