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 1 2 3 
 
 1 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
LIQ 
 
 CHAPTER 
 
 As Ami 
 Ch 
 
 UN ACT RES 
 
 THE KI 
 
 TEMPERANCE 
 
 DECISIONS 
 
 KEEPER 
 
 DUTl 
 
 W 
 
 WIT] 
 
 Judge of the Coum 
 
•rzxs- 
 
 LIQUOR LICENSE ACT 
 
 OF THE 
 
 PROVINCE OF ONTARIO. 
 
 CHAPTER 194 OF THE REVISED STATUTES OF ONTARIO, 
 
 1887. 
 
 As Amended by 51 Victoria, Chapter 30; 52 Victoria, 
 Chapter 41 ; and 53 Victoria, Chapter 56 ; 
 
 and the act passed 54 victoria, 
 intituled 
 
 AN ACT RESFECTINC LOCAL OPTION IN THE MAHER OF 
 
 SELLING r 
 
 A FULL AND CAREFUL ANNOTATION OF THE 
 
 STATUTES RESPECTING / 
 
 THE KEEPING AND SELLING OF INTOXICATING LlQUd^.,' '/V/ 
 
 INCLUDING NOTES OP CASES ON THE 
 
 TEMPERANCE ACT OF 1864; THE CANADA TEMPERANCE ACT, 1878; AND 
 DECISIONS REGARDING THE DUTIES AND LIABILITIES OF INN- 
 KEEPERS AND LICENSE-HOLDERS GENERALLY, AXD THE 
 DUTIES AND POWERS OF ALL OFFICERS CHARGED 
 WITH THE ADMINISTRATION AND ENFORCE- 
 MENT OF THE LICENSING LAWS, 
 
 WITH AN APPENDIX OF FORMS. 
 
 By 
 HIS HONOUR J. 8. SINCLAIR, 
 
 Judge of the County Court of the County of Wentworth, and Local Jtuige of the High 
 
 Court of Justice at Hamilton, 
 
 AND N 
 
 EDWIN ERNEST SEAGER. 
 
 »f V 
 
 HAMILTON : 
 Times Printing Company, Hughson Street North. 
 
 1891. 
 
 \ i)' 
 
 

 .s 
 
 w^ 
 
 Entered according to the Act ol Parliament of Canada, in the year one thousand eight hundred 
 apfi nr'n'ity-onc, by His Hono"'r J. S. Sinclair, Judge of the County Court of the 
 ,' CYui»ly/J(Wentworth. 
 
 , \ 
 
 $ fSSf 
 
TO 
 
 THE Hon. a. S. hardy, q. c, 
 
 O0MMI8SIONCR OF GROWN LANDS OF THf 
 PROVINOC or ONTARIO, 
 
 THIS BOOK 
 18, 
 WITH HIS PERMISSION, 
 RESPECTPULLV INSCRIBED- 
 
 
 '», 
 
 
 \ • 
 
 JV 
 
/ 
 
 In introda 
 sidered that no 
 
 If there b< 
 there exists a li 
 have therefore I 
 a neoessity. I 
 Legislature and 
 has been f raitfi 
 branoh of legit 
 no snbjeot has 
 than that dealii 
 M a matter of 
 neither those ^ 
 should observe j 
 it as it shonid 
 bnt in England 
 
 Upon these 
 iession and pnbl 
 to those who shi 
 No attempt has 
 has been no effc 
 or other oompe 
 mere opinions oi 
 even between the 
 misleading. Ba 
 that the eolation 
 bodied in the Ao 
 
 j aathorities in wj 
 those contained 
 the latest aatho 
 
 I notes to'the Tari( 
 the various qnesi 
 np to date, the ] 
 available. The i 
 intended to reaol 
 its language and 
 
 I those provisions < 
 are to be adminis 
 
PREFACE. 
 
 In introdnoing a work on the liquor lioensing laws of Ontario, it ip oon- 
 sidered that no apology is neoesaary. 
 
 If there be one branch of the law more than another oonoeming which 
 there exists a lack of information, it is that now under consideration ; and I 
 have therefore been convinced foi a very long time that a work such as this was 
 a necessity. The subject is one which has always presented, both to the 
 Legislature and the Courts of Law, many grave difficulties and perplexities, and 
 has been fruitful of litigation in a marked degree. In fact there has been no 
 branch of legislative or judicial practice more complex or troublesome, and 
 no subject has awakene<l greater public interest on the American continent 
 than that dealing with the traffic in intoxicating liquors. Tet it would seem, 
 SB a matter of fact, that neither lawyers nor laymen, Legislators nor Judges, 
 neither those who frame the law nor those who interpret it, neither those who 
 should observe it nor those whose duty it is to enforce it, are able to understand 
 it as it should be understood. This is not the case in this Province alone, 
 but in England and the United States, wherever licensing laws are in force. 
 
 Upon these grounds alone the submission of this work to the legal pro- 
 tossion and public may be amply justified. It is intended to assist in imparting 
 to those who should be familiar with it, a knowledge of what the law really is. 
 No attempt has been made to accomplish the impossible, and therefore there 
 has been no effort at interpretation which is not amply supported by judicial 
 or other competent authority. The editors have refrained from presenting 
 mere opinions of their own, which, judging from the conflict of opinion existing 
 even between the highest authorities, would certainly be useless, and might prove 
 misleading. But it has been considered, where more direct authority is wanting, 
 that the solution of many, if not most of the difficult and doubtful points em- 
 bodied in the Act might be very materially assisted by reference to oases and 
 authorities in which a construction is given to words and phrases similar to 
 those contained in the various clauses of the Statute, and with this in view 
 the latest authorities, British, Canadian, and American, are quoted in the 
 notes to*the various sections. All the latest cases having a direct bearing upon 
 ; the various questions involved are also given. The Canadian cases are given 
 I up to date, the British and American cases up to the date of the latest reports 
 available. The very large class of persons interested in the subject, whom it is 
 I intended to reach, has made it necessary that the work shonld be as simple in 
 its language and as free from all technicalities as possible. The fact, also, that 
 those provisions of the Act upon which its success and efficiency chiefly depend 
 are to be administered by Boards of Commissioners and by Officers appointed 
 
more for their intelligeooe and baeinew oapMity than for any ipeoial knowledge 
 of the robtletiea ol law, baa been kept in view, and the aae of legal phraaeology 
 avoided »s maoh aa posiible. It ia hoped that this eonrse will enable the 
 reader to nnderatand more perfectly than otherwiae a Statute whidh ia 
 onnsaally complex and diffionlt. 
 
 A namber of forms, in addition to those provided for in the Statote, have 
 been added, inolnding forms of proceedings on eertiorari, objections to the 
 granting of licenses, notices nnder the olaases respecting the sale of liqaor to 
 minors, inebriates and others, all of which it is thought will be osefol and 
 which may prevent the failure of many an action on the ground of defective 
 preliminary proccadincs. ; 
 
 The Uw respecting the rights and liabilities of inn-keepera and lodging- 
 house keepers will also be found embodied in the book, as also the caaes under 
 Tm Temperance Act, 1864, and The Oanada Temperance Act, 1878. 
 
 The index has been carefully prepared, and in addition to its other uses, 
 will be found to contain an alphabetical table of the words and phrases, the 
 judicial meaning of which is given throughout the book, so that it forms a 
 tolerably complete legal lexicon. 
 
 Acknowledgments are due to Mr. James Bicknell, Barrister-at-Law, 
 and also to other members of the legal profeaaion for very valuable assistance 
 in the compilation of the work. 
 
 Hamilton, 10th July, 18dl. 
 
TABLE OF CASES. 
 
 Abott »nd Medoalf, in re, 80. 
 Aooldeut Ids. Go. v. Oimndel, 270. 
 Agnew V. Jobaon, 48. 
 Aitoheaon v. Mann, 76, 105. 
 Akera v. Howard, 84. 
 
 " T. United States, 192. 
 AUoook T. Satoliffe, 14 
 Allan V. Liverpool, 186. 
 Allbntt V. Oeneral Medioal Ooanoil, 
 
 227. 
 Allison, in re, 85, 287. 
 AUport V. Natt, 170, 180. 
 Amend v. Morphv, 148. 
 Anchor Marine uia. Go., t. Corbett, 
 
 152. 
 Anoketill t. Bayliss, 186. 
 Anderson, in n, 260. 
 Andrew v. Whiu*, 69, 109. 
 Andrews t. Insuranoe Co., 10. 
 Angus V. MoLaohlan, 174. 
 Ansley t. State, 180. 
 Apothecaries' Co., t. Lotinga, 118. 
 Arscott V, Lilley, 244. 
 Arkell t. Town of St. Thomas, 11, 68, 
 
 68, 126, 220. 
 Armoy v. Fellows, 221. 
 Ashforth v. Bedford, 24. 
 Ash worth v. Heyworth, 118. 
 Astor T. Merritt, 148. 
 Atkinson t. Sellers, 49. 
 
 " V. Bell, 69. 
 Atkyns v. Einnier, 41 
 Atwood T. Bosser, 161. 
 Attenborough t. Thompson, 85. 
 Attwood V. Forest, 148. 
 Attorney-General v. Bailey, 8. 
 
 T. Bowman, 221. 
 V. Oroyden, 28. 
 T. Fitzjohn, 79. 
 ••, V. Home, 47. 
 
 "* V. Bobson, 168. 
 
 " y. Bndlofr, 221. 
 
 <• T. Siddon, 124. 
 
 •' T. StilliTan, 221. 
 
 Attorney-General of Hong Kong t. 
 
 Kwok-a-Sing, 228. 
 Austin V. Davis, 265, 279. 280, 281, 
 
 282, 288. 
 Avards v. Dance, 179. 
 
 « 
 « 
 
 Avery, in re, 208. 
 Aylesford v. Morris, 200. 
 Azemar ▼. Oasella, 117. 
 
 B 
 
 Baker t. Dening, 27. 
 •' ▼. Mun. of Paris, 136. 
 
 Bailey v. Williamson, 58. 
 
 Baird V. Oor. of Almonte, 45. 
 •• ▼. WeUs, 128. 
 
 Bagot ▼. Amott, 180. 
 
 Bandalow ▼. People, 26. 
 
 Bangor (city) t. Bowe, 267. 
 
 Bank of Toronto t. Fanning, 89. 44. 
 
 Barclay ▼. Mun. Council of Darling- 
 ton, 62, 67, 108, 174. 
 
 Barlow v. Terrett, 70. 
 
 Barries v. Akroyd, 177. 
 
 Barrett, in re, 244, 248. 
 
 " V. County Court, 47, 192. 
 
 Barth v. State, 74. 
 
 Bartlett. v. WeUs, 61. 
 
 Bassett v. Godschall, 89. 
 
 Bates, in re, 246. 
 
 Bathard v. London Sewers Gom'rs, 85. 
 
 Bath V. White, 78, 189, 191. 
 
 Baxter v. Hesson, 18. 
 •' V. Langley, 188. 
 " V. State, 199. 
 
 Bayley v. ManohesMr S. A L. By. Go., 
 124, 266. 
 
 Baylis v. Dineley, 64. 
 
 Beckett v. Sutton, 29, 186. 
 
 Bedfordshire Justices v. Bedford, 147. 
 
 Beebe, in re, 248. 
 
 Belasoo v. Hannant, 178, 195. 
 
 Bell v. Oor. of Manvers, 10. 
 
 Bellows V. Sowles, 199. 
 
 Bennett v. Brumfit, 27. 
 
 Benoni v. Backhouse, 214. 
 
 Bent V. Boberts, 114. 
 
 Bentinick (Lord) t. Oonnop, 180. 
 
 Bendall, ex parte. 19. 
 
 Besset, ex parte, 260. 
 
 Bethan t. Gregg, 42. 
 
 Betts T. Armitage, 69. 
 
 Bew V. Harston, 179. 
 
 Bigelow V. Berkshire Life Ina. Co., 270. 
 
 Biggs V. Mitchell, 112. 
 
 Billings V. Ger. of Olonoeater, 82. 
 
 Biscoe T. Jackson, 208. 
 
 
TABLE OF CASES. 
 
 IX. 
 
 Bladai t. LtwranM, 37. 
 BIftir'i 0»M. 180. 
 BlMkbarn t. Ourluid, S80. 
 
 " V. Green, 27. 
 BlaokmoMT. London & S.W. By. Co., 
 
 Sia4. 
 Blaokwell t. EngUnd, 88. 
 Blkke T. Baeoh, 388, 834. 
 Blaufoi V. People, 367. 
 Bloain ▼. Oor. of Quebeo, 9. 
 Blunt T. Heelop, 314. 
 BlythT. UirminghBmWftter Works Co. 
 
 107. 
 Board of Trftde t. Blaok, 1S3. 
 Bobier t. OUy, 371. 
 Bond V. Oonmee, 338, 341, 347, 397. 
 
 " T. Evane, 134, 175. 
 E>nhain'i Oaae, 168. 
 Boon and The Go. of Halton, 837. 
 Borrodaile ▼. Hnnter, 370. 
 Boaley t. Davies, 134, 174, 177, 179. 
 Boston Beer Co. v.Maaaaohontta, 3, 5. 
 Boston Loan Oo. r. Boston, 74. 
 Bott ▼. Aokroyd, 335. 
 Bowie, in re, ex p. Brenll, 88. 
 Bowlby T. Bell, 69. 
 Bowry y. Bennett, 110. 
 Bows T. Fenwiok, 31, 88, 360. 
 Boughner, t. Meyer, 180. 
 Bottlton ▼. Webater, 274. 
 Boylan ▼. City of Toronto, 64. 
 Brnoegirdle ▼. Heald, 14. 
 Bradley v. Baylia, 186. 
 Bradahaw t. Yanghton, 37. 
 Brenan t. Brenan, 63. 
 Brewer v. Shepherd, 183. 
 Brigden t. Heighes, 79. 
 Bridges T. Potts, 98. 
 " T. State 77. 
 Bright T.' City of Toronto, 107, 113, 
 
 220. 
 
 I Bristol Athentenm, in re, 44. 
 Bristol Water Works Oo. v. Uren, 188. 
 iBrookaway t. Mat. Benefit Life Lis. 
 
 Co., 278. 
 iBrookville Eleotion Case,. 186. 
 iBrodie t. Oor. of Bowmanville, 10, 68, 
 
 67, 90, 100, 136, 320. 
 iBrooke t. Hook, 27. 
 IBrophy and the Cor. of Gananoque, 
 
 826. 
 iBrauostein v. Accidental Ins. Co., 90, 
 
 144. 
 |6rown t. Duncan. 110. 
 
 Brown and Wallace, in re, 820, 368. 
 
 Brown v. Wilkinson, 89, 189. 
 
 Bryant v. Beattie, 83. 
 
 Bryant v. Beading, 84, 813, 368. 
 
 Bryson t. Bussell, 888. 
 
 Buckle ▼. Fredericks, 77. 
 
 Buckley t. Hann, 76. 
 
 Buckmaster ▼. Buckmaater, 808. 
 
 Bnnce t. Beed, 14. 
 
 Burdett, in re, 80. 
 
 Burgess t. Boetefeur, 88, 81. 
 
 " ▼. Clementn, 171. 
 Burgh T. Legge. 113. 
 Burnett y. G. N. of Scotland By. Co., 
 
 135. 
 Busby T. Ohesterfleld Water Works 
 
 Co., 188. 
 Butcher y. Bteuart, 118. 
 Byrne y. Arnold, 819, 
 
 c 
 
 Candy y. Hanmore. 164. 
 Canada Tern. Act, The, 818. 
 Canadk Tern. Act, 1878, and Co. 
 
 Perth, in re, 818. 
 Canada Tern. Act, 1878, and Oo. Kent, 
 
 in re, 813. 
 Cannan y. Bryce, 110. 
 Calye's Case, 178. 
 Camp y. Bogers, 89. 
 Carmichael, in re, 348. 
 Carney y. Iowa, 117. 
 Carpenter y. Mason, 803. 
 Carson y. McGregor, 180. 
 Caskill y. Wright, 171. 
 Cattell y. Ireson, 196, 331. 
 Cates y. South, 181. 
 Oayendish y. Cavendish, 44. 
 Cecil's Case, 89, 188. 
 Challand y. Bray, 179. 
 Chamberlain y. King, 48, 828. 
 Chambers y. Smith, 20. 
 Chancy y. Payne, 247. 
 Chapman y. Band, 812. 
 
 " y. Bobinson, 82. 
 Obattillon y. Can. M. Fire Ins. Co., 
 
 89, 44. 
 Chauntler y. Bobinson, 89. 
 Chenie's Case, 29, 138. 
 Chichester y. Cobb, 27. 
 Chisholm y. Doultou, 107. 
 Church, ex parte, 848. 
 City y. Jans, 8. 
 Clark v. Irwin, 88. 
 
 " y. Donnelly, 180. 
 
 " y. St. Mary's, Bury St. Edmund, 
 
 114. 
 Clark Y. Troy, 285. 
 Clarke y. Hague, 130. 
 
 •• y. Torke, 214. 
 Clarkson y. Stirling, 88. 
 Clay y. Tates, 69. 
 Claydon y. Green, 83. 
 
 
 
 mm 
 
 r}h 
 
X. 
 
 tabl£ of cases. 
 
 i/l 
 
 Olehnd ▼. Bobinson, 177. 
 
 Clift v. Sohwabe. 269. 
 
 Gobbet ▼. Slowman. 221. 
 
 Ooe and The Cor. of Piolnriiig, 826. 
 
 Oohen t. Morgan, 238. 
 
 Oolehester v. Eewney, 26. 
 
 Gole ▼. Goolton, 178. 
 
 OoUett T. Dickenson, 64. 
 
 Collier t. Worth, 148 
 
 Combined Weighing Co., in re, 81. 
 
 Oommeroial Bank y. Watmn, 80. 
 
 Commonwealth t. Briant, 111, 174, 
 
 188. 
 Commonwealth ▼. Davis, 168. 
 
 " V. Harris, 199. 
 
 *' T. Harrison, 147. 
 
 '• v. Kimball, 77. 
 
 •• T. LatluTiUe, 281. 
 
 " ▼. Leeds. 127. 
 
 '* T. Lookwood. 24. 
 
 •« V. BamsdeU, 121. 
 
 •< T. Bioe, 148. 
 
 " T. Smith, 168. 
 
 Oonmee t. 0. P. By. Co., 213. 
 Oonneotioat Mot. Life Ins. Co. r. 
 
 Groom, 270. 
 Connolly, »n re, 269. 
 Cook V. Hamber, 89. 
 Cooke T. New Biver Co., 68, 183. 
 Goolidge t. Ghoate, 148. 
 Coombs V. Cook, 118. 
 Cooper. ▼. Osborne, 179. 
 Cooper T. State, 168. 
 Cooper Man. Co. y. Fergnsou, 77. 
 Gorbett v. Haigh, 128. 
 Cor. of St. Yinoent y. Orier, 166. 
 Cor. of Three Bivers y. Suite, 2. 
 Gomwall y. The Queen. 286. 
 Costar y. Hetherington, 266. 
 Cotter y. Kiohardson, 87. 
 Conlbert y. Troke, 49. 
 Ooulton y. Ambler, 70. 
 Cowan y. O'Connor, 214. 
 Cowles y. Kiohardson, 87. 
 Cox y. James, 177. 
 " y. Troy, 27. 
 Crabtree y. Hole, 179. 
 0>-ake y. Powell, 8. 
 Crawford y. Beattie, 288. 
 Orepps y. Durddn, 182. 
 Oroft and the Town of Peterboro*, 22. 
 Croft's Gase, 161. 
 Gronyn y. Widder, 180. 
 '* y. Orifaths, 180. 
 Croome y. Mun. Council of Brantford, 
 
 68, 67 
 Cross and Watts, in re, 78, 115, 209, 
 
 227. 
 Orowther y. Thorl«y, 76. 
 
 Crozier ▼. Taylor, 20. 
 
 C/.niekshank y. Corby, 87. 
 
 Candy y. Le Coeq, 48, 69, 124, 176, 
 
 269. 
 Onnningham y. Oor. of Almonte, 64, 
 
 91. 
 Guitis, ex parUt 268. 
 Curtis y. Marsh, 182. 
 Curtis y. PhiUips, 71. 
 
 D 
 
 Dalziel y. O. T. By. Co., 166. 
 Danfield y. Taylor, 179. 
 Daniel y. Coulsting, 112. 
 
 " y. Whitfield. 69. 
 Daniels y. Mun. of Burford, 166. 
 Danjon y. Marquis, 80. 
 Dansey y. Bichardson, 6, 174. 
 Dayiea y. Goodman, 80. 
 
 '• y. Haryey, 186. 
 
 " y. Hopkins, 78. 
 
 " y. Bees, 80. 
 Day y. B&ther, 172. 
 Day and The Cor. of Storrington, 826. 
 Deakin y. Lane, 64. 
 Deal y. Sohofield. 78. 116. 
 De Beauyior y. Welch, 257. 
 Denny y. Montreal Telegraph Co., 283. 
 Derry y. Peek, 209. 
 De St. Aubyn y. Lafranee, 2. 
 Dickinson, in re, ex p. Bosenthal, 80. 
 Dickinson y. North Eastern By. Co., 
 
 277. 
 Dicker y. Angerstein, 268. 
 Digge y. Higgs, 180. 
 Dillon y. Cunningham, 64. 
 Dimes y. Grand Junction Canal Co., 
 
 80. 
 Dixon y. Walker, 106. 
 Dobie y. Temporalities Board, 2. 
 Doe y. Laming, 6. 
 Dodd y. MiddletoQ, 226. 
 Dodds y. Shepherd, 212. 
 Dominion Bank y. Cowan, 88. 
 Donnelly y. Cor. of Clarke, 90. 
 Uoty y. Lawson, 182. 
 Dow V. Gould Mining Co., 89. 
 Doyle y. Walker, 170. 
 Drake's Case, 40. 
 Drope y. Cor. of Hamilton, 91. 
 Dniitt y. Christ Church. 266. 
 Duck V. Bates. 96, 99, 87, 169, 185. 
 Durham By. Go. y. Walker, 107. 
 Dyson y. Mason, 179. 
 
 Eastabn 
 
 Co., 2; 
 
 East Dei 
 
 Easton's 
 
 East Pet( 
 
 East Sim 
 
 Ea8twoo<] 
 
 Edinboro 
 
 Edington 
 
 Eggiogtoi 
 
 ^ggiagtoi 
 
 Eglington 
 
 Einstein v 
 
 Elderton v 
 
 Election 
 
 Elliott y. f. 
 
 Elsee y. Si 
 
 Emeiy y. i 
 
 Eriehsen y, 
 
 Etheriagtoi 
 
 Eureka Yin 
 
 ing Co., j 
 
 Evans y. Pi 
 
 Ey«ton, exi 
 
 l^roderiotony.i 
 jFronteDac (LiJ 
 Erontenac, , 
 
TABLE OF CASES. 
 
 XI. 
 
 E 
 
 Eastabrook t. Union Mat. Life Ins. i 
 Co., 370. 
 
 East Dean ▼. Eyerett, 68. 
 
 Easton'e Oase, 2. 
 
 East Peterboro' Eleetion Oaee, 185. 
 
 East Simcoe Eleotion Oaee, 186. 
 
 Eastwood T. Miller, 360. 
 
 Edinboroagh t. Oanterborongh, 28. 
 
 Edington ▼. Mat. Life Ina. Co., 228. 
 
 Eggington, tx partem 221. 
 
 Eggington t. Liohfield, 86. 
 
 Eglington t. Norman, 87. 
 
 Einstein t. Marshall, 209. 
 
 Elderton t. Emmens, 278, 
 
 Eleotion Oaeee, 186. 
 
 Elliott T. Sonth Devon By. Oo., 224. 
 
 Elsee T. Smith, 293. 
 
 Emery ▼. Bioharda, 180. 
 
 Eriobsen t. Last, 76. 
 
 Etherington ▼. Wilaon, 120. 
 
 Eureka Vinegar Oo. t. Qaaetta Print- 
 ing Go., 8. 
 
 Evane ▼. Pratt, 179. 
 
 Eyaton, «« parte, 214, 174. 
 
 F 
 
 Fairolongh t. Boberts, 78. 
 
 Fall Biver Lron Works v. Old Oolony, 
 
 etc., By. Oo., 47. 
 Farqohar, in re, 186. 
 Fearon ▼. Mitohell, 118. 
 FeU T. Knight, 169, 170, 277. 
 Fetter t. Seal, 214. 
 Finoh T. Blandell, 129, 182. 
 Fisher r. Bridges, 180. 
 
 " T. Howard. 49. 
 
 *' T. Mowbray, 64. 
 Fitzgerald t. MoEinley, 820. 
 Flannigan v. MeMabon, 19. 
 Fleetwood t. Hall, 82. 
 Fleming t. Maddox, 257. 
 Flemying t. Heetor, 122. 
 Fletcher v. Hndson, 202. 
 Foggassa's Oase, 163. 
 Folkard t. Metropolitan By. Oo., 208. 
 Fore T. Hibbard, 148. 
 Forwood ▼. Watney, 88. 
 Foster t. Diphwys Oasson Go., 112. 
 
 " ▼. Kansas, 2. 
 I Foster's Oase, 28. 
 Eraser and Esoott, <n re, 199. 
 Freeman t. Appleyard, 69. 
 
 " ▼. Bead, 214. 
 IFredericton t. The Qaeen, 2, 96. 
 iFrontenac (License Oom'rs) t. Oo. of 
 
 Frontenao, 802, 808, 804. 80S. 
 
 Fry T. Lane, 209. 
 Falton T. James, 180. 
 Foxber t. Oobb, 81. 
 
 G 
 
 Qalemo ▼. Township of Bochester, 
 192 
 
 Oalligar y. Payne, 61. 
 
 Oalloway t. Maries, 21, 260. 
 
 Oamble t. Bnmside, 42. 
 
 Gatheroole t. Smith, 81. 
 
 Oatty T. Field, 180. 
 
 Oemmell t. Garland, 237, 264. 
 
 OibsoB T. Oor. of Bmce, 63. 
 
 Oiiford t. Man. of Darlington, 62, 67. 
 
 Gilehrist ▼. Tobin, 89. 
 
 GiUv. Bright, 114, 294. 
 
 Gilmore ▼. Lookhart, 102. 
 
 Gladstone t. Padwick, 86. 
 
 Glass' Appeal, 26. 
 
 Gleason t. Williams, 272, 279. 
 
 Godefroy v. Jay, 274. 
 
 Goggs ▼. Lord Hnntingtower, 29. 
 
 Golding T. Wharton, 202. 
 
 Ckwdeve t. Manners, 180. > 
 
 Goodman t. Robinson, 129. 
 
 Gtoodland ▼. Ayseoogh, 272. 
 
 Gordon ▼. State, 261. ' 
 
 Gorstorf t. State, 4. 
 
 Gtorsaoh t. Butherford, 119. 
 
 Gtovemors of Bedford Lifirmary y. Bed- 
 ford, 147. 
 
 Graff y. Eyans. 128. 
 
 Grafton y. Armitage, 69. 
 
 Graham y. Lee, 199. 
 " y. Lewis, 146. 
 " y. MeArthnr, 827, 349. 
 
 Grand v. Oor. of Gaelph, 91. 
 
 Gregory y. 'faffs, 108. 
 
 ' < y . United States, 48, 164, 182. 
 
 Green, in re, 86, 210. 
 " y. Edwards, 87. 
 " y. Penzance, 36, 210. 
 
 Greenhoase y. Ohild, 88. 
 
 Greenslade y. Tappsoott, 44. 
 
 Grey y. Bendino, 178. 
 
 Greystock y. Man. of Otonabee, 62, 
 66, 67, 126, 168, 174. 
 
 Grill y. General Screw Oollier Oo., 298. 
 
 Grimbly y. Aykroyd, 214. 
 
 Grogan y. London, et'., Ins. Oo., 29. 
 
 Gamey y. Atlantic, etc.. By. Oo., 116, 
 278. 
 
 H 
 Hadfleld's Case, 266. 
 
 !** * 
 
 Ha 
 
xu. 
 
 TABLE OF CASES. 
 
 II' 
 
 Haigh T. Sheffield (Town Ooonoil), 
 
 24, 260. 
 Haines t. Welch, 104. 
 Hall T. Ewin, 114. 
 
 " V. May, 80. 
 Hallen v. bunder, 69. 
 Halligan t. Ganley; 24, 62, 180. 
 Hamilton t. Grainger, 284, 
 " V. State, 6. 
 '• and the Go. of Brant, 827. 
 Hamilton and North W. By. Co., tn 
 
 re, 2. 
 Hanoook Mat. Life Ins. Oo. v. Moore, 
 
 270 
 Hanns t. Johnston, 281. 
 Hare v. Osborne, 137. 
 Harris t. Amery, 76. 
 
 '* T. Jenns, 8. 
 Harrison v. Leaper, 117. 
 Hardy v. Bern, 75. 
 Hartley and the Gor. of Emily, 826. 
 Haskins v. Newoombe, 199. 
 Hatton's Case, 165. 
 Haven t. Hilliard, ?21. 
 Hawes v. Humphrey, 221. 
 Hay T. Justices of Tower Division, 24. 
 Hayden v. Tiverton, 256. 
 Hearne v. Oarton, 221. 
 Hemming v. Willetts, 87. 
 Henry v. Armitage, 35. 
 Herman v. Seneschal, 48, 223. 
 Hereford Gase (B. v. Jones), 148. 
 Hersee v. White, 88. 
 Heseltiue v. Siggers, 69. 
 Heyworth v. Hutchinson, 117. 
 Highway Oommissioners v. Ely, 298. 
 Hill V. Hill, 163. 
 Hirst V. Moleabury, 87. 
 Hittinger v. Westford, 74. 
 Hoad V. Grace, 185. 
 Hobba V. Midland By. Co., 192. 
 Hobson V. Middleton, 114. 
 Hodgson V. Temple, 110, 284. 
 Hodge T. The Queen, 1, 7, 9, 12, 16, 
 
 284. 
 Hogan V. Sterritt, 130. 
 Hogg V. Jones, 256. 
 HoUoway, ex parte, 226. 
 Holmes V. Meynell, 78. 
 Holt V. CoUyer, 6. 
 Hood V. Franklin, 119. ' 
 Hoole V. Smith, 80. 
 Hooper v. Kenshole, 1 18. 
 Hopkins v. Provincial Ins. Co., 39. 
 
 do V. Swansea (Mayor of), 62. 
 How 7. Whitfield, 80. 
 Howard v. Clarke, 289. 
 Howarth v. Minns, 68. 
 Howes ▼. Inland B«venae, 97, 182. 
 
 Hoyles ▼. Blore, 87. 
 
 Qudson V. Township of South Nor- 
 
 wicb, 94. 
 Hudson Iron Co. v. Alger, 149. 
 Huffman v. Walterhonse, 20. 
 Huflmans v. Walker, 288. 
 Hughes v. Buokland, 48, 228. 
 HngiU V. Merrifield, 124, 134, 266, 281. 
 Humb!9 V. MUohell, 69. 
 Hu-<t V. MoArthur, 218. 
 Hun.er v. Gilkison, 244. 
 
 " T. Lander, 184. 
 Huntley v. Lusoombe, 221. 
 Hutchinson v. Lowndes, 221. 
 Hutton V. Waterloo Life Ins. Co., 279. 
 
 Ings V. Loudon & S. W. By. Co., 104. 
 International Financial Society v. 
 
 Moscow Gas Go., 86. 
 Irwell V. Eden, 185. 
 
 Jackson v. Easael, 39. 
 
 •' T. Spittal, 214. 
 James v. State, 4. 
 
 " V. Vane, 106. 
 Jefferson v. Biohardson, 132. 
 Jeffreys v. London West, 94. 
 Jenkins v. Cor. of Elgin, 82. 
 Jenks v. Tcrpin, 180, 178. 
 Jephson v. Barker, 23, 169. 
 Johnson v. Fenner, 148. 
 " v. Harris, 106. 
 " and the Co. of Lambton, 329. 
 Jolly V. Hancock, 85. 
 Jonas v. Gilbert, 8. 
 Jones V. Bone, 78. 
 
 " T. Heavens, 163. 
 
 " V. Whittaker, 63. 
 Joseph V. Miller, 179. 
 Judge V. Selmes, 48, 223, 
 Julius V. Oxford (Bishop of), 8, 68, 
 
 196, 202. 
 
 K 
 
 Eean^i v. Steadman, 34. 
 Eeefe v. Maclennan, 3. 
 Keeling, in re, ex p. Blanchet, 129. 
 Kelly V. Earl, 110. 
 Kensington v. Mansell, 80. 
 Kenyon V. Eastwood, 87. 
 King V. Burrell, 107. 
 
 " V. England, 69. 
 
 •• V. Montana, 180. 
 
TABLE OF CASES. 
 
 xiii. 
 
 King V. State, 4. 
 
 Kirkbride v. Lnfsyett Oo., 108. 
 
 Kitohing v. Croft, 288. 
 
 Kitson V. Ann Arbor (Mayor of), 118. 
 
 Km>kerbooker Life mn. Oo. v. Foley, 
 
 •2 J. 
 Knight T. Barber, 70. 
 
 Lake and Blakeley, 827. 
 
 Lake and the Cor. of Prince Edward, 
 
 266, 826. 827. 
 Lalonde, ex parte, 848. 
 Lambe, ex parte, 265. 
 Landaff v. London, 118. 
 Langiey v. Bamatead, 26. ^ 
 
 Latham v. Barber, 69. 
 Lawrence v. Fnlton, 257. 
 Iiawrie V. Lee, 87, 61. 
 Lawson v. Oaskill, 69. 
 " V. Laidlaw, 64. 
 <• V. State, 146. 
 " V. Wallasey, 162. 
 Lea V. Faoey. 48, 228. 
 Leader v. Yell, 18. 
 Leah v. Minns, 68. 
 Leary v. Patrick, 160. 
 Lee V. Qansel, 28, 169. 
 " V. Oaskell, 69. 
 •' V. Griffin, 69. 
 
 Leeds and GrenviUe v. Brookville, 824. 
 Leeson v. License Gomrs. of Doflerin, 
 
 8, 11, 18, 81, 88, 89. 
 Leeson v. General Medical Ooanoil, 
 
 289. 
 
 Lennox Election Case, 186. 
 i Lester v. f orrens, 4, 87, 186. 
 I Le Taileur v. tJoath Eastern By. Co., 
 
 76. 
 
 I Lethbridge v. Lethbridge, 87. 
 Lewis V. Graham, 76. 
 I Levy, in re, 80, 166. 
 1 License Comrs. of Frontenac v. Oo. 
 
 of Frontenac, 802, 808. 815. 
 I License Comrs. of North Norfolk v. 
 
 Co. of Norfolk, 802, 806, 826. 
 iLimpas v. London Gon'l OmnibuB 
 
 Co., 124. 
 iLinooin Election Case, 186. 
 JLion the, re. 49. 
 JLiqnor License Act, 1888, in re, 2, 16, 
 
 17. 
 
 iLister v. Lobley, 89. 
 ■Livingston, in re, 222. 
 |Lloyd V. Ingleby, 118. 
 Liock V. Selwood. 226, 287. 
 [iondon Election Case, 186. 
 
 London and Sabtirban Land Oo. v. 
 Field, 6. 
 
 London and B. W. By. Oo. v. Black- 
 more, 192, 224. 
 
 Lowe V. Fox, 81 
 
 Loyd V. Clark l>^a 
 
 Lncas and MoGlashan, in re, 221. 
 
 Lndwick v. Commonwealth, 279. 
 
 Lnfl and Leaper, 179. 
 
 Lynar v. Mossap, 171. 
 
 Lynch v. People, 181. 
 
 Lyne v. Leonard, 121. 
 
 Lyon V. Morris, 84, 212, 263. 
 
 M 
 
 !iacbt>th y. Ashley, 9, 48. 
 
 Mace and The County of Frontenac, 
 
 826. 
 Mahone t. Mahone, 278. 
 Maillard t. Argyle, 288. 
 Malcolm t. Township of Oakland, 94. 
 Mallet V. Hauiey, 81. 
 Malone and The County of Grey, 826. 
 Manhattan Life Ins. Ou. v.Brooghton, 
 
 270. 
 Mania v. State, 192. 
 Manner J t. Johnson, 113. 
 Manning, tn re, 88. ^ 
 
 Marks ▼. Benjamin, 24, 189, 147. 
 Marshall v. Fox, 178, 197. 
 •• V. Piatt, 180. 
 " T. Biohardson, 121. 
 Martelli t. Holloway, 81. 
 Martin, in re, 202. 
 Martin ▼. Hewson, 180. 
 •« V. Pridgeon, 288. 
 Mary Celeste, tn re. The, 80. 
 Maryland ▼. Baltimore, 80. 
 Masters, <n re, 222. 
 Massey t. Sladen, 265. 
 Matthews, ex parte, 848. 
 Maw T. Handmarsh. 82. 
 Mayhew t. Locke, 222. 
 
