.C. 1908 April 16. [DIVISIONAL COURT.] HOPPER V. WILLISON. Division Courts-Action on Foreign Note-Made and Held out of Jurisdiction An action on a promissory note within division court competency, and which THIS was a motion by way of appeal from the ruling of the Judge of the first division court in the county of Kent at the city of Chatham, dismissing this action on the ground of want of jurisdiction, and for a new trial, and was argued on April 15th, 1908, before BOYD, C., FALCONBRIDGE, C.J.K.B., and TEETZEL, J. The plaintiff, and primary creditor, sued as bonâ-fide holder of a promissory note made by the defendant and primary debtor, E. Willison, for $125, and sought to attach moneys due to Willison from the Vulcanic Oil and Gas Company, of Chatham, Ontario, the garnishees. The note was dated Haskino, Ohio, September 22, 1905, and was payable six months after date. The remaining material facts are stated in the judgment. H. L. Drayton, K.C., for the motion, referred to secs. 71, 72, 84 and 190 of the Division Court Act, R.S.O. 1897, ch. 60, and to McCabe v. Middleton (1906), 27 O.R. 170; Lented v. Congdon (1901), 1 O.L.R. 1. No one contra. April 16. The judgment of the Court was delivered by BOYD, C.:-The cause of action arose out of the jurisdiction in the United States, and is in the shape of a promissory note made by the defendant, primary debtor for $125. This note has now been brought into this Province, and is sued upon by the holder (who is now in fact still resident in Ohio, where the note was made). The defendant is now carrying on business at Fletcher in the county of Kent in Ontario, and may be sued in the division court holden at that place as his place of residence to recover this note: Under D. C. secs. 83 and 84 of Division Courts Act, R.S.O. 1897, ch. 60. I do not follow the Judge's ruling that he had no jurisdiction in this case because the note in question was made out of the jurisdiction: it is now sued on and is within the jurisdiction and the person liable thereon is also within the jurisdiction of the Court over which he presides and the note is of division court competency. No cause was shewn against the motion for a new trial, and the Judge has not furnished any reasons for his ruling. The case should be sent back for trial, and costs of appeal should be fixed at $15, to be paid by defendant to primary creditor. No costs of appeal to garnishee. 1908 HOPPER V. WILLISON. Boyd, C. A. H. F. L. D C. 1908 March 23. [DIVISIONAL COURT.] REX V. IRWIN. REX V. PETTIT. Intoxicating Liquors-Sale of Liquor near Public Works-Liquor License Act— Police Magistrate-Justices of the Peace-Jurisdiction-Conviction-Form of-Irregularity-Costs-R.S.O. 1897, ch. 245, sec. 49—Ibid. ch. 39. In areas wherein R.S.O. 1897, ch. 39, an Act respecting the sale of intoxicating liquors near public works, is in force, a person who sells liquor without license may be proceeded against either under that Act or under the general Liquor License Act, R.S.O. 1897, ch. 245. It is optional to proceed under either one Act or the other, with this proviso, that the offender shall not be punished twice for the same illegal sale. The fact that a man is a police magistrate does not debar him from calling in another justice of the peace to sit with him, and there is nothing to oust the general jurisdiction of justices in the fact that a stipendiary magistrate has been appointed for the district. The omission to ascertain the costs and insert the amount in a conviction under the Liquor License Act, R.S.O. 1897, ch. 245, sec. 49, is only a irregularity and not a fatal defect, and may be afterwards rectified by the same justices if it is sought to enforce payment of the costs. Semble, that under the proper construction of sec. 49 of the Liquor License Act, it is not necessary to negative the excepted cases in a conviction under that section. Semble, that reducing the evidence of witnesses to writing and tendering the same to them to be signed by them, though details which it is better not to disregard, are not essential to the validity of a conviction under the Liquor License Act. THESE were motions for writs of certiorari to quash the conviction by R. H. C. Browne and Hugh Williams, two of His Majesty's Justices of the Peace in and for the District of Nipissing, of each defendant for that he did, on September 14th, 1907, at the township of Englehart, in the district of Nipissing, unlawfully sell liquor, without the license therefor by law required, upon the following, among other grounds: (1) That the statute under which the conviction purported to be made, namely, R.S.O. 1897, ch. 245, sec. 72, the Liquor License Act, was not in force in the place aforesaid, or as to the premises in which the offence was alleged to have been or was presumably committed at the time of the alleged commission thereof. (2) That R.S.O. 1897, ch. 39, being an Act respecting the sale of intoxicating liquors near public works, was the only statute then in force in respect of such place or premises. (3) That