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Las diagrammea suivants iliustrent la mAthoda. errata d to It e pelure, on A 1 2 3 32X 1 2 3 4 5 6 "MJ ijr ^^ O-O^SllfjLr fw the flJottrt 0f (^trflr nnd Jkppenl THE QUEEN, (Defendant in Error,) vs. PATRICK JAMES WHELAN, (Plaintiff in Error.) FROM THE COURT OF QUIEN'S BENCH. C. ROBINSON, Q.C., and ANDERSON, For thk Ckow.v. J. HTLLYARD CAMEKON, Q.C, F(.K I'. J. Whki-an. Henry Rowsell, Law l^rinter. Toronto. / ^Ct i« tU ( PATI PKOM THI H f tt the d^onrt «f (tvcn mi appeal. THE QUEEN, (Defendant in Error,) PATRICK JAMES WHELAN, (Plaintiff in Error.) PROM THE COURT OF QUJiEN'S BENCH. C. ROBINSON, Q.C., and ANDERSON, For the Crown. J. HILLYARD CAMERON, Q.C., For p. J. Whelan. Henry Rowsell, Law Printer, Toronto. i ' 1 1 •i 'Pf: ,r-v>,;'.«.' .|H *■? ,Ati 1 (i PATFUCK JAMES WIIKLAiS, IHdinti^' iir Kn'ov. V. THE QUEEN, Defendant in Error. The plaintiff in error was iiulioied for murder, and con- vicieiJ at the Autumn Assizes for the County of Carleton, in September, 1868, and judgment of death was passed upon him, to he executed on the lOlh of December foUowing. A writ of error, returnal)le in this Court, was afterwards obtained, upon the fjat of The Honorable John Sandfield Macdonald, Attorney General ; to which a return was made. On the third Monday of Michaelmas Tent), under a writ of Haheos Corpus directed to the Sherifl'of the County of Carleton (o), the plaintiff in error was brought into Court in custody of the said Sheriff; and by his counsel, J. H. Cameron, Q.C., prayed oyer of the writ of error and the return thereto, which were read, as follows : (o) The Habeas Corpus and return thereto were as follows : — •' Victoi ia,by the Grace ot God of the United Kingdom of Great Britain and Irclimd Queen, Defender of the Faith: To the Sheriff of the County of Carleton, and also the keeper of our gaol at Ottawa, in and for our said County of Carleton, greetin;^ ; We command you that you have before our Court of Queen's Bench, nt Toronto, immediately after the receij)t of this our writ, the body of l^atiick .lames Whelan, detained in our prison under your custody, to undergo and receive all and singular such things as our said Court of Queen's Bench shall then and there consider of concerning him in that behalf^ and have you then there this writ. 121121 2 WRIT OP ERROR. VrcToKiA, by I he grace of God o\' the United Kingdom of Great Britain and Ireland Queen, Defender of the •Faith. To our Justices of Oyer and Terminer for our County of Carleton assigned to deliver the Gad of the said County of the prisoners therein, and also to hear and determine all felonies, trespasses, and other evil doings within the same County, greeting: Because in the record and proceedings, and also in the giving of judgment, on a Certain indictment found against Patrick James WheSan, at a Court of Oyer and Terminer " Witness the Honourable William Buell Richards, Chief Jnstice of oar Court of Queen's Bench at Toronto, the eighteenth day of November, in the thirty-second year of our reign. Robert O. Daltoh, C, C. ^ P, By Rule of Court. RETURN. " I, William Frederick Powell, Sheriff of the County of Carleton, to whom the writ hereunto annexed has been directed, do hereby humbly certify and return to Our Sovereien Lady the Queen, that in obedience to the said writ I have presenttheoody of Patrick James Whelan therein named, as by the said writ I am commanded. And I do further humbly certify and return, that before the coming to me of the said writ, that is to say, on the second day of September, one thousand eight hundred and sixty-eight, the said Patrick James Whelan was committed to my custody by virtue of a certain warrant or ordnr of Court, the tenor of which is as follows : — " County OF Caelbton : " At the General Sessions of the Delivery of the Gaol of Carleton, holden at the Citv of Ottawa, iu and for the said County, on Wednesday, the second day ot September, in the year of oar Lord one thousand eignt hundred and sixty-eight, before The Honorable William Buell Richards, one of the Justices of Our Lady the Queen of her Court of Common Pleas at Toronto, assigned to deliver the said gaol of the prisoners therein being, Patrick James Whelan, convicted of felony, is ordered to be hanged by the neck till he be dead, on the tenth daj^ of December in the aforesaid year. " By the Court. , i , "(Signed) J. Fraseb, "Clerk of Assize." " And these are the causes of the taking ri,nd detaining the said Patrick James Whelan, which, together with his body, I have ready, as by the ■aid writ I am commanded. "(Signed) WILLTAM F. POWELL, ♦< Sheriff^, Count}/ of Carleton:' \ in and for the said County, held at Ottawa, in the said County, on the second day of September, in the thirty -second year of our reign, before The Honorable William Baell Richards, Chief Justic^e of our Court of Common PIpas, for a certain felony and murder of Thomas D'Arcy McGee, whereof he was indicted, and thereupon by a jury of the said County convicted, as it is said, manifest error hath intervened to the great damage of the said Patrick James Whelan, as by his complaint we are informed; we being willing that the error, if error there be, should in due manner be corrected, and full and speedy justice done to the said Patrick James Whelan in this behalf, do command you that, if judgment be thereupon given, then you send to us, distinctly and openly, under your seal, or the seal uf one of you, the record and proceedings aforesaid, with all things con- cerning the same, with thir writ, so that w^e may have them before our Court of Queen's Bench at Toronto on the third Monday of Michaelmas Term next, that the record and proceedings aforesaid being inspected, we may cause to be further done thereupon, for correcting that error, what of right and according to law ought to be done. Witness the Honorable William Buell Richards, Chief Justice of our Court of Queen's Bench at Toronto, the sixteenth day of Noveniber, in the thirty-second year of our reign. By the Honorable John Sandfield Macdonald, Attorney General of Ontario. RETURN TO THE WRIT OF ERROR. The record and proceedings whereof mention is within made appear in a certain schedule to this writ annexed. Signed and sealed ) The answer of the Justice within ■\n presence of I named. ILG, Pailton.( (Signed), ^ Wm. B. Richards, C.J. [l.s.] JITUOMRNT ROLI* County of Carleton, i Be it remembered that at a i«: To wit: ) (icnerol Session of Oyer and Terminer and General Gaol Delivery, holden at the City or Ottawa, in and for the said County of Carleton, on Wednesday, the second day of September, in the year of our Lord one thousand eight hundred and eixty-eight, in the thirty-second year of the reign of Our Sovereign Lady Victoria, by the Grace of God of the United Kingdom of Great Brilair and Ireland, Queen, Defender of the Faith, before the Honorable William Buell Richards, Chief Jus. tice of Her Majesty's Court of Common Pleas for the Province of Ontario, a Justice of our said Lady the Queen duly assigned, and under and by virtue of the Statute in that behalf duly authorized and empowered, to enquire by the oaths of good and lawful men of the said County of Carleton, by whom the truth of the matter may be better known and enquired into, and by other ways, methods, and means, whereby he could or might the better know, as well within liberties as without, more fully the truth of all treason, misprision of treason, insurrections, rebel- lions, counterfeitings, clippings, washings, false coining, and other falsities of the money of Great Britain and Ireland, and of all other kingdoms and dominions whatso- ever, and of all murders, felonies, manslaughters, killings, burglaries, rapes of women, unlawful meetings and con- venticles, unlawful assemblies, unlawful ulteriilgof words, misprisions, confederacies, false allegations, trespasses, riots, routs, retentions, escapes, contempts, falsities, negli- geiicos, concealmentii, riiainlenances, oppressions, cham- perties, deceits, and all other misdeeds, offences and injuries whatsoever, and also the accessories of the same, within the said County of Carleton, by whomsoever and howso- ever had, done, perpetrated and committed, and by what person or persons to what person or persons, and when, how, and in what manner, and of all other articles and circumstances whatsoever, any, every, or either of them ooncerriiii^ ; and the treasons and other the premises nccordini^ in ihc law and cuMom of England, and ihe luwn of ilie Ntiid Pnivince, for lhi8 time lo hear and dclrrmiiH*. Hy tliv oiiihs of [innilionin^ Ihc namcH of ihn (iraiid Jurors Hworn, 20 in iiniiibcr], t^ood and hiwl'nl Hten ol ihc Ooniily nlort'said, llicn and th(>r«' empanelled, Nworn and charged to enquire for Ihe said Iia The Jurors for our said Lady ihe 7b Wit. J Queen, upon (heir oaths present that Patrick James Whulan, on the sevenlh day of April, in the year of our Lord one thousand eight hundred and sixty- eight, at the City of Ottawa, in the County of Carleton, did feloniously, wilfully, and of his malice aforethought, kill and murder one Thomas D'Arcy McGee. Whereupon the Sheriff of the said County of Carleton is commanded that he omit not for any libeity within his bailwick, but cause the said Patrick James Whelan tocomeand answer, &c. And thereupon, at the same session of Oyer and Ter- miner and General Gaol Delivery of our said Lady the Queen, holden at the said City of Ottawa, in the said County of Carleton, on the second day of September, in the year of nur Lord one thousand eight hundred and sixty- eight, before the said Honourable William Buell Richards, last above named, here cometh the said Patrick James Whelan under ihe custody of William Frederick Powell, Esquire, Sheriff of the County aforesaid (in whose custody in the gaol of the county aforesaid, for the cause aforesaid, he had been before committed) being brought to the bar here in his proper person by the said Sheriff, by whom he is here also committed, and having heard the said indict- ment read, and being asked v.hether he is guilty or not guilty of the premises in the said indictment above charged upon him, he sailh that he is not guilty thereof, and therefore he puts himself upon the country. And the Honourable John Sandfield itlacdonald, the Attorney General of the said Province of Ontario, who prosecutes for our said Lady the Queen in this behalf, doth the like. Therefore let a jury thereupon immediately come before the said The Honourable William Buell R,ich»rds, last above i!amed,of good and lawful men of the county aforesaid, qualified according to law, by whom the truth of the matter may be better known, and who are not of kin to the said Patrick James Whelan, to recognize upon their oath whether the said Patrick James Whelan be guilty of the felony and murder in the indictment above specified or not guilty, because as well the said Attorney General for the Province of Ontario, who prosecutes for our said Lady the Queen in this behalf, as the said Patrick James Whelan, have put themselves upon ihat jury. And the said Sheriff for this purpose empanels and returns the persons following, and arranges them in a panel in the order following, that is to say," [setting out the names of all the Petit Jurors returned to the Precept, sixty in number]. " And the said " [setting out the names of the twelve jurors first called], '* being severally and successively called come. And the said " [giving the names of six out of the twelve] "are severally and successively peremptorily challenged by the said Patrick James Whelan, and alto- gether excepted from the said jury. And the said " [giving the names of five out of the twelve first called] " upon the prayer of James O'Reilly, Esquire, one of Her Majesty's Counsel learned in the law, who prosecutes for our Lady the Queen in that behalf, are severally and successively ordered by the Court to stand aside. And the said " [the last of the twelve] " is elected, tried and sworn to speak the truth of and concerning the premises in the said indict- ment against the said Patrick James Whelan specified." [The record then set out the names of eleven more of the jurors called, of whom three were challenged peremptorily by the prisoner, three ordered to stand aside for the Crown, aud five sworn. Then the names of six more jurors called, of whom three were peremptorily challenged by the priso- ner, two ordered to stand aside for the Crown, and one sworn. Then the names of five more jdroirs called, namely, Charles Brunette, Patrick Manion, Jonathan Sparks, Wil- liam Gamble and Pairick Baxter, of whom three — Bru- neiie, Maiiion, and Baxter — were ordered, for the Crown, to stand aside; and the record then proceeded to slate the challenge of Jonathan Sparks, as follows: — ] '* And now, at this day, comes as well our said Lady, the Queen, by Her Attorney General of the Province of On- tario, and the said Patrick James Whelan, in h\r* own proper p<*rs*on, and the jury also come, and thereupon the said Pairick James Whelan challenges Jonathan Sparks, one of the said jurors, because he says that the said Jona- than Sparks is not indifferent between our Sovereign Lady the QuefMi and him, the said Patrick James Whelan, in that the said Jonathan Sparks has stated and said that if he was on Whelan's jury he would hang him- And the Queen, by the Attorney General of Ontario, says, that thi; said Patrick James Whelan is not now entitled to clmllcnge for favor the said juror Jonathan Sparks, in this, thiit the siiid Patrick James Whelun has not exhausted his twenty peremptory challenges, only twelve jurors beinjj; ch'illengt'd by him peremptorily. And the said Patrick James Whelan says that the said answer of the said Attorney General, on behalf of our said Sovereign Lady the Queen, to the said challenge of the said Patrick James Whelan to the said juror Jonathan Sparks, is not sufficient in law. And hereupon it is con- sidered, and adjudged, and ordered, by the Court, that the said Patrick James Whelan is not now entitled to challenge for can.xe the said Jonathan Sparks, and the said Judgment is delivered by the said learned Chief Justice in writing, as follows: — 'I overrule the demurrer. I decide that the prisoner's challenge is good as a peremptory challenge and not as a challenge for cause; and if his peremptory challen- ges of twenty, including this, are exhausted, I rule this is to be considered as a peremptory challenge, and not for cause.' And iherrnpon, in deference to the said judgment, the said challenge is accordingly taken and treated by the said 8 1^ Patrick James Whelan and the said Attorney General as a peremptory challe«)ge for and on behalf of the said Patrick James Whelan, and the said Jonathan Sparks is thereupon not sworn upon the said jury.'' [The record then set out that Willia;T) Gamble, the remaining one of the five last called was sworn : that four more jurors were called, of whom one was ordered for the Crown to stand aside, and three peremptorily challenged by the prisoner : that four more were then called — namely, George Cavanagh, James Tierney, Robert McDaniel, and Benjamin Hodgins; and it proceeded :] <' And the said Patrick James Whelan challenges >he said George Cavanagh for cause, and says that the said George Cavanagh is not indifferent between our Lady the Queen and the said Patrick James Whelan. And the Honourable John Sandfield Macdonald, who prosecutes for our Lady the Queen, says, that the said George Cavanagh is indifferent between our said Lady the Queen and the said Patrick James Whelan. And hereupon triers being duly sworn to try the said issue be- tween our Lady the Queen and the said Patrick James Whelan, say that the said George Cavanagh is indifferent between our Lady the Queen and the said Patrick James Whelan. And the said George Cavanagh is hereupon elected, tried and sworn to speak the truth of and concern- ing the premises in the said indictment against the said Patrick James Whelan specified." [It then stated that Tierney was set aside for the Crown, and Robert McDaniel sworn ; and the challenge of Benja- min Hodgins was then set out thus :] " And now at this day come as well onr Sovereign Lady the Queen, by Her Attorney General of the Province of Ontario, as the said Patrick James Whelan, and the said Patrick James Whelan peremptorily challenges Benjamin Hodgins, one of the jurors empanelled on the said jury, because that the said Patrick James Whelan before his peremptory challenges were exhausted challciigt d for cause one Jonathan Sparks, one of the said 9 ral as a Patrick ereupon ible, the Ihal four 1 for the allenged -namely, niel, and jnges "he that the veen our Whelan. aid, who the said aid Lady in. And issue be- jk James ndifferent ck James hereupon J coticern- t the said le Crown, of Benja- S(»vereign e Provinoe 11, and the challenges inpanelled ick James exhausted of the said jury, and the said challenge for cause was not allowed by the said Court, nor was the said challenge for cause tried nor submitted to triers by the said Court, but the said Patrick James Whelan was required to rhalk'nge ihc said Jonathan Sparks peremptorily if he desired to challenge the said Jonathan Sparks as one of the jurors of the said jury, and that the said challenge for cause should be con- sidered as a peremptory challenge and not as a challenge for cause, and the said challenge for cause was accordingly taken and treated as a peremptory challenge, and the said Jonathan Sparks was not thereupon sworn upoU the said jury, and this the said Patrick James Whelan is ready to verify. And Her Majesty, by the Attorney General of Ontario, says, that the said Patrick James Whelan is not entitled, in law, to challenge peremptorily Benjamin Hodgins, one of the jurors empanneiled on the said jury, in this, that the said Patrick James Whelan had already exhausted his per- emptory challenge of twenty jurors, and the challenge of the juror Jonathan Sparks for favor having been disal- lowed, he subsequently i hallenged the said last mentioned juror peremptorily, before the said twenty challenges were exhausted, is not now entitled to challenge peremptorily the said juror, Benjamin Hodgins, after the said twenty jurors