called; and that if the usual course was departed from it was not ground of error. Ib. The fact that a juror is over sixty years of age is not a ground of challenge. Mulcahy v. Reg. (in error), 3 H. L. Cas. 306; and 1 Ir. R., C. L. 13. Challenge to the array is only where the sheriff has been guilty of wilful default, and the summoning of the jury is a duty purely ministerial. Reg. v. Burke, 10 Cox, C. C. 519. On Trials at Nisi Prius.]—Where the sheriff's officer had neglected to summon one of the special jurymen returned on the panel :-Held, that this was no ground of challenge to the array for unindifferency on the part of the sheriff. Rex v. Edmonds, 4 B. & A. 471. On the trial at Nisi Prius of an indictment for libel, on which only three special jurors appeared, the counsel for the prosecution prayed a tales, and the defendant challenged the array of the tales, on the ground that the sheriff was a subscriber to a society who were the prosecutors; and on issue taken on this challenge, two triers were appointed by the court, who found in favour of the challenge, and the cause was made a remanet. Rex v. Dolby, 1 C. & K. 238-Abbott. The court will not compel the prosecutors to give a list of their names to the defendant previously to striking a special jury, but will give such directions, by consent of the prosecutors, as shall prevent prejudice accruing to the defendant in consequence of such list not being furnished. Reg. v. Nicholson, 8 D. P. C. 422; 4 Jur. 558. Talesmen.]-Where, on an indictment for the publication of a libel, (appointed to be tried by a special jury), a tales panel was quashed for unindifferency in the sheriff:-Held, that a writ of venire facias juratores might be awarded to the coroner of the county, although two of the special jurors summoned attended on a former occasion; and upon a prayer for an award of a tales de circumstantibus at nisi prius, it is not compulsory on the coroner or sheriff to select the talesmen from among the bystanders accidentally in court; but they may be chosen from among persons previously appointed by the coroner or sheriff to be in attendance, in expectation that a tales would be necessary. Rex v. Dolby, 3 D. & R. 311; 2 B. & C. 104. On the trial of an information for a libel, only ten special jurymen appeared, and two talesmen were accordingly sworn to fill up the jury:-Held, to be no ground for a new trial that two of the non-attending special jurymen named in the panel had not been summoned to attend, although it appeared that this fact was unknown to the defendant until after the trial was over. Rex v. Hunt, 4 B. & A. 430. Since 7 & 8 Will. 3, c. 32, talesmen can only be taken from the panel of the jury summoned to try the other causes, and not from the bystanders. Rex v. Hill, 1 C. & P. 667-Garrow. On the trial of a quo warranto, which has been made a special jury cause, jurors who have been summoned to try prisoners on the crown side of the assize are not thereby qualified to act as talesmen. Rex v. Tipping, 1 C. & P. 668-Gurney. The warrant for a tales on a trial in a county palatine must come from the king's attorney-general. Rex v. Lambe, 4 Burr. 2171. Semble, that, in an information at the suit of the attorney-general, a tales may be prayed for the crown without his warrant, though he is not present; but not for the defendant. Att.-Gen. v. Parsons, 2 M. & W. 23; 2 Gale, 227. 4. View. Where, on the trial of a rape, it was wished on the part of the prisoner that the jury should see the place at which the offence was said to have been committed, and the place was so near to the court that the jury could have a view without inconvenience, the judge allowed a view, although the prosecutor did not consent to it. Reg. v. Whalley, 2 C. & K. 376-Gaselee, Serjt. The court will only under peculiar circumstances grant a view in an indictment for perjury; but a view will be refused if there is risk of its misleading the jury. Anon., 2 Chit. 422. any An inspection by the jury of the locus in quo may be directed by the court in a criminal case. Reg. v. Whalley, 2 Cox, C. C. 231-Maule. 