 " ▼. Wardley, 183. 
 Mears v. Hambolt Ins. Oo., 3. 
 Meohiam t. Home, 297, 820, 822, 823. 
 Metcalf, re, 312. 
 Mewbnm t. Street, 180. 
 Midland By. Co. t. Whithington, 48, 
 
 228. 
 Miles V. Boe, 202. 
 
 Miles and The Cor. of Bichmond, 326 . 
 Miller t. Cor. of Frederioksbarg, 272. 
 Mills T. Brown, 127. 
 
 '• T. Perkins. 118. 
 Milton-next>Sittingbome t. Faver- 
 
 Bham, 224. 
 
 f 
 
 
 < 
 
 
 1 1 
 ^ •*■■ 
 
 ,■■< 
 
 I'i I ! 
 
XIV. 
 
 TABLE OF CASES. 
 
 Minneapolis, etc., By. Co. t. Beok- 
 with, 9. 
 
 Mitchell V. Darley Main Cjlliety Co., 
 214. 
 " T. Foster, 213, 298. 
 
 Modlin T. Snowball, 8^. 
 
 Mody T. Oregson, IIB. 
 
 Molson V. Lambe, 328. 
 
 Monaghan t. Taylor, 154. 
 
 Monok T. Hilton, 148. 
 
 Morden t. Porter, 221. 
 
 Morewood v. Hollister,- 2fii. 
 
 Morgan t. Bavey, 169, 171. 
 •• V. Seaward, 78. 
 
 Morrish v. Harris, 112. 
 
 Morrison, e» parte, 848. 
 
 Morton v. Palmer, 186. 
 
 Moss T. Townsend, 178. 
 
 Mottashed and The Go. of Prince Ed- 
 ward, 327. 
 
 Moulson re, ex parte Knightly, 88. 
 
 Monflet V. Cole, 41. 
 
 Mountoaehel t. O'Neill, 287. 
 
 Mowry ▼. Home Life Ins. Co., 279. 
 
 Mair v. Eeay, 97, 182. 
 
 Mulligan v. Cook, 84. 
 
 Malliner v. Florence, 178. 
 
 Mollins V. Collins, 48, 69, 175. 
 
 Mnrphy v. Climie, 288. 
 
 Mnrray v. Thomiley, 266. 
 
 Mat. Benefit Life Ins. Co. v. Holter- 
 hoff, 279. 
 
 Mc • 
 
 MoAlpine and the Township of Eap- 
 
 hemia, 126. 
 MoAvoy V. Mun. of Samia, 82. 
 MoCala v. State, 289. 
 MoGall, in re, 827. 
 McCrae v. Waterloo Mat. Fire Ins. 
 
 Co. 28. 
 MoOardy v. Swift, 269, 272, 278, 274. 
 McDoagall v. Qiacomini, 118. 
 " T. McMillan, 89. 
 " V. Patterson, 8. 
 
 MoQlinohy v. Winohell, 284. 
 MoOrath, in re, 29. 
 McGaire v. Massnohasettb, 117. 
 McHole ▼. Davies, 118. 
 Molntee t. McCuUongh, 145. 
 McKay t. Brown, 19. 
 McKinnell t. Bobinson, 180. 
 McKenzie t. Brandon, 267. 
 McLaren t. Caldwell, 102. 
 McLean t. Dann, 115. 
 
 " T. G. W. By. Co., 165. 
 
 " T. Pinkerton, 92. 
 
 " and The Cor. of Brace, 826. 
 
 MoLellan v. McKimion, 284, 240, 246. 
 McNeills y. Gartshore, 288. 
 MoBossie v. Provincial Ins. Co., 168. 
 
 N 
 
 Naef T. Matter, 88. 
 
 Neilly t. Cor. of Owen Soand, 68, 90, 
 
 184. 
 Neilson t. Jarris, 87, 61. 
 Nevin t. Ladae, 2. 
 Newoombe t. .^derson, 170. 
 Newell T. Hemingway, 128. 
 Newman t. Bendshye, 181, 284. 
 " V. Hardwick (Earl of), 131. 
 <• T. Jones, 124, 176, 266. 
 Newport Bridge, in re, 196. 
 Nichol T. Godts, 117. 
 Nicholson t. Phceniz Ins. Co., 69. 
 Nixon T. Nanney, 236. 
 Norfolk (License Com'rs of) v. Oo. of 
 
 Norfolk, 302, 806. 
 Norris ▼. Staps, 10. 
 Northcote t. Branker, 4, 287, 264, 279, 
 
 280. 
 North Grey Election Case, 186. 
 
 " Ontario •' •• 186. 
 
 " Victoria •' " 186. 
 
 " Wentworth " " 186. 
 North Vernon t. Voegler, 278. 
 Northwick ▼. St. Pancras, 279. 
 North York Election Case, 186. 
 Nozon T. Holmes, 214. 
 
 o 
 
 O'Dea ▼. Hickman, 48. 
 
 O'NeU and the Co. of Oxford, 827. 
 
 Oliver v. Hyman, 120. 
 
 •• V. White, 148. 
 Olmstead v. New Tork (Mayor of), 288. 
 Oppenheim v. White Lion, 171. 
 Ormerod v. Todmorden Co., 29, 45, 
 
 Orme's Case, 256. 
 Osborne v. Millman, 160. 
 Ovenden v. Raymond, 137. 
 
 Pain V. Bronghtwood, 48. 
 Palin T. Beid, 171. 
 Pallesier ▼. Oamey, 64. 
 Palmer v. Newell, 166. 
 Parker, in rf, 148. 
 Parker v. Green, 178. 196, 221, 260. 
 '« T. Pahner, 117. 
 
TABLE OF CASES. 
 
 XV. 
 
 Paraona t. Alexander, 179, 180. 
 
 " y. Orabbe, 161. 
 Faslay ▼• Freeman, 289. 
 Fatten t. Bhymer, 178. 
 Patterson v. State, 108. 
 Paulin V. Oor. of Qaebec, 2, 127. 
 Paynter t. Jamea, 208. 
 Peaohe t. Ooleman, 49. 
 Pearoe v. Brooka, 110, 180. 
 
 " V. Oom., 6. 
 
 " V. GiU, 181. 
 Peek T. Shielda, 221. 
 People V. Orilly, 2. 
 
 •' T. Dikeman, 22. 
 
 " ▼. Morria, 82. 
 
 " V. Sharpe, 196. 
 Peplow T. Biobardaon, 49. 
 Petheriok v. Salrgent, 125. 
 Peverelly v. People, 192. 
 Pharmaoentioal Soe'y y. London & 
 
 Prov'l Asa'n, 108. 
 Fhillipa, in re, 208. 
 
 '• y. Hewaon, 186. 
 Phillpota y. Phillpota, 80. 
 Phitpot T. Jonea, 104. 
 Phoenix Ina. Go. y. Baddin, 149. 
 Pigg T. Clarke, 61. 
 Pine y. Barnea, 128, 187. 
 Pizer y. Fraaer, 28. 
 Poooek y. Gilham, 118. 
 Pope V. Whally, 118. 
 Tortland Bank y. Apthorp, 71. 
 Pots y. Jindera, 162. 
 Poulette y, Hood, 44. 
 Powell y. Farmer, 112. 
 
 " y. Howell, 78. 
 
 Power y. Cannifl, 180. 
 
 i Pownall y. Dawaon, 112. 
 
 Piassia y. Qaenther, 4. 
 
 Pryor y. City Officea Co., 226. 
 
 I PnrkisB y. Hnxtable, 178, 266. 
 
 R 
 
 iBaey. McDonald, 88. 
 [Railway Sleepera Supply Co., in re, 21. 
 IBandy. Green, 281. 
 I Ban y. People, 8. 
 1 y. Brown, 214. 
 y. Bead, 87. 
 iBedfield y. Utioa, eto.. By. Co., 267. 
 IfiedKate y, Haynea, 124, 177, 179. 
 iBeeye v. Wood, 221. 
 |Reid y. Lanoaater Fire Ina. Go., 26. 
 
 " y. MoWhinnie, 69. 110, 160, 282, 
 
 286,264. 
 
 espnbliea y. Shaffer, 289. 
 
 eynolda y. Aooident Ina. Co., 271. 
 
 Beobottom and the Ooontiea of Nor- 
 thumberland A D., 826. 
 Bicharda y. Bioharda, 279. 
 Biobardaon y. Buawell, 148. 
 " y. Banaom, 802. 
 " y. Police Com'ra of Toronto, 
 91. 
 Bidgway y. Ward, 69. 
 Biohmond y. Tegart, 166. 
 Biokart- . People, 158. 
 Biley to Streatfield, in re, 298. 
 Bitchie y. Smith, 110, 284. 
 Boberta y. Brett, 81, 265. 
 
 " y. Climie, 288. 
 
 " y. Humphreya. 187. 
 
 " y. Orchard, 48, 223. 
 
 •' y. Watkina, 32, 119. 
 Bobinaon y. Brigga, 44. 
 •' y. Cliff. 69. 
 " y. Waddington, 214. 
 Boohford y. Bynd, 48. 
 Boffeey. Bent, 114. 
 Bogera y. Jonea, 289. 
 Bolea y. Boaewdl, 76. 
 Boaa, in re, 248. 
 " y. Oor. of Tork and Peel. 10, 
 108, 126. 
 Boaa y. Heathoook, 76. 
 Bosae y. Bramatead, 173. 
 Boyal Canadian Bank y. Q. T. By. 
 
 Co., 27. 
 Buddiok y. Juatioea of Liyerpool, 30. 
 Bumball y. Munt. 192. 
 Buaaell Election Gaae. 136. 
 Bnaaell y. Smith, 26. 
 
 <* y. The Queen. 96, 302. 
 Bnston y. Tobin, 202. 
 B^er and Plowa, in re, 241. 
 B. y. Aekroyd, 227. 
 
 V. Adama. 246. 
 
 V. Adamaon. 212. 
 
 V. Aloook. 216. 
 
 V. Alexander. 319, 324. 
 
 y. AUbright, 111, 164, 200. 232. 
 240. 241. 
 
 y. Allen. 160, 216. 
 
 y. Ambroae. 114, 167, 813, 318, 
 826, 849. 
 
 y. Andrews, 146. 
 
 V. Annandale Juatioea, 40. 
 
 y. Arkwright, 83. 208. 
 
 V. Aahton. 178, 179. 
 
 y. Atkinaon,321. 
 
 V. Auatin, 214. 
 
 V. Bachelor, 219, 321. 
 
 V. Budger, 202. 
 
 y. Barber Snrgeona, 10. 
 
 V. Barnea 176. 
 
 V. Banrett, 24, 62, 130, 176. 
 
 'iiMu 
 
 
XVI. 
 
 ■^ABLE OF CASES. 
 
 i 
 
 B. V. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 V. 
 T. 
 
 ▼. 
 
 V. 
 
 y. 
 
 T. 
 
 ▼. 
 
 T. 
 
 ▼. 
 
 V. 
 V. 
 
 ▼. 
 ▼. 
 
 V. 
 V. 
 
 Barton, 168. 
 
 Beard, 8, 4, 849. 
 
 Belmont, 10, 126. 
 
 Bembridge, 161. 
 
 Bennett, 984, 288, 242, 818,821. 
 
 Birmingham Jnatioea, 19. 
 
 Bipliop of London, 202. 
 
 " Oxford, 97. 
 Blaok, 2, 129, 168, 160, 228, 
 
 240, 248. 
 Blakeley, 174. 
 B'aney, 221. 
 
 Boi».^man, 2, 164, 200. 221. 
 Bolton, 848. 
 Booth, 19. 79, 81, 82. 
 Borron, 161. 
 Bradford, 820, 849. 
 Brady, 160, 161, 226, 228, 286, 
 
 261, 267, 294, 816, 819, 849. 
 Braintree Union, 166. 
 Breen. 114, 160, 232. 
 Briokhall, 288. 
 Bridgenorth, 80. 
 Brooks, 214. 
 Brown, 817, 819, 820. 
 Burah, 2. 
 Bnmside, 41. 
 
 Cambridge (Recorder of), 216. 
 Cameron, 69, 820. 
 Campbell, 110. 157, 266. 
 Gantillon, 226, 228, 284. 
 Carroll, 274. 
 Cavanagh. 125, 127, 180, 160, 
 
 167, 232, 288. 
 Chandler, 160, 918, 234. 
 Chapman, 118, 216. 
 Charlton, 286. 
 Ohayter, 70. 
 Cheeseman, 199. 
 Cheltenham CommiBBionerfl,215. 
 Cheshire Jnatioes, 35, 263. 
 Clarence, 146. 
 Clark, 817. 321. 
 Clarke. 161, 163, 226, 283, 288, 
 
 I- 
 
 V. Clennan, 160, 284. 
 
 V. Cleworth, 182. 
 
 y. Clnff, 247. 
 
 y. Gookbnm, 89. 
 
 V. Collins. 289. 817, 824. 
 
 y. Connolly, 127. 
 
 y. Conway, 82. 
 
 y. Cook, 24. 
 
 y. Cottle, 224. 
 
 y. County of Wellington, 2. 
 
 y. Cowper, 78. 
 
 y. Cridland, 287. 
 
 y. Cnsp, 214. 
 
 y. Crofts. 110, 227. 
 
 B. y. Croydon Tramway Co., 128. 
 y. Craae, 274. 
 y. Cathbert 2. 
 y. Daly, 269, 812, 8x6. 
 y. Daggett, 49. 
 y. Deane, 89. 
 
 y. Denham, 6, 74, 118, 160. 
 y. De BntBtm. 19. 
 y. Dobbins, 291. 
 y. Dobson, 169. 
 y. Doty, 8i. 
 y. Dowling, 246, 349. 
 y. Downes, 296. 
 y. Doyle, 261, 292. 293, 294, 316, 
 
 820. 
 y. Dunning, 240. 
 y. Daqaette, 111, 126. 
 y. Dnrnion, 814, 817, 826. 
 y. Eales, SO. 
 y. Bayes, 264. 
 y. Edgar, 242, 818. 
 y. Ectorandson, 74. 
 V. EU, 217, 286, 819, 823. 
 V. EUiott, 225, 262, 816, 320, 349. 
 y. Elwell, 284. 
 V. Ely Jastioes. 89. 
 y. Ely (Isle of). 226. 
 V. Essery, 264. 
 V. Ezcell, 111. 
 V. Farqnhar. 80. 
 y. Farrant. 216. 
 V. Faolkner. 6, 74, .60. 
 V. Fee, 127, 259, 816. 
 y. Ferguson, 160. 
 V. Ferris, 161, 283, 819. 
 V. Firmin, 218. 
 v. Fisher, 224. 
 V. Fletcher, 238. 
 V. Flory, 54. 234. 
 V. Frauley, ill, 164. 
 V. Freeman, 118, 242. 
 V. French, 123, 129, 160, 162, 227, 
 
 229, 282, 824. 
 y. Garland, 228. 
 V. Qarrett, 121. 
 y. Gaunt, 23, 169. 
 V. Glamorgan, 113. 
 y. Good, 161, 819. 
 V. Gordon, 216, 268. 
 V. Ctoulais, 317. 
 y. Grainger, 238, 246. 
 y. Grant, 161, 288, 969. 
 V. Great Yarmouth Justices, 215. 
 V. HaU, 49, 234, 319, 324, 825. 
 V. Halpin, 127, 259, 816. 
 V. Hammond, 216. 
 V. Hanley, 177. 
 y. Handsley, 216. 
 y. Hanley Justices, 19. 
 
 V. '• 
 
 V. •• 
 
 V. «« 
 
 V. Klemp, 214, 
 
TABLE OF CASES. 
 
 XVll. 
 
 
 B. V. Harris, 40. 
 
 V. Hartley, 198, 226, 282, 284, 287, 
 
 241, 251. 
 V. Hasleharat, 166. 
 V. Hawkhorst, 260. 
 V. Hazzell, 236. 
 V. Heath, 817. 
 V. Hellier, 267. 
 V. Heffeman, 292, 293, 294, 296, 
 
 816, 824. 
 V. Hiokliog (Inhpbitants), 287. 
 V. Uiggins, 161. 203, 214, 226, 
 
 228, 283. 241, 819, 822. 
 V. Hipswell, 42. 80. 
 V. Hodge. 9. Ill, 164. 284. 
 V. HodgeB, 192. 
 
 V. Hodgina, 69, 120, 235, 314, 817. 
 V. Hodnett, 277. 
 V. Hoggard, 110, 127, 181, 229, 
 
 282, 848. 
 V. HoUand, 40, 176. 
 V. HoodlesB, 265. 
 
 V. Howard, 110, 157, 169, 264, 256. 
 V. Hughes, 294, 238, 824. 
 V. Humphery, 208. 
 V. Humphrey, 88. 
 V. Huntingdon Justioes, 216. 
 V. Hyde, 36. 
 V. Ivens, 169, 277. 
 V. Jamieson, 181. 
 V. Johnson, 164, 236, 246, '314. 
 V. Jones, 236. 
 
 V. Jones (Hereford Case), 148. 
 V. Justices of Annandale, 40. 
 V, Justioes of Bedfordshire, 268. 
 V. Justioes of Berkshire, 264, 265. 
 V. Justioes of Cheshire, 263, 
 V. Justioes of Great Yarmouth, 216. 
 V. Justioes of Huntingdon, 216. 
 V. Justices of Kent, 27, 80, 78. 
 V. Juatices of King's Go., 2. 
 V. " London, 216. 
 V. • ' Merthyr Tydvil, 19, 30 
 V. " Middlesex, 104, 167, 
 
 232. 
 V. <• Pirehiil, 40. 
 
 V. " Queens, 161. 
 V. " Biohmond (Surrey), 
 
 216. 
 V. " Staffordshird, 40. 
 V. •• Burrey, 216, 216. 
 V. " Warwickshire, 27. 
 V. Elemp, 214, 216, 218, 235, 314, 
 
 319, 320, 325. 
 V. Kennedy, 227, 234, 242, 314, 
 
 315, 328, 849. 
 V. Kensington, 18, 89. 
 V. Kent, 213. 
 V. Kent Jostices, 27, 80, 78. 
 
 B. V. Eidd, 282, 28t . 
 V. LacUe, 127, 221. 
 V. Lake, 2, 109, 240, 262, 801. 
 V. Langford, 216. 
 V. Lawley, 203. 
 V. Lawrence, 2, 203, 282, 240. 
 V. Lee, 216, 812, 821. 
 V. Lennox, 107, 161, 218, 214. 
 V. Leveoqne, 246. 
 V. Levi, 261. 
 V. Logan, 161. 
 V. London Justices, 216. 
 V. Loxdale, 47. 
 
 V. Lynch, 161, 218, 233, 286, 246. 
 V. Mackenzie, 111, 234, 241. 
 V. Mabee, 819, 823. 
 V. Mabey, 284. 
 V. Malby, 148. 
 V. Manning, 112. 
 V. Marsh, 286. 
 V. Maude. 277. 
 V. Mead, 288. 
 
 V. Menary, 112, 161. 162, 164, 168. 
 V. 'ilerthyr Tydvil Justices, 19, 80. 
 V. Meyer, 105, 216. 
 V. Middlesex Justices, 104, 148, 
 
 157, 218, 232, 229. 
 V. MiUedge, 215. 216. 
 V. Miller, 10. 
 V. Minshnll, 18. 
 V. MonlKhonse, 274. 
 V. Monteith, 321. 
 V. Mosier, 248. 
 V. Morby, 2?8. 
 V. MoAlIan, 246. 
 V. McAulay, 126 234. 
 V. McCarthy, 2." 8, 246. 
 V. McGonnell, 232. 
 T. Molntyre, 217. 
 V. McMillan, 164. 
 V. Neath Canal Nav. Co., 112. 
 V. Nevins, 823. 
 V. Newton, 849. 
 
 V. Niagara (Board of Police), 90. 
 V. North Curry, 88. 
 V. O'Bourke, 2. 
 V. Osier, 62. 222. 
 V. Oxford (Bishop of), 97. 
 V. Palmer, 79, 111, 160, 186. 
 V Parlee, 125, 127, 167«232. 
 V. Paton, 17, 164. 
 V. Pettitmangin, 216. 
 V. Pioton, 213. 
 V. Pierce, 136. 
 V, Pieroy, 221. 
 V. Pipe, 166. 
 V. Pirehiil. 40. 
 V. Plowright, 210. 
 V. Poplar Union Asa't Com., 48. 
 
 1 
 
 i; 
 
 I, ' ■ y-' >•} '' 
 
 M 
 
xvin. 
 
 TABLE OF CASES. 
 
 "in 
 
 !ii 
 III' 
 
 ir 
 
 ■ '' 
 
 R. T. Powell, 381. 
 T. Poynder, 118. 
 V. Prioe, 81, 266. 
 V. Prittie, 2, 109. 801, 804. 
 T. Qaeena (JuBtioea of), 162. 
 y. Baffles, 45. 
 V. Ban»»y, 284, 346, 814, 817, 826, 
 
 849. 
 V. Band, 216. 
 
 V. Beoorder of Oambridge, 216, 
 V. * of King's Lynn, 286. 
 V. Beed 187, 
 
 T!Bioe,'62, 176, 178, 196. 
 T. Biohardson, 2, 193, 217, 232, 
 
 284, 286, 237, 241, 246. 812. 
 y. Biohmond JnatioeB (Sorrey), 316. 
 V. Bidaway, 386. 
 V. BobertBon, 824. 
 V. Bobinson, 251. 
 V. Bobotham, 221. 
 V. Boddy, 127, 164, 221, 269. 
 V. Bodwell, 127, 162, 167, 228, 248. 
 V. Boe, 288, 820, 821, 822, 849. 
 y. Bogier, 178- 
 V. Bow, 218. 
 
 y. Bowlin, 161, 226, 238, 849. 
 V. Byan, 203. 284. 819. 828. 
 V. Saddler's Co., 87. 
 y. Sainsbory. 18, 40, 161. 
 V. Salfovd, 18, 89. 
 y. Salomons, 284. 
 V. Sanderson, 162, 242, 816, 826. 
 V. Soott, 2, 74, 116, 246. 
 V. Seyem, 72, ?09, 116. 
 V. Shayelear 813. 
 y. Shaw, 233, 824. 
 V. Shipley, 221. 
 V. Bhurmer. 29. 
 y. Shropshire, 214. 293. 
 y. Simpson, 214. 
 V. Slater, 218. 
 y. Sloan, 267, 291. 
 V. Smith, 46, 69. 161. 184, 282, 824. 
 V. Solomon, 160. 
 V. Sparkham, 161. 
 y. Spain, 160. 
 V. Spenoer, 10. 
 y. Sproale, 217, 817, 819. 
 y. Sporrell, 114. 
 y. St. Denis, 248. 
 y. St. George's Sonthwark, 188. 
 V. St. James' Westminster, 46. 
 y. St. Marylebone Vestry, 87. 
 y. St. Panoras, 89, 138. 
 y. Staffordshire Jnstioes, 40. 
 V. Stafford, 91, 110, 160. 
 y. Stannard, 24, 62, 180, 176. 
 y. Stone, 221, 824. 
 y. Stonnell, 239. 
 
 B. V. Stephens, 124, 366. 
 
 y. Straohan, 89, 108, 110, 160, 839, 
 
 883, 868. 
 y. Stmgnell, 113. 
 V. Snmmers, 338. 
 V. Snrrey Jastioes, 316, 316. 
 V. Satton, 114, 167, 383, 340. 
 V. Swalwell, 346, 266. 
 V. Sweeney, 20. 
 V. Tandy, 162. 
 V. Taylor, 2, 109, 116, 318. 
 V. The Board of Police, Niagara, 90. 
 V, TiUy, 221. 
 V. Tisdale, 161. 
 V. Tithe Oommissioners, 196. 
 V. Toke, 216. 
 y. Tacker, 161, 818. 
 V. Tugwell, 31. 
 V. Vine, 18, 38, 129. 
 V. Walker, 292, 293, 294, 818, 816, 
 
 825. 
 V. WaUace, 214, 346, 818, 826. 
 V.Walsh, 248, 8 LS. 
 V. Warwickshire Jastioes, 37. 
 y. Washington, 346. 
 y. Weale, 166. 
 y. Wehlan, 346, 346. 
 y. West Biding Jastioes (Drake's 
 
 Oase), 40. 
 V. West Bviing Jastioes, 118. 
 , V. Westmorland, 826. 
 V. Wheeler, 78. 
 V. White, 137, 389. 
 V. Widdop, 834. 
 V. Wigam, 81. 
 y. WiUiams, 40, 110, 161, 169, 
 
 161, 864, 866. 
 V. Willis, 886. 
 y. Woodoook, 814. 
 V. Worcester Jastices, 366. 
 V. Wright, 161, 826, 233. 
 y. Yoang, 111, 117, 127, 169, 160, 
 
 232, 288, 234, 242, 258, 320, 
 
 822, 849. 
 V. Toanger, 182. 
 E* rel, firine y. Booth, 111. 
 <• Olanoy y. Gonway, 111. 
 " Biohmond y. Tegart, 166. | 
 
 s 
 
 Sams y. Gity of Toronto, 20. 
 Sampson and Wall, in re, 308. 
 Sanderson v. Jaokson, 87. 
 Sangster v. Kay, 76. 
 Saanders v. Soath Eastern By. Oo.,12, 
 
 '< y. Pitfield, 114. 
 Saavage y. Troaillet, 388. 
 Schneider y. Norris, 37. 
 
/ 
 
 TABLE OF CASES. 
 
 XIX. 
 
 Soott V. Bye, 844. 
 
 " V. Qilmonr, 4. 
 S«ager v. White, 111, 363. 
 Searle v. BeynolcU, 177. 
 Sears v. Dillingham, 381. 
 Seim V. State, 168. 
 
 Shakespeare, in r« Deakin v. Lane, 64. 
 Sharp V. Dawes, 86. 
 
 " V. St. Sanvenr, BOl. 
 Sharpe v. Wakefield, 10, 40. 
 Sharpleigh v. Snrdam, 46. 
 Shaw y. Morley, 33, 88, 360. 
 Shea V. Leeds, 386. 
 SbeKord v. Loath By. Go., 84. 
 Sheley v. Town of Windsor, 191. 
 Shelley v. Bethell, 113. 
 Shepherd v. People, 38. 
 Shoolbred v. St. Panoras Jas., 78. 
 Short, tx parte, 189. 
 Shrimpton v. Shrimpton, 97. 
 Siddall, in re, 76, 146. 
 Sinclair y. Ai»ritime j(ns. Co., 371. 
 Sinden y. Brown, 38S, 
 Spioe y. Baoon, 171. 
 Slater and Wells, in re, 168, 308. 
 Slavin y. Oor. of Orillia, 8, 68, 109, 
 
 116. 
 Smith V. Anderson, 76, 146. 
 " y. Benton, 110. 
 " y. Bamham, 308, 898. 
 " V. Campbell, 84. 
 
 V. Deignton, 381. 
 
 V. Ehridge, 176. 
 
 y. Toronto (oity), 880. 
 
 V. Vanx, 189, 133. 
 I Soden v. Gray, 388, 
 I Somerset v. Hart, 184, 177, 179. 
 j SouthaiD, in re, ex p. Lamb, 81. 
 South London Fish Market, in re, 188. 
 Sonth Essex Eleotion Gase, 186. 
 South Ontario Eleotion Case, 186. 
 Stallard y. Marks, 6, 74. 
 IStampford, ex parte, 887. 
 I State V. Barr, 118. 
 
 V. Barbour, 3. 
 
 V. Bennett, 8. 
 
 V. Bishel, 179. 
 
 y. Book, 180. 
 
 V. Breswiek, 8. 
 
 y. Bronder, 10. 
 
 V. Bullion, 180. 
 
 V. Oampbell, 8. 
 
 y. Oantieny, 166. 
 
 y. Gook, 143. 
 
 V. Fay, 96. 
 
 V. Oiersoh, 8. 
 
 V. Ooyette, 8. 
 
 V. Haney, 147. 
 
 V. Raymond, 4. 
 
 11 
 
 II 
 i< 
 <i 
 <i 
 It 
 II 
 (t 
 II 
 II 
 II 
 It 
 
 « 
 ti 
 ti 
 
 II 
 II 
 (I 
 II 
 It 
 11 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 II 
 
 State y. Henderson, 180. 
 " y. Holmes, 118. 
 
 V. Hutchinson, 8. 
 
 y. Jersey Oity, 176. 
 
 y. Kelly, 378. 
 
 y. Enowles, 119. 
 
 y. Laffer, 4. 
 
 y. Lowenhanght, 77. 
 
 V. Marshall, 199. 
 
 y. Meroer, 168. 
 
 y. Moore, 8. 
 
 y. MorireU, 78. 
 
 y. Muncey, 8. 
 
 y. MoOinnis, 869. 
 
 y. McMahon, 144. 381. 
 
 y. Oliyer, 8. 
 
 y. Packer, 4. 
 
 y. Penny. 186. 
 
 V. Pierce, 369. 
 
 y. Pratt, 379. 
 
 y. Wittmar, 8. 
 Steyens y. Emson, 169. 
 Stewart v. Eddowes, 87. 
 
 '• V. Macdonald, 148. 
 Stikeman y. Dawson, 64. 
 StUe y. Walls, 888. 
 Stinson qui tarn y. Pond, 69. 
 Btogden y. Lee, 64. 
 StonesB y. Lake, 163, 368. 
 Storie y. Winchester, 43. 
 Strauss y. Oounty Hotel Go., 6, 116, 
 
 174. 
 Stringer y. Huddersfield, 46. 
 Stuchberry y. Spencer, 49, 74. 
 St. Leger y. Magniac, 119. 
 St. Louis y. Siegrist, 169. 
 St. Mary's Ghnrch y. Tripp, 86. 
 St. Nicholas', Deptford, y. Sketchley, 
 
 198. 
 St. Vincent (Gor. of) y. Grier, 166. 
 Squire y. Wheeler, 303. 
 Squires y. Whiskers, 180. 
 Summit Ghroye Meeting Ass. y. New 
 
 Freedom School Dial., 36. 
 Sunbolf y. Alford, 178. 
 Supreme Oonncil of Ghosen Friends 
 
 y. Garrigus, 371. 
 Sutherland y. Nixon, 88. 
 Sutton V. Bishop, 38, 169. 
 
 '* y. Goldfleld Gram. School, 37, 
 61. 
 Sutton's Hospital, in re, 86. 
 Sweeney y. Spooner, 831. 
 
 Tarry y. Newman, 886. 
 Tatnm y. State, 378. 
 
 4 ,T'; 
 
 S 'Ml 
 
 ■■'- i'l 
 
XX. 
 
 TABLF, OF CASES. 
 
 Taylor v. Hnmphnyi, 49. 
 " V. Hamphrlea, 49. 
 " V. Onm, 97. 189, 188. 
 <• Smettin, !80. 
 " Vinoent, 6. 
 Teale v. Tonnga, 87. 
 Temple v. Toronto StookBzohange, 88. 
 Templeman v. Trafford, 6. 
 Tennant v. Gamberland, 129, 181. 
 Terry v. Brighton Aqaarinm Go., 188. 
 " V. Man. o( Hbdimand, 09, 67. 
 The Lion, re, 49. 
 Thomas, in re, 76, 146. 
 " V. Nokes, 26S. 
 Thompson, in re, 272. 
 " V. Carroll, 10. 
 '« V. Oreig, 181. 
 " V. Harvey, 19, 41, 48. 
 •• V. Lacy, 6, 178. 
 •• Ward, 186. 
 Threlall v. Borwiok, 178. 
 Thomley v. Beilly, 280. 
 Thornton v. Olegg. 82. 
 Tippett V Hart, 69. 
 Titley v. Wolstonholme. 80. 
 Tobaooo Pipe Mo3iz:n v. Woodroffe, 
 
 185. 
 Todd V. BobUnson, 76. 148, 102. 
 Toledo, eto.. By. Co. v. Spangler, 224. 
 Toleman v. Portbary, 114. 
 Tollett V. Thomas, 180. 
 Toms V. Cuming, 78. 
 " V. Laokett, 186. 
 " T. Wilson, 28S. 
 Toomer, in re 80. 
 
 Travellen Ins. Co. v. MoOonk^, 970. 
 Treacher v. Treaoher, 6, 74, 77. 
 Trew V. By. Passengers' Ins. Go. 270. 
 
 " V. Boyal Ins. Co., 271. 
 Tnnnioliffe v. Todd, 214. 
 Turner, in re, 286. 
 
 '• V. Cor. of Branttord, 279. 
 " V. Postmastor-Oenerid, 288. 
 Turner v. Wilson, 27. 
 Twining v. Musoott, 80. 
 TwyoroBB v. Grant, 48. 
 
 u 
 
 United States v. Bonham, 59, 77, 111. 
 
 '• V. Claypool, 48, 164. 
 
 V. Miokle, 77. 
 
 " V. Vassar, 117. 
 
 •• V. Watkinds, 159. 
 
 " V. Whittier, 288. 
 
 Ulsoh V. MiUer, 288. 
 Union Mut. Life In«. Co. v. Beif, 279. 
 
 Vallee v. DumerirM, 112. 
 VanMetre v. Mitchell, 197. 
 VanValkenbnrg v. Amerioan Pop. Life 
 
 Ins. Co., 279. 
 Vanghan v. Weldon, 214. 
 Vaughton v. Bradshaw, 214. 
 Vogel V. O. T. By. Co., 107. 
 
 w 
 
 Wakefield v. West Biding By. Co. , 216. 
 
 Walker v. Hhorp, 171, 172. 
 
 Wall V. State, 4. 
 
 Walling V. Potter, 187. 
 
 Wallis V. Smith, 88. 
 
 Walton V. Walton, 979. 
 
 Warden v. Tye, 176. 
 
 Warner v. Brighton Aq. Co., 188. 
 
 Warnook v. Eloepfer, 88. 
 
 Warren v. Peabody, 78. 
 
 Waterhouse v. Gilbert, 84, 212, 268. 
 
 Watts and Emery, in re, 109, 284, 246, 
 
 268, 801. 
 Watson, exparte, 208. 
 Watson V. (Jotton, 74. 
 Watson V. State, 8. 
 Webb V. State, 77. 
 Webster v. Ashton-under • Lyne ; 
 
 Orme'a Case, 256. 
 Webster v. Ashton-nnder-Lyne ; Had- 
 
 field's Case, 256. 
 Weeks v. Wray, 28. 
 WeU V. State, 77. 
 Welland Election Case, 186. 
 Wenlook v. Biver Dee Co., 227. 
 Wenner v. State, 180. 
 West V. Dobb, 81. 
 West Hastings Election Case, 186. 
 Westloh V. Brown, 27. 
 Whaito V. Lancashire A lorkshire By. 
 
 Co., 76. 
 Wheeler t. Wheeler, 278. 
 White V. Bedfem, 70. 
 Whitehouse v. Woolverhampton By. 
 
 Co., 61. 
 Whitfield V. Banbridge, 178. 
 Whitley, in re, 27, 78. 
 Whitmore v. Wenlook, 112. 
 Whitstable Free fishers v. Elliott, 78. 
 Whittle V. Frankland, 278. 
 Widderfield v. Metoalfe, 184. 
 Wilde V. Bowen, 28. 
 Wilkinson v. Bogers, 118. 
 Williams v. Burgess, 24, 213. 298. 
 " V. Grey, 69. 
 '• V. Mastyn, 274. 
 •' V. Nash, 188. 
 
TABLE OF CASES. 
 
 xxit 
 
 WUion V. Ohnroh, 312. 
 
 •• V. NighUngia*, 99. 
 
 •• V. OraybM, 160. 
 
 " V. Qo»rter 8«taiona of Hnroo, 
 3»6, S»7, 964. 
 
 " V. Btnurt, 177, 195. 
 
 '• V. WolUni, 40, 991. 
 Windaor v. Th« Qnaen, 991. 
 Winning v. Gow, 4. 
 Wolfenden v. Wilion, 69. 
 WolmershkaMD v. O'Connor, 119. 
 Woodall, empartt, 197. 
 Woodard v. Billeroay Highway Bd., 89. 
 Woodhose v. Bio Grande By. Go., 998. 
 Worley v. Sporgeon, 4. 
 
 Wray v. Toka, 175, 195, 914, 995. 
 Wright V. Man. of Oomwall, 155. 
 
 " V. Paople, 191. 
 Writt V. Shannon, 91. 
 WyU« V. Biroh, 974, 
 
 TalM V. The Qneon, 188. 
 Toong V. dor. of Binbrook. 94. 
 
 " V. Higgon, 98. 
 Toang and Haratop, In r« 107, 909, 
 
 998. 
 York V, GrindMone, 179 
 
 .w ■ 
 
 
 1^ 
 
XXII. 
 
 AUDKEVIATIONS. 
 
 LIST AND EXPLANATION OF THE ABBEVIATIONS AND 
 
 EDITIONS OF TEXT BOOKS AND REPORTS 
 
 REFERRED TO. 
 
 TEXT BOOKS. 
 
 *Add. on Oon Addison on OontrMtn, 8th Edition. 
 
