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Las diagrammes suivants iiiustrent la mAthode. irrata to pelure, n i 32X 1 2 3 1 2 3 4 5 6 :-m W'^. w .11 t&i' w^ §uprcmc gbi^rt of @ana6a. ■ ■■'■*• - ♦ ■ *. *" * IN THE MATTER OF A WRIT'OF A WRIT OF HABEAS CORPUS. v.y -w v^ XX N-/ \-y \^ N./ > *« • • '*ftE.:ferN.A • • . . vs. ROBERT .EYAN SPROULE. .•v- O -A^ S E^.. » ♦ • ••^ _ ...» ..#.«.■.• • • . CHRIStOPI^R R0BINSqS,,i7.1?*.AND > • THE ATTORNEY GENMaX OF VMr-the Oromi BRITISH COElMBlA.-***^. ' *-*'^ GORMULLY & SINCLAIR, '.'•', Agents. * . * ' D ALTON -McCarthy, •) . ^ AND > For the Priaoner. * T. DAVIE. ' 3 • • • . McINTYRE, LEWig & CODE, Agents. PRINTED BY A. S. WOODBURN, OTTAWA. •^i . «••. • « *I * r vC, A- (lyyazt/ixvest CoUectio/h -0 i I \Sr insr THE Supreme @ourf of ^anaba. . r^y^^^^x^r^ •>./%./> r'^ /"V^-VXN ^\ y^^ IN THE MATTER OF A WRIT OF A WRIT OF HABEAS CORPUS. < ^w \./^y\^ v- N-/^ • . ^~\ \ REGINA w. ROBERT EVAN SPROULK. O^^SE. CHRISTOPHER ROBINSON, Q.C., and } THE ATTORNEY GENERAL OF } For (he Grown BRITISH COLUMBIA. S GORMULLY & SINCLAIR, A,t^ents. D ALTON McCarthy, i AND > For the Prisoner. T. DAVIE. > McINTYRE, LEWIS & CODE, Agents. J'RINTF.n BY A. S. WOODBURN, OITAWA. insriDEx. Atlldavit of T. Davio, sworn 1st May, 188(> Affiilavit of T I ),tvie, sworn 3r(l May, 1S80 Ordei' Xiai, AHidavit of F. C. Wolfi-nden Atlidavit of R. E. Sproiile Atlid.ivit of V. ^.. Irviri;r, sworn I2th May, 18Sf) AfHdavit of J. K. McMillan Kxhiliit " A," Calendar of General Assize Exliiliit *' 15," order for Execution Exliiliit " C," Records of the Supremo Court of Rritish Columbia herein Exhibit " D," Order of Reprieve " " F," Remand It •• \.T, ■• " II." " " J." " " K," " " L," " Affidavit of S. Y. Wootton Petition of R. E. Sproule Certitioate of J. E. McMillan ExhihifA," Exhibit "H," Order elianging Venue Affidavit of T. Davie, sworn 2t!th May, 188ii Order for Fss^ue of Writ of Haheaii Corpus Reasons for Jud<(tMent of the Hon. Mr. .lustice Henry Writ of Ilahciis Co/jius SheriflF's Return Notice of M(,'o of Wilful Murder alleged to have heeii eonnnitted by tlie said Spruule in tiic Difitriet of Kootenay l\A\, on the l.st day of Juiie i8?i5. The Trial resulted in a verdict o" Guilty with a recoinnieiidation to mercy, and on the 5th day of .January A.U. lS8ii the said Sproule was sertenced to death. On the sth day of Feliruary A.D. 1^8« a Writ of Error was granted hy and subseciuently a return thereto was made to tlie Supreme Court of British CoUimbia and on the 'itith day of February lSS>] and following days argument on the said writ of error was heard by tiie full Court consisting of live Jiuiges, ami on the 27th day of February 1886 the !•* said Court unanimously overruled tlie said v.'rit of error ami confirmed the conviction of the said Sproiile. On the 3r(l day of May i8^^(, on the application of the prisoner's counsel, an order loul for a writ uf //(tbcun corpus or in the alternative for the discharge of the prisoner was franted liy the Hon. Mr. Justice Henry, and on the iJ.^th of May 188'! and subsetjuent days uriruinent thereon was heard bv Mr. Justice Henry, and after deliberation Judgment was pronounced by him directing the issue of a writ of Habeas OOipus directed to the Shevilf for Vancouver Island calling upon him to piodiice the prisoner Ijefore Mr. Justice Henry together with the day and cause of his detention. On the nineteenth day of July A.D. 188G the said Sheritf returned the said writ to this Court with his answer therLto endorsed thereon, and on the gjcoiid day of Auuiust A.D. 18Siian application wasu'ade to ^[r. Justice Henry for the disciiaige 20 nf tile prisoner on the ground that the said Sheriff had not obeyed tlie said writ. After hearing afument tiicrcoii Mr. Justice Henry ordered the discharge of the prisoner. Tliis is an application to (piasb the Writ of llahuu corpus and all proceedings had herein since the issue thereof for the reasons set fortli in the notice of motion and alKdavits filed on this ap|)licatiun and for such other reasons as may be urged on the hearing hereof. In the Supreme Court of Canada. IN THE MATTKIl OK UOP.HUT KVAN Sl'ROrf.K, A rUISONEU rM)NKINKn IN TDK COMMON (iAOI. AT TIIK OITV OF VICTORIA, IN TIIK rUOVINCK OF I'.UITISII COMMIUA. I, TiiK(ii«<)i{K l)Avri:, of the (!it_y of Viptoriii in tliu Province of Uritisli ('oliinil>in, HaiTinter-iit-Liiw :inil a Solicitor of tlic Snprenie (Jourt of l?i'iti>*ii C'oliiMil>ia, miii1%(! oulli and say as follows : 1. That ert Evan Sproiile was in or al)ont the month of June HS5 cmnmittal A)l|() take his tiinl upon a c/innji (if u'llful murder ullcyi'd to hove heen iluiie in the district of Kootenmj in the I'rovincc i>f Britinh Cohimbia and on the llUh day of October 1SS5 the said Uohert Evan Sproule was hrought in custody before His Lordship tiie Honorable Sir Matthew Haillie l>e{i;l)ie Chief .Insticc of the Supreme Court of I'ritish Columbia, al the Supreme Court House at the (Mty of Victoria at avsaid whereupon an api)lication was made on behalf of the Crown the result of which was that an order was made by the said ('liief Justice, aiul drawn up and sifjned by him directing? thu trial to proceeil at the City of Victoria instead of at Kootcnay ivitAout lnq)osin .-i M a i ft^t— w iiw i ri w t ■ ■Aji imiTISIl COLUMBIA. TO WIT ; The Jurors for Oar Lady the Qncen njion tlioir oatli i)re8cnt that Robert E. Sproule o!i the first clay of June in the year of Our Lord uiie thousand eif^ht linnchvd and eighty- tivo feloniously wilfully and of his malice aforethought did kill and murder one Thomas Ilammill against the peace of Our Lady the (iucen, her Crown and dignity. 4. The said liohert Evun Sproule pleaded not guiltij to the said indictment, and the trial upon the same proceeded before the said Hon. John Ilamitton Gray the presidimj Jadyejrom day to day until the 9th day of Decvmber 1S85 on which last day the 2»'isoner urns given in charge to the jury, who after an absence of several hours for deliberation returno.1 into Court 10 and annonneed through their foreman that they could not agree upon a verdict wliereujion the presiding Judge directed them to retire for further deliberation which being done, they after a further short Hbsence returned and thereupon their foreman returned a verdict of " Guilty,"' eou|)Iing such verdict with a recommendation to mercy. .'). Upon the sail' verdict being announced, and i)efore the same had been recorded, and whilst the jury were still in the jury box I respectfully demanded and applied to the (-nurt as Counsel for and in the presaice and hearing (f the prisoner that the Jury shoxdd be polled, but the Court refvsed my application. <>. Afterwards on or about Mie 4th January 1886 the said presiding Judge assisted by the other Judges of the Supienie Court heard argument as to the prisoner's right to poll the Jury. 20 and as to certain other matters, and on the 5th January 1886 the said Judge wlio had presided at the trial announced that after consultation with his brother judges he had come to the conclusion that the prisoner had no right to have jury polled and thereupon proceeded to and did pass sentence of death ujxm the j/risoner to be carried out on the (Sth March then nesct ensuing, 7. A writ of error was subsequently granted in the said case and a return thereto made to the Supreme Court of Ih'itish Columbia ; a copy of such return which contains the ('ommission for holding the (Jourt and otiicr proceedings at the trial is now produced and shewn to me at the time of my deposing to my affidavit marked with the letter " H." H. The order for change of venue set out in the second and third pages of the said 3Q exhibited copy record was not in existence at the time of the trial and sentence, but was drawn up and issued subsequently. 9. Before pioceeding to assign errors upon the record / alleged a diminution of the record anil applied for a Certiorari upon my oirn ajffdarit showing that the order for change of Venue set out in the record u^is not the true one or in existence at the time of trial and judgment and also stating that / had applied to poll the Jury as aforesaul, which application and the refusal of it, I urged should appear upon the record. The Court over-ruled uie upon the points mentimied in this paragraph. 10. The Court after hearing argument upon the writ of error (.)ver-ruled the same. 11. Execution of sentence of death upon the prisoner Robert Evan Sproule has been i,. respited until Thursday the 6th May 188ti, and he is now a pri.soner in the Victoria (/Viuimon (Jaol whereof J. W, Hutchison is keeper, awaiting the executicm of such sentence. ' n 1 K ! I . t. ■M 5 12. Tlie paid conviction proceeded wholly npon circnmstantial evidence, and since tlie trial new evidence lias come to light discrediting the theory of the prosecution imd going far to establish an a^e'/n' ; — One of the chief witnesses for the prosecution, one CI irles Wolfe has inivde a declaration thiit the evidence given i)y him at the trial was false and the American Consul at Victoria has reported to the Lieutenant-fTovernor oi British Coliunhia that after investigation he helievcd the prisoner to i)e innocent. Sworn before me at the City'of Ottawa, ^ this 1st Afay, A.I). 1880, ( A. F. McIntyre, A Vommixsinui /■, i\:c. ) (Signeu) THEODORE DAVIE. 10 IN THE SUPREME COURT OF CANADA. In the miitter of R(>HKiiT Evan Si-roim: a prisoner in the Common gaol at Victoria I'ritish Ccdumbia. I, TnEODOKE Davie of the City of Victoria in the Province of British Columbia Solicitor, make oath and say as follows : The prisoner is in the custody of James Eliphlet McMillan Escpiire wlio holds the office of Sheritt lor Vancouver Island. The said Robert Evan Spronle is under sentence of death to be carried out on the fith day of May now instant, and there is now no time or opportunity to obtain an affidavit from the prisoner before that date. Sworn before me at the City of Ottawa this 3rd of Miiv A.I.). IS-^e. A C'(^m7iii'. ' 20 X T. ,r , , (Signed) THEODORE DAVIE. A. K Mcl.MVKE ' ' r? ' IN THE SUPREME COURT OF CANADA. MonJay the 3rd day of May A.D. ISSti. Upon hearing Mr. Dalton McCarthy Q. C. as of Counsel for Robert Evan Spronle, and upon reading the athdavits of Theodore Davie filed respecfivoly on the 3rd May 188t). I do order that the Sheriff for N'aiu'ouver Island, .lames Eliphlet McMillan Es(|uire do show cause bofore nie at my chand)ers at the Supreme (Jourt House in the City of Ottawa on Saturday the Twenty-second cia, 'f May instant why a Wrjtof lloheas CvrjniK dd mthjivieniluin jjQ should not issue to the said SheiilT re(iuiring him to iiring before the Court the body t)f the .said Robert Evan S|)idule- together with the day and cause of his detention and why in tliu event of this order or iMile lieing madi' absolute, or the writ being allowed the said liobert Evan Sproule sliiiiilil iiol lie eixoiiiillij In'othjlit lii'faiv f/ic Vonrt. (Signcdj W. A. IIENKV, A Judije of tlw i>ujyirnie C<'urt of i'mutda. i :|; i i HI ! f M 6 By iigrceinont of Connacl tlic lioaring on tliis order is adjourned to Tuesday next 25tli instiiiit at i o'clock P.M., 22 May ISSO. W. A. IlKNKY, J. IJy agreement of Counsel the hearing on this order is further postponed to Wodnesilay the 2t;th of May instant at 4 o'clock P.M., 25th May 188(S. VV. A. IIENllV,.!. IN THE SUPREME COIRT OF CANADA. I, Francis Cooi.ky Woi.fkndkn, of the City of Victoria, in the Province of I?ritish Colnnihia, law clerk, make oath and say: Tliat I did on Tuesday, the eleventh day of May, instant, personally serve .lames Eliphlet iq McMillan, Es(]uii'e, Sheriif for Vancouver Islaiul. named in the order tiini hereunto annexed with tiic said order, l>y delivering a tnic copy of the same to him at his office in the City of NMctoria aforesaid. Thiit I did also on the eleventh day of May instant, servo the Ilonorahie the Attorncy- (leneral for tlie Province of I'ritish Coiumhia with the saiil order hereunto annexed, l)y d(!liveri?ig a true copy thereof to Pauliis .Emilius Irving, his ritish Columbia. q/. That I am tiie person a[)plying fur a writ of Habeas Corpus. Sworn to before me at the City of Victoria,^ in the Province of British (.■olumi)ia, tliis seventh day of May, A. I). I88((. J. P. Walls, } (Signed) R01?ERT EVAN SPROFLE. A ComDiisHioner Jor f(d-hi(/ Affif/avi(.'< in f/ir Siiprt'tne Court of liritinh Colitml/ia. IN THE SUPREME COIKT OF CANADA. I, Paitms ^Kmii.ii'h Ikvi.vu, of the City of Victoria, British Cohinibia, iniikuoath ami say an followH : 1. I am Deputy to the Attorticy-Oencral for Hritisii Cohimhia. 2. I was servcii yestenhiy afternoon witii a copy of a rnle tiini. ordering tlie Sheritf of Vancouver Ishmd to shew cause hefore Mr. .Justice Henry, on the twenty-secutul day of May, instant, at the Supreme Court in Ottawa, Ontario, wiiy a writ of Habeas cot'jmn ml snhjirlen- dum shouhl not issue to tlie said Sheriff, requiring iiini tlie said Sheriff to bring hefore tlie Supreme Court of (!ana(hi tlie l)ody of tlic said Ilohert Evan Sproiile, togetiier witli tlie (hay and cause of the detention of tiic said IJobert Evan Spronle, but 1 was not served with, nor 10 have I seen the atKdavits of Mr. Tiieodore Davie, referred to in the said rule iiiti. Sworn at the City of Victoria, I?ritisli Cohimhia, ) this 12tli day of May. A. I). IS' '5. { Hknuv S. Pki.i.kw Ckkask, i ,/ii(/(/i iif (he S. V. of //. Vi>lvn)li(i. ' P. .E. IRVIN'(i. IN THE SUPREME COURT OF CANADA. In tile matter of a )'uh' ///.s/ iri'Mnted on Monday the ."Jrd day of May .\.i). l^^t! for a writ of //«/«'«.<( w);/(«.v re(juiring tlie Slieritf for Vancouver Island to bring before the Supreme Court of Canada tlu' body (d' one Robkkt Evan Si'roii.i;. I, James Ei.iimh.et McMillan of the (."ity cd' Victoria in the Province of Pritish (Jolnmbia 20 make oath and say as f(dlow« : 1. 1 am tlie Sheriif for Vancouver Island, and iny jurisdiction e.xtends over that portion of VaiK^iiver Island up to the VMh ^mrallel of Nartli latitude. 2. On the n'mtk ilaij of Deeeuiher A.D. 18SJ, t}te iirisonvr Rohert Eoioi Sjironlc n'a.s convleteil of the crinit' of n^ilful. murder at the Court of Oijtr and Teiiiiimr and tienend Gaol Deliveri/ then heimj holilen, at /he City of Victor la, irithin mi/ Jiailiwirk, ami on the fijth daij of Januanj A.I). 1S80, the said Rohert Eean Sproule, at the same Court, inas, lnj the Judge thereif >>enteneed to death fir the said crime. 3. A calendar of the prisoners tried at the said Court was made out liy tiie ikcgistrar of the said (Amrt and signed l>y the .«aid Judge and a certified copy thereof was produced and go shewn to me at tlie time of the swearing of this my atlidavit and marked with the letter '"A". 