have been exhausted, without assigning cause there- for. And hereupon it is considered and adjudged, and or- dered by the Court here, that the said Patrick James Whelan is not entitled in law to challenge peren^piorily the said Benjamin Hodgins, and the said challenge i jdis- allowed, notwithstanding that the said Patrick James Whelan claims the right to challenge peremptorily the said Benjamin Hodgins. And hereupon the said Benjamin Hodgins is elected, tried, and sworn to speak the truth of and concerning the premises in the said indictment against the said Patrick James Whelan specified." [Another juror was then stated to have been called and sworn, making up the twelve, and the record proceeded :J ^* And the said jurors so elected, tried and sworn to ^peak 10 the truth of and concerning the premises in the said in- dictmcnt against the said Patrick James Whclan specified, to wit :" [Setting out the names of the twelve jurors sworn] ^* upon their oaths say that the said Patrick James Whelan is guilty of the felony and murder aforesaid on him charged, in the form aforesaid, as by the indictment aforesaid is above supposed against him. And upon this it is forthwith demanded of the said Patrick James Whelan if he hath or knoweth anything to say wherefore the said justice here ought not, upon the premises and verdict aforesaid, to proceed to judgment and execution against him, who noliiing further saith except as before. Whereupon, all and singular the premises beingseen, and by the said justice here fully understood, it is considered by the Court here, thai the said Patrick James Whelan be taken to the Gaol of the said County of Carleton, from whence he came, and from theiu.e to the place of execution, on Thursday the tenth day of December, in the year of our Lord one thou- sand eight hiiidrcd and sixty-eight, between the hours of nine in the morning and four in the afternoon, and there be hanged by the neck until his body be dead." /. H. Cameron, Q. C, on behalf of the plaintiff in error, craved leave to assign error, which was granted. The assignment of errors was as follows : Michaelmas Term, 32 Victoria. And*now on this twenty-third day of November, in this same term, before our said Court of Queen's Bench, cometh the said Patrick James Whelan into the Court here, under the custody of the Sherifi' of the County of Carleton, by virtue of a writ of Habeas Coiyus issued in that behalf, and immediately saith, that in the record and proceas afore- said, and also in giving judgment aforesaid, there is man- ifest error, in this : — That it is not alleged nor slated in the said record thai the said Chief Justice, William Buell Richards, held the said Session of Oyer and Terminer, and General Gaol De- u re 19 man- livery, by virtue of any commission to him, or to him and others, for that purpusp granted, or without any commission by the order, command, or direction of the Governor General of the Dominion of Canada, or of ihe Lieutenant Governor of the Province of Ontario —wherefore ill that there is manifest error: That no jury process is awarded upon the said record, nor could any such process be legally awarded by the said VVilliatn Buell Richards as such Chief Justice, inasmuch as, for the reason firstly above iijisigned, he had no juris- diction or aulhorily to order or award such process, as a justice of Oyer and Terminer and General Gaol Delivery of the said County of Carleton — wherefore in that there is manifest error : That it appears by the said record I hat tlie said Patrick James Wlielan challenged Jonathan Sparks, one of the jurors iiiipannelled and returned upon ihe snid jury, lor ciiiise .of fuvor, as lie h;ul a legal right to do, and that the said chiilleni^e was, contrary to law, disallowed by the said Court, on the ground that the said Patrick James Whelan lijul not. ai the lime lie made such challenge for cause, extiausted the peremptory challenges to which he was by law eiiiiileil, and thai until lie had exhausted his peremp- tory ( hallenges he could not challenge any juror on the said jury for cause, but only peremptorily — wherefore in that there is manifest error: That it appears by the said record that the said Patrick James Whelan challenged Benjamin Hodgins, one of the said jurors, peremptorily, as he had a legal right to do, and that the said challcnj^e was, contrary to law, disallowed by the Court, (in the ground thatthe said Patrick James Whelan had already challenged the said Jonathan Sparks, one of the said jnrors, for cause ; and that at the time the said Patrick James Wlielan ehallenged the said Benjamin Hodgins peremptorily, the said Patrick James Whelan had exhausted liis peremptory challenges, as the said Patrick James Whelan luul challenged twenty jurors per- emf)t 30th of November then next. The foilo\vin<{ ule was drawn up : — In the Queen's Bench. Monday, >he iweniy-ihird day of November, in the 32nd year of the reign of Queen Victoria. PiUrick James Whelan, ihe piaintifl' in error, being brought here into Court in custody by the Sheriff of the County of (/arleton, by virtue of a writ of Habeas Corpus, it is onlered that the said writ and the relurn made ihercfo be filed. Anti liie said plainiiflin error producing a writ of error, and praying oyer of the record and judgmenr against him upon an indictment of murder, and the same being read to him, the said plaintiff in error now iiere in Court assigns error. It is further ordered that the assign- ment of errors be filed ; and the said plaintifl'in error is now here in Court committed to the custody of the Sherifi'of the County of York, charged with the matters in the sad relurn mentioned, which matters are as fol- lows, to wit : — that the said Patrick J. Whelan was committed to and detained in the custody of the Sherifllof the said County of Carleton by writ of a certain warrant or order of Court in the words following, that is to say: [Setting out a copy of the order mentioned in the return to the Habeas Corpus, ante, p. 2, note (a).] To be by the said Sheriff kept in safe custody until he shall be from thence discharged by due course of law. And it is further ordered that the said Sheriff or his deputy do bring the said plaintiff in error before this Court, on Monday, the nineteenth day of November, inslani. On motion of J. Hil.I>YARD C'aMKRON, Q. C. By the Court, (Signed) Robert G. Dalton. m- 1^ ii On the 30th November, 1868, the prisoner was brought into Court. Mr. Justice Morrison having been compelled to go to Ottawa, with the Chief Justice of the Common Pleas and Mr. Justice John Wilson, to assist in swearing in Sir John Young as Governor General of Canada, the argument was by consent postponed until Friday then next, the 4th of December, and the following rule was drawn up. In the Queen's Bench. . , Michaelmas Term, 32 Victoria. Patrick James Whelan, Plaintiff in Error ; V. The Queen, Dtfendant in Error. The plaintiff in error, Pat- rick James Whelan, being >- brought here into Court in custody of the Sheriff of the County of York, by virtue of a rule of this Court, is remanded to the same custody charged with the matters in the said rule mentioned. And it is further ordered that the said Sherifl' do bring the said Patrick James Whelan before ibis Court on Friday next, the fourth day of December next, at noon. And at the re- quest of the said Patrick James Whelan, and his counsel, the argument of this case upon the concilium is postponed until that day. On motion of Mr. Robinson, By the Oouri, (Signed) Robert Gi Dalton. On the 4lh December the case was argued. f J. II. Cameron^ Q. C, for the plaintiff in error. C. JiobinsoHj Q. C, and Anderson^ for the Crown. The plaintiff was remanded until Monday, the 2l8t December, and on tiioiion f)f O'RfUlif, Q. C, for the Crown, the following rule was drawn up: — ror. /fown. • ^y» the 2l8t c. , for the ■**• /'liiin/ijfiii h'lrcr, TiiK Queen, l>eftniiiin', in Krror. Iw THE Qobbn's Bench. •; v Micliju'ltnas 'IVrrn, 32 Victoria. Hathick James Wiiei.an, ) 'i'|,t. plaimiffiii rrror, Patrick Jnnies Wholaii, l)eing brought ^hi*rn into ('onrt in custody «'' I lie Shi^rirt' of the County (»f York, by virtue of a rule of this Court, is r<;ninn(h'(l to the same custody, charged will) the inalters in the said rule mentioned. And it Is further ordered that ih«' said Sheriff of the County of York do bring the said P"'riek James Whelau before this Court on Monday the twenty-first day of December, 1868. On the motion of ' iVlr. O'IIeilly, Counsel for the Queen. (Signed) Robert G, Dai.ton. On the 21st December the prisoner was again brought into Court, and, the Court differing in opinion, the follow- ing judgments were delivered : — Adam Wilson, J. — This case, though founded on the charge of murder, and for the murder of a distinguished person in this country, under circumstances which have given to it great notoriety, is, nevertheless, of no further importance at present than as it affects or is affected by the regularity of criminal proceedings, and the practice and procedure of trial by jury. Considered in the latter aspect, no subject can be of greater consequence in the administration of justice, and more especially in that part of it by which the life or liberty of the accused is to be determined, than the fair and impartial selection, empanelling, deliberation, and finding, of jurors. Trial by jury has long been the established forum for the settlement of all controverted rights in the Courts of Common Law. i ;j«? 16 In criminal and State prosecutions no one has ever questioned its especial fitness belli for the prosecutor and the prosecuted ; and in tinnes when the power of the Crown and the terror of the Courts were nnost abused in enforcing jurors, and repenlrd ttltempisi wt-re made to curtail their power and lo destroy their independence, no one, even then, openly denied thb sulKciency and excellency of the system. The great object in every trial is to have it fairly con- ducted and decided by impartial persons, and for this pur- pose, in felonies, the prisoner i!< entitled to challenge the full number of twenty jurors without cause or question, and any greater number beyond the twenty on shewing sufficient cause lor their rejection. By this process of winnowing, it is supposed there will be secured to him as fairly constituted a tribunal as human justice and enlightenment can provide — that is, in the ex- pressive language of ihe law, "twelve good and lawful men" to whom the prisoner may commit, for good or for ill, his life or libert}'. In is alleged on this record that the prisoner has not been allowed the full exercise of his legal right of challenge to the number of twenty without cause assigned, and that Benjamin Hodgins, who would, as the prisoner alleges, have been the twentieth juror sochallengsd, was put upon the jury against his consent, and joined in the verdict which was given against him. The principal question then in this case is whether, from the facts on the record, this allegation is true or untrue. And this again depends upon the questions, whether the judgment of the Court was correct or incorrect by which the prisoner was prevented fioiii challenging Jonathan Sparks for cause before he had completed his full number of peremptory challenges, — and whether the prisoner, by subsequently challenging tliis same juror without cause, has or has not waived or lost his rigiii of exception to the decision on the previous challenge for cause. Before referring to the question of challenge, it will be better to dispose of the exceplion8|which apply to the want oi a coinmissiuii to hold the Court at which ll>c Ronviclioti took place, and to the alleged nrant of an award of jury process, and to the jurisdiction of the Judge to award it by reason of his having acled without a commission. The statement of Hawkini^, whicii is contained in nntn- berless other books and decisions, is, no doubt, well settled law that ** the King being the supreme magistrate ol the kingdom, and entrusted with the whole executive power of the law, no Court whatever can have any such juris- diction, unless it some way «)r other derive it (rom the Crown." — Hawk. P. C, Book 2, chap. 1, sec. I ; and, sec. 9, that " all Judges must derive their authority from the Crown, by some commission warranted by law.'' And from this it follows, as all the precedents shew, that the commission should be specially set out underi which the Court was held when the record is made up; and that unlei*s it is so set out the proceedings of the Court will be erroneous, because they would appear to be with- out jurisdiction. Whether it was necessary to state on the record that the Court was held by virtue of a commission, or, if there were no commission, that it was so held without a com- mission by the order or direction of the Governor, must depend upon the effect and construction of our own Statutes. The law now in force under which the Courts of Assize and Ni$i Prius, Oyer and Terminer, and Gaol Delivery are held, and under which the Court in question was held is contained in the following provisions. The Consolidated Statute, U. C, chap. II, sec. I, as amended by the 29-30 Vic. chap 40, sec. 3, enacts that these Courts shall be held between stated seasons in the year, "and all such Courts shall be held, with or without commission, as to the Governor mcy j-eem best, and on such days as the Chief Justices and Judges of the Superior Courts of Common Law shall respectively name »> If ^f V'!' I ii i! • % Sec. 2. Enacts that " In case commissions be issaed, such commissions shall always contain the names of the Chief Justices an^. Judges aforesaid, one of whom, if any of them be present, shall preside in the said Courts respec- tively, and such commissions may also contain the names of any of the Judges of the County Courts and any of Her Majesty's Counsel learned in the law of the Upper Canada Bar, one of whom shall preside in the absence of the Chief Justices, and of all the other Judges of the Superior Courts. Sec. 3. " If no such commission be issued, the said Courts shall be presided over by one of the Chief Justices or Judges of the said Superior Courts." Then provision is made, in case of the absence ol the Superior Judges, for one of Ihem appointing a County Court Judge or Queen's Counsel to preside. Sec. 4 Enacts, that "Each of the said Chief Justices, &c., " presiding at any Court of Assize and Nisi Prius, or of Oyer and Terminer, and General Gaol Delivery, shall possess, exercise and enjoy all and every the like powers and authorities heretofore set forth and granted in com- missions issued for holding all or any of the said Courts.'' Sec. 5 dispenses with Associate Justices in any com- mission of Oyer and Terminer and General Goal Delivery, or at any such Court ; and sec. 6 reserves the power to the Governor of issuing Special Commissions when he deems it expedient. The history of Commissions in this Province seems to be as follows : By the 32 Geo. III. ch. 1, sec. 3, it was declared that after the passing of that Act, " in all matters of contro- versy relative to property and civil rights, resort shall be had to the laws of England as the rule for the decision of the same." By the 34 Geo. III. ch. 2, sees. 17, 19, the Governor was empowered to is3ue Commissions of Assize and Nisi Prius for the trying of all issues joined in the said Court, (i. e. the Court of King's Bench, established by that Act 19 ince seems lo an a court of original jurisdiction with the most plenary powers), ill any suit or action arising in uny of the (lis- Iricis of the Province, The 2 Geo. IV. ch. I, which repealed the last staloie, re-eiiHcied it in nnhslance. By llie 7 VVm. IV, ch. I, sec. 8, ihi» enactment was repealed, and provision wii- made n» before, for Commis- sions of A.>v Commission from die Crown al the same time and by the saMie Jndges who look the Courts of Assize and Nisi Prills, and dial from 1837 unlil die 18 Vie. ch. 92, these Comtnissioiis eonliiined lo be issued until they were done away with by the last mentioned Act. The history of the dispensation of Commiiisions is as follows : Hy the 18 Vio. ch. 92, sec. 43, it was enacted that it should not he necessary lo issue any Commissions of As- size, &»;., but dial Ihe said Courts should be held at such limes, &(r.,aiid llie .Judges should preside over them with the saint! aniliorilies, &c , without the issuing of a Com- mission h»r holding ihe same, as iliey had been accus- toine 327-8, — by the Judge, acting as a Judge of Gaol Delivery. The reason is, because there has been a previous precept issued for the return of jurors to that Court ; but that is the very course prescribed by our Slatnte lo be taken, not only by the Judge of Gaol Delivery, but by the Judge of Oyer and Terminer as well. The jurors then being present, 'he Judge from among them directs a jury to come or be em- panelled for the trial of the particular issue before him. The Consol. Slat. U. C. cli. 31, sec. 59, provides that, " The Judges, Justices, and others, to whom the holding of any Sittings or Sessions of Assize and Nisi Prius, Oyer and Terminer, Gaol Delivery, Sessions of the Peace, or County Court, by law belongs, or some one or more of such Judges, Justices, or others, shall for that purpose issue precepts to ihe Sherift', or other proper officer or min- isier, for ihe return of a competent nunjber of Grand Jurors, for oases criminal lor such sittings or sessions, and of a competent number of Petit Jurors for the trial of such issues or other matters of fact, in cases criminal and civil, as it may be competent to such petit juries to try at such sittings or sessions according to law." And by sec. 60, these precepts are to be issued " as soon as conveniently may be after the Commission or other day is known." The persons to whom Ihe holding of the Sittings of ' Assize and Nisi Prius, Oyer and Terminer, and General Gaol Delivery, and Sessions of the Peace by law belongs, are the Judges of the Superior Courts of Common Law. The Chief Justice is and was one of them. He had the power lo issue, and it must therefore be assumed he exer- cised that power and issued, his precept either alone or jointly with his fellows, or that they, or some or one of them did so, for the return of a competent number of jurors for the Court in question. 