U. C. R., 152; R. v. French, 34 U. C. R., 403, and other cases cited in notes to sec. 105. Where the defendant was convicted for selling liquor without a license, and for allowing liquor to be consumed on the premises, and one penalty was inflicted "for his said offence:" Held bad in not shewing for which offence the penalty was imposed: R. v. Young, 5 O. R., 184a. See also R. v. Solomon, 1 T. R., 251; R. v. Chandler, 14 East, 267; R. v. Clennan, 8 P. R., 418; R. S. C. c. 178, s. 26; Wilson v. Graybiel, 5 U. C. R., 227; R. v. Spain, 18 O. R., 385.

But it is not necessary to mention the Statute or the person to whom the liquor was sold: R. v. Strachan, 20 C. P., 182; R. v. Faulkner, 26 U. C. R., 529; but see R. v. Cavanagh, 27 C. P., 537.

Nor is it necessary to mention the kind and quantity; a conviction setting out that defendant sold spirituous liquor by retail without license, stating time and place was held sufficient: R. v. King, 20 C. P., 246.

The conviction should also shew the place where the offence was committed, in order that the jurisdiction of the convicting Justices may appear : R. v. Young, 5 O. R., 184a.

The conviction should correspond with the minute of the actual adjudication and where at the close of the case the Magistrate made a minute in which he stated that he found the defendant guilty, and imposed a fine of $50 and costs to be paid by a date named, and awarded imprisonment for thirty days in default of payment, and afterwards when drawing the formal conviction he adopted the form J 1. in the Schedule to the Summary Conviction Act, directing that in default of payment by the day named, the penalty should be levied by distress and sale, and awarded imprisonment in default of sufficient distress. The conviction was held to be open to the objection that it did not correspond to the minute of adjudication and therefore could not be supported for want of jurisdiction in the Magistrate to make it: R. v. Brady, 12 O. R., 358.

The quashing of a by-law under which a license had been granted does not nullify the license, and a conviction for selling without a license, cannot under these circumstances be supported: R. v. Stafford, 22 C. P., 177.

See R. v. Denham, 35 U. C. R., 503, cited in note (b) to sec 52; R. v. Breen, 36 U. C. R., 84, cited in note (v) to sec 54; R. v. Duquette, 9 P. R., 29, cited in note (t) to sec. 49; R. v. Palmer, 46 U. C. R., 262.

It is not necessary to negative the exceptions: R. v. Denham, 35 U. C. R., 503; R. v. Breen, 36 U. C. R., 84.

See also cases cited in notes to secs. 49, 50, 51 and 52.

Where there is no evidence that any intoxicating beverage has been sold and therefore no evidence to support a conviction, the conviction will be quashed: R. v. Beard, 13 O. R., 608.

As to variance see R. v. Allen, 15 East, 333; Leary v. Patrick, 15 Q. B., 266, R. S. O., c. 74, s. 1; R. S. C.. c. 178, s. 6; R. v. Hodgins, 12 O. R., 367.

A conviction under 40 Geo., 3, c. 4, for selling liquor without license, was quashed because the information did not charge any special offence, or shew time and place: R. v. Ferguson, 3 O. S., 220.

A conviction for selling a certain spirituous liquor called whiskey," was held a sufficient statement of the offence under the clauses 29, 30 Vic., c. 51, s. 254, although the phrase used there is "intoxicating liquor of any kind," for intoxicating liquors and spirituous liquors are convertible terms, and whiskey is recognized as a spirituous liquor: Reid v. McWhinnie, 27 U. C. R., 289.

The principle that a wife is exempt from liability in certain criminal acts upon the ground of coercion on the part of the husband, does not apply when the wife has committed the offence by the husband's order or procurement, if she committed it in his absence; in such a case the presumption arises that

$50 besides costs, and not more than $100 besides costs; (k) and in default of payment (1) thereof he shall be impris

she acted by coercion of her husband, and the presumption, when it does arise, is removable by proof that the wife was the more active party, even when the offence was committed in the presence of her husband; and it was held she could be convicted of selling gin against the injunctions of 9 Geo. 2, c. 23; Croft's case, Str. 1120, Russ. on Crimes., 3rd. Ed., 20, 21; per Gwynne, J., R. v. Williams, 42 U. C. R., 462.

