heard, tried, adjudicated upon and decided without the intervention of a jury, at such time and place as the court or judge hearing the same appoints, within thirty days from the date of conviction, unless the said court or judge extends the time for hearing and decision beyond such thirty days; and in all other respects not provided for in this Act the procedure under "The Summary Convictions Act," so far as applicable, shall apply.

From this conviction he appealed to the County Judge, who dismissed the appeal with costs after holding that the conviction was made under 52 Vict. (Can.), ch. 43, and that, therefore, there was the right of appeal.

After judgment was given it was contended before the County Judge, on the question of costs, (1) that there was no power under sec. 9 of 52 Vict. (Can.), ch. 43, to award costs; (2) that if there was such power they must be confined to disbursements, and (3) if solicitor's fees were to be allowed they must be limited to the tariff of fees adopted by the General Sessions of Middlesex.

The Judge referred the bill of costs to the clerk of the County Court, who taxed it according to the County Court tariff, and upon the receipt of his report the Judge reconsidered the taxation, made some alterations, and finally fixed the costs at the sum of $66.89 in his final order upon the appeal.

Sections 879 and 880 of the Criminal Code, 1892, provide as follows:

879. Unless it is otherwise provided in any special Act under which a conviction takes place or an order is made by a justice for the payment of money or dismissing an information or complaint, any person who thinks himself aggrieved by any such conviction or order, the prosecutor or complainant as well as the defendant, may appeal, in the Province of Ontario, to the Court of General Sessions of the Peace; in the Province of Quebec, to the Court of Queen's Bench, Crown side; in the Provinces of Nova Scotia, New Brunswick and Manitoba, to the County Court of the district or county where the cause of the information or complaint

arose; in the Province of Prince Edward Island, to the Supreme Court; in the Province of British Columbia, to the County or District Court, at the sitting thereof which shall be held nearest to the place where the cause of the information or complaint arose; and in the North-West Territories to a judge of the Supreme Court of the said territories, sitting without a jury, at the place where the cause of the information or complaint arose, or the nearest place thereto where a court is appointed to be held.

880. Every right of appeal shall, unless it is otherwise provided in any special Act, be subject to the conditions following, that is to say :

(a) If the conviction or order is made more than fourteen days before the sittings of the court to which the appeal is given, such appeal shall be made to the then next sittings of such court; but if the conviction or order is made within fourteen days of the sittings of such court, then to the second sittings next after such conviction or order.

(b) The appellant shall give to the respondent, or to the justice who tried the case for him, a notice in writing, in the form NNN in schedule one to this Act, of such appeal, within ten days after such conviction or order;

(c) The appellant, if the appeal is from a conviction adjudging imprisonment, shall either remain in custody until the holding of the court to which the appeal is given, or shall enter into a recognizance in the form OOO in the said schedule with two sufficient sureties, before a justice, 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 are awarded by the court; or, if the appeal is against any conviction or order, whereby only a penalty or sum of money is adjudged to be paid, the appellant (although the order directs imprisonment in default of payment), instead of remaining in custody as aforesaid, or giving such recognizance as aforesaid, may deposit with the justice convicting or making the order such sum of money as such justice deems sufficient to cover the sum so adjudged to be paid, together with the costs of the conviction or order, and the costs of the

appeal; and upon such recognizance being given, or such deposit being made, the justice before whom such recognizance is entered into, or deposit made, shall liberate such person, if in custody;

(d) In case of an appeal from the order of a justice, pursuant to section five hundred and seventy-one, for the restoration of gold or gold-bearing quartz, or silver or silver ore, the appellant shall give security by recognizance to the value of the said property to prosecute his appeal at the next sittings of the court and to pay such costs as are awarded against him;

(e) 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 seems meet to the court,—and, in case of the dismissal of an appeal by the defendant and the affirmance of the conviction or order, shall order and adjudge the appellant to be punished according to the conviction or to pay the amount adjudged by the said order, and to pay such costs as are awarded,—and shall, if necessary issue process for enforcing the judgment of the court; and whenever, after any such deposit has been made as aforesaid, the conviction or order is affirmed, the court may order the sum thereby adjudged to be paid, together with the costs of the conviction or order, and the costs of the appeal, to be paid out of the money deposited, and the residue, if any, to be repaid to the appellant; and whenever, after any such deposit, the conviction or order is quashed, the court shall order the money to be repaid to the appellant ;

