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Notes:-Right of appeal-Effect on certiorari.

Section 117 of the Liquor License Act (N.B.) 1887, c. 4, enacts as follows:

In all cases of prosecution for any offence against any of the provisions of this Act, for which any penalty or punishment is prescribed by the 82nd section of this Act, the conviction or order of the justice or magistrate, as the case may be, shall, except as hereinafter mentioned, be final and conclusive, and except as hereinafter mentioned, there shall be no appeal against such conviction or order to any other Court.

(1) An appeal shall lie from a conviction for any offence for which a penalty is prescribed by the 82nd section of this Act to the judge of the County Court of the county in which the conviction is had, without a jury, provided a notice in writing of such appeal is given to the prosecutor or complainant within five days after the date of the said conviction subject to the following provision: (here follow other subsections as to the interim custody of the accused and the giving of a bond with sureties in lieu thereof.)

The decision in the principal case is directly contrary to the rule usually followed. It was held in the leading English case of R. v. Jukes, 1800, 8 T. R. 542, 5 Ruling Cases 532 that the right of certiorari was not taken away even after an appeal taken by the applicant and decision obtained thereon although the statute authorizing an appeal to the sessions empowered the sessions to "hear and finally determine " the matter. As was stated by Lord Kenyon in that case, a certiorari, being a beneficial writ for the subject, could not be taken away without express words.

In matters coming under the provisions of the Criminal Code of Canada, 1892, the right to certiorari is taken away in respect of any conviction or order had or made before any justice of the peace if the defendant has appealed therefrom to any court to which an appeal is authorized by law (Cr. Code sec. 887) and also in respect of any conviction or order made upon such appeal, or the conviction or order affirmed, or affirmed and amended, in appeal. (Cr. Code secs. 886, 887.)

And it is well established that a provision taking away the

Notes: (Continued.)

certiorari does not apply where there was an absence of jurisdiction. Ex parte Bradlaugh, 1878, 3 Q.B.D. 511; but although the writ is allowed to issue, the order removed will not be quashed in such a case except upon the ground either of a manifest defect of jurisdiction or a manifest fraud in procuring it. Colonial Bank v. Willan, 1874, L. R. 5 P.C. 417.

The power of a Superior Court to remove proceedings before justices of the peace is incident to the superintending authority which that Court posseses over inferior jurisdictions and it was held that the direction of a statute (22 Car. 2, c. 1, s. 6) which gave an appeal to the sessions and enacted that "no other Court whatsoever shall intermeddle with any cause or causes of appeal upon this Act but they shall be finally determined in the quarter sessions only" did not prevent the removal of the order by certiorari. R. v. Morley 2 Burrows 1040. Unless the intention to do away with the writ is shewn by express mention of certiorari, it will be inferred that the "determination" referred to is in reference to matters of fact only. R. v. Plowright 3 Mod. 95, 2 Hawkins Pleas of the Crown 6th Ed. c. 27, s. 23.

[SUPREME COURT OF NEW BRUNSWICK.]

Ex Parte EMMERSON.

(33 N. B. R. 425.)

Certiorari-Copy of Proceedings below-Practice.

1. On a motion for a certiorari it is necessary to produce a copy of the proceedings sought to be removed.

2. A rule nisi for certiorari was quashed in default of such copy in support thereof.

November 7, 1895.

Jordan, Q. C., moved to discharge a rule nisi for certiorari. Slipp, contra.

The Court (Sir John C. Allen, C. J., taking no part) discharged the rule, because a copy of the original proceedings was not attached to or exhibited with the affidavits upon which the rule was granted, nor did the latter disclose what the proceedings were, and it was not shewn that a copy could not have been obtained.

Notes: Certiorari-Material in support.

An application by a defendant for a certiorari to remove a conviction must be supported by an affidavit shewing the grounds on which it is sought. R. v. Clace, 4 Burr. 2458; R. v. Stannard, 4 T. R. 161; R. v. Burgess, 1 Ken. Rep. 531. The affidavit should be entituled in the Court to which application is made and not in the Court below. Ex p. Nohro, 1 B. & C. 267; 1 Burns' Justice 634.