4. Ujwn the conriction erf tin- .said Rohert E. Uproule he uias remanded i)it(> ini/ custody hij the .said Court and has rema,lned there ever since. .">. On *he i.'ightli 'lay id' Fel)riiary .\.D. 1880 a .vrit of error, at the instantie id' the said Robert Evan 8i)ioulc, was, on the tiat id' the Attorni'y-tieneial for this Province, sued out of the Supreme Court (d' Pritish Columbia, and in obedience to a writ of Ilaheas corjtus, from the said Court to me directed, I produced the said Roiiert Evan Sjiroule before the said Supreme (Jourt on the PJth dav of February A.D. 18*^0, when the said Robert Evan Sjiroule, per.^^onally [)rcpc •siiy, ^ i.ssf; Itul- my ( 1)0 fu and Del writ in V allir my Snj of t of I tlio iilHi ret the My Sv 8 |)rL'8ent did, \)y his Coiiiisul, ii!iHif>;ii liis errors iipdii tlie roconi tiixl pruccHs rotiiriicil by tlio said -IiiBtiee in purrt'iiiiipe of tlin siiid writ f Oyer and Terminer and Genera} iiuol Delivery fnr the e.rrciilton (if till Kii'iil RiiJiirt l''viin Sjirau/e atid a (;eiti(ied copy of the said writ of error, of the return of the .li'.stice thereto, of the a:^si " and •' (J" respectively. it. The said Roi)ert Evan Sproule has from time to time lieen reprieved by a Judge of tlic Supremo Court of I'ritish Columbia and the documents produced and shewn to me at the time of the swearing of tin's my aflidavit and marked " D " and " E " are copies of the several orders 20 of reprieve. 10. True copies of the several remands of the said Robert Evan Sproule to my custody by the said Supreme (Vnirt were produced and shewn to me at the time of the swearing of this my allidavit and marked "F," "G," "H," "J," "K," and " L," respectively. 11. The said Supreme (,'onrt of I'ritish Columbia at the time of the argument on the return of the writ of error consisted of Hve .ludges — «// of irhom icere unaninioux in alfirininy the conviction. 12. 1 was served with the rule nini herein on Tuesday the lltli day of May instant and 1 say that the day and cause of the detention of the said Rol)ert Evan S[)roiile appear from the several documents in this my affidavit referred to. on \?>. 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'^ S^ 05 I - w --^ CM 7 ''• ^ as o o " TJ t; = - o 5 ■" o O O 9 3^ S 3 S ;, S 3 t/j St 6C ^- bt tt •-( "^ >*-. ■'. 4-1 -^i -^^ '^^ 4-^4^-*— -^ t' O C O 3 O ;?; ^ Z O^ fe^. O 3 3 3 i C H 1) O ipcz;cc r- HH r- H r- I ■£ Hr-i it it - .5^ ^ it 3: _o X K^ 1) a y. ■■Izl ^ ^ tf-. > fc' >' a'^f^^H '4« ■t- ?- f^ ^•^ 3-? s ■-^ w 11. 3 3 ^ >-* t- t. < r^' — IT* r^ ~ .,"" z; d^ C^ c <<^< 5^ /j a> c -- S') (M CC « CG 02 0) bC >- 3 ri -i .t: 1 2 1 -k^ 4- 3 Z-^ iJ 1 ^ ^-. < <^4 u ^ ■O ca "C "A ^ D 1) aj 3 5C 3 * 1- -. ¥ ? 1; rv "^^ 3 Eq; ^O'il 7 'W 2 ■, ^ y. — 2 ■vi TT * 3 , 0; ^ • « ^^ 'O o "^ fIJ «4-i u. ►-■5 o '. i ^ f^ i; ^ ^^ O O C " if CS 0^ W <■/■; , ^ <£ L* 0) pt: •M 4) 2 Q ^o "it 3 «5 3 i tn rl -3 " irt 0-1 H- That the r Haiti tlio : llai Our hi'iii La. I tlie be t ,,f '■■■!} ^ 14 " B." CANADA, HRiTit^ii Cora'MHiA, Tliiit j)ortion of Viiiicoiiver iBliind up to tilt! forty-niiitli piirallel of Nortli Latitude. TO WIT : At a (leiieral Seswioii <>f Oyer iiihI Terminer and General Gaol Delivery holden under the Act pasucrf by t/ie Leyidntnve of the /'ravine of British I'ulumbia iii thejorty-eiyhth year of the reiyn of our prexent Soitereiyn Lady the Queen at the (Jity of V^ictoria in and for the 1^* liailiwiek of the iSherill" of N'ancoiiver Island on Monday the twenty-third day of Novenil)er in the year of Onr Lord one tliousand eij,'iit hundred and eighty-tive before the Jlonorable John llainiltoa Gniy >( Kcltiuary, in tlio vcur of Oiii' Lord uiu! tliniisMii'l fiu'lit liuinlrt'd ;iiiil cii^lity hIx ; the Iwciity-iiecniKl diiy nf Fohriiiiry, in tim yvnv of Uiii I.ki'iI niii; tliDiiHiiiid t'ij^ht Imndrcd and oiglify-aix ; tlic tweiity-tliird day of Kelirnary, in tliu vctr of <)iir liord one tlioiiKaiid (M^lit liiiiidrcd .iiid ci^lity-Hix, and tiii' twenty scvciitli day of Fcix'iiary in the yi-ar (jf Onr [.ord one thousand I'ijilit linndnMl and iiijjIityHix, in tlio t'ortyiiintli year id' onr I'l'i^n. Witness, llic IIonoraMi! Sir Mattlicw Bailiif llt'irl)i('. Kid^dit C'ldt'f .Funticn of Mritisli ('ointnl)ia, tli(! twcnty-sfvi'iitli day ol l''"lirnary. in the year of Onr Lord one tlionsand ciirlit liundrod and uijfjity-six. Annirifi; tlli' reeordH of tliis year, Our Lmlij fhr Qnft'u hitth Mnt to Her Justii'';' oj (nji 1() ami Ti^runnn' Her irrit clotlieii in thexe inordx, that in to sni/ : — VICTORIA, l>y tin; jiracc (d' (mhI of tlic I'liited Kingdom of Great Britain and lrolan( . (^iin'n Dofendor of tiie Faitli. To onr keepers of tlie I'oane and -Instices assigned tu lieai' and Jeterniino divers felonies, tiespassefi and oti er niisdenieaiujrs coniniitted in tiie I'roviiiee of Hritisli Columbia, and to every of them, (iKKKTINr.. I'ecaiise in the record and proceedings and also in tlie giving of judgment in a certain preseutment made against Uoliert Evan Sproule, «/ a yeiieral i^icssiun of the Court of Oyer it/x/ Terminer unit (ienirol Gaol Deliri ry holden at the City of I'ictoria, on Moinlay, the twenty. 20 third day of Novend)or, in tht; forty ninth year of our reign and suhseijucnt days, hefoi'e the llonui.dile Joiin Hamilton (iray,one of tlie Justices of the Supreme Court of iiritisli Cohnnhia, for iiiurtler ; wliereof tlu; said Uohert Evan ^proule was accused before the said Honorable tlfdin Hamilton Oiay. (Uiil wan thereupon ronoieted hy a certain jury of the Victoria IHdrict, tuhn hetwei'n ux und the tuiid Bohert Kvan Sj>roufc, as it is said, manifest error hath interven- ed, to the gieat damage of the said Iu)l)ert Evan Sjironle. as l)y his complaint we are informed. We being willing that the error (if error there he) should in due manner be corrected and full and speedy justice done to the said llobert Evan Spmidc in fliis behalf, do command you. tliat if judgment be ♦iieruu])on given, tlien yon s-erul us distinctly and opeidy under yi>ur seals or the seals of one of you, the record and proceedings aforesaid with all things concerning the 30 same with this writ, so that we may have them before us on the teiitli day of February, now instant, wheresoever we sliall bo in Hritish Cnhnnbia. that the record and proceedings aforesaid being inspected we may cause to lie further done thereupon for correcting that error what id' right and according to the law and custom of the Dominion of Canada and the Province of Hritish Columbia ougiit to be done. WrrxKss Ourself at .lames Hay Victoria the eight day of February in the forty-ninth year of our reign. l>y the Honorable ALEXANDFR EDMTND BATSON DAVIE Attorney tienend .-/' Our Lady the Quern for Our Province of lirltish ('olundiia. 4U Seal nf the Supreme \ (hurl of lii itixh I Columbia. I 16 Tlif iccnni iiiid |)n><(M(liii;;n wlipri'of tnontinn is within and ahovo nindc appeiir in ii certain i-(iiii!(liilo t(t tliJB writ iinnt'xod. Tilt' aiiBWor ol till- JuHtice witliin ninaud "J. II. Grav(L. S.)" Siirncd and H«>idod in tliu pruticMKH) of ) ".I.e. Males." ( I'KOVINtK OK BKHriM Cot.I'MUIA, \ Til, it [lortion of Viiiicoiiver [HJiind nptu ' tiic forty ninth imrrallcl of North | I.atitnde. / TO wii : H«! it rtMncinlierod that on TiutHday. tho tliirteuntli day of Oetohur, in tiic year of onr I,or' Siftlixj tif f/n dinirt nf Oyer mid Terminer ami (ieneral Gnnl DeliiH'ry hereAim^ter mentioned, and hefore the time of the i>riif the iiidii'lim iit }n rfinnjiir meiit'xmi d^ and after the time of the inHiiiny of the VcurmiKnion nod Lett' rx I'litenl hereinnjter vi(iitlon<//, felonioiisiy. willfully and of his nialict; killed and mnrdereiJ one 20 Tliniiias llaniniil (the said Sir Matthew liaillie Meghie, i\nifj;lit, lieing a .Indj^u who mjirht hold or sit in the Court at wiiieh the saiti liohert E. Sproule was liable to l)o indicted for the cause aforesaid,, and also conietli I'anlus .Knudius Irviuf;, ctober aforesaid, tlie said Honorable Sir Matthew I'aillie l!ei;bie, Kniiiht, in tlie prest-nct^ of the said iioliert K. Sproule. after lieariiii; the said PaiduH ^+]tnclins Irvinj; and Mr.Tlieodore Davie. Connsel fur the said Iioliert V.. S|)runle. dutii make and pruiioiince the order iiereinaft(!r set forth, tiiat is to say : — CANADA. I I'lMVINlK of itKiriSIl Cdl.l MBIA. ( KECilNA VKli'SllS lioiJKltr K. si'iiori.K. At the (,ity of Vietoria Tuesday the thirteenth dity of Oetoher A.D. 1S85. 80 I'pon motion of Mr. !'. A\. Fivin;^ of counsel for the Crown in tlie prosonce and hearini^ of Uoliert K. Sproule a person charged with and committed to stand his trial for lia\iMn' on the 1st day of .June A.D. I8S,") at Kooteiiay Lake in the LJailiwick of the Sherilf of Kooteiiay in the I'lovince of Miitish Columbia feloniously wilfully and id' his malice aforctlioiiglit killed and murdered one Thomas Ilammill. And ui)on hearing Mr. Tlieodoiv Davie of Counsel for the said Ilobert I^. S|)ronle and it aiii)eariiig to my satisfaction that it is expedient to tlie ends of .lustice that the trial of the said Ilobert K. Sproule foi' the alleged crime should be held at the City of Victoria. 4(, And Mr. Irving now undertaking on behalf of the Crown to abide by such order as tho Judgt' ulio m.iy preside at the trial may think just to meet the eipiity of the eleventh section 17 r fo prt'KiTilii' t. Silt M\niiKw ItAiLMK Mkoiiik. Kiiii^lit, ( 'liici' ■lu'.tii-it lit ItritiMJi Ciiliiniliiii iiml Ikmiii; u ic Jii'l^u wild nii;;lit ImM or hit in tli" ('mirr ;it wliidi ilu' siiil Uolicrt K. Spmulc i^ liiiliji! to I inili('ti'(| (iir fiif riiMHc iit'iirc ;iii|, (lo lici'chy ">r next. And I nrdcr tliat tin' said Ituli'M't K. Sproiiii* Im> n'mnvcd Ikmicc to tim •j^mA at tlio City of 10 Victiiiia Hnij that tho keeper (d the naid yaul di) fei-eive the said Itoiiert !•',. Sproiile into his uuHtndy in ilie Mild ^aoi and him vilely keep until he .»liull thoiKiu Ix! dulivei-ed by diiu eoiinu of Uiw, (,Si;,'n.,'d) MATT. W. i'.Kcr.lK. ('. .1. And he it also reinemliered that at the (reiu-ral St'.ssiuii i,f Oyer and Terminer and (ieiiei'al (.liiiil Delivery hniden under an Aet passed hy the Li'i,N>latiire of the I'l'iiviiiee nf i'ritish Cn'nniliia in the forty -eij^htii year of the rei^'u of onr presoiit Sovuroijjn I.ady tlio (Eileen V'ieti'ria hy tiie (Irace of (Jnd nf die I'nited Kiii;,'doii ut' (ireat Urit.iin and Iroland (^ium n Uot'eiidi'i- ol the Kaith. at the (.'ify ot' Victoria in an! fur tli;it purti m ut Vaiicuiiver Island wliinli is South ul' the l""urty-ninth parillol of Nurfli latitude on Monday the twc^nfy-third d:iy 20 d N ivenilier in the year uf unr l,prd uiie thousand ei^lit hundrid and oii;litv-tive and in the flirty ninth year ul' the rei;;n ot' uur said sovereii,'!! l/nly the (.iiieen hud'ore and preside I uver hy the llonuralile .lolin Ilaniilroii (iiiiy one of the .)iidu;es of tiie Siipivnu' (Jmirt uf I'ritish Coliiinhia the said the IloiiuraiiU^ Inhn llaniillun (rray hciiiir aUo u JiLsticu of oiir said Ltiily the (^iieen duly a^siirueil in under and hy virtue of a ('oininissioii and lA'ttors I'ateiit iindur the (ireat Seal ni the I'ruvinee id' Hritish ('uliiinliia lusiriii;^ date tiie third day of Scptenihor in the year of our Lord one taoiisand ei;iht liuii ired anil i)ii;iity-li\e duly named uiithuri/ed and ein|io\verud in manner and as liy I'ofurcnco to tlu! said Coinmir>t«ioii and Letters I'atiMit will more fully apjiear and which ("ommission and Letters I'atent are in the »vuids and tii;ures following;, that is to Kiy : 30 dint'eirs Anns) Grciil xidl I'l' tlir I'rueiuvf. iif UrittHi t'liliiiiil/ia. •CLEMENT E. COUXWALL VICTORIA l)\ I he ill lee uf (iud n\' the I'niled Iviiiniluni i'( (ii'eat I'ritain and Ireland ,md ot" tiie Culuiiies and I )epeniieneies iliereiif, ill I']uru|pe, Asia. Africa. Amei'ici iuid An.-tralia, (^>llreli, |)el'elliler uf the faith, iVc., iVc. iVc. I'll till' lliiiiiiiiihli Sir Mdllhiii' Jiiiillit llnjliic. Kiiiiilit. riie lliDiiiiiihh lliiiri/ l\rii\y I'rilitr Criilur, Tin lliiiinriilili ./dim lldiiiiltini (ti'iii, 'I'li, lloimriihli .hilm i',,>.l ,■ McCi'iii/lil^ 'I'll! Iliiiiiinihlf (imni' Aiilhiinij W iill:i m. •/ ifti'i.'f uf On r l.iulijfln Q>inu. (JuKKTI.Ni \\ « |-i'pusl Hi; -pt^cial trust ill yuiir learning iiitegrity and aliility A^^' hriei>y assi:;n and coin-40 i>,-iuii \uu the said c 1 Sir Matthew IJaillie l'.eu;l)ie, Knight. Ileiirv IVeriiii: ('ie;i>e, .lulin Uainil- \ M \ 18 ton (ifiiy, .Tdliii Fu^t.(•l• M('f.'rc;if;lit. 1111(1 (icorLft; Aiillioiiy Wiilkcni. jiiintlv and mcli of von s(!V('rall_v. to ciHiiiiii' hy tlic oaths n\' trmn] and lawful lucii of tin- oiir Province of P>i'itisli (-'oliiiniiia. DoMiinioii of Oaiiida, liy wlioiii tlio tnitli of tlie inattei' may lie hotter known and hy i,ili('i ways and nii'iins wiiLTciiy yoii or fitlicr of yon can or may tlio butter know moro fidly till- initli of ail treason!., misprisons of treason, felonies, misdemeanors, misdeeds, offences and ill jiij'ies wliat.-ocxcr ; and also the accessories o\ the same so far as they are criminally liable, by wlioiiisocver and h'lwsoever done, pirpetrated or committed and hy whom, to whom, when how and in wli:it manner ; and of all artil;le^ and circuinstanees to tiie jiremises aiui every or any of them hows icM'r. coiiceriiiiif; ; and to liear and otherwise determine the s.iid treasons and other the |ireniisc> in our Province of i'ritish (Jolnmbia, aeeordinf; to the laws of this oiir ProvincD [() liir tiie time heiiii; in force ; and also from time to time to deliver the f^aols and every the ji;aol within tlii.s oiir Province of P.ritish (joliimbia, of the prisoners therein being accordini;' to the .-aid laws of this mir Province for the time beitii;' in force; and al.so with i)o\\er and authority to hiilil (\)nrts of .Iiidicatiire and to summon or canse to lie summoned before yon and each of yon, in such inamier and by sueli forms a- yon nr eithei' of yoti may think proper, all p(!rsons by means o|' whum ir may hi! di!emed tliat the truth of the matters aforesaid may b > fully (lis- cliiseil all I iindc kiinwii ; and also to order flu; production of all books and dociiiiieiits which could lie |irodiiced or examined in any (/'ourt of law ; and also to commit to the (Mistody of the l\eepcr of any of ipiir gaols in this our Pro\-ince of I'ritish ( 'oiniiibia, any person or piirsoiis whii shall in any way presume to refuse or neglect to obey any of your lawful cummands in the 2(1 premises. In i i>riMoNV wiikkkoi- we have causi'd the (treat Seal of our said Province to be lierctu aflixed. \VnNi;ss the Honorable Clement F. ('(H'liwall. oiir i.ieiiteiiaiit (invcrnor 'd' oiir saiil Piii\iiici' of liritish ( 'oliimbia at niir (tiiv('ri.iiieiit House, in niir City d Nictuna, tin.