5. Locking up. If after a jury is locked up to consider their verdict in a capital case one of them is ill, the judge will allow a medical man to see him, and anything which the medical man in his discretion will give him bonâ fide as medicine he may have, but not sustenance. Reg. v. Newton, 3 C. & K. 85; 13 Q. B. 716; 13 Jur. 606; 18 L. J., M. C. 201; 3 Cox, C. C. 489. After a trial for murder had commenced, it was ascertained that a witness had not arrived, but was expected by a train. The judge ordered the jury to be locked up until the arrival of the witness, had another jury called, and proceeded with another cause. Reg. v. Foster, 3 C. & K. 201-Maule. 6. Discharge of. After the jury has retired to consider their verdict in a criminal case, whether felony or misdemeanor, and has remained in deliberation a full and sufficient time without being able to agree upon a verdict, it is in the discretion of the judge to dis charge them if there is no reasonable prospect of their agreeing upon a verdict. Winsor v. Reg. (in error), 6 B. & S. 143; 1 L. R., Q. B. 289; 12 Jur., N. S. 91 35 L. J., M. C. 121; 14 W. R. 423 ; 14 L. T., N. S. 195. Affirmed on appeal, 1 L. R., Q. B. 390; 12 Jur., N. S. 561; 35 L. J., M. C. 161; 14 W. R. 695; 14 L. T., N. S. 567-Exch. Cham. The exercise of such discretion by a judge cannot be reviewed by a court of error. Ib. The maxim, that a man cannot be put in peril twice for the same offence, means that a man cannot be tried again for an offence upon which a verdict of acquittal or conviction has been given, and not that a man cannot be tried again for the same offence where the first trial has proved abortive, and no verdict was given. Ib. Where a man was indicted, pleaded not guilty, and was given in deliberate, and had not agreed upon charge to the jury, who retired to a verdict by the time all the rest of the business before the court was finished, when they were discharged by the judge and the prisoner remanded:-Held, that the dismissal of the jury was equivalent to an acquittal, and that he might lawfully be put upon his trial the second time. Reg. v. Davison, 2 F. & F. 250; 8 Cox, C. C. 360-Pollock, Martin and Hill. A jury may be discharged by consent, after having been charged. Reg. v. Deane, 5 Cox, C. C. 501. Where, in case of misdemeanor, the jury is improperly and against the will of the defendant, discharged by the judge from giving a verdict after the trial has begun, this is not equivalent to an acquittal, nor does it entitle the defendant quod eat sine die. Reg. v. Charlesworth, 1 B. & S. 460; 9 Cox, C. C. 44; 8 Jur., N. S. 1091; 31 L. J., M. C. 25; 9 W. R. 842; 5 L. T., N. S. 150; S. C. at Nisi Prius, 2 F. & F. 326. In the course of the trial and during the examination of witnesses one of the jurors had, without leave, and without it being noticed by any one, left the jury-box and also the court house, whereupon the court discharged the jury without giving a verdict, and a fresh jury was empanneled. The prisoner was afterwards tried and convicted before a fresh jury:-Held, that the course pursued was right. Reg. v. Ward, Î7 L. T., N. S. 220; 10 Cox, C. C. 573; 16 W. R. 281-C. C. R. In a case of felony, capital or otherwise, the judge has a discretionary power, in case of evident necessity, to discharge the jury without giving a verdict, and such discharge is no bar to a fresh trial of the accused on the same indictment. Winsor v. Reg. (in error), 7 B. & S. 490-Exch. Cham. The discretion of the judge in exercising this power cannot be reviewed by any legal tribunal. Ib. 7. Jury Process. (15 & 16 Vict. c. 76, ss. 104, 105.) The jury process in an indictment for a conspiracy made returnable on one of the three days before full term; and on the same day a continuance by a new venire was awarded, is not erroneous; inasmuch as the return day was conformable to 1 Will. 4, c. 3, s. 2, and the court, though not sitting for the dispatch of business before full term, might award the continuances on the return days. Wright v. Reg. (in error), 14 Q. B. 148; 14 Jur. 305-Exch. Cham. Held, also, that, even if there had been a discontinuance in the jury process, the defendant waived the objection by afterwards pleading guilty to the indictment. Ib. Two defendants being indicted for conspiracy, one of them cannot, on a writ of error, object to a discontinuance in the process