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directed that the foreman or other member who had administered the oath "shall upon the back of such bill of indictment state the name or names of such witness or witnesses as shall have been duly sworn, etc., and authenticate the same by his signature or initials." One of the defendants assigned error in fact that the indictment was not found and returned a true bill pursuant to the directions of the statute, inasmuch as neither the foreman nor any other member of the grand jury, by his signature or initials, did authenticate the fact that the witness had been sworn or made affirmation. But the judges were unanimously of opinion that the error complained of was founded on a part of the statute that was directory only and not imperative. In giving the opinion of the judges, Lord Tindal, C.J., said, "It cannot be law that, after the witness has been duly sworn and examined, and the bill returned a true bill on his evidence, it can be deprived of its legal operation and character by reason of the foreman of the grand jury having neglected to comply with such direction in the statute."

The procedure under our Criminal Code differs in two respects only from that prescribed by the above statute. Under the Code, the witness may be sworn either in court or by the foreman or other member of the grand jury, whereas under the statute, they could be sworn only before the grand jury itself. And under the statute, the foreman is not merely, as under the Code, to indicate the witnesses who have been sworn by placing his initials against the names of these witnesses already on the back of the bill, but he is to state the names of the witnesses upon the back of the bill and authenticate the statement by his signature or initials. I gather that in O'Connell v. The Queen, the name of the witness who had been sworn and examined had been indorsed on the back of the bill. But the indorsement of a name without the authentication required by the statute amounted to nothing; and I think the two cases are so nearly alike, that the opinion of the judges may be safely followed here, and especially as it has already been followed by the court in another Province.

I think the first question reserved should be answered in

the negative.

KILLAM, J., Concurred.

Conviction affirmed.

Note: Consent in cases of assault-Effect of.

No one may consent to any act which is either intended to cause or is likely to cause death or any grievous bodily harm. It is unlawful for a man either to kill or maim himself, and he cannot lawfully consent to be killed or maimed by another person. And so duelling is against the law, and, if two persons deliberately agree to fight a duel and one kill the other, he is guilty of murder. Prize-fighting also is illegal, although no more deadly weapons be used than the naked fists of the combatants; for here the object of each is to do to the other as much harm as can be done with the hands, so long as he keeps within the rules under which they fight, and to subdue the other until from injury or exhaustion he is unable to fight any more. In the case of Reg. v. Coney (30 W.R. 678, 8 Q.B.D. 534), which was argued before the whole of the Queen's Bench Division, all the judges were agreed that a prize-fight is illegal, and that the consent of the parties to fight could not make it legal. Stephen, J., said: "When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature or is inflicted under such circumstances that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore, the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults."

If, whilst playing a game, a player deliberately infringes

the rules, and in so doing hurts another, he is guilty of an assault, for the consent of the person injured only extends to acts committed within the rules. East, in his Pleas of the Crown, says: "If two were engaged to play at cudgels, and the one made a blow at the other likely to hurt before he was upon his guard, and without warning, and death ensued, the want of due and friendly warning would make such act amount to manslaughter, but not to murder, because the intent was not malicious." (Sol. Jour.)

And no rules or practice of any game can make that lawful which is unlawful by the law of the land; and the law of the land says you shall not do that which is likely to cause the death of another. R. v. Bradshaw, 14 Cox C. C. 83.

A charge of common assault may in certain cases be completely answered by proof of consent on the part of the person bringing the charge. Thus, if a man strike another with a stick, this is prima facie an offence, although no real harm be done; if, however, the two had agreed to engage in a match of singlesticks, and in the course of the game, and without transgression of its rules and with no intent to inflict harm, the complainant was struck, his consent to run the risk of receiving a blow is a defence to the charge of assault. "Shall"-When imperative and when directory only.

be

Whenever a statute declares that a thing "shall done, the natural and proper meaning is that a peremptory mandate is enjoined.