 Add. on Torti Addiaon on Torta, 2nd Edition. 
 
 Anderson's Diot Anderson's Dictionary of Law, Chioago, 1890. 
 
 Aroh. Prao 
 
 Austin's Jarispmdenoe Austin's Leotorea on Jorispradenoe. 
 
 Bao. Abr. Ins Bacon's Abridgment. 
 
 BL Com Blackstone's Commentaries. 
 
 Browne on Words Irving Browne on the Jadioial Interpretation of 
 
 Common Words and Phrases, (1888). 
 
 Eorbidge'e Grim. Dig Bnrbidge's Digest of Criminal Law, (1890). 
 
 Byles on Bills Byles on Bills of Ezehange and Promissory 
 
 Notes, 14th Edition. 
 
 Clarke's Grim. Law Olarke's Criminal Law. (Canadian), (1878). 
 
 Co. Litt Oooke on Littleton, (1 Inst.) 
 
 Danforth's Dig Danforth's United States Digest. 
 
 D. (k L. Dig Dale and Lehmann's Digest, (1867). 
 
 Diokenson's Goide to Q. S... Diokenson's Guide to the Quarter and other 
 
 Sessions of the Peaoe, 6th Edition. 
 
 Drake on Attachment Drake on Attachment, 5th Edition, (1878). 
 
 Dwar : Dwarris on Statutes, Snd Edition. 
 
 Harrison's Mun. Man Harrison's Municipal Manual, 4th Edition (1678). 
 
 Hawkin's Pleas of the Grown. Hawkin's Pleas of the Grown, 8th Edition, (1624). 
 
 Jarm.... Jarmanon Wills, 4th Edition. 
 
 Maxwell on Stat Maxwell on Statutes, 1st Edition. 
 
 Mayne on Dam Mayne on Damages, 8rd Edition. 
 
 Paley on Con Paley on Gonvictions, 4th Edition. 
 
 Paterson's L. A Paterson's Licensing Acts, 6th Edition, (1866). 
 
 Pollock on Con * . . . . Pollock on Contracts, 5th Edition, (1669). 
 
 B. A J. Dig Robinson Sc Joseph's Digest. 
 
 Roseoe's G. E Roscoe's Digest of the Law of Evidence in Crim- 
 inal Cases, 11th Edition, (1890). 
 
 Roscoe's N. P Roscoe's Digest of the Law of Evidence at Niii 
 
 Print. 16th Edition. 
 
 
 NoTB.— In some cases other editions are referred to, in which event the particular 
 edition is stated in the context 
 
 I! 
 
ABBREVIATIONS. 
 
 XXIII. 
 
 BaiMll on Orimai BumU on Orimei, 8th (Am.) Edition. 
 
 Saondera' Prao S»and«rs' PrMtioe of MHgiitratas' Courts, Sth 
 
 Edition. 
 
 8inolair'i D. O. Aot, 1879 . . . SinoUir'i Diviaion Ooarts Aoti, 1870. 
 
 Sinolair'i D. 0. Aot, 1884. . . . Sinolair's Diviiiion Court Law, 1884. 
 
 Sinolair'aOon.D.O. Aot, 1888. Sinolair'a Oouiolldated Diviaion Gourta Acta, 
 
 1888 
 
 Smith's L. Smith's Leading Oaass, 9th Edition. 
 
 Smith's Master and Senrt Smith on Master and Servant, Blaokstone Edi- 
 tion, 1886. 
 
 Stephen's Dig , or\ Stephen's Digest of the Criminal Law, 8rd 
 
 Stephen's Crim. f Edition. 
 
 Stroud's Diot Stroud's Judicial Dictionary of Words and 
 
 Phrases (1890). 
 
 Taylor on Evi Taylor on Evidence, Blackstone Edition from 
 
 8th English Ed. 
 Trotter on Appeals Trotter on Appeals from convictions and orders 
 
 of Justices (1884). 
 
 Wharton Wharton's Law Lexicon, 7th Ed. (188S). 
 
 Worcester. Worcester's Unabridged Dictionary (1864). 
 
 Wilson's Prao Wilson' Practice of the Supreme Court of Judica- 
 ture (1888). 
 
 REPORTS. 
 
 For alphabetical list of abbreviations used in references to British, Canadian 
 and American Law Reports, see the Library Catalogue of the Law Society of 
 Upper Canada, (1886). 
 
 For abbreviations used in references to American Reports, see also Drake on 
 Attachment, edition of 1878 ; and for abbreviations used in this book in 
 references to British Reports, see also Taylor on Evidence, XI. to XXIV,, and 
 Robmson <fe Joseph's Digest, XVI. 
 
XXIV. 
 
 ADDENDA. 
 
 ADDENDA. 
 
 iiiii.i . ^ 
 
 liii 
 
 The following easei have been reported whiltt thit book was going through 
 
 the press, and it is suggested that they should be noted under 
 
 the respective sections to which they refer. 
 
 On the trial of a misdemeanor before maKistratey, the taking of an 
 information or isane of a sammons may be waived. 
 
 On a obarge for selling liqaor withoat a license contrary to sec. 70, the 
 defendant appeared before the magistrates, pleaded to the charge, and the 
 evidence was gone into and the case dosed withoat objection, the defendant 
 convicted, and a fine of $50 and costs imposed. An objection taken on a 
 motion to quash the conviction that the information was taken before only one 
 Justice of the Peace, was overruled, it being, under the circumstances, held to 
 be waived ; but, Semble, the information was apparently taken before two 
 Justices. 
 
 The adjudication did not state the amount of the costs imposed : 
 
 Held, following, B. v. Flynn, 20 0. B., 6S8, that this did not invalidate the 
 conviction ; but, quare, whether apart from the amending Acts such would be 
 the case. Under sees. 60, 70, cf the Act, it is not a valid objection to the con- 
 viction that it did not state that imprisonment was for the term specified unless 
 the costs and charges of conveying to gaol were sooner paid : B. v. Olarke, 20 
 0. B., 642. 
 
 As to the waiver of information and summons, the following cases were 
 cited : Shepherd v. Postmaster-Oeneral, 10 Oox, 0. C. 16 ; B. v. Shaw, 10 Cox, 
 G. G. 66 ; Blake v. Beech, 1 Ex. D. 820 ; Whelan v. The Qaeen, 28 U. 0. B., 1 ; 
 Turner v. Postmaster-Qeneral, 6 B. & S., 766. 
 
 On the trial of an offence against a city by-law in the erection of a wooden 
 building within the fire limits, the defendant is not either a competent or com- 
 pellable witness ; and, therefore, where in such a case the defendant's evidence 
 was received and a conviction made against him, it was quashed with costs : 
 B. V. Hart, 20 0. B., 611. 
 
 In a conviction under sec. 78 for delivering liqaor to a person while intoxi- 
 cated, imprisonment was directed without any provision for distress. On the 
 conviction being brought before the Court on certiorari, the Court, under sec. 
 87 of the Summary Convictions Act, B. S. C, c. 178, as amended by sec. 27 of 
 68 Vic, c. 37 (D.), amended the conviction by inserting a provision for a dis- 
 tress. 
 
 The amending Act came into f jrce after the conviction was made and certio- 
 rari granted, but it being a matter of procedure, the Court had power to act 
 tmder it and make the amendment. 
 
 In proof of defendant being a licensed hotel-keeper under the Act, a witness, 
 in giving evidence, stated defendant to be such ; and although defendant was 
 present and represented by coansel, he allowed the statement to pass unchal- 
 lenged : 
 
 Held, sufficient, as the witness might have obtained his information from 
 the defendant : B. v. Flynn, 20 0. B. 638. 
 
 Under the power conferred on Justices of the Peace by seo. 2 of B. 8. 0., o. 
 
CORRECTIONS. 
 
 XXV. 
 
 74, to order in and by the oonviotiou the paymont of reasonable ooBts, a charge 
 of fifty oents for drawing ap a conviction nnder the Liqnor License Act, is 
 authorized. 
 
 On motion to quash a conviction, it was objected that the evidence taken 
 before the Magistrates and returned by them, was not shewn io have been read 
 over and signed by the witnesses. Held, that the maxim omnia prammunter 
 esse rite acta applied, and as the contra; y was not shown, it would be presumed 
 to have been done : B. v. Ezcell, 20 0. B. 633. 
 
 The defendant holding a shop license was convicted for allowin(( liqnor to be 
 drunk on the premises contrary to sec. 60. 
 
 Quarf, whether a conviction in such case need do more than impose thd 
 penalty and costs and the provisions of the Summary Convictions Act be called in 
 aid for its enforcement, namely, by the issue of a warrant of distress under 
 sec, 62 in case of non-payment of the fine due, and in default thereof a warrant 
 under seo. 67 for committal ; or whether the forms provided for by sec. 63> 
 must be followed providing for distress and in default imprisonment, unleus, 
 etc. ; but the question was immaterial, as the Court, as a matter of precaution, 
 amended the conviction so as to include these provisions. 
 
 An objection that it did not appear that the evidence had been read over to 
 the witnesses was overruled, following B. v. Excell, supra. 
 
 The direction in sub-sec. 2 of seo. 96, as to be witnesses signing their 
 evidence, is not imperative, but directory merely : B. v. Scott, 20 0. B., 646. 
 
 The opinion Was given by the Court that the form of Warrant of Commitment 
 under seo. 66 of the Summary Convictions Act, is the one to be used in such 
 cases, as far as applicable, and by iU provisions the imprisonment is directed 
 for the term imposed, unless, &o. J'b. 
 
 As to liability of inn-keepera who give liquor to persons who thereby become 
 intoxicat '. under sec. 122, see Trice v. Bobinson, 16 0. B., 433, in which it 
 was held that since the Judicature Act, the rule in equity prevails, as opposed 
 to that at law, that letters of administration when obtained relate back to the 
 death, and it is sufficient if a plaintiff suing as a plaintiff qualifies before the 
 trial ; and that sec. 122 is a remedial measure and should receive a liberal 
 construction. 
 
 As to constitutional law, and sale of liquor in original pf.ckages, see 
 Wilkerson v. Bahrer, 44 Alb. L. J., 26. 
 
 CORRECTIONS. 
 
 as 
 
 On page 1, in heading, read " as amended by 61 Vic, o. SO," instead of 
 amended by 61 Vic, c 3." 
 
 On page 12, note (x), fourth line, read " see note ({) " instead of " note (k)." 
 
 On page 86, at end of clause (d) of sec 11, bb. 14, read " 63 Vic, o. 66," 
 instead of << 68 Vic, c 66." 
 
 'j.KI 
 
 P^mI 
 
 ii^ 
 
 mP ^m 
 
 111 
 
 Rffl 
 
 m 
 
 ifffl 
 
 p 
 
 fm 
 
 
 i' . ''m 
 
 
 
 Lif^l 
 
 l(*A 
 
LiQ 
 
 Amet 
 
 An Act re 
 
 Li([uors. 
 
 HER MA 
 of th 
 Ontario, enai 
 
 !• This 
 Act." (a.) 
 
 (a) At oomm 
 The original of 
 (1552), 0. 25. 
 
 By " The Ta^ 
 
 I to Tavern and 
 
 I inconsistent wil 
 
 ^ Vic, 0. 28, (0.) 
 
 and oonsolidate 
 
 were added by i 
 
 the revision of J 
 
 j consolidated in 
 
 Vice. 14, (O.) 
 
 Ic. 43. (0.)1886, 
 
 I consolidated in 1 
 
 The Statutes : 
 
 |by61 Vio.,0. 3, 
 
 The right oft] 
 J sale of intoxioati 
 ■vest in boards ol 
 ■to enact regnlati 
 jannei: penalties 
 jApp. Gas., 117. 
 Ibition respecting 
 Russell V. The Q 
 
THE 
 
 LiQUOR LICENSE ACT 
 
 OP HE PROVINCE OF ONTARIO. 
 
 /■ 
 
 r ',.i 
 
 ^ !? 
 
 u,i 
 
 J I 1' 
 
 ' ' Revised Statutes of Ontario, 1887. ♦ 
 
 CHAPTER 194. 
 
 Amended by 51 Vic. (O.), c. 3 ; 52 Vic. (O.), c. 41 ; 53 Vic. (O.), c. 56. 
 
 An Act respecting the Sale of Fermented or Spirituous 
 Liquors. 
 
 HER MAJESTY, by and with the advice and consent 
 of the Legislative Assembly of the Province of , 
 Ontario, enacts as follows : 
 
 1, This Act may be cited as "The Liquor License 
 Act." {a.) R. S. O. 1877, c. 181, s. i. 
 
 (a) At oommon law the traffic in intoxicating liquors was a lawfal business. 
 The original of the Statutes licensing the traffic is found in 6 and 6, Edw. 6, 
 (1552), 0. 26. 
 
 By "The Taverns and Shop License Act cf 1868," the enactments relating 
 to Tavern and Shop Licenses were amended and consolidated and all acts 
 inconsistent with it were repealed. This Act was afterwards amended by 83 
 
 I Vic, 0. 28, (O.) 1869 and 86 Yic, 0. 84, (0.) ^873. These were all repealed 
 and oonBolidated by 87 Vic, 0. 32, s. 61, (O.) 1374, and further amendments 
 were added by 39 Vic, c. 26, (0.) 1865-6 and 40 Vic, 0. 18, (O.) 1877 ; upon 
 the revision of the Statutes in the last named year, the whole were again 
 consolidated in the R. S. 0. 1877, c 181 ; this was further amended by 41 
 Vic. c. 14, (0.) 1878, 44 Vic, c 27, (O.) 1881, 47 Vic, c 84, (0.) 1884, 48 Vic, 
 c. 43. (0.) 1885, and 49 Vic, c 89, (0.) 1886, and these enactments are now 
 
 I consolidated in the R. S. 0. 1887, c 194. 
 
 The Statutes now in force in Ontario are the R. S. 0. 1887, 0. 194 ; amended 
 |by 51 Vic, c 8, (0.) ; 62 Vic, c 41, (0.) ; and 63 Vic, c 66, (0.) 
 
 The right of the Legislative Assembly to legislate in regard to licenses for the 
 I sale of intoxicating liquor and the regulation of licensed houses, as well as to 
 Ivest in boards of License Commissioners, as appointed under the Act, authority 
 Ito enact regulations of the same character, and to thereby create offences and 
 lanne:^ penalties thereto, has been settled definitely in Hod(;e v. The Queen, 9 
 lApp. Cas, , 117. It was previously decided that a general law as to prohi- 
 |bition respecting all Canada could be enacted by the Dominion Parliament : 
 Russell V. The Queen, 7 App. Gas., 829. And it was subsequently held by the 
 
T 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 
 
 INTERPRETATION. 
 
 t°M "n" ^* Where the following words occur in this Act, or in 
 the schedules thereto, they shall be construed in the manner 
 hereinafter mentioned, unless a contrary intention appears : 
 
 and*"°" I. " Liquors " or ** Liquor " (3) shall include all spirituous 
 "Liquor." ^nd malt liquors, and all combinations of liquors and drinks 
 and drinkable liquids which are intoxicating. 
 
 Privy Oounoil that the Dominion Parliament oonld not legislate with respect to 
 lioeoses for the sale of liquor in shops, taverns or saloons: In re Liquor 
 License Act, 1883, and Amending Act, 6 C. L. T. , 66 ; see also 
 6 0. L. T., 161, 6 G. L. T., 18. As to legislative authority see 
 B. V. Bnrah; 8 App. Oas., 906; Jona v. Gilbert, 6 S. G. B., 366; Eastoc's 
 Case, 12 A. & E., 646 ; Saunders v. South Eastern By. Go., 6 Q. B. D., 462 ; 
 The City of Frederioton v. The Queen, 8 S. G. B., 606 ; In re Slavin and The 
 Gnr. of Orillia, 36 U. 0. B., 169 ; B. v. Just'oes of Kings Gonnty, 2 Pug., 686 ; 
 Eeefe v. Maolennan, 2 Bussell & Chesley, 6 ; Blouin v. The Gor. of Quebec, 7 
 Que., L. B., 18 ; Gor. of Three Bivers v. Suite, 11 S. 0. B., 26 ; B. v. O'Bourke, 
 X O. B., 464 ; Dobie v. Temporalities Board, 7 App. Gas., 136 ; Gooley on Con- 
 stitutional Limitations, 4th Ed., 77 ; Yattel, Bk. 2, c. 17, sees. 286, 286 ; B. v. 
 Boardman, 30 U. C. B., 663 ; B. v. Scott, 34 U. G. B., 20 ; Be Hamilton v. 
 North Western By. Go., 39 U. C. B., 93; Ont. Dig., 1832.1884, 116 et seq; 
 Paulin V. The Gor. of Quebe i, 9 S. G. B., 186 ; cited in B. v. Biohardson, 8 0. B. 
 661 ; Foster v. Kansas, 112 U. S., 205 ; Boston Beer Co. v. Massachusetts, 
 97 U. S., 26, (U. S. Dig., 936) ; see also Danforth's Dig., 622 ; B. A J's. Dig., 
 8703, 4362, 4716 ; B. v. Taylor, 36 U. G. B., 183 ; B. v. Prittie, 42 U. 0. B., 
 612 ; B. V. Lake, 43 U. G. B., 615; B. v. Lawrence. 43 U. C. B., 164 ; B. v. 
 Cnthbert, 16 L. J. N. S., 78 ; B. v. Black, 43 U. C. B., 180 ; B. v. Gounty of 
 Wellington, 17 App. B., 421 ; De St. Aubyn v. Lafrance, 2 Gart., 396 ; Blouin 
 V. Gorp. uf Quebec, 2 Cart., 368 ; Keefe v. McLennan, 2 Gart., 400 ; B. v. Jus- 
 tioes of Kings, 2 Cart., 499 ; Ponlin v. Gorp. of Quebec, 3 Gart., 230. 
 
 (b) Whether liquors are " spirituous " or '* malt " liquors is a question of 
 fact, which it is better to have established by the evidence of a practical chemist; 
 it is a matter for enquiry upon the evidence to be adduced before the justice or 
 justices before whom a complaint is to be tried : Harris v. Jenns, 9 G. B. N. S., 
 162. 
 
 Sometimes there is much difficulty experienced in determining whether liquors 
 are " spirituous " or not. See Sinclair's Gon. D. G. Acts, 1888, p. 68. 
 
 Intoxicating liquors are defined by a statute of Kansas, as : '* All liquors and 
 mixtures, by whatever name called, that will produce intoxication." It was 
 held there as a question of fact, that it did not embrace medicines and toilet 
 articles not ordinarily used as beverages, such as tincture of gentian, bay rum 
 and essence of lemon, although containing alcohol. Whether it embraces { 
 " McLean's Strengthening Gordial and Blood Purifier," (a mixture of whiskey, 
 'jymp of tnlu and syrup of wild cherry), and " Sherman's Prickly Ash Bitters," I 
 is a question of fact. Whether any particular compound or preparation of this 
 class is then within or without the statute, is a question of fact to be established [ 
 by testimony. 
 
 It was held in Nevin v. Ludne, 3 Denio , 460, by Ghanoellor Walworth, of the I 
 State of New Tork, in a very learned and amusing judgment, that " spruce beer, f 
 ginger beer and molasses beer," may properly be termed fermented beer, bat I 
 they are never considered " strong liquors or intoxicating beverages." Ale and I 
 strong beer, in the same case, was held to be " spirituous liquors," but in Peopb I 
 V. Grilly, 20 Barbour, 268 ; State v. Adams, 61 New Hamp., 568, and State r.[ 
 
S. 2. 
 
 THE LIQUOR LICENSE ACT. 
 
 Moore, 6 filakf., 118, it was held that ale was not *' spiritaoua liqnor," beoaase 
 produced by fermentation and not by distillation. " Ale, beer, porter, ram, gin, 
 brandy, vrbiskey and wine " were held to be " intoxicating liquors " : State v. 
 Wittmar, 12 Missouri, 407. Lager beer is a " malt liquor " : State v Goyette, 
 11 Biiode Island, 692 ; Watson v. State, 66 Alabama, 168. And it is a " strong 
 and malt liqnor," and is intoxicating : State v. Bush, Bhode Island, Sup. Com., 
 1881 ; State v. Oampbell, 12 Bhode Island, 147. But it is for the jury to say 
 whether it is intoxicating : Ban v. People, 62 N. T, 277 It was held error for 
 the Court to instruct the jury, that heer necessarily meant " a malt liquor " : 
 State V. Breswick, Bhode Island, 1881, and that it was "purely a question of 
 fact for the jury." See also Harris v. Jenns, 6 0. B. N. S., 162 ; Browne on 
 Words, 148, 144, 206, 208. 
 
 It was held that "sweet spirits of nitre " . "<« not spirits within the meaning 
 of the excise acts, and that nothing can be takou to be " spirits," which does 
 not come under the definition of an inflammable liquid produced by distillation, 
 either pure or mixed only with ingredients, which do not convert it into some 
 article of commerce not known in common parlance under the general name of 
 *• spirits " : per Poh^ak, 0. B., in Atty-Oen'l. v. Bailey, 1 Ex., 281. 
 
 <■ Spirituons " means containing, partaking of spirit ; having the refinedi 
 strong, ardent quality of alcohol in greater or less degree. Hence " spirituous 
 liquors " imply such liquors as contain alcohol, and thns have spirit no matter 
 by what particular name denominated, or in what liqnid form or combination 
 they appear Hence also distilled liquor, fermented liquor, vinous liquor, are 
 all alike, spixitaoas liquor. Lager beer and wine contain alcohol and generally 
 in such qnaatities and degvee as to produce intoxication. These liquors are 
 therefore " spirituous " : State v. Qiersoh, 87 Alb. L. J., 201. This was in 
 North Carolina. In West Virginia, however, a different view of the matter is 
 taken, and it is held that the term does not include wine or other fermented 
 liqnor, for the words imply that the beverage is composed in part or fully of 
 alcohol extracted by distillation : State o. Oliver, 26 W. Ya., 422 ; S. C, 68. 
 Am. Bep , 79. * 
 
 In Eureka Vinegar Go. v. Oazette Printing Co., Circuit Court, E. D., Arkan- 
 sas, June 30, 1888, it was held that cider was an alcoholic beverage obtained by 
 fermentation of the juice of apples, and cannot lawfully be sold in a State whose 
 Statutes prohibit the sale of " alcohol, or any spirituoou, ardent, vinous, malt 
 or fermented liquors," 88 Alb. L. J., 267 ; and so also in State v. Hutchinson, 
 36 Alb. L. J., 498 ; but in State v. Oliver, 26 W. Va., 422, S. C, 68, Am. Bep., 
 677, " cider and crab cider " were held not to be " spiritnouB " nor of " like 
 nature as wine, ale, porter or beer." 8S Alb. L. J., 430. 
 
 Held, that defendant was properly found guilty of selling intoxicating liqnor 
 on proof of sale of a bottle of essence of cinnamon, and that the purchaser, i^ter 
 drinking it, had been so affected by it that he could not see after night : 
 Johnson and Woods, J. J., dissent. State v. Mnncey, 28 W. Va., 494. 
 
 "By no possible stretch of construction can 'confectionery' be held to 
 include the selling of liquor by the dtink :" City v. Jans, 84 La. Ann., 667. 
 
 A cordial made of whiskey sweAtened and scented with peppermint and other 
 i things is a spirituous liqnor. Godfrey's Cordial is a very different thing, known 
 I for and sold as medicine, and there can be no danger that the sale of it can 
 I promote tippling : State v. Bennett, 8 Harr., 665. 
 
 Although *' Oronk " was sworn to be a kind of beer, the Court would not take 
 I judicial notice that it was intoxicating or spirituons : B. v. Beard, 13 O. B. 
 1608. 
 
 The Court will not take judicial notice that gin is an inflammable liquid in 
 |the insurance sense of the word : Mears v. Humbolt Ins. Co., 21 Alb. L. J., 114. 
 
 Qttm'Oamphor and aloohol, sold as a medicine, is not within the Statute pro- 
 
 .1 i 
 
 t 1 
 
 $i ,i f 
 
 % > ' n 
 
 i«' ., ■' 
 
 I n 
 
THE LIQUOR LICENSE ACT. 
 
 [S. 
 
 liii' : :!i 
 
 li; i^ 
 
 hibiting the sale of " spiritaoas liqaor," and providing that " all mixturea or 
 preparations known as bitters or otherwise, which will prodaoe intoxioation," 
 shall be deemed " spiritaoas liqaor." In almost every home will be found the 
 " camphor bottle," containing gam-oamphor dissolved in distilled spirits, and 
 ased exclusively as a medicine and kept ready for nse when needed, but unpal- 
 atable as a beverage and never used as such : State v. Haymond, 20 W. Va,, 
 18 (1882). 
 
 Decoction of whiskey and bittor herbs, barks, etc., when intoxicating and 
 used as a beverage is "spirituous liquor :" Wall v. State, 78 Ala., 417. 
 
 "Home Bitters," composed of thirty per cent, of alcohol and the rest of 
 water, peelings, seeds, etc., sold as a medicine, although intoxicating was not 
 " spirituous liquors " within the meaning of the law : King v. State, 68 Miss., 
 787. But in Arkansas, " Home Bitters " and " Home Sanative Cordials " con- 
 taining twenty-two por cent, of alcohol were held to be within an act prohibit- 
 ing the sale of ardent spirits and all compounds and preparations thereof: 
 Gostorf V. State. 39 Ark., 460. 
 
 Lime-juice is tbe color of whiskey, and. is made up of lime-juice, sugr^r, gin- 
 ger and water, yet the Court strongly objected to country justices taking judicial 
 notice that it is intoxicating or spirituous : B. v. Beard, 13 0. B., 608. 
 
 Medicated Bitters producing intoxioation are " intoxicating liquors " within 
 the meaning of that term as used in local option acts : James v. State, 21 Tex, 
 App., 363. 
 
 One charged with the sale of malt liquor may be found guilty on proof of 
 sale of "Phoenix," and proof that it is intoxicating: State v. Pfefferte, 36 
 Kan., 90. 
 
 An article called '* Snnsmile," containing fifteen per cent, of alcohol and cap- 
 able of producing intoxioation, is an intoxicating liquor within the act : Prussia 
 V. Guenther, 16 Abb., N. C, 230. 
 
 Generally, win<j is an intoxicating liqaor : State v. Packer, 8 North Carolina, 
 449. But nut in Iowa, when made from native grapes, currants or fruits : 
 Worley v. Spurgeon, 38 Iowa, 466. 
 
 Whiskey is " intoxicating " : Egan v. State, 58 Indiana, 162. 
 
 ' Old Tom Gin " was 
 Scott V. Gilmore, 3 
 
 11 
 
 It was held in Winning v. Gow, 32 U. 0. B., 628, that 
 spirits. Spirits are spirits althoagh diluted with water : 
 Taunt., 226. 
 
 When strong drink ceases to be such and becomes medicine, is discussed in 
 State V, Laffer, 38 Iowa, 422. See also Bogers' "Drinks, Drinkers and 
 Drinking." 
 
 As to the word "liquor," Patterson, J. A., in Northcote v. Brunker, 14 App, 
 B., at page 373, says : " As I read the interpretation clause in the Statute, the { 
 word ' liquor,' when used in the Act, not only comprehends intoxicating liquor, 
 but is restricted to that meaning. It is to be ' construed to mean and compre- 
 hend all,' &o. The clause was the same in the Act of 1874, 37 Vic, o. 32 ; but I 
 most of the namerons clauses and all of the forms of the B. S. 0., in which the 
 word ' liquor ' is used, without being qualified by the word intoxicating, come 
 from the Acts of 1876, (39 Yic, o. 26) and of 1877, (40 Vic, c. 18). The word 
 was not employed in the same general way in the Temperance Act of 1864, 
 commonly Imown as the Dunkin Act, yet when that Act is referred to in the 
 Act of 1876, sec. 27, its prohibition is said to be of the " sale of liquor." The I 
 B. S 0., c. 181, is < The Temperance Act of Ontario.' Like the Dunkin Act, I 
 it has a definition of 'Intoxicating Liquor,' bat none of 'liquor' by itself,! 
 Tet we find in sec. 40 of c. 181, the word ' liquor,' need to denote liquors which | 
 it is made unlawful to sell withoat license under the Liquor License Act — mean- 1 
 ing of course, 'intoxicating' liqaor." All spiritaoas and malt liquors are! 
 
2.] 
 
 THE LIQUOR LICENSE ACT. 
 
 ■5,. 
 
 2. " Tavern license " {c) shall mean a license for selling, {d) '{^^ 
 bartering or trafficking by retail {e) in fermented, spirituous 
 or other liquors, in quantities of less than one quart, (/) 
 
 assumed for the purposea of the Act to be intoxioating, and all oombinations 
 of drinkable Uqnids, which are intoxicating are placed on the same footing as 
 spiritnouB and malt liqaora : Harrison's Man. Man., 892. (See Sec. 113.) 
 
 (e) "License," means a writing or instrament anting permission or 
 authority.— Worcester. 
 
 " Licensed premises," as used in the English Licensing Acts, means premises 
 open to the pnblio for the sale of drink, under the provisions of the Act : Lester 
 V. Torrens, 2 Q. B. D. 403. 
 
 The licenses provided for here are : (1) Tavern Licenses ; (2) Shop Licenses ; 
 and (3) Wholesale Licenses ; the nature of each being defined in the Act. A 
 " tavern license " permits the sale of liquor by retail, which is defined to mean 
 in quantities l^ss than a quart, and the liquor sr'i to be drunk on the premises. 
 The " shop license " is also a retail license, whl a permits the sale in quantities 
 cf not less than three half-pints, not to be drunk on the premises, and a license 
 by wholesale, or " wholesale license " authorizing the sale of liquor in quanti- 
 ties of not less than five gallons at one time. 
 
 A sale by a licensee of any less quantity than is authorized by his license, is a 
 punishable offence ; R. v. Faulkner, 26 U. 0. B., 529; B. v. Denham, i)6 
 U. 0. R., 608. 
 
 (d) The person who is the ' ' seller," is the person who keeps the shop or actually 
 oondncts the business of the place where the sale is transacted, even though he 
 only sells the article on commission for another person living elsewhere and 
 having no control over the shop or place : Templeman v. Trafford, 8 Q. B. D., 
 39'i. The definition of the verb " to sell," given by Worcester, is " to deliver, 
 part with, or dispose of, for some equivalent in money ; to exchange for money ; 
 to vend ; — correlative to buy, and distinguished from to barter, which implies 
 an exchange of one commodity for another." To barter, is "to traffic by 
 exchanging one commodity for another, to trade by exchange of goods in dis- 
 tinction from trading by the use ot money." To traffic, is "to carry on 
 commerce or trade ; to buy and sell ; to exchange ; to barter." 
 
 («) Selling a bottle of brandy is selling by retail : B. v. Denham, 86 U. 0. B., 
 603 , and a sale of a bottle of gin, valued at sixty cents, is a sale by retail : 
 B. V, Strachan, 20 0. P., 182. But the Statute here defines the meaning as 
 " in quantities of less than one quart," and a license is necessary in all cases 
 for selling liquors. See sec. 49. 
 
 A company under charter has no greater right to sell liquors than individuals 
 I can possess, nor is it exempt from any legislative control to whieh they are sub- 
 I ject : Beer Company v. Massachusetts, 97 U. S., 25. 
 
 It was held that if a person takes a part of a house, either in his own name 
 I or in the name of another person, and there personally, or by his agent, makes 
 [sales by retail, he carries on business there as a retailer of spirits, even though 
 [no spirits are actually stored on the premises, and even though the store was 
 [kept in another town : Stallard v. Marks, 8 Q. B. D., 412. 
 
 (/) " The unit or standard measure of capacity from which all other measures 
 lof capacity, as well for liquids as for dry goods, shall be derived, shall be the 
 Igallon containing ten (10) Dominion Standard pounds weight of distilled water, 
 Iweighed in air against brass weights, with the water and the air at the temper- 
 latnre of sixty-two degrees of Fahrenheit's thermometer, and with the barometer 
 |at thirty inches. The quart shall be one-fourth part of the gallon ; the pint 
 shall be one-eighth part of the gallon :" B. S. C, o. 104, s. 15. 
 
 Where a drink was sold for ten cents, the Oourt held that the jury were 
 
 E>* 
 
 
 <^Va 
 
 ,' W ' ', ' 
 
 
 
 A. i 
 
'lil 
 
 lit 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 
 
 2. 
 
 ■ 't 
 
 Shop 
 lioense. 
 
 " Lioenie 
 by whole- 
 sale." 
 
 
 which may be drunk in the inn, (g) ale or beer-house, or 
 other house of public entertainmen*^ In which the same liquor 
 is sold. 
 
 3. " Shop license " shall mean a license for selling, bar- 
 tering or trafficking by retail in such liquors in shops, stores, 
 or places other than inns, ale or beer-houses, or other houses 
 of public entertainment, in quantities not less than three 
 half-pints at any one time, to any one person, and at the 
 time of sale to be wholly removed and taken away, in 
 quantities not less than three half-pints at a time. 
 
 4. " License by wholesale " or •' Wholesale License " shall 
 mean a license for selling, bartering or trafficking, by whole- 
 sale only (A) in such liquors in warehouses, stores, shops, 
 
 anthorized in finding that the quantity was less than a quart : Hamilton v, 
 atate, 108 Ind., 96 ; 88 Alb. L. J., 480. 
 
 ig) An " inn " may be defined to be a honse in which travellers, passengers, 
 way-faring men and other like oasaal guests are aooommodated with Tiotnals 
 and lodgings and whatever they reasonably desire for themselves and horses, 
 at a reasonable priee, when on their way : Thompson v. Laay, 8 B. & Aid., 
 283 ; 1 Bum's, Just., Alehouse, 80th Ed., 64. 
 
 A refreshment bar, though part of a duly licensed premises, is not an " inn :" 
 B. V. Bymer, S Q. B. D., 186 : Strauss v. County Hotel Co., 12 Q. B. D., 27 ; 
 nor is an ordinary ooffee-house : Doe v. Laming, 4 Camp., 78 ; nor is a 
 boarding-house : Dansey v. Biohardson, 8 E. <b B., 144 ; but a London coffee 
 house, where beds as well as provisions are provided, would seem to be an " inn :" I 
 Thompson v. Laoy, Mipni; see 1 Smith's L. C, 142 ; Add. on Con., 297, 298. 
 
 An " alehouse " is a place where excisable liquors are sold by retail, to be 
 drunk on the premises. TIm word is probably synonymous with "pablie 
 house" and "tavern," which latter words were employed in London and 
 Suburban Land Co. v. Field, 16 Ch. D., 645 ; Holt v. Collyer, 16 Ch. D., 
 718 ;, see Stroud's Diot., 27. 
 
 Woreester defines an " ale-honse " to be " a house where ale and beer an j 
 sold," '-^n a " tavern " to be " a public house Where wine and liquors are sold 
 and ()n».-<ainmentB for a party are provided ; 
 
 *' <in inn," *' tavern," "hotel" and "public honse" are synonymous in this j 
 country, and while they entertain the travelling public, and receive compensation | 
 therefor, they do not lose their character, though they may not have the privi- 
 lege of selling liquors: see Anderson's Diet., 1006. 
 
 (h) The definition here given is quite clear enough, but in the U. B., a Qian- 
 ufaoturer of liquor selling in unbroken packages at his place of business to { 
 dealers, is not a " wholesale liquor dealer," liable to taxation, as other merchants : 
 Taylor v. Vincent, 12 Lea., 282 ; S. C. 47 Am. Bep. 888 ; Pearce v. Com., 6 
 Ey. L. Bep. 118. The mere fact that a liquor dealer sold by the quart and in I 
 larger quantities, not drunk or intended to be drunk on the premises, is not 
 enough to constitute him a " wholesale dealer :" State v Lowenhanght, 11 1 
 La., 18. 
 
 As a general rule, " wholesale " merchants deal only with persons who bnj 
 to sell again, while " retail " merchants deal with consumers ; per Bacon, V.O., 
 Treacher v. Treacher, W. M. (1874), 4. 
 
ss. 
 
 2,3] 
 
 THE LIQUOR LICENSE ACT. 
 
 or places other than inns, ale or beer-houses, (i) or other 
 houses of public entertainment, in quantities not less 
 than five gallons in each cask or vessel at any one time ; 
 and in any case where such selling by wholesale is in respect 
 of bottled ale, porter, beer, wine or other fermented or 
 spirituous liquor, each such sale shall be in quantities not 
 less than one dozen bottles of at least three half-pints each, 
 or two dozen bottles of at least three-fourths of one pint 
 each, at any one time. R. S. O. 1877, c. 181, s. 2. 
 
 5. " Three half-pints " shall, where bottled liquor is sold, "T,*f'®« 
 be held to be equivalent to five quarter pints Imperial pints." 
 measure. 44 V. c. 27, s. 23. 
 
 6. "License District" shall mean the City, County, p^^*".^"^^ 
 Union of Counties, or Electoral District or Districts, (/) 
 
 or any part of an Electoral District, or a union of parts of 
 two or more Electoral Districts, as the Lieutenant-Governor 
 in Council may by order direct. 
 