against the other. Ib. An indictment at quarter sessions contained two counts: one charg ing a stealing of monies above the value of 5l. in a dwelling-house; the other charging simply a stealing of monies of the same description as those contained in the first. The jury process directed the jury to be summoned to inquire if the prisoners were guilty of the felony in the indictment specified; and the verdict found them guilty of the felony aforesaid. Upon that verdict they were adjudged to be transported for fourteen years. The judg ment was reversed in the Queen's Bench, with a direction that a venire de novo should be awarded by the sessions:-Held, first, that the jury process had been misawarded in the first instance, and therefore a venire de novo had been properly awarded by the Queen's Bench; and that it was no objection that judgment had been given upon the prisoners by the sessions. Campbell v. Reg. (in error), 11 Q. B. 799; 12 Jur. 117; 17 L. J., M. C. 89-Exch. Cham. Held, secondly, that the direction to award a venire de novo was void, inasmuch as the sessions, being a court of oyer and terminer, is not an inferior court, and is a continuing court of oyer and terminer. Ib. The record in an indictment set out an award of the venire to the sheriff, which required him to return "good and lawful men of the county," and stated that the sheriff returned the persons following (naming them), but the return did not state that the persons named were "good and lawful men of the county :-Held, that the jurors must be taken to have been good and lawful men of the county. Mansell v. Reg. (in error), 8 El. & Bl. 54; Dears. & B. C. C. 375; 27 L. J., M. C. 4. The 16 & 17 Vict. c. 113 (Ir.), S. 109, which prescribes the summoning of jurors to try civil as well as criminal issues, according to the precept of the judge of assize, does not interfere with the common law authority of justices of gaol delivery to order a jury to be returned instanter, when, from the panel having been quashed, or for any other reason, a sufficient jury cannot otherwise be had. O'Neill v. Reg., 6 Cox, C. C. 495; 4 Ir. C. L. R. 221. XLV. COUNSEL. 1. Appearance and Defence by, 529. 4. Summing up Evidence, 533. 1. Appearance and Defence by. By 6 & 7 Will. 4, c. 114, s. 1, persons tried for felonies, after the "close of the case for the prosecu"tion, may make full answer and "defence thereto by counsel." By s. 2," in all cases of summary "convictions, persons accused shall "be admitted to make their full an"swer and defence, and to have all "witnesses examined and cross-ex"amined by counsel." Several defendants charged in an indictment with different illegal acts severed in their defence, and being convicted and sentenced to different punishments, brought separate writs of error:-Held, that they were entitled to appear by separate counsel, and that such counsel were severally entitled to reply. O'Connell v. Reg. (in error), 11 C. & F. 155; 9 Jur. 25. On a trial for murder, the prisoner objecting to be defended by counsel, but, in the result, allowing counsel to act for him, he was not afterwards allowed to raise any objection to the proceeding, and a fiat for a writ of error was refused. Reg. v. Southey, 4 F. & F. 864Mellor. Where a party had pleaded guilty at the Central Criminal Court to an FISH. DIG.-40. indictment for libel, and affidavits were filed both in mitigation and aggravation, the judges refused to hear counsel on either side, but formed their judgment of the case by reading the affidavits. Reg. v. Gregory, I C. & K. 228. Queen's Counsel.]-On the trial of a criminal information a Queen's counsel ought not to be counsel for the defendant without a licence from the Queen, or at least a letter from the secretary of state; and it is not enough that an application for a licence has been sent to the secretary of state from an assize town in the country, to which no answer has been received at the time of the cause being tried. Reg. v. Bartlett, 2 C. & K. 321-Wilde, C. J. Where a Queen's counsel was instructed to argue a criminal case for a defendant, on a point reserved, but at the time fixed for the argument, had not obtained a licence from her Majesty to argue against the crown, but only a certificate from the secretary of state's office, the court directed the argument to stand over for such license to be obtained. Reg. v. Jones, 9 C. & P. 401; 2 M. C. C. 171. Assignment by the Court.]