taining the substance and effect only (omitting the formal part) of the indictment and conviction for the previous felony, purporting to be signed by the clerk of the court, or other officer having the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer (for which certificate a fee of six shillings and eight pence, and no more shall be demanded or taken), shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same."

After some discussion and difference of opinion amongst the judges, it was settled that the allegation of a previous conviction was to be considered as a part of the indictment; that the prisoner, when called upon to [*223 ] plead, was to plead to it as such, and the jury *were to be charged at the outset of the inquiry with the whole matter which they had to try. 1 Lewin, C. C. 148. And with regard to the time of proving a previous conviction, it was held by the judges that it was to be proved before the prisoner was called upon for his defence. Jones' case, 6 C. and P. 391 (a).

Now by the 6 and 7 Wm. 4, c. 111, after reciting that doubts might be reasonably entertained whether the practice upon the above act was consistent with a fair and impartial inquiry as regarded the matter of the subsequent felony, it is enacted, that "it shall not be lawful on the trial of any person for any such subsequent felony, to charge the jury to inquire concerning such previous conviction, until after they shall have inquired concerning such subsequent felony, and shall have found such person guilty of the same, and whenever, in any indictment, such previous conviction shall be stated, the reading of such statement to the jury as part of the indictment shall be deferred until after such finding as aforesaid; provided nevertheless, that if, upon the trial of any person for any such subsequent felony as aforesaid, such person shall give evidence of his or her good character, it shall be lawful for the prosecutor in answer thereto, to give evidence of the indictment and conviction of such person for the previous felony before such verdict of guilty shall have been returned, and the jury shall inquire concerning such previous conviction for felony at the same time that they inquire concerning the subsequent felony."

If a prisoner's counsel elicit, on cross-examination, from the witnesses for the prosecution, that the prisoner has borne a good character, a previous conviction may be put in evidence against him, in like manner as if witnesses to his character had been called. Per Parke, B., Gadbury's case, 8 C. and P. 676 (b).

Trial.] The judges of assize have authority, and ought to try indictments found at the quarter sessions, and transmitted to them for trial by the justices. Wetherill's case, Russ. and Ry. 381 (c); I Lewin, C. C. 208.

Verdict.] If by mistake the jury deliver a wrong verdict, (as where it is delivered without the concurrence of all) and it is recorded, and a few minutes elapse before they correct the mistake, the record of the verdict may also be corrected. Parkins' case, 1 Moody, C. C. 46 (d).

(a) Eng. Com. L. Rep. xxv. 453. (b) ld. xxxiv. 580. (c) 1 Eng. C. C. 381. (d) 2 lbid. 46.

The jury have a right to find either a general or a special verdict. 4 Bl. Com. 361; 1 Chitty, C. L. 637, 642. And in a case of felony, although a judge may make the suggestion, he will not direct the jury to find special facts, and they may, if they think proper, return a general verdict, instead of finding special facts, with a view to raise a question of law. Per Lord Abinger, C. B., Allday's 8 C. and P. 136 (a).

Judgment.] By 11 Geo. 4, and 1 Wm. 4, c. 70, s. 9, it is enacted, *that upon all trials for felonies or misdemeanors, upon any re- [ *224 ] cord in the Court of King's Bench, judgment may be pronounced during the sittings or assizes by the judge before whom the verdict shall be taken, as well upon the person who shall have suffered judgment by default or confession upon the same record, as upon those who shall be tried and convicted, whether such persons be present or not in court, excepting only where the prosecution shall be by information filed by leave of the Court of King's Bench, or such cases of informations filed by his majesty's attorney-general, wherein the attorney-general shall pray that the judgment may be postponed; and the judgment so pronounced shall be indorsed upon the record of nisi prius, and afterwards entered upon the record in court, and shall be of the same force and effect as a judgment of the court, unless the court shall, within six days after the commencement of the ensuing term, grant a rule to show cause why a new trial should not be had, or the judgment amended; and it shall be lawful for the judge before whom the trial shall be had, either to issue an immediate order or warrant for committing the defendant in execution, or to respite the execution of the judgment, upon such terms as he shall think fit, until the sixth day of the ensuing term; and in case imprisonment shall be part of the sentence, to order the period of imprisonment to commence on the day on which the party shall be actually taken to, and confined in prison."

An offender, upon whom sentence of death has been passed, ought not, while under that sentence, to be brought up to receive judgment for another felony, although he was under that sentence when he was tried for the other felony, and did not plead his prior attainder. Anon. Russ. and Ry. 268 (b).