"The first offence." The penalties prescribed by the section are on a graduated scale. For the first offence the person convicted is made subject to a pecuniary penalty of not less than $50 besides costs, and not more than $100 besides costs, and in default of payment thereof he shall be committed to the county gaol of the county in which the offence is committed for a period of not less than three months. The minimum period of imprisonment is given, but no limit is fixed as to the maximum period.

Where a second or subsequent offence is not charged in the information, the proceedings will be as for a first offence in every case, and a conviction may be had as for a first offence, although there may have been prior convictions; see sec. 101, ss. 3; see R. v. Rodwell, 5 O. R., 186.

There is no provision in this section for the collection of the penalty by distress, and it was recently held that the Justices had no power to award distress under this section: R. v. Brady, 12 O. R., 358; R. v. Lynch, 12 O. R., 372.

In R. v. Menary, 19 O. R., 691, Armour, C. J., said: "I doubt very much the power of Justices to issue a distress warrant under section 70, or to make the imprisonment thereby imposed dependent upon payment of the fine and costs." See further notes to sec. 100, and R. v. Higgins, 18 O. R., 148; R. v. Clarke, 19 O. R., 601, cited in notes to sec 102.

But by sec. 7, 53 Vic. c. 56, the power to make imprisonment dependent on payment of the fine and costs has since been expressly given in all cases where the Justices are authorized, as they are under this section, to adjudge that a penalty in money and costs be paid, and that in default the defendant be imprisoned. See sec. 88 and notes thereto.

The penalty must not be in excess of that warranted by the Statute: R. v. Sparham, 8 O. R., 570; R. v. Logan, 16 O. R., 335; and when the maximum penalty was imposed, a defect in the conviction in the provision for distress, is not cured under R. S. C. c. 178, secs. 87, 88. See also R. v. Smith, 16 O. R., 454.

Where more than one Justice of the Peace takes part in a conviction, an immediate return thereof to the Clerk of the Peace is necessary: Atwood v. Rosser, 30 C. P., 628; R. S. O. c. 76, s. 1.

A greater penalty cannot be imposed by the Municipality or the Board of License Commissioners than that which the Statute declares: R. v. Lennox, 26 U. C. R., 141.

No penalty can be recovered for selling liquor without a license under the Imperial Act, 14 Geo. 3, c. 88: Andrew v. White, 18 U. C. R., 170.

(k) "Besides costs." Held that the Magistrates in ordering the defendant to pay $1 for the use of the hall for trying the case were clearly exceeding their jurisdiction: R. v. Elliott, 12 O. R., 524. It was held also that the imposition of the costs of commitment and conveying the defendant to gaol was unauthorized, and that R. S. O., c. 74, s. 1, did not affect the question: R. v. Rowlin, 19 O. R., 199; R. v. Wright, 14 O. R., 668; R. v. Ferris, 18 O. R., 476; R. v. Tucker, 16 O. R., 127; R. v. Good, 17 O. R., 725; R. v. Grant, 18 O. R., 169. But since the passing of the Act 53 Vic., c. 56, s. 7, ss. 1, the Magistrates have

oned in the county gaol of the county in which the offence was committed, for a period of not less than three months, and to be kept at hard labor, in the discretion of the conPunish victing magistrate; and for the second offence, (m) on second conviction thereof, such person shall be imprisoned in such offences. gaol for the period of four months, to be kept at hard labor in the discretion of the convicting magistrate; and for the

ments for

and third

third or subsequent offence, (n) on conviction thereof, such

power to impose the costs of commitment and conveying defendant to gaol; see sec. 71, ss. 2, and sec. 88 and notes thereto. Even although the Justices had no power to require costs of conveying the defendant to gaol to be paid by him the conviction was amendable: R. v. Menary, 19 O. R., 691. Where it was alleged that too large a sum had been charged for costs, it was held that the conviction being regular on its face, and not showing any excess of jurisdiction, such an irregularity (even if it existed) could not be enquired into on an application for prisoner's release: R. v. Sanderson, 12 O. R., 178. See sec. 100 and notes thereto.

(2) "Default of payment." See notes to sec. 67. "If a fine is ordered to be paid forthwith and it is not so paid, there is, then, the default in payment which calls for the alternative punishment of imprisonment:" per Armour, C. J., R. v. Menary, 19 O. R., 691.

(m) For a second offence the person convicted shall be imprisoned in the county gaol of the county in which the offence was committed for the period of four months, without the option of a fine, to be kept at hard labor in the discretion of the convicting Magistrate.

