The motion for a rule nisi may be made upon affidavits (intituled in the Court and in the cause), and upon reading an office copy of the judge's notes previously bespoken of the clerk to the judge who tried the cause, or of the judge himself.

On the hearing of the argument on the order nisi, affidavits and the judge's notes should be read.

RULE 333.-No appeal lies from the Divisional Court to the Court of Appeal. If a new trial is ordered, fresh notice of trial must be given and there must be a fresh jury.

Short & Mellor, C. O. Pr. 252; R. v. Stephens, 7 B. & S. 710.

RULE 334.-The Court, on an application for a new trial, may grant or refuse it with or without costs, or may, if a new trial is granted, order the costs to await the event of the new trial (R. v. Ford, 1 N. & M. 776; R. v. Whitehouse, Dears. C. C. 1; and see Chap. XIII., supra).

RULE 335.-An application for leave to enter judgment non obstante veredicto may be made as an alternative to one for a new trial.

R. v. Platts, 28 W. R. 915; 48 L. J. Q. B. 848; Short & Mellor, C. O. Pr. 254.

This application is subject to the same rules as that for a new trial.

From the dictum of Lush, J., in R. v. Platts, it appears that on an application for a new trial, on misdemeanour, the Court has power to enter a verdict for the defendant. Therefore, it would seem to be unnecessary to ask for judgment by way of alternative.

Upon an order absolute to enter judgment for the defendant, the judgment is entered on the roll as if the verdict had been in his favour (Short & Mellor, C. O. Pr. 254).

RULE 336.-A motion in arrest of judgment may be made before a motion for a new trial (R. v. Row

lands, 2 Den. C. C. 364, 386), and is subject to the same rules, except that a motion to arrest judgment may be made at the time that the defendants are called up for sentence, but it is usual to have leave of the Court to move at the time (Short & Mellor, C. O. Pr. 254).

On a motion to arrest judgment being made absolute, the order is drawn up at the Crown Office, and nothing further is done upon the record.

On a motion to arrest judgment in misdemeanour, the defendant must be in Court (R. v. Spragg, 2 Burr. 928). See also, as to motion in arrest of judgment on trials in the Crown Courts.

(5.) Venire de novo.

RULE 337.-A Court of Error and a Court of Trial have power to award a venire de novo, wherever it appears that there has been a mistrial, and whether the offence charged is treason felony or misde

meanour.

A venire de novo is a technical term for an order of a Court of Error or Court of Trial that a verdict given in a case be set aside, and that the sheriff impanel a fresh jury before whom the case shall be tried again. Except that a new trial may only be granted in misdemeanours and a venire de novo in all offences, whether treason felony or misdemeanour, I am unable to distinguish the practical difference between a venire de novo and a new trial, but certain points of difference, more apparent than real, are given in 1 Wils. p. 56. See also Chitty, Cr. L. Vol. I. 654.

RULE 338.-A venire de novo may be moved for by rule nisi (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 may be awarded on an application for a new trial (R. v. Edmonds, 1 St. Tr. Ñ. S. 785; 4 B. & Ald. 471; 23 R. R. 350), or on a writ of error (Gray v. R., 6 St. Tr. N. S.

117, 158; 11 Cl. & F. 427; 8 Jur. 879), or may be awarded, on a mistrial, by a Court of Error.

I can find no special rules dealing with applications for venire de novo, and it would be desirable in all cases where either a new trial or a venire may be granted (i.e., in misdemeanours) to apply for a new trial, when, if proper, a venire will be awarded (R. v. Edmonds, supra).

It seems that a venire de novo may be granted where the jury have misconducted themselves (R. v. Murphy, supra, at p. 538), or "after special verdict, a venire facias de novo is the proper mode of bringing the merits a second time under consideration" (Chitty, Cr. L. Vol. I. 654).

It is also stated there, that "a new venire," which is only grantable where some mistake is apparent on the record, "can indeed be obtained only in two cases; first, where it appears upon the face of the verdict that it is in itself imperfect, and that no judgment can be given upon it; and secondly, where the jury ought to have found other facts differently, and it cannot be granted on any other occasion."