Where a defendant, having pleaded guilty to an indictment, is brought up for judgment, the counsel for the crown is to be heard before the counsel for the defendant, and the affidavits in aggravation are to be read before the affidavits in mitigation. Dignam's case, 7 A. and E. 593 (c). Contra, Where a verdict of guilty has been taken through by consent, and without evidence. Caistor's case, ib. 594, (n.) (d). Semble, that the rule is not to be varied where several defendants are jointly indicted, and some suffer judgment by default, and others are convicted on verdict. And in such a case, where there was no affidavit in aggravation, but affidavits were offered in mitigation, the court heard the counsel for the defendants first. Sutton's case, ib. (e).

Where an erroneous judgment is given by an inferior court on a valid indictment, (as by passing sentence of transportation in a case punishable only with death) and the prisoners bring error, the Court of King's Bench can neither pass the proper sentence, nor send the record back to the court

(a) Eng. Com. Law Rep. xxxiv. 327. (b) 1 Eng. C. C. 268. (e) Eng. Com. L. Rep. xxxiv. 166. (d) Iď. (e) Id.

below, in order that they may do so, but the judgment must be reversed, and the prisoners discharged. Bourne's case, 7 A. and E. 58 (a).

Recording judgment of death.] By the 4 Geo. 4, c. 48, s. 1, [*225] *whenever any person shall be convicted of any felony, except murder, and shall by law be excluded the benefit of clergy in respect thereof, and the court before which such offender shall be convicted, shall be of opinion that, under the particular circumstances of the case, such offender is a fit and proper subject to be recommended for the royal mercy, it shall and may be lawful for such court, if it shall think fit so to do, to direct the proper officer then being present in court, to require and ask, whereupon such officer shall require and ask, if such offender hath or knoweth any thing to say why judgment of death should not be recorded against such offender; and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the court shall, and may, and is hereby authorized to abstain from pronouncing judgment of death upon such offender; and instead of pronouncing such judgment, to order the same to be entered on record, and thereupon such proper officer as aforesaid shall, and may, and is hereby authorized to enter judgment of death on record against such offender, in the usual and accustomed form, and in such and the same manner as is now used, and as if judgment of death had actually been pronounced in open court against such offender by the court before which such offender shall have been convicted."

By the recent act for the better ordering of prisons, (2 and 3 Vict. c. 56, s. 17,) offenders against whom sentence of death is recorded, may be kept to hard labor while they remain in the gaol or house of correction.

Costs, expenses, and rewards.] As to the costs and expenses of the prosecutor and his witnesses in cases of felony, see the stat. 7 Geo. 4, c. 64, s. 22, ante, p. 109.

Where a prisoner did not reach the assize town until after the grand jury were discharged, Hullock, B., after referring to the above statute, ordered the witnesses their expenses. Anon. 1 Lewin, C. C. 128. Where, in consequence of the absence of the prosecutor, the trial was put off, and the prisoner applied for costs, Littledale, J., refused the application, saying, that costs were never allowed to a prisoner charged with felony. Cow's case, 1 Lewin, C. C. 131; 4 C. and P. 251 (b), S. C. Where the prisoner, in a case of felony, was at large and did not appear, the expenses of the prosecutor and witness, who had been bound over to appear by the coroner, were allowed. Flanning's case, 1 Lewin, C. C. 133; Anon. Id. 134. Upon an indictment for felony, removed by certiorari into the King's Bench, and tried at nisi prius, no costs can be allowed by this statute either there or by the King's Bench. R. v. Treasurer of Exeter, 5 M. and R. 167.

The usual expenses of prosecution may be allowed by the proper officers of the court, but the fees attendant on the examination, and the allowance to the prosecutor and his witnesses, on attending before the magistrate, can only be allowed on the production of the certificate mentioned in the act; and the court has no power to allow the expenses of witnesses

(a) Eng. Com. L. Rep. xxxiv. 36. (b) Id. xix. 369.

attending before the coroner previous to the indictment. Rees' case, 5 C. and P. 302 (a); Taylor's case, 5 C. and P. 301 (b).

It seems that in general no costs will be allowed before the trial has actually taken place, as when it is postponed. Hunter's case, 3 C. and P. 591 (c).

But in a case of murder, which was postponed until the following assizes, on the application of the prisoner, and in which the costs of the prosecution were very heavy, Alderson, B., made an order for their payment. Bolam's case, Newc. Sp. Ass. 1839, MS.

The prosecutor and his witnesses being bound over, attended at the assizes and preferred an indictment, which was found. The prisoner, who had been discharged by mistake, had absconded. Mr. Justice Taunton said, that under the authority of the word "prosecute" by the statute, he thought he might order the expenses, but that if no bill had been preferred, he thought he should have had no authority. Robey's case, 5 C. and P. 552 (d).

Under the words "in otherwise carrying on such prosecution" contained in the 7 Geo. 4, c. 64, s. 22, ante, p. 109, Lord Denman, C. J., allowed a small township the extra expenses which had been incurred in getting up the prosecution; the order was drawn up for all the expenses incurred, except the attendance of the witnesses before the coroner. wen's case, 2 Lew. C. C. 161.