24 These jurors when brought ihere were for the trial of such issues and other matters of fad in cases criminal and civil as it was comprlcnt for iheni by law to try, and the award on the roll in qnile eonsis^lenl with the provision of the Statute, that the Judge of Oyer and Terminer directed a jury to come froii. among those who had been summoned for the purpose. But it is said this could only have been done by a Judge acting as a Judge of Gaol Delivery ^ and not as a Judge of Oyer and Terminer, and many authorities were cited on this point. And it was conlended, in orJer to give force to this. view, that the record shews the Chief Justice was acting only as a Judge of Oyer and Terminer. The record shows that the Qneen had sent to the Jus- tices of Oyer and Terminer for the county of Carlelon, assigned to deliver the Gaol of the county and also to hear and dt virmine, &c., the writ of error which is set out. The writ tlien follows. The return to the writ shows that at a General Session of Oyer and Terminer and General Gaol Delivery, held before the Chief Justice duly assigned and under and by virtue of the Statute in that behalf duly authorized and empowered to enquire, hear and determine, &c., — setting out the Oyer and Terminer authority only, and not an authority for Gaol Delivery —it was presented, &c. The record then shows throughout that proceedings were had at the same session of Oyer and Terminer and General Gaol Delivery. .■-. ;;, ^ . -r I am not satisfied that a full authority does not appear on the record, for Justices of Oyer and Terminer as such may be empowered to deliver the gaol, as well as to hear and determine, and if their authority to hoar and deter- mine appears, the other powers conferred upon them to deliver the gaol, being made incident to and dependent on their functions as Justices ->'' Oyer und Terminer, may be properly exercised by them in the character^of Justices of Oyer and Terminer. Nor am I satisfied that there is the distinction between 86 Justices of Oyer and Terminer and Justices of Gaol De- livery, as to their right and power lo summon or to empanel a jury lo appear inslantcr out of the general panel returned by the Sherift. But, however these two points may be, I am of opinion our Statutes make no difforence between these two Courts, and thai the oiii" may as froely exercise all the powers and jurisdiction as the other can. See par- ticularly sections 63, 69, 70 and 72, of xhn Jury Act, Consol. Stat. U. C. ch. 31. The Chief Justice liad therefore ample power, as a Judge of Oyer and Terminer, to call a Jury instanler before him, from the general panel summoned for the occa- sion, as a Judge of Assize, Nisi Prius, or Gaol Delivery had. The second ground of error fails also, in my opinion. The remaining grounds of error reluio to the challenge of the jurors. • v ; j The third error assigned is, that the prisoner challenged Sparks for cause, which challenge was disallowed by the Court on the ground thai the prisoner could Hot challenge for cause until he liad first exhausted his peremptory challenges. *4 /* ■■■'■' ' If this were all that was stated there would not have been any imj)roper ruling, for nothing more would appear than that the Judge decided that the peremptory challenge should first be taken and \\\^n the challenges for cause ; and this might have been a mere rule of prac- tice for the occasion, to avoid confusion, which the Judg*, I conceive, had full authority to make and enforce. Suppose there had been two prisoners for trial. The Judge, I think, luiglil have said lo one of them, "You A. B. must ch;illenge first, and yo i must make your peremptory challenges before you challenge for cause," and then I nvv alloAed the other prisoner his challenges in the like or.ltr ; and this could not have leen ground of error Brandreth's case, (32 Slate Trials ;7I), is I think lothis 4 26 efiect. It relates to the mere order, convenience, and arrangement of making challenges, and it does not profess lo lay down ihc rule ihal thor« can be no peremptory chal- lenges unless made before the challenging for cause. In C%iMi/'a Criminal Law, Vol. I. 540, it is said, " After challenging thirty-five jurors in treason, and twenty in felony, peremptorily, the defendant may, for cause shinvn, challenge as many jurors ks may be called, so as to exhaust one or more panels, if his causes of objection be well founded." Bui :*iis docs not mean that the challen- ges for cause cannot be made till after the peremptory challenges have been exhausted, lor it iie and pronounced impartial, he may after- wards bi; challenged peremptorily, for otherwise the very challenge might create in his mind a prejudice against the individual who made the objection." In Roscoe's Criminal Evidence, 9th ed., 206, and Arch. Crim. Plg<, 16th ed., 149, it is stated abo in similar terms as in page 640 of Ghiltyh Criminal Law. But in none or these is it nor can il be meant that the peremptory challenges, as a rule of law, must be first taken. *; ;.»:;,,, None of these writers intended to contradict themselves, or the authority of Co. Lit. 158 a ; Hawk. P. C. Book ii. ch. 43. sec. 10; Com. Dig. "Challenge" C I, or- the authority of the numerous cases in which the rule as laid down in these older authors has been constantly followed. The only two cases 1 have seen directly in favour of the course which was followed here nre The Common- wealth V. Rogers (7 Metcalf 500) and The Commonwealth v. Webster (5 Cnshing 295). There must be z\ order of proceeding observed to insure accuracy and despatch, and if all thai was done here had been done with that view no objection could have been made to il. ,>•■ ,, In Swan and Jeffery^s case, Fosler^s C. L. 106, it is said that one of the prisoners being indiqted for petit treason 2T enience, and 59 not profesa Miiplory chal- ir cause. said, " Afler ul twenty in cause Hh(!wn, led, so am to objection be I the challen- le peremptory rectly againi«i man be clial- he may after- wise the very iee against the 106, and Arch. similar terms iieanl ihni «he must be first ct themselves, C. Book ii. C. I, or- the rule as laid nlly followed, in favour of "Ac Common- 'ommonweallh observed to ill thai was no objection 06, it is said petit treason and the othc ^or murder, the Court decided that if the prisoners did not rhailenge they might be tried together, but if they did challenge they must be tried separately, for the number of their challenges was different. This, I apprehend, was said merely to guard against inconvenience. Sorfte of the instances of taking proceedings in dut order may be sta'ed as follows : — A prisoner must plead in abatement before he pleads in bar. He cannot challenge at all till a full jury appears. He must challenge to the array before he challenges the polls. He must abide by his peremptory challenge when he has made it, and he cannot withdraw it and challenge another jnror instead — Rex v. Parry (7 C. & P, 838). He must shew ail his causes of objection before the Crown is called upon to shew cause — Chitty Cr. L., Vol. I, p. 534 ; Arch Cr. Pig., t6th Ed., p. 146. Whichever party begins to challeng^e (this is in civil actions, but it would equally apply in criminal cases, as between diflferent prisoners) must finish all his challenges before the other begins — Co. Lit. 158 rt; Ch.Arch. Pr., Ilthed,, 436. And all challenges of the same kind and degree must be suggested against the juror at the same time — Co. Lit. 158a; Chitty Cr. L. Vol. I., p. 545. As this assignment of error does not indicate the real objection, I must refer to the other part of the record to 8ee what it is. The record states that the prisoner challenged Jonathan Sparks for favor: that the Crown alleged the prisoner I was not then entitled to challenge Sparks for favour, as he had not exhausted his twenty peremptory challenges, and [that the prisoner demurred to this answer as not suffl- |cient in law; but there is no joinder in demurer. It may not have been ne.*essary (4 Burr. 2085) ; perhaps it was ithe Attorney General who should have demurred, as all the fads appeared ol record on which tlu' demurrer would have been founded. If his answer can be taken as a de- [murrer, there may then be^a complete, though informal^ [joinder. 28 The judgment of the Court was " I over'tale the demur* rer. I decide that the prisoner's challenge is good as u peremptory challenge, and not as a challenge for cause ; and if his peremptory challenges of twenty, including this, are exhausted, I rule this is to be considered as a peremptory challenge, and not for cause." As a strict proposition of law, this decision was not, I think, correct, for the prisoner had the right to challenge to the favor before he had made all or any of his per- emptory challenges. He had the right to deal with them when and in what manner he pleased, subject only to those necessary and convenient rules for the conduct of busi- ness, which the Court might have seen fit to adopt. >, If a lule had been made that all pcreiT}ptory challenges should be first taken, then on Sparks being first called he would not have been challenged peremptorily, but would have gone into the jury box, not however to be sworn, but to abide the result of all the challenges. When the peremptory challenges were through, the prisoner would proceed with his challenges for cause, and then he would except to Sparks on this ground. In this way regularity would have been preserved, and the prisoner would have had all hid legal challenges ; and so far the Chief Justice had the power to regulate the proceedings; but he had not the right, in any way, to declare that Sparks, who was challenged for cause, should not be so challenged without any trial, or enquiry, and that he should be computed as one of the twenty peremptory challenges, for this was to take the right of challenge from the prisoner and transfer it to the Court, and to deprive him of a strictly legal right without his leave. The pri«»oner was thus made to throw away his chal Icnge on Sparks, whom he had the right to exclude without the loss of his peremptory challenge, and to accept of Hodgins, whom he had the right to reject without cause. If the case rested here I should be bound to say there was error on this record ; for if this could be done as to one person il might equally be done as to twenty, and the prisoner would effectually be deprived of the whole of his » 1 was not, I to challenge r of his per- il with them [only to those Juct of busi- adopt. * ry challenges rst called he y, but would to be sworn, I. When the isoner would en he would ay regularity would have Chief Justice ut he had not is, who was nged without computed as this was to r and transfer y legal right peremptory challenges ; and such a propo8ition[cannot cer- tainly be niainlaiiK'tl. But the roll shews iliai " ilu'it'U|)()ii, in deference to the said judgment, llie siiid «-liijlleiige is accordingly taken and treali'd by ihv. said l':iiriel< James VVhelan and the said Attorney General :is ii peremptory challenge for and on behalf of the snid Patrick James VVhelan, and the said Jonathan Sparks is (herenponiioi sworn upon the said jury." And lliequeslioii is, wli(,>llier— as the prisonerand the Attorney General liave IjoiIi taken and treated this juror, though in deference to the ju(ii,'nieiit of the Court, as per- emptorily challenged, by reason of which he was not sworn on the jury — the pris.iiier c;in afterwards be heard to say that the juror shall not beeounled as one of the twenty, but that lie has still the ri,i,'ht \n cliallenge the full com- plement of twenty without including Sparks as one of them. When the prisoner was directed to challenge Sparks peremploriiv a wrong was done to him. He had the power to object to this, in which case, if Sparks went upon the jury, there would have been a mistrial, and the proceeding would have amounted to error. Bnt suppose the Crown had ordered the juror to stand by, upon the prisoner refusing to set him aside perempto- rily, or suppose the prisoner had challenged the juror for crime, which disqualified liini, or on the ground of non- qualification for want of properly, and such challenge was improperly over-ruled, and he thereupon challenged the juror for favor, which was allowed, — could a wrong judg- ment on any ol thes^e points, followed by no result preju- dicial to the prisoner, have been ground of error? I think not. . w# ; . . \,. r 11', then, the mere mistaken judgment be not the cause t)l complaint, what is it the prisoner complains of? I: is that, after challenging iSparks peremptorily, he was i.ot allowed to challenge peremptorily the full num- ber ot twenty, excluding Sparks from the number, by reason of which Hodgins was put upon the jury, whom he says he had the right to exclude. M Should Sparks, then, on all the circumstances detailed in the record, have lu'cn computed ns one of the twenty, or should he not ? If he should ilicn* is no error, if he should not there is error. The ground on which it is said Sparks should be con- sidered as one of the twenty is, that the prisoner must be taken to have chall;nlai' iiotifc. (fc might ooiisi'nt to second- ury evidiMirn iHting giveri, I am disponed lo think, although no notice to produce had hci'ii served. lie might consent to withdraw a plea in ai)alemenl. His consent was I're- <|uenlly astked and refpiired wln-n adjoiirnmeniM wt-re made during llie trial, or ilic jury wfic allowetl to sepa- rate heliirc vcriliei. The Queen v. (VC'onnell (7 Irif>li L. Ilep. 212. 288, 337. 338) shews how strongly the diflereni Judges relied on 'he consent ami compact of the defen- dant ; and many other eases me lo the same effect. So hit* consent wjis fret|neii(ly asked when ilie jury win; dis- cliarged l)ecanse I hey eonid nol agree, or from some other cause; and he may withdraw his plea of not guilty and plead guilty. The following cases relate to i^ome of these points : Edwards' case (iinss. & Ry. 224) ; Chilty Crim. L. vol i. pp. 629, 630, 436) Rex v. Stokes (6 C. & P. 151). Ill Regina v. Miudlemore (6 Mod. 212), it was con- sented to by the defendanls. who were indicted for a riot, that ihe prosecutor should pitch upon three or four of them, and proceed only against \liem, the rest entering into a rule, if they were found guilty, to jilead guilty loo, and this was said to be done frequently, lo prevent Ihe charges of palling lliem all to plead. This course woulil not perhaps be taken now, though it might he done on an indictment for a nuisance lo a high- way, if the facts shewed it to be a proceeding suhstan- tially for ihe trial of a civil right. 'I'lie prisoner might consenl lo wiihdraw or release his challenge allogt'ilier— >ir riiomas Raym. 47.'} ; Re v Savage (I Moo. C. (j. 61); O'Connor's case (26 State Trials, 1230-31); «»r to ae(;epl the juior on his challenge being overruled ; or if, alter his challenge was disallowed, the Crown then challenged hint, and flic prisoner objected to it unless the Crown shewed cause in the tirst instance, W i'l u IS'] i:j KM or he ooiitended the cnuno Nhnwn by ihc Crown wnn iiiHutFicii'iit, llli^< ill my opinion would i)o a coiiseiitiiig lo tint jnror un n proper jiiryriiiiii lo be iidinittrd to try tlir caiisf, or n waiver ol all objection lo him ; niid iho pri- priKoiicr could not nftor llwit revive lii» own original ex- ception ? So hu might coniiKMit lliiit the jury !)honld UiUv. with them plans or writings, not under .seal, wliieli were given in evidence, ('hitty Cr. Law, vol I. p. 633-4.. So he may lose an advantage by not taking il in due timr. Regina v. Mlis {Car. & Marsh. 564) ; The King v. jMarah (6 A. & E. 236). It is said, '*ir one parly apprehend the array will be challenged on the ground o[ relationship between himself and the Sherifl", he may have the process directed to the Coroner, with the consent of the other parly ; and if the other do not consent, but insists there is no cause for the change of process, he cannot afterwards take advantage of the objection which he has himself alleged to be futile." — Chilly Crim. Law, vol. I. p. 639, citing Bui. N. P. 306; 5 liep. 36 b, and other cases. The prisoner had no vested interest in any particular juror — per Lord Campbell, C. J., in Mansellv. The Que&n^ (8 E. &. B. 7!'). The rii;ht which the prisoner had was not to select but to reject jurors. — United Sta'ea v. Merchant (4 Mason 160). 1 am of opinion, on the whole, then, that this was a matter which the prisor.r could consent to give np, waive, jir release. But the material nnd next in(|uiry is, whether the pri- soner did waive his riglii of complaint — the overruling of his chiillenge of Sparks for f:ivor — by taking and treat- ing Sparks as a juror chalienued peremptorily, in defer- ence to iIh' Jiidgmenl ol the Co'iit. I may liere say 1 can attach no precise meaning to the eixpression, *' in deference lo the judgment of the Court." [ cannot say thai it implies a declining of the judgment, hni n sn'iinissioM to it, more than it do's an acceptance of il. I'iie Nisi Prius colloiiuial term, indefinite though it 88 be, may have some belter understood iiignificatioii than the words can |)osi«ibly have whi'ii imported into an Krror roll : M'c mikin^on v. Whaltnf (5 M. & G. 690). What ihu prisoner dio, Sp:irks might have been on ihu jury. I3y exeliidiii^ him the priconer gained an advan- tage Io liim!