SECTION XVII. Costs. Upon conviction.] Where an indictment is removed by certiorari at the instance of the defendant, and the defendant is convicted, and judgment actually given, R. v. Turner, 15 East, 570, the prosecutor, if he be the party grieved, or a justice or officer whom it may concern as such to prosecute, shall be entitled to his costs from the defendant, to be recovered by attachment. 5 and 6 W. & M. c. 11, s. 3; R. v. Teal, 13 East, 4; and see post. tit. Certiorari. But in no other case is a defendant, on conviction, either upon an indictment or information, liable to pay costs. If however upon a criminal information, or on an indictment, either found in this court, or removed here at the instance of the prosecutor by certiorari, the defendant be convicted, and adjudged to pay a fine, and pay it, the prosecutor upon application will be allowed one-third of the fine, in satisfaction of his costs; and the costs being taxed, and entered on a roll, two judges of the court will sign a fiat for their allowance at the foot of the roll, and the Queen's coroner and attorney will thereupon pay the amount. And if the one-third of the fine be not sufficient to defray the costs, the treasury, upon petition, will sometimes order the remainder to be paid to the prosecutor out of the fine. Receipt to be annexed to the Roll. The Queen, on the prosecution of Received the day of, of court of Queen's Bench, and allowed to the prosecutor, by virtue of the Queen's writ of privy seal, for the use of the said prosecutor. £ -, attorney for the prosecutor. Upon acquittal.] By stat. 4 and 5 W. & M. c. 18, s. 2, in case any person, against whom an information for a misdemeanor shall be exhibited, shall appear thereunto and plead to issue, and that the prosecutor of such information shall not, at his own proper costs and charges, within one whole year next after issue joined therein, procure the same to be tried,— or if upon such trial a verdict pass for the defendant or defendants, or in case the same informer procure a nolle prosequi to be entered:-then, in any of the said cases, the court of King's Bench is authorised to award the said defendant or defendants his or their costs, unless the judge before whom such information shall be tried, shall at the trial of such information, in open court, certify upon record that there was reasonable cause for exhibiting such information. And in case the informer shall not, within three months next after the said costs taxed and demand made thereof, pay to the said defendant or defendants the said costs, then the said defendant and defendants shall have the benefit of the said recognizance (see ante, p. 39,) to compel them thereunto. Id. And the recognizance being in the penalty of 201., it has been holden that costs to the extent of that sum only, can be recovered under this statute; R. v. Filewood, 2 T. R. 145; nor will the court, by any rule or otherwise, require the prosecutor to pay, or give security for, costs beyond that amount. R. v. Brooke, 2 T. R. 190. It has been holden also, upon this statute, that if upon an information against two or more, any one of them be convicted, the prosecutor is not liable to pay costs to the others. R. v. Danvers et al., 1 Salk. 194. It has been holden also, that the statute does not extend to a trial at bar. 2 Hawk. c. 26, s. 10. Nor does the statute extend to any other informations than those exhibited by the Queen's coroner and attorney. 4 and 5 W. & M. c. 18, s. 6. In no other case is a defendant entitled to costs upon an acquittal. SECTION XVIII. Judgment. In what cases.] The court of Queen's Bench has authority to pass judgment and award execution, not only on all persons against whom an indictment has been found, or an information exhibited, in that court, but also where the indictments have been found elsewhere, and afterwards removed into that court by certiorari. The judgment is interlocutory or final: interlocutory, that the defendant be convicted, such as judgment by default; final, that he be punished. Of judgment by default we have already treated, ante, p. 59; and here it may be necessary to mention, that a regular judgment by default cannot be set aside upon payment of costs, as it may in civil cases. R. v. Hunter, 1 Wils. 463. of final judgments, we shall now treat shortly. In passing final judgment, the court will give that judgment which by law is assigned to the offence described in the indictment or information, rejecting all words which are surplusage; as, for instance, if a misdemeanor be laid to have been committed feloniously, the court, rejecting the word "feloniously" as surplusage, will give judgment for the misdemeanor. R. v. Scofield, 2 East, P. C. 1028; see R. v. Turner, Ry. & M. C. C. 47. The court will take care also that the judgment strictly corresponds with the postea, and care must be previously taken that the postea strictly corresponds with the several issues tried. Where the first count of an indictment charged an assault with intent to commit a rape, and the second count a common assault; the jury found the defendant guilty of the misdemeanor and offence in the said indictment specified, and the court adjudged him, for the said misdemeanor, to be imprisoned for two years and kept to hard labour: it was holden, upon writ of error, that the word “misdemeanor" was nomen collectivum, and that the finding of