-The court may properly request counsel to give his honorary services to a prisoner. Aliter with an attorney. But the court will recommend that, in such cases, the crown should pay the fees both of counsel and attorney, as assigned. Reg. v. Fogarty, 5 Cox, C. Č. 161. On a trial for murder, the court refused to allow counsel to appear for a prisoner without his expressed assent. Reg. v. Yscuado, 6 Cox, C. C. 386-Erle. The fiction of law in criminal cases is, that the judge is counsel for the prisoner. It is a violation of this principle, and indecent, to constitute the judge counsel for the prosecution, and leave him to make should be called on for their defence usually coincides with the order of their names in the indictment. Reg. v. Meadows, 2 Jur., N. S. 718-Erle. out from the depositions a case against the prisoner. Therefore, all prosecutions ought to be conducted by counsel, and the court will in all cases direct the depositions to be handed to counsel for that purpose. Reg. v. Page, 2 Cox, C. C. 221-ed for the same offence, the order in Maule. Where several persons are indict which they should be called on to make their defence is not determined by the order in which their names stand in the indictment. Reg. v. Holman, 3 Jur., N. S. 722 Order of Defending several Prisoners.]-Where the counsel for several prisoners cannot agree as to the order in which they are to ad--Pollock. dress the jury, the court will call upon them, not in the order of their seniority, but in the order in which the names of the prisoners stand in the indictment. But where the counsel for one prisoner has witnesses to fact to examine, the counsel for another cannot be allowed to postpone his address to the jury until those witnesses have been examined. Reg. v. Barber, 1 C. & K. 434-Gurney, Williams and Maule. Where two prisoners are jointly indicted, and the second in the indictment only is defended by counsel, the latter will be permitted to address the jury before the other makes his statement, notwithstanding the rule established in Reg. v. Richards, 1 Cox, C. C. 62. Reg. v. Hazell, 2 Cox, C. C. 220-Williams. Where one prisoner was indicted for stealing and the other for receiving, and the receiver was defended by counsel, but the principal felon was undefended, the court called upon the principal to make his statement to the jury before the counsel for the receiver was permitted to address them. Reg. v. Martin, 3 Cox, C. C. 56-Coleridge. When several prisoners are defended by different counsel, the order of their defences is not to be determined by the seniority of their counsel at the bar, but on the precise offence charged against each; and in a well-drawn indictment, the order in which the prisoners Where two were indicted for the same offence, with a second count charging one of them as accessory after the fact, the one named first in the indictment, though he had no counsel, was heard in his defence before the other, who was defended by counsel. Reg. v. Thomas, 3 Jur., N. S. 272-Channell. Where two were indicted, one for larceny and the other as a receiver of the stolen property, the latter of whom is defended by counsel, and the former not, the counsel for the receiver should make his defence first. Reg. v. Belton, 5 Jur., N. S. 276-Martin. 2. Addressing the Jury. In opening the case for the prosecution in felony, counsel ought to state declarations proposed to be proved, as well as facts. Rex v. Orrell, 1 M. & Rob. 467; S. P., Rex v. Davis, 7 C. & P. 785; Rex v. Hartel, 7 C. & P. 773-Parke. Unless the declarations amount to a confession, and then they should not be opened. Rex v. Davis, 7 C. & P. 785; S. P., Rex v. Hartel, 7 C. & P. 773-Parke. Where there is counsel for the prisoner, the counsel for the prosecution ought always to open the case; but he should not open if the prisoner has no counsel, unless there is some peculiarity in the facts of the case to require it. Rex v. Gascoigne, 7 C. & P. 772-Parke. The counsel for the prosecution, in opening a case of murder, has a |