«eir. The Court dciermined lu" was* iioi to h«' token off for cau-^e, and the priHoiier asserts he was not off peremptorily. Yet he inu't have been discharged in one of these ways. It is certain he was not removed for f.ivor ; and it is al- leged on ilw rec!ord he was reir oved perefuptorily by the prisoner liimself No dire(!l inrormalion is lo be had from the English Re- ports on 'his question. The antliorities applicable to it are lliose which were (tiled in ihe Courts of the United States. The casr o( Stewart v. The Stafe (8 English's Reports, hfir.g the ihirieenih volume of Arkansa< Reports, 720, de- cided in July, 1853,) is very mucli in point. There chal- lenges for favor had been disallowetl, and the prisoner put to challenge peremptorily, wliich he did. On Error brought the Court said, p. 74'i : "If tlie party chooses to chal- lenge the juror peremptorily wlien he is not obliged to do so. 111', by the exercise of his own will or caprice, has underiaken to correct the supposed error of the Court, and waived Ihe benefit of the previous exception. Because, if ihe decision was right, the parly excepting could not have been injured by ii, if it was wrong he had the benefit of his exception; but if al the time in doubt whether it be right or wrong, and he prefers to lake the chances for an acquiiial, a:id so elects to rid himself of the obnoxi- ous juror by a peremptory challenge, there is no reason for holding ihai he can avail himself on error of iIjc ex- ception thus abandoned." And after referring to the lan- guage of ihe Court in 4 Denio, 9, below quoted, the con- .5 34 elusion isi, " Such, v/e think, is tlio law applicabk* lo llif. case now under consideration." In Freeman v. The People (4 Dcnio, 61), in the Supreme Court of the Slate of New York, decided in 184"?, on a precii^ely similar question, the disallowance of challenges for favor and the jurors being challenged then peremp- torily, the Court said: "It is now urged that these exceptions are siill open to examination and review in this Conn. I think otherwise. The prisoner had the riylil aii'i the power to use his [jeremptory challenges as he pleased, and the Court cannot judicially know for what cause or with what design he resorted to them. He was free to use or not to use them, as he thought proper; but having resorted to them they must be followed out to all their legitimate; consequences. Had he omitted to make peremptory challenges, his exceptions growing out of the various challenges for cause would have been regularly 'here for revision ; but he chose by his own voluntary act to exclude these jurors, and thus virtually, and, as 1 think, effectually, blotted out all such errors, if any, as had previously occurred in regard to them. But the case of the juror Beach stands on other grounds. He was first challenged for principal cause, which, after evi- dence had been given, was overruled by the Court. He was then challenged for favor, but the triers found him to be indifferent. No peremptory challenge was made, and he served as one of the jury. As to this juror, every exception taken by the prisoner's counsel is now here for examination and review." See also The People v. Bodine{\ Denio, 281). In some cases the disallowance of a challenge for cause was held to be waived by a peremptory chai'enge of the same juror, if the prisoner had not exhausted all his peremptory challenges when a full jury was formed, as in McGowan v. The Slate (9 Yergei- 184, Tennessee, de- cided in 1836), Carroll v. The State (3 Humphrey 315, Tennessee, decided in 1842). In other cases the fact of the prisoner not having ex- hausted all hia peremptory challenges has been held fo make no difference, and the exception has still been open to him on error — Lithgow v. The Commonwealth {2 Vir- ginia cases, 297-307, decided in 1822), Sprouce v. The Commonwealth {Ibid. 376), Dowdy v. 'I he Commonwealth (9 Grattan, 732-7, Virginia, 1852). The reasoning in Lithgow''s case was put very strongly in support of the prisoner's contention. The Court said, p. 307, "If it was an error, under the circumstances stated, to overrule the challenge for cause, this Court is of opinion that the subsequent exclusion of Irvine does not cure it, although the record shews that the prisoner had not ex- hausted his peremptory challenges, even when a jury was finally obtained- To procure the reversal of a judgment of conviction, for an error in point of law, it is not re- quired that a prisoner should shew that he was actually injured by it. It will be enough if the Court can be satis- fied that he might have been injured. But this Court do perceive at least, by connecting the first and second bills of exception, how this error, if it be one, might have ope- rated to the prejudice of the accused. He might thereby have been prevented from exercising to its utmost exten- his right of peremptory challenge, as a vain and useless thing. He might have thought it belter after that decis- ion to take the first jurors that offered, rather than to excite suspicion against himself by challenging as many as the law allowed, when he had reason to believe that after all persons in the same situation with Irvine wbuld compose his triers; and he might have been thereby deterred, and probably was deterred, from making similar objections to others of the venire. If, then, upon the case presented by the record, this Court shall decide that the objection to Irvine ought to have been sustained, the judgment against the prisoner must be reversed, and a new trial awarded." It was argued in Vicars v. Langham (Hob. 235) that after praying a tales the party had waived his right of challenge to the array; but it was answered tlieft; was no waiver, as thc.e could be no challenge to the array till a 36 full jury appeared, and a tales was necessary to form a full jury. If the parly challenge proper defectum, as for waul of properly qualification, and that be overruled, he may chal- lenge for favor— 21 Vin. Abr. 274, pi. 3, 4. There is very great force in both views of considering the question ; for the Crown it may be said, the prisoner was not bound to challenge peicmptorily, and by doing so he did j^ciin some benefit, for he excluded the juror from the panel : and instead of relying on his exception, he chose lo go to trial and run the chance of an acquittal. By chal- lenging peremptorily he may, too, have put the Crown Counsel off his guard, for if, instead of challenging per- emptorily, he had refused to exercise this right because he did not intend to accept the judgment of the Court, the Crown Counsel might have put the juror by to have avoided the difficulty. And this point is one which is suggested on the record ; for after the disallowance of the challenge for cause, and after the ruling that the challenge of Sparks was to be considered as a peremptory challenge, it is said *' and thereupon, in.deference to the said judgment, the said challenge is accordingly taken and treated by the prisoner and the Attorney General as a peremptory chal- lenge for and on behalf of the prisoner, and the said Sparks is thereupon not swoin on the said jury." For the prisoner it may be said that a wrong was done to the prisoner by the judgment pronounced, and which was not one of mere convenience or pracficf as to proceeding a particular manner and ia a certain special order, hut it was a decision that the challenge ior favor, which might have been admitted as sufficient or which if tried might have been found to have been suffi- cient, should not be allowed at all, but should be taken and counted only as a peremptory challenge, by reason of which he was made to forfeit one of his peremptory chal- lenges. The overrulinj of this exception may have pre- vented or deterred the prisoner from challenging for cause the other four jurors who were still required to complete the panel after Sparks was called. 37 It must be taken that the prisoner did not accept of thifl judgment, but lliat he submitted to it as a matter he could iu> longer diapnie at that time. If this course can be pursued, and is to be maintained, the prisoner may be deprived of every one of his peremp- tory challenges, as well as of one of then). That the extravagance and danger of such a proceeding shew it cannot be law ; and as the question is not one of degree but of principle, the rule is as applicable to the de- privation of the prisoner of one ol his challenges as of all iwenty ot them. That the prisoner cannot be concluded from excepting to the disallowance of his challenges, even all hough the Crown may have lost the opportunity of set- ling the juror aside, in case the prisoner had refused to challeng. injury in contemplation of law, the extent or effect of which is not enquirable into. I do not doubt that the decision that Sparks should be peremptorily challenged was a wrong done to the prisoner, but whether it would be productive of injury to him or not would depend on circumstances. I do not think it is so necessarily in law . It would not have been an injury to him if he declined to challenge Sparks peremptorily, and the Crown thereupon set the juror aside, for the juror would have been excluded, which was the principal object the prisoner had, and excluded without the prisoner losing any challenge or right. And it would not have been an injury to him, if after the i:. 88 decision he voluntarily, and not out of mere deference \o the Court, — whatever that may mean, — accepted the juror or afsenled to challonge him peremptorily. And I think it would not have been an injury to him, if, on his refusing lo challenge peremptorily, and on the challenge of the Crown, he opposed the Crown challenge Nor do I think it would have been an injury to him if he had still had peremptory challenges remaining to him after having been deprived of the challenge as to Sparks. I do not think the mere erroneous decision was incu- rable, or thai the effect of it could not have been accepted, waived, o. isleased. If it were attended with no result, as the loss of a chal- lenge or seme sneli damage, I do not think it would remain open for ever to the party as a ground of error. If, for instance, the challenge had been for want of pro- perty qualification, and the challenge had been wrongly disallowed, and the prisoner then challenged the juror for cause, which was allowed, it cannot be conceived that after a trial and conviction the whole proceeding could have been reversed for the erroneous decision as to the qualification, attended, as it would have been, with no result, wrong, or injury. I do not think it is lo be presuiued that the prisoner was deterred from making other challenges for cause in conse- quence of this decision, or thai he had such other chal- lenges to make, there bein^g no such evidence on the record of such a fact. If he had other challenges lo the favour to make, he should have mad(; them, and have had them and their disallowance entered of record, and then the Court would have seen what wrong he had suflTered ; but such matters should not be left to conjecture or suggestion. Suppose, for instance, there had been two indictments against the prisoner, and in one of them such a decision as the present one had been made, could it have been alleged as error in the second case that the prisoner was deterred from making his lawful challenges by reason of the wrong- ful ruling in the first case, and must it be assumed that 89 he had such challenge lo make in the second case? I ihink not. The prisoner would be obliged, notwithstanding ihe special ruling iii the first case, to renew his excopiions in the second case, and so 1 tliinit Whelan sshould have done with respect to each particular juror in this case, in order to establish a cause of error or ground ol complaint with respect to those jurors who were called after Sparks, — Mansell v. The Queen (S E. & B 57, 58, 59, UO, (II, 62). I am not inclined to adopt the reasoning in Lithgoiv's ca.se to the extent to which it is urged, fori see il leads into loo wide a field of conjecture, wlii(^li cannot be .safely pursued in discussing questions of law in a Court |)|)orlnniiy after that to challenge the juror, as he might have, done if di(* prisoner had declined to do so in pursuance of the judgment of the Court. ■'■- ^;^ Il cannot be said ihal this is an improper conjecture as to what the Crown might have done — for the turn of the Crown to chalien.«^e had not llien arrived ; and there is a difference between what the prisoner should have done, with an opportunity of doing it, and what the Crown might have done without the opportunity of doing il. ."; ; This kind t)f co-operative proceeding between the Attorney General and the prisoner, does not seem to me to be such a proceeding which remained longer open for question with respect tn the juror Jonathan Sparks. That injustice has in fact been done cannot be, and has not been, suggested ; and if a wrong in mere contem- tcmpUlion of law has been done to the prisoner, it is charge- able upon himself, from the course vi'hieh I e has pursued, and not upon the Crown. And I must add that I cannot consider without alarm the idea of a prisoner who has been acquitt ,! being subjected to a second trial becau-"! a challenge for the Crown had been erroneously over- ruled, when the counsel for the Crown and the pri- soner had both taken the juror as challenged peremptorily by the Crown. Yet the same measure of justice must be nieled out against the prisoner on behalf of Ihr Crown, as against the Crown on behalf of ihe prisoner. In my opinion, upon a consideration of all the facts of 6 '' 42 the case, Ihe prisonnr has waived and lost his rit»ht of appeal against the decision of the Chief .Insiiee in respect f)f the juror whose ehnlh'nge was overruled ; and therefore the ground thirdly assigne With regard to the first two grounds of eiTor assigned — namely, that it does not appear on the record that the learned Chief Justice held the se.ssion of Oyer and Ter- miner and General Gaol Delivery, &c., by virtiie of any Commission, &c., and that no jury process is awarded, or could be legally awarded, &c. — I do not think it necessary that I should add anything to what has ah-eady been said by my brother Wilson, ai^d what I am aware will be expressed by the learned Chief Justice, but to say that I entirely concur in their judgments in that respect. Then, as to the last two gi-ounds of error assigned, and the questions arising out of them, and upon which I am obliged to differ, I shall first briefly '»fer to the facts set out in the record. ' '^ - v- ~ ',? . ; ..u;^!ii/ .;:. It appears from the record that after seven jurors had been elected and sworn, twelve having been previously peremptorily challenged by the prisoner and thirteen 48 . , V *Vo Prown. Jonathan Sparks wa. called. The pnsoner chaUoj^g .^ ^^ ^^^^ co,u.e, aUcging *at Spa* ^, , ,,„.. „ „,,. . „n the pn»o.>e,» J"-> \ ,..,^,„,,. wi« not '^t.lh-.l the C!.-"wn objected, ^''"'' *" '' ,,■„„„,.,•, h.ul ""t «" t„ challenge fov ff'""-; j;^^,^;, .rf,, ll,„ges, .mly twelve ,,au»te.l hi» twenty F™'"^^" ^ y„ ^.,:„ tl,„ pri-.m-r then being »» '^''•;»'"'«'=t,U argued, and the learned ,km«md. The deK.«yre. « "^ ^,,^t t,,e prbonev „hief Justice B-r,-'Tt::h lien" the ju,„,- SpavU» iV>v wa, not then ent.tled ' '^f,' "^,„,,„,,.„ wa» good a. a ,»,«. slating that the 1" "^ ,^ „,,,„euge li-v ea«*,a"d „m-en,pta.-y ehallenge, and not ''^ '' J, „,• t„,„ty, ,n- Lt if theV--..ey^ 'Xrrre^i^i. the eludlengo to eluding the juvov bpavlv*, we .. t challenge, ; S,„k:waH to be '=7;tt:' ''«-'''"'* ''"'r''"'; , all not for cause ; and ^^J^ ,„ ^^e «d .i«d«m«;'. ,„e„t, ■• au,l "-'■«"'.'""• '.to, X taken and treated by the ■ the «d ehallengo •;" "^ " J ^^e said Attorney (genera : ,aid Patrick Jan,es Whel.m aud ^^^^^^^^ ^^^ i thereupon not sworn upon >^^^ ,^,ten,ent ,.id not What the part>e., '">■■» ^J^^eut. I can only take ,: ,,, very clear t« me »" *» '^"^^^^.j Chief Just.ee by i L «.eauiug th>s -*'?,;; of the means of slrewmg :■; 1,„ vuling dcpriv^l '» P™ "^ j^ „v„alcnge for cause, the the indilVorenee oi ^P^'^^ '^ ^„^t Sparks to he sworn ,i,„„„., u.seou.pelkd c'*'-'™ fy^i„„ one ofhis peremp- - .. t„,-y chtdlengeo, and that • .. course. , ,, _, j, only important as being : :„ The fourtli ground ol •^"'^ J „,,„„ the correct- .: ,,voived in the ^Wrd- and » jcP^^^^^^^ the challenge : i-- 1:^::: r :;:;r '^^^-^^^^ 44 I cluflinp; Sparks, the prisoner had then cxhansted hiw twenty ])ereniptory challoni,'!-.-. Th(! piisoncr cirainied his right to cliiill('n;^(! IIod;^inH pLU'oiuj)toi'ily, iw ho had, accoruing to his contention, in cMi-ct only challen^'ed nineteen. The Court overrided tht; (!h;iU(!nf,'c, lioldiii;^ thiit, inchiding the jxTomptory challcn^'r (•!' Sj^nks tlif prisoner had ex- liauHted hisjtercniptory ehallenge.s; aiiiil»lic u j^'icatcr latitude antl fjicility is allowed to |»risoiK'rH liy tlu; laws of the various States than in Kn;^iaiid or in this ronntry, (-nahlinj? prisoners there to Itiinij under review in the Courts of the Unite:auunativ)u and review in this Court. I think otherwise. The prisoner had the power and the right to use his perempf ory challenges as he pleased, and the Court cannot judi(;ially know for Avhat cau.sQ or with what design he resorted t*) them. He was free to use or not use them, as he llunight piop(;r: but having resorted to them theymusthef()!!(t\ved out t'>;i,|| tlieirlegitiniateconsequence,s. Had h(! omitted to mnk(! his peremptory challenges, his exceptions growing out (?i' the various challenges for cause would havr hccn rcgidaily hci'e for revision. But he chose by his owp vithiiitary act to exclude those jui'ors, and thus virttially, and, a>; 1 think, elfectually blotted out all such errors, if any, a-, had previou;,!