As to the meaning of the term "second offence" see sec. 101, ss 6.

The principle of treating repeated offences and those offenders who by committing them appear to be hardened and incorrigable with greater severity than such as appear for the first time, has been given effect to by the Legislature for a very long period. By 15 Geo. 2, c. 28, s. 3, the counterfeiting of coin or uttering of counterfeit coin was punishable by one year's imprisonment, but it was provided that for a second offence the person convicted should be adjudged "guilty of felony, without the benefit of clergy," and in 1799 it was held as a matter of pleading that in order to warrant the greater punishment it was necessary to shew in one and the same count of the indictment not only the first, but the second commission of the offence: see judgment of Harrison, C. J., Stoness v. Lake, 40 U. C. R., 320, at p. 330; see also R. v. Tandy, 2 Leach, 833; R. v. Martin, 2 Leach, 923, cited therein.

"The proof of these, being material allegations, is of course necessary:" see R. v. Martin, L. R. 1, C. C. 214, cited in Stoness v. Lake, 40 U. C. R., at p. 330. By analogy there would appear to be no doubt that in strictness the information for a second or subsequent offence should shew whether the offender was previously convicted, and if so, whether once or twice, in order to justify the graduated scale of punishment prescribed by this section: R. v. French, 34 U. C. R., 403, cited in judgment of Harrison, C. J., in Stoness v. Lake, 40 U. C. R., 320; R. v. Justices of Queen's, 2 Pugs. N. B., 110; see also sec. 101, ss. 4.

But where the defendant disputed the evidence of a first conviction, but did not take objection to an information in which he was not charged with a second offence, it was held that he had waived the objection to the information : Stoness v. Lake, 40 U. C. R., 320. See sec. 101 and notes thereto.

(n) For the third or any after offence the penalty is imprisonment for six

person shall be imprisoned in such gaol for the period of six months, to be kept at hard labor (o) in the discretion of

months, to be kept at hard labor, in the discretion of the convicting Magistrate. The mode of proving the previous offences is by production of a certificate under the hand of the convicting Justices or Police Magistrate or of the Clerk of the Peace, without proof of his signature or official character, or other satisfactory evidence. See sec. 101, ss. 2, and notes thereto. The authorities cited in the foregoing notes with regard to a second offence are applicable to a third or any subsequent offence.

; see

There is no limit of time specified between the first, second, third or any subsequent offence. Any number of offences may be committed on the same day, but the increased penalty or punishment shall only be recoverable in case the offences are committed on different days and after information is laid as for a first offence: R. v. Rodwell, 5 O. R., 186, and other cases in notes to sec. 101 sec. 101, ss. 4; and as to meaning of "third offence," see sec. 101, ss. 6. (0) "The punishment of imprisonment consists in the detention of the offender in prison, and in his subjugation to the discipline appointed for prisoners during the period expressed in the sentence: " R. S. C., c. 181, s. 28 (7), Stephen's Digest Crim. Law. Art. 4, cited in Burbidge's Dig., 15. "Imprisonment is of two kinds: (i.) Imprisonment with hard labor. (ii.) Imprisonment without hard labor." As to hard labor, see note below. See Burbidge's Dig., 15, 16; Wharton's Dict., 360; 1 Stephen's Hist. of Crim. Law, 483487.

The power of imprisoning is generally given either as an original punishment or as the means of enforcing payment of a pecuniary fine: See Slater and Wells, 9 L. J., 21; re Greystock and Municipality of Otonabee, 12 U. C. R., 458-462, and in regard to offences cognizable by summary jurisdiction is derived solely from legislative authority. See Paley on Con., 5th. Ed., 315. Statutes which provide for the summary trial of offenders are strictly construed. See R. v. Barton, 12 Q. B., 389.

When a Statute provides "imprisonment" without stating its commencement it commences immediately: Foggassas' case, Bonham's case, Plow. Com., 17b, and 8 Rep., 119; but if there be no limit to its duration, the prisoner must remain at the discretion of the Court: Dwar. 674, citing Dalt., 410.

