Objections six and seven are overruled. Objection nine* is answered by the fact that the conviction follows the form given in the statute applicable to sec. 49 for selling without license. The form sched. F., No. 3 of R.S.O. 1897, ch. 245, p. 3024, does not negative any exceptions, and it is declared by section 103 to be sufficient. The evidence shews that the sale was not legalized by any of the exceptions. The defendant pleaded not guilty and declared she was ready for trial, and the various objections from nine to twelve seem to have been copied from stereotyped forms and were not adverted to on the argument. The rule nisi should not have given such latitude in raising imaginary difficulties. The last objection in this caset is that no sum is named for costs in the conviction. The conviction follows the usual form, and has a blank space where the amount of the costs should appear. (See sec. 72 of Liquor License Act). The omission to ascertain the costs and insert the amount in the conviction is only an irregularity, not a fatal defect, and it is a matter that may be afterwards rectified by the same justicesif it is sought to enforce payment of the costs. As the matter stands here it .forms no valid objection to the conviction-as it might be treated as a failure to award costs. This appears to be the result of the authorities: Sellwood v. Mount (1841), 1 Q.B. 726, 735; Bott v. Ackroyd (1859), 28 L.J.M.C. 207; Queen v. Clark (1844), 5 Q.B. 886; Queen v. Pringle (1842), 6 J.P. 249. This last case also goes to shew that in the construction of sec. 49 it is not needful to negative the excepted cases-as the proviso is not in the same sentence, but is so placed as to operate as a distinct enactment. A position also illustrated by the case cited by Mr. Cartwright, King v. James, [1902] 1 K.B. 540, in which Re Pringle is not cited. We are told that penalty and costs have been paid by the defendant; all that can be done now is to have the costs taxed * 9. committed. The information should appear to have been laid after offence †The last objection, viz., 15 was: Neither the minute of conviction nor the conviction itself names any sum for costs. 30-VOL. XVI. O.L.R. D. C. 1908 REX v. IRWIN. Boyd, C. D. C. 1908 REX บ. IRWIN. Boyd, C. (if that is asked) and a refund made if any excess has been charged. The application is dismissed with costs. REX V. PETTIT. This is a conviction by the same magistrates of the defendant for a like offence committed in the town of Englehart. The main difference is that as against thirteen objections raised in the Irwin case, there are fifteen raised in this case; thirteen being the same in each case and the two extra ones in this being (9) the information should appear to have been laid after the offence was committed, and (10) no information was laid at all charging the defendant with the offence stated in the conviction, but only one charging him with an offence at Cobalt. What has been said as to the thirteen objections in the Irwin case will apply to the thirteen objections which are common to this case. None of them should prevail. The defendant appeared, pleaded not guilty, stated he was ready for trial, and gave evidence on his own behalf; but was convicted on the clear evidence of two witnesses. The information was laid on the same day as the offence was committed, September 14th, and the trial and conviction was on the 16th of the same month. The original information returned shews an offence at Englehart and not at Cobalt. The copy furnished to Hicks appears to be in error as putting it at Cobalt. The information, though sworn on the same day, affirms that the offence had taken place, i.e., at an earlier hour on September 14th, and is sufficient as to time. The affidavits filed for the defendant are amply met and negatived by the affidavits filed for the Crown, and there is an entire absence of any evidence to shew that the defendant was unfairly treated or deprived of his full right of defence of which he indeed availed himself. This application shares the fate of the other, and is dismissed with costs. A. H. F. L. [DIVISIONAL COURT.] SIMPSON V. DOLAN. Banks and Banking-Cheque Countersigned by Representative of Bank-Authority of Representative-Promise not made in Writing Statute of Frauds (29 Car. II. ch. 3), sec. 4-Original Liability-Bank Act, R.S.C. 1906, ch. 29, sec. 76. A firm of dealers in fruit, whose account was overdrawn at their bank, applied The principle of Sutton v. Grey, [1894] 1 Q.B. 285, discussed and applied. APPEAL by the defendants, the Sovereign Bank of Canada, from the judgment of the Judge of the county court of the county of Lincoln, in favour of the plaintiff, in an action tried before him without a jury on the 12th December, 1907. The facts are fully set out in the judgments. The appeal was heard by a Divisional Court composed of MEREDITH, C.J. C.P., ANGLIN and CLUTE, JJ., on February 10th, 1908. H. H. Collier, K.C., for the defendants, the Sovereign Bank, appellants. A. C. Kingstone, for the plaintiff. March 10. CLUTE, J.:-This is an