PART V. and at or before such court; and the amount of such expenses of attending before the examining magistrate, and compensation for trouble and loss of time therein, shall be ascertained by the certificate of such magistrate, granted before the attendance in court; and the amount of all other expenses and compensation shall be ascertained by the proper officer of the court, who shall, upon receipt of the sum of 6d. (a) for each witness, make out and deliver to the person entitled thereto an order for such expenses and compensation, together with the said fee of 6d., upon such and the same treasurers and officers as would now by law be liable to payment of an order for the expenses of the prosecutor or witnesses against such accused person; and if the accusation be of such kind that the court shall have no power to order the expenses of the prosecutor, then upon the treasurer or other officer in the capacity of a treasurer of the county, riding, division, city, borough, or place where the offence of such accused person may be alleged to have been committed, which treasurer or other officer is hereby required to pay the same orders upon sight thereof, and shall be allowed the same in his accounts. Provided always, that in no case shall any such allowances or compensation exceed the amount now by law permitted to be made to prosecutors and witnesses for the prosecution; and provided always, that such allowances and compensation shall be allowed and paid as part of the expenses of the prosecution."

Persons

in costs.

be

By 33 & 34 Vict. c. 23, s. 3, any court by which judgment convicted is pronounced or recorded upon the conviction of any person of treason for treason or felony, in addition to such sentence as may or felony otherwise by law be passed, may condemn him to the payment may be of the whole, or any part, of the costs or expenses incurred condemned in and about the prosecution and conviction; and the payment of such costs and expenses or any part thereof, may ordered by the court to be made out of any (b) moneys taken from such person on his apprehension, or may be enforced at the instance of any person liable to pay, or who may have paid the same, in such and the same manner (subject to the provisions of this Act) as the payment of any costs ordered to be paid by the judgment or order of any court of competent jurisdiction in any civil action or proceeding may for the time being be enforced. In the meantime, and until

(a) In certain cases the officer is not entitled to this fee. (See 32 & 33 Vict. c. 89, ss. 9, 10.)

(b) This must mean such person's own moneys or which he had the power of disposing of. (See R. v. Roberts, 43 L. J. M. C. 17.)

the recovery of such costs and expenses from the person so convicted as aforesaid, or from his estate, the same must be paid and provided for in the same manner as if this Act had not passed; and any money which may be recovered in respect thereof from the person so convicted, or from his estate, shall be applicable to the reimbursement of any person or fund by whom, or out of which, such costs and expenses may have been paid or defrayed.

СНАР.

XXIII.

tion to

By sect. 4, any such court as aforesaid may, upon Compensathe application of any person aggrieved, and immediately persons after the conviction of any person for felony, award any sum defrauded of money, not exceeding £100, by way of satisfaction or or injured compensation for any loss of property suffered by the appli- by felony. cant through or by means of the said felony, and the amount awarded for such satisfaction or compensation is deemed a judgment debt due to the person entitled to receive the same from the person so convicted, and the order for payment of such amount may be enforced in such and the same manner as in the case of any costs ordered by the court to be paid under the last preceding section of this Act. (See R. v. Lovett, 11 Cox C. C. 602.

As to a person acquitted being ordered to be paid his costs Ordering by the prosecutor under the Vexatious Indictments Act, see prosecutor, 30 & 31 Vict. c. 35, noticed ante, p. 53. As to a prosecutor &c., to or defendant being entitled to recover costs from the other pay costs. of them, in the case of an indictment for a libel, see 6 & 7 Vict. c. 96, s. 8. As to ordering a defendant to pay costs when convicted on an indictment for an assault, see ante, p. 165.

I

PART VI.

PART VI.

PROCEEDINGS AFTER TRIAL.

Constitution of court.

Reservation of

at trial.

THE 11 & 12 Vict. c. 78 (amended by the J. Act, 1873) constituted a court for the consideration and determination of questions of law reserved on the trial of criminal cases. The jurisdiction and authorities by this Act given to such court (which is usually called the Court for Crown Cases Reserved) is exercised by the judges of the High Court of Justice, or 5 of them at the least, of whom the Lord Chief Justice of England is to be one. (J. Act, 1873, s. 47.)

By sect. 1 (a), when any person has been convicted of any treason, felony, or misdemeanor before any court of oyer questions and terminer or gaol delivery, or court of quarter sessions (b), the court may (c) reserve any question of law which has arisen on the trial for the consideration of the judges of the High Court of Justice, and thereupon the court has authority to respite execution of the judgment on such conviction, or

(a) Before this Act a judge of one of the superior courts of law, in certain cases, would reserve an objection made by or on behalf of a prisoner at the trial for the consideration of all the judges of such courts, and if they or the majority of them were of opinion that the objection was well founded and the conviction wrong the crown used to grant a pardon; but the judges had no power to avoid the conviction. There was no mode of reserving cases which arose at the quarter sessions.