 7- 
 
 "Polling sub-division" shall mean the polling sub-"Poijing 
 
 Bub-divli 
 
 division for the last general election for the District for the ion. 
 Legislative Assembly in which the licensed premises or the 
 premises for which a license is sought are situated. 
 
 8. "Inspector" shall mean an Inspector of Licenses j^p®^®.. 
 appointed for a license district under this Act. 47 V. c. 34, 
 s. I, part. 
 
 ''The Canada Temperance Act" shall extend to and "Canada 
 
 * Temper- 
 
 so V. C. 33,anc^.Act, 
 meaning of 
 
 include The Canada Temperance Act, 1878. 
 
 is. 9. 
 
 3* There shall be a board of license commissioners {K) Board of 
 I to be composed of three persons, to be appointed by the commis- 
 Lieutenant-Governor for each city, county, union of coun- 
 
 (t) See Note {g) lupra. 
 
 0) See the Act respecting "Territorial Divisions of Ontario," B. S. O., 0. 5. 
 I See also See. 3 and notes thereto. 
 
 ik) Any doubt as to the authority of the LeRislatore to create a board of 
 iLioense Oommissioners, was settled in Hodge v. The (jaeen, 9 App. Oas. 117, in 
 |wliich it was held that the " Liquor License Aet," was within the powers of the 
 Tiegislative Assembly. See also cases cited in note to sec. 1. 
 
 ; 1' ' t 
 
 .^y; 
 
 
 
8 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 3, 4. 
 
 ties, electoral district, or license district, as the Lieutenant- 
 Governor may think fit ; (/) and any two of the said com- 
 missioners shall be a quorum (m), and each of them shall 
 cease to hold office on the 31st of December in each year, 
 but he may be re-appointed ; and the said office shall be 
 honorary and without any remuneration. R. S. O. 1877, 
 c. 181, s. 3; 48 V. c. 43, s. SfParf. 
 
 the'oom?' ^*» ^^^ board of license commissioners («) may {0) at 
 muaion- j^y tip^jg before the ist day of May in each year, pass reso- 
 
 ld The word " shall "!■ imperative : Interpretation Aot, B. S. O. 1887. 0. 
 1, 0. 8, BB. 2. The appointment of a board of license oommisBioners is 
 imperative, bat the Ooverment may aae its discretion in appointing the board 
 for either of the divisions named, viz : for each city, county, union of 
 counties, electoral district, or license district, aa it may think fit. As a matter 
 of fact there is a board of license commissioners appointed for each electoral 
 district of the Province. A list of the license districts will be found in the 
 appendix. 
 
 The power of appointment by the Government, as in this Section provided, 
 impliedly carries with it, in the absence of language to the contrary, the power 
 of removal : Interpretation Act, B. S. O., c. 1, s. 8, ss. 36. 
 
 (m) " Quorum " means the number of members of an administrative or judi- 
 cial body whose presence is necessary for the acts of the body to be valid. The 
 term is derived from " the justice of the quorum," the latter being the first word 
 of the commission appointing the Justices of the Peace for a County, under 1 
 Ed. Ill St. 2, 0. 16; the words of the commission running thus: "Quorum 
 aliquem veitrum A. B. C. D., etc., unum eue volumui." 
 
 A notice of action is necessary in an action for damage against a Board of 
 License Commissioners acting under the Liquor License Act : Leeson v. 
 License Com. of Dufferin, 19 0. B., 67. 
 
 (n) The position of a License Commissioner is honorary and without remun- 
 eration, but the Inspector may be paid a salary for his services. 
 
 (0) In some cases it^as been held that the word " may " is not used to give 
 discretion, but to confer a power, the exercise of which depends upon the proof 
 <'f the particular case out of which such power arises : MaoDougall v. Patter- 
 eon, 11 G. B., 756; Crake v. Powell, 2 El. & Bl., 210. But it has been said: 
 "Though dicta of eminent judges may be cited to the contrary, it must b« 
 the plainest conclusion of common sense that ' may ' and such like phrases give 
 in their ordinary meaning an enabling and discretionary power." 
 "They are potential, and never (in themselves) significant of an; 
 obligation : per Ld. Selbome, Julius v. Bishop of Oxford, 6 App. Cas. '^14, p. 235, 
 " They confer a faculty or power, and they do not of themselves do more than 
 confer a faculty or power ;" and, therefore, where the point in question is not 
 covered by authority, " it lies upon those who contend that an obligation exists 
 to exercise this power to shew in the circumstances of the case something 
 which, according to the principles I have mentioned, creates this obligation :" 
 per Cairns L. 0. , Julius v. Bishop of Oxford, 6 App. Cas., 214, at p. 223. The Lord 
 Chancellor also collects the principles referred to by him in that case into the I 
 following propositions : *' Where a power is deposited with a public officer for 
 the purpose of being used for the benefit of persons (1) who are specifically j 
 pointed out, and (2) with regard to whom a definition is supplied by the legis- 
 
1/ ■(< ' 
 
 4.1 
 
 THE LIQUOR MCEp.SE ACT. 
 
 lutions for regulating and determining the matters following, 
 that is to say : (/.) 
 
 I. For defining the conditions and qualifications requisite 
 to obtain tavern licenses for the retail within the municipal- 
 ity, of spirituous, fermented or other manufactured liquors, 
 and also shop licenses for the sale by retail within the 
 
 P 
 
 Deflning 
 reqnlfllteg 
 for grant - 
 tnR taveru 
 and Bhop 
 lloenMB. 
 
 
 lature, of the conditions upon which they are entitled to call for its exercise, 
 that power ought to be exercised, and the Oourt will require it to be exercised." 
 
 Enabling words are also construed as compulsory, whenever the object of 
 tbe power is to effectuate a legal right: pn Ld. Blackburn, 8. 0., 6 App. 
 Caa., 214, at p. 214. Such words and phrares, therefore, group themselves into 
 two olasaes : (1) an obligatory duty; and (2) a discretionary or enabling power. 
 It iB submitted that the power here given to the License Commiasioners comes 
 within the latter class, and that the exercise of it is entirely discretionary. By 
 tbe It. S. 0., 1887, o. 1, s. 8, sub. s. 2, the word " shall " is to be construed as 
 imperative, and the word " may " as permissive. As to the question of discre- 
 tionary power, see Maxwell on Stats., pp. lOU, 101 ; Macbeth v. Ashley, L. B. 
 2 Scotch App., 362, cited Sinclair's D. 0. >ot, 1884, p. 12, 13 ; and for cases in 
 wbioh the enabling words have been held to impose a discretionary or enabling 
 power, see Stroud's Diet., 166 ; see also remarks in notes to section 18 post. 
 
 {])) The powers of the Commissioners within the limits prescribed in this 
 section are very ample. That they can create offences and annex penalties 
 thereto is shewn in the ease of Hodge v. The Queen, 9 App. Gas., 117. (ante 
 p.l). 
 
 The expression "regulating and determining," appears to be used here to 
 denote the making by resolution of rules and by-laws governing the subjects 
 mentioned, which are : 1. The conditions and qualifications requisite to obtain 
 licenses ; 2. For limiting the number of taverns and shops ; 3. For declaring a cer- 
 tain number of tavern licenses in cities and towns, may issue to persons exempted 
 from having the accommodation required ; 4. For regulating the taverns and 
 shops to be licensed ; and o. For fixing and defining the duties, powers and 
 privileges of the inspector of their district. The Board of License Oommission- 
 era thus formed and endowed is in the nature of a municipal body created and 
 appointed under the authority of the Legislature, with power to pass under the 
 name of resolutions what we know as by-laws, or rules governing matters of a 
 merely local nature in the Province. Such powers are said to be similar to, 
 though not identical in all respects with, the powers belonging to municipal 
 institutions under previously existing laws passed by the local Parliaments. 
 " The powers intended to be conferred are to make regulations in the nature of 
 police or municipal regulations of a merely local character, for the good govern- 
 ment of taverns, etc., licensed for the sale of liquors by retail, and such as are 
 calculated to preserve in the municipality peace and public decency, and repress 
 drunkenness and disorderly and riotous conduct :" Hodge v. The Queen, 9 App. 
 Cas., 117. As to extent of police power see Minneapolis & St. Louis B'y Go. v. 
 Beckwith, 9 S. C. Eep. (U. S.), 207. 
 
 It seems, therefore, that the License Commissioners have the same power to 
 make by-laws in relation to the licencing of taverns and in regard to licensed 
 taverns as, under the Municipal Institutions Act of 1866 and other Municipal 
 Acts of the late Province of Upper Canada, was possessed by Municipal Goun- 
 ! oils and Commissioners of Police, respectively : per Spragge, O. J., in Begina v, 
 Hodge, 7 App. B. at p. 259. Bee note to seo. 1. 
 
 The regulations of a municipal body, such as are here authorized, must not 
 I be inconsistent with the Acts creating it. Such Acts are its charter, hence all 
 
 'SMI' 
 
to 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 4. 
 
 LimltiDR 
 number 
 of lloen- 
 set, eto. 
 
 municipality, of such liquors in sh^ps or places other than 
 taverns, inns, ale-houses, beer-houses or places of public 
 entertainment ; (^.) 
 
 2. For limiting the number of tavern and shop licenses 
 respectively, and for deflning the respective times and 
 localities within which and the persons to whom such lim- 
 ited number may be issued within the year, from the ist 
 day of May of one year till the 30th day of April inclusive 
 of the next year, (r.) R. S. O. 1877, c. 181, s. 4 (i, 2). 
 
 t 
 
 If' ' 
 
 liiii' 
 'illH' illli' 
 
 laws in oontravention of them are void. " The trne teat of all by-lawB is the 
 intention of the Grown in granting the charter, and the apparent good of the 
 Corporation." B. v. Spencer, 8 Burr 1838. See Angell it Ames on Oorpora- 
 tions, 84t' ; see also B. v. Miller, 6 T. B., 277 ; B. v. Barber Surgeons, 1 Ld. 
 Bay'd 684 ; State v. Bruder, 88 Mo., 460 ; Thompson v. Carroll, 23 How.. 422 ; 
 Andrews v. Insurance Go. , 87 Maine, 266 ; /n r« Bell v. The Cor .of Manvers, 8 G . P. 
 899. And as in the case of the exercise of other discretionary powers conferred 
 by the Statute, " should be exercised according to the rules of reason and 
 justice, not private opinion ; according to law and not humour ; it is not to be 
 arbitrary, vague and fanciful, but legal and regular. And it must be exercised 
 within the limits, to which an honest man, competent to the discharge of his 
 office, ought to confine himself; that is within the limits and for the objects 
 intended by the Legislature :" Maxwell on Stat. 101 ; Sharp v. Wakefield, 
 22 Q. B. D., 289, affirmed on appeal, W. N. (1891), 60. 
 
 As to the meaning of the word " regulations," see In re Snell and the Cor. 
 of Belleville, 80 U. 0. R., 81 ; Boss v The Oor. of Tork and Peel, 14 0. P., 
 171 ; re Brodie v. The Gor. of Bowmanville, 88 U. G. B., 680. 
 
 All such by-laws must also be in accord with the common or statute law of 
 the country. " All by-laws must ever be subject to the general law of the 
 Bealm, and subordinate to it :" Norris v. Staps, Hob. 210, cited in Harrison's 
 Mun. Man., 218. 
 
 The 82 Vic, 0. 82, s. 6, (0.) provided that the Police Commissioners should 
 have power to pass by-laws " regulating " licensed taverns. A by-law under it 
 providing that the bar-room should be closed and unoccupied, except by mem- 
 bers of the keeper's family or his employees, and should have no light therein, 
 except the natural light of day, during the time prohibited by the by-law, was 
 held to be unauthorized and a conviction under it was quashed : per Morrison, J., 
 B. V. Belmont, 86 U. G. B., 298. (See Sec. 64.) 
 
 (9) See sees. 27, 28 and 29, and notes thereto. 
 
 (r) By Sec. 18, the maximum number of licenses to be issued in each manioi- 
 paUty is fixed. The Commissioners may limit the number to less than that 
 prescribed by that section, but they cannot exceed it. See notes to that seotion. 
 
 A by-law of a town passed under 89 Vic, 0. 26, sec. 2, snb-s. 8, (0.) limiting 
 the number of shop licenses to be issued in the town to one, and directing the 
 holder of such license to confine the business of his shop exclusively to the 
 keeping and selling of liquor : Held bad as being in effect, prohibiting and 
 creating a monopoly : In r« Brodie v. The Town of Bowmanville, 88 U. G. B., 680, 
 
 It is not, as a general rule, intended that Municipal Councils and License 
 Commissioners should have concurrent powers, and it was held that a 
 by law of the town, providing for the closing of licensed houses during certain 
 hours, and that the holder of a license should not sell intoxicating liquor at 
 any other than the house for which he had received a license, except that in case 
 
S.4.] 
 
 THE LIQUOR LICENSE ACT. 
 
 I t 
 
 3. For declarin<j[ that in cities having a population accord- 
 ing to the then last Dominion census of less than fifteen 
 thousand, a number not exceeding three persons ; a popu- 
 lation of between fifteen thousand and thirty thousand, a 
 number not exceeding five persons ; a population of over 
 thirty thousand, a number not exceeding ten persons ; and 
 in towns having a population of over six thousand, a number 
 not exceeding two persons qualified to have a tavern license, 
 may be exempted from the necessity of having all the tavern 
 accommodation required by law; {s.) 47 V. c. 34, s. 2. 
 
 4. For regulating the taverns and shops to be licensed ; (/.) 
 
 5. For fixing and defining the duties, powers and privi- 
 leges of the inspector of their district. («.) R. S. 0. 1877, 
 c. 181, s. 4, (4, 5)' 
 
 [6. To remove doubts it is hereby declared to be and 
 always to have been the true intent and meaning of this 
 section that regulations duly passed by the board of license 
 commissioners in accordance with the provisions thereof 
 shall remain in force until amended or repealed by the same or 
 any subsequent board of commissioners.] (v.) S3V.,c. 56,5.3. 
 
 tloD from 
 bavltig 
 aoooin- 
 modation. 
 
 RoRulaU 
 ing tav- 
 erua. 
 
 Doflnina 
 dutlei <3 
 luspeo- 
 tors. 
 
 
 of his removal to another house, the Inapeotor might endorse his permiBsion on 
 the lioense, was beyond the jnrisdiotion of the Gounoil aB being an ozeroiBe 
 of the powers transferred by the Aot to the Board of License Oommissioners : 
 lb. 
 
 But by-laws prohibiting the giving of liqnor to minors, and gambling and 
 disorderly oondnot in a licensed hoase were held valid, as was also a by-law pro- 
 viding that no billiard table shonld be lieenBed or kept in a licensed house, and 
 that no Bale of liquor shonld take place between 7 p. m. and 7 a. m. : In re 
 Arkell v. The Town of St. Thomas, 88 U. G. B., 694. 
 
 The Board of License Oommissioners are public officers, and as such entitled 
 to notice of action : Leeson v. License Com. of Dufferin, 19 0. B. 67. 
 
 («) The License Oommissioners may, by regulation, exempt a certain number 
 of persons to whom licenses may be granted, in cities and towns, from having 
 all the tavern accommodation required by law (see Sees. 37, 28 and 29). The 
 number is limited by the section, and may not be exceeded under any circum- 
 Btances : see Sec. 67. 
 
 (t) As to regulations see Note (p) lupra. • ■ 
 
 (u) As to duties of Inspector see Sees. 129, 184. The Government appoint 
 
 I the Lioense Inspectors, but the License Oommissioners are here empowered to 
 
 pass resolutions fixing and defining the duties, powers and privileges of the 
 
 Inspector for their district, but they cannot interfere with those duties, powers, 
 
 I etc., provided by the Aot. 
 
 (v) This Bub-Sec. is added, by 68 Vic. c. 66, s. 8. The License Commission- 
 I era cease to hold office on 8l8t December in each year, but may be re-appointed. 
 1 It has been doubted whether the regulations passed by them do not expire with 
 
 
 
 Mm 
 
 ivi-l 
 
ill 
 
 ir/-i 
 
 r: • B 
 
 if i, 
 
 1 
 
 ii- ■■■ 
 
 1, 
 t 
 
 '1:^ .1 
 
 i 
 
 'if ii 
 
 • 
 I.I' 
 
 ill- ' f 
 
 
 m 
 I'lii 
 
 ^ 
 
 t 
 
 ; 
 
 ii'"' 
 
 .1/ 
 
 
 - 
 
 1 
 
 ii, 
 
 12 
 
 Penalties 
 maybe 
 imposed 
 by regula- 
 tions. 
 
 Inspec- 
 tors of 
 Licenses, 
 appoint- 
 ment, 
 powers 
 and duty 
 and se- 
 curity. 
 
 THE LIQUOR LICENSE ACT. 
 
 fss. 5, 6. 
 
 Am In and by any such resolution of a board of license 
 commissioners the said board may impose penalties for the 
 infraction thereof, (w.) R. S. O. 1877, c. 181, s. 5. 
 
 0« An inspector shall be appointed by the Lieutenant- 
 Governor (x) from time to time for each city, county, union 
 of counties, electoral district, (7) or license district, as the 
 Lieutenant-Governor may think fit ; and each inspector 
 shall, before entering upon his duties, give such security (z) 
 
 their term of office, and shoald not be re-enaoted by their saccessors. The 
 proTision here made is intended to remove all doubts on the subject : see sec. 3. 
 
 (tr) Held that the Local Legislature had power by The B. N. A. Act, 1867, to 
 entrust to a Board of Commissioners, authority to ecact regulations and to 
 create offences and annex penalties for the infraction of such regulations and 
 the punishment of such offences : Hodge, v. The Queen, 9 App. Gas., 117, 
 see also Saunders z;. S. E. Bailway Go., 5 Q. B. D., 466. 
 
 (x) Where the Lieut- Governor appoints, he would have the inherent right of 
 removal. The Inspector therefore holds his office during the pleasure of the 
 Government : Interpretation Act. sec. 8, ss. 26. See Sinclair's D. G. Act 1888, 
 p. 13. 
 
 The words " Lieutenant-Governor " mean the Lieutenant-Governor for the 
 time being of Ontario, or other Chief Executive Officer or Administrator for the 
 time being, carrying on the Government of Ontario, by whatever title he may be 
 designated : Interpretation Act, sec. 8, bb. 6. See note (k) to sec. 3. 
 
 {y) See note ({) sec. 3. 
 
 {z) *' Every person appointed to any civil office or employment, or commission 
 in any public department of the Government of this Province, or to any office 
 or employment of public trust, or wherein he is concerned in the collection, 
 receipt, disbursement or expenditure of any public money under the Government 
 of this FrovincT, and who by reason thereof, ia required to give security, with 
 a surety or sureties, or otherwise, shall, within one month after notice of his 
 appointment, if he is then in Ontario, or within thrc" months, if he is absent 
 from Ontario, (unless he sooner arrives in Ontario, and then within one month 
 after such arrival), give and enter into a bond or bonds, or other security or 
 securities, in such sum and with such sufficient surety or sureties as may be 
 approved of by the Lieutenant-Governor, or by the principal officer or person in 
 the office or department to which he is appointed, for the due performance of 
 the trust reposed in him, and for his duly accounting for all pubUa moneys 
 entrusted to him or placed under his control." B. S. , 3. 16, s. 9. 
 
 The bond to be given must be proved as to the execution thereof, by an 
 affidavit of execution of the attesting witness, in the form of Schedule A. an- 
 nexed to the Act, (see appendix), made before a Justice of the Peace, and every 
 snretv in the bond, shall make an affidavit of justification, in the form Schedule 
 B. annexed to the Act, before a Justice of the Peace. The bonds, with the 
 affidr its annexed, shall be recorded at full length in the office of the Secretary 
 and x.egi8trar of this Province, and the original deposited in the office of the 
 Treasurer of the Province within one month after bein(j; entered into or given, 
 if the person resides in Ontario, and it he is absent from Ontario, then within 
 thrde months after being entered into or given, unless such person arrives 
 sooner in Ontario and then within one month after such arrival. lb., s. 10. 
 
 But the Lieatanan^-Govemor may in certain oases extend the time for giving 
 security. The Lieuienant-Govemor, by an order in Ooonoil, may direot that 
 

 ss. 6, 7, 8.] 
 
 THE LIQUOR LICENSE ACT. 
 
 n 
 
 as the Provincial Secretary may require for the due perfor- 
 mance of his said duties, and for the payment over of all 
 sums of money received by him according to the provisions 
 of this Act ; and the salary of every inspector shall be fixed 
 1)V the Lieutenant-Governor in Council, {a ) R. S. O. 
 ,877, c. i8i, s. 6; 48 V., c. 43, s. ^, part 
 
 y . A chief inspector may be appointed fo^ the city of chief 
 Toronto, and he shall have jurisdiction throughout the said may be 
 
 ' . . appointed 
 
 city. He shall perform all the duties of an mspector and in Tor- 
 sliall have all the rights, powers and authority thereof, and 
 shall be charged with the duty of seeing that this Act is 
 enforced in the districts into which the said city is divided. 
 He shall, unless the Lieutenant-Governor otherwise directs, 
 act as the secretary of the board of license commissioners, 
 and shall, in company with the inspector, visit and inspect all 
 premises for which a license is sought, and shall perform 
 such other duties as may be assigned to him by the board 
 or by the Lieutenant-Governor in Council, (d.) 49 V., 
 c. 39, s. 19. 
 
 8. (i) The Lieutenant-Governor in Council (f) may direct issue of 
 the issue of licenses on stamped paper, written or printed, 
 or partly written or partly printed, {d) of the several kinds 
 
 the bond or polioy of guarantee of any ineorporated or joint stock company 
 empowered to grant guarantees, &o., may be accepted as such security. See 
 the Act respecting Public Officers, B. S. 0., c. Id, sees. 9, 27. 
 
 The word security shall mean sufficient security, and when these words are 
 used one person shail be sufficient therefor, unless otherwise expressly required : 
 R. S. 0, 1887, c. 1, 8. 8, sub s. 20. 
 
 The security must be given before the Inspector enters upon his duties, and 
 a newly appointed Inspector must be particular not to do anything of an official 
 nature until this provision of the Statute is complied with. As to liability of 
 sureties generally see Sinclair's D. 0. Act 1888, p. 16. 
 
 {c) The words " Lientenant-Qovemor in Council," mean the Lieutenant- 
 Governor of Ontario or other person administering the Qovernment for the 
 time leing, acting by and with the advice of the Executive Council of Ontario : 
 I Interp.'etntion Act, sec. 8, ss. 7. 
 
 (b) .. " Chief Inspector " means one who is the head or principal over other 
 
 {luapeotvrs. 
 
 The jarisdiction of the officer to be appointed under this section is limited to 
 I the City of Toronto. His duties are not only those here defined, but also such 
 as may be assigned to him by the Board of License CommisBioners of Toronto, 
 land the Lieutenant-Governor in Council. 
 
 (c) See sec. 6, note (a). 
 
 (d) " Writing" or " written," or any term of like import, shall include words 
 
 \ 
 
 
 ■ ■ . ■ '^ 
 
 ; I.,- 
 
 ^i ' lii'f'l 
 
 I'l ' 
 
 I i 
 
 •4 if -" 
 
 1 
 
 t 1 1 
 
 'yi'-^'d'i 
 
H 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 8. 
 
 
 After the 
 let 0* May 
 
 In speoial 
 oases. 
 
 hereinbefore mentioned ; and the Hcenses shall be signed by 
 the Provincial Secretary and dated as of the ist day of May 
 (e) in each year, and shall thence continue (/) in force for 
 one year, (g) and shall expire on the 30th day of April in 
 the next ensuing year. 
 
 (2 ) After the ist of May, tavern {A) and shop licenses may 
 be issued between the ist and 15th days of May in each 
 year; (i) and licenses by wholesale (/) may be issued 
 between the first and last days of May (k) in each year ; 
 and all such licenses shall be deemed to have been issued 
 on the said first day of May. 
 
 (3.) Where special grounds are shewn, (/) the license com- 
 missioners may direct one or more licenses to issue at any 
 time after the said ist day of May, if within the limit 
 authorized by this Act ; provided always that the petition 
 or application therefor shall have been filed with the in- 
 spector on or before the ist day of April next preceding. 
 R. S. O. 1877, c. 181, s. 7 ; 47 V. c. 34, s. 3. 
 
 [But this proviso shall not apply to petitions or applica- 
 
 printed, engraved, lithographed, or otherwise traced or copied : Interpretation 
 Act, sec. 8, BS. 14. 
 
 (e) The license may iasae in some special cases alter the Ist May, bat in 
 every case must bear that date : " as of the 1st day of May," means as if it had 
 been issued on that day : See Aloock v, Sutoliffe, 4 D. & L., 612. All licenses 
 shall be deemed to have been issaed on the Ist May, (see ss. 2). 
 
 (/) " Continue " has been held to mean the same as " to tarry," '* to remain " : 
 See Go. Litt., 82 a. b., cited Stroud's Diet., 242. 
 
 (p) " One year " means a calendar year : Interpretation Act, sec. 8, ss. 15. 
 And an agreement not to be performed within the space of one year, was held 
 to mean within 12 calendar months from that date: Bracegirdle v. Heald, 
 1B.& Aid., 722 ; Snelling v. Huntingfield, 1 G. M. (ft U. , :>0. The year under 
 this section is from 1st May until SOth April inclusive ; the lictose being in 
 force during that time. 
 
 {h) See sec. 2, note (e). 
 
 ({) " Between " two days has been held to exclude both days : Bunce v. Reed, 
 16 Barb., 862 (1863), cited Anderson's Diet., 118. See Arch. Pract., 18th Ed., 163. 
 
 ij) See sec. 2, ss. 4. 
 
 (k) Wholesale licenses may be issued at any time daring May, but must, 
 like other licenses, be dated on the Ist of that month and will expire on the 
 following SOth of April. 
 
 (0 The "special grounds" authorizing the extension of the time for issuing 
 the license, it is surmised, would be any extraordinary facts or circumstances 
 the applicant may be able to shew, or which may arise in connection with tlie 
 matter causing dalay, and which the License Oommissioners may deem sufficient. 
 The application for Uie licenae mast have been filed at the usual time. 
 
 m 
 
8.] 
 
 THE LIQUOR LICENSE ACT. 
 
 IS 
 
 tions made in counties or cities, in which the second part 
 of The Canada Temperance Act, having been in force has 
 been repealed, such repeal taking effect after the said first 
 day of May in any year.] {m.) 52 Vic, c. 41, sec. i. 
 
 (m) This Bub-seo. is added to sab-seo. 3, by 62 Vio., 0. 41, ti. 1, by way of 
 amendment to the B. S. 0., 0. 194. It applies to and is to be read as a part of 
 the last sab-section. 
 
 The right of the Legislative Assembly to legislate in respect of licenees 
 for the sale of intoxicating liquor, as we have seen in the notes to sec. 1, was 
 established in the case of Hodge v. the Queen, 9 App. Gas. 117. 
 
 In the session of the Dominion Parliament, held in 1883, it passed an Act 
 respecting the sale of intoxicating liquors and the issue of licenses therefor, 
 entitled " The Liquor License Act, 1883." This Act, in effect, divided the 
 Dominion into a number of license districts ; provided for the appointment of 
 Boards of License Commissioners and of Inspectors ; defined their duties, 
 powers and functions ; and provided for the issue of: — (1) Hotel licenses ; 
 (2) saloon licenses ; (3) shop licenses ; (4) vessel licenses ; and (5) wholesale 
 licenses ; provided procedure relative to applications for and opposition to the 
 granting of licenses ; conferred powers upon Municipal Councils to pass by-laws 
 limiting the number of licenses to be issued, and to prohibit, by a vote of three- 
 fifths, the issue of such licenses ; and made other provisions very similar to 
 those contained in " The Liquor License Act" of the Province of Ontario. 
 Doubts having arisen as to whether the Act was within the power of the Domin- 
 ion Parliament, provision was made by 47 Vic, (D.) 0. 32, s. 26, for the 
 determination of the question by reference to the Supreme Court of Canada, or 
 by the Judicial Committee of the Privy Council, at the request of the Oovemor- 
 General or of the Lieutenant-Oovemor of any Province. By virtue of such 
 provisions a special case was submitted to the Supreme Court, in which the 
 following judgment was delivered : 
 
 "IN THE SUPREME COURT OP CANADA. 
 
 Monday, 12th January, A. D. 1886. 
 
 Pbbsent:— The Honorable Sir William Johnstone Ritchie, Enight, Chief 
 Justice; the Honorable Samuel Henry Strong, J. ; the Honorable Telesphore 
 I Fonrniei, J. ; the Honor<ible William Alexander Henry, J. ; the Honorable 
 I John Wellington Gwynne, J. 
 
 k special case, containing the following questions, having been referred by 
 I His Excellency the Qovemor-Oeneral in Council, to the Supreme Court of 
 [Canada, for hearing and determination, in pursuance of the 26th section of 47 
 I Victoria, chapter 32, intituled : " An Act to amend the Liquor License Act, 
 11883." 
 
 I. Question. — Are the following Acts, in whole or in part, within the legisla- 
 |tive authority of the Parliament of Canada, namely : (1) " The Liquor License 
 
 bt, 1883;" (2) '< An Act to amend the Liquor License Act, 1883." 
 
 II. Question. — If the Court is of opinion that a part or parts only of the 
 said Acts are within the legislative authority of the Parliament of Canada, 
 vhat part or parts of said Acts are so within such legislative authoiity ? 
 
 And the said case having come before the Court for hearing on the 23rd day 
 pf September last, whereupon and upon application of Mr. Bethnne, Q. C. , one 
 
 
 fl 
 
 
 i 
 
 K .; ■< Its 
 
i6 
 
 THE LIQUOR LICENSE ACT. 
 
 9-] 
 
 LicenBOB, 
 how is- 
 sued. 
 
 O. Every license shall be issued, under the direction of 
 the respective boards of license commissioners, by the 
 inspector for the license district in which the tavern, shop, 
 warehouse or other place to which the license is to apply is 
 situate, (n.) R. S. O. 1877, c. 181, s. 8, amended by 
 53 Vic, c. 56, s. 2. 
 
 of the Counsel r<«presenting the Dominion of Canada, the said oa<ie so referred 
 was amended by s^^ating that in parsuanoe of seo. 26, sub-seo. 3 of the said Act, 
 47 Vio. ,0. 32, an Act to amend " The Liquor License Act, 1883," the Provinces 
 of Ontario, Quebec, New Brunswick and British Columbia had become parties 
 to the said case; and the said case having been subsequently further amended 
 by stating that the Province of Nova Scotia had also become a party thereto. 
 
 And the said cause, so amended as aforesaid, having come on for hearing 
 before this Court, in presence of Counsel for the said Dominion of Canada, 
 and for the said Provinces, on the 23rd, 24th, 25th, 26th and 27th days of Sep- 
 tember last past, whereupon and upon hearing what was alleged by Counsel 
 aforesaid, this Court was pleased to reserve the said case for consideration, and 
 the Court having duly considered the same, do now certify to His Excellency 
 the Governor-General in Council, in answer to the questions submitted for the 
 determination of the said Court on the said case, that in the opinion of the said 
 Court the Acts referred to in the said case, namely, *' The Liquor License Act, 
 1883," and " An Act to amend the Liquor License Act, 1883," are and each of 
 them is ultra virei of the legislative authority of the Parliament of Canada, 
 except in so far as the said Acts respectively purport to legislate respecting 
 those licenses mentioned in seo. 7 of the said " The Liquor License Act, 1883," 
 which are those denominated vessel licenses and wholesale licenses, and except 
 aleo in so far as the said Acts respectively relate to the carrying into effect of 
 " The Canada Temperance Act, 1878." 
 
 The Honorable Mr. Justice Henry, being of the opinion that the said Acts are 
 ultra vires in the whole. The case was subsequently carried to the Priv; 
 Council, where the Act was held to be altogether ultra virei. 
 
 The Acts having been thus declared to be ultra vires of the Parliament of 
 Canada, they were suspended by the Act, 48-49 Vic, c. 74. 
 
 A full report of the case with the facta filed on behalf of the several Pro- 
 vinces and the argument of counsel at the hearing is published in Vol. XYin, 
 No. 12, Sessional papers, 1885, 85 a. 
 
 Another case on the subject of legislative authority, is that respecting the { 
 boundaries of Ontario published in Vol. XIX, Seiisional papers, 1886, See a 
 notes to sec. 42a, post. 
 
 (n) This section originally provided for the issue of licenses to vessels by the 
 Inspector, but that provision was repealed by 63 Vic, 0. 56, s. 2, and vessel 
 licenses are now abolished. The effect of the section, as it now stands, is 
 that no license can be issued except by the Inspector under the direction of 
 the Board of License CommissionerB for the district in which the place where the { 
 license is granted is sitnsted. 
 
SS. lO, II.] 
 
 THE LIQUOR LICENSE ACT. 
 
 tf 
 
 hi 
 
 lO* No license shall be issued for the sale of liquor 
 on any vessel navigating any of the great lakes or rivers 
 St. Lawrence or Ottawa, or any of the inland waters of the 
 Province of Ontario, nor shall any liquor be sold or kept 
 for sale in any room or place on any such vessel, {o ) 
 53 Vic, c. 56, s. 2, s. s. 2, 
 
 11. (i) A license to sell spirituous, fermented or 
 other manufactured liquors, (/>) by retail, (^) in any tavern, 
 ale-house, beer-house, place of public entertainment, (r) or 
 shoi), (s) shall not be granted except upon petition by the 
 applicant to the license commissioners of the district (/) in 
 which the license is to have effect praying for the same ; 
 nor until the inspector, to be appointed as hereinbefore 
 provided, (u) has reported in writing to the license commis- 
 sioners that the applicant is a fit and proper person to have 
 a license (v) and (in the case of a tavern license) has all Ihe 
 accommodation required by law, (w) and that the applicant 
 is known to the inspector to be of good character and 
 repute ; (x) and every such report shall be duly filed by the 
 [license commissioners and shall remain open to the 
 
 VesBolB. 
 
 No tavern 
 or shop 
 license to 
 be grant- 
 ed except 
 upon pe- 
 tition and 
 report 
 thereon. 
 
 Report to 
 be filed. 
 
 
 A 
 
 I'm 
 
 I, U: 
 
 '4 »*' 
 
 
 (0) Until 1889, licenses to vessels were issaed nnder the direction of the 
 |CommiBsioner8, by the Inspector for any license district, to or ^ Oi any port 
 Ifrom which the vessel might sail and at any port at which sh-^ ciight call, but 
 iBuch licenses are now abolished and the sale of liquor on any vessel in Ontario 
 !i8 prohibited. It was held that the Parliament of Canada had power to legislate 
 Respecting licenses for the sale of liquor on vessels : In re Liquor License Act, 
 1883, 5 0. L. T., 66, cited in note (m) to sec. 8, but quaere as to the e£fect of 
 Ihe deoiaion of the Privy Council, that the Act was ultra vires in toto. See also 
 khe judgment of Oalt, G. J., as to local option by-laws, given in notes to see. 
 ]t2a, po$t. 
 
 (p) See sub-seo. 1 of see. 2 and notes thereto. 
 
 (q) See sub-seo. 2 of sec. 2 and notes thereto. 
 
 (r) See note {g), seo. 2, sub-seo. 2. 
 
 («) See sub-seo. 8 of seo. 2. 
 
 (() See see. 2, sub-seo. 6 and notes thereto. The form of petition is given in 
 be appendix hereto. 
 
 (u) See sees. 6, 7 and notes thereto. 
 
 iv) See note (y) infra. 
 
 I (w) See sees. 27, 28, 29 and notes thereto. 
 
 (x) See cases cited in note (y) infra. 
 
 [it was held that the grant of a license to a person, on the condition that he 
 
 plained the Inspector's certificate of qualification, was no breach of the statute : 
 
 V. Paton, 85 U. C. B., 442 ; but see the next following note to this section. 
 
 t 
 
 I 
 
 
IS1 
 
 
 m 
 
 'it'll 
 
 i 
 
 t' 
 
 1 8 THE LIQUOR LICENSE ACT. [S' H. 
 
 inspection of any rate-payer of the municipality or any 
 provincial officer, (y) 
 
 {y) A mandatnui will not be granted to oompel a Board of License Commis- 
 sionera to iasne a license to a person to whom one has been granted, bat not 
 issued, by the retiring Oommissioners, where they have not completed their 
 fonotions, their acts having been reversed by their successors : Leeson v. License 
 Com. of DufiPerio, 19 0. B., 67. 
 
 In case any member of the Board of License Oommissioners, knowingly issues 
 or causes or procures to be issued, a license contrary to the provisions of the 
 Act, he is subject to a fine of not less than $10 nor more than 9100. See sec. 
 67, post. The question as to whether the grant of a license is a judicial act, 
 over which the Court can exercise control, is discussed in B. v. Salford, 
 18 Q. B., 687, in which it was held that though a license was void for not 
 complying with the statute, the granting of it was not an act upon the validity 
 of which the Court could decide upon certiorari and that it should be treated 
 as void. See sub-sec. 21. 
 
