The two questions reserved by the first case were :

1. Was there jurisdiction to try the accused on both counts of the said indictment?

2. Could the accused be legally convicted of perjury upon an oath so administered and taken ?

The case stated by the second case and questions thereto were as follows:

"The accused, John Coleman, was tried before me as chairman of the court of general sessions for the county of Peel, and a jury of the said county, at the sittings of said court in December, 1897, upon a charge of perjury. The accused did not testify on his own behalf at the trial.

"In my charge to the jury referring to a certain witness named Twible who gave evidence for the Crown on the trial of the said case, I said, "There is no man has sworn he (Twible) was there (referring to a certain place) and four or five men knew whether he was there or not. Now that just shews you that a man can go into the witness box although he was a perjurer and yet tell the truth. You don't need to believe a word he says because no person else will go into the witness box and pledge their oath that he was there. A number of them knew whether he was there or not: Coleman knew whether he was there or not. Small knew whether he was there or not, and Dick knew whether he was there or not. There is not one of them dare go into the witness box and swear that he (Twible) was not there."

"I further said in the same charge referring to the said Twible's presence at the said place, "His (Twible's) is the only evidence given before you that says he (Twible) was not there. The accused (Coleman) is a man who can say whether he (Twible) was there or not."

"I further said in the same charge to the jury, "Then there was another person alleged to have been there by the name of Dick. We hear nothing from Mr. Dick so we cannot comment on his evidence. I suppose Mr. Dick has not repented yet; has not confessed. If he was there, there is no reason why he should not come forward and if this man is innocent relieve him, but he does not do so. If he was there

he is doing wrong by staying away. If he chooses to absent himself of course his friends will have to bear it. It is unfair to him. Why does not Coleman come forward and tell what he (Coleman) knows?"

"Counsel for the prisoner Coleman after the jury had retired, addressing me, said: "Your Honour spoke to the jury in reference to Coleman not making a statement himself. I think he has the right under the statute, and no comment can be made on the fact." I said, "I will correct that as it is entirely wrong.

The jury were then recalled and addressing them, I said: "The counsel said and no doubt it is correct, that in enumerating the list of those who knew who was in the office, I mentioned Coleman's name as being one of those who was there, and could if he chose go into the witness box and make statements. If I did say it in that way I should not have said so for the statute provides that neither counsel nor Judge has the right to comment on the fact of defendant not going into the witness box. It is his privilege and he may go in if he so chooses, but I didn't intend to say a word about that fact. When I was addressing you it seems I mentioned his name in connection with the others, and I mention that fact to you now. No person has a right to say anything against him if he chooses not to go into the box."

"The jury then retired and they found the prisoner guilty. "The case stated for the consideration of the Court is : (1) Does the said charge and subsequent statement to the jury contain comments by the Judge on the failure of the accused to testify, within the meaning of 56 Vict. ch. 31, sec. 4, sub-sec. 2 (Can.)?

I

(2) If the answer to 1 is "Yes," should there be a new trial ?"

TORONTO, September 6, 1898.

E. F. B. Johnston, Q.C., for the prisoner. The comment by the chairman of the sessions on the failure of the prisoner to go into the witness box and testify is fatal; 56 Vic. ch. 31, sec. 4, sub-sec. 2 (Can.). It is true the comment was

withdrawn but the effect of it is there and the damage done cannot be cured by the subsequent withdrawal. Even the the comment of counsel as to the wife of a prisoner not testifying is ground for a new trial as was held in Nova Scotia in The Queen v. Corby (1898), 1 Can. Criminal Cases, 457. What the effect of the comment was is not material, the question is, was what he did warranted by law: Regina ́v. Petrie (1890), 20 Ont. R., at p. 324. See also The Queen v. Gibson (1887), 18 Q.B.D. 537. There are similar statutory provisions in some of the United States and it has been held under them that if the reference has been made in the hearing of the jury the mischief is done and the only way is to enforce the statute rigidly. The damage cannot be cured: Martin v. Mackonochie (1878), 3 Q.B.D., at p. 775; Showalter v. The State (1882), 84 Ind. 562; Frank Austin v. The People of The State of Illinois (1882), 102 Ill. 261; Abbott's Trial Brief, Criminal Causes, 221. On the occasion when the perjury was alleged the administering of the oath by the county court clerk was irregular. The appointment of the clerk of the peace is peculiar and particular. The court of quarter sessions is created by statute and it is provided there must be a clerk of the peace appointed in a certain manner and the same as to his deputy, and both, by the English law which is in force here, must be approved by the Crown and take an oath of office: Dickinson's Guide to the Quarter Sessions, 104-107.

contra.