the jury, therefore, was in effect, that the defendant was guilty of the whole matter charged by the indictment, and consequently that the judgment was warranted by the verdict. R. v. Powell, 2 B. & Ad. 75. But if the offence have been created, or be punishable, by statute only, and the statute be repealed at any time before judgment, judgment cannot afterwards be given. And where a statute repealed a former one, by which a certain offence was ousted of clergy, and another punishment assigned to it from and after the passing of the new statute, it was holden that an offence committed previously to the new statute, and the offender not tried until after it, was not punishable under either not under the old statute, for that was no longer in force; and not under the new one, for that related to such offences only as were committed after the passing of it. R. v. M'Kenzie, R. & Ry. C. C. 429. Or, instead of passing sentence, the court may recommend the parties to go before the Queen's coroner and attorney, by way of reference; in which case the latter is furnished with all the affidavits, &c., attended by counsel if the parties wish it, and his allocatur in the rule may be enforced by attachment; and afterwards judgment may be entered against the defendant, pro formá, for a mere nominal fine. So, in offences of an ordinary description, if the parties compromise the matter, by the defendant paying the prosecutor's costs, or the like, the court, upon being apprized of it, will in general pass judgment for a mere nominal fine, or, at least, will take that matter into their consideration in their judgment. See R. v. Gray, 2 Ld. Kenyon, 307. But in cases of offences of a graver nature, the court will not permit of their being compromised in this way. And therefore where there was every reason to believe that a prosecution for keeping a common gaming-house had been compromised, after conviction, by some agreement between the defendant and the prosecutor, the court allowed the solicitor of the treasury to have a new record of nisi prius engrossed, and the postea and verdict indorsed from the judge's notes, on an affidavit that the postea could not be found, and that the solicitor of the treasury was instructed by the secretary of state to call for the judgment of the court. R. v. Oldfield, 3 B. & Ad. 659 n. Or, instead of passing sentence, the court, in slight cases, may think it sufficient that the defendant should enter into his own recognizance to appear at any future period, when called upon, to receive judgment; in which case his recognizance is taken accordingly, and he is discharged. And where it appeared that the prosecutor had brought an action against the defendant for the same assault which was the subject of the prosecution, the court asked if the action had been discontinued, saying that it was a rule that the court would not pass judgment upon an indictment for an assault, whilst an action was pending for the same assault; it was answered that the action had not been discontinued, but the prosecutor offered to do it then; the court however held it to be too late, and that it should have been done before, and they discharged the defendant on his recognizance, with two sureties, to be of good behaviour, particularly towards the prosecutor. R. v. O'Gorman Mahon, 4 Ad. & El. 575. Also, the court will not pass sentence for a felony or misdemeanor upon a man who is already under sentence of death for another felony. R. v. Brady, R. & Ry. C. C. 268. So the court may, and frequently do, defer passing sentence for a short time, in order to give the defendant an advantage in some particular respect, to which in justice and fairness he is entitled. But that a witness for the prosecution has been indicted for perjury, charged to have been committed by him in the evidence then given by him upon that occasion, has been holden to be no reason for postponing the judgment against the party convicted. R. v. Haydon, 3 Burr. 1387, 1 W. Bl. 404. So, where four persons, A., B., C., and D., were indicted for a conspiracy amongst themselves and with divers others, and A., B., and C. appeared and pleaded, but A. and B. alone were tried, C. and D. not having appeared at the trial; the jury found B. guilty of conspiring with C., and acquitted A.: the court refused to stay or suspend the judgment against B. until after the trial of C., saying that the verdict was conclusive of the guilt of B., whatever might be the event of the trial of C. R. v. Cooke, 5 B. & C. 538. Sentence at nisi prius.] By stat. 11 G. 4., and 1 W. 4, c. 70, s. 9, upon all trials for felonies or misdemeanors upon any record of 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. In ordinary cases the judge will not receive any affidavits upon the part of the defendant in mitigation, although perhaps under particular circumstances he might. See R. v. Cox, 4 Car. & P. 538. But when a defendant is thus sentenced at nisi prius, he cannot afterwards apply to the court, upon ordinary affidavits, to amend the judgment by diminishing the punishment, without showing some specific defect in the sentence, or some matter which could not have been adduced at nisi prius. R. v. Lloyd, 4 B. & Ad. 135. Sentence by the court in banc.] Where a defendant, not under recognizance, is present in court when he is tried and convicted, the judge before whom he is tried, in order that he |