- third day nf September, \.\). l^^!). and in the fortv-ninth year of our reign. I'y coimnaiid. ,IN(». ROliSON, J'rdiuxciitl See ret an/. l!v the oaths .if Charles William ilingler 'rhomsmi. Percival llidoiit P»rown I'Vank Stillman narnard. .luhn lialpli Mit.-liell. I'eirr .b.hn Leach. Umit Harvey. CliarU's Kent. TliMmas .N a pie i 30 llibbeii. .lohn 'i'eaipie. Thomas Hickman Tyt'. Alexander .Mfreil (ireeii. .Mexaiider I'lair Crav. William richer. William Dalby. Henry Kdwanl < 'ruasdaile. Tlioin s .Vugustns Collier goml and lawl'nl men of the Di.strict or I'ailiwick of the Sheriff for X'ancouver Island, siiiiimoiied diily from the X'ictoria District as established by the ••.Inini's Act l^.S.H." and (pialified according;- tn law then and there impanelled sworn and charged to einpiire for the said Lady the <^ueeii and fill- till' body uf the .said Bailiwick of the Sheriff U>y Vanoiiver Island, it is presented in manner and biriii ,is bdloweth, that is to sav : P.111TISII COLIMPIA. ro wn : The Jurors for our Lidy the -ilfnll\ and of his malice aforethought did kill and murder oiu' Thomas Hammill agaiiisl the peace nf oiir Lady the (Jiieeu Her ('rnwn and Dignity. 19 WiiHi!Hi;i'i(N till' silid Sii(>rilT is coiiminMiliMl tli.it lu' omit nol for liliorfy witliiii liia I'ailiwick, liiit ciiiisL' hiiii the s;ii(l lidhcrt Iv Siirmilc to CMiiir :iiul answer to the I'cldiiy wlicn'ut' lie st.iiii(is indicted. And lli( siuiie Session of {)yv.v :uid Teniiiiii r and Oenoiii! 'iaol Didivory of our said Lady the (^)iieen is held a'ld ('(MitinntMl ijnririi; ti;e saiti fweiify-riiird day of Novtniiher af(<\v named, hen; coinetli the said Uohert K. Sproule under the cust(Mly of da ues Kliphlet M<-Millan Ks(|uire, SherilV for Vancouver Island aforesaid in wlnjse custody in the ij-aol at the City of \'ictoi'ia afoi'csaid for the catise aforesaid he had heen committed, heinii' hi'oU'dit to the bar here in his proper |iers(in hy the shci ilf to whom he is iiere also committed, and haviiiL;- heai'd the said indictment I'cail ami iMMiig asked whether he is guilty or not guilty of the premises d olds' from tlii' Victoria District as established by the •'.lurors .Xct i?^S:','' and ijualih'ed according to law by whom the truth of tile matters may be bettei' known and wdio are not 'f kin to the said Robert E Sproule to i-ecoi;iiize npoii whether the said Robert K. Sproide be gmity of the felony and mui'iler in the indictment above gpecified or not guilty because as well the said .Moxander Ivhnund I'atron Da\ic who protJecntts for our saiti Ladv the <^uecn as aforesaid as the .said Robert E. Sj>roule 30 ha\e put themstdvcs upon that jnry. And thereupon the said Robert \i. Sproule challenges foi' caur-e one id' th.' said jurms namely Ridpli l'>orthwi(d< and jieremptorily challenges sixteen utIuM' (d' the said ju''y, nameh, John Matthew-. l*"rcderick Came the younger, .Michael I'aker. Jonathan Ihillen. ,lohn Thomas lliggins, Joseph ^\'i'rton Armstrong, Willis liond, (ieorge illiam .\nderson, ilerliei't Dodiison, Sleplujii Kulton Mcintosh. James Shupland. (ieorge Deans, John lilack, Jamc- Hood, .\iiliur J. Rowbothan and Thomas King, ail of wliich said cliallenges are allowed to him. And Roger KIphinstone one of the jiiroix of the said .Inry upmi the pr.iver nf the Hunorable .\le\;milei' Ldnmnd itatson 1 )avic, who prosecutes foi- otir said Lady the (^ui'en as al'ircsaid, is ordered by the ('ourt to ,-tand ;,side. 40 ,\nd thereupon he jui'ors of the said jury foi' this purpose empanelled an 1 returned, to wit, William lieiirv MaMin, Andrew Laing, William Hick, (ieorge (iood, Joseph (iovi'tfe, ' William Man;;. John Lllis Itkickniorc. Josepli Rovve. Thongs Llovd Davies. Tlioma> l!eii;illick I'eter I •>rr ,iiid J.ime.- IJoyd, being called come, whc to speak the Irnih of and concerniiii;- tiie M*^ '''^' if' <■■ 20 promises arc withuiif any ohjoctiuii mi the |)art of tlio said [{uhert Iv Sproule cIicikwi tried anil HWnrn. And tjt'causc affiT tiic said trial had hccii duly proceedcii witii for and during sovL'ral iiour.s (III tlic sai-eth(>r in 1() th(! ciistudy of the said Shciilf ;the said .liny heinj;; first cautioned hy tht.' said .Iiisti(!e in Court hen? not to eoinmnnitMti' with any pcr-on or to permit any person to conimniiieate with any of them or to separate) iiiitij the said Tiiursday. the third day of Deeeinher, at which said last mentioned sessitui of Oyer and Terminer and (JemM'aMraol Delivery lioiden liy ailjonrnmcnt at the Sii[ireme Ciiiirt House in Xictoria aforesaid, in and for tlie siiid IJailiwiek. on the said 'l"hur>d;iy. the third day ol Deeemhcr. hefortf the said .lustiee last ahove mentioned, come as well the said Alexander Iviiniind l!atson l-)avie. wlio |)roseentes fur our [iidy the (iuoen as aforesaid, as the said RoIkmI E. S])rouIe. and the jurors also eonic and the trial of the said lioliert E. Spronle is also proceeded with. .\nd hecanse after the said trini had hoen duly proceeded with for and diirin;; s('\eral hours OQ on the said Thursday, the third day of Deeemlier. it manifestly a|)pears to the Court that the tri.d of him the said Rohert E. Spnnile cannot he coiichidcd on the .said Thursday, the third tliiy of Decemher, the same trial of the said Rohert E. Spronle and also the said session of Oycn and Terminer and (Tcnera! (laol Delivery arc hy tlie ('ourt liere diiiv adjourned at a lat(> iiour until the next Friday, the fourth day of Decemher aforesaid, at the Supreme (^)urt TTouse in \'ictori;i aforesaid, and the said Rohert E. S|)roule is committed to the custody of the said SherilT in the said goal aforesaid, and the said jurors coiiimittod to ami kept toLcether in the custody of the .said Sheriff (the said ,luiy heiiig first cautioned by tlie saiil .Instice in Court lierti not ro communicate with any person or permit any person to communicate with any of them ol' to separat(M until the saiil l-'riday. tlu' fourth day of Decediher, at which said last mentioned 3Q ses.-ioii of (Iyer and Terminer and (ieneral (iaol Delivery holdeii hy adjournment at liie Suiireme Court in \'ictoria aforesaid, in and for the said I'ailiwick, on the said Friday, the fourth (lay .if Decemher. hefore the said Justice last mentioned, come as well tlie said .Mcx' ander Edmiiiu! IJatsoii Davie, wiio prose(Mites for our Lady the (^)uecn as afores.iid, as the said iiiro rs also come and the trial of the said Rohert E. Spronle is a! Rohert E. Spronle and tl proceeded with. .\ii(l hecaii.-e after the said trial had heeii duly proceeded with for and durinii' stn-eral hours on the slid Friday, the lourtii day of Decemher, it manifestly appears to the Court that the trial of mm the said Rohert K. Spronle cannot h oncliK tl le sa id Friday, the fourth (la\ f Decemher. the same trial (d' the said Rohert E. Spronle and also,.j.Q tl le sail! se.'-s loll ot ( ha I ail 1 ermiiier and (ieneral Caol Deliverv are hv the Cuurt hert duly adjourned at a late hour until the next Saturday the fifth day of Decemher aforesaid at the Supreme Court House in N'ictoria aforesaid and the said Rohert E. Spronle is cominitted to the custo(l\- of ihe said Sheritf in the said Caol aforesaid, and the said jurors committed to and kept tojit'ther in the custody id' the said Sherill' (^tlie said jury being first cautioned by the said 21 Justice in Court lion; not to coniiiiuiiieiite witli iii.y |)cr,'oM or permit any person to conininnieate with any of tliciM or to separate) until tlio ."aid Saturday the fifth day ot December at which last mentioned session of Oyer and Terminerand (Jenoral (Jaol Delivery holden hy iidjoiirnmont at tlie Supreme (Jourt House i:i Victoria aforesaid in and for the said Iiaiiiwiek on tlie said Satnrdas the tiftl: day :)f I >e<^emher liefore the said Justiee come us well tlie said Alexander Edmund Hatsoii Davie, w lo proseeutcs fur (»ur Lady the (^ueeii as aforesaid as the said Rolx'rt E. Spronle aii jurors aisij eonx! and the said trial of the said Iloliert E. Sproule is also proceeded with. And hecanst! after tiie said trial had Keen duly proceeded with for and durinj^ several hours on the said Saturday the fifth day of December it manifestly appears to the(youit that the trial of him the said Robert E. Sproule cannot be coiiclu(k'd on the said Saturday the 10 lifth day of December the same trial of the said Robert E. S aW- and also the said session of Oyer and Terminer and (ieneral (Jaol Delivery are by the Court here duly adjourned at a late; iioui' until the n(!.\t Monday the seventii day of December aforesaid at tlii; Supreme (Joiirt house in Victoria afoi'esaid and the said Robert E. Sproule is counnitted to the; custody of the said sheriff in the said piol aforesaid, and the said jurors committed to and kept t(i:,feth(>r in the custody of the said sheritT (ilie said jury bein^ first cautioned by the said Justice in Court her; not to couMuunicate with any person or permit any person to communicate with any of tht'iu or to separate) until the saiil Monday the seventii day of December, at which said last men- tioned session of Oyer and Terminer and (ieneral Gaol Delivery holden by adjournment at the Supreme Court House in Victoria aforesaid in and for tlie said Raihvick (m the said ^[onday 20 the seventh day of December before tiie said Justice last mciitioned came the saiil Alexander Edmuuil Bats(Hi Davie who |)rosecutes for our Lady the (Jueen as aforesaid as the said Robert E. Sproule and the Jurors also come and the trial of the said Robert E. Sproide is also j)ro- ccedcd with. And because after the said trial had been duly j)rocecded with for and during several hours on the said ^fonday the seventh day of December it manifestly appears to the Court that the trial of him the said Robert E. Sproule cannot be concluded on the said !^[onday the seventh ilay of December the same trial of the said itobcrt E Sproide and also tlie said .session of Oyer and Terminer and (4enoral (iaol Delivery are by the Conn here duly adjonrne communicate with any of tlu!in or to sijparate) having Hi'st consulted upon their vervt> in(Milii>n('() CKinotli tm woll flic said Alt'xandor Eiliniind ll'ifnoii Oavio, \v\u> \mr^cnto» fill' .iiir Latly ilic (Jiiccii an alorcsaid uh tlu« !, betore Her Majesty's Sii|)reme Court of British Columbia, cometli the said Uobert Evan iSproule into the Court here under the custody of the Sheriff for Vancouver Island, by virtue of a writ of habeas corpus issued in that behalf, and immediately saith that in the record and process aforesaid, and also in giving the judgment aforesaid, there is manifest error in this. 1. That the indictment does not appear by tiie said record to have been found and presented by good ami lawful men of the body id' the county or bailiwick of the SheritT for 30 Vancouver Island, which county or bailiwick is i)y the '^'leritT's Act Amendment Act, L'^TSt declared to extend over all that portion of Vancouver island which is south of the 4lttli })arallel ot north latitude, sworn to, encjuire for Our Lv.dy the (^ueen for the body of the said county o'" bailiwick. Wherefore in that there is manifest error. 2. Tliere is also error in this, that the said Robert Evan Sproule had not a jury from the body of the ctiunty upon which he cou ! put himself upon his trial as by law he was entitled to have and section \. s.s. \. and sections .'5, 34, and .'55 of the Jurors Act, which assume to enact that jurors shall be summoned only from a limited portion of the bailiwick or county is ulh'u vifiK and void. Wherefore in tiiat there is manifest error. :!. There is also error in this. That the indictment does not show the alleged oiTence to 40 have been committed within the jiiriodiction of the court or witliin the realm at all. Where, fore in that tliens is manifest error. 4. There is also error in this, that the record alleges the offence to have occurred at Kooii-nav Lake within the Distric-t or l*>ailiwick of the Sheriff of I\* no power to iHsiio the name ; And Heeondly lieeauMc the caid eoniinirtsion ernpowerH the coniniiHsioiierH nominated \ty it t<. proceed contrary to the coninioti and htafnte law nf the land in tluH that it einpowerH tlioin to eni|uirc hy the outiiH of ^ood and lawful nu>n of ItritiHh ("nliunliia i.'enerally instead of l>y (he natliH of ;rood and lawful men of the !)ihtrict (,'oiiiity or Juiisdiction wherein tlu; empdry is lieinj,' taken. Wheritnre in that there is manifest I'rmr. (>. There ix alrio orror in thir< that the coininisHion dues imt nanu> the (bounties or districtH in which tlie enears to the said Court that tho examination of as well the record and proceedings thereon and the .huigincnt thereon given as the nuitters above assigned and alleged for error cannot be concluded on the said Monday the twenty-second day oi Fel)ruary in the year of our Lord one thousand eight Iiuiulred and eighty-six the said Robert E. "nroule is remanded to tho custody of the said sheriff in the said gaol aforesaid and the said sheriff is ordered to Ijring tiie said Robert E. Spronlc before this said Court on Tuesday the Twenty third day of February in the year of Our Lord one thousand eight hundred and 10 eighty six. And on Tuesday the twenty-third day of February in the year of Our Lord one thousand eight hundred and eighty-six before our said court as well as tlie said Honorable Alexander Kdmuiid Hatson Davie Attorney-General of our said Lady the Queen as aforesaid as the said Robert E Sproule in the custody of the said siieriff conitth and the examination of as well tho record and proceedings thereon and the judgment thereon given as the matters above assigned and allt'ged for error is proceed'Hl with and because the Court here is not yet advised about awiudiiig judgment of and upon the premises tiie said Robert E. Sproule is remanded to tiie custody of the said sheriff' in the gaol aforesaid till such time as the Court shall award judgment. And afterwards on Saturday the twenty-seventh day of February in tlie year of Our Lord 20 one thousand eight hundred and eighty-six before this said Court as well as the Honorable Alexander Edmund Hatson Davie .