of this Court, that at the time of the second calling of John Walker, mentioned in the case reserved the panel of the petty jury had not been all called once and was not exhausted; Considering that it does not appear by the case reserved that the order to the said John Walker to stand aside was not (sic) a second stand aside as contemplated by the law, but it was an order by the Court maintaining the first and previous stand aside until the panel be exhausted and no more; Consilering, therefore, that the order of the presiding Judge was under the circumstances regular and legal, and the prosecution was not bound to shew any cause as pretended by the defence; Doth declare and adjuge that the order and ruling of the Honorable Presiding Judge, at the trial had, as stated in the reserved case, was and is according to law, and the practice of the said Court of Queen's Bench, Crown Side, and such ruling and order are hereby confirmed; Considering that judgment on the conviction in this case has been postponed: The Court doth order judgment to be rendered on the verdict against the said defendants, at some future Criminal Term of this Court, and doth further order the said defendants, to wit, John Redpath Dougall and James Duncan Dougall, to be and appear before this Court, on the crown side thereof, on Thursday, the 24th day of September instant.” (18 J., p. 242.)

E. CARTER, Q. C., & W. H. KERR, Q. C., for the Crown. JOSEPH DOUTRE, Q. C., & B. DEVLIN, for the defendants.

WRIT OF ERROR.

COURT OF QUEEN'S BENCH, Montreal, 16th September, 1876.

Coram DORION, C. J., MONK, J., SANBORN, J., TESSIER, J., and BÉLANGER, J., ad hoc.

JOHN R. DOUGALL et al., Plaintiffs in error, and THE QUEEN, Defen lant in error.

Held :-That on a writ of error the Court cannot look beyond the record for what took place at the trial, and affidavits purporting to contradict the record are inadmissible.

2o The notes taken by the judge presiding at the trial do not form part of the record.

SANBORN, J.: This is a writ of error, and the plaintiffs in error have assigned nine reasons why they shou'd obtain relief from the judgment rendered on the 28th day of September, 1874, condemning the said plaintiffs in error, John Red

path Dougall and James Dougall, to pay severally, to wit, John Redpath Dougall sixty dollars, and the said James Dougall forty dollars, to Her Majesty, upon a verdict rendered against them for libel. The first reason assigned is because their motion for a new trial was rejected. Without deciding whether, under the existing law and the constitution of the Queen's Bench, Crown side, the Court could under any circumstances entertain such motion, it is sufficient to say that all the grounds urged in support of the motion, except one, are alleged illegal rulings of the presiding judge upon matters of evidence. Section 80 of our Criminal Procedure Act expressly declares that: "No writ of error shall be allowed in any criminal case unless it be founded on some question of law which could not have been reserved, or which the judge presiding at the trial refused to reserve. It is not stated in the motion for a new trial that the Judge refused to reserve any of these questions, and we cannot take cognizance of them. Further, the notes of evidence are not before us, and' we have no means of judging upon the rulings. As to the other ground of motion, that the verdict was not one of guilty" but "not guilty," it is not proved by the record before us. The 2nd, 3rd, 4th, 5th, 6th and 7th reasons assigned. have reference to alleged illegal rulings of the presiding Judge on question of evidence. In fact, they are a repetition of the reasons given for the motion for a new trial. It is simply impossible for this Court to give any opinion upon these rulings as we are not in possession of the notes of evidence taken at the trial, and there is nothing in the record to show that such rulings were made. The eighth reason assigned is that the verdict was not that of "guilty" but "not guilty." The record shows nothing but a verdict of "guilty." We cannot look at the affidavits of persons as to what took place at the trial. The record is the only authentic account of it and the only thing by which we can be guided. The ninth ground is that the honorable Judge presiding refused to reserve any of these questions raised as to evidence, although requested in writing to do so. This is a matter that might be considered under à writ of error, as is implied by the 80th section of the Criminal Procedure Act to which reference has been made. This Court, however, can only ascertain that such request was made, by reference to the record sent up, and can only determine upon the reasonableness of the refusal, by proof of tender of such evidence as was alleged to have been ruled out. The record, as sent up to us, does not establish these facts. It is plain, then,as the Court upon writ of error can only consider what appears upon the face of the record, it has nothing to act upon. The allegations contained in the several reasons assigned for re

versal of the judgment, so far as the record proves them, are unfounded. It is first to be observed that this Court, in adjudicating upon a writ of error, has no appellate jurisdictionand it is a well-settled doctrine that in error the Court only takes cognizance of what appears on the face of the record. Rex vs Faderman, 4 New Sess. C., 161; Archbold, p. 186. Mellish vs Richardson, 2 M. & Scott, 191; Duval dit Barbinas vs Reginam, 14 L. C. R., 71 (1). Whelan vs Reginam, 28 U. C. Q. B., 139. As to what should constitute a record, there is great uncertainty. Bishop says (1 Procedure 1,153): "There is no subject relating to the law of criminal procedure upon which it is so difficult to set down anything as positive law as the subject of the record." Chitty sums up the contents of a record in a case of felony as follows: "It states the session of Oyer and Terminer, the commission of the judges, the presentment by the oath of the grand jurymen by name, the indict.ment, the award of the capias or process to bring the offender, the delivery of the indictment into Court, the arraignment, the plea, the issue, the award of jury process, the verdict, the asking of the prisoner why sentence should not be passed on him, and the judgment." 1 Chitty, Criminal Law, 720. This subject was fully discussed in the case of Barbinas vs The Queen, decided by this Court in 1863, and four out of the five judges appear to have been of the opinion that the notes of evidence of the presiding Judge form no part of the record. This dictum is in accordance with Chitty. Speaking of judge's notes he says: "In order to enable the presiding judge to sum up the evidence with accuracy to the jury, he ought to take notes of the proofs adduced in every part of the proceedings. And this is the more necessary, as these minutes frequently become important documents in a remoter stage of the prosecution, as where the cause is removed by certiorari before sentence, where a special case is carried up to the Court above or where an application is made for a pardon. In these and many other cases these notes are examined to show the circumstances of the prisoner's guilt and how far the aggravations or excuses of the case ought to operate in dispensation of justice or extension of mercy." 1 Chitty, Crim. Law, 633.

