it seems that under clause 5 of the above Article, it would be a bar to a second indictment for the same offence. A plea of autrefois convict or autrefois acquit, has been held to be sustained by proof of a previous conviction or acquittal by a competent tribunal in a foreign country. (1) In such a case the defendant should produce an exemplification of the record of his conviction or acquittal from the court of the State or Kingdom where he was tried. (2) As to proof of proceedings or records of foreign courts, see section 10 of the Canada Evidence Act, 1893, post. For forms of plea of autrefois acquit, see p. 600, post. According to clause 3 of the above Article, 631, pleas of autrefois acquit, autrefois convict, and pardon, may be pleaded together, and, if pleaded, must be disposed of before the accused is called on to plead further; and when these pleas are disposed of against the defendant he may then plead not guilty. As the jury are sworn, at once, to try the issue raised by the plea of autrefois acquit, or autrefois convict it appears that no replication is actually pleaded on the part of the Crown; although a replication and similiter must be entered upon the record, when afterwards made up. (3) For form of replication, see p. 600, post. Where in an English case the former record was at the Quarter Sessions, the Queen's Bench Division of the High Court granted a mandamus to the justices to make up the record. (4) A verdict for the defendant upon a plea of autrefois acquit or convict cannot, it seems, be set aside, and a new trial had, although rendered without evidence and against the opinion of the judge. (5) Plea of summary conviction or dismissal.-Analagous to the defences of autrefois acquit and autrefois convict is the defence that the defendant has been before convicted or discharged under the provisions relating to summary trials. By Articles 797, 798, and 799, it is provided, in reference to summary trials, of certain indictable offences that, "whenever the magistrate finds the offence not proved he shall dismiss the charge and make out, and deliver to the person charged, a certificate under his hand stating the fact of such dismissal," that, "every conviction under this Part shall have the same effect as a conviction upon indictment for the same offence"; and, that, "every person who obtains a certificate of dismissal, or is convicted under the provisions of this Part, shall be released from all further or other criminal proceedings for the same cause." And by Articles 865 and 867 post, relating to the summary trial of assaults, it is provided, that, "if the justice, upon the hearing of any case of assault or battery upon the merits where the complaint is preferred by or on behalf of the person aggrieved, under the next preceding section, deems the offence not to be proved, or finds the assault or battery to have been justified, or so trifling as not to merit any punishment, and accordingly dismisses the complaint, he shall forthwith make out a certificate under his hand stating the fact of such dismissal, and shall deliver such certificate to the person against whom the complaint was preferred;" and that "if the person against whom any such complaint has been preferred, by or on the behalf of the person aggrieved, obtains such certificate, or, having been convicted, pays the whole amount adjudged to be paid (1) R. v. Hutchinson, 1 Leach, 135; Bull N. P. 245. (2) Hutchinson's Case, 3 Keb. 785; And, see Beak v. Thyrwhit, 3 Mod. 194; 1 Show. 6; R. v. Roche, I Leach, 134. (3) Arch, Cr. Pl. & Ev. 21 Ed. 151. (4) R. v. Justices of Middlesex, 5 B. & Ad. 1113; 3 L. J. (M. C.) 32. (5) R. v. Lea,2 Mood. C. C. 9. or suffers the imprisonment, or imprisonment with hard labour, awarded, he shall be released from all further or other proceedings, civil or criminal, for the same cause." The certificate of dismissal can only be granted when there has been a full hearing upon the merils. If the certificate is granted on a withdrawal of the charge, before hearing, it will be no bar to subsequent proceedings for the same assault. (1) The effect of the certificate of dismissal, when granted, on an acquittal, or of payment of the penalty or suffering the punishment imposed on a conviction, as the case may be, is to release the defendant from all other proceedings for the same cause. A defence under these provisions must be specially pleaded. For form of plea, see p. 600, post. A summary conviction for assault has been held to be a bar to a subsequent indictment for stabbing, based on the same transaction; (2) and it has also been held a bar to an indictment for unlawful wounding and an assault occasioning actual bodily harm, based on the same circumstances. (3) A summary conviction for assault has, however, been held not to be a bar to a subsequent indictment for manslaughter in a case where the man, who was assaulted, afterwards died in consequence of the assault. (4) It appears that the production of the certificate of dismissal is of itself sufficient evidence of such dismissal, without proof of the signature of the Magistrate or justice. (5) Plea of pardon.-With regard to the plea of pardon it should be pleaded at the first opportunity the defendant has of doing so. If for instance, he have obtained a pardon before being arraigned, and, instead of then pleading it in bar, he plead the general issue he will be deemed to have named the benefit of the pardon and will not be able to avail himself of it in arrest of judgment. (6) This however, relates to the Crown's pardon only; for a pardon by statute need not be pleaded, unless there be exceptions in it; (7) nor can the defendant lose the benefit of it by his laches or negligence. If the Crown's pardon be obtained after the defendant has been tried, he may plead it after verdict in arrest of judgment, or, if it has been granted after sentence, he may plead it in bar of execution. See Article 966, post, as to pardons by the Crown. 632. Depositions and judge's notes on former trial.-On the trial of an issue on a plea of autrefois acquit or convict the depositions transmitted to the court on the former trial, together with the judge's and official stenographer's notes if available, and the depositions transmitted to the court on the subsequent charge, shall be admissible in evidence to prove or disprove the identity of the charges. (1) Reed v. Nutt, 24 Q. B. D. 669. (2) R. v. Stanton, 5 Cox 324; R. v. Walker, 2 M. & Rob. 446. (3) R. v. Elrington, 1 B. & S. 688; 31 L. J. (M. C.) 14; R. v. Miles 24 Q. B. D. 423; 59 L. J. (M. C.) 56. (4) R. v. Morris, L. R. 1 C. C. R. 90; 36 L. J. (M. C.) 84. (5) See the Canada Evidence Act 1893, sec. 10 post. (6) R. v. Norris, 1 Roll. Rep. 297; 2 Keb. 25. (7) Fost. 43; 3 Inst. 234, 334; 2 Hale 252. 