to the contrary be shown; while, where such cause is shown, they leave it, by section 737, discretionary with the court, to continue the action from term to term, and in proper cases to hold the defendant, or to discharge him, as it may now do, upon bail, or upon his own undertaking. By this course, the oppression of the defendant is prevented, and a control over the case is given to the court, by which the defeat of justice is rendered impossible. They define also, by section 738, the effect of the dismissal, to be the discharge of the defendant or his bail, but declare by section 741, that it shall be a bar to another prosecution for the same offence, in cases of misdemeanor only.

They propose, also, by sections 739 and 740, to change the practice in respect to entering a nolle prosequi. By the law as it now stands, the attorney general may, by virtue of the prerogative of his office, enter a nolle prosequi in any case. In respect to the district attorney, however, who is, except in very few cases, the sole representative of the state in the prosecution of indictments, it is provided by statute, that he cannot enter a nolle prosequi upon an indictment, nor in any other way discontinue or abandon it, without the leave of the court having jurisdiction of the offence charged, entered in its minutes. 2 R S., 3d ed., 814, sec. 54. Under this provision, it was held by the supreme court, in The People v. M'Leod, 25 Wend., 483, 1 Hill, 377, that the court does not possess the power to order a nolle prosequi, unless by consent or on motion of the district attorney. Practically, therefore, the power of the district attorney, in this respect, is greater than that of the court; the latter being unable, no matter how unjust may be the continuance of the indictment against the defendant, to relieve him from that injustice, until the district attorney chooses to consent that it do so.

Section 739 remedies this defect, by authorizing the court, either of its own motion, or upon the application of the district attorney, and in furtherance of justice, to dismiss the indictment; while, as a wholesome restraint upon this discretion, it requires that the reasons of the dismissal be set forth in the order, and entered upon the minutes.

Section 740 abolishes the nolle prosequi, and takes away the right of the attorney-general, or any other officer, to dismiss or abandon the indictment, and leaves that power, where it should alone rest, in the hands of the court.

§ 735. When a person has been held to answer for a public offence, if an indictment be not found against him, at the next term of the court at which he is held to answer, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown,

§ 736. If a defendant, indicted for a public offence, whose trial has not been postponed upon his application, be not brought to trial at the next term of the court in which the indictment is triable, after it is found, the court must order the indictment to be dismissed, unless good cause to the contrary be shown.

§737. If the defendant be not indicted or tried, as provided in the last two sections, and sufficient reason therefor be shown, the court may order the action to be continued from term to term, and in the mean time may discharge the defendant from custody, on his own undertaking, or on the undertaking of bail for his appearance to answer the charge at the time to which the action is continued.

§ 738. If the court direct the action to be dismissed, the defendant must, if in custody, be discharged therefrom, or if admitted to bail, his bail is exonerated, or money deposited instead of bail must be refunded to him.

§ 739. The court may, either of its own motion, or upon the application of the district attorney, and in

furtherance of justice, order an action, after indictment, to be dismissed; but in that case, the reasons of the dismissal must be set forth in the order, which must be entered upon the minutes.

§ 740. The entry of a nolle prosequi is abolished; and neither the attorney general, nor the district attorney, can discontinue or abandon a prosecution for a public offence, except as provided in the last section.

§ 741. An order for the dismissal of the action, as provided in this chapter, is a bar to another prosecution for the same offence, if it be a misdemeanor; but it is not a bar, if the offence charged be a felony.

CHAPTER VIII.

REMITTING THE PUNISHMENT, IN CERTAIN CASES.

SECTION 742. Punishment, upon conviction of a master of a vessel from a foreign country, for bringing a foreign convict into this state, may be

remitted, on court being satisfied that he has returned the convict, and on payment of the costs of the prosecution.

§ 742. When the master of a vessel arriving from a foreign country, is convicted of having knowingly brought a person convicted therein of a public offence, which, if committed in this state, would be a felony, to a place within the state, the court before which the conviction is had, may, if satisfied that the defendant has reconveyed the convict to the place from which he took him, and on payment of the costs of prosecution,

order the punishment upon the conviction to be remitted.

The provision contained in this section, was first enacted in 1833, and is to be found in 2 R. S., 3d ed., 781, sec. 40, 41.

CHAPTER IX.

PROCEEDINGS AGAINST CORPORATIONS.

SECTION 743. Summons upon an information or presentment against a corporation, by whom issued, and when returnable.

747. Certificate of the magistrate, and return thereof with the deposi

tions.

748. If magistrate certify that there is sufficient cause to believe the corporation guilty, grand jury may proceed as in the case of a natural person.

749. Appearance, and plea to indictment, and proceedings thereon. 750. Fine, on conviction, how collected.

The existing statutes seem to regard an indictment, as the first proceeding against a corporation charged with a public offence. They no where speak of a complaint or information against them, and none of the proceedings which they prescribe in respect to an ordinary criminal case, before indictment, are applicable to corporations. The only sections contained in the revised statutes, which relate to proceedings to bring a corporation before the court, to answer to a criminal charge, are as follows:

"When an indictment shall be found against any corporation, a summons against the defendants may be issued and served in the same manner as provided by any statute in civil cases; and if such corporation do not appear according to the summons, a distringas may be issued and levied upon their personal estate and chattels real; and the issues levied thereon may be ordered to be sold, and the money arising therefrom shall be detained until such corporation appear, and plead to the indictment, when it may be paid to them, after deducting such costs and expenses incurred, as shall be allowed by the court." 2 R. S., 3d ed. 832, sec. 39.

"But if such corporation shall neglect to appear and plead to such indictment, within two terms after the return of the distringas against them, the court shall order the money levied thereby, after deducting the costs and expense of the proceedings, to be paid to the county treasurer for the use of the poor of such county." Ibid. sec. 40.

This code inakes no distinction between natural persons and corporations, in respect to the manner of commencing criminal actions. They must all be commenced, either by an information before a magistrate, or by the presentment of a grand jury.

This chapter, sec. 743-748, provides for the mode of bringing the case of a corporation defendant before the grand jury, and sec. 749, for their appearance and plea. In the proceedings, as thus provided, it is believed a greater degree of simplicity has been attained, than is to be found in the practice as it now exists.

§743. Upon an information or presentment against á corporation, the magistrate must issue a summons, signed by him, with his name of office, requiring the corporation to appear before him, at a specified time and place, to answer the charge; the time to be not less than ten days after the issuing of the summons.

§ 744. The summons must be in substantially the following form:

"County of Albany, [or as the case may be.]

'In the name of the people of the state of NewYork:

"To the [naming the corporation.]

"You are hereby summoned to appear before me, at [naming the place,] on [specifying the day and hour,] to answer a charge made against you, upon the information of A. B., [or "the presentment of the grand jury