duly authorized and empowered to enquire, etc, setting out the authority to hear and determine, as formerly given in commissions, but not to deliver the gaol. It was then stated that, at the said session of Oyer and Terminer and General Gaol Delivery, the prisoner appeared and pleaded, and the award of venire was, "therefore let a jury thereupon immediately come," etc. This record was returned to a writ of error, directed, "To our Justices of Oyer and Terminer, for our County of C., assigned to deliver the gaol of the said county of the prisoners therein being, and also to hear and determine all felonies, etc." On error brought, it was held that the authority of the Justice sufficiently appeared without any statement whether a commission had issued, or been dispensed with by order of the Governor, for such Courts are now held not under commissions, but by virtue of the Statute, Con. Stat. U. C., c. 11, as amended by 29 & 30 Vic., c. 40, and, as the record sufficiently shewed the absence of any commission, it must be presumed that it seemed best to the Governor not to issue one. The record shewed the Court to be held by a person competent to hold it, either with or without a commission, and was, therefore, sufficient. (a) But it would seem that if the Court had been held by a Queen's Counsel, or County Court Judge, it might have been necessary to shew whether a commission had issued or not, because he would only have authority if named in the commission, or appointed by one of the Superior Court Judges.

It would seem, also, that, if the caption had been defective, it might have been rejected altogether, under Con. Stats. Can., c. 99, s. 52.

In the same case, it was objected that, the only authority shewn being that of Oyer and Terminer, the award (a) Whelan v. Reg. 28 U. C. Q. B. 2.

LL

"therefore let a jury thereupon immediately come" was unauthorized and a special award of venire facias was requisite:-Held, assuming, but not admitting, that in England there is a difference, in this respect, between the power of Justices of Oyer and Terminer and of Gaol Delivery, and that the record shewed no authority to deliver the gaol; that, in this country, by the Jury Act, Con. Stat. U. C., c. 31, both have the same powers, the general precept to summon a jury being issued by both before the Assizes. (a)

A Judge of Assize, as such, may, by force of the Statute, 27 Edw. 1, c. 3, deliver the gaol without any special commission for that purpose. (b)

The Court is bound to take judicial notice of the powers of a Court of General Gaol Delivery, and, wherever it is recited, on a record, that anything was done at such a Court, if it is found that such Court has power to do the thing recited, it must be held to be rightly done. (c)

As to serving on juries, infancy has been considered a ground of disqualification, on account of the probable deficiency of understanding. Being over the prescribed age has been considered only a ground for not returning the juryman, and there is no known head of challenge under which the objection can be made to a juryman over the prescribed age, if otherwise competent. The Statute, 13 Edw. 1, c. 38, being in the affirmative, leaves infants disqualified as at common law. (d)

This Statute enacts, in peremptory terms, that old men above the age of seventy years shall not be put upon juries. But the prohibition in the Statute was not intended as a disqualification, but merely as an exemption; for,

(a) Whelan v. Reg. 28 U. C. Q. B. 2.

(b) Ib. 44, per A. Wilson, J.

(c) Ib. 85, per Richards, C. J.

(d) Mulcahy v. Reg. L. R. 3 E. & I. App. 315, per Willes, J.

if they were put upon the panel, they could not be challenged. (a)

The 3 & 4 Wm. 4, c. 91 makes a clear distinction between disqualification and exemption. Where, therefore, a juryman was returned whose age exceeded sixty years, that fact only operated in his favour, as an exemption, but was not a ground for challenge, as a personal disqualification. By this Statute, every one between the ages of twenty-one and sixty was qualified. By the Con. Stats. U. C., c. 31, s. 7, every person upwards of sixty years of age is absolutely freed and exempted from being returned, and from serving on juries, and shall not be inserted in the rolls to be prepared and reported by the selectors of jurors. It would seem that if a man over sixty years was returned as a juror, he could not be challenged, for s. 98 of the Act only allows a challenge in the event of the juror not being duly qualified. (b)

An alien, qualified and resident as the Statute prescribes, may be a juror in Nova Scotia. (c)

By s. 12 of our Statute no man, not being a natural born or naturalized subject of Her Majesty. shall be qualified to serve as a grand or petit juror.

