he was allowed to use affidavits to show that there was no evidence before the justice from which he could reasonably infer that there was a contract creating the relation of master and servant, as that would show the justice had no jurisdiction. In view of these authorities, I think the prisoner's affidavit can be read on the present motion. It does not directly contradict the return, but rather, to use the expression of Patteson, J., in Re Clarke, 2 Q.B. 619, alleges an extrinsic fact, as it were confessing and avoiding it. There is then evidence that the preliminary inquiry was wholly proceeded with on Sunday, and to do so was more than an irregularity. The making of such an inquiry was a judicial act, and no judicial act ought to be done on Sunday: Mackalley's Case, 9 Co. 66; Waite v. Hundred of Stoke, Cro. Jac. 496. In Burn's Justice, vol. 1, p. 1212, it is said, "A coroner's inquisition being judicial, must not be conducted on a Sunday." In Re Cooper, 5 P.R. 256, two prisoners committed on a coroner's warrant made on a Sunday, the inquisition having been held on that day, were brought up on a habeas corpus before Galt, J., who discharged them, saying that the inquest and inquisition being judicial acts done on Sunday, appeared to him to be void, and there was, therefore, nothing to support the warrant. Since the Criminal Code was passed, the warrant, although issued on a Sunday, is good under section 564, sub-section 3. But I do not think section 729 has the effect of making a judicial act, such as the taking of a preliminary inquiry on a Sunday, good. That section from its position in the Code, and its language, deals only with matters before a jury, and one can see abundant reasons for such a provision. The corresponding Act in England was passed, it is believed, on account of the difference of opinion between the Court in Ireland in Reg. v. Conway and Lynch, 7 Ir. L.R. 149, and the English Court in Reg. v. Winsor, 10 Cox C. C. 280. As the prisoner is entitled to be discharged under the fourth objection, it is unnecessary to consider the others. An order may issue making the summons absolute, and ordering the prisoner to be discharged without the writ of habeas corpus actually issuing, or his being personally brought before the Court. Order for discharge of prisoner. NOTES:-Controverting Return. A fact directly decided by a court of competent jurisdiction, and stated in the conviction or in a return to a habeas corpus cannot be controverted, but a collateral extrinsic fact, confessing and avoiding the disputed order may be proved on affidavit to show want of jurisdiction. Re Clarke, 1842, 2 Q. B. 619, 634, R. v. Justices of Somersetshire, 5 B. & C. 816. Sunday a dies non. At common law Sunday is a dies non juridicus, and all judicial proceedings on that day are therefore void. 2 Coke's Inst. 264-5, 1 Bishop on Crim. Proc., sec. 207. Only ministerial acts, and not acts which are judicial could be legally performed in court on a Sunday, and the taking of a verdict is a judicial act, for it might be a verdict which could not be received being bad in law, or it might be a special verdict which required the guidance of the judge in framing it. R. v. Winsor, 1866, 10 Cox C.C. 276, 305, 322. The contrary view prevails in most of the United States, and it is permitted on grounds of public policy to receive and record a verdict on Sunday, or to give additional instructions on Sunday to a jury which had retired on Saturday. Hodge v. State, 1892, 10 So. Rep. 556; Baxter v. People, 8 Ill. 368; Jones v. Johnson, 61 Ind. 257. It is however now provided as regards offences and proceedings under the Criminal Code by sec. 729 that :-"The taking of the verdict of the jury or other proceedings of the Court shall not be invalid by reason of its happening on Sunday." The court will take judicial notice that a certain day was Sunday. Wharton on Evidence 3rd Ed., sec. 335; Tutton v. Darke, 5 H. & N. 645; Hanson v. Shackelton, 4 Dowl, 48; Pearson v. Shaw, 7 Ir. L. R. 1. [COURT OF QUEEN'S BENCH, QUEBEC.] CROWN SIDE. CORAM WURTELE, J. THE QUEEN v. ST. LOUIS. Costs after recognizance to prosecute-Taxation and scale of— Commissioner of Dominion Police-Personal or representative capacity as informant—Liability for costs— Cr. Code 595, 835. 1. The person filling the office of Commissioner of the Dominion Police has, as such, no legal capacity to represent and act on behalf of Her Majesty the Queen, and in laying an information in which he designated himself as such Commissioner of the Dominion Police he acted as a private individual and not as the legal representative of the Crown, although he declared that he was acting as such Commissioner on behalf of Her Majesty the Queen. 