It could only affect the right of the 1,099 to recover the price of their interests, viz., by having to resort to equity instead of bringing an action at law. Surely the 1,099 would not be without remedy in case of the sale being on credit.

I agree that "Foster was acting upon his rights as a member of the club, not by reason of any new contract, but under his own contract of association."

What was the contract? Inter alia, "to have liquor supplied to him as a member at a certain price."

The sale was not a sale by Graff alone. It was a sale by the 1,099 of their interests in the liquor pursuant to the contract of association. The club acted by means of the managing committee, and they through Graff, their manager, and he in turn through the barman. The barman was the agent of all the members.

Graff was no more a vendor than the others of the 1,099, and quite as much so. He was no more and no less liable to prosecution than any other of the 1,099. I think the 1,099 were liable to be prosecuted for the sale to Foster, unless the club did not come within the provisions of the Act on other grounds than the transaction not being a sale.

In my view, the transaction was a parting by 1,099 of the members with whatever interest they had in the liquor to Foster, the other member, for a monetary consideration. The result of the transaction was to vest the property so dealt with absolutely in Foster, and to extinguish the interests of all the other co-owners. I fail to see why such a transaction is not a sale. It might not be a sale such as is contemplated by the "Intoxicating Liquor Licensing Act, 1828," but it is such a transaction or sale as was intended to be prohibited by The Canada Temperance Act. I think it falls within not only the spirit but the letter of the Act. I think on this ground, also, the rule should be discharged. Rule discharged.

Notes: Sale of liquor by club.

A pretended club whose manager was the real proprietor

Notes: (Continued.)

and sold liquors to the members would not be exempt from penalties under a license law. Evans v. Hemingway, 52 J.P. 134.

The case of Graff v. Evans, criticized in the principal case, was quoted with approval in Newell v. Hemingway, 1888, 58 L.J.M.C. 46. In the latter case, it was held by Lord Coleridge, C.J., and Manisty, J., that the manager of a club in the form of a limited company, the shareholders of which were the members of the club, was not criminally liable as for a sale of liquors, for he was merely the hand that handed over the liquors to the members of the club by the orders of the directors. In the Lord Chief Justice's opinion, it would be going too far to call that a sale, and constitute an act of this kind a breach of the terms of the Act of Parliament. To supply liquors to other than members at the former's expense is undoubtedly an offence, and it will constitute a "sale" as a matter of law, though the party supplied goes through the form of paying through a member. Stevens v. Wood, 1890, 54 J.P. 742 (Hawkins, J., and Stephen, J.).

[HIGH COURT OF JUSTICE, ONTARIO.]

BEFORE BOYD, C., FERGUSON, J., AND ROBERTSON, J., SITTING AS A DIVISIONAL COURT.

THE QUEEN v. CONLIN.

Theft-Power of police magistrate-Cr. Code 344, 783, 785.

1. Theft from the person is an indictable offence under Criminal Code, sec. 344, although the amount is less than $10, and in consequence the case might have been summarily tried by a magistrate without the prisoner's consent.

2. If in such case the prisoner consents to be tried by a police magistrate having the extended powers of a Court of General Sessions, where such consent is given, he is liable to sentence for the more onerous punishment which the General Sessions might impose in excess of the powers of an ordinary magistrate.

3. The word "theft" in Criminal Code, sec. 783, covers the offence of "stealing from the person." (Per Boyd, C.)

Toronto, November 12, 1897.

Application upon the return of a writ of habeas corpus for the discharge of the prisoner from custody under a warrant of commitment issued by the police magistrate for the City of Hamilton, following a conviction for unlawfully stealing from the person of Mrs. G. A. Rose, one purse containing $3.48 in money.

The material sections of the Criminal Code of Canada, 1892, are as follows:

344. Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who steals any chattel, money or valuable security from the person of another.

783. Whenever any person is charged before a magistrate, (a) With having committed theft, or obtained money or property by false pretences, or unlawfully received stolen property, and the value of the property alleged to have been stolen, obtained, or received, does not in the judgment of the magistrate exceed ten dollars; or

(b) With having attempted to commit theft;

the magistrate may, subject to the provisions hereinafter made, hear and determine the charge in a summary way.

785. If any person is charged, in the Province of Ontario

before a police magistrate or before a stipendiary magistrate in any county, district, or provisional county in such Province, with having committed any offence for which he may be tried at a Court of General Sessions of the Peace, or if any person is committed to a gaol in the county, district or provisional county, under the warrant of any justice of the peace, for trial on a charge of being guilty of any such offence, such person may, with his own consent, be tried before such magistrate, and may, if found guilty, be sentenced by the magistrate to the same punishment as he would have been liable to if he had been tried before the Court of General Sessions of the Peace.

787. In the case of an offence against the person charged under paragraph (a) or (b) of section seven hundred and eighty-three, the magistrate, after hearing the whole case for the prosecution and for the defence, shall, if he finds the charge proved, convict the person charged, and commit him to the common goal or other place of confinement, there to be imprisoned, with or without hard labour, for any term not exceeding six months.

Du Vernet for the prisoner.

J. R. Cartwright, Q.C., Deputy Attorney General, for the Crown.

Judgment was delivered on December 22nd, 1897, as follows:

FERGUSON, J.

The charge against the defendant was stated as follows:"For that the said Frank Conlin, in and at the said city of Hamilton, did on the 22nd day of May, instant, unlawfully steal one purse, containing $3.48 in money, from the person of Mrs. G. A. Rose."

The defendant consented to be tried, and was tried, before the police magistrate of Hamilton. He pleaded "guilty," and was sentenced to three years' imprisonment in the Provincial Penitentiary.

The case now is on the return of a habeas corpus, it being contended on behalf of the defendant that there was

no power to impose on him, for this offence, a sentence in excess of that provided for by sec. 787 of the Criminal Code, namely, imprisonment in the common gaol, with or without hard labour, for a term not exceeding six months.

The contention on the part of the Crown was that the case did not fall under the provisions of sec. 783, but under sec. 344, of the Code, and that the punishment for it might have been as great as fourteen years' imprisonment.

Looking at sec. 783, one sees that the words "larceny from the person" found in clause (a) of sec. 3 of ch. 176, R.S.C., from which this sec. 783 professes to be taken, are not contained in it. These words are left out, and stealing from the person is provided for by sec. 344 of the Code, as this offence was, in conjunction with robbery, provided for by sec. 32 of ch. 164, R.S.C.

By the Revised Statutes of Canada, 1886, "stealing from the person" is thus provided for (or against) by this sec. 32, and "larceny from the person " is provided for by clause (a) of sec. 3 of ch. 176. As it seems to me, the same offence is thus twice provided for.

That there was a broad distinction between " 'larceny " and larceny from the person, seems clear by a reference to Chitty's Criminal Law, vol. 3, p. 942, and the case The King v. Pearce (1810), 2 Leach 1046, as well as Bishop's Criminal Law, sec. 598, all referred to by Mr. Cartwright on the argument. It is said in Chitty's Criminal Law that larceny is aggravated by the fact of the property being taken from the person of the owner.

It appears to me that "stealing from the person may now be understood to fall under what was formerly meant by the expression " aggravated larceny," that is, larceny aggravated by the fact that the property was taken from the person. (There were many other ways in which the offence might be aggravated.)

The fact that "larceny from the person," or "stealing from the person," is omitted and left out of clause (a) of sec. 783 of the Code, leaving the offence specifically provided against by sec. 344 of the Code, seems to indicate, and I