 A license, although obtained by fraud is valid, unless the fraud be practised 
 by the party to whom it was granted : B. v. Minshull, 1 N. <& M., 277. 
 See also sec. 91 and notes thereto. 
 
 The conditions to be complied with by the applicant, and which the Com- 
 missioners may insist on before granting a certificate for a license, are (1) The 
 filing of a petition by the applicant on or before Ist April ; (2) The report in 
 writing of the Inspector that the applicant is a fit and proper person, and (if the 
 application is for a tavern license) that he has the required accommodation and 
 is known to the Inspector to be of good character and reputation. The report 
 of the Inspector is open to the inspection of any ratepayer of the municipality 
 or any Provincial officer, but not to the public in general : (see sub-siec. 3), 
 The Court refused to interfere by mandamus to compel the Inspiactor of licenses | 
 to examine a certain house fitted up as a saloon, and to grant the proper certi- 
 ficate if it should be found that the applicant had complied with the law: j 
 Baxter v. Hesson, 12 U. G. B., 139 ; see also B. v. Kensington, 12 Q. B., 651. 
 
 It has been held to be an indictable offence to wilfully do any act which is j 
 forbidden by Statute, although without any corrupt motive ; and it was held to 
 be a misdemeanor for Justices to grant licenses where they had no jurisdiction: [ 
 B. V. Sainsbury, 4 T. B., 457. Still more is such an offence punishable when 
 it proceeds from malicious or corrupt motives: Bosooe's Crim. Ev., 782; s«e| 
 also Bussell on Grimes, 5th Ed., 47 ; Burbidge's Grim. Dig., 109-114 ; see 
 sees. 66 and 67 and notes thereto. 
 
 A certificate that an applicant for a license is of "good character" is not I 
 false because he is cohabiting with a woman without being married to her.| 
 " ' Gharacter ' must mean the estimation in which a man is held by those 
 are acquainted with him. Tou cannot pry into the secrets of a man's conduct ;i 
 if you would do so, there might be many circumstances which would pallisttj 
 the cohabitation :" per Erie J., Leader v. Tell, 16 G. B., N. S. 684, cited ill 
 Stroud's Diet., 328. The words "good character" were introduced for tiul 
 purpose of avoiding the evils found to result from the multiplication of honsetl 
 licensed to sell beer, &o., which in too many instances were found to be thtl 
 resort of the enemies of order, morality and religion : S. G. at p. 693. Ill 
 would seem, therefore, that the words '* good character and repute," may sotl 
 necessarily refer to the conduct and mode of life of the applicant as known tt| 
 himself, but to his reputation among his neighbors. 
 
 A person convicted of felony was held in England to be forever disqualifiei| 
 from selling spirits by retail, and that no license could be granted to any perse 
 who had b^n so convicted, but this was under a statute containing a provisia 
 to that effect : B. v. Vine, L. B. 10, Q. B., 195. 
 
laqnalifieil 
 [ny pet80«l 
 I provisiM 
 
 ci.J 
 
 ^ 
 
 THE LIQUOR LICENSE ACT. 
 
 *« 
 
 (2) Every petition for a tavern license, which is to take ^fo^fj®' 
 effect on the ist day of May in any year, shall be filed with Uoense to 
 the inspector for the license dictrict wherein it is to have Mnted. 
 effect on or before the 1st day of April next preceding, (z) 
 
 (3) The inspector shall not report in favour of any ^ot'^'^be 
 applicant other than the true owner of the business, (a) of °°°e°*"' 
 the tavern or shop proposed to be licensed, and his report 
 
 shall be for the information of the license commissioners 
 only, who shall nevertheless exercise their own discretion 
 on each application. 
 
 The License GommisaionerB have a large discretion with respect to the suffici- 
 ency of the evidence as to the good character of the applicant, as they have in 
 all other respects regarding appUoationH and the issue of certificates for licenses, 
 and they are not bound by the certificate of the Inspector. Under the English 
 Licensing Act, 32 and 83 Vic, c. 27, s. 8, the applicant is obliged to furnish 
 evidence of good character : See Paterson's L. A., 262 ; B. v. Birmingham 
 Justices, 40 J. P., 182 ; B. v. Merthyr Tydvil Justices, 49 J. P., 213 ; B. v. Han- 
 ley Justices, 89 L. T., N. S., 444 ; Ex parte Bendall, 42 J. P., 88. Bee also 
 notes to sec. 4. 
 
 (z) The Commissioners, it is thought, may, if they think proper, receive the 
 petition after the day named, as the provision in this section is made for their 
 convenience, and if they should see fit to allow the term to be extended, no one 
 else would be prejudiced. 
 
 See sec. 8 and notes thereto. 
 
 (a) It was held that residence on the premises was not necessary : B. v. 
 De Bntzen, 1 Q. B. D., 65. But the certificate must show that the applicant is 
 the true owner of the business. The reason for this requirement, is that the 
 true and responsible owner may be known to the authorities ; without this the 
 difficulty of enforcing the law and supervising the conduct of the place licensed 
 would be increased. See sec. 112, ss. 3 and notes thereto. 
 
 A.n English statute provided that every applicant for a license should produce 
 a certificate that he was " the real resident holder and occupier of the house in 
 
 I which he shall apply to be licensed," and it was said, that the only object of 
 requiring such certificate, was to afford the officer, whose duty it was to grant 
 the license, the means of obtaining the necessary information, but his jurisdic- 
 tion to grant it was not dependent upon the production of the certificate. The 
 Commissioners are not bound by the certificate, but can, if they think fit, obtain 
 
 I the information by other means and they would be warranted in acting upon 
 
 {such information as they may acquire in the case of every application: See 
 
 (Thompson v. Harvey, 4 H. & N., 264. 
 
 Booth Bros, were the holders of a license to sell liquors, and on 9th December, ' 
 
 ithe license was transferred to T. W. Booth, one of the partners, to enable 
 
 JGeorge S. Booth, the other partner, to become a candidate for Councillor. The 
 
 nomination took place on 22nd December, and Qeorge S. Booth was elected. 
 
 iThe election was set aside on the ground that George S. Booth was still one of 
 
 lihe true owners of the business, and as such was the holder of a license within 
 
 the meaning of B. S. 0., 0. 174, s. 74, and therefore disqualified: B. v. Booth, 
 
 P. R.,452. 
 
 A man may be an inn-keeper, although he takes out the license in the name 
 Df another, and if he does so frandulenthr, he is disqualified to be a Municipal 
 ^onnoillor : McKay 'v. Brown, 5 U. 0. L. J., 91 ; see also Flannagan v. 
 
 'Edi 
 
 H 
 
 'P^l 
 
 7''^' 
 
 'a ' ■ ! 
 
 V /^|5 
 
 M 
 mi 
 
 'r "til 
 
 ^ i 
 
 H 1 
 
 ,1 '- 1' 
 
 
 ■ ' ' (I 
 
 
 
 n 51 ( 
 
 4' i 
 
m 
 
 M 
 
 m 
 
 i^i 
 
 W! 
 
 to 
 
 Beport 
 may be 
 diBPensed 
 with. 
 
 THE LIQUOR LICENSE ACT. 
 
 S. II.] 
 
 Board to 
 fix a day 
 for oon- 
 Bidering 
 applioa- 
 tions. 
 
 (4) Where the applicant for a tavern or shop license 
 resides in a remote part of the license district, or where for 
 any other reason the license commissioners see fit, they 
 may dispense with the report of the inspector, and act upon 
 such information as may satisfy theiu in the premises. (^) 
 R. S. O. 1877, c. 181, s. 9, (1-4). ' 
 
 (5) The board of license commissioners shall, on or 
 before the ist day of April, (c) fix a day for considering 
 applications for licenses, being not less than one week {d) 
 prior to the ist day of May in each year, and the inspector 
 shall publish (e) in at least two issues (/) of a newspaper 
 published in the district, (g) if there be one published 
 therein, the date and place of such meeting at least four- 
 teen days before the day of such meeting. (A) The 
 inspector shall cause a notice containing similar information 
 to be fixed to or near the outer door of the building in 
 which his office is situated. 
 
 
 ! I'i 
 
 m 
 
 
 K=l 
 
 MoMahon, 7 U. G. L. J., 165 ; B. v. Bymer, 2 Q. B. D., 136 ; Grozier v. Taylor, 
 6 U. G. L. J., 60. 
 
 The person reoelving the license is assamed to have satisfied the License 
 Oommissioners that he is the trae owner, bat, notwithstandinR, it can be shewn 
 that the licensee was merely the agent of another, who was the real owner of 
 tiie basinesB : Hnffman v. Walterhonse, 19 0. B., 186. 
 
 (b) This section provides that the Gommissioners may dispense with the 
 report of the Inspector if they see fit, and act upon such information as may 
 satisfy their, in the premises. It is clearly the intention of the Statute that the 
 report is only for the purpose of giving information to the Gommissioners, and 
 that they may obtain this information by other means if they think proper. 
 
 (e) See eo. 8. 
 
 (d) When time is to be oompated as " not less " than a given number of days, 
 it means clear days : Ohambers v. Smith, 12 M. & W., 2. Where a Statute 
 provided that notice of appeal should be given " within one week," it was held 
 that it meant 7 clear days, and that a notice given on the 22nd for the 29th was 
 insufficient: B. v. Sweeney, 2 Ir. L. B., 278. See note (h) infra. The day 
 fixed should be not later than 28rd April. 
 
 (e) What constitutes a publication may be a question, and must generally 
 depend upon the circumstances of eaw case, but by this section it is the 
 printing in two issues of a newspaper published in the district. 
 
 (/) *' At least " two issues means two issues and not less. 
 
 {g) If there is no newspaper published in the district, no such publication 
 will be necessary. The affiling of the notice to the door of the building in 
 which the Inspector has his office, as below, will be sufficient. 
 
 {h) This means fourteen dear days : In re Sams v. The City of Toronto, 
 9 U. G. B. , 181. When time is to be computed as so many days, ' ' at least " clear 
 days are meant, exclusive of the respective days on which the notice is to be given 
 and the meeting held. In this case a notice given on the 9th of April, for the 
 23rd of April, would not be Boffioient. Fourteen days must intervene or elapse 
 
S. .1.] 
 
 THE LIQUOR LICENSE ACT. 
 
 21 
 
 (6) The inspector shall, at least fourteen days before the ^gpeJ^/ 
 first meeting of the board (/') to consider applications, cause pyj^y^, 
 to be published in at least two issues of some newspaper 
 published in the district, if there be one published therein, {j ) 
 the name of each applicant for a license, who is not at the 
 time of the making of such application a licensee under this 
 Act, or who applies for the licensing of premises not then 
 under license, the description of license applied for, and 
 the place (described with sufficient certainty) where such 
 applicant proposes to sell, and also the total number of 
 tavern and shop licenses issued during the current license 
 year, and the total number of applications for the ensuing 
 year, {k) He shall also keep a list of all applications, to 
 be entered in a book to be kept by him for the purpose, 
 containing similar information, and the same shall be open 
 to the public for inspection without charge. 
 
 between the two dates : See in re Bail way Sleepers Supply Co., 29 Gh. D., 204 ; 
 Bee also Sinclair's D. 0. Aot, 1879, p. 92, and oases there oited ; also S iroad's 
 Diet., p. 60. 
 
 (t) See note (d) to sab-seo. 6. 
 
 (j) The notice or pnblioation here required may be published at ftie same 
 time as that provided for in the last sub-section. If there are no r jwspapers 
 published in the district, then no publication will be required. 
 
 (ft) The publication here provided for should contain : (1) The name of each 
 applicant who is not at the time of the application a licensee under the Act, or 
 who is applying for a license for premises not then under license ; (2) a descrip- 
 tion of the license applied for ; (3) e description of the place (described with 
 snfficient certainty) at which such applicant proposes to sell ; (4) the total number 
 of tavern and shop licenses issued daring the current license year ; (6) the 
 total number of applications for hoenses for the ensuing year. 
 
 The same information must also be entered in a book to be kept for that 
 purpose and be open to the inspection of the public. 
 
 The requiremtints of the Statute should be strictly complied with. Where a 
 Statute requires that the name, place of pbode and description of a person be 
 given, and only the name and place of abode is given, there is a total omission 
 of the " description " and not an ' ' inaccurate description :" B. v. TugwsU, L. B. 
 3 Q. B., 704. 
 
 Tho word *' place " must be taken to mean the premises for which the license 
 is asked. It may be said thw t " place " is rather an indefinite term. Where 
 the phrase " place of public resort " occurred in conjunction with the word 
 "house," and both were controlled by the verbs "have" or "keep," it was 
 said that the kind of place intended was of a permanent character, but under 
 see. 3 of the Betting Houses Act, 1863, where there was a prohibition against 
 keeping or using any "house, office, room or place" for betting, it was held 
 that a large umbrella temporarily fixed into the ground by means of a spiked 
 telescopic handle, is a place: Bows v. Fenwick, L. B. 9, 0. P. 889; so is a 
 wooden box on which a betting man stands, and which temporarily rests on a 
 spot in " the ring " of a race-course : Qallaway v. Maries, 8 Q. B. D., 276 ; so is 
 
 '..k ./■iJi 
 
 «•; K 
 
 
 mm'x^ 
 

 33 
 
 Objao- 
 tloni to 
 applioa- 
 tions. 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. , 
 
 (7) It shall be the right and privilege (/) of any ten or 
 more electors (m) of any polling subdivision to object by 
 petition, or in any similar manner, to the granting of any 
 license within such subdivision. 
 
 , it- 
 
 J 
 
 "if 
 m4 
 
 an enclosed yard, whether roofed or not, and however large its dimensions : 
 Shaw V. Morley, L. B. 8 Ex., 187 ; see Stroad's Diet., 698. 
 
 The description of place required here should be that by which the premises 
 can be readily known and identified. In cities and places where the houses are 
 numbered, the street and number, etc., and the street and name or other desig- 
 nation by which the hotel, saloon, or shop is usually known, it is thought 
 would be sufficient in other places. 
 
 (I) A fairly good definition of " right " is: an enforceable claim or title to any 
 subject matter whatever ; either to possess and enjoy a tangible thing, or to do 
 some act, pursue a course, enjoy a means of happiness, or be exempt from any 
 cause of annoyance ; also, one's claim to something out of possession ; and also, 
 a power, prerogative, or privilege, as, when the word is applied to a corporation: 
 People V. Dikeman, 7 How. Pr., 180, (1852). In the popular acceptance of the 
 word it means, " the liberty of doing or possessing something consistently with 
 law " : Wharton, 649. A " legal right " is that which is recognized and pro- 
 tected by law. " A right is a measure of control delegated by the Supreme 
 Political Authority of a State, to a person said to be thereby invested with a 
 * right ' over the acts of another person, or other persons said to be made thereby 
 liable to the performance of a duty." Austin's Jurisprudence, 79. 
 
 The " right or privilege " here conferred is simply to object to the granting 
 of a license, but the License Commissioners, though they are bound to receive 
 such objection and to hear the parties, are not bound to refuse a certificate for 
 a license in consequence of it. 
 
 (m) " Ten or more " means not less than ten. 
 
 The word " electors," as used in the Municipal Act, means persons entitled, 
 for the time being, to vote at any municipal election, or in respect of any by-law 
 in the municipality, ward, polUng sub-division, or police village, as the case 
 may be : Mun. Ant, B. S. 0., c. 184, s. 2, ss. 9. But in sub-sec. 14 of this 
 section, it is expressly provided that the electors entitled to object to the issue 
 of a new license, are those entitled to vote at an election of a member of the 
 Legislative Assembly, and it has been recently said that the same class of 
 persons are entitled to object under this sub-section as those referred to in 
 sec. 14, viz : those entitled to vote at a Provincial election ; Be Croft and 
 The Town of Peterborough, 17 0. B.. 622 ; S. 0. on appeal, 17 App. B. 21. 
 See judgment of Burton, J. A., at p. 25 ; see also sec. 2, sub-sec. 7. 
 
 For form of objections see appendix. See also note (y) to as. 14. 
 
 The nature of the objections, which may be taken to the granting of a license, 
 is as follows : 
 
 (a) Belating to the character of the applicant. 
 
 {b) Belating to his premises. 
 
 (e) That the licensing thereof is not required in the neighborhood, 01 
 that the premises are in the immediate vicinity of a place of public 
 worship, hospital, or school, or that the quiet of the place, in which 
 the premises are situate, will be disturbed if a license is granted. 
 
 The objections must be set forth in a petition to the Board of License Com- 
 missioners ; it must be signed persoiudly by the objectors, and must state 
 specifically what are the objections alleged by them to exist. It is not sufficient 
 for the petition to state generally that licensed premises are not wanted within 
 
II.J 
 
 THE LIQUOR LICENSE ACT. 
 
 23 
 
 '•t;.' 
 
 (8) The objections which may be taken to the pran.ing 
 of a license may be one or more of the following : 
 
 (a) That the applicant is of bad fame and character, As to 
 («) or of drunken habits, or has previously ofappii- 
 forfeited a license, (0) or that the applicant has 
 been convicted (/) of selling; liquor without a 
 
 tlie sab-diTision, and in that way evade the r iBponsibility which the Statute 
 imposes upon the objeotors of stating clearly wliat the objections are. It must 
 also refer specifically to the granting of the pattioular license to which objeo 
 tion is taken. A petition must conform to the Statute, which requires it to 
 state the objections specifically ; hence, a petition stating the objections in 
 general terms in this manner : " for reasons specified in section 11, sub-section 
 8, of the Liquor License Act, Revised Statutes of Ontario, or for one or more of such 
 reasons," was held not to be a compliance with the Statute : Pizer v. Eraser, 
 17 0. R., 636. 
 
 (n) See note {x) to ss. 1. ' ' 
 
 (0) *' Forfeiture " is a penalty for an offence or unlawful act, or for some 
 wilful omission whereby a person loses some right or office : Wharton, 810. 
 What is meant here is a person who has lost his right to sell intoxicating 
 liquors under the provisions of the Act. See sees. 75, 79, 88 and 91, and notes 
 thereto. 
 
 As to " drunken habits," see notes to sees. 78, 122 and 128. 
 
 (p) The word " convicted," or the " conviction " of a person accused is equi- 
 Tocai. In common parltince, no doubt it is taken to mean the verdict at the 
 time of the trial ; but in strict legal sense, it is used to denote the judgment of 
 the Court : per Tindal, C. J., Rurgess v. Roetefeur, 8 Scott, N. U., 194, and 
 accordingly, it was there held that a person who pleaded guilty to keeping a 
 brothel, on an indictment instituted under s. 6, 26 Oeo. 2, c. 36, and who at a 
 subsequent session came up for judgment, was not " convicted " when he 
 pleaded, but when judgment was pronounced. Rut if under the same section, 
 the plea of guilty be followed by an order that the defendant enter into recogni- 
 zances to come up for judgment if called upon, he is then "convicted:" per 
 Stephen, J., Jephson v. Rarker, 8 Times Bep., 40 ; see Sutt<m v. Bishop, 1 W. Rl. , 
 665 ; Lee v. Gansel, Cowp. 1 ; Stroud's Diet., 169. " Convicted " has been often, 
 according to many cases in the book, taken for "attainted" and therefore 
 extends to a judgment upon demurrer, which in Foster's Case, was held to be a 
 "conviction " within 23 Eliz. Dwar., 688, citing Foster's case, 11 Bep., 69. 
 
 " Upon conviction," in s. 91, Elementary Education Act, 1870, 88 and 84 
 Vic, c. 76, (Imp.), means " upon summary conviction : " B. v. Gaunt, 
 60 L. J. M. 0., 82, cited in Stroud, 160. 
 
 "Convicted of felony," is equivalent to "convicted felon:" B. v. Vine, 
 L. R. 10, Q. B., 196. 
 
 In an action for a penalty under see. 60 of the 82 Vic, 0. 4, it was held in 
 the County Court that the words " every person convicted" did not mean who 
 had been convicted in some criminal proceeding, but that the offence might be 
 proved and the person " convicted " in that action. On appeal, Wilson, J., was 
 of the opinion that the judgment of the County Court was right — Morrison, J., 
 that it was wrong : Wilde v. Rowen, 87 U. 0. B., 604. 
 
 " Conviction" means the act of a legal tribunal adjudging a person guilty of 
 a criminal offence : Wharton, 8th Ed., 180. 
 
 It has been held in the United States that " a man is ' convicted ' when he 
 is found guilty or confesses the crime before judgment :" Shepherd v. People, 
 25 N. T., 406 (1862) ; and that "judgment" or " sentence " is the proper word 
 
 Iti 
 
 ..«*'• 
 
24 
 
 THK LIQUOR LICENSE ACT. 
 
 S. I I. 
 
 
 Ab to blB 
 premises. 
 
 license within a period of one year ; or that he 
 has kept, {(/) within a period of two years, (r) a 
 place in which the illicit sale (s) of ^quors was 
 frequent and notorious ; (f) or — 
 (d) That the premises (») in question are out of 
 
 : I 
 
 to denote the aotion of the Court, deolaring the oonseqaenoea to the oonviot of 
 the fact of his oonviotion : Ootnmonwealth v. Lookwood, 109 Mass, , 826-840 (1872). 
 
 Where a Statute (88 and 84 Vio., o. 27) provided that a person oonvioted of 
 felony should not be able to obtain a lioense to sell spirits by retail, it was held 
 that a frve pardon under the Royal sign -manual removed the disqualifioation : 
 Hay V. Justices Tower Division of London, 6 Times Bep., 169. 
 
 As to selling without a license see sees. 49, 60, 61, 62, 68 and 70. 
 
 {q) To " keep " a place or thing involves the idea of having over it the imme- 
 diate control, of a character more or less permanent. Thus the landlord of a 
 brothel wholly let out in rooms to different tenants at weekly rents, and who 
 has no control over the premises except that of determining the tenancies, does 
 not "keep" the brothel: B. v. Stannard, L. & 0., 849 ; B. v. Barrett, L. & 0., 
 268; Halligan v. Oanly, 19 L. T., 268. And to "keep" a place for a 
 particular purpose involves the idea that it is used for that purpose on more 
 than one occasion ; but how many or how frequent these oocanlons must be 
 is a question of fact to be determined in each particular case; Marks v. 
 Benjamin, 6 M. & W., £68. 
 
 Under the English "Betting Act," w' orovides that no place shall be 
 opened, kept or used for the purpose of be j, etc., it was held that : " The 
 intention of the Legislature is to impose a penalty on the owner or occupier of 
 the house, and on the owner or occupier who knowingly and wilfully permits 
 any person to carry on the house, and, what is more, to prevent him having 
 any servants to help him to carry on such a house :" per Smith, J., B. v. Cook, 
 18 Q. B. O., 877 ; see also Haigh v. Town Council of Sheffield, L. B. 10, Q. B. 
 102. 
 
 (r) "Within" a certain number of days means clear days: Williams v. 
 Burgess, 12 A. <& E., 636 ; Bobinson v. Waddington, 18 L. J. Q. B., and other 
 cases cited in Stroud, 889. When an act has to be done " within " two times, 
 the time for doing it is some period fairly between those times : Ashforth v. 
 Bedford, L. B. 9, G. P. 22. 
 
 A " year" means a calendar year (that is, that the period must be reckoned 
 by looking at the calendar and not by counting the days) : see Interpretation 
 Act, sec. 8, sub-sec. 16 ; Stroud, 101. 
 
 "Within a period of two years" would, therefore, mean a period of time 
 corresponding to that between the 1st of January of the first year and the 8lBt 
 December of the second year. 
 
 («) " Illicit sale " is a " sale " disallowed, forbidden, or made unlawful by the 
 law. Any sale of liquor contrary to the provisions of the Act would be an 
 •• illicit sale." 
 
 {t) A single act contrary to the provisions of the Statute could not be said 
 to lie an act of " frequent " occurrence. Worcester's definition of " frequent " 
 is " often done ; often occurring ; common ; usual ;" " notorious " meane 
 " manifest to all persons ; generally known ; open ; known to the discredit or 
 disadvantage; or, of bad or questionable repute: Anderson's Diet., 716. See 
 Jenkins v. Cook, 1 P. D., 80. 
 
 ^u) " Premises" means "a distinct portion of realty ; land, or lands ; tenements ; 
 buildings :" Anderson's Diet., 802. 
 
 mi 
 
 
...] 
 
 THE LIQUOR LICENSE ACT. 
 
 as 
 
 repair, or have not the accommodation (v) 
 required by law, or reasonable accommodation 
 if the premises be not subject to the said 
 requirements ; (w) or — 
 (c) That the licensing thereof is not required (x) in Ab to the • 
 the neighborhood, or that the premises are in hood, 
 the immediate vicinity {y) of a place of public 
 
 In a polioy of inBuranoe on a veaiel, " insared premiseB " were held to mean 
 the vesBel : Beid v. Lancaster Fire Ina. Go., 19 Hon., 286, (1879). " Premises " 
 adjtioent to a place where liqaor is sold embraces a public street or alley fronting 
 on the place : Bandalow v. People, 90 111., 318, (1878). The term is used here 
 to denote the house and outbuildings for which a license is asked, as required 
 by sec. 27. 
 
 (v) " Accommodation " means " conveniences :" Worcester. The accommoda- 
 tion required by law must m taken to mean those oonTenienoes and accessories 
 made necessary under this Act. This refers to those premises which aro 
 required to possess the accommodation under sees. 27, 28 and 29. 
 
 (ir) The expression " reasonable accommodation '' has reference to places in 
 oities and towns exempted from the necessity of having all the accommodation 
 required by law : see sec. 4, ss. 8. It would be unreasonable to expect an exact 
 definition of tl^ word " reaR uable." Reason varies in its conclusions accord- 
 ing to the idiosyncrasy of the individual, and the times and circumstances in 
 which he thinks. The reasoning which built up the old scholastic logic sounds 
 DOW hke the jingling of a child's toy. But mankind must be satisfied with the 
 reasonableness within reach ; and in cases not covered by authority, the verdict 
 of a jury, or the decision of a Judge sitting as a jury, usually determines what 
 ia " reasonable " in each particular case, so in this case it is apprehended that 
 the reasonableness of the accomodation, so long as it is sumcient to comply 
 wjth the Statute, will be in the discretion of the License Oommissioners, who 
 are the judges of what should be requisite, and whose decision, when once 
 made, shall not be questioned or reconsidered. See sub- sec. 12. 
 
 {x) " Not required " means, in the sense in which it is used here, that such 
 licensed premises are not necessary in the neighborhood. Whether such licensed 
 premises are needed or not for public convenience is a matter for the consid- 
 eration of the License Oommissioners. 
 
 {y) In the usual acceptation of the term, " neighborhood " means the ad- 
 joining district. As appUed to place the word signifies nearness as opposed to 
 remoteness. " Neighborhood has reference to the inhabitants ; vicinity to 
 something that is near. A pleasant or populace neighhorhood in the vicinity 
 of the city or metropoUs." Worcester's Diet., 967. 
 
 " Whether a place is in the vicinity or neighborhood of another depends upon 
 no arbitrary rule of distance or topography. * Vicinity ' admits of a more 
 indefinite and wider latitude in place than proximity or contiguity, and as applied 
 to territory may embrace a more extended space than that lying contiguous to 
 the place in question ; as applied to towns and other territorial divisions, may 
 embrace those not adjacent:" Per Allen, J., Langley v. Bamstead, 63 N. H., 
 247 (1884) ; 34 Alb. L. J., 286. 
 
 The word "immediate" as defined by Worcester, means, "having nothing 
 
 intervening either as to place, time, or action." These words, however, cannot 
 
 I very well be construed literally. It is probable 'that the true meaning of 
 
 " immediate vicinity " is very close to and upon the same street, so that people 
 
 attending church must pass by and see the tavern or shop. But the question 
 
-TTTP 
 
 a6 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 
 
 II. 
 
 worship, {z) hospital, (a) or school, or that the 
 quiet of the place (b) in which such premises 
 are situate will be disturbed {c) if a license is 
 granted. 
 
 
 !■■ I 
 
 is one of fact, of which the License Commissioners are to be the judges. It 
 woald be well for the Legislature to define what is meant by the expression. 
 
 (z) " A place of public worship " is generally applied to a church. But it 
 may have a much wider meaning so as to include any place in which the offices 
 ?f reverence or religious services are performed, and which is open to, or used 
 by the public for that purpose ; or a place adopted, for the time being, for 
 assemblages of a public, or quasi public character for the purposes of worship : 
 See Bussell v. Smith, 12 Q. B., 217; Duck v. Bates, 12 Q. B. D., 79. 
 But no definition of the phrase " place of public worship " has been given by 
 any Court suitable to all oases. It apparently has no technical meaning, and 
 each case in which its meaning is the subject of contention, will have to be 
 decided on its merits. In the U. S. a Sunday School was held not to be within 
 the expression : Glass' Appeal, 73 Pa., 45 (1878) ; nor camp meeting grounds 
 belonging to an assooiaUon deriving profit therefrom : Summit Grove Meeting 
 Asson. V. School Die'..rict of New Fieedom, 12 W. N. C, 103 (Pa. 1882). A 
 building, although used for educational purposes, so long as the use was merely 
 incidental or occasional, or, if habitual, was purely permissive and voluntary and 
 did not interfere with the use for religious purposes, there beirg no alienation 
 of the building in whole or in part for educational purposes, was held to be a 
 plaoe devoted to religious purposes and exempt from taxation : St. Mary's 
 Church V. Tripp, 14 B. I., 309 (1883). 
 
 (a) A " Hospital " is an eleemosynary institution and, strictly speaking, 
 there is no legal hospital unless it be incorporated and the persons benefitted 
 are themselves the corporation: Sutton's Hospital, 10 Rep. 31a; "and of 
 these hospitals some be eligible, some donative, and some presentable:" 
 Go. Litt. S42a. Stroud's Diet. 366. But referring to this definition the Court 
 of Ex. in Colchester v. Kewney, 35 L. J. Ex. 206, said : " It seems rather more 
 reasonable to hold that the word is used in a popular sense only, and that any 
 institution which, though not in a strictly legal, might, in a popular sense, be 
 called a hospital. * * « But some doubts arise whether even upon this 
 view this institution (the Wandsworth Royal Victoria Patriotic Asylum) would 
 be a "Hospital," by which word we understand rather an institution for the 
 relief of the sick or aged than for the maintenance and education of children, " 
 See that judgment, affirmed in L. F. 2 Ex. 263. 
 
 Worcester defines a " Hospital " to be '* a building in which provision is 
 made for the sick, the wounded, lunatics, or other unfortunate persons," and 
 this is probably the meaning here. 
 
 In modem .isage the term " school " is applied to any plaoe or establishment 
 of education : Worcester 1284. See also Stroud's Diet. 307 : Wharton 260. 
 
 (b) "Quiet" means freedom from disturbance; ease; rest; repose; still- 
 ness ; calmness ; peace ; security : Worcester, 1171. 
 
 " Plaoe" is probably intended to mean "neighborhood " here. This word is 
 generally found in conjunction with other words which give it a colour, and is 
 usually controlled by the context. I think in this case the " neighborhood " is 
 evidently intended. " Is situate," «. g. the neighborhood in which the premises 
 to be licensed stands. 
 
 (e) "Disturbed," i. «., interrupted, impeded, or disquieted. — Woroester, 427. 
 
 What is meant here is if the licensing of the premises tvill in any way inter- 
 fere with the peace, quietness, security or enjoyment of the inhabitants of the 
 
 if 
 
 'i'. 
 
s. 
 
 II.] 
 
 THE LIQUOR LICENSE ACT. 
 
 27 
 
 (9) Any person who has signed {d) a memorial against obieotors 
 the granting of a license may be heard in opposition thereto 
 
 by himself or his agent, {e) 
 
 (10) The council of any city, town, incorporated village, tSthoria* 
 or township, (/) may authorize any person to appear in a munlci- 
 
 palitiea. 
 
 district in which the hotel, shop or other premises to which the applioation 
 refers, it is an objection to the granting of soch license. 
 
 {d) Speaking generally, a " signature " is the writing, or otherwise affixing, a 
 person's name, or mark to represent his name, by himself or by his authority, 
 with the intention of authenticating a document as being that of, or as binding 
 on, the person whose name or mark is so written or affixed. But the minute 
 requisite of a signature will vary according to the nature of the document to 
 which it is affixed, and "in every case where a Statute requires a document to 
 be signed by a particular person, it must be a pure question on the construction 
 of the Statute whether the signature by an agent is sufficient :" per Bowen, 
 L. J., re Whitley 32 Gh. D. 387 ; B. v. Kent, L. B. 8, Q. B., 806. It was held 
 that where there was nothing in the Act to shew that the legislature intended 
 anything special as to the mode of signature, the ordinary rule applied that the 
 Bignature by an agent is sufficient ; and held also, that though it was irregular 
 for the agent to sign the principal's name without denoting that it was signed 
 by the agent in the character of attorney, the signature was not on that ground 
 invtdid : re Whi .ley, 32 Oh. D. 387. A signature may be in pencil as well as 
 ink : Oeary v. Fhysic, 6 B. & 0., 284 ; or by initials ; Chichester v. Cobb, 14 
 L. T., N. S., 488 ; or the person's mark ; Baker v. Dening, 8 A. & E., 94 ; or 
 by a stamp ; Bennett v. Brumfitt, L. B. 8, C. P. 28 ; Blades v. Lawrence, 
 L. R. 9, Q. B. , 374. If the signature should be printed and recognized by or brought 
 home to a person as having been printed with his authority, it is submitted, 
 that it would be sufficient : Sannderson v, Jackson, 2 B. d; P. 288 ; Schneider 
 V. Norris 2, M & S. 288 ; Blades v. Lawrence, L. B 9, Q. B. 874. If, before the 
 person signing has parted with the paper, and while it is in his possession, he 
 changes his mind, and draws his pen through his signature, it would not be 
 sufficient under the statute : Gox v. Troy, 6 B. & Aid., 474. Becognition of a 
 previous signature would be sufficient, though the paper was altered, if the 
 alteration was assented to : Stewart v. Eddowes, L. B. 9, G. P. 311 ; but the 
 person at the time of assenting must certainly have express knowledge of the 
 alteration in order to bind hhn : Brook v. Hook, L. B. 6, Ex. 89 ; Turner v. 
 Wilson, 23 0. P., 87 ; Westloh v. Brown, 43 U. C. B., 402. See also oases 
 cited Sinclair's D. G. Act (1880), 6. See also Boyal Can. Bank v. Grand Trunk 
 Ry. Co., 28 G. P , 226. 
 
 (e) To " hear " a cause or matter means to hear and determine it : per Lord 
 Blackburn, re Green, 7 Q. B. D., 273 ; 6 App. Gas. 667. But sometimes 
 to " hear " is not quite the same as to " hear and determine : " B. v. Warwick- 
 shire Jus. 2 A. (ft E. 768. There is a " hearing " of a summons before Justices 
 if the defendant attends on the return day and claims and obtains its dismissal, 
 the complainant having withdrawn the complaint and not appearing : Bradshaw 
 V. Vaughton, 9 G. B. N. S. 108. See Stroud's Diet. 848. But as used here 
 the word signifies merely that such person may be allowed to speak. As to 
 the signification of the word " may," see note (0), sec. 4. 
 
 The persons signing the memorial may either appear themselves, or by 
 an agent. Any one authorized by a person signing the memorial, may be an 
 agent. See Sinclair's D. G. Act, 1879, 107. 
 
 (/) See Municipal Aot, B. S. 0., 1887, 0. 184, title U. 
 
 
 '^ ' i'lll 
 
 \ ■ '■ 
 
28 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 
 
 II. 
 
 ii 
 
 l>: f 
 
 m 
 
 H 
 
 similar manner (g) on behalf of the ratepayers (k) of such 
 city, town, incorporated village, or township, as to the 
 granting of a license, and the person so authorized shail 
 have a right to be heard before the board against the grant- 
 ing of such license. 
 
 As to Ob- (i i) Unless at the instance of the board, (/) no objection 
 jeotionB 1 
 
 toobarao- in respect of the character of any applicant shall be enter- 
 tained until three days' notice has been given to the 
 applicant, (j) The notice may be served personally or left 
 at the usual place of residence or business of the appli- 
 cant, (k) The service may be proved orally or by affidavit 
 
 (g) Any one or more of the petitioners may appear before the Commissioners 
 In support of the objeotions, or they may be represented by oonnsei or by an 
 agent. The expression " any person " is wide enough to include a woman 
 appearing on behalf of another person. The word " prison " by the Interpre- 
 tation Aot, see. 8, sub-8. 18, includes " any body, oorpcrate or politic or party, 
 and the heirs, executors, administrators, or other legal representatives of such 
 person." 
 
 The Council of the Municipality has the right to appoint some one to 
 represent the ratepayers before the Board. 
 
 The applicants would also be entitled to be heard by themselves or their 
 agents before the Board. 
 