Now, that juries de meditate linguæ have been abolished, an alien is never admitted as a juror in this Province. Under the authority of the 29 & 30 Vic., c. 71, a proclamation issued on the 15th December, 1866, separating the County of Peel from the County of York, from and after the 1st of January, 1867. On the 23rd of November preceding, the usual precept had been sent to the Sheriff of the United Counties of York and Peel, for summoning jurors for the Winter Assizes for York, to be held on the 10th of January, 1867, and the Sheriff re

(a) Mulcahy v. Reg. L. R. 3 E. & I. App. 325.

(b) See Mulcahy v. Reg., supra.

(c) Reg. v. Burdell, 1 Öldright, 126.

turned his panel to that precept, containing fifty-four jurors from York and thirty from Peel. Only those from York, however, attended, and, the venue being unchanged, the proceeding on trial was under the 29 & 30 Vic., c. 51, s. 52. The prisoner was tried by a jury de meditate linguæ, including six of these jurors, upon an indictment found and pleaded to at the previous Assizes in October. The prisoner applied for a new trial, or a venire de novo in effect, because the panel of jurors was drafted from the jury-list of the United Counties before the severance of the union, upon a precept previously issued, and addressed to the Sheriff of the United Counties; and because the panel of petit jurors returned to the Courts of Oyer and Terminer and General Gaol Delivery, held for the County of York alone, on the 10th of January, 1867, contained the names of jurors, some living in the County of York, and some in the County of Peel, or, in other words, the Court at which the prisoner was tried was a Court held in and for the County of York alone; the jurors could only be good and lawful men of that county; there was no precept for the summoning and returning a panel of jurors, addressed to the Sheriff of that county. No panel was drafted from the jury-list of that county, but all the jurors were drafted, summoned, and returned under the authority of a precept addressed to the Sheriff of the United Counties, and in obedience to the provisions of the Statute applicable to such Counties as united-Held, per Draper, C. J., the objection, which was only to the due observance of certain rules, though involving a question of merits, in this sense, that every person has a right to be tried by a jury of good and lawful men, returned according to law to discharge that duty, if available at all, could only be taken by writ of error; per Hagarty, J., no objection would lie. (a)

(a) Reg. v. Kennedy, 26 U. C. Q. B. 326.

The Con. Stats. U. C., c. 31, s. 139, provides that no omission to observe the directions of the Act, or any of them, as respects the "selecting jury-lists from the jurors' rolls," or "the drafting panels from the jury-lists," shall be ground for impeaching the verdict.

In the above case, possibly, the array might have been quashed, because the Sheriff's return to the Court, which sat only for the County of York, contained the names of jurors resident out of that county. (a)

In Ontario, the usual practice, as to summoning jurors, is as follows:-A precept, signed by the Judges, who are always named in both commissions of Oyer and Terminer and Gaol Delivery, goes to the Sheriff, to return a general panel of jurors, and that precept is returned into Court on the first day of the Assizes with the panel, and from the names contained in that panel all the jurors, both in the civil and criminal side of the Court, are taken; and, as the Criminal Court always possesses the powers of Courts of Oyer and Terminer and General Gaol Delivery, the jury process awarded in that Court is entered on the roll "Therefore let a jury thereupon immediately come."

The Judge sitting at Oyer and Terminer, or Gaol Delivery, has power, after issue joined, to direct a jury to come for the trial of the prisoner, and the usual venire facias," therefore let a jury thereupon immediately come," is sufficient, because under the Jury Act, Con. Stat. U. C., c. 31, there has been a previous precept issued for the return of jurors to that Court; and Justices of both these Courts have the same powers by the Act. (b)

Where a Court is held under a special commission, begun in one year and finished in the next, and no new precept has issued to the Sheriff, for the return of jurors, it is not necessary that the jury should be impanelled

(a) Rey. v. Kennedy, 26 U. C. Q. B. 331, per Draper, C. J. (b) Whelan v. Reg. 28 U. C. Q. B. 84-5, per Richards, C. J.