2. The accused having been discharged, and the Commissioner having bound himself by recognizance to prefer and prosecute an indictment on the charge contained in his information, and the Grand Jury having thrown out the bill of indictment, the Commissioner was held, under art. 595 of the Criminal Code, to be personally liable for the costs incurred by the accused on the preliminary inquiry and before the Court of Queen's Bench. 3. The costs allowed were not the fees and disbursements paid by the accused to his counsel, such payment being a matter between client and counsel, but such costs as were held by analogy with the costs allowed in civil suits to be costs recoverable from a losing party. 4. Such costs should be taxed according to a tariff made for criminal proceedings, and in the absence of such tariff they are to be taxed in the discretion of the Judge, by implication, according to the spirit of the provisions contained in art. 835 of the Criminal Code. Montreal, 14 October, 1897. WURTELE, J. On the 22nd October, 1894, an information was laid before Mr. Dugas, one of the judges of the Sessions of the Peace for the City of Montreal, by Arthur Percy Sherwood against Emmanuel St. Louis, charging him with having received different sums of money from Her Majesty the Queen by false pretences. In the information, Mr. Sherwood took the capacity of Commissioner of the Dominion Police, and added to this designation the words "and acting as such on behalf of Her Majesty the Queen." On this information, the accused was arrested and a preliminary inquiry took place before Mr. Desnoyers, another of the judges of the Sessions of the Peace for the City of Montreal, which lasted from the 2nd November, 1894, to the 13th May, 1895, on which day the magistrate, having found the evidence insufficient, discharged the accused. Thereupon the informant declared that he intended to prefer an indictment before the Grand Jury, founded on the charge which he had made, at the next term of the Court of Queen's Bench, and he required the magistrate to bind him over to prefer and prosecute such indictment, and on the 31st May, 1895, Mr. Sherwood signed a recognizance binding himself to prefer such an indictment against the accused at the session of the criminal court which was to commence on the following day. In accordance with the provisions of Article 600 of the Criminal Code, the magistrate thereupon transmitted to the clerk of the Crown the information, the depositions, the exhibits produced before him, the statement of the accused, and Mr. Sherwood's recognizance. On the sixth day of the term the Attorney-General of Canada moved, inasmuch as the Attorney-General of Quebec would only allow the Crown Prosecutor to lay the indictment before the Grand Jury if the Federal Government consented to pay the costs of subpoenas and of the attendance of witnesses, that he be permitted to prefer the indictment before the Grand Jury, and the Court gave leave to that effect. Up to this moment the case had been carried on by Mr. Sherwood, without the intervention of the Dominion law officers. Then a bill of indictment founded on the charge which had been made against the accused by Mr. Sherwood was laid before the Grand Jury; but after examining the witnesses the Grand Jury threw it out, and on the 15th June, 1895, it was returned into Court with the report that the Grand Jury had found "no bill." On the last day of the June term, the accused, Em. St. Louis, moved that the prosecutor, Arthur Percy Sherwood, should be condemned to pay to him his costs, including the costs of his appearance on the preliminary inquiry, and after due notice he renewed his application on the 30th March, 1897. The parties were heard on this application at that time, and later on, in the month of June, 1897, a rehearing was ordered, and it took place during the present September term, 1897. The bill of costs submitted by Mr. St. Louis amounts to $5,434-73, composed as follows: Fees paid to MM. Geoffrion, Dorion & Allan, advocates ..... Fees paid to MM. Macmaster & Maclennan, advocates Fees paid to Mr. Emard, advocate Disbursements to stenographers for copies of the Making the amount claimed of.. . $2,500 00 2,200 00 200 00 448 08 5165 35 00 .$5,434 73 At the argument it was contended that the information had not been laid by Mr. Sherwood individually, but that he had acted in laying it as an officer of the Government of the Dominion and on its behalf, and that consequently he could not be called upon individually to pay any costs; and that on the other hand costs are only allowed against the Crown in cases where there is a special provision in the law to that effect. The affidavits of Mr. Sherwood and of Mr. Newcombe, the Deputy Minister of Justice, were produced, stating that the information had been laid, that the recognizance to prefer an indictment had been given, and that the bill of indictment had been laid before the Grand Jury on instructions received from the Minister of Justice, and that all Mr. Sherwood's expenses had been paid out of funds of the Government of Canada. At the time the information was laid, and during the |