Le

As to the expenses in cases of misdemeanor, see 7 Geo. 4, c. 64, s. 23, and 7 Wm. 4, and 1 Vict. c. 44, ante, p. 110.

An indictment for an indecent exposure of the person before one J. S., with intent to provoke him to commit an unnatural crime, which had been removed by the defendants by certiorari, is not within the 7 Geo. 4, c. 64, s 23, so as to enable the court, before whom it is tried, to grant the costs of the prosecution. Anon. 3 N. and P. 627.

Where an indictment was removed from the sessions by certiorari, at the instance of the prosecutor, and tried at nisi prius, and the prosecutor, who was not under recognizance, caused himself and his witnesses to be subpoenaed and paid their expenses, it was held that neither the court at nisi prius nor the King's Bench could give costs under the 7 Geo. 4, s. 23. Johnson's case, Moo. C. C. 173 (e); Richard's case, 8 B. and C. 420 (ƒ). In the case of misdemeanors, not within the act, if the defendant submits to a verdict on an understanding that he shall not be brought up for judgment, the prosecutor is not, without a special agreement, entitled to costs. Rawson's case, 2 B. and C. 598 (g); 1 D. and R. 124, S. C.

The costs with regard to indictments for nuisances removed by certiorari, are regulated by stat. 3 W. and M. c. 11, s. 3, which enacts, that if a defendant prosecuting a writ of certiorari, (as mentioned in the act) be convicted, the Court of King's Bench shall give reasonable costs to the prosecutor, if he be a party grieved, or be a justice, &c. or other civil officer, who shall prosecute for any fact that concerned them as officers to prosecute or present. Persons dwelling near a steam engine, which is a nuisance, have been held to be parties grieved within this act. Dewsnap's case, 16 East, *194. The costs in cases of nuisances arising [ *227 ]

(a) Eng. Com. L. Rep. xxiv. 331. (b) Id. (c) Id. xiv. 469. (d) Id. xxiv. 452. (e) 2 Eng. C. C. 173. (f) Eng. Com. L. Rep. xv. 253. (g) Id. ix. 194.

from the furnaces of steam engines, are governed by the statute 1 and 2 Geo. 4, c. 41.

Mode of payment by the treasurer of the county, &c.] By the stat. 7 Geo. 4, c. 64, s. 24, it is enacted, "That every order for payment to any prosecutor, or other person as aforesaid, shall be forthwith made out and delivered by the proper officer of the court unto such prosecutor, or other person, upon being paid for the same the sum of one shilling for the prosecutor, and sixpence for each other person, and no more, and except in the cases therein after provided for, shall be made upon the treasurer of the county, riding, or division in which the offence shall have been committed, or shall be supposed to have been committed, who is thereby authorised and required upon the sight of every such order, forthwith to pay to the person named therein, or to any one duly authorised to receive the same on his or her behalf, the money in such order mentioned, and shall be allowed the same in his accounts.'

With respect to places that do not contribute to any county rate.] The stat. 7 Geo. 4, c. 64, s. 25, after reciting that "whereas felonies, and such misdemeanors as are thereinbefore enumerated, may be committed in liberties, franchises, cities, towns and places which do not contribute to the payment of a county rate, some of which raise a rate in the nature of a county rate, and others have neither any such rate, nor any fund applicable to similar purposes, and it is just that such liberties, franchises, cities, towns and places, should be charged with all costs, expenses, and compensations, ordered by virtue of this act, in respect of felonies and such misdemeanors, committed therein respectively," enacts "That all sums directed to be paid by virtue of this act, in respect of felonies, and of such misdemeanors as aforesaid, committed, or supposed to have been committed in such liberties, franchises, cities, towns and places, shall be paid out of the rate in the nature of a county rate, or out of any fund applicable to similar purposes, where there is such a rate or fund, by the treasurer or other officer having the collection or disbursement of such rate or fund; and where there is no such rate or fund in such liberties, franchises, cities, towns and places, shall be paid out of the rate or fund for the relief of the poor of the parish, township, district, or precinct therein, where the offence was committed or supposed to have been committed, by the overseers or other officers having the collection or disbursement of such last mentioned rate or fund, and the order of court shall in every such case be directed to such treasurer, overseers, or other officers respectively, instead of the treasurer of the county, riding, or division, as the case may require."

Expenses of prosecution for capital offences in exclusive jurisdiction.] By stat. 60 Geo. 3, c. 14, s. 3, it is provided, "that in all cases of any commitment to the county gaol, under the authority of this act, all the [*228] expenses to which the county may be put by reason of such commitment, together with all such expenses of the prosecution and witnesses as the judge shall be pleased to allow, by virtue of any law now in force, shall be borne and paid by the said town, liberty, soke or place, within which such offence shall have been committed, in like manner and to be raised by the same means whereby such expenses would have