if the Court should hold that there is no right of appeal, then it should itself direct the issue of a writ of habeas corpus. The defendant is entitled to the writ from every Judge and Court.

The Court directed that the argument should proceed subject to the objection.

Mackenzie then proceeded with the argument. There was no power in the justice who took the information to grant adjournments. Section 95 of ch. 245 provides that all informations or complaints for the prosecution of an offence, etc., shall be laid within thirty days after the commission of the offence, and not afterwards, before any justice of the peace. All that the justice can do is to take the information. The prosecution of the offence, which includes all acts subsequent to the information, must be before two justices or a police magistrate, and they alone have the power to grant adjournments: Anderson's Law Dic., p. 838, tit. "Prosecute;" Abbott's Law Dic., vol. 2, p. 341, tit. "Prosecution;" Words and phrases Judicially Defined, vol. 6, p. 5734, tit. "Prosecute;" State v. Hardenburgh (1808), 2 N.J. Law 257, 261. Section 708 of the Criminal Code does not apply. No doubt under R.S.O. 1897, ch. 90, the provisions of the Code are made applicable, but only so far as they are not inconsistent with the special Act. If sec. 708 empowers one justice to grant adjournments, then it is inconsistent with sec. 95 and does not apply. The power conferred by sec. 708 to do all acts necessary preliminary to the hearing, refers to acts done subsequent to the laying of the information, for "the hearing" includes all such subsequent acts. Ramsden, in addition to the reasons already stated, was precluded from acting as being in no way connected with the case. Section 722 refers to the justice who is entitled to deal with the case. His appointment as high constable also debarred him from acting. There being no valid adjournments, the information became nugatory, and, the thirty days having elapsed, the police magistrate had no jurisdiction to try the case and convict the defendant: Rex v. Bowman (1834), 6 C. & P. 337; Regina v. Lennox (1873), 34 U.C.R. 28; Regina v. French (1887), 13 O.R. 80; Regina v. Walker (1887), 13 O.R. 83; The Queen v. Mayor, etc., of Bangor (1886), 18

Q.B.D. 349, 361; The Queen v. West, [1898] 1 Q.B. 174; Act Respecting Constables, R.S.O. 1897, ch. 99, sec. 4; Dalton's Office of Sheriff, p. 371; Rex v. Leach (1908), 17 O.L.R. 643; The Queen v. Payn (1864), 34 L.J.N.S. Q.B. 59, 60; Rex v. Bellamy (1823), 2 D. & R. 727. The defendant by appearing at the trial did not waive any of the defects. Waiver does not confer jurisdiction: Rex v. Nurse (1904), 7 O.L.R. 418, 8 Can. Cr. Cas. 173, Regina v. French, 13 O.R. 80; Mander v. Falcke, [1891] 3 Ch. 488; Penn v. Lord Baltimore (1750), 1 Ves. Sr. 443, 446; The Queen v. Cockshott, [1898] 1 Q.B. 582.

Bayly, K.C., for the Crown. The adjournments were properly made. They were acts necessary preliminary to the hearing. The hearing refers to the actual trial; they were therefore authorized by sec. 708 of the Code. The fact of Ramsden being appointed high constable did not debar him from acting. The case of a sheriff or person occupying a like position is quite different. The alleged defects, however, were irregularities merely, which were waived by the defendant appearing at the trial and pleading to the charge. The magistrate had jurisdiction to try the charge: Regina v. Hazen (1893), 20 A.R. 633; Regina v. Hughes (1879), 4 Q.B.D. 614; Rex v. Lowery (1907), 13 Can. Cr. Cas. 105, 15 O.L.R. 182; Regina v. Brown (1888), 16 O.R. 41.

TORONTO, June 3, 1909.

FALCONBRIDGE, C.J.:-I have read all the cases cited by counsel at the argument, as well as those to which my attention has been called from time to time up to yesterday. An objectionable practice is growing up of sending in memoranda of authorities after the argument without any special leave and without reference to the opposite party.

However, this case involves the liberty of the subject, and everything submitted for our consideration has been considered, which has involved much delay in giving judgment.

I agree with my brothers in dismissing the motion.

Applications are being constantly made, on purely technical

grounds, on behalf of persons clearly guilty of the offences for which they have been convicted. It is their right, and the right of counsel, to make these applications. But they should, if found to be baseless, be subject to the usual penalty of costs.

The motion will be accordingly dismissed with costs.

BRITTON, J.:-The proceedings in this case are set out in full by my brother Riddell, and the question is whether upon the facts we are able to distinguish it from Regina v. Hazen, 20 A.R. 633. In that case there had been an adjournment for more than eight days, contrary to the section of the Code, then sec. 857, and it was held by the Court that the subsequent appearance by the defendant waived any objection that otherwise might have been taken.