(1) L'accusé, trouvé coupable de meurtre, ne peut demander, par bref d'erreur, que le rapport d'une analyse faite par un médecin sur l'ordre de la cour et que celle-ci a jugé à propos de ne pas communiquer aux jurés, soit produit au dossier, par le motif que, s'il eût été communiqué aux jurés, ce rapport eût fait partie de la preuve et que ni les témoignages ni les décisions du juge qui y sont relatives ne peuvent être soumis à l'examen du tribunal d'appel, le bref d'erreur ne s'expédiant que pour des erreurs évidentes dans le jugement ou dans les procédures portées sur le registre du greffe. (Duval dit Barbinas vs La Reine, C. B. R., en appel, Justice Criminelle, Québec, 19 décembre 1863, LAFONTAINE, J. en C., DUVAL, J., MEREDITH, J., MONDELET, J., dissident, et BADGLEY, J., 14 D. T. B. C., p. 52, et 12 R. J. R. Q., p. 250.)

The judge's notes remain with him. The procedure that forms part of the record is what is entered by the clerk. According to Bishop, it is greatly in the power of the presiding judge to control the record, and it would seem by the terms of the 80th section of the Crim. Pro. Act, if any question is sought to be reserved and the judge declines to reserve it, that it may be put on record and form part of the record to be taken cognizance of under writ of error. It was held in Rex vs Carlisle, Q. B. and Ad., 362, that matter of record must be proved by the record itself, not by anything aliunde. It is not necessary or pertinent for the Court to pronounce any opinion upon the questions presented by the reasons assigned by the plaintiffs in error. It would be adjudicating upon abstract questions, so far as the record gives us any information, for the Court can only determine this demand in error upon what appears upon the face of the record. The record as certified by the Clerk shows no defect in substance or irregularity of procedure in the trial and judgments to warrant a reversal of the judgment complained of, and the reasons assigned generally appear not to be founded upon facts of record, consequently the judgment must be affirmed. (22 J., p. 133.) DOUTRE & CO., for the plaintiffs in error. CARTER, Q. C., and KERR, Q. C., for the Crown.

NOUVEAU PROCES EN MATIERE CRIMINELLE.

COUR DU BANC DE LA REINE, JURIDICTION CRIMINELLE,

Montréal, 28 septembre 1874.

Présent: RAMSAY, J.

LA REINE vs JOHN REDPATH DOUGALL et JAMES DUNCAN DOUGALL.

Juge: Que la Cour du Banc de la Reine, juridiction criminelle, présidée par un seul juge, n'est pas compétente pour accorder un nouveau procès.

PER CURIAM: This is an application for a new trial, on the ground that the former trial was a nullity, or, in technical language, it is an application for a venire facias de novo. The first six grounds in support of the motion are really grounds, if well founded, for a new trial, and the whole motion was presented to the Court as simply a motion for a new trial. So far as the form goes, it is of little moment, for

the grounds being for a new trial, it equally suggests the difficulty which, at once, suggested itself to my mind, as to whether such a motion could be adjudicated on by me here on the merits. On this point, counsel were heard, and I have now to deliver the opinion of the Court on this preliminary point. In support of the jurisdiction, it was argued that Section 80 of the Criminal Procedure Act of 1869, ch. 29, only abolished the statutory regulations with regard to new trials, leaving the common law right as it stood, or as Mr. Clarke has put it, in his useful work on the Criminal Law of Canada. "The Statutes authorizing the granting of new trials, in criminal cases, have been repealed, and, now, throughout the Dominion, there is one uniform law, similar to that of England, on this point." It is further said that section 71, of cap. 77, C. S. L. C., gives to one or more Judges of the Court of Queen's Bench, sitting on the Crown side, the power of the Court; and that it has been always so practiced. The cases of Notman, Coote and Daoust were mentioned in support of the practice. In answer, it is said, at common law, in England, no such power exists in a Court of Oyer and Terminer and general gaol delivery; that the power, if it exists at all, lies in the Court of Queen's Bench sitting as a Court of Error, and, further, that Section 80 of the Criminal Procedure Act sweeps away, by implication, all right to a new trial, except for nullity. It is not necessary for me to decide the larger question, as to whether any new trial exists, except for cause of nullity in the former trial, for I am clearly of opinion that, sitting here, I cannot grant a new trial for any of the six causes first set forth in the motion. The most I could do would be, in my discretion, to respite judg ment, in order that you might have an opportunity to move the court in banco for a new trial. Section 71, c. 77, C. S. L. C., evidently only refers to the full power of the side of the court. This seems clear from the context; but Section 72 says this in so many words. Were I to decide otherwise, on the naked words of Section 71, I should have to say that one judge, sitting o the Crown side, would have the full powers of the whole court of Queen's Bench, for all purposes, this would be an absurdity. In a case reported in the L. R., 3 P. C. cases, at p. 435, such an interpretation is negatived. It was there held that letters reflecting on a judge, whilst acting as a judge of the Court of Queen's Bench, under Cap. 95, C. S. L C., could only legally and properly be taken before the full Court of Queen's Bench." The cases cited decide nothing as to the question before us. One, where the new trial was granted, was overruled before the full court. In the other two, the motion was not allowed. With regard to the last