}' occuiTcd in regard to them." Again, in the case of Doivib/ v. The Comiuomuealth, in the Court of Appeals ol' Virginia, (9 Grattan, 737), the Court decided, as in Litlii/owt case, (2 Virginia Cases, 297), that if the Court erroneously over-rule a prisoner's challenge to a juror for favor, and then the pi'isoner peremptorily chal- lenges the juror, the i-n-or of the Court is not cured by the subse(iuent exclusion of the juror, although the prisoner had not exhausted his peremptory challenges even to the last. In the case (jf McGoiuan v. The iitate of Tennessee (9 Yergei-'s lleports, IH-i), tlie Court held that the state- ment did not shew that the prisoner had exhausted his peremptory challenges, and if he did not, and he elected a jury onii'i exceptione majores, leaving the peiemptory challenges unexhausted, they were of opinion that it did not constitute an error for \\diich they ought to reverse the judgment. And the case of iStewart v. The State (13 Arkansas, and 8 Englislf's, Reports, 720), was decided in accordance wi^h the case in 9 Yerg(!r ; the case of Bodine was also referred to. In that case the prisoner complained that he was compelled to exhaust three of his peremptory challenges by the erroneous ruling of the Court ; and it is held that if a prisoner challenge a juror when he is not 49 obliged to do so, he waives his exception, and cannot avail himself in error of the exception then abandoned, and this although he may exhaust his peremptory challenges. Such are the results of the , principal decisions in the United States Courts ; and after the most anxious and the best consideration I have been able to give to the subject, I cannot arrive at the conclusion that the course adopted by the prisoner was, on his part, either a waiver or aban- donment of his right now to except to and complain of the ruling of the learned Chief Justice. It would be, in my judgment, contrary to the whole spirit of our criminal law to hold that when a prisoner is compelled, on his trial for a capital felony, to submit to the ruling of a Judge, and the denial of a right in a matter of vital importance, and when, in order to avoid the immeiliate consequence of the erroneous judgment, he resorts to the use of another right given to him by the humanity of our law in favorem, mice, a right to be retained by the prisoner in anticipation and used by him at his will, if circumstances should arise to provoke its exercise — I say I cannot assent to holding in such a case that the prisoner should be con- sidered to have waived the wrong to which he excepted and had thus to submit to and avoid. A multo fortiori when the consequential operation of the eironeous i-uling in effect deprived him of the right of excluding another juror whom the prisoner challenged, au'l who was sworn on his jury. In my opinion his submission to the ruling of the Court as it appears on the record was done salvo jv/re, and that it is open to the prisoner to urge the excep- tion he has taken with a view to a venire de novo. It was very ably and ingeniously argued that the course adopted by the prisoner was solely one of his own choice and selection, and that by the step he took he eflected what he desired to do by his challenges to the favor, namely, the exclusion of the juror Sparks from the jury ; and that by resorting to his peremptory challenge he was not in any wise prejudiced by the erroneous ruling ; and that he is now esstopped, or ought not to be permitted to complain after so 7 . 50 electing and taking the chances of an acquittal by a jury composed of jurors each of whom stood omni eaxeptione tnajor. But in my judgment the question is not one whether the prisoner was actually prejudiced at his trial. If that were the ground on which we were called on to decide, there would be only one opinion, and that no injury re- sulted to the prisoner by the ruling of the learned Chief Justice, or the course adopted by the prisoner ; nor was it suggested on the h-rgument that there was any, the slightest ground to doubt that the prisoner had not an impartial jury and a fair trial, aided as he was by the ablest counsel at the bar. On that score we are relieved from any anxiety. The question is one of strict legal right. It is not f^ ■ this Court to conjecture what effect, if any, the ow riling of the prisoner's challenge for favor to Sparks tiad on either the composition of the jury or the trial itself, for the question is not the fairness of the trial, but whether .the prisoner was deprived of an important right which he invoked, and to which he was legally entitled ; and if there is any right more important than another on a trial to a prisoner on his life or death, it is the right to exclude from his jury any juror who is not indifferent, aad against whom he is able to show good cause, or the right to set aside any one against whom he has conceived a dislike. m I cannot concur in the view pressed on us by Mr. Robin- son for the Crown : that if the prisoner had declined to challenge Sparks peremptorily, and that juror was sworn on the juiy, the prisoner would have been entitled in that case to take advantage of the incorrect ruling of the Judge ; but that having chosen by his own voluntary act to exclude Sparks, he did, as said in the case of Freeman v. The People, i reported in 4 Denio, virtually and effectually blot out the : error that occurred in respect to that juror: that having re- sorted to the use of hi^ peremptory challenge, the conse- quence of that act mus^ be followed to all its legitimate con- sequences. I caimot see the force of this reasoning. If the prisoner, submitting to the erroneous decision, declined to 51 peremptorily challenge Sparks, it might have been argued, and I think with much force, that the pri.soncr acquiesced in the juror being -elected and sworn, and that the maxim qui non prohibet qtLod prokibere potest assentire videtnr might be invoked against him, as having the power to exclude Sparks he did not use it. I cannot see the distinction between what was pressed on us during the argument as indicating, in this case, on the part of the prisoner, a waiver or election, and what I understand as being meant by consenting; and in the ab- sence of authority which I would be bound to follow, I am not disposed to do anything that may disturb, or narrow, or fine away that well-known principle in our criminal law, and which is referred to by Sir John Coleridge in giving judgment in the Priv}"^ Council, in liegina v. Bertrand (L. R., 1 P. C. 534), as " the wisdom of the common understanding in the profession, that a ^/risoner can consent to nothing." '' "^' ' ' ■ n^, .?*fvi.. ,-..;,,, ., I am therefore of opinion that, as it appears that the prisoner, through the erroneous judgment of the Court, was deprived of his right of challenge for favor to and of prov- ing the alleged unin difference of the juror Sparks, and that in consequence thereof, and in order to avoid the effect of the improper ruling, the prisoner had to resort to a peremp- tory challenge to exclude Sparks from his jury, and ,so pro tanto diminishing his peremptory challenges, and as he was afterwards disallowed his premptory challenge to the juror Hodgins, on account of the juror Sparks being so excluded, that the prisoner is entitled to our judgment, and that a venire de «.ouo should be awarded. "- ;< ■ Str'Hf y« >'■■■ ■^\ Richards, C. J. — As to the two first grounds of error assigned on behalf of the prisoner : That it is not alleged on the record that I he presiding Judge held the said session of Oyer and Terminer and General Gaol Delivery by virtue of any commission to him, or to him and others, granted for iliat purpose, or without any commission by the order, command or direc- 62 lion of the Governor General of ihe Dominion of Canada, or of I lie Lieufenmil Governor of the Province of Ontario. Under the Provincial Siatute of Upper. Canada, 2 Geo. IV. ch. I, sec. 27, it was provided that it should and might be hwful for the Governor to issue yearly and every year ill (he vacation between Michaelmas and Trinity Terms, such commissions of Assize and Nisi Prius into the several districts, as might be necessary for trying all issues joined in the court in any suit or action arising in the said dis- tricts respectively, and when suitable communication by land should be opened, as the circumstances of the Pro- vine? might require, likewise to issue such commissions in the vacation between Hilary and Easter Terms. This seciior. was repealed by the same Parliament, by 7 Wm. IV. ch. 1, sec. 8, which provides in similar language for the issue of Commissions of Assize and Nisi Prius unto the several districts of the Province in the vacation between Easter and Trinity Terms, end between Michael- mas and Hilary Terms. The section then proceeds : " And that in iikcmannerCommissionsof Oyer and Terminer and General Gaol Delivery shall be issued unto the several districts of this Province twice in the year, within the periods aforesaid. ' There is also a proviso to the sec- tion authorizing the Governor to issue a Special Com- mission, or Special Commissions, for the trial of one or more offender or offenders, upon extraordinary occasions, when he shall deem it requisite or expedient so to do. By Statute of Canada, 8 Vic. ch. 14, sec. 1, it was provided that it should not be necessary for the Governor to Issue Commissions of Assize and Nisi Prius, Oyer and Terminer, and General Gaol Delivery, more than once in the year into certain districts therein named. This section was repealed by the Siatute of Canada, 12 Vic. ch. 63, sec. 18, sec. 20 of which in effect re-enacted the same provisions as are contained in 7 Wm. IV. ch. I, sec. 8, except the com- missions were to issue in the vacation between Hilary and Easter and Trinity and Michaelmas Terms. By Statute of Canada 18 Vic, ch. 93, sec. 43, it was 58 provided that '' il shall not be necessary to issue any Com- mission of Assize and Nisi Prius, Oyer and Terminer and General Gaol Delivery for any county or place in Upper Canada, but the said Court fhall be held at s'^h times as ihe Judges of (he superior Courts of Common Law shall app()int subsequent to the several terms after which the^ are now directed by law to be holden. • ♦ • \nd the Judges of the several superior Courts of Common Law in Upper Canada shall and may preside over the Courts of Assize and Nisi Prius, Oyer and Terminer and General Gp.oI Delivery, in the same manner and with the same authorities and powers, without the issuing of any com- mission or commissions tor the holding of the said Courts, as they have been accustomed to do under Commission before the passing of this Act." Then a proviso similar to that referred to in the other statutes, authorising the issuing any special Commission for the trial of offenders, in the same manner and with the same authorities and powers as if that section of the Act had not been passed. The next section refers .o the sending to the Judges of the superior Courts of common law the names of those who shall be associated with the Judges of the said Courts as Justices of the said Courts of Assize and Nisi PriuSj Oyer and Terminer and General Gaol Delivery, for the several counties wnere such Courts are to be holden. Section 45 provides, that any Queen's Counsel may be an asoociate Justice for thH despatch of civil or criminal business at any county or on any circuit in Upper Canada, and any such person shall and may be and act as a Judge of such courts, in the absence of any Judge of the supe- rior Courts of Common Law, as fully as if he were duly commissioned as one of Her Majesty's Judges of the said superior Courts of Common Law. By the Common Law Procedure Act of 1856, Statutes of Canada, 19 Vic. eh. 43, sec. 318, the 20lh sec. of 12 Vic. ch. 63, and the 43rd, 44lh, and 45lh sections of 18 Vic. ch. 92, were repealed ; and by section 152 of the same Act it was provided that " Courts of Assize and Nisi Prius 54 of Oyer and Terminer and of General Gaol Delivery, shall be held in every County or Union of Counties in Upper Canada (e?:v.cpt in that within which the city of Toronto is situate) in each and every year, in the vacations between Hilary and Easier Terms and between Trinity and Michaelmas Terms, with or without commissions as to the Governorof this Province shall seem best, and on such days as the Chief Justices and Judges of the superior Courts of Common Law in Upper Canada shall respectively name ; and if Commissions are issued, then such Courts shall be presided over by the persons named in such Commissions; but if no such Commissions are issued, then the Courts of Assize and Nisi Prius shall be presided over by one of the Chief Justices or of the Judges of the said superior Courts of Common Law, or in their absence then by some one of Her Majesty's Counsel learned in the law and of the Upper Canada bar, who may be requested by any one of the said Chief Justices or Judges to attend for that pur- pose, or by some one Judge of a County Court who may be so requested ; and the Courts of Oyer and Terminer and General Gaol Delivery shall be presided over by either of the said Chief Justices or Judges, or by any such of Her Majesty's Counsel or any such Judge of a County Court, each and every of whom shall be deemed to be of the quorum, together Vv'ith any one or more of the persons who shall be named as associate Justices of the said Courts of Oyer and Terminer and General Gaol Delivery ; and the said Chief Justices and Juciges, and such of Her Majesty's Counsel as aforesaid, and such Judge of a County Court presiding at any Court of Assize, and Nisi Prius, shall and may possess and exercise the like powers and authorities as have been usually expressed and granted in Cpmmissions issued for the holding of such Courts; and the said Chief Justices and Judges and such of Her Majesty's Counsel as aforesaid, and such Judge of a County Court presiding at any Court of Oyer and Ter- miner and General Goal Delivery, and the person or per- sons named as Associate Justices, shall ami may possess 66 and exercise the like powers and authorities as have been usually expressed and granted in and by GommiHsions issued for holding such last mentioned Courts, and wherein such Chief Justices and Judges and Queen's Counsel and Judges of County Courts would have been named of the Quorum.^^ Provision is then made for the holding of these Courts three limes a-year in the City of Toronto, and the times of holding the same arc named, with the proviso that spe- cial commissions may issue lor the trial of any offenders. Sec, 153 makes provision similar to that contained in sec. 44 of 18 Vic. cap. 92, as to Associates, but limiting the number of such Associates to live for any one Court of Oyer and Terminer and General Gaol Delivery; and the Clerk of Assize is made ev officio one of the Associate Justices. ■>J■ji>^.^-7'•'• ■* : '5 *• ■•'■ ^ ^li >•'■;• 'iO-^^-iv^r ■■•^■' The Common Law Procedure Act of 1857, 20 Vic.ch. 57, sec. 30 (Canada) repealed sees. 152 and 153 of 19 Vic. ch. 43, and substituted a new section for it similar in terms, except that it provided that it should noi be necessary to name any Associate Justices in any Commissions of Oyer and Terminer and General Gaol Delivery that might be issued, or that any Associate Justices should be nomi- nated, or attend, or be jtresent, at any Court of Oyer and Terminer and General Gaol Delivery to be held after the last day of Trinity Term, 1856. Then comes the usual proviso, that nothing therein contained shall restrict the Governor from issuing special commissions for the trial of any offender. - *; . ^>' ; ■ ■ v Those parts of the Consolidated Statute of Upper Can- ada, ch. II, as amended by ch. 40, sec. 3, of the Statutes of Canada, 29-30 Vic. which were in force at the time of the trial of the indictment referred to, and which it is necessary to refer to, are as follows : — Consol. Stat. U. C. ch. 11, sec. 1, (as amended by 29-30 Vic. ch. 40, sec. 3.) *' The Courts of Assizes and Nisi Prius, and of Oyer and Terminer and General Gaol Delivery, shall be held in every county or union 66 ?i I of counties in Upper Canada in each and every year in Ihe vacations between Hilary and Easfer Ternns, anH between thai period o( the vacation Jifltr tht* tweiiiy- firsl day of August and Michaelmas Terms, and in addition lo the said two Courts to be held for ihe County of the City of Toronto and the County of York, there shall be held a third such Court in every year in each of the last two mentioned counties in the vacation between Michaelmas and Hilary Terms; and all suc'i Courts shall be held, with or without commission, as to the Governor may seem best, and on such days as the Chief Justices and Judges of the Superior Courts of Common Law shall respectively name." Sec. 2. "In case commissions be issued, such commis- sions shall always contain the names of th' Chief Justices and Jrdges aforesaid, one of whom, if a;.y one of them be present, shall preside in the said Courts respectively, and such commissions may also contain the names of any of the Judges of the County Courts, and of any of Her Ma- jesty's Counsel learned in the Law of the Upper Canada Bar, one of whom shall preside in the absence of the Chief Justices and of all tiiC other Judges of the said Superior Courts." Sec. 3. " If no such commissions be issued, the said Courts shall be presided over by one of the Chief Justice, or of the Judges of the said Superior Courts, or in their ab- sence, then by some one Judge of a County Court, or by some one of Her Majesty's Counsel learned in the Law, of the Upper Canada Bar, upon such Judge or Counsel being requested by any one of the said Chief Justices or Judges of such Superior Courts to attend for that purpose." Sec. 4. " Each of the said Chief Justices and Judges and of such Judges of the County Court and of such Counsel learned in the Law, presiding al any Court of Assixe and Nisi Prius, orof Oyer and Terminerand General Gaol Deli- very, shall possess, exercise and enjoy all and every the like powers and authorities heretofore set forth and granted in commissions issued for holding all or any of the said Courts." 67 Sec. 5. " It shall not be necessary to name any associjite Justices in any commissions of Oyei and Terminer ami General Gaol Delivery, or that any ^\9;iftcialc Jusiit-es should be nominated to, or attend, or be prfscnt ui any Court of Oyer and Terminer and Genrral Gmo! Delivery." Sec. 6. "The Governor may issue special commissions of Oyer and Terminer or of Gaol Delivery for ilie trial ol offenders, whenever he deems it expedient." The argument of the learned Counsel for the prisoner, as I understand it, is that it is nccessHiy that tlir> Governor, under the provision of the Statute iilready nferred to, should decide, as an affirmative proposition, whetlur the Courts referred to shall be held with or w itliout commis- sion : that this decision should be made before* the Courts are held, and should be made known by t^oine in»trumeiit under the great seal ; and that the caption to the indict- ment should shew how the Courts were licid, wlietlier under commission, or that the Governor had d(!cided they should be held without commissions. The Courts, as I understand the Statute, are not held by virtue of the commiiision, but by the provi.sions of the Act itself. By it the Cour's shall be held in the vacations there specified, and on such days as the Judges shall name. The issuing of the commission does not make the least difTerence as to how or when these Courts fixed by the Judges under the law are to be held, or who or which of the Judges of the Superior Courts of Common Law are to preside over them. If the Courts were presided^over by a County Judge or Queen's Counsel, it might perhap.