She denied having done so, and the prisoner's counsel subsequently wished to prove by a witness who heard her testimony on the preliminary examination, that he had heard her make such statements. It was admitted that the depositions had been lost.

By the regulations established for the cross-examination of Crown witnesses by the English judges in 1837, and which may be found in C. & P. 676, the witness could not be cross-examined as to any statement made on his preliminary examination until his deposition had been read. Then, if the statement did not appear in the deposition, he could be crossexamined about it, and if he denied making it, and it was material to the matter in issue, the prisoner could call witnesses to prove that such statement was made. Now, under sec. 700 of the Criminal Code, the witness can be cross-examined as to statements made by him at the preliminary enquiry, without producing his deposition, and it seems clear that the deposition was not to be taken as the sole evidence of the statements made at the preliminary enquiry.

In the case before us the prisoner's counsel, as I understand it, did not intend to contradict the witness by the writing, and it is not within the provisions of sec. 700 at all, but under the sec. following (701). The witness Edna W. Troop, having been cross-examined as to a previous statement relative to the subject matter of the case, and having denied that she made it, proof can be given that she did indeed make it, the particular occasion having been designated; and I am of the opinion that there is nothing to prevent such evidence being given by witnesses who were present and heard the statement made.

As regards the materiality of the evidence proposed to be contradicted, I have little doubt. The indictment was for an assault, and the statement proposed to be given in evidence, as I understand it, was one made by the witness as to what she and the accused said, at the time the assault was alleged to have been committed. This, I think, was material to the matter in issue, and part of the res gestæ, and could be contradicted under the statute.

I think the learned trial judge was wrong in refusing to receive the evidence, and there must be a new trial.

MCDONALD, C.J., concurred.

TOWNSHEND, J.

I am of opinion that the evidence rejected on the trial of this indictment should have been received. The evidence was offered to contradict certain statements alleged to have been made by Edná W. Troop, on the preliminary investigation before the magistrate. The statute requires the magistrate to take down in writing, to be signed by the witness, the evidence given at that time. By sec. 700 of the Code the witness may be cross-examined as to any such statements without the writing being shown, but if it is intended to contradict the witness by the writing, his attention must, before such contradicting proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him. In this case it is proved by admission that the depositions were lost, and, therefore, the statute in this respect could not be complied with. It is clear from the reserved case that the subject of contradiction referred to what was stated at the preliminary enquiry, which it is to be presumed was taken down by the magistrate. Assuming, as we must, for the purpose of this argument, the evidence to be most material, and cogent against the prisoner, if true, does his inability to comply with its requirements, through no fault of his, shut him out from disproving by contradictory evidence the truth of what has been stated against him? This is the position taken by the Crown, and seems to me most unreasonable, and contrary to sound principles.

In Taylor on Evidence, sec. 1447, after referring to the provision already cited, (sec. 700), he says:

"If it should appear from cross-examination of the witness, or from any antecedent evidence, that the writing in question has been lost or destroyed, the proviso first cited empowering the judge to require its production will of course, become inoperative. In such a case therefore it is apprehended that the witness, might be cross-examined as

to the contents of the paper, notwithstanding its nonproduction, and that if it were material to the issue he might be afterwards contradicted by secondary evidence."

Again, at sec 552, after discussing when secondary evidence may be received, he says:

"Parol testimony, therefore, can only be admitted on proof first, that the public record or document has itself been lost or destroyed, for otherwise a copy might be obtained, and secondly, that such copy, if any had been taken, is no longer under the control of the party relying upon less satisfactory evidence. In like manner, if a witness has been examined before a magistrate, or a coroner, under such circumstances, that these officers respectively have in pursuance of their duty, taken down his statement in writing, parol evidence of his examination cannot be given, in the event of his death, so long as the deposition itself can be produced; for the law having constituted the deposition as the authentic medium of proof, will not permit the admission of any inferior species of evidence. If indeed it can be shown that the deposition is lost or destroyed, or in the possession of the opposite party, who, after notice, refuses to produce it, the statement of a witness who was present at the examination will then be admissible, as well as a copy of the deposition."

These propositions seem to me conclusive as to the right of the prisoner, first, to cross-examine the witness as to what she did say on the preliminary examination before the magistrate, and then to contradict her by witnesses who were present and heard what she did say, it being first proved, as here, that the original depositions were lost.

The only remaining enquiry is as to its materiality. That it was material is plain, because it related to what was said at the time of the assault. There can be no doubt that everything said or done by the parties at the time of the occurrence then being investigated, is relevant and material. It is not necessary to refer to authority for such a simple proposition.

I, therefore, am of the opinion that this conviction should be quashed, and a new trial granted.

Note:-'Res gestæ – Admissibility of declaration as part of.

The expression 'res gesta' includes everything which may be fairly considered an "incident of the event under consideration." Taylor on Evidence, 1897, sec. 583.

The circumstances or declarations need not be contemporaneous with the main fact under consideration if so connected therewith as to illustrate its character, to further its object, or to form in conjunction with it one continuous transaction. Rouch v. Great Western Ry. (1841) 1 Q.B., 51, 61; Bateman v. Bailey, 5 T. R. 512; Ridley v. Gyde, 9 Bing. 349; Rawson v. Haigh (1824) 2 Bing. 104. Taylor on Evidence, 1897, sec. 588.

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Although concurrence of time cannot but be always material evidence to show the connection, yet it is by no means essential." Per Lord Denman, C.J., in Rouch v. Great Western Ry., supra.

[SUPREME COURT OF NOVA SCOTIA.]

BEFORE MEAGHER, J., IN CHAMBERS.

THE QUEEN v. CROWELL.

Conviction-Imposition of fine-Forfeiture must be adjudged— Direction for payment insufficient.

1. A summary conviction by a Justice of the Peace, whereby a fine is sought to be imposed, must adjudge forfeiture of the amount as well as payment thereof.

2. The prisoner is entitled to be discharged under habeas corpus if the conviction merely adjudges that he "forthwith pay" a sum named, and in default of payment be imprisoned.

Motion for discharge under habeas corpus.

The defendant was convicted by a magistrate for a violation of the Inland Revenue Act of Canada (R.S.C. 1886, c. 34), and adjudged "to forthwith pay $100, and in default of payment to be imprisoned for six months." The return to the habeas corpus was of a warrant reciting such

conviction.

F. T. Congdon, for the prisoner.

F. A. Mathers and J. A. MacKinnon, for the informant.

HALIFAX, December 13, 1897.

MEAGHER, J.

This is a motion to discharge the defendant from custody, where he is confined on a warrant for an offence against the provisions of the Inland Revenue Act.

Two objections were urged: First, that two offences were adjudged in the conviction, viz.: (1) assisting in distilling, and (2) assisting in rectifying spirits; Second, that there was no adjudication of forfeiture of the penalty imposed.

The latter ground must prevail, and the defendant will therefore be discharged; but there must be an undertaking not to bring an action against the justice or the officers concerned in the execution of the warrant, including the gaoler.