Payment

of portion of expenses out of con

revenue.

into the license fund by the county at the time or times and in the same manner as is provided for payment of the amount of the estimates in other cases, and the same may be recovered by the board of commissioners for the license district as in other cases.

(4) Where a county has not paid an estimate made before the passing of this Act in respect of any part of a county which forms part of a license district, and which estimate has been approved and where a duplicate or copy thereof has been served as in this section mentioned, the board of commissioners for the license district of which said part of a county forms part may recover the amount of such estimate from the county as in other cases.] 51 V. c. 30, s. 2.

[3. (1) Should the fines and penalties imposed under or by virtue of the said Temperance Act of 1864, or the by-law bringing the same into force, or the said Canada solidated Temperance Act, and which shall be collected or recovered be insufficient to meet the expenses aforesaid after the payment of the salary and travelling expenses of any Police Magistrate appointed under the Act passed in the 48th year of Her Majesty's Reign, chapter 17, and the Act passed in the 50th year of Her Majesty's Reign, chapter 11, or either of them or under chapter 72 of the Revised Statutes of Ontario, 1887, the Treasurer of the Province may pay into the license fund, out of the consolidated revenue, a sum not exceeding one-third of the amount which the municipality shall be required to pay for or on account of such expenses, as aforesaid, over and above the fines collected or recovered.

(2) The treasurer of the County or other municipality to which the fines are payable shall keep a Separate account of the fines received, and also, of the amount paid or contributed by the municipality towards the expenses of enforcing the Act, and the payment of the salary and expenses of any Police Magistrate appointed under and by virtue of any of the Acts in this section hereinbefore mentioned; and the province shall not be called upon to pay any proportion of the expenses so long as there is a balance at the credit of the said account] 51 V. c. 30, S. 3.

proceed

affected.

4. Nothing in this Act contained shall invalidate any Pending estimate, approval thereof, or demand of payment, which ings not shall have been made before the passing hereof, but the amount demanded shall be paid over by the municipality, and payment thereof may be enforced as though this Act had not passed; nor shall anything in this Act contained affect any action or suit or other legal proceedings now pending but the same may proceed as though this Act had not been passed.] (a) 51 V. c. 30, s. 4.

district

and in places

the

where

the R. S.

C c. 106

is in

force.

153. And it is further declared that the Lieutenant- License Governor in Council shall have the same power authority to create license districts when and where second part of The Canada Temperance Act is in force, as under this Act, and where license districts are not or have not heretofore been created or provided by the LieutenantGovernor in Council after the coming into force in any county or city of the second part of the said Canada Temperance Act, the license districts have been since the Act passed in the forty-fourth year of Her Majesty's reign, chapter 27, and are and shall be the same as under this Act, immediately prior to the coming into force of the said second part of The Canada Temperance Act, unless, or where the same have been, or shall have been, or shall be altered or changed by order in council or otherwise, and then as they have been so altered or changed, and until further order in that behalf.

50 V. c. 33, s. 2.

(a) These clauses numbered 3 and 4 are new provisions introduced by 51 Vic. c. 30, secs. 3 and 4.

THE CANADA TEMPERANCE ACT, 1878, AND AMENDMENTS
THERETO.

R. S. C., c. 106, amended by 51 Vic., c. 34 (D.); 53 Vic., c. 27 (D).

SUBMISSION OF ACT TO ELECTORS.

Generally.

Held that the word "County" as used in the Act means County for Municipal purposes and not for electoral purposes: R. v. Shavelear, 11 O. R., 727.

Where a part of the County consisted of Indian lands: Held that as it did not appear that the votes of the electors on such lands were taken upon the petition for the Act, or that proper means were taken to enable them to exercise their franchise, or that they were permitted to exercise it, the present proceedings did not properly bring the matter before the Court: Ib.

The adoption of the Act is on the polling day: R. v. Daly, 12 O. R., 330.

Held, that Indian electors resident in the Township of Tuscarora, in the County of Brant, being an Indian reserve, had no right to vote upon the question of the repeal of the Act in that County.

Semble, that as R. S. O., c. 5, s. 1, is to be interpreted as meaning that the Townships named shall be Townships for Municipal purposes when it becomes possible to make them such, as e. g., in such a case as the present, when Indians become enfranchised.