^ be necessary to slate in the caption of the Kjulicimeni how the Court was held, whether under the authority of a commi.s- sion or not. If under the authority of a commission, then of course only the County Judge and Queen's Counsel named therein could, in the absence of the Judges of the Superior Courts referred to, hold such Courts, and it might be necessary to shew how that was, as well as in the event of the Court being held without commission, for the prc- 8 . \^ -v f»i«ling Judge or Qncni's Comiff I In ll'fit cii^e conld only liolil lliini til !l:i' if(ji'.cst t>fuiie of tlic Judges of llie Supe- rior Oouris, H'liicli il might be iif( essary to shew was ronid be held at all lliev wen* piej^idcd over by llu' Judge who the . Sintuie icfjuires shouhi hold iiveiii, and who derives his antliorily Iroin die Siaiule. >• > ' 'I'lif !ir|;urtieni of the |)ii«oiior's counsel being that the Ck.wii mil only ael by mailer of reconl, under peal, I lake il |ori;raiiled llial " if il sepiiied be^t" lo llie Governor thai llie Coiirls should be held iiiuler (Jominissioii, the only cvid-'iico of such conclusion which could properly be yive;! would b( ilie commission itself. In die absence of such commission il seems lo nie Ihal he most eflectually decided lliat '' i^ was l)i'st" ihat no commission should issiip In liold the Courts. 'V\vi authority lo hold the Court ill liie lirsl section of the Slalnie lien arises at once, and and bt't'Miics complete under the tliird section, which says "If no such commission be issucil, ihe snd Courts shall be presi led (wer by one of ihc Chief Jusiu »•;..," &c. In my opinion du; recilal in the capiioii of the indict- ment, ihal :»l a f^cneral session of Oyer and Terminer and General tiaol Delivcy, for the couiily named, holden before ihe Chief Juslice of ilie Cw^n of Common Pleas, a Juslic^; ol Our Lady llii; Queen, duly assigned and under and by virtue of ihe Stalule in that behalf duly authorized and empowered lo enquire, Etc., suiiicienlly shows a holding of the Courts without commission. If there had been a comiiiission, il would and ought lo have been recited, and tliere being no commission Ihe Court, as I iiave already said, ill my judgment was prop(!rly held wiihout it. Tiie record itself states that the Judge was under and by Virtue of the Statute in that behalf duly authorized to •nquire by the oaths, &o., of lawful men ; and atsuch Court ol Oyer and Terminer and Ga(/1 delivery it was pre- sented iliat the prisoner did murder one Thomas D'Arcy McGce. It is further recited that at the same session of Oyer and Terminer and Geii<;(al G?ipl Delivery, held before the sai(lJndgc(tiamingliinn), came ihc said prisoner incus- tody of the SherifFaiid pleaded not giiilly to the snid indict- rrient, on which issue beiog joined, "therefore lei a jury thereupon immediately come before" the said Judge (nam- ing him), ol good and lawful me;i by whom the truth of the matter may be lu-lter known, ami wli«) are, &e., to re- cofjnize, &c , because as well,&c. Then the return of the panel is recited. But, suppose there i." any defeet or omission in setting out in the caption in a proper manner the authority of the Judge or Court Intake tlif parlii-ular proeeedings neee.s.iary in this matter, I still think, if this Court, having knowledgi* of its own practice and proceedings, and oi those of oiher Superior Courts under our own ^tatutl's, art; satisfied liie Courts were duly held, we may reject the caption altoge- ther, under tlie provision of sec. 52, of Consol. Slat. ('. (;li. 99, which declares that " In making up the record of any conviction or aequiital on any indictment, it shall be suHi- cient to copy the indiclment with the plea pleaded thereto, without any formal caption or heading, and the statement of the arraignment, and llic proceedings subsequent thereto, shall be entered of record in the same manner as before the passing of the Act," (subject to alterations to be made by any rule or rules of Court.) On this first question, I caimot say that I have any doubt that the Court in question was properly held under the authority of the Statute, whether a commission issued or not. If it issued, the Statute gave authority to the Judg<' who presided to hold the Courts of Oyer and Ternjiner and General Gaol Delivery referred to; and If it ilid not i.s.sue, tlie Statute equally gave authority to the same Judge to hold the Court, and in my judgment it was equally shewn that it seemed best to the Governor that the Court should be held without commission. ' r '■ The .second ground of error is, that no jury process is awarded upon the said record, nor could such process be legally awarded hy the said William Buell Richards, as such Chief Justice, inasmuch as, for the reason firstly above GO iiMHi^picd, lie had no jiiristlietioii or niitlioriiy to award hucIi process as a .lustitu; of Oyer and 'rr County Court, by law belongs, or some one or more of such Judges, Justices or others, shall for that pur- |eu that used in the present case. In Practice, J should infer that in this country the course pursued is similar to thai in England. A precept signed by the Judges, v, no are always named in both commis- sions, goes to tlu! Slierid", to letnrn a general pat (d of jurors, and lliiit precept is retuvimd into Court on the first day of the Assizes witli the panel, and from ilie names c ntained in that pant>l all liie juries, both on the civil and criminal side of the C/onrI, are taken ; and as thecr.'UJ- inai Court always |)ossesses the powers of Oyer and Ter- miner and General Gaol Delivery, the jury process awarded in that Court is entered on the rolls, " therefore let a jury thereupon immediately come." In Haivk. P. C. Book 3, ch. 41, sec. 1, it is said that 68 Justices of Gaol Delivery may have a panel returned withoni precept, for before iheir comiiiw they always til ilie a gpnnal prect pi, and llierefoiv ihey need not make ,\\\y uiIht prt-eept for llie iclurn of a jury, but their bare award "that the jury sshttll conte " is suHieicnl, Ixcause there are enough for that purpose supposed to be present in Court, whom the Shorifl" may return iiinne- diately. S.m- also IJale V C. Vol. 11. pp. 28, 2G0, -^61, 263, 410; rhittys (run. L;.vv, Vol. I. p. 50G ; Pekr Cook's Case, l;j State Trials, ;3j() ; 2 Hawk. V. V., IJook 2, eh. 5, srcs. 21, 32. Tin; (tase of liec v. Ro\fci\ icj'crrcd to, (4 IJurr. 2085), sliews that it is not necessary l<> set out I lit? Coinniis.sion of viaol IJelivcry in I'dl .r x ' f * ...,;;, The form y\»{.'{\ in niakin]!,' up this record, as far as the end of the judgment, i.'j soiiiewlial similar to that in the ap- pendix to the fourth volume of lilackston"'s (Joninu'iiia- rics, though it there appears that the sittings of Oyer and Terminer and Gaol Delivery were at different times, yel the Commission of Oyer and Terminer seems to be fully recited, and iheri the indictment found before the justices of that Court is afterwards, on a day named, at the de- livery of the gaol of the Cf)unty, holilen before the Judges named, and their fellows, (Justices of the King assigned lo deliver his gaol aforesaid of the prisoners therein), being by the proper hands delivered in Court in due form of law to be determined ; and afterwards, at the same delivery of ihe gaol ol the said county, and before the same Justices above named, antj others their fellows aforesaid, came the said prisoner iu custody, &c. We must, I presume, take judicial cognizance of the powers of a Court of General Gaol Delivery, and wherever it is recited in a record that asiythiiig was done at such a Court, if we find that such Courts have power lo do the thing so recited to be done, we must hold ii to be rightly done. I do not see how we can, against the record and the facts there slated, hold that a Court of General Gaol Delivery was nut held as it purports ; and if so held, then ei their power to direct ^.he jury to come, stated on the record, no doubt existed. On the whole, I am of opinion that under our own Sta- tutes in relation to the holding of these Courts, the Jury Act, the provision of the Staiule respecting the caption of indictments, and the practice which has so long prevailed here, the record sufficiently sets forth the power of the Judge to hold the Court and award the jury process ex- cepted to. And as far as I have been able to explore the present state of the law in England on the subject, I am not prepared to say that, independent of many of the provi- sions of our own Statutes, the proceedings objected to are not regular and sufficiently shewn to be legal and properly authorised, as set forth in the record. V^i ??)^-* As to the third and fourth ground of error — that the pre- siding Judge erroneously decided that the prisoner's chal- lenge of the juror Sparks for cause should not be allowed, and erroneously refused his peremptory challenge of the juror Hodgins, because his peremptory challenges of twenty had been exhausted. ^ *i In Sir William Parky ns^ case, 13 Howell's State Trials, p. 74, when Thomas Taylor's name was called, the defen- dant said " I challenge him, he is the King's servant." The next juror was then called, and when Leonard Han- cock's name was called, he said " I except against him, he is the King's servant." He enquired (p. 75), " How many hav? I challenged ? '' Clerk of Arraigns — " Twenty- five." Parkyns — " But there are two that I gave reason for as the King's servants." 01. of Ar. — " You may speak to my Loijtl about it." Lord Chief Justice Holt, addresr- ing the prisoner — " You have cliallenged two, and have assigned the cause of your challenge, that is, Hancock and another, and the reason of your challenge is, because ihey are the King's servants. I am to acquaint you, that is no cause of challenge; but, however, the King's Counsel do not intend to insist upon it, if there are enough besides. They are williiig to go on with the panel ; and I speak this because I would not have it go for a precedent. * * 66 However, they will not stand with you, if there be enqugh lo serve." On the trial o( Jeremiah Brandreth for high treason in 1817 (reported in 32 Stale Trials), before Chief Baron Richards, with Mr. Justice (afiervviird.s Chief Jnsiice) Dallas, Mr. Justice Abbott, afierwanU Lord Teiiterden. and Mr. Justice Holroyd, all eminent Jadge:), Sir Samuel Shepherd was Attorney General, and Sir Robert Gilford Solicitor General. At p.'774 the Attorney General said, in argument, "I apprehend the right of peremptory challenge must be exercised first. * * * [ pm jt |„ yoi^r Lord- ships that that which I state most positively lias never been questioned, and on reading the Stale Trials you will find that that which appears to have been always the practice is also founded on the principle, that the absolutely per- emptory challenges must be made first, lo leave those re- maining upon the panel, about whose capacity to serve (when I say capacity to serve, 1 mean in consequence of any objection), questions may arise, to be made out by- evidence on the part either of the prisoner or of the Crown." The Chief Baron in giving his opinion said, "The prisoner is to declare his resolution first. It certainly is so in practice, about which, with the very small experience I have had, I can say I have no doubt, bnt others of the Court have had very large experience upon the subjecr, and I con- ceive it lo be clear thai it is according to the practice of the Courts, that the prisoner shjuld first declare his resolution as to challenging. I think it is so upon principle also; he has his peremptory challenges, and then the rest of the jury lie in common helweon him and the Crown. Mr. Justice Holroyd said, "When a juror is called and presented to the Court, the first thing is to ascertain whether he is a juror or not. The next things to be enquired into is, whether either party has cause of challenge or not : I mean, after it is ascertained that he is a freeholder, and has those qualifications without which he cannot be sworn. The first step therefore, is to ascertain whether he is to be sworn or not. * • • If neither party challenge him^ and it is shewn that he is a person qualified to be a juror, the otily reqnisiip ftlop thai reniaiii» In be done is, that he shall be sworn." '.r ' ^- ,i,>i ^i;, 'v.f I may use language in relation to this matter similar to that used by Haron Bramwell in Mansell v. The Queen (8E. & B. 1!!n " Very liiile weight is to be altached to the opinion I formed at the Assizes; for the subject was new to me." I followed the practice which I had always understood to prevail in this country in relation lo chal- lenges, and the reasoninjj; of the Attorney-General in Brand- relh's case suggested itself to my mind. The only author- ity then at hand to refer to was Archbold^s Pleading and Evidence in Criminal Cases, and in the last edition, the 16th, at page 149, 1 found it thus laid down : — " And the defendant, in treason or felony, may for cause shewn object to all or any of the jurors called, after exhausting his peremptory challenges of iJiirty-five or twenty." When we look at the very eminent Judges who presided in Brandreth's case, and see that the late Lord Denman, then Mr. De-man, was one of the defendant's counsel, it seems strange that the broad language used by the Attor- ney-General should not have been objected to, if his views were not then received as correc'. It is true the discussion did not necessarily involve the question of exhausting the peremptory challenges first, but if the broad language used was considered open to objection, ! should have thought some notice would have been taken of it. In the head-note of the case of The Queen v. Geach^ indicted for forgery, in 1840, (9 C. & P. 499), it is staled, '' In a case of felony, after a prisoner has challenged twenty of the jurors peremptorily, he may still examine any other of the jurors (who are subsequently called) as to their qualification." The defjndant in that case was an attorney, and he seems to have exhausted his peremptory challenges first, and then wished to know if he could examine il.e juror as to his qualification. He probably had the idea that while he had peremptory challenges he must uso them. 67 I have no doubt bat that at any time before a juror is sworn, he may be examined as to his qualitication, whether before or after his peremptory challenges are ex- hausted, in order to ascertain whether he 1^ a person quali- fied to be a juror. In the English cases to which we weve referred in argument, I did not meet with r^ny in which the challenge for favor was discussed to atiy extent before ihe peremptory challenges were exhaus«ied. In one of the cases — Cook's case, — it was objected thai the juror had made use of language similar to that set up as a cause of challenge against Sparks. Yet in that case, as the prisoner was not in a position to prove the l -aged cause of challenge, and the juror was not bound to answer as to it on his voir dire, the challenge for cause was not in any way tried or proceeded with. I have already quoted what was said in Sir William Parkyns* case, as to the objection iliat two of the jurors were the King's servants; and in jRex v. /S/one (6 T. R. 527, the juror was objected to as being ill-described, being de- scribed as of Graflon Street, when there were several streets of that name. On that being over-ruled he was challenged peremptorily. There are several American cases where the jurors were challenged for favor, and on the challenge being de- cided against the prisoner, he was allowed to challenge peremptorily immediately after. I find, however, the doctrine expressly laid down by Lord Coke, in his first Institute, 158 a, in reference to when the challenge is to be taken. After going over different heads numerically, such as " Firs^, he that hath divers challenges must take then- all at once, and the law so requireth indifferent trials, as divers challenges are not accounted double." Then, after stating other heads, he comes to, " Sixthly, if a man in case of treason or felony challenge for cause, and he be tried indifferent, yet he may challenge l.im peremptorily." And the con- clusion is, " After one haiii taken a challenge lo the polle, he cannot challenge the array." Theie is no reference to «a I' '4 J '? authority for the doctrine laid down sixthly by Lord Coke, but it ia adopted and reasons given for it by Blackstone in the fourth volume of his Commentaries, the passage being quoted hercurtui from the judgment of Judge fieardsley, in the case oi Bodine. It is also stated to the same effect in Comyn's Digest Challenge, ch, 1, with a reference to Co. Lit. 168 a; and in Hawkins, P. C. Book 2, ch. 43, sec. 10; Hale, P. C. ; Foster; Joy on Confession and Challenges 186, quoting Blackstone's Commentaries ; Chitty^s Crim. Law, p. 64i/. Dickinson, Q. S. 189, quotes the language of Sir William Blackstone, in his commentaries, on the subject. Most of the American authorities where the matter is referred to affirm the same doctrine. , , ; . < Hooker v. State of Ohio, (4 Hammond 348) decides that a prisoner may challenge for cause before his peremptory challenges are exhausted — quoting 4 Blackstone's Com- mentaries, 366 ; Williams on Justices, 189 ; 4 Harg. Stale Trials, 738, 739, 740, 750; Chitty Criminal Law, vol i. p. 545 ; Bac. Ab., Jurors, E. II ; fitirn's Justice, 4, 2 ; Hawk, P. C, 2, ch. 43, section 10 ; Co. Lit. 158. Commo'" wealth v.Knapp, (9 Pick 496), is referred to as authority. In Carnal v. The People (1 Parker's Criminal Reports, of the State of New York, 272,) much of the law as to the order of the challenges is referred to, and the right of the prisoner to challenge peremptorily after a challenge for cause decided against him, is expressly recognized. The cases in the 1st and 4th volumes of Denio's reports of the Supreme Court of the State of New Y'^rk shews that the peremptory challenges were used after challenges for