 [h) " Ratepayers " must be understood persons liable to pay, although they 
 may not have actually paid : Attorney-General v. Foster, 10 Yes 889, 346 ; 
 but it seems to be a necessary qualification that they should have been rated, 
 unless, perhaps, the name has been omitted by mistake or there is a taint of 
 fraud : Edinborough v. Canterbury, 2 Buss. 110, cited Stroud's Diet. 648. 
 
 In the case of The Public Libraries Act, " shall mean every inhabitant who 
 would have to pay the Free Library assessment in the event of the Act being 
 adopted : " Attorney-General v. Croyden, 88 L. J. Oh. 627. It is probable that 
 the word " ratepayers," as used here, is intended to be synonymous with 
 " electors." See note (m) ss. 7. 
 
 The " ratepayers " have the right also to be represented at the meeting of 
 the Board for the purpose of considering the applications for licenses and of 
 appointing a person to speak for them at such meeting against the granting of 
 any license objected to under the preceding sub-sections. 
 
 (i) The Board, it seems, may take cognizance of any objection which may 
 exist against granting the license (see sub-sec. 12), although no formal objec- 
 tion has been made to it. In fact the granting or refusing the certificate is 
 entirely in their discretion, and they are not bound to disolose their reasons. 
 But in the case of any formal objection to the character of the applicant being 
 made notice must be given to him. But see note (<), sec. 12, ss. 1. 
 
 U) The general rule is that " Days " mean consecutive days, except Sunday 
 is ue first or last day. The day of service is not to be reckoned as one of the 
 three days : Toung v. Higgon, 6 M. & W. 49 ; Weeks v. Wray, L. B. 8, Q. B. 
 212 ; MoOrae v. Waterloo M. F. Ins. Co., 26 0. P. 487. 
 
 (k) The notice may be served personally, or left at the usual place of residenoe 
 or business of the applicant. 
 A " notice " may be either in writing or oral ; and if directed to be '* given " 
 
 -i;li 
 
S. II 
 
 •] 
 
 THE LIQUOR LICENSE ACT. 
 
 29 
 
 sworn before a Justice of the Peace or r. Commissioner for 
 taking affidavits. (/.) 
 
 (12) Notwithstanding anything in this Act contained, (w) Hoard 
 the board may, of their own motion, («) take notice of any iioemat- 
 
 vOf B not 
 
 matter or thing (0) which in their opinion (/) would be an mention- 
 
 , , ed by ob- 
 
 olijection to the granting of a license, although no notice or jeotors. 
 
 it may be in either of those modes ; but if it is to be ''left " or " served," then 
 there is an implication that the notice is to be written : Wilson v. NightinKale, 
 8 Q. B., 1034 ; B. v. Shurmer, 17 Q. B. D., 323, and especially the judgment of 
 Coleridge, 0. J., in the latter case. Bat " serve " does not enjoin personal 
 aervice, and a prepaid registered letter is sufficient : re McOrath, 24 Q. S. D., 
 466. In this case the Statatr provides that it may be served either personally, 
 or left at his nsaal place of residence or business. 
 
 " Personal service " means serving the person with a copy of process and 
 Bhewing him the original if he desire it : Ooggs v. Lord Huntingtower, 12 M. A 
 W., £03 ; and other oases cited in Sincliur's D. C. Act, 1879. 
 
 "Usual place of residence" means the dwelling in which he lives with his 
 family and sleeps at night (see B. v. Hammond, 17 Q- B., 772 ; Grogan v. London 
 and Manchester Ins. Ass. Go., 63 L. T. N. 8., 761) and " usual place of 
 business " is the shop or apartment in which he carries on his trade, business 
 or calling. If the notice is left at his place of business, it should be done within 
 the usual hours of business or at any rate while some person is there who can 
 receive it. 
 
 The notice should be given to the applicant by the persons objecting, as the 
 Act does not provide for the performance of this duty by the Board of Commis- 
 sioners or the Inspector. 
 
 {I) Service of the notice may be proved "orally," that is, by word of month 
 before the Commissioners ; or " by affidavit," e. g. a written statement sworn 
 to before a person having authority to administer an oath (Wharton 30), 
 which in this case would be a Justice of the Peace or a Commissioner for 
 taking affidavits. By the B. S. 0., c. 141, Justices of the Peace and other 
 persons are prohibited from administering oaths, affidavits, etc., unless author- 
 ized by some law in force, and a form of declaration is provided to be used in 
 lieu of such affidavits ; but the authority here given is sufficient to justify the 
 administering of an oath. See Interpretation Act, B. 8, ss. 17. 
 
 (m) " Notwitstanding anything in this Act contained " is equivalent to saying 
 that the Act shall be no impediment to the Board taking notice of anything 
 appearing to them as an ejection to the granting of a license. See Dwar. 688, 
 citing Gheinie's case ; Cecil's case, 7 Bep. 20. 
 
 (n) '* Of their own motion," i. «., of their own impulse ; without being 
 actuated by any petition or proceedings as provided for in the preceding sab- 
 sections. 
 
 (0) " Any " is a word which ezolades limitation or qualification ; per Fry, 
 L. J., Duck V. Bates, 12 Q. B. D. 79 ; and has the widest possible signification. 
 See Beckett v. Sutton, 51 L. J. Ch. 433. " Matter " is also a word of very wida 
 significance, so that " any matter or thing " may be said to mean any cause or 
 thing, real, apparent or imaginary, which in the judgment of the Board of 
 Commissioners may be an objection to the granting of the license. 
 
 (p) "In their opinion " means according to the judgment of the Board of 
 Commissioners ; see Ormerod v, Todmorden Co., 8 Q. B. D. 664. 
 
 'I 'fw<h 
 
 
 ^im 
 
 
3° 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 
 
 II. 
 
 .1 i 
 
 iM 
 
 ill 
 
 ir ii 
 
 case a. 
 
 objection has been given or made as by this Act provided . 
 appiiowt {9) i" S"y such case the board shall notify the applicant, (r) 
 in Buoh ^^^ gj^^ii adjourn their hearing of the application, if request- 
 ed by him, for any period not exceeding fourteen days in 
 order that any person affected by the objection may have 
 an opportunity of answering the same. 
 
 (13) The decision of the board, when once announced 
 by the chairman, shall not be questioned or reconsidered ; (s) 
 
 Decision 
 of Board 
 final. 
 
 (q) " No notice given " refers to the notioe reqaired in the ease of an objec- 
 tion to the character of the applicant : see ss. 11 and notes thereto. An objec- 
 tion made privately to the Gommissioners before they come to the meeting 
 would not be an objection within this section : see B. v. Merthyr Tydvil, 14 
 Q. B. D., 584. It must be made " as by this Act provided " — that is by petition, 
 &o. See sub-sec. 7 ante ; sub-see. 14 post. 
 
 (r) " The Board shall notify the applicant." This particular clause refers to 
 such objection as the board may see fit to raise on their own impulse. In the 
 case of objections made by petition, except in the case of an objection as to 
 character, no provision is made for notice to the applicant. But if an objection 
 is made to the character by any petition, three days' notice must be given ; iu 
 the case of the objection being taken by the Commissioners, no time is men- 
 tioned, but the applicant should have reasonable notice in any case, and provision 
 is made for an adjournment for a period not exceeding fourteen days, in case 
 the applicant is not prepared to answer the objection at the time, and in case 
 he requests such adjournment, and also in order that any other person affected 
 by the objection may have an opportunity of answering the same. The same 
 adjournment may be made at the request of any other person affected by the 
 objection. " Fourteen days " means not beyond fourteen days. The full period 
 may be taken, excluding the first day. 
 
 « In order that any person affected." The word " affected " is usually under- 
 stood to mean "concerned" or "interested." Its meaning, however, cannot, 
 in the absence of any judicial construction of the term, be clearly defined. 
 The word may, and probably has, a very wide significance as used here, so that 
 the Statute may be made to refer to any one who is in any way interested or 
 concerned in the granting of the license or the premises to which it will apply. 
 
 When the Gommissioners institute an objection themselves to the granting 
 of a license, it is their duty not to decide then and there, but to give notioe to 
 the applicant and adjourn the further hearing, so that he may have an 
 opportunity of answering the objection. Under a similar provision of the law 
 in England it was held that the licensing Justices were bound to have given 
 the applicant notice ; see B. v. Farquhar, L. B. 9, Q. B. 268 : and the Court 
 also quashed an order of the Quarter Sessions for disregarding this matter : 
 Buddick v. Justices of Liverpool, 42 J. P. 406. At the same time if both' the 
 applicant and the person objecting act on the assumption that an objection has 
 been duly made and time given to answer it, then it will be taken that they 
 waived literal compliance with the section ; B. v. Kent Justices, 41 J. P. 263 ; 
 see also B. v. Eales, 42 L. T. (N. S.) 785 ; B. v. Merthyr Tydvill Justices, 14 
 Q. B. D. 584. 
 
 (f) In a strictly legal sense "decision" means a judicial determination. 
 The judgment of the Court ; Wharton 896. It has been said that the word 
 " decision " is applicable as well to rules and orders not final as to final deci- 
 sions : per Stron^r, J., Danjon v. Marquis, 3 0. 8. B. 258. Under this section 
 the " decision " is the oonolnsion at wnioh the Board arrives as to whether a 
 
II.] 
 
 THE LIQUOR LICENSE ACT. 
 
 31 
 
 provided, nevertheless, that in cases in which the decision 
 of the board has not been unanimous, or in cases in which 
 the person or persons affected by such decision, (/) petition 
 the boa d and allege facts or grounds for their consideration 
 not fornierly before them, the board may by resolution, in 
 which all of the commissioners concur, decide to rehear the 
 case. Wl.ere a rehearing is allowed, notice thereof shall be 
 given by the Inspector to at least one of the petitioners or 
 his agent. («.) 
 
 (14) (v) [In the case of an application for a tavern or shop Certifl- 
 license by a person who is not, at the time of making such required 
 application, a licensee under this Act, or in the case of an piioatlon 
 application for such license for or transfer thereof to premi- applicant 
 ses which are not then licensed, the petition must be lusenaee. 
 
 certificate for a license shall be granted or not. When onoe' announced by the 
 Chairman it is decisive. But where a new Board of License Commissioners 
 had been appointed before the retiring Board had completed their f anotions a 
 mandamus to compel the new Board to issae a license which had been granted, 
 but not issued, was refused : Leeson v. License Com. of Dufferin, 19 O. B. 67. 
 The section provides that the decision, after it has been announced by the 
 Chairman, shall not be questioned (i. e. , not called in question or disputed) or 
 "reconsidered" (that is, taken up for renewed consideration), unless (1) the 
 decision has not been unanimous, or (2) the person or persons a£feoted by it 
 petition the Board for a re-hearing for the purpose of considering new facts or 
 grounds bearing upon the question which the Board have not previously had 
 an opportunity of hearing. Under either of such oiroumstauoes the Board 
 may, by a unanimous resolution, decide to re-hear the case. But such 
 re-hearing is entirely optional with the Board. 
 
 " Provided nevertheless. " These words refer to and qualify what has pre- 
 ceded ; see Martelli v. Holloway, L. B. 6 H. L., 632. 
 
 "Unanimous" means "all of one opinion." — Worcester. 
 
 (t) The term " persons a£Feoted by such decision," it is apprehended, refers to 
 tho«e who appeared before the Gommissioners at the original hearing of the 
 matter, and not to persons who wish to appear for the first time after the 
 decision has been given. But the Board has ample power to re-open the matter 
 and to hear any further objeotions not before brought to their notice, from 
 whatever source they may emanate. See notes to sec. 7. 
 
 (u) "At least one of the petitioners." The notice may be given to one or 
 more of the petitioners, that is, of the persons whose names are subscribed to 
 the petition, as petitioners for the re-hearing : see Mallet v. Hanley, 18 Q. B. D., 
 787. 
 
 "Ageut" means a person appointed to transact business for another. 
 Wharton 82. The agent in this case no doubt is intended to mean the solicitor 
 or other person appearing for such petitioners or petitioner at the original 
 hearing ot the case. 
 
 (v) Thil sub-Miovion is substituted for that contained in the original Act 
 B. S. 0., t, 194. Before the passing of this sub-section in 1890, a license might 
 be transferted to other premises witibout any notice being given as required on 
 the application for a new license : see sec. 88. The Legislature has now pro- 
 
 rVi 
 
 u¥ 
 
 f :■ 
 
 , •-» 
 
 
 
 
 M 
 
 
&i 
 
 3a 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 
 
 II. 
 
 i! '|l 
 
 ft!.: :i ■, 
 
 m '''■ 
 
 I . ji 
 
 accompanied by a certificate (w) sighed by a majority {x) 
 of the electors entitled to vote at elections for the Legisla- 
 tive Assembly {y) in the polling sub-division in which the 
 premises sought to be licensed are situated, and the said 
 majority must include at least, one-third of the said electors 
 who are at the time of such application residents within 
 
 Tided that a lioense oannot be transferred to premises in another polling sab- 
 division, without the petition of a majority of the electors of saoh sub-division. 
 A transfer may be allowed to other premises, without a petition, in the same 
 sub-division if : (1) the number of licensed premises therein is not increased, 
 or, (2) the majority of the electors therein do not petition against it on some of 
 the specified grounds. The Legislature has not yet required that public notice 
 of an application for a transfer to premises within the same sub-division shall 
 be given, so that it would seem that such a transfer may be made without an 
 opportunity being given to petition against it. 
 
 (w) A certificate ordinarily need not be in writing unless so stipulated (see 
 Roberts v. Watkins, 14 C. B N. 8., 692), although the definition given by Dr. 
 Wharton is, "a testimony given in writing to declare the truth of anything :" 
 Wharton 121. Here the certificate must necessarily be in writing and ' ' signed " 
 by a majority of the electors, etc. See note (d) ss. 9. 
 
 (x) " Majority " means the greater number ; i. e., more than half : Worcester 
 271. The majority necessary under the Municipal Act, which requires the 
 consent of a majority of the qualified electors to a by-law, is that of the electors 
 voting on the by-law, and not a majority of all the electors in the municipality : 
 Jenkins v. Corporation of Elgin, 21 0. P., 826 ; but see McAvoy and Munici- 
 pality of Sarnia, 12 U. G. &., 99 ; People v. Morris, 13 Wend. (N. T.), 326 ; 
 Billings and the Oor. of Gloucester, 10 U. 0. B., 278. 
 
 This section requires " a majority of the electors entitled to vote for the 
 Legislative Assembly," and such majority '* must include at least one-third of 
 the said electors who at the time of the application are residents within the said 
 polling sub-division." This, it is clear, concprises a majority of all of the 
 electors. 
 
 {y) The persons entitled to vote for the Legislative Assembly are : Every 
 male person of the full a^e of 21 years, a subject of Her Majesty by birth or 
 naturalization, and not disqualified under '* The Ontario Election Act," or 
 " The Manhood Huffrage Act," and not otherwise prohibited from voting if duly 
 entered on the list of voters proper to be used, provided such person has resided 
 in the Province for nine months next preceding the time fixed for beginning to 
 make the assessment roll in which he is entitled to be entered, or has so resided 
 for twulve months next preceding the time for making complaint to the County 
 Judge under " The Voters' List Act," and provided also that such person was 
 in good faith at the time fixed aforesaid a resident of, and domiciled in the 
 Municipality in the list of which he is entered, and is at the time of tendering 
 his vote a resident of, and domiciled in the electoral district and had resided 
 in the said electoral district continuously from the time fixed as aforesaid, for 
 beginning to make said roll or for making such complaint, as the case may be : 
 B. 8. 0., c. 4, s. 3. All of the petitioners must necessarily be residents of the 
 electoral district, as non-residents are not included amongst those *' entitled to 
 vote," and the petitions inust include one third of all the electors resident in 
 the polling sub-division at the time of the application. " At the time of such 
 application " refers to the time of the filing of the application for a license. 
 See note (z) as. 2. See also Chapman v. Bobinson, 1 £. & E., 26 ; Brown v. 
 Wilkinson, 16 M. & W., 891. 
 
 
 m 
 
II.] 
 
 THE LIQUOR LICENSE ACT. 
 
 33 
 
 ^enng 
 Bsided 
 Id, for 
 
 Vy ^^ ■ 
 
 at the 
 
 lied to 
 
 entin 
 
 Bucb 
 
 bense. 
 
 vn V. 
 
 the said polling sub-division. The foregoing shall not apply 
 to the transfer (z) of a license from the holder thereof to 
 some other person for the same premises with the consent 
 of the commissioners, nor to a licensee applying for a 
 license for or permission of the commissioners to remove 
 with his license to other premises (a) in the same polling 
 sub-division ; provided that such license or permission shall 
 not increase the number of licensed premises in such polling 
 sub-division, (6) and shall not be allowed if a majority of 
 the electors duly qualified as aforesaid petition against the 
 same on the grounds hereinbefore set forth or any of such 
 grounds, (c) 
 
 (a) In case of any dispute (d) as to whether the ^luntoi-^ 
 number of electors who have signed the certifi- J^^y^ 
 cate or petition hereinbefore mentioned, com- ^Jl® °g 
 pose a majority of the duly qualified electors 
 of the sub-division, or include one-third of the 
 resident electors, or, in case of a dispute, as 
 to whether any one or more persons who have 
 signed the certificate or petition are duly quali- 
 fied voters, or are residents of the sub-division, 
 the clerk of the municipality (e) in which the 
 sub-division is situate, shall take evidence 
 upon oath, or otherwise, (/) and determine the 
 
 (z) See see. 37. 
 (a) See seo. 38. 
 (6) See sec. 88. 
 
 (c) The groar ""s of objection are set forth in sab-aeo. 8 and notes thereto, 
 
 (d) "A dispute " may refer to diapntes of law as well as of fact : see Forwood 
 Watney, 49 L. J. Q. B. 447. The word ordinarily implies "contention, 
 
 ontroversy, or argament." — Worcester 422. 
 
 (e) See Municipal Act, B. S. 0. 1887, o. 184, seo. 246 et seq. 
 (/) The word " oath " shall be construed as meaning a solemn affirmation 
 
 ^henever the context applies to any person and case by whom and in which 
 I solemn affirmation may be made instead of an oath, and in like cases the 
 ford sworn shaU include the word " affirmed." And in every case where an 
 |tth or affirmation is directed to be made before any person or officer, such 
 prson or officer shall have full power and authority to administer the same 
 lid to certify to its having been made. 
 
 I Where, by an Act of the Legislature, an oath is authorized or directed to be 
 ade, taken, or administered, the oath may be administered and a certificate 
 its having been made, taken or administered, may be given by any one 
 kmed in the Act : Interpretation Act, a. 8, ss. 18, i9. 
 
 . I ' 
 
 
"^ 
 
 34 
 
 THE LIQUOR LICENSE ACT. 
 
 I 
 
 Ai to un- 
 orgauized 
 diatriots. 
 
 [S. 
 
 II. 
 
 question in dispute, and he shall in such case 
 certify to the board, the number of duly qualified 
 electors and of resident electors respectively 
 for the sub-division and the number of duly 
 * qualified electors who have signed the certifi- 
 cate or petition as the case may be and in the 
 case of a certificate, the number of such last 
 mentioned electors who are resident as aforesaid, 
 and his certificate shall be final and conclu- 
 sive. (^.) 
 (d) In unorganized districts the said certificate shall 
 be signed by at least eleven out of the twenty 
 householders residing nearest (A) to the premises 
 in which the applicant proposes to carry on the 
 business for which the license is required. 
 
 1 
 
 
 ■•l:J 
 
 
 !■ ■ ! 
 
 .Iff ;:ii! 
 
 ']. :''iir 
 
 11, : f 
 
 The enquiry by the olerk upon a reference to him in the case of a diepnte should 
 be whether the number of electors who have signed the certificate or petition 
 compose a majority of the duly qualified electors of the polling sub-division, or 
 whether they include one-third of the resident electors, or whether any one or 
 more persons who have signed the certificate or petition are duly qualified voters 
 or are residents of the sub-division, and upon his determination of the question 
 he bhall certify to the Board of License Commissioners : 
 
 1st. In case the dispute relates to the petition provided for in sub-sections 7 
 and 8, (a) the number of duly qualified electors for the polling sub-division : (&) 
 the number of resident electors for the said sub-division : and (e) the number of 
 such duly qualified electors who have signed the petition. 
 
 2nd. In case the dispute relates to the certificate of the electors to accom- 
 pany the application for a license under this sub-sec, then the clerk's certificate 
 shall, in addition to the facta certified to as above, also contain a statement of 
 the number of electors who have signed the applicant's certificate, who are not 
 only electors but are also residents of the sub-division, so as to show whether 
 they include the requisite one-third of those electors who are at the time of | 
 the application residents within the sub-division and entitled to vote at elec- 
 tions for the Legislative Assembly. The facts are to be determined by snob I 
 evidence as the olerk may be able to obtain " upon oath or otherwise," whiob 
 means by oath or any other sufficient means : Shelford v. Louth Bailway, i 
 Ex. D. 317. The proper construction of this seems to be that the clerk maj J 
 ascertain the facts either by the evidence of witnesses to be examined by bin I 
 on oath, or by some other evidence of an equally satisfactory character. Tim I 
 would probably include references to oificial. documents — the assessment roll, [ 
 voters' lists, <frc., but as the evidence as to residence could not well be obtained I 
 from these, it should naturally be obtained on the oaths of persons having i| 
 knowledge of the facts, who are brought before him by the parties interested. 
 
 {g) When a decision is final and conclusive, there is no appeal against it: 
 Waterhouse v. Gilbert, 16 Q. B. D., 669 ; Bryant v. Beading, 17 Q. B. D., 128;] 
 Lyon V. Morris, 19 Q. B. D. 139; B. v. Doty, 13 U. C. B. 898; Eeauetj 
 Stedman, 10 0. P. 436 ; Mulligan v. Cooke, 9 U. 0. L. J., 122. 
 
 {h) " Nearest " is synonymous with next : Smith v. Campbell, 19 Yes., 40i^| 
 
s. ri 
 
 •J 
 
 THE LIQUOR LICENSE ACT. 
 
 35 
 
 (c) Such certificate (/) shall be in the form N., in the f,°i;5J,ftJg 
 
 schedule hereto, or to the like effect, (j) in ^[j"^"***" 
 respect of the fitness of the applicant to have 
 such license, and the premises in which it is 
 proposed to carry on the business, and the 
 desirability, on the ground of public conven- 
 ience of having a license granted therefor. 
 
 (d) The certificate n support of any petition for a p*™|nt' 
 license to take effect from the first day of May, ^^^^ 
 1890, shall for the purposes of this section be 
 
 in time if presented to the commissioners at 
 
 or before their first meeting for considering 
 applications.] {k) 53 Vic, c. 55, sec. i. 
 
 (15) Any petition against the granting of a license shall Time for 
 l)e lodged with the inspector at least four days before the 
 
 said first meeting of the board to consider the application ; (/) 
 and the inspector shall present the same to the board at the 
 first meeting thereof. 
 
 (16) The inspector shall keep a list posted (m) in his Posting 
 office for three days previous to the meeting of the board, petiuone, 
 of all certificates and petitions lodged with him as aforesaid, 
 
 and ever^ such petition or certificate shall be open for 
 public inspection without fee. («.) 
 
 \ 
 
 ^'li 
 
 
 ^r 
 
 and '* near " is alBO the equivalent of " nearest :" Stroud'e Diet., 496. See also 
 Bathard v. London Sewers Gomrs., 64 J. P., 186. 
 
 (t) " Saoh oertifioate," i. 0., the oertifioate required in case of an applioation 
 for license by a person who is not licensed at the time of making suoh applioa- 
 tion, or in case of a transfer of license to premises outside of the polling snb- 
 diviaion then licensed. 
 
 (j) A substantial compliance is all that is required : re Allison, 10 Ex. at 
 I paffe 668, per Parke, B.; B. v. Hyde, 7 E. ft B., 859 ; Eggington v. Liohileld 
 (mayor, etc.), 6 E. & B., 101 ; B. v. Justices Cheshire, 8 D. <ft L., 887. See also 
 I Henry v. Armitage, 12 Q. B. D. , 257. See also notes to sec. 108. 
 
 {k) This provision only applies to applications for licenses for the year 1890-91. 
 
 ({) The certificate is to be " Iddged " or filed in the office of the Inspector 
 I" at least four days before the meeting of the board." " At least four days " 
 [means four clear days at least. See notes (d) and (h), sub-see. 6 tupra. 
 
 (m) " Posted " is defined literally to mean " fixed upon a post, as a notice 
 lor advertisement."— Worcester, 1108. Here it means placed in such a position 
 ]that it may be read without asking permission. 
 
 (n) " Three days " mean dear days. The Act makes no provision as to what 
 jthe list should contain, but it is submitted that in the case of a petition for ti 
 license it should show the name and residence of the applicant, the premises in 
 
 M-' \ 
 
 H 
 
 ?, r^ ' 
 
 
 
m 
 
 36 
 
 THE LIQUOR LICENSE ACT. 
 
 HearinR 
 and deter- 
 mininfi 
 objeo- 
 tloni. 
 
 Prooeed- 
 ingi at 
 bearings. 
 
 [s. 
 
 (17) Every application (<?) for a license, and all objections 
 to every such application, shall be heard and determined 
 at a meeting of the board. (/.) 
 
 (18) Every such hearing shall be open to the public, and 
 the board may summon and examine on oath such witnesses 
 as they may think necessary, and as nearly as may be in the 
 manner directed by any Act now or hereafter to be in force 
 relating to the duties of Justices in relation to summary 
 convictions and orders ; and any member of the board may 
 administer the oath ; but nevertheless nothing herein con 
 tained shall prevent the board from retiring or sitting with 
 closed doors while considering or preparing their decision 
 
 respect of which the license is asked, and the description of license applied for. 
 In the case of certificates, sufficient information should be given to shew the 
 particular applications to which they respectively refer. The original petitions 
 and certificates shall be accessible to the public for the purposes of examination 
 and inspection without any charge. 
 
 (0) In a strict legal sense the word " application " has been held to include 
 the hearing of a suit as well as an interlocutoi7 proceeding (see Intein».ioi)aI 
 Financial Soc'y v. Moscow Gas Co., 7 Ch. D. 241), but in this iLot it seems to 
 have been used interchangeably with the word " petition " and as synonymous 
 to it. 
 
 (p) '* Objections to every such application." See anb-section 8 and notes thereto. 
 
 To hear a cause or matter means to bear and determine it. It has been said 
 that " hearing " includes not only its necessary antecedents, but also its 
 necessary consequences : per Selbome, L. 0., re Green, 7 Q. B. D., 278 ; mm 
 Green v. Penzance, 6 App. Gas. 657. 
 
 See sub-sec. 5 of this section. The meeting must be held on a day to be 
 fixed by the Commissioners, not less than one weol: prior to the 1st of May in 
 each year, and the certificates and petitions " lodged" with the Inspector at 
 least four days before the day fixed for the meeting, and must be presented by 
 the Inspector at that meeting. 
 
 When power is given to " hear and determine " an offence, it was held that 
 a condition is implied that the accused be first cited by a summons and have an 
 opportunity of defence : Dwar. 671, 672. 
 
 So in this case it is submitted that the applicant has the right to be heard as 
 well as the objectors, although no express provision is made therefor. 
 
 When two or more are to hear and determine a matter, they must sit together 
 and not separately (Bum's Justice Intro, xxiv., cited Dwar., 670) and it must 
 be done under this sub-section at a meeting of the board. 
 
 A. " meeting " implies a concurrence or coming together of at least two 
 persons: per Coleridge, C. J., Sharp v. Dawes, 2 Q. B. D., 26. One swallow 
 does not make a summer, nor does the presence of one Commissioner constitute 
 a meeting. As was said by Coleridge, 0. J., in Sharp v. Dawes, iup., " No 
 doubt in a particular Statute the word might be used in a special sense, so that 
 the attendance of one might satisfy it ;" but under the provisions of this Act 
 it is declared that the presence of two of the Oommissioners is requisite to form 
 a quorum. See sect. 8 and notes thereto. 
 
 mm 
 
' ''I 
 
 S. II 
 
 ] 
 
 THE LIQUOR LICENSE ACT. 
 
 37 
 
 or judgment in respect of any application or applications. {</) 
 
 (19) Any meeting of the board for the consideration of j^'y^JJj. 
 applications may, at the discretion of the board, be adjourned *°8"- 
 from time to time to the same or any other place or build- 
 ing within the district. (/•.) 
 
 (20) Where the inspector has not taken or set apart {J,^°8°g^,. 
 premises especially for the purposes of an office, the room 
 
 or rooms in which he usually conducts his official business, 
 
 Ml; 
 
 (q) The meeting Bhsll be held in a plaoe to which the public have or are 
 permitted to have acoeBB : see Hirst v. Molesbary, L. B. 6, Q. fi. 180. It has 
 been held that the ezpresBion " open Court " does not include the private room 
 of a County Judge, tnough often used by him for hearing cautes : Kenyon v. 
 Eastwood, 67 L. J. Q. B., 466. 
 
 By the "public" is meant the people at large: Worcester, 1161. No one 
 who wishes to attend may be excluded. The proceedings are to be conducted 
 in the same manner as in the case of JnstioeB of the Peace on the trial of oases 
 under " The Summary Oonvictions Act," which provides that the room or place 
 in which the Justice sitB shall be deemed an open and public Court to which the 
 public generally may have access, so far as the same can conveniently contain 
 them : B. S. C. 1886, 0. 178, 8.88. " Examine on oath." See note to sub-sec. 14. 
 
 A power to take examinations or other proof in itself implies that it is to be 
 done on oath : Hoyles v. Blore, 14 M. <& W., 887. 
 
 " The Summary Convictions Act," B. S. 0. 1886, 0. 178, sects. 13-22, males 
 provision for enforcing the attendance of witnesses. Sects. 29-82 provide for 
 the ease of persons likely to give material evidence and wno will not voluntarily 
 appear, and sec. 88, et $eq, presoribea the duties and powers of the Justices on 
 the hearing and examination of witnesses. See sects. 93-100, post and notes 
 thereto. 
 
 The word " any " excludes limitation or qualification: per Fry L. J., Duck 
 V. Bates, 12 Q. B. D., 79. But its generality in this case is restricted by the 
 context, and *' any member of the Board " appUes to the Board having jurisdiction 
 in the particular case under adjudication : see Stroud's Diet., 89. 
 
 After having heard the parties or their agents, the Commissioners may either 
 retire or clear the Court and continue their deliberations with closed doors, but 
 this can only be done while they are considering or preparing their decision or 
 judgment. All evidence and argument should be heard in public. The Com- 
 missioners should not listen to anything from any p«)rson except at the hearing : 
 re Cruickshankv. Corby, 80 C. P., 466. 
 
 (r) The words " from time to time " are words which are constantly intro- 
 duced where it is intended to protect a person who is empowered to act from 
 the risk of having completely discharged his duty when he has once acted, and, 
 therefore, not being able to act again in the same direction. The power of 
 adjournment here conferred on the Board of License Commissioners seems to 
 be unlimited. They may adjourn as often as they may think fit : see Lawrie 
 V, Loes, 7 App. Cas. 19 ; re Sutton v. Ooldfield Grammar School, 7 App. Cas. 
 91 ; see also Neilson v. Jarvis, 13 C. P., 176, in which it was held that where 
 the words were not used an execution was not renewable. 
 
 The " same " generally refers to the next preceding antecedent : Co. Litt., 
 20b, 385b. 
 
 " Within the district " refers to the license district. See seo. 2, as. 6. 
 
 , t « 
 
w 
 
 I,' f 
 
 '■ % \ 
 
 ■'■' l',', i 
 
 t'yi' 
 
 I'll:., /ii 
 If'' 'i 
 
 != !l 
 
 38 
 
 Foregoing 
 sab-uo- 
 tlona de- 
 claratory 
 only. 
 
 Mode of 
 proced- 
 ure in ob- 
 taining 
 tavern or 
 shop 
 lioenMi. 
 
 THE LIQUOR LICENSE ACT. 
 
 [SS. II, 
 
 12. 
 
 whether at his residence or place of business, shall be 
 deemed to be his office for the purposes of this Act. (s.) 
 
 (21) The foregoing sub-sections of this section are de- 
 clared to be obligatory (/) on the board and inspector, but 
 non-compliance therewith shall not invalidate the action of 
 the board or inspector. Nothing in this sub-section con- 
 tained shall authorize the granting of a license contrary to 
 the provisions of sub-section 14. 47 V., c. 34, s. 4. 
 
 Ida (i) (») If upon application (z;) of any person re- 
 quiring a tavern or shop license, it appears that such appli- 
 cant is the true owner of the business (w) of such tavern or 
 
 (*) An office is the place where a perBon uaoally oonduotB hit bosineis (Me 
 Woroester), and his residence is the place where he eats, drinks and sleeps, or 
 where his family or his servants eat, drink and sleep ; per Bayley, J., B. v. 
 North Garry, 4 B. (t 0. 969. It has a variety of meanings, acoordlng to the 
 Statute in which it is ased, per Erie, 0. J., Naef v. Matter, 81 L. J. 0. P. 869 ; 
 Shaw V. Morley, L. B. 8, Ex. 187 ; Bows v Fenwiok, L. B. 9, C. P. 889 ; see 
 also re Bowie, ex p. Breall, 16 Oh. D. 484. And a person's place of basiness 
 may be his residence, bat in this case it may be taken to mean the place where 
 he nsaally sleeps ; see Attenboroogh v. Thompson, 2 H. <fe N. 669 ; Black- 
 well V. England, 8 B. <ik B. 641 ; Oreenham v. Child, 69 L. J. Q. B. 27 ; re 
 Moolson, ex p. Knightly, 61 L. J. Oh. 828; Wallisv. Smith, W. N. (1882) 77. 
 See Sinclair's Oon. D. O. Act, 1886, 89, 126, 141 ; Stroud's Diet., 678. 
 
 Where the Inspector has no regular office or place of business, the place 
 where he usually conducts his official business, wherever it may be, shall be 
 deemed his office for the purposes of this Act, that is for the purpose of posting 
 up the list of applications and certifloates as in snb-seo. 16. 
 
 (0 The sub-sections of this section must be observed strictly by the Board of 
 License Gommissioners and Inspector, and on any refusal or neglect on the 
 part of these officers to comply, the Courts would enforce compliance. Where 
 a public duty devolves upon an official, and no specific remedy is provided in 
 case of his refusal, the Court will grant matidamuito command the performance 
 of the duty : Tapping on manda,Au$ page 12 ; B. v. W. B. Justioes, 1 New Sess. 
 Oas., 247. But see Leeson v. Lioense Oom. of Duflerin, 19 0. B., 67, in which 
 mandamus to compel the issue of a license was refused. 
 
 *' Shall not invalidate." This only applies to the ^»f(ti acts of the Commis- 
 sioners and Inspector. A license issued in contravention of the Statute, as 
 in the case of the granting of a lioense to a Commissioner or Inspector, is void. 
 See also the licenses prohibited by sees. 18, 14, 16, 16. 
 
 (ti) Under this section an applicant to be entitled to a lioense mttst be the 
 true owner of the basiness, and have complied with the requirements of the 
 law and of any Municipal By-laws in force in that behalf, and also with the 
 regulations and requirements of the Commissioners, and be one of the persons 
 designated or otherwise approved of by the Lioense Gommissioners. These are 
 condOitions precedent to the granting of the lioense, and must be complied with 
 before the Lioense Commissioners are authorized to grant the certificate. 
 
 (v) " Application " and " petition " seem to be used as synonymous or inter- 
 changeable terms : see see. 11, sub-sec. 1 et leq. 
 
 (w) The Canadian Act gives no definition of the term " owner." In the 
 English Licensing Act, 86 and 86 Vic, c. 94, the expression used is " owner of 
 
 1: ?.:h! 
 
,2.J 
 
 THE LIQUOR LICENSE ACT. 
 
 39 
 
 shop, and has complied with the requirements of the law, 
 and of any municipal by-laws in force in that behalf, and 
 also with the regulations and requirements of the license 
 commissioners, (x) and is one of the persons designated or 
 otherwise approved of by the license commissioners, (y) 
 the said license commissioners may grant (z) such applicant 
 
 lioenrad premiseB," and it ii defined to mean " the perion for the time being 
 entitled to reoeive, either on hie own aoooant or as mortgagee or other inonm- 
 branoer in posaesaion, the raok-rent of aaoh premiaea." But thia oonveya a 
 different meaning to the phraae "tme owner" aa uaed in oar Act. The 
 "owner" ia be who haa dominion over a thing which he may uae aa he 
 pleaaea, except aa reatrained by law or by contract ; it haa been held to include 
 tlie peraon in poaaeaaion and control of any article of peraonality, aa the one 
 who hirea a carriage : aee Dow v. Qould Mining Oo., 81 Cal., 649 (1867) ; Gamp 
 V. Bogera, ii Conn., 298 (1877). The term ia uaed in thia section in ita wideat 
 senae, it will, therefore, inclnde any one who ia entitled for the time being to th 
 poBaesaion of the premiaea and to the control and naufruot thereof ; or aa aaid 
 by Bramwell, L. J., Eglinton v. Norman 46 L. J. Q. B., 669 : « The • owner ' 
 or ' proprietor ' of a property ia the peraon in whom it ia for the time being 
 beneficially veated and who haa the occupation or control or naufruct of it ; 
 e. g., the leaaee ia, daring the term, the owner of the property demised." As to 
 the application and meaning of the term " owner " generally, see Oilohriat v. 
 Tobin, 7 0. P., 141 ; Hopkins v. Provincial Ina. Co., 18 0. P., 74 ; MoDongall 
 V. McMillan, 25 0. P., 76 : Chatillon v. Can. M. Fire Ina. Co., 27 0. P., 460 ; 
 Bank of Toronto v. Fanning, 17 Gr., 614 ; Ohauntler v. Bobinaon, 1 Ex., 163 ; 
 Lister v. Lobley, 7 A. & E., 124 ; Oook v. Humber, 11 U. B. N. 8., 33 ; B. v. 
 Vestry of St. Marylebone, 20 Q. B. D., 416 ; Woodard v. Billerioay Highway 
 Board, 11 Oh. D., 214; Jackson v. Kaaael, 26 U. C. B., 841. 
 