The C. T. Act can have no operation where the Indian Act is in force.

R. S. C., c. 106, s. 12 refers to white men but not to Indians: re Metcalfe, 17 O. R., 357.

Held that the notice and petition required by sec. 5 of the C. T. Act, 1878, must be deposited for public examination, as required by the Act, in the office of the sheriff or registrar of deeds of or in the County, and that where there are two registry offices in the County, it must be deposited either in the sheriff's office or in both registry offices: in re Can. Tem. Act, 1878, and Co. Perth, 20 L. J. N. S., 375; Sup. Ct. Dig., 51.

It was held that signatories to a notice and petition bringing into force the second part of the Act had not, under the circumstances set forth, the right to withdraw their acknowledged and deliberate signatures, or to have the same withdrawn from the said petition: in re Can. Tem. Act, 1878, and the Co. of Kent, Sup. Ct. Dig., 52.

Scrutiny of Votes.

The County Judge, on a scrutiny, has only to determine the majority of votes cast, on the one side or the other, by the inspection of the ballots, and has no power to inquire into offences against the Act, and allow or reject ballots as a result of such inquiry, (Henry, J., dubitante): Chapman v. Rand, 11 S. C. R., 312.

A County Court Judge will not be compelled by mandamus to inquire, on a scrutiny, as to personation, bribery, the status on the Voters' List of persons voting: Re Canada Temperance Act, 9 O. R., 154; S. C. 12 App. R., 677.

Informations and Convictions.

An information which includes the three distinct offences, of keeping for sale, selling and bartering intoxicating liquors which are prohibited by sec. 99

of The C. T. Act, contravenes 32-33 Vic., c. 31, s. 25, which provides that every information shall be for one offence only; but such information may be amended by striking out all of the offences except one, and such amendment may be made after the case is closed and reserved for decision: R. v. Bennett, 1 O. R., 445; followed in R. v. Lee, 15 O. R., 353; see R. v. Richardson, 8 O. R., 651.

Where the defendant swore that he did not sell any intoxicating liquor on the day charged, but the recipient of some liquor on that day named it in his evidence for the defence, but there was no evideuce that it was an intoxicating drink, the evidence for the Crown only shewing that it resembled intoxicating liquor: Held that there was no reasonable evidence on which to found a conviction for selling intoxicating liquor: Ib.

The defendant was convicted of selling intoxicating liquor contrary to the C. T. Act upon an information charging him with keeping, selling, bartering and otherwise unlawfully disposing of liquor. He was adjudged to pay a fine of $50 and $5.20 costs, and in default of payment and of sufficient distress he was adjudged to be imprisoned in the common gaol at hard labor.

A second record of the conviction, bearing the same date as the first, was filed, differing in some minor points from the first, and omitting the adjudication as to hard labor, and adjudging the payment of $5.27 costs. The proceedings having been removed on certiorari: Held that the first conviction was bad for want of jurisdiction to impose hard labour, which was not authorized by the Act, and that the second was bad in not following the actual adjudication as to costs, which were, as shewn by the Magistrate's minute, $5.20 and not $5.27. Held also that the conviction was bad for not shewing that the Act was in force and not proved otherwise, and, therefore, as the jurisdiction of the Magistrate did not appear, the writ of certiorari was not taken away by sec. 111 of the Act. But see R. v. Ambrose, 16 O. R., 251 post, p. 318.

Quære, whether the conviction was not also open to objection on the ground that the information embraced more than one offence, and whether the Magistrate, having in this respect disregarded the express directions of the Act, 32-33 Vic., c. 31, s. 25, made applicable by the C. T. Act, he might not be said to have acted without jurisdiction: R. v. Walsh, 2 O. R., 206.