cause had been decided against the prisoner, and so do most of the other American cases referred to, except in two cases in Massachusetts, Commonwealth v. Webster, (6 Cushing, 295,) and Ooinmonweallh v. Rodgers (7 Metcalf, 500). These cases however, were decided under a pecu- liar statute, and underit the courts held that the prisoner must make his peremptory challenges before the jurors are interrogated by the Court as to their bias. ■'rr-:K2JESaiiis!l3g 69 I have found in Brunker's Digest, p. 615, reference to an Irish ca«ie which decides that a prisoner may challenge a juror peremptorily after a challenge to the juror propter affectum has been found against the prisoner by the triers. After this array of authorities sustaining the views of Lord (yoke, and tl;^ approval they have received from the other great legal writers and eminent compilers of the law, I think it must be conceded I was wrong [in deciding its I did at the Assizes that the challenge by the prisoner of the juror Sparks could nor then be received and tried as a challenge for cause at the time he took it. If ii had said thai the challenge for cause could be more conveniently disposed of after the peremptory challenges had been ex- hausted, perhaps under ihe views expressed by some of the Jadoea in ManseWs case, the ruling might have been sustained ; but even then the advantage suggested by Bluckstonc,of the prisoner availing himself of the peremp- tory challenges to exclude a juror who might be unfriendly, on account of the challenge for cause having been made, could not be attained. Looking, then, at the way in which the question of the over-ruling of the prisoner's challenge to the juror Sparks is put on the record, I think the writ of error is the proper way of bringing the matter before the Court. The cause of challenge and the decision thereon are reduced to writ- ting, and the judgment of the Court is upon a matter not involving any question of fact, and they are all on the record. ^ The decision of the Court having been adverse to the prisoner, two courses were open to him. He could either decline challenging the juror peremptorily, and he would then have been sworn on the jury, or he could challenge him peremptorily, and exclude him from the jury. If he had gone upon ihe jury, and been sworn thereon, then the view we take of the law is that it would have been a mis-trial, and on the matter being brought up on a writ of error the court would have directed a venire de novo. It is suggested that the statement that, " in deference to K 1 70 K the said judgment, the said challenge is talaiil Ador- ncy CJcneral as a jwremptory challe.ige lor and on behalf of \\vi said Prttrick James Whtilmi, uimJ ihti said Jonaihan Spaiiis is therenpon noi nvorn upon the said jury," fhews that Sparks was not challenged peremptorily by tlie pris- oner. It is not su' fisted ■'.xl he waschallcngoil by the Crown, or ordered lo ' »nrl ; .ide al the instanne of llie Crown. The challenge i'o'' ■;'.;. was not tricil, and lite Conrl had decided that itc<>. i not ' :'n be received as u (■liallt'i)<.';«' for canse, but only as a peremptory challenge, and il was accordingly taken and treated r..s a p-retnptory challenge, and thereupon Sparks was not sworn o\\ the jnry. Surely he was not sworn because both the prisoner and the Cr(»wn treated the challenge as a perenriplory one; and that in fact was the only way in which the juror conhJ have been kept ofl' the jury. It seems to me that the natural conclusion from the statement — the Court decided against the prisoner's right then to challenge for cause, but held it might be good as a peremptory challenge, and if his peremptory halleiiges of twenty were exhausted that was to be (lonsidercd us one of them — is, that as the Court wauld not accepi ii as a challenge for cause, the prisou'^r did what in fact the judg- ment of the Court compelled mm to do, if he wished lo exclude Sparks from the jury — viz., peremptorily chal- lenged him. The prisoner himself, in the statement put by him on the record in regard to the juror Hodgins, pats his inter- pretation on the decision of the Court relative to Sparks : namely, the challenge of Sparks for cau:-e " was not allowed by the said Court, nor was the said challenge for cause tried nor submitted to triers by the said Court, but the said Patrick J. Whelan was required io challenge the said Jonathan Sparks peremptorily, if he desired to challenge the said Jonatnan Sparks as one of the jurors of the said j: ry, and that the said challenge should be con- sidered as a peremptory challenge, and not as a challenge »«««*«-■■ J*»Wfc.»„ mfiifiitrtr^tfi 71 for cause ; and the said challenge for cause was accord- ingly taken and treated a;* a peremptory challenge, and the said Jonathan Sparks was not thereupon sworn upon the said jury."' I» litis anything more or less tlian saying: "The Conn having decided that if I wishetl lo challenge Sparks, !ind exclude him from the jury, I must do so peremptorily, and ihal this challenge should be con- sidered Hs a challenge fur cause, it was accord- ingly so taken and Irealed." liy whom was it so taken and treaed when tfie prisoner put that statement on the re(;(>ril ? If not by himself, who idse? His treat iriy; it so was the only mode liy which the juror eonid |)roperly he exiihideil from the box, and if he had slated it difTerenlly that ii was not so t;iken and received by the prisoner, ih' it would be for tlic Crown prosecutor to consider whether he would have n.'called Sparks as improperly exclu'' ' from the jury. The whole statement shews lo my mii ^ very clearly that Sparks was excluded from the jury as peremptorily challenged by the prisoner, and that he was so excluded, not because he did not wish lo have the clialleiige for cause disposed of, but, that being decided against him, the only way in which he could exclude the juror was by his challenging peremptorily. I'hen we are to view the matter in this way : — The Court having erroneously refused to allow the prisoner to chal- lenge Sparks for cause, in order lo exclude him from the jury the prisoner was obliged to challenge him peremptoriy. Abbott, C. J., in The King v. Edmonds (4 B. & Al. 473), snys : " The disallowing ol a challenge is a ground not for a new trial, but for what is strictly and technically a venire de novo. The party complaining thereof applies lo ihe Court, not for the exercise of the sound and legal discre- tion of ihe Judges, but for tli? benefit of an imperative rule of law, and the improper granting or the improper refus- ing of a challenge is alike Ihe foundation for a writ of Error." Xt page 475 he further observes, " It was said the defendants had a right to make their challenge, 72 and to have it tried, whether they could sustain in by proof or not. To which I answer, if they had that right and would insist upon it, they should have pur- sued it rightly and regularly. Not having done so, their ground and their intended proof must be open to examina- tion. And if upon examination it appears that they could not have sustained their challenge,, they are not entitled to a delay of justice, in order to give them an opportunity of making an experiment in due form, which, in the opinion of the Court, would be deficient in substance.'* I take it that the doctrine laid down in the case from which I have just cited Lord Tenterden's words, applica- ble to this subject, is, that when the matter is on the record in the lorm of error the matter is to be decided as a strictly legal proposition, and no considerations of the effect which our decision may have on the parties to the record will be permitted to be taken into consideration by us to mould our judgment by the exercise of discretion, though of course we must endeavour, when we consider what the effect of our decision tn ay be, to arrive at a correct con- clusion as to the law of the case, and when we have arrived at that conclusion we are bound to declare it, what- ever effect it may have upon others. In the case of the juryman, in a note to 12 East. 231, after a trial was over it was discovered that Robert Curry, who was one of the jurors, had answered to the name of Joseph Curry, and was sworn by that name. Robert was qualified to serve, and was summoned. The Judge considered it would have only been a ground of challenge, and after judgment could not be assigned as error. The Judges were unanimously of opinion that it was no ground of objection, even if a writ of error were brought. In The King v. Sutton (8 B. & C. 119), when it was objected that one of the special jury was an alien, which defendant did not know until after the trial, the Court refused to grant a new trial. Lord Tenlerden said, " I am not aware that a new trial has ever been granted on the 78 ground thai a juror waa liable to he challenged, if the party had an opportunity of making his challenge." In Dovey v. Hobaon (6 Taunt. 4G0), a person n(H sum- moned on the jury, was sworn vu ii. A Tier ihe ou»i; had been gone through, Gibbs, C, J., proposed lodisc^harge the jury, but Vaughan, Sergeani, for llu- plaiiilili, insisted on keeping them, and had a verdiei; Hfsi, Scrj^jeant, noi opposing, but giving no consent. Gibbs, C. J., .said, " Here the objection was. taken, and tlie plaiiiiiH'.-* Counsel ap- prised at the lime that he took the verdict al iho peril of not being able to hold it, and therefore wt; think that the eleven jurymen being well summoned, and a twelfth not being well summoned, and a venlict taken by tliose twelve, and the objection being pointed out at the time, the Court, in the exercise of their Oiscreiion to grant a new trial or not, ought to set aside this verdict, and that there ought to be a rule absolute for a venire Ue novo.'''' In Brunakillv. Giles {9 Bing. 13), the ()l)jection was made at the trial that the jury had been convened by the partner of the attorney for the plaint ill', but not being able to support it in evidence, the cause proceeded, and a verdict was found for the plaintiff". On application for a vcniredcnoyo. Park, J., said: "There is not the shadow of a pretence for thio application. The cause proceeded at the trial because no ground of challenge had been established. Instead of withdrawing, the counsel for the defendant chose to address the jury, and lake his chance of a verdict : he cannot be allowed to defeat it withoni even an affidavit of surprise." In The Queen v. Sullivan, et at., (S A. & E. 831), defendants were indicted for a conspiracy. On the trial before a special jury, one of the jurymen, after being sworn, stated he had been one of the grand jury who found the bill. He continued in the box. The counsel for the pro- siecution ofTered to consent that the juror should withdraw and the trial proceed with eleven ; but, the defendants not consenting, the case went on and the defendants were con- 10 74 vicled. Plait, for the defendanis, moved on the ground of a iiiia-lrial. Ii did iiut appear if the defendants knew whether the jurymen had been of the grand jury or not. Lord Denman, in giving judgment, ^aid, '^The defend- antH here did not challenge ; and when i he objection was pointed out, and it wan proposed that the juror should withdraw, they declined assenting to that course and preferred to stand upon the Strict law." The rule was refused. In The Mayor, ^c, of Carmarthen v. Evans et al. (10 M. W. 274), challenges to the array and to the polls were over-ruled. The defendants' Counsel declined to appear and try the cause. The challenges were not put upon the record. Fiaintiffs recovered a verdict. Defendants moved in arrest of judgment, or to ^et aside the verdict on the ground of the validity of the challenges. The Court held, the challenges not having been made in a proper manner, they would not make the rule absolute. Lord Abinger said : '' If the omission had arisen from the mistake of counsel or the defendant had been misled by the dictum of the Judge at Nisi Prius, we might have grunted a new trial and changed the venue ; yet that could only have been done on an affidavit of merits, which arc not suggested here, and payment of the costs." In Doe Ashburnan v. Michael (16 Q. B. 621), tried before Parke, B., a person of a different name from the juror was called, but he lived in the same place and followed the same business, — a wine merchant, High street, Brecon. The juror hearing his place of residence, business, &c., so called, and also having been summoned on another special jury, went into the box and was sworn. The case went on ; the jury retired ; when they returned into Court the names of the jury were called over ; then the mistake was dis- covered. The defendants objected to the verdict. Parke, B., offered to try the case over again by a proper jury, but the plaintiffs insisted on the verdict being received, and a verdict was given for the plaintiff. The juryman objected to had been originally drawn on the jury, and his 75 name had been struck out at the instance of the plainliflT. There was a motion to set aside the verdict, and for a venire de novo. In giving judgment Paileson, J., said, •' The defect having been discovered and insisted on before the verdict was given, we think it is one that can- not be passed ovei, and that we must make the rule absolute for a ventre (/« novo. If it had been discovered after the verdict the (|uestion would have been a very different one, and many considerations would have enteied into the decision of the question, which might have induced us not to disturb the verdict. But clearly there has been a mis-trial here ; and we have no other alternative than to grant, not a new trial, but a venire de novoy In Ham v. Lasher (referred to, in 24 U. C. R. at p. 633., note a,) a juror peculiarly obnoxious to the plain- tiff had got on the jury by answering to the name of another. The plaintiff mentioned this fact to the Cuuit on the second day of the trial, but took no steps to have the jury discharged, or refuse to proceed further with the trial, but elected to go on. The Court refused to interfere on that ground, holding that if a party to a suit, aware of a fatal obj -ction to the constitution of the jury, elect to go on and take his chance of a verdict, he cannot afterwards be heard urging the objection. In Widder v. The Buffalo and Lake Huron Railway Company (24 U. C. H. 634), the following observations are made : — " Independently of authority the reason of the thing would naturaHj suggest that a plaintiff clearly aware of a fatal objection to a jury about to try his cause, should not, after electing to take his chance of a verdict, be heard urging an objection which he was quite willing to waive had the verdict been in his favor." When deciding on strict questions of law we must dis- pose of this case precisely as we would a civil case. Sup- pose a defendant in a civil action to challenge a juror for cause, and the Judge erroneously decides against him ; suppose the challenge appears on the record, and after that has been done the party making the challenge chooses to 7« exclude that juror from the jury by one of the three per- emptory challenges allowed him by law ; he then goes on with the trial and a verdict is rendered against him. Would we hold that he could fall back on his challenge and claim to have a venire de novo? Put an extreme case : Suppose he had been force I to use his perempiory challenges to exclude from the jury persons who were clearly incompetent for the causes taken by him to aerve on the jury, would the Court order a venire de novo 7 Would it be prudent, in fact, for him to rest his case, if trying to get rid of the verdict, on the errors which, as far as the jurors objected to, would seem to be r red by their not being on the jury who tried the cause ? Jught he not rather to apply to the Court for a new trial, and shew how he had been prejudiced by the course he was induced to take from the mistake of his counsel in not standing on his legal rights under the demurrer, or from having been misled by the dictum of the Jud^e at Nisi Prius ? If we would only grant relief on an affidavit of merits in that case, then I fail to see how we can, on this bald proposition of law, here decide the ques- tion for the prisoner. If he had stood by his demurrer he might urge that the jury were not omni exceptione majoreSf but the defects are purged by the exclusion of the jurors objected to from the jury who tried the cause. The case oi Lithgowv. The Commonwealth (2 Virginia Cases 297,) goes to the full extent of sustaining the pri- soner's case, and even further. In that judgment the Court argue that the ':nproper refusal of a challenge may have an unfavourable effect on the parly, to prevent him from renewing his objections when another defective juror is brought forward — that making challenges which are ovei- ruled might also influence the mind of the jurors afterwards to be called, and in that way the prisoner might be prejudi- ced ; and the Conrt goes to the full length of deciding that, whether the prisoner has exhausted his peremptory challenges or not, the fact that his challenge has been illegally rejected, and he has been compelled to use any 77 of hia peremptory challenges to be relieved from the ob- noxious juryman, is sufficient ground for reversing the conviction. Dowdy V. The Oommonwealthy (9 Orattan's Virginia Reports, 72*}), is to the same effect : namely, that if a pris- oner's objections to the juror be illegally over-ruled it is a good ground for error, though the prisoner may have peremptorily challenged the juror. They refer to Lith- gow^s case as authority. In McGowan v. The State^ (9 Yerger, 184, decided in 1836), where the prisoner did not exhaust his peremptory challenges, and he elected a jury omni exceptione majorea^ having peremptory challenges unexhausted, the Court held it did not constitute error to reverse the judgment. In Carroll v. The State^ in the Supreme Court of Ten- nessee, in 1852 (3 Humphreys, 315), where the challenge for cause was wrongly decided, and the prisoner chal- lenged the juror peremptorily, as he had not exhausted his peremptory challenges, it was held no ground for reversing the verdict. 