 The word " true " has very little significance ; it is little more than an exple- 
 tive. The " owner " of anything is quite aa much the owner aa the " true 
 owner " can possibly be. A peraon may be the " true owner " of the business, 
 however, although the license ia taken out in the name of another : see note, (a) 
 sec. 11., sa. 8. But the lioenae can only be legally granted to the " true owner," 
 and if obtained by fraudulent meana may be revoked : aee aeo. 9 1 . In some oases, 
 however, it may happen that a firm or company are the owners or occupiers, 
 and a license is applied for in the name of a manager or servant of such com- 
 pany. In England this ia frequently done, aee Pateraon'a L. A., 168, but it is 
 doubtful if a license could be issued under this Act to such manager or servant. 
 
 (x) The applicant is bound not only to comply with the regulations— that is, 
 the resolutions or by-laws — of the License Commissioners, {see notes to sec. 4), 
 but must conform to the requirements of the law, to any Municipal By-laws in 
 force in the Municipality, and to the " requirements" of the License Gommia- 
 sioners. 
 
 (y) See sec. 11, sub-aeo. 17 and notes thereto. 
 
 (z) It is entirely optional with the Oommissioners either to grant or refuse 
 the certificate : See B. v. Kensington, 12 Q. B.. 654 ; B. v. Salford, 18 Q. 6., 687. 
 In the latter case, it was held that the granting of a license was not, in itselif, 
 a judicial act over which thd Oourt could exercise control. The Court refused 
 to interfere by mandamua to compel the Commissioners to issne a license : 
 Leeson v. License Com. of Duflerin, 19 O. B., 67. An action will not lie for 
 refusing a license: Basset v. (k>daohalI, 8 Wila., 121, 4 Mew's. Dig., 1286 ; and 
 there ia no appeal from their decision. See sec. 11, sub-sec. 18. But see 
 B. V. Middlesex Justices, 8 B. & Ad., 988 ; B. v. Deane, 2 Q. B, 96 ; 
 B. V. Cockbnm, 4 E. <& B., 265 ; B. v. Juaticea of Ely, 6 E. & B., 489 ; B. v. 
 
 if 
 
 ' ■• I 
 
 mri^^: 
 
mm 
 
 40 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 12. 
 
 a certificate under the hands of any two of them, (a) stating 
 that he is entitled to a license for a certain time, {6) and for 
 a certain tavern, inn, house or place of public entertainment 
 or shop (c) within the municipality, to be mentioned in such 
 certificate. 
 
 (2) The license duty (</) shall then be paid by the 
 applicant into such bank as may be designated by the Pro- 
 vincial Secretary, to the credit of the " License Fund 
 Account," for the license district ; (e) and upon production 
 by the applicant to the inspector of the certificate of the 
 license commissioners, together with a receipt shewing 
 payment in full of the duty to the credit of the license fund 
 
 Jnatioes of West Biding, Drake's Case, L. B., 6 Q. B., 88 ; B. v. Annandale 
 jQstioes, 37 J. P., 85, cited in Faterson's L. A., 69. When onoe the case is 
 heard and adjadioated upon, there is no remedy if the Commissioners refuse to 
 grant a license. See B. v. Staffordsliire Justices, B. v. Firehill, 14 Q. B. D., 13. 
 It was. held that under the English Licensing Acts, the discretion of the Justices 
 as to granting or rbfusing a license, by way of renewal, in respect of ex- 
 cisable liquors to be drunk on the pren>'se8, is absolute, provided it be 
 exercised judicially : Sharpe v. Wakefield, 22 Q. B. D., 236 ; affirmed by the 
 House of Lords, W. N., 1891, 60. But in delivering judgment. Lord Bramwell 
 said : " The Legislature has most dearly shewn, that it supposed, contemplated 
 that licenses would usually be renewed : that the taking away of a man's liveli- 
 hood would not be practised cruelly or wantonly." 
 
 It was also held that if the Commissioners act corruptly, the only remedy is 
 a criminal information against them : see sec. 67 ; see also B. v. Holland, 1 
 T. B. , 692 ; B. v. Williams, 3 Burr., 1317 ; B v. Harris, 3 Burr., 1716. See also 
 B. V. Sainsbury, 4 T. B., 461. 
 
 (a) Two members of the Board of License Commissioners form a quorum. 
 " Under the hands of any two of them " means that it may be signed by any 
 two of such License Commissioners : see Wilson v. Wallani, 6 Ex. D., 156. It 
 also implies that the certificate must be in writing. A certificate signed by less 
 than two would not be sufficient. 
 
 (b) A "certain time" means for a definite period. The license can only 
 cover one period, namely, the license year, which begins on the Ist May and 
 ends on the 30th April in the next e&duing year : see sec. 8, sub-sec. 1. But 
 under certain circumstances the Commissioners may extend the duration of a 
 license for a period of not more than three months by an endorsement thereon. 
 See sec. 21. 
 
 " Certain " means " known, established, definite ; as, a certain date, a certain 
 instrument :" Andierson's Diet., 160. A " certain tavern " is one particularly 
 specified and described in the certificate. The license applies to that particular 
 tavern, inn, &o., and to no other place. See sec. 17. 
 
 (c) See sec. 2, as. 2, note (g). 
 
 (d) See sec. 41. 
 («) See sec. iP 
 
SS. 12, 13, I4.J THE LIQUOR LICENSE ACT. 
 
 41 
 
 account, (/) the insRector may issue (g) the license author- 
 ized by the license commissioners. R. S. O. 1877, c. 181, 
 s. 10. 
 
 13. The license commissioners (k) shall not grant (/) J^^be*'"* 
 any certificate for a license, or any certificate whatsoever, (j) slanted 
 whereby any person can obtain or procure any license for tain times 
 the sale of spirituous, fermented or intoxicating liquors, on places. 
 the days of the Exhibition of the Agricultural Association of 
 Ontario, (k) the Industrial Exhibition of Toronto, or of any 
 electoral district, or township, agricultural society exhibition, 
 either on the grounds of such society, or within the distance 
 ofthree hundred yards (/) from such grounds, (w) R. S. O. 
 1877, c. 181, s. II ; 47 v., c. 34, s. 14. 
 
 1 4:. No license («) shall hereafter (0) be granted to toferry** 
 
 ^ ^ boat. 
 
 (/) The duty is paid into the bank by the applicant, who obtains a receipt 
 for saoh payment, and the bank's receipt therefor is to be taken as evidence 
 of such payment. 
 
 ig) "May issne:" see sec. 4, note (o). A license issued without the pro- 
 visions of this section being complied with would be void : see Thompson v, 
 Harvey, 4 H. & N., 264. 
 
 {h) See sec. 8 and notes thereto. 
 
 (t) See sec. 66 and notes thereto. See also note (I) to sec. 3. 
 
 ( j) Bee notes to sees. 12, 14. 
 
 (k) See B. S. O., 0. 162, page 1627. 
 
 {I) It is now established that where there are no special controlling words, dis- 
 tance is not to be measured by the nearest available mode of access, but " as 
 the crow flies," t. «., by the shortest line that can be drawn from one place to 
 another on the map without regard to the "nrvatnxe or inequalities of the sur- 
 face of the earth : Mouflet v Oole, L. >> 8, Ex. 82 ; Duignan v. Walker, 
 5 Jar. N. S., 976 ; Atkyns v. Einnier, 4 Ex., 776 ; Sinclair's D. 0. Act, 1879, 
 88, 344 ; Maxwell on Statutes, 178. 
 
 (m) Under this section no license for the sale of intoxicating liquors of any 
 kind, and no certificate for any kind of license shall be granted. It is inferred 
 that any such certificate, if granted in contravention of this section, would be 
 void. The English Act, 8 and 4 Vic, 0. 61, s. 2, provides that every applicant 
 for a license sh'Jl produce a certificate that he is the real resident holder and 
 occupier of the house, etc., and it was held that a license granted in contraven- 
 tion of this provision was void : Thompson v. Harvey, 4 H. <& N., 264. The 
 Court refused to grant a mandamtM to revoke a certificate for a license granted 
 in contravention of a Municipal By-law : B. v. Bumside, 8 U. 0. B., 263. 
 
 Violaiions of this section are punishable by a penalty of not less than 160 or 
 more than 9100. See sec. 66. 
 
 (n) " No license " means not any license ; see Worcester, page 965, and in 
 this section the full significance of the word is intended to apply ; therefore no 
 license of any sort or description can be granted for a ferry. 
 
 (0) "Shall hereafter." The word shall is imperative ; see B. 8. 0., 1887, 
 0. 1, B. 8, sub-s. 2 : " hereafter " means after the time when the Act was 
 
 ij 
 
' V 
 
 !■ 
 
 
 42 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 14, 15. 
 
 or for (/) any terry boat (g). 47 V., c. 34, s. 24, parf. 
 Nou- ].4^. A tavern (r) or shop license (s) shall not (/) be 
 
 be grant- granted to or for («) the benefit of any person (v) who is a 
 missioner license commissioner (w) or inspector, (x) and every license 
 speotor. so issued shall be void, (y) R. S. O. 1877, c. 181, s. 12. 
 
 presented for the Boyal assent, as is the case with the words " now " or 
 " next :" lb. snb-seo. 3. 
 
 (p) What is meant here is that no license shall be issued to any ferry boat 
 or to any person for the purposes of such boat. See notes to sec. 16. 
 
 (9) " Ferry boat : " a boat for conveying passengers across a ferry. See 
 Worcester, 649. A " ferry " is a common Mghway to all the Queen's subjects, 
 usually across a large and deep river : Stroud's Diet., 281. See B. S. C, 1886, 
 p. 1275 ; B. S. 0., 1887, pages 1162, 1844, 1923, 1944. 
 
 The effect of this section is to prohibit the sale of intoxicating liquors on 
 ferry boats ; its sale is also prohibited on all vessels navigating the waters of 
 Ontario. See sec. 10, ante. 
 
 A certificate for a license granted in contravention of this section would, it 
 is presumed, be held void ; see Thompson v. Harvey, 4 H. & N., 264. The 
 Court refused to grant a mandamu$ to revoke a certificate for a license granted 
 in contravention of a Municipal By-law : see Gamble v. Bumside, 8 U. 0. B. , 
 263. 
 
 (r) A " tavern license " is defined to be : "a license for selling, bartering, or 
 trafficking byrretail in fermented, spirituous, or other liquors in quantities of 
 less than one quart, which may be drunk in the inn, ale, or beer-house or other 
 house of public entertainment in which the same Uqnor is sold." See sec. 2, 
 sub-s. 2, and notes thereto. 
 
 {») A ** shop hcense " shall mean " a license for selling, bartering or trafficking 
 by retail in shops, stores, or places other than inns, ale or beer-houses, or other 
 houses of public entertainment, in quantities not less than three half pints at 
 any one time to any one person, at the time of sale to be wholly removed and 
 taken away in quantities of not less than three half pints at a time." See sec. 
 2, sub-sec. 3, and notes thereto. 
 
 (t) " Shall not." This is imperatire : see B. 8. 0., c. 1, s. 9, ss. 2. 
 
 (u) A license cannot be granted to any person who is a License 
 Gommissiouer or Inspector, nor to any other person for the advantage, gain, 
 or profit of such License Commissioner or Inspector (see Worcester's Diet.): see 
 sec. 83. In either case the license issued would be void. 
 
 (v) By B. S. O., c. 1, s. 7, ss. I.'), the word " person " is made to include 
 any body, corporate or politic, cr party, and the heirs, executors, administrators, 
 or other legal representatives of such person to whom the context can apply 
 according to law. 
 
 (w) " License Commissioners." See sec. 3 and notes thereto. 
 
 (x) " Inspector." See sec. 2, se. 8. 
 
 (y) Very frequently the construction given by the Courts to the word " void " 
 is that it should be understood to mean *' voidable " only, but when, as in this 
 case, a Statute has some object of public policy in view which requires the 
 strict construction of the term '* void," it receives its natural full force and 
 effect ; that is, it is " empty and without force," see B. v. Hipswell, 8 B. & C, 
 466; Bethamv. Oregg, 10 Bina;.. 352; Storie v. Winchester, 17 0. B., 653: 
 see Maxwell on Statutes. When an Act of ParUament makes a thin*; 
 " void," it shall be void to all intents, and have a very violent relation (Dwar, 653) 
 
 

 i6.] 
 
 THE LIQUOR LICENSE ACT. 
 
 43 
 
 Liioense 
 not to be 
 issued for 
 any 
 
 premises 
 owned by 
 such per- 
 son in bis 
 district 
 
 10« (i) A tavern or shop license {z) shall not be issued 
 for premises within any license district (a) of which any of 
 the license commissioners (^) or of the inspectors (c) for 
 such district is the owner, and every license commissioner 
 who knowingly grants a certificate (d) for a license, and 
 every inspector who knowingly (e) issues a license for any 
 
 see 'so Stroad'B Diot., 865-868. The intention here is, no deabt, that the full 
 effect of the term should be given to it, and a license issued in contravention 
 of the section would be void and without effect, and any one attempting to sell 
 under it would be guilty of an offence under sec. 49. See also Sinclair's L. & 
 T., 80; Bosqoe's N. P., 1003; Pollock on Con., 6th Ed., 476, 477. 
 The license would be void, it is submitted, even if it were not expressly pro- 
 vided that it should be so. Where an Act provided that no license should 
 issue to any person who was not the real resident holder and occupier of 
 the dwelling house in which he should apply to be licensed, it was held that a 
 license issued in contravention of that enactment was void : Thompson v. 
 Harvey, 4 H. &N., 264. 
 
 ({) "Tavern licenses." See sec. 2, ss. 2. " Shop license." See sec. 2, ss. 3. 
 
 (a) " License district.'* See sec. 2, ss. 6. 
 
 (b) " License Commissioners." See sec. 3 and notes thereto. 
 
 (c) " InspMtors." See sec. 2, ss. 8. 
 
 (d) " Grants a certificate." See see. 12, ss. 1. 
 
 (e) "Knowingly issues." "Knowingly" imports that an accused person 
 knew what he was about to do, and with such knowledge proceeded to commit 
 the offence charged : United States v. Claypool, 14 P. B., 128 (1882) ; Gregory 
 V. United States, 17 Blatoh., 330 (1879) ; see Stephen's Grim. Law, 114-118. 
 But where the servant of a licensed viotnaller knowingly supplied liquor to a 
 constable on duty, vnthout the authority of his superior officer, it was held that 
 the licensed victualler was liable to be convicted, idthough he had no knowledge 
 of the act of the servant, and although it was not proved that the servant knew 
 the constable was on duty at the time the offence was committed : Mnllins v. 
 Collins, L. B. 9, Q. B. 292. A conviction of a publican for selling liquor to a 
 drunken person was also affirmed, although the person to whom the liquor was 
 sold had given no indication of intoxication and the publican did not know he 
 was drunk : Gundy v. Le Oocq, 13 Q. B. D., 207. 
 
 It was also held that it was unnecessary to shew that the seller of an article 
 of food in an altered state knew that it had been altered : Pain v. Boughtwood, 
 59 L. J. M. , 46. In these cases the word " knowingly " was not a part of 
 the Statutory definitions of the offences created, but wfls read into the Statute 
 by the Court, and the cases are chiefly valuable as showing the importance of 
 the presence or absence of the word in such definitions. 
 
 But where the term " knowingly issues " is used, as in this section, it may 
 be taken to mean " intentionally issues," as in the case of Tvrycross v. Grant, 
 2 G. P. D., 469, in which it was held that the words " knowingly issuing " 
 mean ** intentionally issuing " a prospeotas vnthout inserting the information 
 required by the Statute to be specified, although they are admitted under the 
 bona ^Ide belief that it is unnecessary to specify them. And so, even if the 
 License Inspector should not be aware of the prohibition, if he intentionally 
 issue the license to one of the persons to whom the issue is prohibited, he 
 would be liable to the penalty. 
 
 
 m^ 
 
 'f 
 
 ^ ^'j| 
 
 |P 
 
 X ■'• 
 
 ! !;'S 
 
 mp 
 
 h. 
 
 ] [M 
 
 mk 
 
 
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 1 
 
 ■";■ ■ . 
 
 r. 
 
 « 
 
 m 
 
 >'H:-^i 
 
44 
 
 THE LIQUOR LICENSE ACT. 
 
 \S. 1 6. 
 
 Last sub- 
 section 
 not to ap- 
 ly to com- 
 panies in 
 which 
 commis- 
 sioner, 
 etc, is a 
 share- 
 holder. 
 
 such premises, contrary to the provisions of this section, 
 shall incur a penalty of $500. (ee) R. S. 0. 1877, c. 181, s. 13. 
 
 (2) The preceding sub-section shall not extend or apply 
 to premises owned (/) or occupied (g) by a joint stock 
 company (A) in which a Hcense commissioner is a share- 
 holder, but in every such case, ^nd in every case where a 
 license commissioner is the mortgagee (/) of any premises or 
 agent (_/) for the collection of rents in respect of any such 
 premises, such license commissioner shall not, under a 
 penalty of $500, (ee) vote upon any question affecting the grant- 
 ing (k) of a license to the company or for premises owned 
 or occupied by it, or for premises in respect of which he is 
 such mortgagee or agent. 46 V. c. 25, s. i. 
 
 kff> 
 
 (ee) The penalty is recoverable by action, and one-half thereof shall belong 
 to the Grown and the other half to the private plaintiff, if any : see Interpreta- 
 tion Act, B. 8. 0., 0. 1, 8. 8, 88. 30. 
 
 (/) '* Owned." See note (w) to 8eo. 12. 
 
 (g) •< Oocopied " re!er8 not only to premises of which a person is tenant, bat 
 also to premises aotnally nnder his control : Robinson v. Briggs, L. B. 6 Ex., 
 1. But the tenant is, speaking generally, the oooapier of premises : B. v. 
 Poynder, 1 B. & G., 178 ; see also Green^ade v. Tappsoott, 1 G. M. & R., 65. 
 It was held that a person " oocnpies " a building, notwithstanding that his son 
 and son-in-law live with him : Chatillon v. The Canadian M. Fire Ins. Co., 27 
 0. P., 460 ; see also Bank of Toronto v. Fanning, 17 Grant, 614 ; Sinclair's 
 L. & T., 69, et leq. 
 
 (A) A " Joint Stock Company " is a body corporate with a capital stock 
 divided into nnmerons traneferable shares. It is nsnally incorporated by a 
 Charter issued by the Governor-General in Council or Lieutenant-Governor in 
 Council. When the Company requires powers which Parliament or the Legis- 
 lature has not authorized to be conferred by Charter, a Special Act of 
 Incorporation is necessary: see B. S. C, c. 119; B. S. 0., c. 166, 167. 
 A License Commissioner may be a shareholder in such a Company owning or 
 operating an hotel, but he cannot in such case vote on the question of granting 
 a license to snoh hotel. An institution " in the nature of a Joint Stock Com- 
 pany " does not comprise an institution the rules of which do not permit of any 
 dividend, division, or bonus among its members : re Bristol Athenteum, 43 
 Ch. D., 236. 
 
 (t) The ordinary meaning of a "mortgage" is a conveyance of freehold, 
 copyhold, or leasehold property with a pro^so for redemption to secure an 
 advance : Cavendish v. Cavendish, 80 Oh. D., 227 ; Poulett v. Hood, L. B. 5, 
 Eq. 116 ; and a " mortgagee " is a person who takes a mortgage as security for 
 a loan : Wharton, 486. 
 
 If a Commissioner is the holder of any such security upon a hotel, he cannot 
 vote upon the question of granting it a license. 
 
 (j) And if the hotel belong to another, a License Commissioner cannot act 
 as the collector of rents for such hotel and vote on the question of granting it 
 a license. 
 
 (k) " Affecting the granting." It is diflioult to say just exactly what was the 
 intention of the Legiuatnre in regard to this expression, and what the pro 
 
s. T7.] 
 
 THE LIQUOR LICENSE ACT. 
 
 45 
 
 Lioenae 
 limited to 
 person 
 and place 
 for wblota 
 it was 
 granted, 
 Bubjeot to 
 88. 37, 88. 
 
 19* Subject to the provisions of this Act (/) as to re- 
 movals (m) and the transfer of licenses, («) every license (o) 
 for the sale of liquor shall be held to be a license only to 
 the person therein named (p) and for the premises therein 
 described, and shall remain valid (^) only so long as such 
 person continues to be the occupant (/•) of the said premises 
 and the true owner of the business (s) there carried {f) on. 
 R. S. O., 1877, c. 181, s. 14. 
 
 ceedings are which may oome before the License OommiasionerB " affecting 
 the granting " of a lioenee, bat it is dear that a License CommiBsioner, who 
 is in any way interested, is precluded from voting upon an application for a 
 license for the premises in which he is so interested. The term " affecting the 
 granting" is Umited to questions involving the giving or issuing of a license, 
 and may not extend to the renewal, transfer, removal, and revocation of such 
 license. Oood taste, however, and a proper appreciation of his position as a 
 public ofiSoer should prevent a Oommissioner from interfering in the case of 
 any application in which he has the most remote interest. The English 
 Licensing Acts are far more explicit on this point, and the disqualification of 
 Licensing Justices more extended than that of the License GommissionerB 
 under this section. 
 
 stock company in which the Oommissioners were 
 See re Baird and the Gor. of Almonte, 41 U. G. B., 
 
 A license issued to a 
 interested would be void 
 416. 
 
 (2) " Subject to the provisions of this Act." As to the application of this 
 term, see Orm.rod v. Todmorden, 8 Q. B. D., 664; B. v. St. James, Westmin- 
 ster, 6 A. & E., 891 ; Stroud's Diet., 766. They are words of qualification and 
 have the effect of excluding from the operation of the section, the removals and 
 transfers of lioenses whioh tae provided for in sees. 37 and 88. 
 
 (m) See sec. 38 and notes thereto. 
 
 (n) See sec. 87 and notes thereto. 
 
 (0) "Every license" applies to licenses of every kind in which provision is 
 mtide for the sale of liquor. 
 
 (p) " Only to the person therein named." See sec. 11 and notes thereto. 
 
 (9) The word "valid" is defined by Worcester to mean "good in law," as 
 well as of " having legal strength, force or effect :" see Worcester, 1614. 
 " Validity " is legal sufficiency, in contradistinction to mere regularity : Sharpleigh 
 V. Snrdam, 1 Flip., 487-489 (1876). What is meant here is that the license 
 shall continue to possess its legal force and authority only so long as the 
 licensee named therein is the occupant of the premises to which it applies. 
 
 As to meaning of word " premises," see note («) to sec. 11, ss. 8. 
 
 A license to sell spirituous liquors by retail includes reasonable additions to 
 the original premises not diminishing the accommodation, and it is a question 
 of fact whether after such additions tiie premises are not substantially the same 
 as those licensed: B v. Baffles, 1 Q. B. D., 207; B. v. Smith, 16 L. T., 
 178 ; Stringer v. Huddersfleld, 33 L. T., 668. 
 
 (r) " Occupant." See note (w), sec. 12, and note {g), sec. 16. 
 
 (•) The intention is that the true owner of the business only shall be licensed, 
 and to prevept the evasion of the law by the transfer of the premises from one 
 person to another without the knowledge or consent of the Oommissioners or 
 Inspector. Sec. 112 also contains provisions of a similar character. See notes 
 to that section. See also note (a), aeo. 11, ss. 8. 
 
 (e) •< There oarriad on." See notM to sto. 62, m. 8. 
 
 \ ' i 
 
 
mf 
 
 46 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. f8. 
 
 
 ill 
 
 
 TAVERN LICENSES. 
 
 JVuf/ider. 
 
 ucmo?* 18» (i) The number of tavern licenses to be granted 
 
 lioenseiB jn the respective municipalities shall not in each year he 
 
 in excess of the following limitations : in cities, towns, 
 
 toTOs''''' ^"^ incorporated villages respectively, according to the 
 
 andvii* following scalc, that is to say, one for each full two 
 
 hundred and fifty of the first one thousand of the 
 
 population, and one for each full four hundred over one 
 
 thousand of the population (») ; but in no case shall this 
 
 limit authorize any increase in any municipality in excess of 
 
 the number of licenses therein issued for the year ending 
 
 the ist day of March, 1876, unless from the future increase 
 
 of the popoulation the License Commissioners think a 
 
 larger number has become necessary, but not in any case 
 
 exceeding the lim'*^ imposed by this Act (v) ; 
 
 ]■' U ;J 
 
 (u) The maximnm nomber of licenses to be issued in each mtinioipslity is 
 fixed and detennined by this section. Under sec. 4, sub-seo. 2, the License 
 OommisBioqers may, by resolution, limit the nnmber of licenses to less then 
 the maximum here prescribed, bat in no case can that nnmber be exceeded. 
 
 The greatest number of licenses to be issued in a city of 40,000 would be as 
 follows : 
 
 First 1000, one for each 260 - 
 
 And one for each 400 of the remaining 39,000 
 
 Total, 
 
 4 licenses. 
 97 '• 
 
 101 licenses. 
 
 In the 39,000 there are still 800 remaining after dividing it by 400, but as 
 there is only one license for each fuU 400 of the population, no allowance can 
 be made for a fraction of that number. In a city cf 60,000 of a population the 
 greatest number would be 126, In a town of 6,000 inhabitants, the number 
 must not exceed 14. In an incorporated village of 1600 inhabitants, the 
 maximum number would be 6. 
 
 The greatest number of licenses in an incorporated village of 800 or 900 of 
 a population would be 3, except in the case of an incorporated village being the 
 County town, when the limit may be 6 in number. 
 
 (v) The number of licenses authorized in the year ending on 1st March, 1876, 
 is, in the absence of substantial increase of population, to be taken as the 
 limit. In case of an increase of population such as to warrant the issue of a 
 greater number, and the License Commissioners consider a larger number 
 necessary, a greater number may be issued, but in no case must it exceed the 
 number fixed by this section. 
 
 "Future increase" refers to Ist Blarch, 1876, and means any increase after 
 that date. 
 
 It is entirely in the discretion of the Commissioners to say whether there 
 hat been such an increase as to render an increased number of licenses neces- 
 sary. See uote (2) infra. 
 
 ance " or " uni 
 
 h<4 
 
ss. 
 
 18, 19.] 
 
 THE LIQUOR LICENSE ACT. 
 
 47 
 
 (2) In incorporated villages, being county towns (w), ^J^p 
 the limit may be five in number, and in the town of Niagara 
 Falls three hotels, lear (x) the Falls of Niagara, and in 
 the town of Port Arthur three hotels (y), which may be 
 Ucensed, may be excluded (z) from the number which 
 would otherwise be the maximum limit under this Act. 
 R. S. O. 1877, c. 181, s. 15 : 49 v., c. 39, s. 21. 
 
 lO. (i) The number (a) of the population which is to '^^P?!' 
 
 determine the number of licenses at any time under this mininR 
 
 the popu- 
 Act (^) shall be according to the then last preceding census lation 
 
 {w) The expression " County Town " shall mean the city, town or village in 
 which the Assizes for the oonnty are held : Manioipal Act, B. S. 0., 0. 184, s. 
 1, Bub-seo. 6. 
 
 (x) " Near," as applied to space, has no precise meaning ; it is a relative 
 term, depending for its signification on the subject-matter and the circum- 
 stances under which it is to be applied to surrounding objects : per Bigelow, 
 G. J., Fall Biver Iron Works v. Old Colony, etc., By, Go., 6 Allen, 227 (1862) ; 
 Barrett z/. County Court, 44 Mo., 209; Eirkbride v. Lafayette County, 108, 
 U. S., 211 (1883). See also Attorney-General v. Homer, 14 Q. B. D., 245 ; 11 
 App. Gas., 66 ; B. v. Loxdale, 1 Burr., 447. See ale-) note (m) sec. 11, bb. 12. 
 
 An ordinary incorporated village falls under the general rule laid down in 
 the first pai't of the section, but where the village is the county town an arbi- 
 trary limit of five is fixed as the maximum. 
 
 {y) The meaning is that the three hotels, in addition to the ordinary limit, 
 may be licensed in the several localities mentioned. This sub-section originally 
 extended to the town of Niagara Falls and the town of Olifton only. 
 
 (z) It is certainly vrithin the power of the License Oommissioners to limit 
 the number of licenses, by resolution, so as to exclude the three hotels men- 
 tioned from the number of licenses in the places referred to in this part of the 
 section, but it is questionable whether the expression "may be excluded" 
 gives them any discretion beyond that which they otherwise have under the 
 Act. The word " may " is, by the interpretation Act, sec. 8, ss. 2, permissive; 
 but it has been held that in cases where the object of a power is to effectuate a 
 legal right, such enabling words are to be construed as compulsory. See note 
 (0) sec. 4. The Oommissioners have the power, however, of refusing to 
 grant any license which has been applied for, and their decision in such case 
 is final. See qote (2) sec. 12, and note (d) to sec. 19. 
 
 (a) The number, t. «., the aggregate. See Worcester, 974. 
 
 (6) In strictness anything not authorized by a Statute cannot be " in pursu- 
 ance " or " under " or " by virtue " of it, whilst if authorized it would need no 
 other protection. But if effect were given to such a construction it would 
 altogether do away with the protection intended to be given ; accordingly it is 
 held that if any pubUc or private body or person, charged with the execution 
 of an Act of Parliament, honestly intends to put the law in motion and really 
 and not unreasonably believea in the existence of facts, which, if existent, would 
 jnatify his acting, and acts accordingly, his conduct will be "in pursuance" 
 or " under " or " by virtue " of the Statute under which he believes he is acting, 
 although he errs in such belief. The question whether there was in fact 
 reasonable ground for such belief if a subordinate question and one very 
 material to be pressed on the minds of the jury, but the presence or absence of 
 such reasonable ground can only be relied on for the purpose of determining 
 
'! 
 
 If 
 
 li 
 
 ^i: 
 
 48 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 19. 
 
 IP 
 
 '■' i''' 'Wi 
 
 ri 
 
 t:§ 
 
 
 ' 
 
 !,„. 
 
 
 ''• -1 
 
 ■iw 
 
 im 
 
 with a 
 view to 
 the num- 
 b«r of 
 lioensoi. 
 
 (c) taken under the authority of the Dominion of Canada, 
 except where the License Commissioners are at any time of 
 opinion (d) that, owing to a large increase of population 
 
 whether the belief was bona fide or not ; Hermann v. Seneschal, 18 0. B. N. S., 
 892, and cases there cited ; S. 0., 18 L. T. N. 8., 703 ; Roberts v. Orchard, 2 
 H. & 0., 769; Jadge v. Selmes, L. B. 6., Q. B. 724; Chamberlain v. King, 
 L. B. 6, 0. P. 474 ; Agnew v. Jobson, 47 L. J. M. C, 67 ; Midland By. v. 
 Withington, 11 Q. B. D., 788; Hnghes v. Backland, 15 M. <b W., 846; Lea 
 V. Faoey, 19 Q. B. D., 852 ; Boohfort v. Bynd, 9 L. B. Ir., 204 : O'Dea v. 
 Hickman, 18 L. B. Ir., 288 Maxwell, 278 ; Boscoe, N. P., 1078, 1088, 1096, 
 1099-1104. See B. S. 0., 0. 1, s. 8, sub-sec. 8. 
 
 (e) "Last preceding census." The word "preceding" ordinarily meanu 
 " that which goes before, antecedent, previous :" see Worcester, 1115. As to 
 application of the phrase, " preceding twelve months," see B. v. Poplar Union 
 Assessment Com., 18 Q. B. D., 864. By '< The Census Act," B. B. C, 1886, 
 c. 68, s. 3, it is provided that a census shall be taken in the year 1891 and in 
 every tenth year thereafter. The B. N. A. Act, s. 8, provides for a decennial 
 census. Provision is also made by the Municipal Act for taking the census of 
 the inhabitants, or of the resident male freeholders and householders of the 
 municipality: B. S. O., 0. 184, s. 4rj, sub-sec. 18; but the census here 
 referred to is that " taken under the authority of the Dominion of Canada " 
 every ten years. The last census was taken in 1881, and until the census of 
 1891 is completed that of 1881 will be the " last preceding census." 
 
 (d) *'0f opinion" means according to the judgment. See Ormerod v. 
 Todmorden Co., 8 Q. B. D., 664. 
 
 Sir Peter Maxwell, in his work on the Interpretation of Statutes, at pages 
 100 and 101, says : " Where, as in a multitude of Acts, something is lelt to be 
 done according to the discretion of Justices or other authorities on whom the 
 power of doing it is conferred, the discretion must be exercised honestly and in 
 the spirit of the Act, otherwise the act done would fall within the Statute. 
 ' AcoordinK to his discretion ' means, it is said, according to the ru!3s of reason 
 and justice, not private opinion : according to law and not humour : it is not 
 to be arbitrary, vague and fanciful, but legal and regular. And it must be 
 exercised within the limits to which an honest man competent to the discharge 
 of his office ought to confine himself : that is within the limits and for the 
 objects intended by the Legislature." Cited in Sinclair's D. C. Act, 1881, 
 page 12. 
 
 Where the question was whether the Magistrates had exercised a proper dis- 
 cretion in virtually closing up every public house in their district at a certain 
 hour at night, where they had power in any particular locality to shorten the 
 hours during which houses therein should be kept open. Lord Ohaneellor Cairns 
 said : " If Magistrates, under the guise of exercising a discretion, had taken 
 portion after portion of their district, not with reference to the particular wants 
 or requirements of each portion, but in order by degrees to take possession of 
 the whole district, and under the pretence of exercising a discretion for each 
 portion, had virtually subverted the general rule laid down by the Legislature : 
 if, I say, your Lordships were to find, which I cannot imagine or suppose yon 
 ever would find. Magistrates adopting that oourse for the purpose of doing what 
 I must describe as evading an Act of Parliament, your Lordships would not be 
 prepared to sanction, but would discountenance and prevent the exercise of a 
 power so uaed:" per Cairns. L. C, Macbeth v. Ashley, L. B. 2, Scotch App. 362, 
 at page 367. And at page 360 of the same report, Lord Chancellor Selborne 
 said : " Without meaning to deny that it is confided to the discretion of the 
 Magistrates to determine what particular localities require other hours for 
 opening and dosing than those specified, it is obvious that such discretion as 
 
 
 li 
 
 Jl''',i 
 
1 9.] 
 
 THE LIQUOR LICENSE ACT. 
 
 49 
 
 (e) since such census, an increased number of licensed taverns 
 (/) is needed for the convenience (g) and accommodation 
 of travellers (A) ; and in that case, if the License Commis- 
 
 they have is not an arbitrary disoretion to define any looalities they please, bnt 
 they mast be snob looalities as ibey consider in the honest and bona fide 
 exercise of their own judgment to reqnire a difference to be made." Again he 
 gays: "The Magistrates mast, in the exercise of an honest and bona fide 
 judgment, be of opinion that the "particular locality " which they except from 
 the ordinary rule is one which they, from its own special cironmstancea, 
 requires that difference to be made." These are the general principles on 
 which, according to the highest authority, a discretion conferred by an Ac* of 
 Parliament should be exercised. 
 
 («) What is to be considered a " large increase of population " is a question for 
 the License Oommissioners to decide ; but where such discretion is given it 
 should not be exercised arbitrarily, but should be an honest and bona fide 
 exercise of the judgment : Maxwell, 100, 101. 
 
 (f) See sec. 2, sub-s. 2, ante. 
 
 {g) The meaning of particular words in a Statute, in the absence of express 
 definition, " is to be found not so much in a strict etymological propriety of 
 language, nor even in popular use, as in the subject or occasion on which they 
 are ub^ and the object that is intended to be attained : " per Abbott, 0. J., B. 
 V. Hall, 1 B. <& 0. at page 186, approved of in the case of The Lion, 2 L. B. P. C, 
 626. 
 
 Under this section the License Oommissioners must, in the absence of any 
 decision on the question, use their own judgment as to the necessity for an 
 increased number of licensed houses, such judgment to be exercised on the 
 principles laid down in note (d) «upra. 
 
