Although it is not necessary for the decision of the case in view of what I have above stated, I may add that I cannot help but think that the fact that the prisoner gave testimony in his own behalf, and swore that he first had connection with the girl at the end of September, while according to the evidence of Matchett, he admitted at a conversation in July, two months before, that he had "got there" with the prosecutrix are facts (although this admission was made after the girl reached the age of sixteen) which might be taken into consideration with the other facts as tending to implicate the accused in having connection with the girl before she became of that age.

I am of opinion that the conviction should be affirmed, and that the case should be remitted to the court below with directions to pass such sentence upon the accused as justice may require.

ROULEAU, J., MCGUIRE, J., AND SCOTT, J., concurred.
Conviction affirmed.

Notes: Evidence of similar subsequent acts.

It has been held that evidence of defendant's subsequent conduct in seeking to continue his illicit relation with the seduced person may be received as connected with and tending to corroborate the principal charge in a civil action for damages, as well as being matter of aggravation. Russell v. Chambers, 1883, 31 Minn. 54, 16 N.W. Rep. 458.

The reception of such evidence, in a criminal prosecution before a jury, is to be largely controlled by the judge who tries the cause, and the evidence is to be submitted to the jury, with proper explanation of its purpose and effect. State v. Witham, 1881, 72 Me. 531.

Both prior and subsequent acts to that charged in the indictment are admissible, if indicating a continuousness of illicit intercourse. State v. Witham, 1881, 72 Me. 531, 535.

If, however, the acts are too remote in point of time to afford any reasonable inference of guilt as to the offence charged, proof thereof should be rejected. Stewart v. State, 1887, 64 Miss. 626, 2 So. Rep. 73.

[SUPREME COURT OF NOVA SCOTIA.]

BEFORE MCDONALD, C. J., TOWNSHEND, J., GRAHAM, E. J., AND MEAGHER, J.

THE QUEEN v. MCLEOD.

Certiorari-Quashing Conviction-Costs where not opposed.

1. A motion to quash a conviction being unopposed, no costs were allowed and terms were imposed that no action should be brought by defendant.

2. One magistrate has no jurisdiction to convict on a charge of using abusive language under R. S. Nova Scotia, 5th series, c. 103, and 1889, N. S., c. 36.

The defendant was convicted before a justice of the peace for the County of Pictou, for unlawfully using abusive language towards one Neil Hengley, on a public thoroughfare, "contrary to section 12, of chap. 162, Revised Statutes of Nova Scotia, Third Series, as amended by chapter 12 of the acts of the Legislature of Nova Scotia for 1869," and was fined two dollars and costs, and, in default of payment, was ordered to be imprisoned in the county jail for ten days. The conviction was brought into this court by a writ of certiorari, and a motion to quash the same for want of jurisdiction in the convicting magistrate was made.

1897, April 3rd. J. J. Power, in support of motion. Nem. con.

1897, May 8th. TOWNSHEND, J.-Assuming the offence to be within the powers of the local legislature, which is denied, the jurisdiction over the offence, is conferred by chap. 103, R. S., "Of Summary Convictions, &c." By sec. 2, subsec. 1, of that act is provided,——

"That in all cases where a fine or penalty is imposed by any statute or by-law, or ordinance made under the authority of any statute, and the amount thereof does not exceed forty dollars, and it is not expressly declared that the same is to be sued for, or recovered as a debt, or as a private debt, the same shall be recovered before, and may be inflicted by two justices of the peace, or a stipendiary or police magistrate,

and the proceedings in relation thereto, and to all matters connected therewith, shall be as in this chapter defined, and, as if the same were expressly declared to be recoverable before, or to be inflicted by such justices of the peace, or police magistrate, on summary conviction."

By sec. 28,

"Every complaint and information shall be heard, tried, determined, and adjudged by one justice, or two or more justices of the peace, as may be directed by the act or law upon which the complaint or information is framed, or by any other act, or law in that behalf."

Section 29, which was repealed by chap. 36, acts of 1889, provided,

"If there be no such direction in any act, or law, then the complaint, or information may be heard, tried, determined, and adjudged by any one justice for the territorial division, where the matter of complaint, or information arose."