\ttorney-General of our said Lady the t^neen as aforesaid as the said Rolu^rt E. Sproule in the crstody of the said slieritt' cometh. WuKuicn'oN as well the nscord and |)roeeedings aforesaid and the judgment given in manner and form iiforesaid as t]\v. mattei's aforesaid by the Robert E. Sproule above for error a-figi:ed, being seen and by the Court of onr said Lady the Queen now here fully understood and mature delibi'ration being thereupon had, it apje'.iis to the Court of our said Lady the Queen how here, that there is no error either in the record or proceedings aforesaid or in the giving of the .ludgment aforesaid. Therefore it is considered and adjudged tiy the said Court here that the judgment aforesaid 30 be in all things atlirmed and staiul in full force and effect, r.v the Court. .lAMKS C. I'REVOST. J St'al (if the Supreme Court I 1 of Hritisli Cviumbia. [ L .Iamks Cn.Mti.Ks I'uKvosT. Registrar of the Supreme Court of British Colnnd)iM, do here- by certify that the aforegoing twenty sheets ui paper writing, each of which is signed by me. contain a full, tine and correct transcript of the Records of the Supreme Court of British Cobnnbia, in the ca.se of Robert Evan Sproule, I'laintitf in error against the (iueen, Defendant in error. And I further certify that the judgment of the said Court in the .said record appear- ing was the unanimous judgment of the said Court, which consisted of all the .ludges tliereofiiO nanu'ly.Sir Matthew Itaillie i?i'gbic. Knight, Chief Justice, the Honorable Henry I'eriug I'cllew Crease, the Honoraiile .loliTi Hamilton (iray, the Honorable John Foster McCreight, , and the Honorable Ceorire Anthonv Walkem. yft 26 In Tkhtimony wiieueof. I huvu hereunto sot my liatid aiul affixed the i^eal of the Supreme (Joint of Britisli Cohimhia. the twelfth day of May, A.D. 1886. I Seal of the Supreme I i> ■ ^ - Conn of BrUnh\ Hefiisirar. " D." In the matter of Ruhert Evan Spnude, eotivicted of mnrdei and sentenccrl t.i death, tineh sentenee not tu ho eairied into effeet until the <.th April. ISSfi. I, the llonorahle John IIamii.ton Gkav. one of tlie Judges of Her Majesty's Supreme Tourt of Ritish (lolumhia. hefore whom the trial and conviction ot the said Rohert Evan S|)rouie took place, do order and direct that execution upon the sentence of death passed njion lU the prisoner shall not be carried into elfect until Tiinrsday, the fith day of Nfav. A.D. lS8(i. Dated at Victoria, the l:Uli ^Farcli, A.D. 1880. (Sd.) J. II. GRAY, ./. 6'. C. To the Slicriif ot Vancouver Island. Certified true copv, JAMES C. PREVOST. R. This is the order of reprieve marked •' D," referred to in the affidavit of James Eliphlet McMillan. Sworn tliis 12th day of May hefore me, OQ IIENRV P. PELLEW CREASE. Jiiihji' (if the Supirmo Cotirf <>J' liritifh Cdliniil'id. " E." In the matter of Rohkut E\ an Si'unn.i:, couvicrt'd of murd(>r and sentenced to death, such seiiteni'c not to lie carried into cU'ecl until the C.th May. 1SS(>. I, Siu M.vnEf.w n.Mi.i.iK nKciiiE, Knight. Chief .justice of the Supreme Coui't of Pritisli C'olumhia, in which said Court the trial and conviction of tlic said Rohci't E\-,in Sproulc took place. (I(t order and direct that execution upon the sentence of di'ath ]>asscii upon the prisoner shall not lie carrieil into ell'ect until Monday, the Tth day of June. A. D. ISSfl. Dated at Victoria, the I'.rd May. A. D. ISSt;, To the Sherill' of \'at)couv(>r Island. (Vililicd True Copy. iS,l.) MATT.!!. l!E(iP.IE. JAMES C PREVOST. \S,->i/ ,>/ f/>, Comi). J,'. This is the order (d' reprieve marked E. referred t(j in the alHtlavit it/i/r (>f //iiSi/ji/wni Court I if lirltiKli ('(iluinliiit. 30 I I 27 " F." IN THE SUPREME COURT OF CANADA. Monday, tlie HfteeTith day of February, A. D. 1886. RoBEKT Evan Spkouf.e, the PlaiiitilT in error, l)eiii<,' hrougiit into Court in custody by the Sl.(;riff for Vaiicouvcsr Inland, hy virtue of a writ of /'aheas Corpus. It is ordered tliat tlie said Robert E. Sprouie be remanded into the enstody of the said Sheriff, and tliat tlie said Siieriff do brin<; the said Robert E. Spn.ule before this Court on Friday, the lOtii day of Eebruary, A. D. 1880. at tiic liour ..f 11 o'clock ili the forenoon. (Certified True Ccpy, By the Court, JAMES C. PREVOST, JAMES C. PREVOST, 10 A'. a. This is the remand marliilot McMillan »\V(ini tills 12tli day of May A.D. 18Sfi before ine, HENRY P. PELLEW CREASE, Jiiihji of the SKprerni: Court of British Colainbia' IN THE SUPREME COURT OF I'.RITISII COLUMBIA. ROHEUT EVAN SPKOULE Plaiutitf in Error, THE QUEEN Defendant in Ei'ror. 10 Tlie Plaintiil in error Robert Evan Spronle heiriff Kroufjlit iiere into Conrt in custody of the Sheriff for Vanccnver Island liv virtue of a rule of this Court the artrunient not beiu'' concluded is remanded to the same custody eliarf lirltish Cohtnihln. "J" IN THE sri'REMF t.'OURT OF BRITISH COLUMBIA. ROItERT EVAN SPRoULE. Plaintiff in error, vs. THE (,»UEEN, IM) Defendant in erior, The Phiintiff in error Robert Evan Sproule beinu; broui,dit into Court in custody of the Sheriff foi' Vitncouver Island by virtue of a Rule of this ('oiirt the argument not bein<;' eon- chided is remanded to the .same eustodv chari,n'd with the matters in the said rule nu'ntioiu'd. And it is further ordered tliiit the said Sheriff do brinu' the .slid Robert Evmu Sproule belore this Court on Tue.-iday the 'i.'ini day of i'\.bruary ISSt;, at lit..".tl A. M. I'.y the Court, HARVEY COMBF:. (^L.S.) Depy. lieijistrar. •29 Tliis is the roinnr.d marked J roferrcd to in tlio affidavit of Jiimos Eliplilet McMillan, (*w ig the said Robert Evan Sprouie before this Court on Saturday the 27th day of {•'ebruarv 1886 at 12 P. M. (L.S.) By the Court. HARVEY COMBE, 20 Bej), lieyistmr swor This is the remand marked K referred to in tlie affidavit of Jaines P^liphlet McMillan, •n this 12th day of Mav IfSSd before mc HENRY P. PELT.EW CREASE. Judge of the Sujrreme Court of British Cohinilna. Certified true copy. AMES c. r RKVOS'f, IN THE SUPREME COURT OF HRmSH COLUMl'.IA. ROBERT EVAN SPROULE. vs. Plaintiff in Error. 30 THE (iUEEN. Defendant in Error. The Plaintiff in Error, Robert Evan SprnuJe, being brought here into Court in the custody of the Sheriff for Vancouver Island. I.y virtue of a rule of this Court, is rem;inded into the custody of the said Sheriff. liv the Court. JAMES C 'REVOST, Dated 27tli Kebmary. 188(5, (!ertilied true copy. JAMES C. PREVOST, E. 40 iiijjki. so Tliia i8 tho reniaiid iiiarkffl L, refoiiui to in t ho iitHdavit of J.imt's Eliplilet McMillan. Sworn on the 12tli dny of May, 1886, lief ore mc, IIKNUY r PELLKAV (;REASE, ,fi((lN of tin; City of Victoria in tli'if'< in fhe Supreme C'nurl af Britisli L'olumhia. \ (Signed) S. i'. WOOTTON. 30 M To one of the .ludges of the Siipreme Court of Canada. Lord, 1 humbly recpu'st that Your Lordship will peruse the co])y authorities under which I am now held a prisoner ill the comtnon gaol at the City of Victoria, in the Province of British Columbia, and that ^'our Lordship will be pleased to grant me a writ of //rtJfrts CW^hs, rcturiialile befoie Your Lordship, with the day and cause of my liei.ig taken and detained. Dated at Victoria, British Columbia, this seventh day of May, A.D. 18St5. Si(iNKi) in the presence of 'Ki'-^ ,' Hiler V\ li^gd.) ! or I ^ (Sgd.) J. W.'lIiiviiisoN-. ^ (ntoler Victoria (/(lo/, B.( . ) S. Y. WooTio.N, of Victoria, Solicitor. iSigned), ROBERT EVAN SPROULE. 40 (Sg»10 G. J., Jb. 81 f, Jamkh Ei.nMiAi.K.T Mt Mil, I, AN, c.f tilt' City uf Victoria, Uritinli ('i>lniiiliia, Shorifl for Viinciiiivor I«laii(l, liorehy certify tliiit the annexed y me. Dated at Victoria, itritinh Coluiidiia, tliiw seventh day of May, A. D. 1880. iSgd.) J. E. MuMlLLAN, S. Y. W. Sheriff. " A." • IN TIIK SITPUEMK COVUT OF lUMTISH ('OLIIMRIA. 10 IIOIJKUT KVAN SIMIOILK, IMaintill in Error, vt, THE Ql'EEN, Defendant in Error. Tlie Plaintiff in error Robert Evan Sproule l)eing l)rought here into Court in the custody of the Sheriff for Vancouver Ishiiid l.y virtue of a rule of tiiis Court is remanded into the custody of the said Sheriff. Hy tiio Court, "JAMES C. PREVOST," i?. 20 Dateii Feliruary 27th, 18s«, [L. S.] ^ |i ca o CO ^ § 35 a .ii:5 M w^ ^ 32 CO a 2 I f^ a tj'Z, S3 — -ja >i< — r> f£ r^ t- ^ ^ '^ y ' — -:: !- >< c'=?- '^-=^'=;J=' •1 -^ ri ;^ *J ^ 2 3 O n •/! 1_ 2 S "-o ^ .-< ^ — 'VO X CO (?1 — — — CQ U CO yj ::i tf tfc bf. C- U tc tLC-C--' a(4 >^ x: x; ;r ■-<. ^;^;5 PC, oa M 3S ;r r- Hfx r- y; '/5 <^. *- •*» Ij _u ^ ^ ^ o ji; O — X bl. C r r - X. y. y u- i'-o irti 72 \ fM CC "♦* iO ^ ** -/. T. Z. —' —: X SO CO « *f' ^ 34 15KITIS11 COUMUIA. I l() w.i WiiKUKAs it iipiKMis to tlio siUisl';u'ti(iii oi iiif MiittliL'w lliiillie l!i'j;-l)io (^'liief .liistico of the Siipi'eiiic Court ol I'litisli Coliitiil)ia a -linl^e wlm miirht Ituld or sit in tlie Court at whieli Rolicrt Iv S|)ronl(' a jirisuin'r inw contiiu'il in New WcstiiiiiistiM' (iaol uinlor ii warrant of ciiiMMiitMii'iit j;ivcu 'IikU'I- rlie IkiikI ai d seal of Arthur \V. Ilnwt'll oiiu of IIui' Majusty'.s .lustiics ot tlu' IVace in and for tiic I'rovi.icf of Uritisii ('ulu.nliia is liai)li' to huindieted for that lie the said Kohert K. Sproide did on the liist dav of .Imir A.D. issf) feloniously wilfully and of his iindice aforelhoUiiht kill and murder one Thonias Haniniill that it is expedient that the trial of the siud liiiiiert E. Sproide slmnld he held in tiie City of Vietoria (heiiiir i» jjlaee other than that \{) in uiiich the said otletiee is supposed to have hcen (^oniniitt(Ml) ; I (ill order tiiat the trial nf t K' !-aid Kiiiicrt Iv Spi'iiule ?• lie >\\:\\\ lie l) roeeedoil witii at tiie C'ourt d' ( *V( r and Tt'iiuinrr and (ieiicial (iaol I >i to he 111 dell at tlir City of Vieturia illKl I do order the Keejier of the New ^\'e^tnlinst^'^ (ianl to lUdiver the said Robert E. Sproule to the Keeper of the (iaol at Vietoria City, and 1 Mil nl'iU'r and (•oininand yon the Keeper of t' said Gaol at Vietoria City to receive the said Knlii'it iv Spmule into ymir eustodv in the sad j:aol and there safel\- keep liini until he !-liall In' thence deli\cred hy due course nf the law. Dated at Vietmia tl;i> l.'Uh Octnlier, 1^> (Sud, MATT. 15. BEGBIE, C. ./. IN THE Sll'UK.MK CnrKT ol' CANADA. 20 In the tiiatter nf a /"A /'''■•<> i^n d nil .>[ondav. the .".rd dav i.f Mav, A. D. ISSti, for a writ of //(///( (/,< ( 'iirj>".'<. rfi| airing' the Slierilf fur \' ini'ipiivcr Island to I irini;' Ik: fore a .ludire of the Supreme Ciiuri of Canada the limiy nf niic Unnnii Kv.w 8i'iioi;i.i:. I. Tiii;oi>oi;k D.vvii:, nf the City "f \'icinria. I'arii-tcr-at-Eaw, make oath and say as toll OW^ That the order in tin; aliove matter as drawn ii]) and in existence at the time of the trial of the said Rnlicit Evan Spi nlllc, r ■ferrcd fn in the alHdavit 'if .lanie< E. .^le^[lllan tiled liereii the 'iiind Mav. in>t. was in the vVnnU and ti^iires nf the dncument hereunto annexed and iiiaiked A. and imt ntherwi>e. ^wnrn tn at the Citv nf Ottawa, tlii 'Jt'ith Mav. A. i). 1*^ t'>. hcinrc me. 30 (Sj;d.» \V.\i.iKi! .1. TiiitMC, TIIEODOUE DAVIE. .1 i mil III r, ' II ■ IN THE sri'REME COIIM' OE CANAD.V. f Kmuui E\.\.N Si'um i.K. a 1 ri>n!icr in the cmni E. McMillan, the Sheritf tnr V in the UMttfi- n Cnlumliia, in cn>tnd\' nt .lai innii iraol at Vietnria, I'ritish mcniiver island 36 Fpou rciidiiijj; the rule nr order f^iaiitcd iti this itiattur on tlia third day of May, one thousand oij^lit lumdrcd and oii,dity-six, callini,' upon James E. McMilhin, E'jq., Sheiiff for Vancouver Ishmd, to short- cause wliy ii writ of //«fe«« Co/yxM should not issue, requiring liini to iiriui^ before tlie Court tiio liody of Rohe.t Evan Sproide, tofjjether witli tlie day and cause of his detention, and wiiy, in tlie event of tlie writ heiiig allowed, the prisoner should not be discliarged without the writ actually issuing or the prisont r being brought before the Court, upon hearing Mr. Hurbidge, Q.(J., and Mr. (JornuiUy, as of Counsel for the Crown, and Mr. McCarthy, (}.()., and Mr. Theodore Davie, as of Counsel for the prisoner, and upon reading the several affiilavits upon which tlu! said order of the third day of May was issued, and the further affidavits of the prisoner, filed on the tifteenth day of May, one tliousnid eight 10 hundred and eighty-six, of Stei)hen Vardiuy Vv'ooton (with demand of the prisoner for & IlaieitK CorpUiH and other documents attached or exliil)ited) Hied on the twenty-second day of May one thousand (Mght hundred and eiglity six. of James E. McMillan (with . ISM). ^Signed) W. A. HENRY. A Jiithje of the Supreme Court of Canada- Entd. fol. iS.^. J. L. THE gl'KEN VS. SPROl'LE. Henkv J. This is an Onler tn >liiiw cause why a Writ uf Ilnheax rorprni ad sid/Jificndinn should not issue to the Slierilf of Vancouver Island Mritish Columbia, to bring up the body of the above named Robert Evan Sproule toget'ier wirli the day and cause of his detention in the custody of 30 the said SheritT and wdiy in the e.-ent of the allowance of the said writ tlse said Robert Evan Sproule should not be discharged from the said custody without the actual i.ssue of the said Writ or the attendance of the <.aid Robert Evan Sproule before me. The Order was dulv servecl ii|)i,n the SlierilV of Vancouver Island aJMl np(m the Attorney Oeneral of P.ritish Columbia ; and. on the argument before me, on the twenty-tifth and twentv-sixth davs of May last past, cause was showed on behalf of the Crown against the discharge of the jirisoner. The an'umeiit on both sides v\as able and exhaustive, and my labor and in(piiry much less than would otherwise have been necessary. Having been occupied, howev(!r since, in the hearing of arguments in term or session of^(^ the Court and in delivering judgment in other ease-, in Court. 1 have not been able to prepare my judgment at an earlier dale. I 36 The (tasu is u novel oiiu, particciliirly in tliu Domiiiioii ; ami roijiiirod, and lias liad, my l)e.^r ooiiHidurittion. Tiio Jiidi;;e8 of tlio Supremo Court of Canada derive their authority in re<,'ard to Writs of llabeux t'orpuK (1(1 tuth/tciinilHin from tlu! olst section of the Supreme and Exchequer Courts Act of tiie Dominion, passed in ISTo which is as follows: '* Any Jud^e of the Supreme Court shall have (!oneurreiit jurisdietion with the Courts or '* -ludfjes of the several Provinces, to issue the writ of IlabvitH Corpus ad aubjicienduin for the " piirjHwe of an entpiiry into the cause of eommitini'iit in any criminal case under any Act of " the Parliament of Canada * * * ." The Supreme (,'onrt of Pritiiin. h r complete cojjnizanee 1^ pUaM^oA. he circumstances 10 section hcfore of all pleas whatsoever " and hi^s juristaiii the proposition that when ascertaining the cause of the commitment of a prisoner it is shown that tiie Court had no jurisdiction to try ami etnvict him, ho is entitled hy law to his diAi. I!. H. at pag • TT'iV " It seems to me I '• must say. a strange argument in a Court of Justice to say that when, as the law stands^ " foniKil pron'i'itiuijXy are in strict law rdiuired, yet no suh^taiitiai injustice has been done by " dealing (-uinmarilv with a defendant, the proceedings slmuld be upheld. In a Court of law " such an argument a tiWtiHenienti is surely inadmissable. In a Criminid proceeding the 49 •• onestion is not alone wdiether sulistanti il justice has been done but whether justice has been " done (ircordimi to /mi'. .