the by-law, so that the corporation may, if so disposed, remove any doubt in the future by amending the by-law, so as to correspond with the power conferred by the statute. There is no doubt the placard which the plaintiff was convicted of posting or writing was a criminal libel. It is a grave question with me whether a municipality has power to make a new offence and award a new punishment or add an additional one to that which is a criminal offence, and may be punished as such under the criminal law. The learned Judge who tried the case thought the plaintiff was guilty of the charge alleged in the conviction.

If the

charge was writing or publishing a libel, or exhibiting the placard in a bar-room, there would be abundance of evidence of the plaintiff's guilt, but I entertain very great doubt as to whether it was established that he was guilty of posting the placard in a place which the statute enabled the corporation to prohibit its being posted in.

HAGARTY, C. J.-It is conceded that the magistrate had no power to award hard labour. The plaintiff was sent to gaol, and he had ample means to obtain redress. He could have at once applied to quash the conviction, or he could have been discharged on habeas corpus.

He elected to appeal to the Sessions. That Court thought proper to amend the conviction by striking out hard labour, and I incline to think, with my brother Armour, that their so doing was a material alteration of the sentence or adjudication of the justice, which as a general rule cannot be interfered with by them, although they can amend matter of form. But I reserve any express decision on this narrow point till it may become necessary to decide it.

it.

The Sessions affirmed the conviction and did not quash

peace

That it now presents itself with "hard labour” struck out, does not displace the fact that the justice of the did a ward hard labour, and the action of the Sessions, warranted or unwarranted, cannot alter that fact. at defendant's instance or procurement that his original

It was not

conviction was thus altered, and it seems to me that he has the right to say now that his conviction did award hard labour, and that his conviction has not been quashed but upheld.

Of course, if, as my learned brother holds, the Sessions could not legally amend it, the case is still clearer for the defendant.

If on the evidence here a jury had found as a fact that the plaintiff was not put to hard labour, I do not think we should interfere with such a finding. The learned Judge here has held that he was not, in fact, put to hard labour, and I do not feel disposed to interfere with his view.

On the whole, I do not feel warranted in interfering with the judgment of Mr. Justice Patterson. I think the appeal, therefore, should be dismissed, with costs.

ARMOUR, J.-I am of opinion that the conclusion arrived at by the learned Judge who tried this cause is correct, that the conviction has not been quashed, and that this action will not therefore lie.

The record of conviction may be said generally to con-sist of two adjudications; the one the adjudication of guilt, or conviction properly so called; and the other the adjudication of punishment, or sentence properly so called.

From the conviction, properly so called, there is an appeal. to the General Sessions of the Peace, who may amend such conviction; but from the sentence, properly so called, there is no appeal to the General Sessions of the Peace, and they have no power to amend such sentence.

32-33 Vic. 31, sec. 65 (D.) provides that, unless it be otherwise provided in any special Act under which a conviction takes place, any person who thinks himself aggrieved by any such conviction may appeal, in the province of Ontario, to the next Court of General Sessions of the Peace.

The person aggrieved shall give to the prosecutor or complainant, or to the convicting Justice, or one of the convicting Justices for him, a notice in writing of such appeal

within four days after such conviction. He shall also either remain in custody until the holding of the Court to which the appeal is given, or shall enter into a recognizance with two sufficient sureties before a Justice or Justices of the Peace conditioned personally to appear at the said Court and to try such appeal, and to abide the judgment of the Court thereupon, and to pay such costs as shall be by the Court awarded, &c.

And the Court to which such appeal is made shall thereupon hear and determine the matter of appeal, and make such order therein, with or without costs to either party, including costs of the Court below, as to the Court seems meet; and in case of the dismissal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as may be awarded, and shall, if necessary, issue process for enforcing the judgment of the Court, &c.

Section 66 provides that "the Court of General Sessions of the Peace may, at the request of either appellant or respondent, empanel a jury to try the facts of the case, and shall administer to such jury the following oath: 'You shall well and truly try the facts in dispute,' &c. And the Court, on the finding of the jury, shall give such judgment as the law requires; and if a jury be not so demanded, the Court shall try and be the absolute judges as well of the fact as of the law in respect to such conviction," &c.

Section 68 provides that "in all cases of appeal from any summary conviction had or made before any Justice or Justices of the Peace, the Court to which such appeal is made shall hear and determine the charge or complaint on which such conviction has been had or made upon the merits, notwithstanding any defect of form or otherwise. in such conviction; and if the person charged or complained against is found guilty, the conviction shall be affirmed, and the Court shall amend the same, if necessary and any conviction so affirmed, or affirmed and amended shall be enforced in the same manner as convictions affirmed in appeal."

Section 70 provides that "in case an appeal against any conviction be decided in favour of the respondent, the Justice or Justices who made the conviction, or any other Justice of the Peace for the same Territorial Division, may issue the warrant of distress or commitment for execution of the same, as if no appeal had been brought."

Section 71 provides, that "No conviction, or order, affirmed or affirmed and amended in appeal, shall be quashed for want of form, or be removed by certiorari into any of Her Majesty's Superior Courts of Record; and no warrant or commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same."

I am of opinion that none of these provisions confer any right to an appeal against the adjudication of punishment, or sentence, properly so called, but only an appeal against the adjudication of guilt or conviction, properly so called. For the provision of section 65 is, that the Court shall hear and determine the matter of appeal, and in case of the dismissal of the appeal or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction; and the provision of section 68 is that the Court shall hear and determine the charge or complaint, on which such conviction has been had, upon the merits, and if the person charged or complained against is found guilty the conviction shall be affirmed and the Court shall amend the same, if necessary; and any conviction so affirmed or affirmed and amended shall be enforced in the same manner as convictions affirmed in appeal; and the provision of section 70 is, that in case an appeal against any conviction be decided against the defendants a warrant of distress or commitment may be issued for execution of the same as if no appeal had been brought.

I am of opinion, therefore, that the Court of General Sessions of the Peace had no power or authority to alter the adjudication of punishment made by the Justices of

the Peace, and that their assuming to amend the record of conviction in this regard was a void act, and was not therefore a quashing of the conviction.

But even if an appeal would have lain to that Court against the adjudication of punishment, and if they had the power to amend it as they did, I do not think that such an amendment would have been a quashing of the conviction within the meaning of R. S. O. ch. 73, sec. 4.

I think also that this Court has the power to quash a conviction for an illegal adjudication of punishment notwithstanding such conviction has been appealed against in respect of the adjudication of guilt, and has been affirmed or affirmed and amended in appeal; and that sec. 71 does not take away the writ of certiorari in the case of an illegal adjudication of punishment, because no appeal lies against such adjudication to the Court of General Sessions of the Peace.

I have only further to say that I must not be taken as agreeing with the views of the learned Judge who tried this cause as to the inapplicability of R. S. O. ch. 73, sec. 17, to the circumstances of this case.

In my opinion the motion must be dismissed, with costs.

Judgment accordingly.

31-VOL. I O. R.