there was no evidence to prove an offence under the Liquor License Act. (4) That there was no evidence of the locality of the commission of the offence, and no locality, therefore, within the magistrate's jurisdiction made to appear in the conviction. (5) That the convicting magistrates jointly, or the associate magistrate, had no authority to convict the defendant. (6) That such convicting magistrates should have been appointed by individual commissions. (7) That the information, evidence and conviction should have negatived a sale under legal process, or for distress, or by an assignee in insolvency. The motion was argued on March 18th, 1908, before BOYD, C., MAGEE and MABEE, JJ. J. B. McKenzie, for the motion, contended that the Act R.S.O. 1897, ch. 39, being an Act respecting the sale of intoxicating liquors near public works, is the only Act now in force governing the matters in question, and referred to Regina v. Prittie (1878), 42 U.C.R. 612, at pp. 621-3; Michell v. Brown (1858), 1 E. & E. 267, at pp. 274-5; Graham v. McArthur (1866), 25 U.C.R. 478, 483. He also contended that it was permissible to go behind the return and shew want of jurisdiction by affidavit, and that there was no jurisdiction to convict here. J. R. Cartwright, K.C., for the Crown, referred, as to jurisdiction, to Rex v. Leconte (1906), 11 Can. Crim. Cas. 41, also The King v. James, [1902] 1 K.B. 540. March 23. The judgment of the Court was delivered by BOYD, C.:-The original of the Act R.S.O. 1897, ch. 39, which is the Act of Canada of 1856, 16 Vict. ch. 164, makes it perfectly plain that liquor licenses may exist in places where the Act is in force, and that such licenses may be renewed, and that liquor may be sold under such licenses notwithstanding the general prohibition of the Act. The same saving clause as to sale by wholesale in such territory appeared in the original Act, which is now reproduced in sec. 1, sub-sec. 4, of the present statute. That sub-section also contains the saving from the operation of the Act of renewal licenses of houses or shops (meaning houses of public entertainment) usually licensed before the construction of the public work was commenced. It follows, I think, that one who sells liquor without license in this D. C. 1908 REX v. IRWIN. D. C. 1908 REX v. IRWIN. Boyd, C. area is liable to be punished in two ways, either under the special Act or under the general Liquor License Act, R.S.O. 1897, ch. 245, for so selling illegally. It is optional to proceed under one Act or the other, as in the case of cumulative offences, with this proviso, that the offender shall not be punished twice for the same illegal sale: R.S.O. 1897, ch. 1, sec. 11. Thus the first and second objections are disposed of. The evidence returned shews a sale of whiskey in bottles by the defendant Irwin to the witness at Englehart on September 13th, 1907. The evidence was reduced to writing, and may have been read over to the witness for all that appears-who may have refused to sign it for all that appears. I do not say, that if it had affirmatively appeared that it was not read over and that the witnesses were not asked to sign, that it would make any difference. These details are not essential to the conviction, though it is better not to disregard them. The materials shew that Englehart is a town and a railway station on the Temiskaming and Northern Ontario Railway; we may also take judicial notice that it is a Dominion postoffice, and that it is marked in the maps published in the Atlas of Canada issued by the Department of the Interior in 1906. It is a tangible, well-known locality in the judicial district of Nipissing, and within the jurisdiction of the magistrates. This disposes of objections numbered 3, 4 and 5, of which, indeed, only No. 5 was adverted to in the argument. This prosecution may be tried before two justices for the district, under sec. 97 of the Liquor License Act, ch. 245. If Mr. Brown is a police magistrate for Cobalt, he is also ex officio justice of the peace, and he can call in another justice of the peace to sit with him. I see nothing to oust the general jurisdiction of justices, though a stipendiary magistrate be appointed for the district: R.S.O. 1897, ch. 87, secs. 27, 30; ch. 109, sec. 37.* *R.S.O. 1897, ch. 87, sec. 27: "Every police magistrate shall, ex officio, be a justice of the peace for the whole county or union of counties or district for which, or for part of which, he has been appointed." Section 30: "A police magistrate sitting as such shall have full power to do alone whatever is authorized, by any statute in force in this Province relating to matters within the legislative authority of the Legislature of the Province, to be done by two or more justices of the peace; and every police magistrate shall have such power while acting anywhere within the county for which he is, ex officio, a justice of the peace." R.S.O. 1897, ch. 109, sec. 37, provides for the appointment of stipendiary magistrates for the Judicial District of Nipissing. |