9 Yerger 184, above cited, was referred tqg In The People v. Bodine, (1 Denio's reports of cases in the Supreme Court of the State of New York, at page 300), in the argument, it is said : "All the jurors who were found indifferent by the triers, were challenged peremptorily, except Cook and McColgan. As to those so challenged and excluded, no question can arise. * * The prisoner was not prejudiced by any error in respect to the challenges of these jurors for cause, unless in getting rid of them she lost peremptory challenges which she needed ; but it is shewn ihat, after the jury were einpannelled, she had peremptory challenges remaining. We also insist that as to the two jurors who finally sat on the trial, it must be considered lhat the prisoner approved of and accepted them ; for although she had seven peremptory challenges left, she forbore to use them to exclude these jurors." In giving judgment Beardsley J. said, at page 309. "The prisoner challenged but thirteen jurors peremptorily, al- though she night have challenged twenty (2 R. S. 734, § 9). 78 " As she might thus have excluded all who were challenged for favor, and not 8et aside by the triers, it is argued that the omission to do so precludes all exception on ihe part <>f the prisoner to what was done by the Judge, however erroneous it may liave been. The law, it is said, gives the, right to make peremptory challenges in order to correct errors ofthis description, and the prisoner, having refused or neglected to avail herself of this remedy, is thereby estop- ped from resorting to any other mode of redress. This argument is specious, but I think not sound. Every pernun on trial is entitled to a fair and impartial jury, and to secure this object, challengesyorcaufie are allowed, and are unlimited. If adequate cause is shown, the juror, in every instance, should be set aside. This is tlu* rigli! of the parly challenging, and is in no case to be granted um a favor. Such is plainly the law where peremptory chal- lenges do not exist, and where they do the rule is the same. " Peremptory challenges are allowed to a prisoner on trial to be made or omitted according to his judgrneiil, or his pleasure, will or caprice. No. reason is ever given or re- quired for the manner in which the right is exercised by llie party. Black.slone says they are allowed "on two reasons: 1. As every one must be sensible what sudden impressions aud unaccountable prejudices we are apt lo conceive upon the bare looks and gestures of another ; anii how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him ; the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able lo assign a reason for such his dislike; 3, Because, upon challenges for cause shewn, if the reasons assigned prove insnlKoient to set aside the juror, perhaps the ba'-e questioning his in- difference may sometimes provoke resentment ; to pre- vent all ill consequences from which the prisoner is still at liberty, if he pleases, peremptorily to set him aside," (4 Black. Com. 353. See also 1 Ohit. Crim. Law 634; 1 Inst. 156 b). "In no case is the prisoner bound to resort to 79 his right to make peremptory challenges. It is armour which he may wear or decline at his pleasure. It is for hi.i own exclusive consideratiuii and decision, and the Court lias no right to inierfere with his determina- tion. Nor should the prisoner's refusal to malie use of her peremptory challenges, as she might have done, pre. elude her from raising objections to whai was done by the Judge; and if, in truth, errors were committed, I do not see that it is less our duly to correct them, than it would have been if the prisoner had fully exhausted her peremptory challenges. The use or disuse of that right, I regard as a fact wholly immaterial to the question now before the Court, and one which cannot rightfully exert the slightest influence upon the decision to be made." In the case of Freeman v. The People, decided in the same Court of the State of New York, in whi(!li judg- ment was given by the same learned Jndge, leporied in 4 Denio, p. 20, the head note as to one of the poinis de- cided is, "When a juror is set aside by a peremptory chal- lenge, the party on whose behalf it was made cannot on error insist upon an erroneous ruling of ihe Coui. upon the previous trial of a challenge of the same juror for cause." At page 31, the learned Judge uses the following language: •* Several persons drawn as jurors were, in the tirst place, challenged for principal cause by the counsel for the pris- oner, but the Court held that these challenges were not sustained by the evidence adduced in their support. Chal- lenges for favor were «hen interposed ; but the jurors were found by the triers to be indifl'erent. Various exceptions were taken by the prisoner's counsel to points made and decided in disposing of ihese challenges ; and, although ihe several jurors then challer^ed were ultimately ex- cluded by the peremptory challenges of the prisoner, it is now urged that these exceptions are still open toexamina- tioa and review in this Court. I think otherwise. The prisoner had the power and the right to use his peremp- tory challenges as he pleased, and the Court cannot judi- cially know for what cause or with what design he re-^ sorted to them— T^ c Peoptt v. Bodine (1 Denio 310). 80 " He was free to use or not use them as he thought proper ; but having resorted to them they must be followed out to all their legitimate consequences. Had he omitted to make peremptory challenges, his exceptions growing out of the various challenges for cause would have been regularly here for revision. But he chose by his own voluntary act to exclude these jurors, and thus virtu- ally, and, as I think, effectually blotted out all such errors, if any, as had previously occurred in regard to them. But the case of the juror Beach stands on other grounds. He was first challenged, as it is said, for principal cause, which, after evidence had been given, was overruled by the Court. He was then challenged for favor, but the triers found him to be indifferent. No peremptory chal- lenge was made, and he served as one of the jnvj'. As to this juror, every exception taken by the prisonf r'jt counsel is now here for examination and review." In Stewart v. The State (8 Eng'.isl), 13 Afkrnsaa, Reports, at p. 742), the Court, in giving judgment or ihe eflfectof a prig mer resorting to peremptoy challenge r;r his chal- lenges for cause had been improj j'y overvv ed by the Judge who tried the cause, said : — '* The plnintiffin error complains '!.• t he was coiTipelled by the decisions cT the Court inquesti'X tr ex; «in8t three of hispererapiorychrllen- ges. Thp record heieclov." .JOt shew that the pvisonerhad ex- hausted ali his pti-ii ,jtoi_y challenges in the empatulling of the jury, and it seems to have been held, in th?^ case of McGowan v. The State (9 Yerger, 184), under sinular cir- cumstances, tha the judgment would not be reversed for an error in deciding a juror who had been challenged for cause to be competent if the parly afterwards challenged him peremptorily. But in the case of The People v. Bodine^ before cited (1 Denio 281), it did appear that the prisoner had challenged but thirteen jurors peremptorily, although she night have challenged twenty, and it was argued that she was not bound to have excepted (a) a juror erroneously decided to be competeol upon her challenge for cause, but #i'* .-■•■ r^y^,. ■1'^ J'4 '■ - (a) Sic — Quart, accepted. 81 might and ought to have corrected the error byavailing herself of the peremptory challenges allowed her by law for that purpose. The opinion of the Court was that in no case is the prisoner bound to resort to his right to make peremp- tory challenges, but he may exercise ii according to his judgment or caprice. 'It is for his own exclusive con- sideration and decision, and the Court has no right to interfere with his determination.' The question was to be considered as if she had no right of peremptory challenge, and as if the acceptance of the juror was forced upon her in consequence of the erroneous decision, and then she would stand upon the legal exception. It f Hows from this reasoning, that if the party chooses to chullcMige liie juror peremptorily when he is not obliged to do so, he, by the exercise of his own will or caprice, has undertaken to correct the supposed error of the Court, and waived the benefit of the previous exception. Because, if the decision was right, the party excepting could not have been injured by it, if it was wrong, he had the benefit of his excepiiuu ; but if at the time in doubt whether it be right or wrong, and he prefers to take the chances for an acquittal, and so elects to rid himself of the obnoxious juror by a pcemp'ory challenge, there is no reason for holding, that he f^an avail himself on error of the exception thus abandoned. \nd so the Supreme Court of New York decided in the jubse- quentcase of Freeman v. The People. Refer g to the case in 1 Denio, .310 Judge Beardsley, who de' red the opin- ion of the Court in both cases, said : ' The oner wa" iree to use his peremptory challenges as he tht nght proper, but having resorted, to them, they must be fv owed out to all their legitimate consequences. Had h' u.iitted to make peremptory challenges his exceptions uvving out of the varions challenges for cause would liave been regularly here for revision. But he chose by his own voluntary act to exclude these jurors, and thus virtuallv, and, as I think, effectually, wiped out all such errors, if any, as had pre- Tiously occurred in regard to them.' Such, we think, is the law applicable to the case now under co ^ ideration." u 98 ti I have endeavoured to look upon the case and the mat- ters before us,a8 I have already intimated, aa purely legal questions, without embarrassing them with considerations of the grave consequence of our decision on the fate of the prisoner. I think it is our duty to do this, and, therefore, looking at it in that light, I am of opinion that the prisoner, by peremptorily challenging the juror Sparks, has put out ci our consideration the question whether the points raised in his case were properly decided or not. The jury, as far as he is concerned, is pure, and whether he ought to have been er.cluded or not in my judgment is not now before us. He hd'/ been excluded by the act of the prisoner himself. Whether that arose through the mistake of counsel or from being misled by the dictum of the Judges at Nisi Prius," to use the language of Lord Abinger, in the case in 10 M. & W., at p. 278, it does not appear to me to be now of any consequent . If, indeed, it could be shewn that the prisoner had been prejudiced in fact by the pro- ceeding, and we were called upon to decide a matter of discretion, and no of mere law, then we might possibly relieve him. After giving the subject the best consideration I can bestow upon it, and carefully reading and considering the cases to which we have been referred bearing on the subject, 1 have arrived at the conclusion that the able judgments of the Superior Court of the State of New York, reported in the first and fourth volumes of Denio^s Reports, which I have abstracted at some length, and the case of Stewart v. The State^ in 8 English, 720, based upon and following the cases in Denio's Reports, which I have abstracted at even greater length, and repeating in it some of 'the passages of the former judgments, lay down the principles which should govern this case : — that the prisoner, by perempto- rily challenging the juror Sparks, has put aside the ques- tion of the erroneous decision of the Judge as to the right of the prisoner then to challenge him for the cause as- signed ; and that he has not any locus standi to assign error for that decision, or for the rejection of the peremp- tory challenge of the juror Hodgins. 88 It may be convenient here to refer to a practice which is •aid to prevail in England, noted in Joy on Challenges, at p. 149, and Dickinson's Quarter Sessions, p. 602, 5ih edition, 1841, by Sergeant TaUourd, is cited as laying it down :— " Bat even in misdemeanours, it is usual In Eng- land for the officer, upon application to him, to abstain from calling any reas^onable number of names, objected to either by the prosecutor or the defendant, taking care that enough should be left to form a jury : and this prac- tice has often been sanctioned by the Court." In Marsh v. Coppock, (9 0. & P. 480), where ihe Court decided it was no ground for challenge (hat the ju- ror was a tenant of a nobleman, whose interest in the Bo- rough was supposed to be affected, neverlheleso the juror was withdrawn by the plaintiffs counsel. I refer to these matters, as well as to the case in the state trials, to shew with what liberality parties concerndd in the admin- istration of juwtice in Englauc 'lOw jurors who are objected to to remain off a jury, when jt is not likely by doing so the ends of justice will be interiered with (a). Judgment affirmed. ;-V"K;l;;,- At the conclusion of these judgments. Sarmant for the plaintiff in error, applied for leave to appeal to the Court of Error and Appeal, under Consol. Stat. U. C. ch. 13, sec. 29. He intimated also that the plaintiff would apply to the Attorney General for his fiat for a writ of error to remove the case into that Court. The plaintiff in error was remanded until Thursday, the 24th December, one of the days appointed for giving (a) In Gray v. TTie Queen, in the House of Lords (11 CI. & Fin. 470;, Baron Parke says : " The practice" (of peremptory challenge) " pre- vails equally, so far a& my experience goes, in misdemeanours, and in all civil caaes ; no one ever heard of any impediment being interposed to th« defendant or plaintiff in actions, in modern tim<,3, objecting to any num- ber of jurymen without cause, and they are always withdrawn ; yet in actions there is unquestionably no right of peremptory challenge.' 84 judgments after Michaelmas Term ; and the following order was made : — In the Court op Queen's Bench. The twenty-first day of December, in the year of our Lord one thousand eight hundred and sixty-eight. Patrick Jambs Whelan, Plaintiff in Error, V. The Queen, Defendam in Error. Patrick James Whelan, the plaintiff in error, being brought yhete into Court by the Sheriff of the County of York, by virtue of a rule of this Court, upon hearing Counsel on both sides, it is considered and adjudged by the Court here that the judgment given against the said Patrick James Whelan at the Session of Gaol Deli'^ery holden at Ottawa, in and for the County of Carlelon, on the second day of September last, upon an indictment against him for. murder and felony, is good and suflKcient in la\%, and it is thereupon ordered that the said judgment be affirmed. And the plaintiff in error, Patrick James Whelan, being brought here into Court in custody of the Sheriff of the County of York by virtue of a rule of this Court, is remanded to the same custody, charged with the matters in the said rule mentioned. And it is further ordered that the Sheriff do bring the said Patrick James Whelan before this Court on Tuesday next. (Signed) C Robinson, ' • ^^-^^h^ ' ^- -■'''■■''" For the Queen. * ''''•' (Signed) Samuel B. Harman, ' > ': For the Prisoner. (Signed) Robert G. Dalton, C. C. & P. -> «*f • On the 24ih of December, the plaintiff in error was brought into Court. . i,. ' J. B. Cameron^ Q. C, for the plaintiff in error, stated that the Attorney General had signed a fiat for a writ of 4 m 85 error. The Court granted the leave to appeal applied for on the Slst. He moved also for a writ of Sabea$ Corpus to bring the prisoner before the Court of Error and Appeal on the 31st December, which was granted. C. Robinson^ Q, C., for the Crown, said there appeared to be difficulties both as to the jurisdiction of the Court of Appeal, and as to tlii> proper mode of bringing the case before that Court, which could be discussed at the proper time. A rule was drawn up, giving the plaintiff leave to appeal, and the following certificate was signed by the Chief Justice, pujsuant to the " Rules under the Criminal Appeal Act," which rules are printed in 8 C. P. 370, 16 U. C. R. 159:— In the Queen's Bench. Sittings after Michaelmas Term, 32 Victoria. The twenty-fourth day of December, in the year of our Lord one thousand eight hundred and sixty-eight. The Queen ^ ^ | jhe defendant, Patrick James ^' /■ Whelan, was convicted of mur- Patrick James Whelan.) jer at the last Court of Oyer and Terminer and General Gaol Delivery for the County of Carleton, and is now under sentence of death thereupon. Upon a writ of error issued at the suit of the defendant, the conviction has been confirmed by the judgment of the Court of Queen's Bench for Upper Canada. That Court, upon the motion of the defendant, has this day allowed an appeal against their judgment to the Court of Error and Appeal, pursuant to the Consolidated Statutes of Upper Canada, cap. 13, sec. 29. Certified pursuant to the terms of the Rules passed under the Criminal Appeal Act, in Michajlmas Term, 22nd Victoria. (Signed) William B. Richards, * Chief Justice. 86 The following order was made : — In the Qubbn's Bench. The twenly-fourth day of December, in the year of our Lord one thousand eight hundred and Rixty-eighl. Patrick Jambs Wuelan, Plaintiff in Error, T. Tnu QuEBN, IJffmdant in Error. Patrick James VVhelan, the piaintiflf in error, being brought >-here into Court in custody uf the Sheriff of the County of York by virtue of a rule of this Court, it is ordered by the Court here that the said Patrick James Whelan, the plaintiff in error, be remanded to the custody of the said Sheriff to await the further order of this Court. And it is further ordered that the said Sheriff of the County of York, here in Court, do receive the said Patrick James Whelan, the plaintiff in error, and detain the said Patrick James Whelan to await the further order of this Court, or till he be otherwise delivered in due course of law. On motion of Mr. Robinson, Counsel for the Crown. ■ By the Court. (Signed) Robkrt G. Dalton, C. C. & P. '■^r'? ••'"=.•'■■•>.■'; ■■■-:'■,•>"■■; ^ '■.:.;';-■' 'vi-jp ■ . our I. the iKhl r of ' of ( of aid Jed der aid ive ind her lue i^iirfffi€^i--^i A' ,..--..••'■ (1.4, ,:! i©?-4-- P.