if to such court it seems fit so to do; and the payment of such costs and expenses, or any part thereof, may be ordered by the court to be made out of any moneys taken from such person on his apprehension (if such moneys are his own), or may be enforced at the instance of any person liable to pay or who has 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 proceed. ing may for the time being be enforced: Provided, that in the meantime, and until the recovery of such costs and expenses from the person so convicted as aforesaid, or from his estate, the same shall be paid and provided for in the same manner as if this section had not been passed; and any money which is 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 have been paid or defrayed: 33-34 V. (U. K.) c. 23, s. 3.

Part LIV. is comprised between ss. 762 and 781, ante, speedy trials of indictable offences; and Part LV. between ss. 782 and 808, summary trial of indictable offences.

This section is new. The only case where costs could previously be allowed in a criminal case was in assault by 8. 248, R. S. C. c. 174: see post, s. 834.

See R. v. Roberts, 12 Cox, 574.

COSTS AGAINST A PROSECUTOR IN A CASE OF LIBEL.

833. In the case of an indictment or information by a private prosecutor for the publication of a defamatory libel if judgment is given for the defendant, he shall be entitled to recover from the prosecutor the costs incurred by him by reason of such indictment or information either by warrant of distress issued out of the said court, or by action or suit as for an ordinary debt. R. S. C. c. 174, ss. 153 & 154.

See ante, under s. 302. The costs against a defendant. are provided for by the preceding section.

COSTS ON CONVICTION FOR ASSAULT.

834. If a person convicted on an indictment for assault, whether with or without battery and wounding, is ordered to pay costs as provided in section eight hundred and thirty-two he shall be liable unless the said costs are sooner paid, to three months' imprisonment, in addition to the term of imprisonment, if any, to which he is sentenced for the offence, and the court may, by warrant in writing, order the amount of such costs to be levied by distress and sale of the goods and chattels of the offender, and paid to the prosecutor, and the surplus, if any, arising from such sale, to the owner; and if such sum is so levied, the offender shall be released from such imprisonment. R. S. C. c. 174, 88. 248 & 249 24-25 V. c. 100, ss. 74, 75 (Imp.).

TAXATION OF COSTS. (New).

835. Any costs ordered to be paid by a court pursuant to the foregoing provisions shall, in case there is no tariff of fees provided with respect to criminal proceedings, be taxed by the proper officer of the court according to the lowest scale of fees allowed in such court in a civil suit.

2. If such court has no civil jurisdiction the fees shall be those allowed in civil suits in a superior court of the province according to the lowest scale.

COMPENSATION FOR LOSS OF PROPERTY.

836. A court on the trial of any person on an indictment may, if it thinks fit, upon the application of any person aggrieved and immediately after the conviction of the offender, award any sum of money, not exceeding one thousand dollars, by way of satisfaction or compensation for any loss of property suffered by the applicant through or by means of the offence of which such person is so convicted; and the amount awarded for such satisfaction or compensation shall be 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 section eight hundred and thirty-two. 33-34 V. (U.K.) c. 23, s. 4.

"Property" defined, s. 3.

This section is new. It enables any person aggrieved to get a judgment from the court, without a jury, for any amount up to one thousand dollars against the party con victed, even where that court has no jurisdiction in civil matters.

"The discretionary power given by this section is far more extensive than the power conferred by 24 & 25 V. c. 96, s. 100 (s. 838, post), and if it is exercised in every case to which it may in strictness be applicable, will compel a criminal court at the close of many trials for felony to enter upon complicated inquiries involving the expenditure of a large amount of time and labour."

"It is probable, however, that criminal courts will decline to exercise the powers thus conferred upon them except in very simple cases, and will, in the majority of instances, leave the applicant to enforce his rights by the ordinary civil procedure."

"In the case of serious personal injuries, caused by a felonious act, no compensation could be awarded under this section in respect of the personal injuries. And even

where the personal injuries, caused by the felonious act, had incapacitated the prosecutor from earning his livelihood, it would seem that this would not be such a loss of property as would form the subject of compensation under this section": Archbold.

COMPENSATION TO PURCHASER OF STOLEN PROPERTY.

837. When any prisoner has been convicted, either summarily or otherwise, of any theft or other offence, including the stealing or unlawfully obtaining any property, and it appears to the court, by the evidence, that the prisoner sold such property or part of it to any person who had no knowledge that it was stolen or unlawfully obtained, and that money has been taken from the prisoner on his apprehension, the court may, on application of such purchaser and on restitution of the property to its owner, order that out of the money so taken from the prisoner (if it is his) a sum not exceeding the amount of the proceeds of the sale be delivered to such purchaser. R. S. C. c. 174, s. 251. The words in italics are new. They are in conformity with the remarks of the judges in R. v. Roberts, 12 Cox, 574.