But where the thing has reference to :—

(1) The time or formality of completing any public act, not being a step in a litigation or accusation, or (2) the time or formality of creating an executed contract whereof the benefit has been, or but for their own act might be, received by individuals or private companies or private corporations; the enactment will generally be regarded as merely directory, unless there be words making the thing done void, if not done in accordance with the prescribed requirements. Stroud's Judicial Dict., 723.

[HIGH COURT OF JUSTICE, ONTARIO.]

BEFORE MACMAHON, J.

THE QUEEN v. MURRAY.

Dies non-Preliminary inquiry held on a statutory holidayCounty Judge's Criminal Court a court of recordReview by writ of error.

1. A preliminary inquiry held by a magistrate and a commitment for trial made on a statutory holiday are bad in law.

2. If after such commitment the accused elects to be tried at the County Judge's Criminal Court and pleads there to the charge and is convicted, the conviction is not invalidated because of the invalidity of the commitment for trial.

3. Per Court of Appeal: Habeas Corpus proceedings do not lie to inquire into the validity of a conviction made at a County Judge's Criminal Court as the latter is a court of record.

4. Per Court of Appeal: Proceedings of a court of record can be reviewed only upon a writ of error.

ARGUED August 19, 1897.

DECIDED: August 24, 1897.

Motion in Chambers on behalf of the prisoner, upon the return of writs of habeas corpus and certiorari in aid, for an order for his discharge from custody, under the circumstances appearing in the judgment.

D. O'Connell for the prisoner.
A. M. Dymond for the Crown.

TORONTO, August 24, 1897.
MACMAHON, J.-

A writ of habeas corpus was obtained, directed to the sheriff of the county of Peterborough, to produce the body of the prisoner together with the cause of his detention. A consent was indorsed by counsel on the writ dispensing with the production of the body of the prisoner.

A writ of certiorari was issued in aid of the habeas corpus. Upon the return of the writs Mr. O'Connell moved for the discharge of the prisoner on the ground that the preliminary

investigation resulting in the commitment of the prisoner for trial took place on the 1st July-Dominion day-which, by R.S.C. ch. 1, sec. 7 (26), is a “holiday," and therefore a dies non juridicus.

From the return to the certiorari it appears that the prisoner was on the 1st day of July, 1897, brought before Robert S. Davidson, a justice of the peace for the county of Peterborough, acting for and in the absence of and at the request of D. W. Dumble, Esquire, the police magistrate for the town of Peterborough, charged with an attempt to steal certain goods and money from the person of Martha A. Trew, and after hearing the evidence of the witnesses, the magistrate committed the prisoner to the common gaol at Peterborough for trial on the said charge.

The offence charged against the prisoner being one triable at the General Sessions of the Peace, the sheriff, in compliance with the requirements of sec. 766 of the Criminal Code, notified the Judge that the prisoner was confined in gaol on said charge, and, according to the record of the proceedings, the prisoner was brought before the Judge of the County Court on the 2nd July, and was asked if he consented to be tried by the Judge without the intervention of a jury, and the prisoner thereupon consented to be so tried, and upon the evidence adduced was by said Judge convicted of the offence of attempting to commit a theft, and was on the 28th July sentenced to imprisonment in the county gaol for a period of

three months.

On the writ of certiorari the learned County Court Judge has indorsed a certificate to the effect that at the trial counsel for the prisoner objected that the preliminary investigation before the magistrate took place on the 1st July, 1897, and that the prisoner could not be validly tried, but he (the Judge) overruled the objection and proceeded with the trial.

A writ returnable on a Sunday or other dies non is a nullity; Chitty's Archbold's Practice, 12th ed., p. 160; Morrison v. Manley, 1 Dowl. N.S. 773; Kenworthy v. Peppiat, 4 B. & Al. 288; Swann v. Broome, 3 Bur. 1595. And a judgment signed on a dies non is a nullity; Harrison v. Smith,

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