\ll proceedings in poenam are, it neeil scarcely be observed. >' strictisimi juris ; nor should it be forgotten that the formalities of law, though here and m 37 tlit'ii- timy may li'iitl to tliu l'scii|h> .,i it prcscrilies a plenary course of prociH-dure hy which, if at all, the olTeiice is to he iiroii:;ht home to a party charj^od with having coninntted. it. If a Court having jurisdiction over tiie offence, takes U|)on itself to suhstitute a different and more summary metiiod of pmeee ling, surely this is to make the Court, as it were, super- cede the law." The prisoner was indicted at Victoria and tried theie under an indictment which is as ows : foil I'.lilTISIl COH'MBIA. To WIT 20 '• The .lurors lor o;ir Lady the (^ueeii upon flicir oath jtresent that Robert E. Sproule on '■ the first day of June in the \eaf of our Lord one tliousind eight hundred and eighty five, " felonioiislv, wilfidiy and of his malice aforethought did kill and murder one Thomas II iMiimill against the peace of Our Lady the (^ueen L.^r (!rown and dignity. The homicide of llamnull took place at or ne.ir to Kooteiiay. in Uritish Columhia, distant from Victoria ahout seven hmi(ire(| miles. The l'ro\ince was liy several .Vets of its Legislature, the last of which was in l>>>ri, divided into judicial Districts or (Circuits ; and Courts of assize and /)/.v/ />/v'»/.v, and of Oyer and Ti'rminer any atlidavit that an < )rder for a change of venue to Victoria was made and signed iiv the Icarmd Chief .liistice of l!ri(i.ii ('olum!)ia. That Order was suh- seipientlv considered, and ni> donht properly, defectivi- ; as it made <:<> provision as recjuired hy the Statute for such conditions as to the pavment of any additionai expenses thereby caused to the accused as the Court or , I nd.'c ma\ think proper to |)rescribe. The prisoner, previous tv- the makin" of that Order, was in custody for a crime alleged to have been committed by him within till' l*>;iiiiwi(d< of the Slicrilf of Kootenay Imt was taken by .some jn-occss, the nature of which does not ajijiear. betoie the learned Chief Justice; ami, by his Order, before referred to, committed for trial to the cn>toiiy ot the Slieritf of Vancouver, where he was during the trial ^(^> ami now is. It has been satisfactorily shown by atlidavit that the oidy Order for a change uf vi'iine in existenci' a that Order is defective t the time of the trial of the prisoner was the one bef( re mentionei then the trial of the pri.soiier was without authority 38 \\\ liivv till' trial kIkmiIiI have lircii liiul in tlu' Mailiwick wlioni tlio lioiiii-'ido tdok pliice. iintuHH till! vumu; for tlm trial was cliaiipMl, an liy law |>rf«(MilK;(l and r»'i|iiir(!i|. Tin- ri>,'lit of tlio Cidtrt or a Jii(t> fn .inU^r a rli.iiiji(i of vcmiu in a itritnmal niHc '\n u|ii>n rim cdndition liilldwinj; : ' Itiit wncli order shall !»' niadn upon hmcIi I'niiditioiiH as to tins piiyiii(»nt, of any '* additional oxptMim) tliurt'hy fausiMl to tlic aeciinod as the Cnnrf or Judgo itmy think proper to " prcHcrilio." When it may 'it- tlic caHi- that a prifsmicr ciiarjfud with an otTciioo Ih witlioiit nienns to piovidt! for liJH (IffoncK at a plac(! dii«tiint from the onlinary plarc of trial t • eliaii^u tlio venui' vvithoiit at the hanic tiiii" niakin;; provision for flic additional fxpciisc would practically prevent liini from makiiif; any dcfenHc. and the order f')r doini' ho would ho manifestly unjust. lU Tlio Loj,'islaturo liaH theretore properly and huiiiiinely providcij that the Court or a iludgo, monninj,' no douitt the Court or .iiidtre makiiiir the order, shall consider all the circunintaiicc*! in relation to the change of venue ami snike the onler conditional upon the payment of any ad order was maijit which 1 think was wholly uuwairanted and \oid. I have considered tins matter lioni the positi mi shown in lli" a'lidivits read on liclialf of the piisoiier niadi- Kv Theodore !),i\ie, i']-c[iiire, cuipi-el of the pri>oner, who in one cd them says: "That the order in the iiho^c matti-r as drawn up an I in existence at the time of the •■ trial of the said IJohcrt Kvau Spronle, referred to in the atfid.ivit of James K. McMillan tiled " hi'iein on the 'Ji'nd of May instant, was in the words and li;:ure> of the document liereiinto '•annexed and marked .\, ami not otluiwi.-e." .\nmxed to tint atlidivit is tim C'o))y of the order piirportini,' to have heiii made on tlip 1 '.ih uf Oi-toher, iss."i, hy the learned Cliief .Iiistice of I'ritisli Coliimliia ; and it <'ont:iins no ref( rence whatever to tjie matter (d' the additional expenses of tl ;aine deponent le nrisom r. In anollie! allidavit which is rid'ericij to in the order herein the 3U ~tate(| that on t!ie |:!rli d.iv ol ( )i'tohi'r, lss,",, the said Robert Kvaii S[)roule was hrmi^ht in custoilv ludore His Loi'Miip the lion. Sir Matthew I'aillie r.";,'liy. ("hiid' .Iiistice of the Snpri'me Court of I>riii>h Colliinhia. a t tlie Supreme ( 'ourl II olise a t rlie Citv !>{ Victoria aforesaid, whereupon an a|ipliiMtion was made on hehidf (d' tlie Crown, the re-^nlt id" which was that ai >rd. ' wis made hv tlie said Cliitd .lii.stice and drawn up and sii,'iied hy him. directing the tri d to pi d at the Citv of Victoiiii d of at Kooteiiay, without imposiii;; any t erms II cendltlons trial was prodn nm|>anyinir the last niei tioneii atlidavii a vt'riiieil copy id' the record cd' the and ill that atli lavir the .-aid Tlii'olnre Davie further .says : •• Tlie order for (diam'c of vuniie >et out in the se id and third paircs of the said e.xliihited copy record was not in existence at the time of the triil and sent"iec, hut was driwn up and siijiied ami issued dO siihseipieiitlv. i'ld'ore proceed ini:' to a^si^n errors upon the rcrord I alld'eu a diiiiiii'ition 'if lie.i for a certiorari upon inv own alii lavit. sliowiiv,' tliil the order p.r the rec ird ami app (diaiiye of venue set out m trial and judiiiiietit " iir a certiorari upon my owi the record was not the true one or in I'xisteiici at the time of the -'■'■■ Tlie Court after heariiiir ar^imioiit over-rulo'l t'lu 'ame. 39 Ihsro tliun the error allegoil was lir()n;,'lit l)y attidiivit to tlio notice of the Court hut tlie alle^jatiuiis of error were ovcrruluil. Shoiiici tliey have l)eeii if tlie facts are triieh' stated in the Hrtidavit8 referred to i Tiie Court was iislu-d to correct the record for the reasons alleged hut declined to do so without shewing in its jr.dgnient why I have, liowever, oeen furnished with the reasons of the learned Judgcri in a report of the argument, and strange to say the allegation that the Order for the change of venue as appearing in the record was made up after the trial and sentence of the prisoner is not referred to The fact is neither admitted or denied. The Order purports to have, been made and signed l)y the learned Chief Justice. If so made he wi'8 in a position to affirm or deny tiie allegation. It purports to have heen made on the 13th of October, 1!S85, the same date with the Order shown by the affidavit of Mr. Davie to have l()i been made and signed on that day. If (wo Orders were made on that day the fact could easily and should, have been shown. When delivering judgment in the matter the learned Chief Justice said : " We are all of opinion that the Order of the bSth October, ISg.i, for the removal " of the trial to Victoria was a g(>o 1 and proper Order under S. II. of the Can. Procedure Acti " 18fii), (\ 29, and that the condition a> to costs was an expedient and sufficient condition.' The learned Chief Justice ihen dealt with a coiitentiin of Mr. Davie, that the Statute only applied to a case of change of vianie after an indictment foiiinl but made no reference to the allegation under oath of Mr. Davie, that alrhnngh it appeired as if made on the 13th October, )S', it was not in fact tnade in cxisteiu^e till after the trial and sentence. I can hardly think any respectable Counsel or any otluT sane person would have; the tcsmerity to make such a 20 statement to the Court if unfounded wIi.mi Iu' knew one of tin; learned Judges must know that it was so, but the allegation having liccn iiiadt^ ami not in any w.iy coutradi(!ted the truth of it must be assumed. The reference of the Chief Justice is to the Onler appearing in the record but he does not say that it was made before tiie trial, and therefore does not con;radict the statement otherwise (d Mr. Davie in regard to it. Whether the record must bo received as (•(inclusive is, however, another matter ami one I will hereatter deal with. If then the Order as sliown in 'he record was not made iKd'ure the trial some one is answerable for (» ) nt n >'lio t ing _ / it or the record assigiu-d a wrong d;ite to it. Tliere can be no reasonable doubt that two Orders were in fact made the one last refeired \(>. as I think, intended to supnly wdiat was cotisidered a fatal defect in the previous one. It would be absurd to si.y that an Order made after the 3(> trial in a wrong place, of a jirisoner. made after a trial could relate back and give jurisdiction wheie none existecl when Mie trial took place. It would be like the (,'ase of 44*e execution for murder without a conv iction. I have alreadv given it as my opinion that the Order alleged to have been first made was defective and as 1 find that the other was not made till after the trial and senttMice I think the trial of the i)ri.roprrly ami illegally removed to Victoria; but should I bo wrong in mv conclusion that the Order set forth in the record was nut made till after the trial 1 will consider the (jucstion of its validity if made iis it jinrports to have been on the 1. '5th October 1H85. After setting out that it appeared to the satisfaction of the learned (Muef Just'ce, who made it", that it was expedient to the eml,- uf jn-tiee that the tiial of the said Robert Evan ^^^ !Sj)ronle for the alleged crime should be held at the City of Victoria his Lordsinp ordered as foMows : " And Mr. Irving now undertaking on behalf of the Crown to abide by such Order '• as the Judge who may preside at the trial may think just to meet the e(piity of the eleventh "section .d' the :I2 ir Mutliow I'.ailie P)ef;l)ic Km'ijlit, Cliiuf Justice of Britisli Ciilunibiii " and Itc'iii'.' a Judiro wlio iiiij,'lit fiold or sit in the Court at which tlie said Roljert Evau Sproule " is liable to he indicti'd for tlic cause aforesaid, do hereby Order that the trial of the said " Robert E. Sjironle shall lie proceeded with at tlie City of Victoria in the said Province at the " Court of Oyer and Tcrniiuer and Oeueral Gaol Delivery to he holden at the said City oti " Monday the 23rd day of November 1S85." Is that then a valid Order within the terms of the Statute that requires the Court or tiie Judj^e that makes the Order to prescribe and by which to settle the conditions as to the payiiient of the add no power of delectation to the Court or a .ludi. lal expense ? The Statute jjavi le allowanci* of additioiuil expenses mi<^h (leU'tjarion to the i ourt or a .IU( hrc be to enable a prisoner to secure thi! attt'ii(l:ni''e of witnesses for his dcifense and a poor man 10 would Hiquire provision to be made for their attendimce l)y tlui Ju lije who makes an Order of the kind. To postpone the consideration until the trial would in some cases be a virtual denial of that which thi^ Statute has provided for. The wronii would he done and if the prisoner should have been convicted what hcnetit. as to the ti'in! wimld he an Order from the presiding; Jndici? for additional (sxpenses. The clear intention of the i)ro\ision was to put the prisoner in no wor.se pecuniary position as to his triid in the c:\.se of a chanr an Order for that purpose shoidd on proper and necessary inquiry decide as to the amount, if the inquiry .satisfied him additionid expenses would be incurred, and insert it in the ( )rder ; and hiivin^ done so the payment shouM lie co sidered a coiulition preceilent to the operntion of the Order. 20 In no other way could the intei'csts nf a jirisoiier he siitlicientlv protected for if once removed he w^nld have no security that the additional expenses would lit" furnished to liini in sutlicient time before his trial, and he should not lie left to depend on the iitulertakinir of any irresponsiiile persidei' voi,| mid must lie so considered in all cases where the terms upon which the Statute allows it to he mnde are not fulfilled and where tlie .lud remarks in the case licfoie mertioned. ami which I repeat savs : " And the |iiiMvdnic hy which an olTciider is to he trie.l thoa.ixh hut ancillary to '•the application of the suhstantive law and to tlie .'iid of jiisMce, is as much jiart of ^Ue ^^^ '•law as the .sidi.-tantive law itself." It was when decidimr upon a "Rule calling; on I.,,rd I'en/ance the official principal ot the Arc ( iiirt of '"mterhurv an 1 .). Martin to shew cau.-e whv a proceed in;;s Writ I'rol iiliition snou uld not is>uc ti with or enforciUii' a deciee if SUs| lensnm ii lit the sin'd Court from puhlisi imj' ■•t /tf'iicffcio ma le a'^ainst ,•"*'.*■ 41 ''till! Rev. Aloxiuuler 11. Miclvdiiiincliii!, dork, in n suit Miirtiii vs. MiioKoniiocliio sucli ■' tic'cree beini,' one wliicli was minin u-itlioiit jurisdiction. It wuh eoiitemlLMl and admitted ■' tiiat tlie Arclies Cuiirt iiud JuriHiicttinn over cases of the kind in rjuestion l)nt only at tlie " request of tlie Diocesan (^oiirt and that no sneli request was hhown the Writ of proliibitioii " was granted because of the want of jurisdiction in the Court of Arches." In thi.s case I think for the rea.-Jons I have given there was no jurisdiction to try the prisoner at Victoria. 1 will now consider whether or nor it is pjrniissii)le, in a case like tiie present, to contradict the record. It is well umlerstood tint in a iri'cat variety of cases the record of a Court of eonijietent jurisdiction is not only conchi-ive evidence of the facts sta'.e 1 therein i)ut in many ca.ses tlie LO otdy proof; still wliere th'' jnrisdictio!! is iin|)Bached it appears to nie, that the more statements in !