for the same conspiracy, such a course was held unobjectionable: Knowlden v. R. (in error), 5 B. & S. 532, 9 Cox, 483.

Where it is made clear, either on the face of an indict ment or by affidavit, that it has been found without jurisdiction, the court will quash it on motion of the defendant, even after he has pleaded: R. v. Heane, 4 B. & S. 947, 9 Cox, 433.

A prosecutor who has required the magistrates to take his recognizances to prosecute under s. 595 when the magistrates have refused to commit or to bail for trial the person charged, must either go on with the prosecution or have his recognizances forfeited, as it would defeat the ob ject of the statute if he was allowed to move to have his recognizances discharged: R. v. Hargreaves, 2 F. & F. 790.

Held, that where one of the preliminary formalities mentioned in this section is required, the direction by a Queen's counsel then acting as crown prosecutor, for and in the name of the Attorney-General, is not sufficient. The Attorney-General or Solicitor-General alone can give the direction Abrahams v. R., 6 S. C. R. 10; R. v. Ford, 14 Q. L. R. 231.

A person heretofore prosecuting under s. 140 of the Procedure Act had no right to be represented by any other counsel than the representative of the Attorney-General: R. v. St. Amour, 5 R. L. 469. As to the interpretation of the said section: see, further, R. v. Bradlaugh, 15 Cox, 156; also R. v. Bell, 12 Cox, 37; R. v. Yates, 15 Cox, 272, and, Yates v. R. 15 Cox, 686.

CORONER'S INQUISITION. (New).

642. After the commencement of this Act no one shall be tried upon any coroner's inquisition.

By s. 568, the coroner cannot now commit any one for trial. He must send any one charged by his inquest before a magistrate.

OATH BEFORE GRAND JURY.

643. It shall not be necessary for any person to take an oath in open court in order to qualify him to give evidence before any grand jury. R. S. C. c. 174, s. 173.

644. The foreman of the grand jury or any member of the grand jury who may, for the time being, act on behalf of the foreman in the examination of witnesses, may administer an oath to every person who appears before such grand jury to give evidence in support of any bill of indictment; and every such person may be sworn and examined upon oath by such grand jury touchng the matters in question. R. S. C. c. 174, s. 174.

645. The name of every witness examined, or intended to be examined, shall be endorsed on the bill of indictment; and the foreman of the grand jury, or any member of the grand jury so acting for him, shall write his initials against the name of each witness sworn by him and examined touching such bill of indictment. R. S. C. c. 174, s. 175.

646. The name of every witness intended to be examined on any bill of indictment shall be submitted to the grand jury by the officer prosecuting on behalf of the Crown, and no others shall be examined by or before such grand jury unless upon the written order of the presiding judge. R. S. C. c. 174, 8. 176.

647. Nothing in this Act shall affect any fees by law payable to any officer of any court for swearing witnesses, but such fees shall be payable as if the witnesses had been sworn in open court. R. S. C. c 174, s. 177.

Sections 643, 644 & 645 are re-enactments of the Imperial Act, 19 & 20 V. c. 54. S. 646 would, perhaps, be held not to apply to private prosecutions, sed quære?

The omission by the foreman to write his initials against the name of each witness sworn and examined would give to the prisoner the right, before plea, to ask that the indietment be sent back to the grand jury with a direction to the foreman to so initial the names of the witnesses examined. In a case in Illinois, under a similar enactment, it was held that the statute requiring the foreman of the grand jury to note on the indictment the names of the witnesses upon whose evidence the same is found is mandatory, and that a disregard of this requirement would, no doubt, be sufficient ground to authorize the court, upon a proper motion, to quash the indictment: Andrews v. The People, 117 Ill., 195.

See Thompson on Juries, 724.

Under s. 629, ante, a motion to quash the indictment. upon such a ground must be made before plea, and upon such a motion the court would send the indictment back to the grand jury to remedy the defect. If the grand jury has been discharged the indictment, it seems, must be quashed.

With the grand jury's consent the witnesses before them are examined by the crown prosecutor or clerk of the crown, or by the private prosecutor or his solicitor. But the grand jury must be alone during their deliberations: 1 Chit. 315; 3 Burn, 36; charge to grand jury, Drummond, J., 4 R. L. 364; Stephen's Cr. Proc. Art. 190; and 1 Hist. Cr. L. 273, 274.

