in many instances, has been able to turn his right to traverse into a means of improperly putting the prosecutor to expense and inconvenience. The intention of the section is to abolish traverses altogether, and to put misdemeanours precisely on the same footing in this respect as felonies. In felonies, the prisoner has no right to postpone his trial, but the court, on proper grounds, will always postpone the trial. Under this section, therefore, no defendant in a case of misdemeanour can insist on postponing his trial; but the court in any case, upon proper grounds being adduced, not only may, but ought to, order the trial to be postponed. If, therefore, a witness be absent, or ill, or there has not been reasonably sufficient time for the defendant to prepare for his defence, or there exist any other ground for believing that the ends of justice will be better answered by the trial taking place at a future period, the court would exercise a very sound discretion in postponing the trial accordingly."

There are several cases in which, upon a proper application, the court will put off the trial. And it has been laid down that no crime is so great, and no proceedings so instantaneous, but that the trial may be put off if suffi cient reasons are adduced to support the application; but to grant a postponement of a trial on the ground of the absence of witnesses, three conditions are necessary; 1st, the court must be satisfied that the absent witnesses are material witnesses in the case; 2nd, it must be shown that the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of these witnesses; and, 3rd, the court must be satisfied that there is a reasonable expectation that the attendance of the witnesses can be procured at the future time to which it is prayed to put off the trial: R. v. D'Eon, 3 Burr. 1514.

But if an affidavit is given that, on cross-examination, one of the absent witnesses for the prosecution who has been bound over to appear can give material evidence for

the prisoner, this is sufficient ground for postponing the trial, without showing that the defence has made any endeavour to procure this witness's attendance as the prisoner was justified in believing that, being bound over, the witness would be present: R. v. Macarthy, Car. & M. 625.

In R. v. Savage, 1 C. & K. 75, the court required an affidavit stating what points the absent witness was expected to prove, so as to form an opinion as to the witness being material or not.

The party making an application to postpone a trial, on the ground of the absence of a witness, is not bound in his affidavit to disclose all that the absent witness can testify to, but he must show that the absent witness is likely to prove some fact which may be allowed to go to the jury; he must also show the probability of having the witness at a later term: R. v. Dougall, 18 L. C. J. 85.

The court will postpone until the next assizes the trial of a prisoner charged with murder, on an affidavit by his mother that she would be enabled to prove by several witnesses that he was of unsound mind, and that she and her family were in extreme poverty, and had been unable to procure the means to produce such witnesses, and that she had reason to believe that if time were given to her the requisite funds would be provided: R. v. Langhurst, 10 Cox, 353.

But the affidavit of the prisoner's attorney, setting forth the information he had received from the mother, is insufficient: Idem.

Upon an indictment for a murder recently committed the court will postpone the trial, upon the affidavit of the prisoner's attorney that he had not had sufficient time to prepare for the defence, the affidavit suggesting the possibility of a good ground of defence: R. v. Taylor, 11 Cox,

If the application is made by the defendant, he shall be remanded and detained in custody until the next assizes or sessions; but where the application is made by the prosecutor, it is in the discretion of the court either, on consideration of the circumstances of each particular case, to detain the defendant in custody, or admit him to bail, or to discharge him on his own recognizance: R. v. Beardmore, 7 C. & P. 497; R. v. Parish, 7 C. & P. 782; R. v. Osborn, 7 C. & P. 799; R. v. Bridgman, Car. & M. 271. But, as a general rule, after a bill has been found, if the offence be of a serious nature, the court will not admit the prisoner to bail: R. v. Chapman, 8 C. & P. 558; R. v. Guttridge, 9 C. & P. 228; R. v. Owen, 9 C. & P. 83 ; R. v. Bowen, 9 C. & P. 509; 5 Burn, 1032.

The production of fresh evidence on behalf of the prosecution (not known or forthcoming at the preliminary investigation, and not communicated to the defence a reasonable time before the trial) may be a ground for postponing the trial, on the request of the defence, if it appears necessary to justice: R. v. Flannagan, 15 Cox,

403.

On the finding of an indictment for perjury application was made for defendant to appear by counsel and plead : Held, that he should submit to the jurisdiction of the court, and appear himself, before he can be allowed to take any proceedings therein: R. v. Maxwell, 10 L. C. R. 45.

AUTREFOIS ACQUIT, ETC. (Amended).