(b) It seems that the recorder of a borough is included in these words. (R. v. Masters, 18 L. J. M. C. 2.)

(c) The court has an absolute discretion as to reserving a question.

postpone the judgment until such question shall have been CH. XXIV. considered and decided; and in either case the court in its discretion must commit the person convicted to prison, or take a recognizance of bail, with one or two sufficient sureties, and in such sum as the court shall think fit, conditioned to appear at such time or times as the court may direct, and receive judgment, or to render himself in execution, as the case may be. The Criminal Code Commissioners state, at p. 38 of their report:- "The existing power of appeal on a point reserved is only on behalf of the accused. The consequence is that the judge cannot reserve a question unless he rules it against the accused, notwithstanding his own opinion may be that, though the point is doubtful, it should be decided in favour of the accused." Questions of law which arise on the evidence or on a motion in arrest of judgment may be reserved, but not questions which arise on demurrer. (R. v. Faderman, 1 Den. 565; 19 L. J. M. C. 147; R. v. Martin, 18 L. J. M. C. 137.) The court states the question or questions of law reserved, with the special circumstances upon which the same have arisen in a case which is signed and transmitted to the judges of the High Court of Justice. (s. 2.)

By rules of court, 1st June, 1850, the original case must be signed by the judge or commissioner or chairman of sessions, reserving the question of law, and 17 copies of such case must be delivered to the clerk of the Court for Crown Cases Reserved at the Exchequer Chamber at Westminster at least 4 days before the day appointed for the sitting of the court:-The case must briefly state the question or questions of law reserved, and such facts only as raise the same; if the question turn upon the indictment, or upon any count thereof, then the case must set forth the indictment, or the particular count :

:

No case can be heard upon any demurrer to the pleadings:-Every case must state whether judgment on the conviction was passed or postponed, or the execution of the judgment respited, and whether the person convicted be in prison, or has been discharged on recognizance of bail to appear and receive judgment, or to render himself in execution:-When any case is intended to be argued by counsel (d) or by the parties, notice thereof must be given to the clerk of the Court for Crown Cases Reserved at least 2 days previously to the sitting of the court:-With every case

(d) The public prosecutor may, where no counsel is instructed for the prosecution, instruct counsel to argue the case.

• PART VI. delivered to the judges of the court (except such cases as are reserved by such judges) the fee payable to the clerks of the said judges shall not exceed the fee payable on "demurrer and other paper books," as contained in the table of fees allowed and sanctioned by the judges pursuant to the statute 1 Vict. c. 30.

Power of

Reserved.

The Court for Crown Cases Reserved has full power and Court for authority to hear and finally determine the said question or Crown questions, and thereupon to reverse, affirm, or amend any Cases judgment which has been given, or to avoid the same, and to order an entry to be made on the record that in the judgment of the said judges of the said court the party convicted ought not to have been convicted, or to arrest the judgment, or to order judgment to be given thereon at some other session of oyer and terminer or gaol delivery, or other sessions of the peace, if no judgment shall have been before that time given, or to make such other order as justice shall require. (s. 2.)

The Criminal Code Commissioners in their report (p. 38) state with reference to the power of the Court for Crown Cases Reserved under this Act, "if ultimately it is determined that there has been an improper ruling against the accused, on some point of perhaps very little importance, or that some evidence, perhaps of little weight has been improperly received or rejected, the Court of Appeal must avoid the conviction, and has no power to grant a new trial."

The judgment of the Court for Crown Cases Reserved must be delivered in open court after hearing counsel or the parties, where they are desirous of being heard. The Criminal Code Commissioners, at p. 38 of their report, state" Upon the construction of the Act it has been considered that, if a difference of opinion occurs between the 5 judges, the minority are not bound by the majority, but the matter must be referred to the whole body,—a course which is on many obvious grounds inconvenient.'

The determination of the court is final, and without appeal. (J. Act, 1873, s. 47.)

The judgment and order, if any, of the said judges must be certified under the hand of the presiding chief justice to the clerk of assize or his deputy, or to the clerk of the peace or his deputy, as the case may be, who enters the same on the original record in proper form; and a certificate of such entry, under the hand of the clerk of assize or his deputy, or the clerk of the peace or his deputy, as the case may be, in the form given by the Act, as near as may be, must be delivered or transmitted by him to the sheriff or gaoler in whose