The language of Mr. Justice Osler, at p. 644, is as follows: "This, I think, was a mere matter of procedure, and the defendant having so appeared and continued the proceedings, the conviction is not vitiated by the fact of the delay having been for a longer period than the Act authorized. It is apparent that the inquiry on the 3rd September related to the charges mentioned in the information, which were the subject of the first hearing, and if, as is now well. settled, the appearance before justices and allowing a charge to be proceeded with without objection will, as a general rule, waive the want of an information or summons, the appearance upon an adjournment, even though an irregular adjournment, of a hearing commenced by information and summons must â fortiori be a waiver of objections to the irregularity."

It does not appear that Rex v. Bowman, 6 C. & P. 337, now cited by Mr. Mackenzie, was cited upon the argument in Regina v. Hazen.

In Rex v. Bowman there was an adjournment of the sessions from Monday the 1st July till Tuesday the 2nd, but no adjournment on Tuesday. On Thursday the 4th July the Court reassembled, and adjourned to Friday the 5th, when the prisoner was tried and convicted. It was held that, by reason of the want of an adjournment from Tuesday to Thursday, the proceedings on Friday were coram non judice, and therefore a nullity.

In Dixon v. Wells (1890), 25 Q.B.D. 249, a complaint having been made to two justices for an offence under the Acts respecting adulteration of food, a summons was signed by another justice, who had not heard the complaint. The appellant appeared, and objected that the summons was invalid and that the magistrate had no jurisdiction to hear the case. The magistrate thought the defect, if any, in the summons was cured by the appellant's appearance, and he heard the case, and convicted. Held, that the summons, having been signed and issued by a justice who had not heard the complaint, was invalid, and that the defect was not cured by the appearance of the appellant, as he appeared under protest.

In the case last mentioned Regina v. Hughes, 4 Q.B.D. 614, was cited. In that case a police constable procured a warrant to be illegally issued, without a written information or oath, for the arrest of a person for assaulting the constable in the discharge of his duty. Upon that warrant the person charged was brought before justices, and was, without objection, tried and convicted. Held, that he was rightly convicted, notwithstanding that there was neither written information nor oath to justify the issue of the warrant, and that the justices had jurisdiction, though the warrant was illegal.

In dealing with that case in Dixon v. Wells, Lord Coleridge said, 25 Q.B.D., at p. 255: "In all the cases to which our attention has been called there was no protest made by the person who appeared, and the Courts said, applying a well-known rule of law expounded centuries ago, that faults of procedure may generally be waived by the person affected by them. They are mere irregularities, and if one who may insist on them waives them, submits to the judge, and takes his trial, it is afterwards too late for him to question the jurisdiction which he might have questioned at the time."

Here the defendant was in fact charged with an offence. Pursuant to that charge he was in court before a police magistrate having jurisdiction generally to try such a case. There was an adjournment by the police magistrate without objection of the

accused. The accused appeared pursuant to adjournments and without objection took his trial.

Upon the authorities I do not feel at liberty to go behind what was done with the consent of the accused in a court of competent jurisdiction. The information was laid within the time. The accused appeared for trial, not objecting but submitting to the jurisdiction which the police magistrate had, waiving all defects, if any, in mere matters of procedure, necessary to compel the attendance of the accused, had he objected: In re Maltby (1881), 7Q.B.D. 18; Regina v. Clarke (1891), 20 O.R. 642.

So far I have assumed that no objection to the jurisdiction of police magistrate Ellis could be urged, other than those mentioned above.

In this case, as the initiatory proceedings were not taken before the police magistrate, two justices could have proceeded to try the defendant; that would not, however, of itself, oust the jurisdiction of the police magistrate, and, so far as appears in this case, he (Ellis), under secs. 27 and 30 of the R.S.O. 1897, ch. 87, had jurisdiction.

I have read the cases cited by Mr. Mackenzie, and I wholly agree that, had the objection taken on this motion been taken to the jurisdiction, instead of the accused waiving all, and standing his trial, he could not have been legally convicted.

I am unable to distinguish Regina v. Hazen, 20 A.R. 633, so would dismiss the motion, but without costs.

RIDDELL, J.-An information charging the defendant with a second offence against the Liquor License Act, alleged to have been committed on the 25th September, 1908, was laid on the 21st October, 1908, before John H. Sanderson, J.P. It does not appear if summons issued; presumably it did. On the 14th November the case was called before Mr. Sanderson, and, by consent of both parties, was adjourned till the 21st November. Upon that day the case stood with the like consent till the 28th November; then with the like consent till the 30th November; then, at the request of the defendant, till the 7th December; then, by consent of both parties, till the 12th December; then, at request of the defendant, till the