\ record by which jurisdiction is shown slion'd not prevail wliere evidence by affidavit siiews conclusively that the statements arc erroneous. Tlu,' (picstion of jurisdiction in a proceedinfj like this l)einij; raised, T thitd;. for the true an I proper determination of tiiat (juestion. evidence should l«e admitted to show tiiat tiiere was rcilly no jiirisdictioi. To state perlia])s an extreme ease; should a man be haiiifed or pniii-li 'd wli mi it could b? sh tww by e.xtri isic evidence that the tribunal had no authoi-ity t i try or e mvie: liiin Se ^ t S nit'i's •• Loading Cases," p. 740: *• But a i|Uc>tion has ocasionaliy arisen wli 'tlier in cases where the Justices have proceeded '■ vvitiiout Juri.sdietion and have iieverthcless state 1 npon tlie face of tiie conviction matter " showini; » jurisdiction it lie eoinpetciit t^i the d 'fe i laiit to prove tlie want ot jurisd'ction by 2() •' attidavit '" "It certainlv appears desirable that the (Joint should have the power to entertain the " (piestion of jurisdiction, sonn; cases niij^lit easily he suiri^ested where not only irreat private but " i^reat pnl>li<- inconvenience mie; t aris(^ tVom leaving an iiualid order or conviction tmrever.sed '• and great injustice might l)e caused by allnwin:; jusMces out of or in sessions by makiiig their ■• order of "--onviction i^o id njion the face • if it to give themselves a jurisdiction over matters ^' ii«rf entrn^tid to them by law." .\t pa^e -iTl of the same book we find it said •' Supposing that the Court below cannot be " compelled bv iiiinit/diinix to show the defect of jurisdiction upon the record, the next ipies- '• tion i.s. will the (.'ourt al»'ve allow evidence of such defect of jnri- 'ion to be laid befor.: it 30 '• by wav of affidavit on the ri'cord bi'iiig brought before it by a AV i Certiorari i " In H. v.s St. .lames Wotininstcr -' .\. iV K. -Ml it was remai '• (a judge whose obiter dicta are always worthy of the greatest '• constantly done. In K. vs Tlie Inhabitants of (ireat Marlow : •• Overseers, good on the face hid t.ikeii time to consider as ■ " receiviu'r the atlidavit and Mi Justice Lanr-nce meiitioncil -.everal cases in which tiiat course •• had been i-ursi.ied. In the e;isi' of i;, vs Justices .if Clieshiie I I'. iV 1). ',t;5, >s A. ^- K. 4iit> '' the question was a iidod deal ■ magistr.ite it is clear that tlrs tact may be shown to the Court." 'ly Mr. Jnstici' Taunton Mtion) that this had been ,-t 24+ an appointment of . affidavit on the grmind of 'lie practici' with regard to 42 " Ami it seoiim to he settled I)y the Inter euses tliat a defect of jiirisdiction may ho shown " hy HtKdavit. thoiifrh the proceeding' is wo drawn np as to appear valid on the face of it." . ^ See the jud^'nients in R. vs liuiton Mfr-H M. The Whithury jr., union case -t E. & B. 314. _Z " or that circumstances appeared iti the course of tlie iiKpiiry which ousted his jurisdiction. " R. vs. Nunneiey E. H. it E. 8.52. R. vs. ('ridiaiid 7 E. it B. ;{52. R. vs. Backhouse 3(; " L. J. M. C lis. R, vs. Stiinpsoii 4 B & S 3ol hut also that there was no evidence to prove " some fact, the existence of which was essential to estahlish the offence charged." It seems also to he well settled hy judgments ;n the United States that where it is shown that jurisdiction over the suhject mattoi' did not exist the statements of facts in a record of tiie highest Court niigiit he iiKjiiired into hy affidavit on the groimd that if there was not jurisdiction there was no legal record. I will refer to a t'cA- out of a gre.it many authorities that might he cited. Ill Davis vs. Packard, ('• Wend. :\"l'-'.\:Vl,\\\ the (/'oin't of Errors the Chancellor speaking of domestic judgments says: " If the jurisdiction of the Court i^< general or unlimited huth as 20 " to parties ami suhject matter it will lit! picsmiicd to liave ,1 - trisdictioii of the cause uidess " it appears affirmatively from the record, or, hy the siu. .. .iig of the party denying the " jiiri.silictiiin of the Court that some special cii'cumstaiices existed to oust the Court of its '••jurisdiction in that p.irtieular case." Iti B'oom vx Biuvlick I Hill i;5 » P>ronsoii Justice says : '• The distiiicrion hetweeii Superior an I lut'eri >r C i.irts i- not ..f mu;'h imp irtaiice in this " particular ease, for whoiu'ver it app'.irs tint rli !iv wi- \ uMiit of jnrisdictitence of farts ii|.on which jurisdiction depends." In Ilariinufiiii r.y. the People •'• Pari), tlo? Paige .1. e.\pre>.-es •! e opinion that the jnrisilictioii of a 3() Court, whether of general or limite.l jm'isdictioii may \w iiii(iiiivd into, alihoiigh the record of the jiidirment states facts giving it juri.-diction. He n'p>Mts ih' sine view in .N'oyes r.v. Ihitler t! Parhtii;! tlJTandiii Hani c.v. Shipmau ti Barh iI.M -■i2:!-ii-'4 where he says of Inferior as well as Superior Courts that •* the ree.ird i- never conclusive as to the recital id' a jurisdictional " fact and that the Defendant is alway.- at lil.erty to show a naiit of jurisliction although the " record avers the c.mtrary --and that if the Cairt had no juri-ilictioii it had no power to make " a record." The En^dish eases which I have cited are those licfoiv . I notices; hut ou priiciple I can see no dinerence hetweeii a judgment of an Inferior, and one .d' a Superior Court, when the .piestion of jurisdiction is raised nor can 1 sec why if t!ie record of the former can he shown to 4,, he |.rr.incou> or fal.-c as touching the matter of jiirisilictiou tlie other cannot he; for without jurisdiction, the ads of one inii.>t he void a> well as tlm^' of the other, an I therefore the ride in the one e i-e should he the >ame as in tlie other : and in the cases 1 have con-nlted in the Ciurts in tlie riule.l Stales the rule is applied to ;lieir higlie.-t Courts. i 43 I <'(Mil(l «nj;ifest niiuiy (msuh in wliiuli .serious wroiij^ ami iijiiry ini^Iit result if the jurisdicfioii of u (Joint eould not lu; attacked l»y ovideiuro outside of the record and in contiadictioi; of it, sliowini; the total want of j.irisdietion. Sii|)|kho that there was no question that a Coninissioii of Oyer and Terminer a-id (tnen! (liol Delivery was necessary and a Jnd<,'(( undcrto'ik to try an accused jUM'son for !ii)^ii crime and the record showed tiiat he had a lej^al coniinission authorizing hiii In the preuiidcs Ijut the fact was that no such commission was ever issued or hel I Ity him, and that the accused wm convicted and sentenced possibly (as in this ease) to forfeit iiis life, would ii not he a j^ross pmstitulion of the principles of common jusiici' to shut out evidence tendi'rcd to show tint the .Iuil;je acted without a commission — and theretor(! without any juris lii'tiMii On rlie same principle evideru'e to show that for any 1(1 other reason he had not jurisdiction should not \yj rejected. It is proper to explain in this coiuifcti(m that a copy of the record was sni) nitte.l and referred to in the alH livil on behalf of the prisoner when the Order nisi was ap|)lied for and another copy was returned by the Sheriff of Viiiu^ouver and put in by the Oown when shewing cause im tinst the < )rder. It was therefore bv both parties made a part of the (Mse submitted for my d.' ision, and although the proceedings were not reim^ved by Ccrtioniri the consideration of it as to tin- (piestion of jurisdiction was legitimately submitted. Other olijections to the jurisdictions were raised iind debated to which I need not give the same anioinit of consideration that 1 would t'eel it necessary to do in ease my ikaision depended on the correct solution of them. 20 I will however deal with one of them an refer to the others. The leariujil Judge liefore whom the prisoiun' was tiiel acted by a\itlioi'ity i>f a Commissioti of Oyer and TermiiU'r and (toneral Oaol Delivery issued by tlii' l,ientrii.iiit-( iovenior of Ih'itish Columiiia and the Commission is set o\it in the returns. The latti'r named high functionary was then acting under a Commission from the (Jovernor (ieneral under the Imperial Confederation Act of l^tiT. That Commission •'authorises eie.powers reipiires and eomniamls the Lleutenant- "Ooveinor in due manner to do and exeente all things that shall belong to his said command •'and the trust reposed in him. a^'coniing to the several powers and directions granted or "appointed him by virtue of the present Comnd.s.-ion and of the Uritish North America Act " I8ti7. and according to such in>trnetions as were therewith given to him or which might 30 " from tiiiu' to time lie triveii him in re>pect of the said Province of Piiitish Columbia under "the siirn Manual of the (ioveriior (ieneial of Canada or by Order of the Trivy Council of "Canada and accordin;: to sneh laws as were or shonhl be in force within the Province of " I'riti-h Cobindiia." The (Jovernor (ieiieral's Commission antliori.-es him " to constitute and •' aitpoint .l\id:;es ami in c;ise re piisiti' Commissioners of Oyer and Terminer, Justices of the " I'eiee and other necessary Officers and Ministers in Our said Colony." It is ap|).irent that since the union (.f liritish Colmnliia with Canada in ISTt) its Legislativ.' power v.-as largely restrieted and the powers nn.l dnti'S of the Lieutenant-(iovernor proportionately restricted. In fact the Lientenant-Cioveruor, after the rnion was no longer the lm|)er;al otlicer a Lieutenant (■iovcrn ir had prev'oiislv been. I'nder his ('oinmission from the (iueen previo\is to the I'nion 40 the Lientenant-fiovernor directly reju-esented Her and only througli that representation had he any power to issue Commissions but we are not ncees.sarily to in.piire what the power of tiie Lieutenant (iovernor was before the I'nion but simply to aseertain what power if any to i.-sue Commissions ritish (Columbia, all laws in force at the irninii and all Courts uf ( ivil and Criminal jurisdiction and all lepd Commissions p()wer8 and authorities and all otKccrs judicial administrative and ministerial existing at the Union shall continue in each of the said Pntvinees respectively as if the Uidoii had not been made subject nevertheless to be repealed abolished or altered by the Parliament of Canada or by the Le,t;islature of the res|)eetive Province according to tin' authority of the I'arliainent or of that l,ej;islature under that .\ct. Ily suhfiection 8 of section ',»!, the Parh'ament of Canada has the authority and duty of maki-g laws for " The tixiuif of and providin;^ for the salaries ami allowances of Civil and •'other otKcers of the (iovcrnmcnt of Canada, and by sub-section 27 the criminal law, except 2(1 "the constitution of("..urts of Criminial .Iiirisdictinn but including; procedure in criminal matters." In another section the silaries of tiic Judires were expressly provided to be paid by the (Jo"ernment of Canada. Snb-sectioii 14 of >ection it^ iiivcs to the I.eu'islatnre of each Province the ri<^ht to make laws for "The administration of justice in the Provin<'e inchi lin;^ the constitution, maMitenance " and or^'ani/.ation of I'rovincial Courts iiorh of Civil and Criminal Jurisdiction, and including " procedure in Civil matters in tliose Courts." In reiranl then to jurisprudence in Civil matters the Lc^nslatures of the Provitujcs have the entire leirisiative authority, except that in relation to the lixinj; and jjrovidiiij; for the salaries and allowau'-e of the .ludj^es. 30 The autli >ritv and duty of lejiislation in regard to the itdmini.-tration of justice in Criminal cases includitii,' procedure in ('riminal matters, is iriveii to the Parh'ament of Canada, except (as provided in sub sec. 'J7 of .sfc. JM before \vc\ti.'d) '• t\\ii foNntiiution oi Courts of Criminal .luiisdictioM.'' P.v a comparison of Mih se". "JT of sec IM and snb.-scc. 14 of see. It-i it will be observed that the latter in addition to the wor.l " constitution " lias the words " maintenance and orjuja- niz.itien.'' I e of sec. '.M, we should confine the operation of sub-sec. 14 of sec. tt2 so as ti> make it harmonise with sub .sec. 27 of .sec. '.tl. 40 Readini,' it in 'liat way the of a criminal nature includinj,' proce. cept the constitution of the (,'ourts. Parliamenr of Canada lias tlu; riijht to lej,'islate in all matters ire, iiichuiini; the ai)pointment and paying of Judyes ex- IMAGE EVALUATION TEST TARGET (MT-3) 1.0 If «- IIM I.I •^ i^ III 2.2 = 1.8 L2J 1.4 1.6 ^ 6" ► V] <^ /a ^/ ^ C ^ ^v^ '^bs. '' 7 HiotDgraphic Sdences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 Cs^ .•\ iV \\ <6 V 6^ ^ n? ^ 45 It was clearly not intended that the word " maintenance " should include the payment of the Judges salaries as they, as I have shown are otherwise provided for. It may however have been intended to include the other expenses of the Courts and in otherwise maintaining them when constituted or organized. The words " constitution " and " organization " in this connection I consider synoninjous as applicable to Courts. To constitute a Court means to form, make or establish it and, necessarily, to prescribe the powers jurisdiction and duties of those who are to operate it. It iiowever docs not necessarily in all cases include the power of appointment of the Judges to preside in them If the F.oeal J.egislatures had been given ple- nary power to provide for tlieir appointment but with the limited and prescribed powers of legislation awarded to the Province by the Imperial Act such power does not exist. There is 10 no award of deputed executive powers by the Act in relation to the exercise of any preroga- tive right of the Soverign by the Lieutenant Governors of tiie Provinces and their Commis- sions do not contain any. IIow then can tliey have any I The Commissions to Lieutenant Governors before confederation included such powers and it was oidy Ir jhi them they derived authority. We must construe an Act by takit.g it altogether. P.y it (sec. *.)) the Executive Government iiiul authority over Canada is declared to continue and lie vested in the Queen. Section 10 provides that " The provisions of this Act referring '' to the Governor extend and apply to the Governor-General for the time being of Canada i>r '•other the Chief Executive Otticer or Administrator for the time being carrying on the 20 " Government of Canada on behalf, and in the name, of the Queen, by whatever title he is " designated." In England the sovereign was and is the source of all judicial appointments to the higher ("onrts of law. It is a prerogative right that while existing cannot be usurped and until lemoved or cancelled by an Act ol Parli .uciit assented to by the sovereign cannot be controlled or interfeied with. When I'ritish Columbia became a part of Canada its Courts were already est'iblislied and constituted and by the terms_of the Confeder.itinn Act sec. TJi* before cited Wiis so continued — and so also was the position of the Judges. They thi;n held iuul derived autiiority from C\)mmissions ai)|)ointing them as Judges t»f the Supreme Court or Court of Cjueen's Bencii 30 during good behavior. But none as perm nent Judges of the C(purt of Oyer and Terminer and (■Jeneral (iaol Delivery fur which Commissions^vY^ re lutta had bieii issued by the Lieutenant- (Jovernors from time to time. As in Enghi'id the Judges appointed to this duty were styled an I called Commissioners and the Acts in Ibitish Colunil)ia providing for the appointment of such Coinmi.ssioners liinite 1 their selection l>y the Lieutenant-Governors. The Judges of the Supreme Court or Court of Queen's Uench had no authority without such commission to hold a (ronrt of Oyer onil Terminer and general gnol delivery. In connec- tion with this |)art of the subject I have considered the effect of the provision contained in sec 14, of cap. 12 of the Acts of Uritisji Columbia, 1871), which is as follows: "Courts of Ashize and N'mi Prhix, or of (h'erand Terminer and dreneral Gaol Delivery, may be held with or in without commissions at such times and phi'ies as the Lieutenant-(Tovernor may direct, and providing when no eommissions are issued the said (>ourt8, or either of them, shall be presided over by the ('hief Justice or one of the other Judges of the said Supreme Court. It is doubtful jf that .