the said C. D., or that he was convicted and sentenced to (death, or penal servitude, or imprisonment with hard labour, or exceeding twelve months, or that he is disqualified as an alien.]

55-56 V., c. 29, sch. 1, form LL.

FORM 71.

(Section 1068.)

Certificate of Execution of Judgment of Death.

I, A. B., surgeon (or as the case may be) of the (describe the prison), hereby certify that I, this day, examined the body of C. D. on whom judgment of death was this day executed in the said prison; and that on such examination I found that the said C. D. was dead.

Declaration of Sheriff and Others.

We, the undersigned, hereby declare that judgment of death was this day executed on C. D., in the (describe the prison) in our presence.

(Section 1097.)

FORM 73.

Certificate of Non-appearance to be endorsed on the Defendant's Recognizance.

I hereby certify that the said A. B. has not appeared at the time and place in the said condition mentioned, but therein has made default, by reason whereof the within written recognizance is forfeited.

You are hereby commanded to levy of the goods and chattels, lands and tenements, of each of the persons mentioned in the roll or extract to this writ annexed, all and singular the debts and sums of money upon them severally imposed and charged, as therein is specified; and if any of the said several debts cannot be levied, by reason that no goods or chattels, lands or tenements can be found belonging to the said persons, respectively, then, and in all such cases, that you take the bodies of such persons, and keep them safely in the gaol of your county, there to abide the judgment of our court (as the case may be) upon any matter to be shown by them, respectively, or otherwise to remain in your custody as aforesaid, until such debt is satisfied unless any of such persons respectively gives sufficient security for his appearance at the said court, on the return day hereof, for which you will be held answerable; and what you do in the premises make appear before us in our court (as the case may be,) on the day of term next, and have then and there this writ. Witness, etc., G. H., clerk (as the case may be).

55-56 V., c. 29, sch. 1, form TTT.

(Section 1133.)

FORM 75.

Justices' Return.

RETURN of convictions made by me (or us, as the case may be),

J. S. and O. K., Convicting Justices (as the case may be).

55-56 V., c. 29, sch. 1, form SSS.

Short title.

THE CANADA EVIDENCE ACT.

(Revised Statutes of Canada, 1906, chapter 145).

SHORT TITLE.

1. This Act may be cited as the Canada Evidence Act. 56 V., c. 31, s. 1.

Applies to

PART I.

APPLICATION.

2. This Part shall apply to all criminal proceedings, and to all-matters all civil proceedings and other matters whatsoever respecting within legislative juris- which the Parliament of Canada has jurisdiction in this behalf. 56 V., c. 31, s. 2.

diction of Canada.

Criminal proceedings.]—A coroner's court is a criminal court and is, therefore, one in which the evidence would be subject to this Act. R. v. Hendershott, 26 O.R. 678; R. v. Williams, 28 O.R. 583; R. v. Hopkins (1896), 32 C.L.J. 592.

In a civil action brought to recover from the constable and clerk of the peace moneys seized in a common gaming house under the powers conferred by sec. 641 of the Code, it was held that the rules of evidence in force in the province in civil matters applied and not the Canada Evidence Act. O'Neil v. Attorney-General (1896), 1 Can. Cr. Cas. 303 (Can), affirming (s.c.), O'Neil v. Tupper, 4 Que. Q.B. 315. But it was held also that a judgment of forfeiture in a criminal proceeding is not subject to collateral attack in a civil action brought to recover the moneys. Ibid.

No incompetency from interest or

crime.

Accused and wife or husband

WITNESSES.

3. A person shall not be incompetent to give evidence by reason of interest or crime. 56 V., c. 31, s. 3.

4. Every person charged with an offence, and, except as in this section otherwise provided, the wife or husband, as the case may be, of the person so charged, shall be a competent witness for the defence, whether the person so charged is for defence. charged solely or jointly with any other person.

competent witnesses

Wife or husband competent and compellable

2. The wife or husband of a person charged with an offence against any of the sections two hundred and two to two hundred and six inclusive, two hundred and eleven to two hundred and nineteen inclusive, two hundred and thirty-eight,

two hundred and thirty-nine, two hundred and forty-four, two witnesses for hundred and forty-five, two hundred and ninety-eight to three prosecution. hundred and two inclusive, three hundred and seven to three hundred and eleven inclusive, three hundred and thirteen to three hundred and sixteen inclusive of the Criminal Code, shall be a competent and compellable witness for the prosecution without the consent of the person charged.

communica

3. No husband shall be compellable to disclose any com- Disclosure of munication made to him by his wife during their marriage, tions during and no wife shall be compellable to disclose any communica- marriage not tion made to her by her husband during their marriage. compellable.

4. Nothing in this section shall affect a case where the wife Saving. or husband of a person charged with an offence may at common law be called as a witness without the consent of that person.

to be com

5. The failure of the person charged, or of the wife or hus- Failure to band of such person, to testify, shall not be made the subject testify not of comment by the judge, or by counsel for the prosecution. mented on. 6 E. VII., c. 10, s. 1.

Defendant as a witness.]-The result of this section is to empower (but not to compel) one of two persons jointly indicted to give evidence incriminating the other without the necessity of resorting to the old procedure of either taking a plea of guilty or pardoning the prisoner to be called.

When a person on trial claims the right to give evidence on his own behalf he comes under the ordinary rule as to cross-examination. He may be asked all questions pertinent to the issue, and cannot refuse to answer those which may implicate him. R. v. Connors (1893), 3 Que. Q.B. 100, 5 Can. Cr. Cas. 70.

A prisoner at his trial has the option of making a statement not under oath or of giving evidence under oath. R. v. Aho (1904), 8 Can. Cr. Cas. 453, 11 B.C.R. 114; R. v. Pope, 18 Times L.R. 717.

In R. v. D'Aoust (1902), 5 Can. Cr. Cas. 407, 3 O.L.R. 653, the accused was charged with robbery, and being called as a witness on his own behalf, was asked by the counsel for the Crown, on cross-examination, whether he had not been convicted several times of indictable offences. This question was objected to by counsel for the accused, but was allowed by the learned trial judge, and was answered by the accused in the affirmative. Counsel for the Crown thereupon questioned the accused as to five previous convictions, all of which the accused admitted. It was held by the Ontario Court of Appeal that the evidence of the previous convictions of the accused so obtained was admissible. R. v. D'Aoust (1902), 5 Can. Cr. Cas. 407.

Where one of two prisoners tried together gives evidence on his own behalf which incriminates his co-defendant, counsel for the latter is entitled to cross-examine as well as counsel for the prosecution. R. v. Hadwen, [1902] 1 Q.B. 882.

The general rule as to cross-examinations is thus stated by Phipson (p. 478)-"The witness may be asked not only as to the facts in issue or directly relevant thereto, but all questions, (1) tending to test his