and officers contravening the provisions of this Act. This section is repeated in 32 Vic. ch 22, Q.

The right to have a jury composed of at least one half of persons skilled in the language of the defence, must, undoubtedly, both in Manitoba and Quebec, be exercised upon arraignment. Immediately after arraignment, the venire is presumed to have issued, and if it issues without this order, the jurors must be summoned in the usual manner, that is to say, without regard to language.

Both in Manitoba and Quebec, this right is given in misdemeanors as well as in felonies. Why are subsection 2 of chap. 40, of the Procedure Act of 1869, for Quebec, and sec. 5, of 34 Vic. ch. 14, for Manitoba, restricted to treason and felonies? It seems to have been forgotten that peremptory challenges were also now allowed in misdemeanors.

In Reg. vs. Dougall, 18 L. C. Jur., 85, it was held by Mr. Justice Ramsay: 1st. That where the defendant has asked for a jury composed one half of the language of the defence, six jurors speaking that language may first be put into the box, before calling any juror of the other language; 2nd. That the right of the Crown to tell jurors "to stand aside," exists for misdemeanors as well as for felonies; 3rd. That when to obtain six jurors speaking the language of the defence, all speaking that language have been called, the Crown is still at liberty to challenge to stand aside, and is not held to show cause until the

Mr. Justice Ramsay said

whole panel is exhausted. that the calling the jurors' names alternately from the English and French lists, mentioned in section 40 of the Procedure Act is only directory and applies only to the calling of the jury in ordinary cases, where no order has been given for a jury composed of one half English and one half French. The case was reserved by the learned Judge, for the consideration of the ful Court, but only on the one point thirdly above mentioned, which is more intelligibly given in the summary of the report of the decision of the full Court, at page 242 L. C. Jur., as follows: "Where, to obtain six jurors speaking the language of the defence (English), the list of jurors speaking that language was called, and several were ordered by the Crown to stand aside; and the six English-speaking jurors being sworn, the clerk re-commenced to call the panel alternately from the lists of jurors speaking the English and French languages, and one of those (English) previously ordered to "stand aside," was again called: Held, that the previous "stand aside" stood good until the panel was exhausted by all the names on both lists being called."

This was the only point reserved and the only one decided, and that could be decided by the full court. As said by Mr. Justice Ramsay, "Be the question reserved difficult or not, the Court has no authority to go beyond it, and any excursion into other matters is totally uncalled for and without jurisdiction." A reference to such "excursions" in Dougall's case would lead to the inference that the majority of the judges were of opinion that, in all such cases, the jurors should

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be called alternately from the two lists, and that, if by the consent of the parties, six jurors of one language have first been called and sworn from one of the lists, as in this case, then the calling from that list should go on from the sixth juror sworn, and not begin the said list over again. It does not appear by any of the remarks of the learned judges in this case why, when a jury composed of six English and six French has been ordered (the defence, say, being English), the list of the English jurors is not first called, till six English jurors are sworn, and why the list of the French jurors is not then called over till six French jurors are also sworn see 27-28 Vic. ch. 41, sec. 7, ante; the challenges being divided according to sub-section 2 of sec. 40 of the Procedure Act.

PROCEDURE WHEN PANEL EXHAUsted.

Sec. 41. Whenever, in any criminal case, the panel has been exhausted by challenge, or by default of jurors by non-attendance or not answering when called, or from any other cause, and a complete jury for the trial of such case cannot be had by reason thereof, then upon request made on behalf of the Crown, the Court may in its discretion order the Sheriff or other proper officer forthwith to summon such number of good men of the district, county or place, whether on the roll of jurors or otherwise qualified as Jurors or not, as the Court may deem necessary and may direct, in order to make up a full jury; and such Sheriff or officer shall forth with summon by word of mouth or in writing, the number of persons he is so

required to summon, and add their names to the general panel of jurors returned to serve at that court, and (subject to the right of the Crown and of the accused respectively, as to challenge or direction to stand aside) the persons whose names are so added to the panel shall (whether otherwise qualified or not) be deemed duly qualified as jurors in the case, and so until a complete jury is obtained, and the trial shall then proceed as if such jurors were originally returned duly and regularly on the panel; and if before such order one or more persons have been sworn or admitted unchallenged on the jury, he or they may be retained on the jury, or the jury may be discharged, as the Court may direct; every person so summoned as a juror shall forthwith attend and act in obedience to the summons, and if he makes default shall be punishable in like manner as a juror summoned in the usual way; such jurors so newly summoned shall be added to the panel for such case only.

It is only upon request made on behalf of the Crown, that the Court is authorized to give the order mentioned in this section, and even then, whether this order will be given or not is left to the discretion of the Court. It must not be forgotten that this clause specially enacts that such jurors summoned as therein provided for shall be added to the panel only for the case in which such order has been given.

In Quebec and Manitoba, special provisions are in force respecting the procedure to be taken, when a deficiency of persons skilled in the language of the defence occurs in cases where the defence is entitled

be called alternately from the two lists, and that, if by the consent of the parties, six jurors of one language have first been called and sworn from one of the lists, as in this case, then the calling from that list should go on from the sixth juror sworn, and not begin the said list over again. It does not appear by any of the remarks of the learned judges in this case why, when a jury composed of six English and six French has been ordered (the defence, say, being English), the list of the English jurors is not first called, till six English jurors are sworn, and why the list of the French jurors is not then called over till six French jurors are also sworn see 27-28 Vic. ch. 41, sec. 7, ante; the challenges being divided according to sub-section 2 of sec. 40 of the Procedure Act.

PROCEDURE WHEN PANEL EXHAUsted.

Sec. 41. Whenever, in any criminal case, the panel has been exhausted by challenge, or by default of jurors by non-attendance or not answering when called, or from any other cause, and a complete jury for the trial of such case cannot be had by reason thereof, then upon request made on behalf of the Crown, the Court may in its discretion order the Sheriff or other proper officer forthwith to summon such number of good men of the district, county or place, whether on the roll of jurors or otherwise qualified as Jurors or not, as the Court may deem necessary and may direct, in order to make up a full jury; and such Sheriff or officer shall forth with summon by word of mouth or in writing, the number of persons he is so