appeal from the judgment of the Judge of the county court of the county of Lincoln in favour of the plaintiff, for $249.92, against the defendants the Sovereign Bank of Canada, with costs, and in favour of the defendant Dolan without costs. I understand the facts to be as follows: D. C. 1908 March 10. D. C. 1908 SIMPSON v. DOLAN. Clute, J. Prior to 1906, Flynn Bros. manufactured canned fruits and vegetables at the city of St. Catharines. At the close of the year 1905, Flynn Bros. had an overdrawn account with the Sovereign Bank. At the opening of the season of 1906, when Flynn Bros. applied for advances for that season, the bank refused unless the defendant Dolan was employed to look after the business-to act as bookkeeper, to weigh, measure and receive products purchased from farmers and other producers, and to countersign all cheques given for such produce. This arrangement was made, and Dolan acted throughout the season, and countersigned all cheques drawn by Flynn Bros. in payment of produce received. The cheques were in a similar form to the one given to the plaintiff when he delivered his produce at the factory-which is as follows: "St. Catharines, Ont., Dec. 13th, 1906. The Sovereign Bank of Canada pay J. M. Simpson or order Two Hundred and Forty Nine 49 1/100 Dollars $249.92. Peaches. (Sgnd.) Flynn Bros." "J. B. Dolan" (signed across the cheque.) The business was conducted in this manner for the season of 1906. His Honour the county court Judge finds "that Dolan represented to the farmers and producers that it was safe for them to bring their produce to the factory; that he would receive it and give them cheques on the Sovereign Bank, which would be cashed." This was apparently necessary to induce producers to bring their produce to that factory, as they had considerable trouble the preceding year. Under this arrangement Dolan received produce and gave large numbers of cheques, all of which were paid by the Sovereign Bank, except two or three, of which the cheque sued on is one. When the cheque in question was presented the manager delayed payment, and finally refused to honour the same, alleging that Flynn Bros. had largely overdrawn, and that he thought the bank was entitled to all there was left. The bank at that time had liens on the whole plant, property and product of the firm. During the season Dolan managed all the business, purchased the products and made sales of the produce, doing all the business with the Sovereign Bank. The bank received the profits on all sales and paid all drafts. All cheques for produce were countersigned by Dolan; all the produce received went into the general output, and among it were the plaintiff's goods. The bank through Dolan disposed of the entire output and got the proceeds. Flynn Bros. made an assignment for the benefit of creditors about the first of April, 1907. He further finds, that Dolan did not pledge his individual credit. The plaintiff says he sold his produce at the factory on condition that the Sovereign Bank was to pay for it. He says he saw Dolan at the factory, who said he represented the bank and that the bank would cash the cheques. His first cheque was cashed without delay. The cheque sued on was for peaches. He says Dolan made him an offer, and he accepted and looked to the Sovereign Bank from what he told him when he said he was there in the interests of the bank. He said, "take your cheque to the Sovereign Bank and you will get your pay." After the manager refused payment Dolan said, "the cheque would have to be cashed and will be cashed." Flynn says that Dolan came there in the bank's interests and Crombie sent him. "We would not have had him if Crombie hadn't sent him. He came to look after the office and books, weigh and countersign cheques. The bank paid for the fruit and received the money from the sales. I didn't employ Dolan. Dolan was not our employee; he was sent there by the bank, and I understood that the bank would pay for all the goods that were bought while Dolan was there, and the cheques were indorsed by him. I understood that the bank would pay for all goods received if countersigned by Dolan. It was understood that the bank would pay cheques for goods received and countersigned by Dolan. The cheques were to be honoured when the produce was received. He said something that led me to believe that he would honour them. He said so that was the agreement; he told me to sign cheques for produce." Crombie denies this. He says, "As I told Flynn the bank would not advance unless he employed Dolan," and he denies that he agreed to pay all cheques countersigned by Dolan. He admits he told Kidder that the bank owned all Flynns' plant and goods, because the bank had liens covering them. He says Dolan was there in the interests of both the Flynns and the bank. He was to countersign cheques. "I wanted Dolan to certify matters for which the cheques had been given; all moneys realized from sales came to the bank. The bank paid all cheques for produce countersigned by Dolan excepting D. C. 1908 SIMPSON v. DOLAN. Clute, J. |