Without attempting to reconcile the conflicting statements in the preceding paragraph, it will be sufficient to say that the practical distinction between new trial and venire de novo is, if any ever existed, now of no moment. See also pp. 267, 268,

infra.

It is doubtful whether a Court of Trial has power to grant a venire de novo on a mistrial.

In R. v. Vaughan (5 Burr. 2661), it was apparently held that it has, on a special verdict; but that case was, in the King's Bench Division, on an information, and, as will be seen from the report, of a somewhat exceptional character. In practice, the question is hardly likely to arise, as a Court of Trial would on a mistrial either treat the trial as a nullity or refer the parties to the King's Bench Division, by stating a case or advising an application for a new trial.

If, however, the question should come up for decision, probably it would be held that the Court of Trial may grant a venire de novo, and this view I have adopted in the rule.

CHAPTER XVI.

CORONER'S INQUISITION.

RULE 339.-A person against whom a verdict for murder or manslaughter has been returned by a coroner's jury may be tried thereon, the inquisition (ie., record of the finding) being equivalent to an indictment.

R. v. Ingham, 5 B. & S. 257; 33 L. J. Q. B. 183; 10 Jur. N. S. 968; 10 L. T. 456; 12 W. R. 793; 9 Cox, 500.

In practice, if there is an inquisition against an accused, an indictment is also sent up to the grand jury, and if found the accused is arraigned on both the indictment and the inquisition. He is then tried upon one of the presentments, which is, in general, the indictment, but sometimes the inquisition.

If the accused is found not guilty on the first presentment he must be tried on the other, but to this he can plead autrefois acquit (Chitty, Cr. L., Vol. I., p. 163). If an indictment is thrown out by the grand jury, it is the practice to offer no evidence on the inquisition, but to take a verdict of not guilty thereon.

RULE 340.-An inquisition may be removed by certiorari into the King's Bench Division for the purpose of being quashed.

By virtue of 14 & 15 Vict. c. 100, ss. 24, 25, 30; 24 & 25 Vict. c. 100, s. 6; and 50 & 51 Vict. c. 71, s. 20 (R. v. Great Western Railway Co., 20 Q. B. D. 410; 57 L. J. Q. B. 136; 58 L. T. R. 765), the Courts will only quash an inquisition for any substantial defect, whether appearing in the record or shown upon affidavit.

In R. v. Clerk of Assize of Oxford Circuit (1897, 1 Q. B. 370; 18 Cox, 518), an inquisition was quashed on the ground that it did not allege any offence in law.

RULE 341.-Where an inquisition contains one or more substantial findings it may be good in part, though void as to the remainder.

This is taken from Short & Mellor, C. O. Pr., p. 109.

The form of an inquisition, which consists of three parts-the caption or incipitur, the verdict of the jury, and the attestation -is given in the Second Schedule of the Coroners Act, 1887 (50 & 51 Vict. c. 71). The inquisition must show that the coroner had jurisdiction to take the inquest (2 Ld. Raym. 1505), that it was taken super-visum corporis, and that it was found by twelve jurors at the least (50 & 51 Vict. c. 71, s. 4, sub-s. 5), who must inscribe their names with their seals, as must also the coroner.

On the trial of an inquisition the same powers of amendment exist as in the case of indictments (14 & 15 Vict. c. 100, ss. 24, 25, and 30; 50 & 51 Vict. c. 71, s. 20).

The inquisition and depositions and recognizances must be delivered by the coroner to the proper officers of the Court of Trial, before or at the opening of the Court.

RULE 342.-A person charged by an inquisition with murder or manslaughter is entitled to a copy of the inquisition and the depositions on payment not exceeding three-halfpence for every folio of ninety words.

50 & 51 Vict. c. 71, s. 18, sub-s. 5.

RULE 343.-An inquisition may be removed by certiorari for trial in the same manner as an indictment (R. v. Palmer, 5 E. & B. 1624; 2 Jur. N. S. 235).

In Short & Mellor, C. O. Pr. 110, it is stated that: "It has of late years become common practice to allow a motion to quash to be merged with the motion for the certiorari when the application