If this section were now in force, the conviction could not be disturbed for want of jurisdiction. As the law stands, it is quite clear one magistrate could not convict for this offence. There is no provision in the act constituting the offence, directing who shall hear and determine the matter charged, and we are, therefore, compelled to go to the general act, chap. 103, to find the court competent to try and decide.

I can find no other provision in the statutes authorizing a single justice to try and determine the offence. As sec. 29, has been expressly repealed, the only inference which can legitimately be drawn is that the legislature intended to deprive one justice of the authority previously held.

I have not examined into the other points on which this conviction has been attacked as, for the reasons stated, it cannot be upheld.

As the motion was not opposed, it will be quashed, without costs, on the terms that no action is to be brought by the defendant.

Notes: Costs on Certiorari-Practice.

The English practice is not to grant costs on quashing a conviction brought up on certiorari whether opposed or not,

Notes: (Continued.)

Paley on Convictions, 7th Ed., 379, unless the process of the Court has been abused by being put in motion in a vexatious proceeding, R. v. Edmonds, 31 Eng. L. T., 237.

If the conviction is affirmed without amendment the prosecutor will, however, get his costs of opposing the motion, Paley on Convictions, 7th Ed., 379.

[SUPREME COURT OF NEW BRUNSWICK.]
Ex Parte LE BLANC.

Second offence-Time as regards information for first offence.

1. A conviction for a second offence under the Canada Temperance Act must shew that the second offence was committed after the information had been laid for the first offence.

On the 23rd of February, 1895, Mr. Justice Hanington granted an order nisi for certiorari to remove a conviction of the applicant, Thos. Le Blanc, made by the Stipendiary Magistrate of the town of Moncton for a second offence for selling liquor, contrary to the provisions of the second part of The Canada Temperance Act. The particular ground was, that it did not appear by the conviction, that the second offence was committed after the information had been laid for the first offence. The first offence was for selling on a date between the first day of November, 1894, and the fourteenth day of November, 1894. The second conviction was for selling on a date between the fifteenth day of November, 1894, and the thirty-first day of January, 1895.

F. A. McCully, shewed cause.
Jordan, Q.C., supported the rule.

Cur. adv. vult.

On a later day in Term, April 11, 1895, the judgment of the Court, [SIR JOHN C. ALLEN, C.J., taking no part,] was delivered by

TUCK, J. We are of opinion that sufficient has appeared to make the rule absolute.

Rule absolute.

Notes: Previous Conviction-Proof of

A previous conviction must be proved by evidence in legal form which may be done (a) by the production from the proper custody of the conviction itself, and (b) by a copy of the conviction certified by the clerk of the peace or other officer having charge of the records of same, R. v. Yeoveley, 8 A. & E., 806; R. v. Ward, 6 C. & P., 366.

If the certificate or exemplification be that of a Court having a seal it must be certified under such seal; if the proceeding to be certified be before a justice of the peace or coroner, the proceeding may be under the hand or seal of such justice or coroner; and, if any such Court, justice or coroner has no seal, or so certifies, then a copy purporting to be certified under the signature of a judge or presiding magistrate of such Court or of such justice or coroner is admissible without any proof of the authenticity of such signature or other proof whatsoever. (Canada Evidence Act, 1893, S. 10.)

Certificates of previous convictions of a defendant of the same name and description as the accused are admissible as evidence without further proof that the accused was the person formerly convicted. Ex parte Dugan, 1893, 13 C.L.T., 249 (Sup. Ct., New Brunswick).

The accused is entitled to adduce evidence to prove that he is not the party previously convicted and the onus is upon him if the name and description correspond with his own, such being prima facie evidence of identity. Ex parte Dugan, 13 C.L.T., 249.

There is no power to punish, as for a third offence, unless there have been two prior convictions for offences of the same nature and unless such prior convictions are admitted or proved. R. v. Clark, 15 Ont., R. 49.

The question whether the defendant had been previously convicted or not is within the jurisdiction of the magistrate and his finding thereon on competent evidence is conclusive, R. v. Brown, 16 Ont., R. 41 (Q.B.D.)