(f) The said court shall have power, if necessary, from time to time, by order endorsed on the conviction or order, to adjourn the hearing of the appeal from one sittings to another, or others, of the said court;

(g) Whenever any conviction or order is quashed on appeal, as aforesaid, the clerk of the peace or other proper officer shall forthwith endorse on the conviction or order a memorandum that the same has been quashed; and whenever any copy or certificate of such conviction or order is

made, a copy of such memorandum shall be added thereto, and shall, when certified under the hand of the clerk of the peace, or of the proper officer having the custody of the same, be sufficient evidence, in all courts and for all purposes, that the conviction or order has been quashed.

Aylesworth, Q.C., for the motion, contended that there was no jurisdiction under sec. 9 of 52 Vict. (Can.), ch. 43, to award costs, as the Summary Convictions Act was only to be applied as far as "procedure " was concerned, citing Regina v. Lennon, 44 U.C.R. 456, and Re Burnham, 16 Ont. Pr. 390.

Shepley, Q.C., contra: It is immaterial whether the power to award costs is "procedure" or not, as sections 879 and 880 of the Cr. Code apply unless there is a provision to the contrary in the special Act. The power to award costs is not incident to the Sessions, nor does it exist at common law, and costs can only be awarded by virtue of the statute under which the justices are sitting. By the practice at many sessions forty shillings costs are allowed to the successful party Dickenson's Guide to the Quarter Sessions, 658; Ex p. Holloway, 1 Dowl. P.C. 26; Archbold, Q.S. Prac., 4th ed., 160.

Under the Criminal Code an appellant is required to give a recognizance, conditioned inter alia, "to pay such costs as are awarded by the Court": sec. 880, sub-sec. (c); and the Court is empowered to "determine the matter of appeal and make such order therein with or without costs to either party, including the costs of the Court below, as seems meet to the Court: sec. 880, sub-sec. (e). The Court is empowered to make an order as to costs when the appeal is not duly prosecuted sec. 884. The costs may be paid to the clerk of the peace to be paid over to the person entitled at the proper time : : sec. 897.

The English statutes under which it has been held there is power to award solicitor's fees are as follows: The justices shall "award and order " * * "such costs and charges in the law as by the said justices in their discretion

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shall be thought most reasonable and just" : 8 & 9 Wm. III., ch. 30, sec. 3. The justices may "award and order to the party for whom such appeal shall be determined reasonable costs" in the same manner as under 8 & 9 Wm. III., ch. 30: 17 Geo. II., ch. 38, sec. 4. The Court may, if it think fit, "order and direct the party or parties against whom the same (appeal) shall be decided to pay the other party or parties such costs and charges as may to the Court appear just and reasonable," such costs to be realized under the provisions of 11 and 12 Vict., ch. 43, sec. 27: Archbold's Q.S. Prac., 4th ed., 684; 12 & 13 Vict., ch. 45. Costs when ordered shall be directed to be paid to the clerk of the peace. The General Sessions have power to award such sum in each case as they may think fit, and any tariff framed by the justices was a mere guide for the exercise of their judicial discretion in ascertaining the amount to be allowed."

TORONTO, September 23, 1897.

Rose, J.

Upon the argument I was inclined to agree with the contention of the defendant, that the language of sec. 9 of chap. 43, 52 Vict. (Can.), did not introduce the provisions of the Summary Convictions Act except with reference to the procedure upon the appeal, and gave by itself no power to award costs.

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Section 879 of the Criminal Code, 1892, provides as follows. Unless it is otherwise provided in any special Act under which a conviction takes place or an order is made by a justice, any person who thinks himself aggrieved may appeal." Section 880 provides: "Every right of appeal shall, unless it is otherwise provided in any special Act, be subject to the conditions following, that is to say, etc."

It seems to me, therefore, that sections 879 and 880 contain all the provisions governing this appeal save such as are found in sec. 9 of 52 Vict., ch. 43; i.e., the provisions of section 9 are provisions of a special Act and must be read into 879 and 880.