631. The following special pleas and no others may be pleaded according to the provisions hereinafter contained, that is to say, a plea of autrefois acquit, a plea of autrefois convict, a plea of pardon, and such pleas in cases of defama. tory libel as are hereinafter mentioned.

2. All other grounds of defence may be relied on under the plea of not guilty.

3. The pleas of autrefois acquit, autrefois convict, and pardon may be pleaded together, and if pleaded shall be disposed of before the accused is called on to plead further; and if every such plea is disposed of against the accused he shall be allowed to plead not guilty.

4. In any plea of autrefois acquit or autrefois convict it shall be sufficient for the accused to state that he has been lawfully acquitted or convicted, as

the case may be, of the offence charged in the count or counts to which such plea is pleaded, indicating the time and place of such acquittal, or conviction. R. S. C. c. 174, s. 146.

5. On the trial of an issue on a plea of autrefois acquit or autrefois convict to any count or counts, if it appear that the matter on which the accused was given in charge on the former trial is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made which might then have been made, have been convicted of all the offences of which he may be convicted on the count or counts to which such plea is pleaded, the court shall give judgment that he be discharged from such count or counts.

6. If it appear that the accused might on the former trial have been convicted of any offence of which he might be convicted on the count or counts to which such plea is pleaded, but that he may be convicted on any such count or counts of some offence or offences of which he could not have been convicted on the former trial, the court shall direct that he shall not be convicted on any such count or counts of any offence of which he might have been convicted on the former trial, but that he shall plead over as to the other offence or offences charged.

632. On the trial of an issue on a plea of autrefois acquit or convict the depositions transmitted to the court on the former trial, together with the judge's and official stenographer's notes if available, and the depositions transmitted to the court on the subsequent charge, shall be admissible in evidence to prove or disprove the identity of the charges. See ss. 694 & 726, post.

633. When an indictment charges substantially the same offence as that charged in the indictment on which the accused was given in charge on a former trial, but adds a statement of intention or circumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to such subsequent indictment.

2. A previous conviction or acquittal on an indictment for murder shall be a bar to a second indictment for the same homicide charging it as manslaughter; and a previous conviction or acquittal on an indictment for manslaughter shall be a bar to a second indictment for the same homicide charging it as murder.

The words in italics in the fifth line of s-s. 5 of s. 631 and in the second line of s. 632 are new. Section 633 seems open to a construction that would make it an extension of the law. Sections 799, 821, 866 & 969, post, contain enactments on acquittals or convictions in special cases as a bar to all further proceedings for the same cause.

Sub-section 4 of s. 631 is taken from the 14 & 15 V. c. 100, s. 28, of the Imperial Statutes.

It is a sacred maxim of law that "nemo bis vexari debet pro eadem causa," no man ought to be twice tried, or

brought into jeopardy of his life or liberty more than once, for the same offence.

"This enactment very properly," says Greaves, Lord Campbell's Acts, 31, "abbreviates the form of pleas of autrefois acquit and autrefois convict, and renders it unnecessary to set forth the previous indictment, and to make the many averments of identity, and so forth, which were requisite before the passing of this statute."

These pleas are of the class called special pleas in bar; such pleas may be pleaded ore tenus.

The following is the form of a plea of autrefois acquit, when drawn up in answer to the whole of the indictment:

"And the said J. S., in his own proper person cometh into court here, and having heard the said indictment read, saith, that our said Lady the Queen ought not further to prosecute the said indictment against the said J. S., because he saith that heretofore, to wit, at (describe the court correctly) he, the said J. S., was lawfully acquitted of the said offence charged in the said indictment and this he, the said J. S., is ready to verify. Wherefore he prays judg ment, and that by the court here he may be dismissed and discharged from the said premises in the present indictment specified": Archbold, 132.

If there is more than one count in the indictment it is better to plead to each: R. v. Westley, 11 Cox, 139. By s. 3, ante, the word indictment includes pleas, so that all the rules as to amending indictments apply to pleas. The defendant might before the Code plead over to the indictment, in felonies, at the same time as pleading such special pleas, but now, under s-s. 3 of s. 631, that cannot be done.

The jury must first determine the plea of former acquittal or conviction. The prisoner has the right of challenge in the usual way: 2 Hale, P. C. 267d; R. v. Scott, 1 Leach, 401. See remarks, post, under s. 667, as to challenges. If the verdict is in favour of the prisoner, and finds the plea