Where the application was for the removal of an inquisition to assess compensatory damages for lands expropriated under a railway Act, it was held that an exact copy of the inquisition should be verified by affidavit or the omission to produce same should be accounted for. R. v. Manchester and Leeds Ry., 1838, 8 A. & E. 413. If a copy cannot be procured that fact should be positively sworn to, Ibid. The latter rule of practice is now embodied in the English Crown Office Rules (No. 35). Short & Mellor's Prac., 154, 521.

A party after once failing in consequence of a defect in the way in which he brought his case forward, is not entitled to renew the same application, R. v. Manchester and Leeds Ry., 1838, 8 A. & E. 413, 427.

[COURT OF QUEEN'S BENCH, QUEBEC.]

CROWN SIDE.

BEFORE WURTELE, J.

THE QUEEN v. CIARLO.

Witness-Former deposition—Admissibility to contradict testimony-Irregularity in-Duty of Coroner-Translation of evidence as given-Effect of.

1. Notes of evidence taken by the coroner at an inquest which do not contain the precise expressions of the witness, but a summary only of the evidence, are not admissible in contradiction of the witness' testimony in a subsequent proceeding unless signed by the witness, or unless read over to and acquiesced in by him.

2. The witness may in such case be cross-examined as to any material statements made by him at the inquest, and witnesses may be called to show that he then made a different and contradictory statement. 3. Depositions of a witness speaking in French taken down by the translator in English at a preliminary inquiry but not read over and explained to the witness or signed by him are not admissible to contradict his testimony on a subsequent proceeding, but the witness may be crossexamined as to material statements then made, and witnesses called to show a contradiction with his former testimony.

MONTREAL, March 9, 1897.

A witness of the name of Frederic Linteau was under examination, and Mr. St. Pierre, Q.C., of counsel for the prisoner, moved that the deposition given by him at the coroner's inquest on the 12th January, 1897, be read for the purpose of showing a contradiction with the evidence which he was then giving.

The deposition was placed in the hands of the judge, and it appeared that it did not contain the witness' own expressions, but that it contained merely notes taken by the coroner of his evidence, that it was not signed by the witness and did not appear to have been read over to him.

WURTELE, J. :—

A witness may be cross-examined as to previous statements made by him in a deposition taken at the preliminary inquiry, and such deposition may be read for the purpose of

establishing a contradiction in the evidence being given by him at the trial with that given by him at the preliminary inquiry; but in such case it should be established that the evidence at such preliminary inquiry has been properly taken down and that the deposition had been read over to him and signed by him, except where the evidence has been taken in shorthand, when it is sufficient that the evidence be authenticated by the affidavit of the stenographer.

In like manner a deposition taken at a coroner's inquest may be used for the purpose of contradiction, but in such case it is necessary that the same formalities should have been observed as when the evidence is taken at a preliminary inquiry before a justice of the peace.

The manner in which depositions should be taken at a coroner's inquest is laid down by Sir John Jervis in his work on the office and duties of Coroners, at page 219 as follows: "It is the duty of the coroner, upon any inquisition whereby any person is charged with murder or manslaughter, to put in writing during the sitting of the court the evidence given to the jury before him, or so much of it as may be material. He should, where possible, follow the precise expressions of the witnesses in the first person; after each witness is examined the coroner should read over to him his information and require him to sign it for the purpose of identification, and the deposition must also be signed by the coroner."

In the present case, the coroner did not take down the words or expressions of the witness, and neither the witness nor the coroner has signed the document which is called a deposition. It is in fact not the witness' deposition, but a statement of the coroner's opinion of what he said.

The witness can be contradicted by his own statement, but not by the recital merely of another person of what he thinks the witness may have said. But the witness may be crossexamined as to any material statements he may have made before the coroner at the inquest, and then witnesses may be examined for the purpose of showing a contradiction.

I rule, therefore, that the deposition produced cannot be read for the purpose of contradicting the witness.

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