An information was laid against defendant on 28th Dec., for having, on 25th Dec. sold intoxicating liquor in violation of the C. T. Act. Intoxicating liquors were found on a search being made on 1st January in the bar of the hotel. On this evidence the information was amended at the hearing on 5th January, so as to charge the keeping and not the selling. The defendant was present at the amendment and objected to it, but waived an adjournment and entered upon his defence. He was found guilty, and a conviction was drawn up for keep. ing intoxicating liquor and returned to the Clerk of the Peace and filed on 17th January. On 27th January a second conviction was drawn up, the same in all respects as the first, except that it was for keeping for sale intoxicating liquor. This was also returned and filed: Held that the Magistrate had power to draw up and return the second conviction, which was warranted by the evidence set out in the report of the case: Held also that there was no variance between the evidence and the information to warrant an amendment, but that the evidence disclosed a new offence, and the amended information became, in fact, a new one, and the defendant, by his presence and by entering on his defence, waived the service of a summons upon him: Held also that it was no objection to the conviction that it was for keeping and selling, while the information charged the keeping only: R. v. Bennett, 3 O. R., 45.

Held, Cameron, J., dissenting, that sec. 111 of The C. T. Act, taking away the right to certiorari, applies to convictions for all offences against the preceding sections of the Act: R. v. Wallace, 1 O. R., 127. See R. 7. Walker, 13 0. R., 83, cited post, p. 316.

Per Hagarty, C. J. and Armour, J., an erroneous finding on the evidence, by

the Magistrate, which was all that was shown here, is not such a want of jurisdiction as warrants the issue of a certiorari: Ib.

Per Cameron, J., where there was on the facts set out no evidence of the commission of the offence charged, the Magistrate acted without jurisdiction and a certiorari would lie: Ib.

Per Armour, J., the omission of the Magistrate to ask accused whether he had been previously convicted did not deprive him of jurisdiction to receive proof of the prior conviction: Ib.

The allegation in the conviction that the offence was committed between 30th June and 31st July, was sufficiently certain as to time: Ib.

If a double offence is charged in an information, the Magistrate has power to drop one and proceed with the other. But where the information was "for selling liquor," and the conviction for "selling intoxicating liquor and having hotel appliances in the bar-room and premises :" Held that a second offence under section 118 of The C. T. Act, was not embraced in the words used: R. v. Klemp, 10 O. R., 143.

An information under the "Scott Act" can be laid before one Justice, although two must try the case: Ib. But see next case.

It is imperative under sec. 105, that an information thereunder be laid before two Justices, and that they both be named in the summons. Where, therefore, a summons stated that an information had been laid only before the Justice who signed it, and yet called upon the defendant to appear before another named Justice as well: Held, that the Justices had no jurisdiction, and that the defendants appearing before them did not confer it. The conviction was therefore quashed: R. v. Ramsay, 11 O. R., 210, followed in R. v. Johnson, 13 0. R., 1. But not followed in R. v. Durnion, 14 0. R., 672, in which it was held that the name of the Justice who was not a party to the summons need not be inserted in it.

Where the expression used in the information was "disposal," and in the conviction" sale," there was held to be no variance between them, and if there had been, an amendment of the information would have been made under secs. 116, 117, 118 of the C. T. Act, 1878: R. v. Hodgins, 12 O. R., 367.

Held that sec. 122, ss. 2, of the C. T. Act, 1878, does not dispense with strict proof by production of the original record or otherwise of previous convictions where it is sought to impose the increased penalty under sec. 100, and that the certificate mentioned in the section can only be admitted as proof of the number of such convictions.

The defendant was charged with selling liquor contrary to the provisions of the C. T. Act, 1878; the information charged a previous conviction for an offence under the said Act, as follows: "The informant says that the said James Kennedy was previously convicted of an offence against the said Act." A certificate by the convicting Magistrate of a prior conviction was put in at the trial under sec. 122, ss. 2, for the purpose of proving such previous conviction. Held that the proof the fact set out in the report constituted no evidence of any offence, and that the Police Magistrate had therefore no jurisdiction, and the right of certiorari was not taken away: R. v. Kennedy, 10 O. R., 396. But see next case.

At

The defendant having been summoned for selling liquor contrary to the second part of the C. T. Act, appeared with his counsel at the hearing and pleaded not guilty, when evidence was given for the prosecution justifying a conviction; but at the defendant's request an adjournment was granted. the adjourned hearing, at which neither defendant nor his counsel appeared, evidence was given of the service of the summons and of the facts that transpired at the prior hearing, and certificates of two prior convictions were put in and the identity of the defendant proved. The defendant was found guilty and convicted of a third offence against the Act: Held, that the defendant, having