Not more than twenty-three grand jurors should be sworn in. But any number from twelve to twenty-three constitute a legal grand jury. At least twelve of them must agree to find a true bill. If twelve do not agree, they must return "not found," or "not a true bill," or "ignor amus"; this last form, however, is not now often used: 4 Stephen's Bl. 375 (10th edit.); 1 Chit. 322; 2 Burr. 1089; 3 Burn, 37; R. v. Marsh, 6 A. & E. 236; Dickin son's Quarter Sess. 183; Stephen's Cr. Proc. Art. 186; Low's case, 4 Me. 437; 1 Whart. Cr. L. pars. 463, 497. In addressing the grand jury, in Montreal, Queen's Bench, June 1st, 1893, Wurtele, J., instructed them that to find an accusation founded or to declare it unfounded twelve at least must concur. The italicized words contain a palpable

error.

The court will not inquire whether the witnesses were properly sworn before the grand jury: R. v. Russell, C. & M. 247, but see R. v. Dickinson, post.

The court will not receive an affidavit of a grand juror as to what passed in the grand jury room upon the subject of the indictment: R. v. Marsh, 6 A. & E. 236; nor allow one of them to be called as a witness to explain the finding: R. v. Cooke, 8 C. & P.582.

On the trial of Alexander Gillis for murder, his counsel called the foreman of the grand jury which found the bill

against him to prove that a witness's evidence before the grand jury was different from that given by the witness on the trial. The counsel for the crown objected that a grand juror could not be allowed to give evidence of what took place in the grand jury room: Held, that a grand juror's obligation to keep secret what transpired before the grand jury only applied to what took place among the grand jurors themselves, and did not prevent his being called to prove what a witness had said: R. v. Gillis, 6 C. L. T. 203.

On this point, see Taylor, Ev. par. 863. Also, Stephen Ev., Art. 114, where it is said: "It is also doubtful whether a grand juror may give evidence as to what any witness said when examined before the grand jury." See s. 145, ante, as to perjury committed before a grand jury.

A grand jury cannot on a suspicion that a witness called before them has been tampered with by the prisoner receive in evidence his written examination given at the preliminary investigation for the purpose of finding a bill : R. v. Denby, 1 Leach, 514.

Depositions not taken in presence of the accused cannot be submitted to the grand jury: R. v. Carbray, 13 Q. L. R. 100.

A grand jury have no right to ignore a bill on account of insanity, either when the offence was committed or at the time when the bill is preferred: R. v. Hodges, 8 C. & P.

195.

In R. v. Dickinson, R. & R. 401, it being discovered after conviction that the witnesses had been examined before the grand jury without being sworn, the judge thought the objection came too late, and sentenced the prisoner. Subsequently, without deciding on the validity of the objection, the judge thought that, as a matter of discretion, it was better to direct application to be made for a pardon.

As to whether a bill once thrown out by the grand jury can be submitted de novo during the same term of the

court, see R. v. Humphreys, Car. & M. 601; R. v. Newton, 2 M. & Rob. 503. By observing either one or the other of the preliminary formalities required by s. 641 a new bill founded on the same facts may, it would seem, be preferred during the same term.

Witnesses may be examined before the petit jury whose names are not on the back of the indictment: Archbold, 86.

BENCH WARRANT. (Amended).

618. When any one against whom an indictment has been duly preferred and has been found, and who is then at large, does not appear to plead to such indictment, whether he is under recognizances to appear or not

(a) the court before which the accused ought to have been tried may issue a warrant for his apprehension, which may be executed in any part of Canada;

(b) the officer of the court at which the said indictment is found or (if the place or trial has been changed) the officer of the court before which the trial is to take place, shall, at any time after the time at which the accused ought to have appeared and pleaded, grant to the prosecutor, upon application made on his behalf and upon payment of twenty cents, a certificate of such indictment having been found. The certificate may be in the form GG in schedule one hereto, or to the like effect. Upon production of such certificate to any justice for the county or place in which the indictment was found, or in which the accused is or resides or is suspected to be or reside, such justice shall issue his warrant to apprehend him, and to cause him to be brought before such justice, or before any other justice for the same county or place, to be dealt with according to law. The warrant may be in the form HH in schedule one hereto, or to the like effect.

2. If it is proved upon oath before such justice that any one apprehended and brought before him on such warrant is the person charged and named in such indictment, such justice shall, without further inquiry and examination, either commit him to prison by a warrant which may be in the form II in schedule one hereto, or to the like effect, or admit him to bail as in other cases provided; but if it appears that the accused has without reasonable excuse broken his recognizance to appear he shall not in any case be bailable as of right.

3. If it is proved before the justice upon oath that any such accused person is at the time of such application and production of the said certificate as aforesaid confined in any prison for any other offence than that charged in the said indictment, such justice shall issue his warrant directed to the warden or gaoler of the prison in which such person is then confined as aforesaid, commanding him to detain him in his custody until by lawful authority he is removed therefrom. Such warrant may be in the form JJ. in schedule one hereto, or to the like effect. R. S. C. c. 174, ss. 33, 34 & 35. 11 & 12 V. c. 42, s. 3, Imp.: Archbold, 89.