633. Indictment substantially charging an offence previously tried. -When an indictment charges substantially the same offence as that charged in the indictment on which the accused was given in charge on a former trial, but adds a statement of intention or cir cumstances of aggravation tending if proved to increase the punishment, the previous acquittal or conviction shall be a bar to such subsequent indictment. 2. A previous conviction or acquittal on an indictment for murder shall be a bar to a second indictment for the same homicide charging it as man-laughter; and a previous conviction or acquittal on an indictment for manslaughter shall be a bar to a second indictment for the same homicide charging it as murder. 634. Plea of justification to indictment for libel. - Every one accused of publishing a defamatory libel may plead that the defamatory matter published by him was true, and that it was for the public benefit that the matters charged should be published in the manner and at the time when they were published. Such plea may justify the defamatory matter in the sense specified, if any, in the count, or in the sense which the defamatory matter bears without any such specification; or separate pleas justifying the defamatory matter in each sense may be pleaded separately to each as if two libels had been charged in separate counts. 2. Every such plea must be in writing, and must set forth the particular fact or facts by reason of which it was for the public good that such matters should be so published. The prosecutor may reply generally denying the truth thereof. 3. The truth of the matters charged in an alleged libel shall in no case be inquired into without such plea of justification unless the accused is put upon his trial upon any indictment or information charging him with publishing the libel knowing the same to be false, in which case evidence of the truth may be given in order to negative the allegation that the accused knew the libel to be false. 4. The accused may, in addition to such plea, plead not guilty, and such pleas shall be inquired of together. 5. If, when such plea of justification is pleaded, the accused is convicted, the court may, in pronouncing sentence, consider whether his guilt is aggravated or mitigated by the plea. R.S.C., c. 174, ss. 148, 149, 150 and 151. FORMS UNDER PART XLVI. FROM SCHEDULE ONE. EE. (Sections 610 and 626.) HEADING OF INDICTMENT. In the (name of the court in which the indictment is found). (Where there are more counts than one, add, at the beginning of each count) : "The said jurors further present that FF.-(Section 611.) EXAMPLES OF THE MANNER OF STATING OFFENCES. (a.) A. murdered B. at ,.on (b.) A. stole a sack of flour from a ship called the at on " (c.) A. obtained by false pretenses from B., a horse, a cart and the harness of a horse at on (d.) A. committed perjury with intent to procure the conviction of B. for an offence punishable with penal servitude, namely robbery, by swearing on the trial of B. for the robbery of C. at the Court of Quarter Sessions for the county of Carleton, held at Ottawa, on the day of 1879; first, that he, A. saw B. at Ottawa, on the day of secondly, that B. asked A. to lend B. money on a watch belonging to C.; thirdly, &c. " ; (e.) The said A. committed perjury on the trial of B. at a Court of Quarter Sessions held at Ottawa, on for an assault alleged to have been committed by the said B. on C. at Ottawa, on the day of by swearing to the effect that the said B. could not have been at Ottawa, at the time of the alleged assault, inasmuch as the said A. had seen him at that time in Kingston. (f.) A., with intent to maim, disfigure, disable or do grievous bodily harm to B. or with intent to resist the lawful apprehension or detainer of A. (or C.), did actual bodily harm to B. (or D.). (9.) A., with intent to injure or endanger the safety of persons on the Canadian Pacific Railway, did an act calculated to interfere with an engine, a tender, and certain carriages on the said railway on by (describe with so much detail as is sufficient to give the accused reasonable information as to the acts or omissions relied on against him, and to identify the transaction). at (h.) A. published a defamatory libel on B. in a certain newspaper, called the on the day of " A.D which libel was contained in an article headed or commencing (describe with so much detail as is sufficient to give the accused reasonable information as to the part of the publication to be relied on against him), and which libel was written in the sense of imputing that the said B. was (as the case may be). For Forms of Indictment, under Title II, see pp. 75–76, ante, ADDITIONAL FORMS UNDER PART XLVI. PLEA OF AUTREFOIS ACQUIT. And, having heard the said indictment read here in Court, the said A. B. saith that our said Lady the Queen ought not further to prosecute the said indictment against him the said A. B.; because he saith that, heretofore, to wit, on the day of at the [describe the Court,] he the said A. B. was lawfully acquitted of the said offence charged in the said indictment. Wherefore he the said A. B. prays judgment and that he may be discharged from the said premises in the said indictment specified. REPLICATION, And hereupon J. N. [the Clerk of the Peace, or Clerk of Arraigns,] who prosecutes for our said Lady the Queen in this behalf, says that by reason of any thing in the said plea of the said A. B. above pleaded in bar alleged, our said Lady the Queen ought not to be precluded from prosecuting the said indictment against the said A. B.; because he says that the said A. B. was not lawfully acquitted of the said offence charged in the said indictment, in manner and form as the said A. B. hath above in his said plea alleged; And this he the said J. N. prays may be enquired of by the country. SIMILITER. [The following form of similiter is added in making up the record: And the said A.B. doth the like. Therefore, let a jury come. PLEA OF CONVICTION BEFORE JUSTICES. And, having heard the said indictment read in court, the said A. B. saith that our said Lady the Queen ought not further to prosecute the said indictment against him the said A. B., in respect of the offence in the said indictment mentioned; because he saith that heretofore to wit, on the day of at |