\et, except sec. 17, ever came into operation, recpiiring as it does the Lieutenanf 46 Governor's procliiiiiation for tliat purpose, and I nnderstand that no sucli proclamation was isEued. In Ilet,'ina vs. McLean & Hare, British Columbia, in 1880, reported by one of the Judges, the learned Chief Justice alluding to tiie Supreme Court of that Province, says : " Those powers and authorities were and are no other than those possessed by the Queen's " Bench in England. It would have been exceedingly important if one English case had been " cited in which a Judge of tlie Queen's Heiich had sat and tried without commission and • without removal by certiorari or otherwise, a criminal c iinmitted by a justice of the peace to ' take his trial at the next Court of Oyer and Terminer. But no such case was produced from '* the records of several centuries, and it is believed none is produciide." The learned Chief Justice further said : " it is true one case was produced from the Ontario Courts (Whclan V8. 10 *• the Queen) 28 U.C.Q.B II. 27, in which an attempt was made to impeach cuch a trial " unsuccessfully. The trial was actually impeached, although an extant enactment by competent " legislature had exi)ressly declared that a Court of Oycfr and Terminer might i)e presided in l)y " a Judge of the Supreme Court without commission. It is iinpossiide to read the arguments *' and judgments upon this point without perceiving what the result would have been in the '• absence of such a statute. And there is no statute in force here. It is true the Ontario " provision has been copied into a local Act here, but being matter of criminal procedure it is " exlfavlrts of the Local Legislature: and moreover it only purports to come into force from a '" da\' not yet named. All these Acts of Parliament are in effect statutory declarations that by " the law of England and the Provinces, these commissions are necessary to confer jurisdiction 20 " anassed before Confedei'ati(jn by the Legislature of (• mbined I'roviiues, Lpper and Lower Canada, and was therefore ////■/■« rvVr.v, but that of Piritish Cobnnbia was after its I'nion with Canada, and therefore was as the learned Chief Justice 1 think properly says iwfra vlivn. Such being the case there is no I'arliamentary dispell- ^q .nation of Commissions in Criminal cases, and as in my opinion the Lieutenant-(»ov;'rnor bad no power to issue them the learned Judge who tried and sentenced the prisoner had for those leasons no jurisdictioTi. There was another point of objection raise-l to the jurisdiction. The venue rn the margin of 47 tlie iiKiictiiu'iit is '• l^ritisli ('oliimhia to wit." No Comity, Sliire, Division, district or place is meii- tiuiied ; and tliere is no veinic stated in tlie body of it. Tiie whole Province was formerly one shrievalty but for many years past it has been divided into several Conrt Districts and shrieval- ties — one of which is Kootenay. There is no Sheriff of " British Colnmbia," and the indict- ment did not indicate in what Bailiwick it should l>e preferred to a (rrand Jn-y or from what liailiwick the Petit Jury should be summoned. The provisions ot sections 32 and 33 of the Criminal Procedure Act, 1809, are. however, very comprehensive, and. in my opinion, were intended to provide for such a case if indeed it lie not covered by the provisions of section 21, in regard to which there might be some doubt. Section 32 enacts that " Every objection to any indictment for any defect apparent on the 10 " face thereof must be taken liy demurrer or m()tiiiTi to (juash the indictment before the Defen- '* dant has pleaded and not afterwards, &c., and power to amend is given to the Court." AVhetlier the power could be exercised to relate back so as to warrant the finding of the Grand Jury is a (piestion that would admit of a discussion which I consider unnecessary here. Sjction 33 provides that " If any perscm being arraigned upon an indictment for any indictable offence '• pleads thereto a plea of ' Not guilty,' he shall by such plea without further form be deemeil •' to have put himself \ipon the comitry for trial, and the Court may in the usual maimer order •' a jury for the trial of such person accordingly." The provisions of tlie three sections woidd certainly seem to cover ever}- possible objection and I am inclined to the opinion that the olijection being apparent on the face of the indictment the 20 party might, niider section .S2, liave demurred ; und if the venue was wrongly stated the ques. tion as to the power of amendinent could tlien have been raised. That course was not taken and it is not now necessary to consider the mattei'. And as tiie resnlt does not depend upon any decision I might arrive at I think it unnccesfary to refer further to that ol)jection. Anittiier as to the polling of the Jury was submitted; but it wonid l>e of no practical service were I to coiusider it as my doing so will not affi ct tiic decision. I may say however that I consider snch an objection is dltogitiui' for a Court of Error to decide. It does not in mv opinit)n affect the jurisdiction and theiefure ik t in my i)rovince to consider. For the reasons I have given as to the first point refeired to I think there was no jurisdiction to try tlie prisoner at Victnria ; and that the learned .ludgo who presided had no 30 jurisdiction to tiy the |)risoner in the absence of any i.egihiative aiitlmrity or a Connnission Trom the (iiivernor (ieneral and. therefore, that the trial was a nullity ami as if tiie prisoner had never been tried. Tiie jtrisoiier is sliown by the rtturn and certificate of the SheriflF to be detained solelv on the calendar nf tiie As-i/e (joiirt containing the sentence of death and the formal sentence and a remand dated the27tli of Eeiiniary last the prisoner having been I)ronght bifore the Court sitting in error, and the sentenc! liaving been unrevoked. No WarranI of coniinitniciit or other cause >if dctcntidn was produced uv shown in this case. .\nd, as in my opinion the trial was a nullity and the sentence tliurefore illegal no other course is I think open to nie but to Order :he discharge nf the prisoner and to adopt the necessary proceedings therefor. It is the Iiounden duty of a Judge to declare the law as he 40 finds it and believes it to be regardless of conseijnenccs aii(l all other considerations. 48 CANADA,! TO wit: f Victoria, l»y tlie (tiiico of God, of the TTiiitetl Kingdom of Great Britain and Ireland, Queen, iJcfonder of tiio Faith. To tlie Sheriff of Vancouver Island, in tliu f'rovince of Rritish Uoluiubia, Gkketino : We coiiiinand you tliat yon have the body of Roltert Evan Spronlo detained in our prison, under your custody (as it iH said) under safe and sure conduet, together witii the day and cause of his being taken, by wiiatsoever name lie may be called in the same, before the Honorable Mr. Justice Henry, one of tiie Judges of our Supreme Court of Canada, at his Chambers at the 10 City of Ottawa, immediately after the receipt of tliis writ to do and receive those things which our said Judge shall tiieu and there consider of him in this behalf : and liave you then there this writ. Witness, the Honorable Sir AVilliam Johnstone Ritchie, Knight Chief Justice of our said Supreme Court of Canada, tiiis twenty-tifth day of June, one thousand eight hundred and eighty-six. (Signed.) KORERT CASSELS, Re(jisti'ar of the Supreme Court of Canada, Pro staiutein. tricitimo prhno Caroll /tecuiKli regis ; and under the Supreme and Exchetpier Courts Act of the I'arliimiont of Canada. Thirty-eight Victoria, chapter eleven ; 20 and the Act of the parliament of Canada thirty-nine Victoria, chapter twenty-six. (Signed), W. A. HENRY, ^1 Jiuhje i]f tlie Sitj>re?iie Court of Canada. The within named Robert Evan Spronlo was cimvicted and sentenced to death at the last Victoria Assizes for the crime of wilful iiiunlor, and the conviction and sentence was afterwards unaiiimoii.-ly atHrmed on Writ of Error, by the Supreme C^nirt of British Columbia in full bench. I hold the prisoner acconiingly and linmiily submit that siu'li aftlrmed cimviction and sentence is paramount to the within writ. I have not received or been tendered any expenses of the conveyance of the prisoner. 3() lAir the above reasons I respectfully decline to produce the prisoner. VurroRiA. B.C.. j The answer of James Eli|)halet McMillan, the Sheriff for Van- 11) July, 188*>. '\ convcr Island, to the within writ. IX THE sri'uEME (X)URT OF CANADA. Im the miitterof a Writ of llahtan Corpus directed to the Sheriff for Vancouver Island directing him to bring before tlie Court the body of Roukut Evan Si'koi:i,i;. Take Notice of motion to be made unto his Lordship Mr Justice Henry at his Cliaml)ers \ii tlie (/itv of Ottawa on Monday the 2nd. day of August next at the hour of eleven in the forenoon bv Mr. Mcliityre of Counsel for the said Robert Evan Sproule that the return of the Shi'rift' for VancoiiviT It-land to the Writ of Ilaheas Carpus \n\\\ be deemed to be insufficient 40 49 and Mint flio |)riR(>ncr may lie forthwith (liHchurfi;o(l out of custody witliout tlio production of his l)ody hfforo the Court or a .Iii(lf.'o or in tlio aitornativo that a Writ of attachment do issue against the said Sheriff for iiis disohodiorice to tlie Writ of llahcaM Corpus herein Dated this 20tli. July A. I). l.H8«!. TIIKODORR DAVIE. Siillcitnrfoi' the xald linhirt Ecan Sprouli;- Totiie SlieritT for Vancouver lelund and to Iler Majesty's Attorney (Jenerai fo/ the Province of ih'itisli Colunihia. TIIK QUEKN VS. SlMiol'LK. II KNKV, 10 Tliis matter came liefoie irio under an order made Iiv me in Ma\ last on a petition of Sj)roule setting fortli tiiat lie had been illfi;iiliy convicted of murder at British Columbia and was under sentence of execution. The order was returnal)le on the twenty -fifth day of May last, and was directed to the Sheriff of Vancouver Island in whose custody, under the conviction ami sentence, the prisdiier then was. It called upon him lo show cause svhy a writ of Ilaheas Corpus should not issue to hriri^ up the lio(ly of the prisoner and wliy in the event of the order lieinas An order for the issue of the Writ was therefore ma le by me on the ^.^itli. of June last t and the Writ directed to the Siieriff of V^mcouver Island was duly issued on the same day. le Writ was served on the Sheriff in the early part of July last past but not returned until the I'.tth. of that month. Ii. fact it is not returned at all tor altlu)Ugh sent back to the Ret'i-'trar of this Court and purporting to be a return of the Sheriff the eu lorsement tlicreon 40 of) Itoarn III) hijrnutiirc. Ncitlu«r dm-H it ii|t|i('iir Ut l.o in tlu; Iiuml writin^f of tlic SIu'rifT. I liavo urL'(l till' writing willi liin Hi^imtmu to Hnnio nf tlio Aiitlusiiticatcil (liiciiiiuiiitH on tilu iti tliis CMU) ami I liiivu fuiiiid iiltlu ilitliciilty in coiicludiii^ tliL- indnrrteiiiuiit in iiuostioti not to hu of liiH |)r(i|Kr Iiiitid wrifinj,' iind flioroiM tin atlidavit verifying it ■ > hii Ids rutiirn or tliat it wa* iiiadu liy Iiirt aiifliority. Tiit; unduiM'niciit is diitrd tlii) I'.ltli. nf July ISS '.. Wliouvor wrote (hat I'lidoiMMiiciit HoiiiiiH tu l)(! of till- upinioii tii.it a SiiurilV -a tiuot^ns OtHiM.-r can— rofusu to oxt'iiuti) tlie (jiiuuuH Writ and to iHurp judicial authnrity to dccido an to tins valiility of tlie Writ, siKiii an a.snuin|)tiiin liy a Slicrill in a contfiii|>t of lc:;a! aufliority anil cannot lie permitted I am therefore Htroiigly inclined to the opinion tliat the endoi'HcnuMit is not that of the nnhor- dinattf ()fH(!er to whom the Writ was directed and tiiat if proceeded ai^'ainst for contempt he In would in all proiiahility he found to deny tint lie authorized it. It was lii.s duty iindrr any (nrcuiiiKtincfs to execute the Writ and mukti a proper rrturn of ai.d to it. .\t pri'seiit I will only add that hereafter it may he found that Huhordiiiate otHcer.s wucli as Sherilf-* cannot treat tilt) rit of //iiham Corjtim duly issuod with eoiituuipt. The Writ rocpiired the Shurif! to pro- diicu the liody of the prisoner an 1 he ha-t failed to ohey it and must ho.ir the conscfpiuncus. On tim iciind ins'.int purtjiiaiit to notic! to the .\tiorney (leiieral an order ahsolute was a^'ain moved for hy Mclntyre counsel for the piisoner and .Mr. M iilirid;^o t^. C and Mr. Sinclair were lieai'd lor the crown in opposition. It was contended hy the latter gcntletnen that in asniucli as a writ of lInheUH CnrpuH was issuod, the order could not bo made and t!i;it further proceedings can lie taken only hy m -aiis to ciifonM^ its execution and tliat as tiiat course liO tlwit is liv the i.>siie of fill' II ihid.i I'lnjuis liid li cii adopted no other was availahle. i have carefully reviewed the authorities luriiished liy th.e ('oiin-.el on each sidu and shall hrietly give my views. It is said in Addison on Torts at jiage (i.'.') that " The validity of the commitment may he " tried on moving for a rule to show cause why a llnhinn Cdi'jiiih should not i.ssue and why, in " the evL of the rule licing made ahsoliite, the prisoner should not he discharged without the " writ actuallv i.