John R. Cartwright, Q.C., Deputy Attorney-General, The Legislature did not intend that such a mere slip, even if not subsequently corrected, should render all the proceedings abortive when no substantial wrong is done. The prisoner is bound by the acts of his counsel at the trial who did not draw the trial Judge's attention to the slip until the charge was finished and only asked to have it corrected, and it was fully explained and corrected: Criminal Code, sec. 746, sub-sec. (ƒ). The oath was properly administered in open court, the form may be repeated by any one. It is really administered by the court or the presiding judge.

Reference was made to Commonwealth v. Wooster (1886), 141 Mass 58; The State v. Thomas Ward (1888), 61 Vermont R., at p. 180; Martin v. The State (1891), 79 Wis., at p. 165; Clifford v. Thames Ironworks & Ship Building Co., (1898) I Q.B. 314; Regina v. Tew, (1855) Dears. C. C. 429.

Johnston, Q.C., in reply. The Massachusetts, Vermont and Wisconsin laws are different from ours. No acts of counsel could relieve the court in this case: The Queen v. Gibson (1887), 18 Q.B.D. 537, per Wills, J., at p. 543.

TORONTO, December 23, 1898.

MEREDITH, C. J.

Two cases have been stated by the chairman of the general sessions of the peace for the county of Peel, for the opinion of the Court; one, upon the application of the prisoner's counsel at the trial, pursuant to sec. 743 of the Criminal Code, 1892, and the other, (leave to appeal having been granted) pursuant to section 744.

The offences with which the prisoner was charged were committed, if at all, in the county of Dufferin, and he was committed for trial at the general sessions of the peace for that county for one only of the offences charged in the indictment which was afterwards preferred against him.

The place of trial was, under section 651, changed to the county of Peel by an order of the Judge of the county court of the county of Dufferin, made before the general sessions for that county began, which contains no provision for the payment to the accused of any additional expense caused to him by the change made in the place of trial.

The indictment preferred against the prisoner in the county of Peel was preferred by leave of the chairman of the general sessions of that county indorsed upon it, and contained two counts: one for the offence for which the prisoner was committed for trial; and the other for perjury alleged to have been committed on the same occasion upon which that

charged in the other count is alleged to have been committed; but the facts and evidence relating to both charges were disclosed in the depositions taken before the committing justice.

The first question reserved is :—

Was there jurisdiction to try the accused on both counts of the said indictment?

This question must, in my opinion, be answered in the affirmative.

Even if the omission to provide in the order changing the place of trial for the payment of any additional expense thereby caused to the accused might under some circumstances be fatal to the validity of the order, which I very much doubt, seeing that by section 651 the matter is one left to the discretion of the court or judge making the order, there is nothing in the stated case to shew that it was made to appear to the judge who made the order that any additional expense to the accused would be occasioned by the change made in the place of trial, or that the judge was asked to impose any such condition; and it appears to me to be clear that in these circumstances the order was not open to the objection urged against its validity.

The right to prefer the indictment for the two offences is also, I think, clear. Had the trial taken place in the county of Dufferin, no question could have arisen, because by section 641 it is the right of the prosecutor to prefer a bill of indictment for the charge on which the accused has been committed, or in respect of which the prosecutor has been bound over to prosecute, or for any charge founded upon the facts or evidence disclosed on the depositions taken before the justice; and by sub-sec. 2 of sec. 651, where the place of trial is changed, all proceedings in the case are to he had, or if previously commenced, are to be continued in the district, county or place in which the trial is directed to take place, "as if the case had arisen or the offence had been committed therein."