The Imperial Act is 30 & 31 V. c. 35, s. 9. The Imperial Act does not expressly provide for the case of goods obtained by false pretenses. The section provides for the case of a sale only of the stolen property: see R. v. Stancliffe, 11 Cox, 318; R. v. Roberts, 12 Cox, 574.

RESTITUTION OF STOLEN PROPERTY. (As amended in 1893).

838. If any person who is guilty of any indictable offence in stealing, or knowingly receiving, any property is indicted for such offence, by or on behalf of the owner of the property, or his executor or administrator, and convicted thereof, or is tried before a judge or justice for such offence under any of the foregoing provisions and convicted thereof, the property shall be restored to the owner or his representative.

2. In every such case the court or tribunal before which such person is tried for any such offence shall have power to award, from time to time, writs of restitution for the said property or to order the restitution thereof in a summary manner; and the court or tribunal may also, if it sees fit, award restitution of the property taken from the prosecutor, or any witness for the prosecution, by such offence although the person indicted is not convicted thereof if the jury declares, as it may do, or if, in case the offender is tried without a jury, it is proved to the satisfaction of the court or tribunal by whom he is tried, that such property belongs to such prosecutor or witness, and that he was unlawfully deprived of it by such offence.

3. If it appears before any award or order is made, that any valuable security has been bona fide paid or discharged by any person liable to the

payment thereof, or, being a negotiable instrument, has been bona fide taken or received by transfer or delivery, by any person, for a just and valuable consi. deration, without any notice or without any reasonable cause to suspect that the same had, by any indictable offence, been stolen, or if it appears that the property stolen has been transferred to an innocent purchaser for value who has acquired a lawful title thereto, the court or tribunal shall not award or order the restitution of such security or property.

4. Nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker or other agent intrusted with the possession of goods or documents of title to goods, for any indictable offence under sections three hundred and twenty or three hundred and sixty-three of this Act. R. S. C. c. 174, s. 250.

Sections 803 and 824 ante also provide for restitution of stolen property in certain cases.

The words in italics in s-s 2 are not in the English Act, 24 & 25 V. c. 96, s. 100.

The repealed clause covered property obtained by false pretenses. The words in italics in s-s. S are new.

The prisoners were convicted of feloniously stealing certain property. The judge who presided at the trial made an order, directing that property found in the possession of one of the prisoners, not part of the property stolen, should be disposed of in a particular manner: held, that the order was illegal, and that a judge has no power, either by common law or by statute, to direct the disposal of chattels in the possession of a convicted felon, not belong ing to the prosecutor: R. v. Pierce, Bell, 235; R. v. Corpora tion of London, E. B. & E. 509.

The case of Walker v. Mayor of London, 11 Cox, 280, has no application in Canada. In R. v. Stancliffe, 11 Cox, 318, it was held that the repealed section applied to cases of false pretenses as well as felony, and that the fact that the prisoner parted with the goods to a bona fide pawnee did not disentitle the original owner to the restitution of the goods see 2 Russ. 355.

The court was bound by the repealed statute to order restitution of property obtained by false pretenses and the subject of the prosecution, in whose hands soever it was found; and so likewise of property received by a person

knowing it to have been stolen or obtained by false pretenses; but the order was strictly limited to property identified at the trial as being the subject of the charge; therefore it did not extend to property in the possession of innocent third persons which was not produced and identified at the trial as being the subject of the indictment: R. v. Goldsmith, 12 Cox, 594.

An order of restitution of property stolen will extend only to such property as is produced and identified in the course of the trial, and not to all the articles named in the indictment, unless so produced and identified and in the possession of the court: R. v. Smith, 12 Cox, 597.

It was held, on this clause: R. v. Atkin, 18 L. C. J. 213; that the court will not give an order for the restitution of stolen goods where the ownership is the subject of a dispute in the civil courts: see R. v. Macklin, 5 Cox, 216.

Restitution can be ordered to the owner only: R. v. Jones, 14 Cox, 528.

See 1 Hale, 543; 4 Blacks. 363.

A. Blenkarn took premises at 37 Wood street, and wrote to the plaintiffs at Belfast ordering goods of them. The letters were dated 37 Wood street, and signed A. Blenkarn & Co. in such a way as to look like "A. Blenkiron & Co.," there being an old established firm of Blenkiron & Sons at 123 Wood street. One of the plaintiffs knew something of that firm, and the plaintiffs entered into a correspondence with Blenkarn, and ultimately supplied the goods ordered, addressing them to "A. Blenkiron & Co., 37 Wood street."

The fraud having been discovered Blenkarn was indicted and convicted for obtaining goods by falsely pretending that he was Blenkiron & Sons.

Before the conviction the defendant had purchased some of the goods bona fide of Blenkarn without notice of the fraud, and resold them to other persons. The plaintiffs