-sning o,' the prisonci heiiig p'-rsnuilly hrought liofore the Court " and the case of Kggingt.pii (tj- F.ll- \\ \.. .1. M. ('. M ) is cited. The Coiiiisel who shewed cause in til it case siid: "It may he ijuestioiied whether the •• rule ill this form ciii Ik' made in iinutii\- -there has heeii no ciiii^ent, to which Loril Camphcll ;j() '• r..l. replied, ' I have repeatedly irniited it in vacalioii in thi^ ' 'nii without const-nt, in order • to avoid the necessity of hriiiging n|) the Jiarty.' " Other auth. nties sustain the same eouisi;. The constitution of the Siipi'v'ine {!ourt in i'ritis'i Columhia is foiiinled on a Proclamation of the Lieutenant (^.veriior miller a Statuic and his commission. The proclamation provides " Tint the Supreiii'' (yoiirt of civil jiistici; of ilritisli Columhia shall have complete cognizance •• of all idi-as whatsoi'ver. and shall have jiirisdii'tioii in all cases, civil as well as criminal arising •• within the Cohiny of P.ritish (/olnmhia." The iinlimite I juris lictioii this giv^'s to tin- Court iuclndcs the i.ssuing of writs of Ifil»:iK <;>rjnts ii'l xii/>J''ci<'iii/inH and the discharge of pris .iicrs illegdly inipri.soned and in the performance of tliat part of their otHcial .luty the judges of the Court have authority to luirsm- 4(j the practice of the (Joiirts and judges in iMigland ; and if the judges in the hitter country have established the pi actice of ordering the discharge of a prisoner without recpiiriiig him to he hroUL'lit personally before them, the judges in r.riti>h * ohiinbia are in my opinion at liberty to pursue tlie sane course ; and the same power is given to a judge of this Court. ■am I'-i IN Till-: sri'KHMK ('(»n;T OV CANADA. fii the iiiiittiT i>t' liulicrf Kvai: SpiMiilc. a pririuiici' in tlu; coimiioii jail at Vie'toria, Britisli (.'olumliia, ill ciistiMly n\ .laiiu'- K. McN[i!!an, tin; Slicu-ilT for Vancouver Islaiid. ['|»on rfailiti;;- the nili' or ordoi' yrantcil flic tiiirl day of May. in tlie year of Our Lord one thousand eiylit linndre I and eii;lity-8i.\, caliiiiix npon .riiu's K .\[!Millaii, Slieritf of Vancouver Island, to shew ("Uisc wliy a writ of f/iihi'ts C ,i-i>itx should n Evan S]ironle. having oi-(!cred and ad jndu'ed that the said Robert Kvaii Sproule was entitled to be. and should be ilis('harL;-c(l out of the custody of the said SherilT. ,\nd an lUMlcr abs ilutc I'or a writ of ILihiiix (Jurjtiix iid Kiih}ii'ii'ii body before a Court or.Indge — m- in the alternative, that a Writ of .\flacliiiieiit do issue ai^'iiiist the said Slieri'lV for di-obedieiici' to the said Writ. And tlie Allidavit .if Servi.-e of siid Notice of Motion upon tiie .slid Slicrilf. and the said Attorney (ieiieral. It upon the said Writ, purporting ti be a return to tlu; sa me. I'pon reading the Kndoix niei by the .siid SherilT. And u|>on hearing' Counsel as wejl tor the ( 'rowii as t'or the -aid pri.soner. [ do ( »rder that 30 till' said Robert Kvan Spioule be forthwith discharged oiit of cnstoUy. Hated in Chambers this litli day .d' .\ngiist. .V.I).. 1>m U>g(l W. A. IIKXRV .1 .hl,l,i, nf th, S itpri ,■/(.■ Conrf af CiOKida. 5 I ij % i 51 I liavo considered tlic objection, tliat liaving ordered the issue of the TIaheaa corpus I liave no power to adopt tlie other means now 8oiit!;ht for the disciiarf^e of the prisoner; but no case has boon cited f)r art^iiniont advanced in favor of thut proposition ; and I can see no reason wliy if one alternative course lias failed through tlie negligence or improper conduct of the Slieriif the otlier slionld not be adopted. I iiave tiiereforo decided to malvc an order for tlie discliarge of the prisonei-. IN THE SUPREME COlilT OF CAXADA. lli-lCilXA VKRSf'S ROP.ERT E. SI'ROULE. Take notice tliat this Ilonorable (unit will lie umved ou Wednesday tlie first day of September, A. D. ISStl. at the hour of eleven o'clock in the forenoon at the Supreme Court 10 House at the City of Ottawa by Mr. Cini>toph<'r Roliinson of Counsel for the Crown that the Writ of llnhciia Curpn.^ to .1. K. McMillan I'>(|iiii'e the Sheritf for Vancouver Island ihrecting him to produce the iiody of Robert Evan Sproiile before Mr. Justice Henry at Ottawa and all siil)sci|uciit piMcecdings inelndiiig any order of th>i Ilonoralile Mr. Justice Henry for the . Till' two atlidavits of I'anlus , Mmilins Irving sworn resjuctively the 2ith day of July .\ D. i^^^'i and the 7tli day of .Viigust .\.D. I'^SO — copies id' wliicli are served herewith. 4. The atlidavit of Theodore Davie on tile in tiie Supreme Coui't of Hritish (Johimbia sworn on the l.'jth ilay of l-'ebrnary A.D. IS^C and a co|)y ot wliich i.s served herewith, <5o ALEX. E. R. DAVIE. I.N TIIK srPRK.ME COi'liT OF CANADA. R'EiilNA ViaiSl'S RoI'.FRT EVAN Sl'ROULE. 1 P.\i"i.is JvMii lis Iuvi.m; of the City of Victoria, Ih'itish Columbia, Deputy to tlie Attorncv-fieneral for Ih-itish (Jolnmbia. make oath and say as follows : 1. I did, on Satiinlay the 7tli day td' August \. D. 1^S(>, serve Robert E. Sproule persoiialK with the annexed notice of motion by handing to and leaving with the said Robert ■•;»m»stm>tsiiit 62 E. Sproule a copy tliereof ; and at the time of serving the said notice of motion I handed to tlie said Robert E. Sroule copies of the affidavits mentioned in the note to the notice of motion as being served tiiorevvith, viz: tiie affidavits sworn by me respectively on the 2'l:th day of July, A. D. 188(5, and the Ttii day of August, A. D. 086, with the Exhibit thereto, and the affidavit of Mr. Theodore Davie sworn on the 15tli day of February, A. D. 188fi, witli the Exhibit thereto. 2. I did. on Saturday tlie 7tli day of August A.D. 1886, serve Mr. Theodore Davie (Counsel and Solicitor for the said Robert K. Sproule) personally with the annexed notice of motion by handing to and leaving with the said Theodore Davie a copy thereof ; and at the time of serving the said notice of motron I handed to the said Theodore Davie copies of the 10 affidavits mentioned in the note to the notice of motion as being served therewith, viz : the affidavits sworn by me respectively on the 24th day of July A.D. 1886 and the 7th day of August, A. D. 1886, with Exhibit thereto and the affidavit of Mr. Theodore Davie sworn on the 15th day of Februiu-y A.D. 1886, and the Exhibit thereto. 3. Copies of the affidavits with Exhibits thereto then served on the said Robert E. Sproule and Mr. Theodore Davie as stated in this my affidavit are hereunto annexed and marked respectively 1, 2 and 3. Sworn at the (Jitvof Victoria, British Columbia, \ tliis 12th day of August, A. D. 1886. (. P. yE. IRVING. ilKMiV S. Pki.i.kw Ckkask, i 20 Jud(/e of the S. V. of li. Volumh'a. > EXHIBIT 2. This is the document marked 2 referred to in the annexed aflSlavit of P. yE. Irving sworn before me the 12tli. day of August \. D. 188H. HENRY P. PELLEW CREASE, J. IN TIIE SUPREME COURT OF CANADA. KEGINA VERSUS ROBERT E. SPROULE. In the matter of a Writ of llaheas Corj^iis issued out of the Supreme Court of Canada directed to the Sheriff of Vancouver Island and commanding hiin to produce the body of one Robert Evan Sproule. 3() I. Palt.is JCmii.u-s IitviNc; of the City of Victoria, British Columbia, Deputy of the Attorney General of P.ritish Columbia make oath and say. 1. On the twenty sixth day of May A. D. 18S6. I received by post, an application address- ed to the Attoriiev (ieiieiai by .Mr. Theodore Davie for a _/?"((/ for a Writ of error cormn nobis in the case of tlie (Jueen against the al)ove named Robert E- Sproule. A copy of the applica- tion is hereunto annexed a:id marked with the letter A. 2. The Attorney (ieneral refused such application and by his direction I dispatched to Mr. Theodore Davie who was then at Ottawa a telegram of which the following is a copy : 68 27tli. May lS8fi. THEODORE DAVfE. Mclntyre e (lischarged without the actual issue of the writ oi the attendance of the prisoner in Court. I have also tlie honor to state that concurrently with tiie ru'e His Lordship orderi'd a writ of certiorari to issue to bring up the proceedings. I liave now the honor to npply on behalf of the prisoner that upon the return to the ci rtiorari you will giant a wi'it ot error Coram nohiif^ as it may be deemed that without your consent to such a procedure, an ol)jeetion coulil i)e urged to tiie Judge proceeding upon the 30 IlahenH Corpus and the investigation of tlie cast;. It would seem th;it even without the Crown's assent the Court can in urgent cases deal with the ni:iltei before it, but it would much iaeditate mattei's if the fiat for the writ of error ( nriini iii:l)in were granted. The points to be tak'on before His Lordship Mr. Justice Henry are those already ui'ged in the Sujireme (Jourt of British ( 'olmnbiu, and in achlition the questions as to the sribstituted order for change of venu^' and tiie matter r as drawn up and in-ierted in tlie iccDid now returned until 1 read the <'opv of it in tiie neoid. The o:\\\ order that I knew of as governing the proceedings and 30 whicli liad been drawn up .uid signeil at the time of the trial and judgment was tiie one referred to ill tliis atlidavit marked A. I verily believe that none other was in existence and that tlie order in form as nnw iiiserteii in tlie recnrd was drawn up nud signed since the sentence. Ik'fore the vi'rdict was recorded 1 applied on beiialf of the prisoner to have the Jury polled but my at plieatinii was refused. Sworn before me at Vi.-toria tiiis 1.5 February 188(1 ) "THEODORE DAVIE." ••II. Dallas IIklmckkn," r A C'omi: for fiikiiuj tij/iy due course of law. Dated at Viettan(l his trial foi the murder of one Thomas Ilammil, at Ko'itenay 30 Edu'. in the I'ailiwick of the Sheriff of Kooteiiay. 2. On the heariiijif of such application tlij said liohjrt Evan Sproule was personally present and was also rt'presented on tiiat occasion liy his Counsel Mr. Tlieoilore Davie. .".. No application for the piiymcnr of ailditional cvpenses or any expenses whatever was then or at 'un' other time make on lielialf of thi! prisoner for it was conceded uii the part of t'le jirisotier on the application to change the venue that no adilitioiial expiMise would he occiasioni'd hv chani.nMji; the jilace of trial to Victoria liut the Chief Justice would not make the ori'ei' I'xcept upon my iindertakinii;, which undertakinrtukiii^ to iiliiilo hy hucIi nnlur ui« tliuJud^u wlio triui tliu coflo iiiiiy " tliiiik jiiHt to int'L't tlio t'ljiiity of tliu utatiiti'M of Caiiiulu, IH»t!t, c. ai), «. ll— Triul to tuko pliico '"lit AMHi/i'H liciv 'i.'J 11 IVi'^oiii'i- t,> nMniiiii ut Vicfi. in (MiHty." 4. Ill ili'itwiii^ ii|) till! ofilfi- tixiiif; tlic pliK-u of ti'iiil lit Viutoriii, i oiiiitt(Ml to Hut out tliu uoiiilitioiiti tilt) (/'liiuf Jiititiro liiul iiii|>os('il upon tliu Crown iim u ooiidition pmrdilunt to IiIh making tliu order. Tliu oiiiinHioii oitciiriud in tliiH way: nt tliat tiiiiu I ru(|iiirod tliu ordur, no fur Mrt itH iinmudiiiUi iiku w;ih coiiccrnfil, an a waniint, and an initlior'ty for tlii' ;;aol('r tlii'ii |iro(iii('iii;^ till' |iriH(iiicr, in olmdiuiiL-c to a writ of J/nhniM Citrpus t^ Jiaiid tliu jiriHoiiur ovur to tlie piolur at Victoria, and as a warrant and authority for tliu gaoler at Victoria tu ruceivu and dotuiii tlio priminur. It \\,m my intuntiori and I ho Htatud it at tliu tiiiiu of tliu drawing up of ^(^ tliu tiivt dociiiiK'iit to Mr. Tliuodori! D.iviu, to ilraw up at a fiitiiru tiiiiu a nion^ foriiial order, Huttiii;^ oMt till' iiii(lfital\iiii; di iiiaiidcd as aforcsiid hy tliu t'liicf .liiHlici'. Tills wa« suliscipicntly donu and is tliu onlur Hut out in tliu record ; tliu conditioiiH pruseriliud in huuIi ordur uru in tliu vury words pioiioiineud liy tliu Cliiuf .Iiisticu on tliu l.'Uli Octolior, IM85. 5. No ii|iplication for payiiiunt of additional uxpuiiscs (iaiiscd to tliu .icfiisud liy such cliaiijro of vumiu was unit iiiadc mi far as I am awarr, and 1 Iniliuvu tliat no additional uxpuiwuH wuru caused to tlie accused liy micIi ('liaiii.fe of vuiiui.'. I'l. I myself travuliud ill tliu Miimuiur of 188.') in tliu District of Kootunay, from Farwull to Donald, and also from Karwell to Wasliint;fon Territory, liy wayof the ('oliimliia liiver, ami tlieiiue to N'ictoria, liy way of Spiikaiie l''all.->, and the Northern I'acilic Railway, and I say it .)f . :.. !■ _ ....! ..' :,. i. I •:.....:.. .1 ^ .._ i i.. t^ i i .. "* iiienue to > ictoria, oy way oi ripuKane ran.-., ano inu i>oiinerii i aeuic itaiiway, ami i say ii ,)n wiw lu8H exiicnsivc for prisonur'n witnussus tit eoniu to Victoria than to procuud to Donald or Farwell. I'esides which tliu services of ('oiiiisel could lie olitainud at Victoria at far less cxpunsu than at Farwell a (-iitliciciit nunihur uf pen pui lie line to ay ,..v. , ,, ^. „. persons to form (iiand and I'utit .liiries. and the holding; of an assi/e at any other place in thu Kootun Di>tiict tha:i at Donald or Farwull was inpracticalile. s. Since thu year 1S7.'? no assizes have hcun held in the N'ooteiiay District uxcujit at Donald and Farsvull, and at tiiosu places only oiicu, viz : in tin mtlis of Jiinu and July. ISSS. The asuizus wuru appoinlud for those (iccusioiis liy thu jjiuiiteiia'itdovurnor in (\iuncil, and on noiiu havu liuuii apjiointud for thu Kootunay District liy Statute. '.>. The trial of thu casu was at thu instance of thu pii-oiiur p(ist|H>ned lor thu arrival of onu of his witnesses and was procee lud with only when his {.'oiiiisel aiiiioiincu I his ruadinuss to procuud. Sworn at the City of Victoria i'litish Coliimliia | this 1 llh day of Aii'..cii^' 1^''"' .\.l). hefnie me ' (Sird) .1. 1''. Ml ( 'uKioin, Sird) .1. 1''. Mr( 'uKiiiin, I JiKliji' oT III' S. V. of li L'ohniihi,!. ' (S^'d.) V. J-:. iRvixct. This is K.xhihit Z referred to in thu atHdavit of I'.iulus .Fmilius Irviiij^ sworn heforu me heieiii this ir.th dav of Aii-ii>t .\.D 1^^iiner cniilixed in the comnuiu gaol at tJie City of Victoria. in the I'rov luce df Itritish ('i)himbia. I, I'.M i.is .Emh.us luvi.No of the City of Victoria I'litish (' jlumiiia Deputy Attorney (reneral make oaili and say as follows : 1. 1 dil on tiie 1 Ith day of .Vngn^t A.D. I 8m!, personally serve Robert Evan SjU'oule, mentioned in the notice in irunto :iniii'\ed, 'viihthe said notice, liy delivering a coi)y of the;]() 8iitl. "l. I did on the .-ame day pei'sonally serve .Mr. Theodore D.ivie mentioned in the notice heretmto annexed, with the said notice, i>y delivering a copy (d' the saiil noiice to the said Theodoii' l)a\ ie pel .onally ai the loideiiee of the said Theodore Davie in the City of ^'icto(•ia and at the same time 1 lielivcri'd to him a copy of my atlidavit sworn herein on the 14th day of Aiigu>t AD l'^>^t;. ;'). A eopv of iMv atlidavit sworn herein on the 14th ilay of Augn-^t A.D. IS^tl und men- tioned in parai^raph:- 1 anil 2 of this my atlidavit as lieing served with the annexed notice i» now shewn to nie ami markinl Z, 10 Sworn at the ( 'itv o[ \'i' loria, I'.i'itish Colnndiia, this \ Kilh (lav of Anirust A.D. is.sC). before me. ' (Signedi P. A'.. IRN'INli. (Sgd.) ' .1. II. (iuAV." I .Imhii of Uo Supriine i'oiirt nf Bnti-^li ChIuihIiki. '