The defendant being present in Court on a charge which was disposed of, was, without any summons having been issued, charged with another offence, namely, of selling liquor without a license. The information was read over to him to which he pleaded "not guilty," and evidence for the prosecution having been given, he thereupon asked for and obtained an enlargement till the next day, when, on his not appearing, he was convicted in his absence and fined $50 and costs, and in default, without any distress having been directed, imprisonment was awarded. Held, that under the circumstances the issuing of a summons was waived. Held, also, that the conviction awarding imprisonment in default of payment was properly drawn for by this section (70), under which the conviction was made, there was no power to direct distress: R. v. Clarke, 19 O. R., 601. But see note (k) supra.

The defendant was convicted before two Justices of the Peace of selling liquor without a license contrary to sec. 49. A conviction was drawn up and filed with the Clerk of the Peace in which it was adjudged that the defendant should pay a fine and costs, and if they were not paid forthwith, then, inasmuch as it had been made to appear on the admission of the defendant that he had no goods whereon to levy the sums imposed by distress, that he should be imprisoned for three months, unless those sums and the costs and charges of conveying him to gaol should be sooner paid. An amended conviction was afterwards drawn up and filed, from which the parts relating to distress and the

the convicting magistrate;(p) and in the event of the imprisonment of any person upon several warrants of commitment under different convictions in pursuance of this Act, whether issued in default of distress for a penalty or otherwise, the terms of imprisonment under such warrants shall be consecutive and not concurrent. (q) 49 V., c. 39, s. 4.

costs of conveying to gaol were omitted. A warrant of commitment directed the gaoler to receive the defendant and imprison him for three months, unless the said several sums and the costs of conveying him to gaol should be sooner paid. Upon a motion to quash the convictions and warrant: Held, that the mode adopted for bringing the defendant before the Justices was not a ground for quashing the conviction and semble, also, that it was not improper to arrest him instead of merely summoning him: Held also, that the fact that the defendant was remanded by only one Justice could not affect the conviction.

Held also, that if the Justices were bound to issue a distress warrant, the insertion of the words relating to the admission of the defendant that he had no goods, was proper; and if they had no power to issue a distress warrant, these words were mere surplusage and did not vitiate the conviction :

Held also, that if the Justices had no power to require the costs of conveying him to gaol to be paid by the defendant, the conviction was amendable, as and when it was amended; for the amendment was not of the adjudication :

Held, lastly, that having regard to sec. 105 of the R. S. O., c. 194, and to the evidence before the Justices, the conviction and warrant should not be quashed: R. v. Menary, 19 O. R., 691; see 53 Vic., c. 56, s. 7, ss. 1, cited above.

"Hard labor." 66 Imprisonment in a penitentiary, in the Central Prison for Ontario, in the Andrew Mercer Ontario Reformatory for females, and in any reformatory for females in the Province of Quebec, is with hard labor, whether so directed in the sentence or not: R. S. C., c. 181, s. 28 (4). Imprisonment in a common gaol or a public prison, other than those last mentioned, (a) may be with or without hard labor in the discretion of the Court or person passing sentence, if the offender is convicted on indictment under The Speedy Trials Act,' or before a Judge of the Supreme Court of the North-West Territories; (b) may, in other cases, be with hard labor, if hard labor is part of the punishment for the offence of which such offender is convicted. And if such imprisonment is to be with hard labor the sentence must so direct: " Burbidge's Dig., 16, 17; see also Stephen's Dig., Art. 6; R. S. C., c. 181, s. 28 (5), as enacted in 51 Vic., c. 47, s. 1, (D).

It was formerly held that the Provincial Legislature had no power to impose hard labor as a penalty: see R. v. Black, 43 U. C. R., 180; R. v. Hodge, 36 U. C. R., 141; R. v. Frawley, 46 U. C. R., 153; R. v. Allbright, 9 P. R., 25; R. v. Pipe, 1 O. R., 43. But the question was decided in Hodge v. The Queen, 9 App. Cas., 117, in which it was held that No. 15 of sec. 92 of the B. N. A. Act of 1867, confers the power upon the Provincial Legislature of imposing “hard labor" as a penalty, and that the word "imprisonment" in that Act means imprisonment with or without hard labor. See also R. v. Boardman, 30) U. C. R., 553; R. v. McMillan, 2 Pugs. N. B., 110.

(2x) ‘In the discretion of the convicting magistrate." See note (d) sec. 19, p. 48.

(q) "The terms of imprisonment under such warrants shall be consecutive and not concurrent."

In case a person is convicted of more than one offence under the Act, whether for selling liquor without license or for any other violation of this Act, and