 (h) The English Licensing Acts lyive been prolific of decisions as to the 
 meaning of the term " traveller." Stroud, at page 819, says : " There are at 
 least four classes of ' travellers.' 1. A person cannot be a * bona fide traveller' 
 within the Licensing Acts unless the place where he lodged during the preceding 
 night is at least three miles distant from the place where he demands to be 
 supplied with liquor, such distance to be calculated by the nearest public 
 thoroughfare :" Goulbert v. Troke, 1 Q. B. D., 1 ; see also Taylor v. Humphreys, 
 10 C. B. N. S., 429 ; Taylor v. Humphries, 17 0. B. N. S., 689 ; Fisher v. 
 Howard, 11 L. T. N. S.. 878 ; 4 Mew's Dig. 1118 ; Peache v. Golman, L. B. 1, 
 C. P. 324 ; Peplow v. Bichardson, L. B. 4, 0. P. 168 ; and whether business 
 or pleasure be the object of the traveller was (Taylor v. Humphreys, supra ; 
 Atkinson v. Sellers, 5 0. B. N. S., 442) and still is wholly immaterial. 
 
 2. Persons at a railway station " arriving at or departing from, such station 
 by railroad " are for the purposes of the Licensing Acts on the same level as 
 bona fide travellers : 87 <& 88 Y., c. 49, s. 10. 
 
 3. Commercial traveller ; i. e., " a bona fide traveller" within s. 17, 30& 31 V., 
 0. 90, on which see Stuchbery v. Spencer, 66 L. J. M. C, 141. 
 
 4. A traveller entitled by o6mmon law to be received as a guest by an inn- 
 keeper, does not include a person resident in the same country town as that in 
 which the inn is situate and " merely walking about the town for his own 
 recreation and amusement :" B. v. Bymer, 2 Q. B. D., 186. The length of time 
 that a man may remain at an inn does not affect his character as a traveller, 
 inlesB he be received for a definite term under a special contract : Add. 0. 808, 
 301, and oases there cited. See also Sinclair's L. <& T., p. 124 ; but see section 
 72 and notes thereto. 
 
 The cases above cited by Stroud have been dicussed and followed in our 
 own Courts. It was said by Hagarty, 0. J., in B. v. Daggett, 1 0. B., at page 
 
 ■:i 
 
 Ml 
 
 
rr 
 
 50 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 19. 
 
 i 
 
 I 
 
 
 r-! 
 
 Case of 
 alteration 
 or forma- 
 tion of 
 munioi- 
 
 p»uty. 
 
 sioners so certify, and the Council of the municipality 
 memorialize the Lieutenant-Governor (1) for an increase of 
 the number of licensed taverns, the Lieutenant-Governor in 
 Council may authorize a new census to be taken under the 
 authority of a by-law of the municipality and at the expense 
 of the municipality, and the limit for the number of licenses 
 shall thereafter, upon each such new^ census, be one for 
 each full two hundred and fifty of the population (j) under 
 one thousand, and one for each five hundred over one 
 thousand of the population. 
 
 (3) In case of the alteration or formation of any munici- 
 pality (k) subsequent to such census of the Dominion of 
 Canada, the population of such municipality, for the pur- 
 poses of this Act, may be ascertained by the said License 
 Commissioners by reference to the enumeration (/) on 
 
 644 : •• I have no doubt whatever that personi— ezoorBioniBtB and others — who 
 oomefrom BnfFalo, U. S., by rail and steam, to Toronto, are 'travellers' in 
 the sense of the exception in our Statute. It matters nothing in my judgment 
 whether they travel wholly for pleasure, fresh air, relaxation from work, or 
 with or without luggage, or actually 00 important business, they are travellers 
 within the meaning of the Statute." The Statute in question was B. S. 0., 
 0. SOS. 
 
 (t) "Lieutenant-Governor" means "Ae Lieutenant-Governor for the time 
 being of Ontario, or other chief executive officer or Adm'sistrator for the time 
 being carrying on the Government of Ontario, by whatever title he is desig- 
 nated," and the words " Lieutenant-Govemor-in-Council " mean " the 
 Lieutenant-Governor of Ontario or person administering the Government of 
 Ontario for the time being, acting by and with the advice of the Bxeoutive 
 Council for Ontario : " B. S. 0., c. 1, s. 8, sub-sects. 6, 7. The memorial of 
 the Council of the Municipality is to be addressed to the Lieutenant-Governor 
 of Ontario, while the authority for a new census, if granted, must come from 
 theLieutenant-Governor-in-Council. 
 
 (j) Population is made the basis for the calculation of the number of lieenseB 
 to be issued. The last general census taken previous to the current year will 
 ordinarily give the number of the population, but if the Commissioners consider 
 it necessary, under the circumstances set forth in the section, a special census 
 may be taken to ascertain the population ; and upon the result of this special 
 census will depend the right of the Commissioners to increase the maximnm 
 number of licenses to be issued. But it must be observed that while section 
 16 fixes the maximum at one for each 260 under 1,000, and one for each 400 
 over 1,000, this section allows on a special census one for each 260 under 1,000, 
 but there is only one to be allowed for each 600 over 1,000. 
 
 (k) New corporations may be formed, or new territory added to those already 
 existing, in which case provision may have to be made for licenses in such newly 
 altered or created Municipalities. This sub-section is intended to meet the 
 requirements of such cases. See also " The Municipal Act," B. S. , c. 184, 
 pages 17, 61, et seq. 
 
 (I) " Enumeration " means the same thing as "census," t. «., the numbering 
 of the people ; see Wharton, 119. As shewn in note (j) to sub-sec. 1, the 
 
 ss. 19, 3 
 
 which SI 
 under th 
 
 (3) w 
 
 has been 
 tiie Cour 
 
ss. 
 
 19, 20. J 
 
 THE LIQUOR LICENCE ACT. 
 
 S» 
 
 which such census took place, or by a new census taken 
 under the provisions of this section. 
 
 (3) Where, since the said Dominion census, a census Mrmum. 
 ^''' ' olpal 
 
 has been taken in any municipaHty under the authority of oemui. 
 the Council (/«) having jurisdiction, the limit may be the 
 same as in the case of a census taken under this section for 
 the purposes of this Act. R. S. O. 1877, c. 181, s. 16. 
 
 90a (i) The council of every city, town, village or Si'Jiyumit 
 township («) may, by by-law (o) to be passed before the ist number 
 day of March in any year, (/) limit the number of tavern lioenaea. 
 licenses to be issued therein (^) for the then ensuing license 
 
 m 
 
 basis on which the maximnm tmmber of lioensea is fixed is that of population, 
 and for the porposeB of suoh limitation the population is to be ascertained 
 either by the re<inlt of the last Dominion censas or by the resnlt of a special 
 eensQB, to be takt.a onder the oircomstanceB atated in the context. 
 
 (m) "Ooonoil" refers to the Council of the Mnnicipalitv. As shown 
 above, the Oonncil of any Municipality is empowered to take a census of 
 the inhabitants, or of the resident male freeholders and honseholders, in the 
 Municipality : The Municipal Act, sec. 479, sub-sec. 18 ; and in case a census 
 has been taken by the Conpoil under this provision, the population according 
 to that census may be taken as the basis on which to count the number of 
 licenses. 
 
 The effect of this section taken as a whole is that for the purpose of calcu- 
 lating Hne maximum number of licenses to be issued ; the population may be 
 ascertained from either of the following sources : 
 
 (1) The result of the last Dominion census ; 
 
 (2) The result of a special census to be taken by the Municipality under 
 authority from the Lieutenant-Qovemor-in Council ; 
 
 (3) The result of any census taken subsequent to the last Dominion census 
 by the Municipality under the authority of the Municipal Act. 
 
 (n) See Sec. 99 and notes thereto. 
 
 (0) These are simply enabling words, by which the Council is authorized to 
 pass by-laws. The exercise of the power is, of course, entirely discretionary. 
 See note (*), infra. 
 
 ( p) By sec. 4, sub-sec. 3, the License Commissioners are authorized to pass 
 resolutions for limiting the number of tavein and shop licenses respectively. 
 This section extends the same powers to Municipal Councils in respect of 
 tavern lieemei only, but by section S3 such Councils are authorized to pass 
 by-laws of a similar character in respect of shop licenses. By-laws under this 
 section must be passed before the *st March, and the reason for this is to be 
 found in the requirements of sec. 8 and sec. 11, sub-sec. 3. 
 
 (9) Sec. 18 makes provision for, and fixes the maximum number of licenses 
 which can be issued in cities, towns, and incorporated villages, and that 
 number cannot in any case be exceeided. The word " limit " means " to 
 confine, or restrict :" see Anderson's Diet., 630. Under the power conferred 
 by this section Municipal Councils may decrease, or restrict, the tavern licenses 
 to be issued in the Municipality to a less number than thai fixed by this Act, 
 but they cannot inoreaae it. 
 
 
 J\\h 
 
52 
 
 THK t.igUOR LICENSE ACT. 
 
 [s. 20. 
 
 year, beginning on the ist day of May, (r) or for any future 
 license year until such by-law (s) is altered or repealed, 
 
 (r) All lioeoMs are to be dated as of Ist May, to oontinne in force for one 
 year, and expire on 80tb April in the next enioing year ; aeo. 8, ■nb-uo. 1. 
 
 (i) A " by-law " may be defined as a local law of the inhabitonta of a place 
 or diatrict, aa diatinguiahed from the general law of the Prorinoe in which the 
 Manicipality la aitaated : Harriaon'a Mun. Man., 309. It baa the aame effect 
 within its limita, and with reapect to the peraona upon whom it lawfully 
 operatea, aa an Act of Parliament haa npon the aabjecta at large : Hopkine v. 
 NIayor of Swanaea, 4 M. <& W., 640. See alao B. v. Oaler, 82 U. 0. B., 824, 
 and other oaaea cited in R. <& J.'a Dig., 2460, «t ttq : Ont. Dig. (1882-1881), 
 484, et teq ; Ont. Dig. (1884-1887), 447, et leq. See alao aeo. 4 and notes 
 thereto. 
 
 Under 18 & 14 Vic, o. 66, aec. 4, the Manio' ity of each Townahip had 
 power " to make by-lawa limiting the number of iuna or houaea of entertain- 
 ment in such Townahip for whioh licenaea to retail apirituona liqnon to be 
 drank therein ahali be iaaued," and it was held that under it a Municipal Cor- 
 poration hod no power to prohibit altogether the licenaing of inna for the aale 
 of winea or apirituoua liqnora by retail to be drunk therein : re Baroli^ and the 
 Mun. Council of Darlington, 11 U. 0. B., 470. 
 
 Power was given by 16 Vic, c. 184, a. 4, to the Municipality of anv Townahip 
 '* to make by-lawa for limiting the number of houaea or plaoea (other than 
 houaea or placea of public entertainment) in which peraona may be lioenaed to 
 aell wine," Ao., by retail, or for prerenting the abaolute aale of auch liquors 
 within the Municipality ; and by the fourth clanae of the last Act it waa also 
 provided that under the authority of the Act 18 dc 14 Via., c. 66, no by-law for 
 prohibiting the aale of wine or apirituoua liquors, ale or beer ahould have force 
 or effect " unless before the final paaaing thereof it ahall have been adopted and 
 approved by a majority of the qualified eleotora of the Municipality." 
 
 Under theae varioua proviaiona the Court held that a by-law limiting the 
 number of licenaea to one waa bad, as amounting in effect to a total prohibition : re 
 Barclay and the Municipality of Darlington, 12 U. 0. B., 86 ; re Greyatook and 
 the Municipality of Otonabee, 12 U. C. B., 468 ; Terry ». the Municipality of 
 Haldimand, 16 U. 0. B., 380. But a by-law directing the Clerk of the Munici- 
 pality to grant licenaea to aell spirituous liquors for the year to two parties 
 named, and that no such licenses should be isaaed to any other peraona was 
 held good : Terry v, the Municipality of Haldimand, 16 U. 0. B., 880. See also 
 aeo. 42a and notes thereto. 
 
 Under the " Act respecting tavern and shop lioensea," 82 Vic, o. 82, aec 6, 
 snb-s. 4, power was granted to every township, town and incorporated village, 
 and the Commissioners of Police in cities, respectively, to pass by-laws for 
 limiting the number of tavern and shop licenses respectively. And it was 
 held (Wilson, J., dissenting) that a Township Municipality was not authorized 
 to pass a by-law " that in ea«h and every year hereafter there shall not be more 
 than four certificates for obtaining tavern licenses iaaued in the Municipality ; " 
 for that there waa no power to limit the number of such certificates, and there 
 was a Bubatantial difference between that and limiting the number of licenaea : 
 Qiflord and the Municipality of Darlington, 86 U. 0. B., 286. 
 
 By-laws passed by Municipal Corporations under this provision in section of 
 82 Vic, 0. 82, wholly prohibiting the sale of liquors in shops and places other 
 than houses of pubUo entertainment, and limiting the number of taverns to 
 nine, were held valid as being within the power of the Corporation ; and that 
 it was within the authority of the Provincial Legislature to confer such power 
 under tiie exclusive legislative authority given to them with regard to ** Muni- 
 cipal Institutions " and to « matters of a merely local or private nature " in 
 
 S. 30 
 
 ■] 
 
 the Province 
 Commerce " 
 The Oorpori 
 7 App. Gas., 
 
 A by-law p 
 c. 84, s. 8 (O 
 
 and also the 
 This by-law ' 
 of the person 
 36 Vic, c. 84 
 0. 82, which | 
 waa not inva 
 mentioned A* 
 which might 
 ihe caae that 
 the Council o 
 
 A byJaw pi 
 ing the numb 
 the holder of 
 keeping and i 
 creating a moi 
 reatricting the 
 of such liquor 
 tranaferred to 
 ing the aale oj 
 of the parent, 
 conferred by t 
 that it conta 
 Statute : re B 
 
 Held, that i 
 licenaea ahonh 
 of licenses fij 
 Council of B 
 Bruce, 20 C. I 
 
 A provision 
 year, beginnin 
 by-law is alter 
 Brantford, «uj 
 Lnmley on By 
 
 An objectioi 
 waa urged, ah 
 waa overraled 
 quare, whethe 
 electora, can b 
 by-lawa aepara 
 Brantford, luvi 
 BaUey v. WiUii 
 known as the * 
 several matter 
 
 The by-law 6 
 legislation. H 
 jndioially regar 
 passage: Orooi 
 
 A proviaion, 
 
s. 
 
 20.] 
 
 THF. LIQUOR I.ICENSK ACT. 
 
 55 
 
 K 
 
 th« ProTioM ; and WM not tn intorftrenoe with *' the Begnlation of Trade and 
 Oommerce " aiaigned eielaaively to the Dominion Legislature : re Slavin and 
 The GorporatioD of OriUla, 86 U. 0. B., 159 ; lee also Hodge v. the Queen, 
 7 App. Oaa., 117, oited ante page 1. 
 
 A by-law paased on the 91at July, 1874, appointed an officer under 86 Vie., 
 0. 84, 1. 8 (O.), to enforoe the provisions of that Act and the Acts therein recited, 
 and also the by-laws of the Corporation respecting shop and tavern licensee. 
 This by-law was passed to fill a vacancy in the office caused by the resignation 
 of the person appointed under a by-law passed in the Februanr previous. The 
 36 Vic, 0. 84, had been repealed when the by-law was passed, by the 87 Vic, 
 0. 82, which gave power to fill a vacancy in such office. Held that the by-law 
 was not invalid because not passed in February under section 9 of the last 
 mentioned Act, nor for not defining the duties, etc, of the officer appointed, 
 which might be done by another by-law. Held also upon the facts stated in 
 ihe case that it was not invalid as not having been passed at a legal meeting of 
 the Council or signed by the Reeve : lb. 
 
 A by«law passed under this section (then 89 'Vic, 0. 26, s. 2, sub-s. 8), limit* 
 ing the number of shop licenses to be issued in the town to one, and directing 
 the holder of such license to confine the buainess of his shop exclusively to the 
 keeping and selling of liquor was held bad, as being in e£feot prohibitory and 
 creating a monopoly. It was also held that the Corporation could not pass by-laws 
 restricting the sale of liqaoi<i aftor certain hours and also restricting the sale 
 of such liquors to the house Ucensed, as these were matters which had been 
 transferred to the Board of License Commissioners. But a provision prohibit- 
 ing the sale of liquors to any child, servant or apprentice, without the consent 
 of the parent, master, or legal guardian, was held valid as within the powers 
 conferred by the Munieipal Act. It was also held no objection to the by-law 
 (hat it contained no limit tA to its duration, as that was determined by the 
 Statute : re Brodie and the Cor. of Bowmanville, 88 U. 0. B., 680. 
 
 Held, that it was not necessary that a by-law respecting saloon and shop 
 licenses should state tiie number of inhabitaints so as to show that the number 
 of licenses fixed was within the statutory limit : re Croome and the Mnn. 
 Council of Brantford, 6 0. B. 188 ; see also Oibson v. The Corporation of 
 Bruce, 20 C. P., 898 ; Lumley on By-laws, pp. 88, 84. 
 
 A provision in the by-law limiting the number of licenses for the ensuing 
 year, beginning on May 1st, 1884, or for any further license year, until this 
 by-law is altered or repealed, held valid : Croome and The Mun. Council of 
 Brantford, lupra; Arkell and The Town of St. Thomas, 88 U. 0. B., 694 ; 
 Lnmley on By-laws, 85. 
 
 An objection that the by-law provided for a duty in excess of 9200 which, it 
 was urged, should have been submitted to the electors by separate by-laws, 
 was overruled, because, in fact, the by-law contained no such provision; 
 qutBre, whether several matters, each of which requires the assent of the 
 electors, can be enacted in one by-law, or whether there must be separate 
 by-laws separately submitted to the electors : Croome and the Mun. Council of 
 Brantford, eupra; see also Mackenzie v. The Cor. of Brantford, 4 0. B., 882 ; 
 Bailey v. Williamson, L. B. 8, Q. B. 118 ; reference is also made to what is 
 known as the "Omnibus " Act, 40 Vic , 0. 8 (O.), which includes legislation on 
 several matters in one Act. 
 
 The by-law did not state whether it was passed under Dominion or Local 
 legislation. Held, that as it stated no particular power as its basis, it must be 
 jndioially regarded as emanating from that power which would authorize its 
 passage : Croome and The Mnn. Cotmcil of Brantfor^d, lupra. 
 
 A provision, *' that every person receiving a shop license shall confine the 
 
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 11 
 
 54 
 
 Copy of 
 
 by-law 
 
 UmitinK 
 
 to be Bent 
 
 toUom- 
 
 misBion- 
 
 era. 
 
 Extended 
 lioenaoB. 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 20, 
 
 21. 
 
 provided such limit is within the limit imposed by this 
 Act, (/) 
 
 (2) The council shall cause a certified («) copy of such 
 by-law to be sent immediately (v) after the passing thereof 
 to the license commissioners of the district in which the 
 municipality is situate. R. S. O. 1877, c. 181, s. 17. 
 
 SI* In any case where the License Commissioners of 
 any license district do not think fit, or are unable (w) to 
 
 baaineBB of his shop exoInsiTely to the keeping and selling of liquor," is not 
 ultra virei and in restraint of trade : lb. 
 
 Where the Mtinioipality provided for a duty in exoess of $200, it was objected 
 that seo. 35 of the License Aot of Ontario, 47 Yio., 0. 86, 0., in effect repealed 
 the by-law, as it made the duty more than |230, and the Gooncil had not sub- 
 mitted the question to the electors: Held, that if repealed it could not be 
 quashed ; but $emhle, that the effect of the section was to add the increased 
 duty to the amount already provided for by the by-laws previously passed, 
 unless the Council saw fit, prior to the 16th April, 1884, to amend the by-law 
 as to (be license duty payable thereunder : lb. An impression of the corporate 
 seal made on the by-law is sufficient : lb. 
 
 The Council of a Corporation has power to pass by-laws limiting the number 
 of tavern licenses ; that power is not at all interfered with or diminished by 
 the provisions of the law granting powers to the Board of License Oommissioners : 
 Boylan and the City of Toronto, 16 0. B., 18. 
 
 It was also held that though the by-law contained on its face no description 
 of the local limits of its operation, the fact that it was passed by the Council 
 of the City of Torono and could have no operation elsewhere than in that city, 
 shewed that it must, by reasonable intendment, be held operative there : lb. 
 Also that the by-law was not unreasonable or oppressive, or in restraint of 
 trade : 16. A by-law discriminating between different olaBses of tradesmen is bad : 
 R. V. Flory, 17 0. R., 716. 
 
 (t) The limit fixed by the by-law of the Municipality relates to all fntare 
 licenses, so long as the by-law remains in force. 
 
 (tt) The B. S. O., 1887, c. 61 , s. 25, sub-s. 1, provides for the admission in evidence 
 of copies of public books or documents, provided it is proved that such copies 
 are examined copies or extracts, or that they purport to be signed and certified 
 as true copies or extracts, by the officer to whose custody the ori^nnali bas been 
 entrusted. A "certified copy" is a copy of any official or public document 
 certified under the hard or under the hand and seal of the officer to wbose 
 custody the original is entrusted, as a true copy of such original. It is not 
 necessary to prove the signature or seal to such documents. See Taylor on 
 evidence, 1864 etieq. 
 
 This provision for the sending of a certified copy of the by-law to the License 
 Commissioners is made for the guidance of the License Oommissionei.. in the 
 issue of licenses for the Municipality in which the by-law is passed. 
 
 (v) " Immediately " means within a reasonable time. Bee Stroud's Diet., 365; 
 Maxwell, 811 ; Wharton, 368. 
 
 (w) The Commissioners, by reason of there being an insufficient population, 
 may not be able to grant a renewal of the license in some cases, and as the 
 fitting and furnishing of a hotel and providing it with c stock of liquors often 
 requires a large expenditure of money, it would b« unfair to deprive the licence 
 of his license, without some kind of notice, and without an opportunity of dis- 
 
 ;t f' 
 
B!5" 
 
 S. 21. J 
 
 THE LIQUOR LICENSE ACT. 
 
 55 
 
 grant a new license to any applicant who has been licensed 
 during the preceding twelve months, or any part thereof, 
 they may, nevertheless, by resolution, (x) provide for extend- 
 ing the duration of the existing license for any specified 
 period (y) of the year, not exceeding three months at their 
 discretion, upon payment by the applicant, of a sum not 
 exceeding the proportionate part (z) of the duty payable for 
 such license for the then next ensuing license year; and 
 such license, when a certificate of the extension aforesaid 
 has been endorsed thereon, under the hand of the Inspector 
 for the license district {a), shall remain valid for the period 
 specified in the resolution of the License Commissioners, 
 and no longer {i>) ; but this provision shall not be construed 
 to confer on the License, Commissioners any authority to 
 exceed the limit prescribed by this Act as to the number (c) 
 of tavern licenses to be granted in any year, except in 
 cities, where the License Commissioners may in their dis- 
 cretion {d\ having regard to the particular circumstances 
 of the city, and of each (<?) application, grant further tavern 
 
 posing of his stock, proTision is made for an extension of the license for a period 
 not exceeding three months, in order that he may be enabled to close up his 
 business and sell his stock with as little injury and loss as possible ander the 
 oiroumstanoes. 
 
 (x) " By resolution " means by a declaration proposed to and duly passed by 
 the vote of a majority of the Board : see Worcester, 1223 ; Wharton, 639. The 
 resolution must specify the period for which tho extension is to be granted. 
 
 (y) " Any specified period " means some definite portion of the year to be 
 particularly designated in the resolution. The duration of such period is in the 
 discretion of the Commissioners, so long as it does not exceed three months, 
 computed from the expiration of the old license. 
 
 (z) The duty for the whole year is taken as the basis and the sum payable is 
 not to exceed the proper proportion of that duty for the time the extension is 
 granted ; thus if the duty for the year is 9200, and the extension is for three 
 months, the sum payable should not exceed $50. 
 
 (a) The extension of the license thus granted is to be evidenced by an en- 
 dorsement on the back of the old license, of a certificate signed by the Inspector 
 of the license diBtr::t. '* Certificate under the hand:" see note (a), sec. 12. See 
 sec. 2, ss. 8. 
 
 (b) The license for the previous year is thus rendered valid for the period 
 mentioned in the certificate, but no longer. 
 
 (c) See sec. Id and notes thereto. 
 
 ((i) See sec. 4, note (o) ; sec. 11, bs. 1, note (y); sec. 12, note (e) ; sec. 19, 
 note (d). 
 
 («) " Having regard to the partinular circumstances of the city, and of each 
 application," means simply taking fairly into consideration the circumstances, 
 etc. 
 
 
 }g 
 
 :k 
 
 \ . 
 
in 
 
 V 
 
 [r^'''i 
 
 56 
 
 Beer and 
 
 wine 
 
 licenses 
 
 maybe 
 
 issued. 
 
 THE LIQUOR LICENSE ACT. 
 
 [SS. 21, 22. 
 
 licenses, but within the number of such licenses granted for 
 the year ending on the 30th day of April, 1877, and except 
 in a locality largely resorted to in summer by visitors, where 
 the License Commissioners may, if they think fit, grant one 
 additional tavern license, but not to extend beyond six 
 months, commencing on the ist day of May in each year 
 (/). R. S. O., 1877, c. 181, s. 18. 
 
 99* Upon application (g) to any Board of License 
 Commissioners, before the ist day of May in any year, by 
 any one or more persons within any Municipality within 
 the jurisdiction of such Board for a beer and wine license, 
 the Board may by resolution (A) declare that any one or 
 more of the tavern licenses which may be lawfully issued, (/) 
 and which are to be issued for the license year beginning 
 on the ist day of May of such year, not exceeding the 
 number so applied for (/), may be beer and wine licenses, 
 
 II- % 
 
 P'^m 
 
 
 The " particular oiroametanoeB " of the city and of each applicant can be 
 judged solely by the License GommiBsioners, who may issue licenses in cities 
 to any number within the number issued for the year ending 30th April, lH77. 
 See note ({), sec. 8. 
 
 (/) This latter provision is an extension to all places " largely resorted to in 
 summer by visitors," of the powers given to the Commissioners with regard to 
 licenses in the towns of Niagara FaUs ami Port Arthur, by sec. 18, ss. 2. But 
 under this section the additional license can only extend from 1st May to let 
 November in each year. 
 
 iff) See note (0) to sec. 11, ss. 17. The application under this section may be 
 made at any time before 1st May. The petition for a tavern license must be filed 
 on or before the Ist April next preceding. See sec. 11, sub-p. 2, and notes 
 thereto. 
 
 ' May." See note (0) to sec. 4. 
 
 (h) *' By resolution.'' Sea note {x) to sec. 21. 
 
 (i) The maximum number of licenses is fixed by sec. 18, and this number 
 may be reduced by the License Commissioners under sec. 4, sub-s. 2, or by the 
 Municipality under sec. 20. The licenses which under this sec. may be lawfully 
 issued are those authorized under theae provisions, and the "wine and beer 
 license " to be issued under this section must be one of the number. 
 
 (j) It seems !hat although the application for a wine and beer license may 
 be made to the License Commissioners at any time before the 1st May, yet 
 there must have been a prior application for a tavern license by petition as 
 required under section 11, sub-s. 2, to qualify the person desirous of acquiring 
 the license under this section to obtain it. It must not only be counted 
 amongst those licenses which may be lawfully issued (either under sec. 18, 111, 
 20 or 21), but also those which have been duly applied for and which are to be 
 issued ; and the number must not exceed " the number so applied for." It is 
 also provided that the resohttion of the License Commissionerg under thin 
 section shall not have the effect of prohibiting the sale of spirituous liquors iu 
 the Municipality. By 53 Vic, c. 66, s. 18, the Legislature has assumed to vest 
 
 '! .lilts')' i:i 
 
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 ■r-,'/ 
 
 SS. 22, 23.J 
 
 THE LIQUOR LICENSE ACT. 
 
 57 
 
 and the Boj.rd may thereafter cause beer and wine licenses 
 to he issued in any such MunicipaUty, not exceeding the 
 number mentioned in their aforesaid resolution : provided, 
 nevertheless, that nothing in any such resolution contained, 
 shall so limit the number of tavern or shop licenses, as to 
 prohibit within any Municipality the sale of spirituous liquors : 
 and, provided, also, that nothing in such beer and wine no^^'be 
 license contained, or by reason of the granting thereof, shall ^"jJide/of 
 authorize the holder th ,reof, his servants or agents, to sell, ^ng**** 
 l)arter or otherwise dispose, of (k) any kind of intoxicating license. 
 litiuors other than those mentioned in the said beer and 
 wine license (/). 44 V., c. 27, s. 19. 
 23. A beer and wine license shall be construed to Beer and 
 
 wme 
 
 mean a tavern license for selling, bartering or trafficking by UconseB. 
 retail, in lager beer, ale, beer and porter and also in native 
 wines, manufactured in Ontario, containing not more than 
 fifteen per cent, of alcohol, and in light foreign wines con- 
 taining not more than fifteen per cent, of alcohol, but not 
 including port, sherry or madeira wine, in quantities of less 
 than one quart, which may be drunk in the inn, ale or beer- 
 house, or other house of public entertainment (»/) in which 
 the same is sold («). 44 V., c. 27, s. 20 ; 49 V., c. 39, s. 14. 
 
 such power of prohibition in the Mnnioipal Council, sabjeot to the approval of 
 the electors : see sec. 42a and notes thereto ; also note (m), sec. 8. 
 
 The definition of a beer and wine license is given in the next section. 
 
 (A) See sec. 2, ss. 2, note (d). 
 
 (I) The description of liquors authorized to be sold should be mentioned in 
 the license ; they are set forth in the next section, and the sale of any other 
 kind of intoxicating liquor would render the seller liable to the penalties for 
 selling without license just the same as if he had no license. 
 
 (m) See Rec. 2, ss. 2, note (.9). 
 
 (n) A beer and wine license is defined here; it is a tavern license in every 
 respect, except that the liquors authorized to be sold under it are : 
 
 1. Lager beer, ale, beer and porter. 
 
 '2. Native wines (t. «., wines manufactured in Ontario), containing not more 
 tlian 15 per cent, of alcohol. 
 
 3. Light foreign wines, containing not more than 15 per cent, of alcohol, but 
 not including port, sherry, or madeira wine. 
 
 TheBC liquors are to be sold in quantities of less than one quart, and may be 
 druuk on the premises where they are sold. The authority granted under a 
 beer and wine license is, in fact, .identical with that conferred by a tavern 
 license so far as relates to the sale of the liquors mentioned in the license, but 
 the licensee is prohibited from selling or keeping upon his premises any other 
 kind of intoxicating liquors. See see. 2, sub-s. 2, and notes thereto. 
 
 f\ t' 
 
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 F 
 
 
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 IL , 
 
 5« 
 
 THE LIQUOR LICENSE ACT. 
 
 [:s. 24, 25. 
 
 Holder of 
 beer and 
 wine 
 license 
 subject 
 to condi> 
 
 tiODB of 
 
 tavern 
 licenBe. 
 
 Holder of 
 beer and 
 
 94* The holder of any such beer and wine license 
 shall hold the same upon the terms and subject to all the 
 conditions and penalties that apply to the holder of a tavern 
 license ; (o) but, nevertheless, such holder of a beer and 
 wine license shall not sell, barter or give, or keep in the 
 house, (/) or upon the premises {(/) for which such last 
 mentioned license has been granted, any spirituous or in- 
 toxicating liquors (^) for sale other than those thereby 
 authorized ; and as to such other liquors, the holder of 
 such beer and wine license shall be deemed to be unlicensed, 
 and section 132 of this Act shall apply, (s) 44 V. c. 27, 
 s. 21. 
 
 9 A. (i) If any holder of a beer and wine license, (t) 
 
 S, 2« 
 
 It was held in one case that the word " beer " does not inolade botanic beer 
 or liquor brewed from sugar aud water, though it contain spirit to the extent 
 of 6 or 7 per cent. , and therefore no excise license is required for sellinp; such 
 liquor : Leah v. Minns, 47 J. P., 198, cited Paterson's L. A., 248. 
 But it was afterwards held in another case against the same defendaut 
 that " Summer's Botanic Beer," manufactured from fermented sugar and 
 water and flavored with herbs is " beer" within the meaning of the Int. Bev. 
 Act, 1885, and to retail it necessitates the holding of a license. The effect of 
 which decision would seem to be that no kind of ' ' beer " containing over 2 per 
 cent, of alcohol can be sold without a license ; " see Howorth v. Minns, 66 
 L. T., N. S. 316. See sec. 2, note (6). 
 
 (0) The holder of a beer and wine license must comply with all the provisions 
 of this Act, all the resolutions, rules, regulations and requirements of the 
 License Gommisqioners, and any Municipal By-laws in force respecting tavern 
 licenses ; at the same time he is not only liable to the penalties attached to the 
 infraction of these laws respecting tavern licenses, including forfeiture of hin 
 license, but is also liable to all the penalties provided in case of the sate of 
 liquors without license, if he contravenes the provisions of this section by the 
 sale of any kind of spirituous liquor which he is not authorized by his license 
 to sell. 
 
 {p) See sec. 11, ss. 8, note (g). 
 
 {q) See sec. 11, ss. 8, note (u) ; also note (w), sec. 25. 
 
 (r) For the meaning of spirituous and intoxicating liquors, see notes to 
 section 2. 
 
 (s) Section 132 provides for the seizure of liquor found upon the premises. 
 
 (t) This section is confined to the case of a person being licensed to sell only 
 those kinds of liquor which are specified in a beer and wine license, who E>ells 
 or barters or gives or keeps, in his house or upon the premises a different kind 
 of liquor from that which he is authorized to sell. The penalty will attach if 
 he either sells, barters, gives, or keeps in the house, liquors which by hin 
 license he is not specifically authorized to sell, or native wines containing more 
 than 16 per cent, of alcohol, or foreign wines containing more than 15 per 
 cent, of alcohol, or port, sherry, or madeira wine. 
 
S, 2 
 
 S-] 
 
 THE LIQUOR LICENSE ACT. 
 
 59 
 
 his servants or agents, («) shall sell or barter, (v) give or ^^^^^ 
 keep in the house, or upon the premises, for which a license not toaeii 
 lias been granted, intoxicating liquors (w) other than those Bpirita on 
 mentioned in his license, for sale (x) or, shall knowingly "censed, 
 sell, (y) or barter, give (2) or keep in the house, or upon the 
 premises (a) for which a beer and wine license has been 
 granted, native wine containing a greater quantity of alcohol 
 than fifteen per cent. (l>) thereof, C'r light foreign wines 
 containing a greater quantity of alcohol than fifteen per 
 cent, thereof, or port, sherry or maderia wine, (c) he shall 
 
 (u) The liability of the principal for the acts of his servants or agents is not 
 left to inference ; the holder of the license is liable in every case of an infrac- 
 tion of the law npon the licensed premises by any one who has been left in 
 charge of them As to liability of the proprietor for the acts of his servant, see 
 sec. 73 and notes thereto ; see also U. 8. v. Bonham, cited 36 Alb., L. J. 354. 
 
 [v) " Barter." See note (d) to sec. 3, sub-sec. 2. 
 
 (w) " Keep in the house " means in the house to which the license refers, 
 see sec. 17 and notes thereto ; see also Tippett v. Hart, 10 Q. B. D., 483. As 
 to the construction of the word " keep," see sec. 11, ss. 8, note {g). 
 
 " Intoxicating liquors." For meaning of this expression see note (b) to sec. 
 2,88.1. "Intoxicating liquors" and "spirituous liquors" are used in the 
 Act aa convertible terms, see Beid v. McWhinnie, 27 U. 0. B., 289. "Other 
 than those mentioned in the license," see section 22 and notes thereto. 
 
 (x) See Bobinson v. Cliff, 1 Ex. D., 294; Bidgway v. Ward, 14 Q. B. B., 110 ; 
 Daniel v. Whitfield, 16 Q. B. D., 408 ; B. v. Hodgins, 12 0. B., 367. A sale 
 implies there shall be one who sells and one who buys : King v. England, 4 
 B. <& S., 782 ; Williams v. Grey, 23 G. P., 661 ; see sec. 70 and notes thereto. 
 As to when a sale will be presumed, see sees. 108, 112. 
 
 iy) The importance of the presence or absence of the word "knowingly" 
 in statutory definitions of offences has been discussed in the following oases : 
 Mullins V. Collins, L. B. 9, Q. B. 292 ; Gundy v. LeCocq, 13 Q. B. D., 207. 
 Where the word is omitted it will often be supplied, but this should only be 
 done when it is clear the Legislature intended some such qualification, per 
 Cave, J., Betts v. Armstead, 20 Q. B. D., 771 ; see also note («) to sec. 16. The 
 word, it is submitted, applies to and qudifies all the words following it, and 
 these words apply only to native and foreign wine having a greater percentage 
 of alcohol than 16 per cent., and port, sherry and madeira wine. 
 
 (2) See note (d) to sec. 2, sub-s. 2. 
 
 The word " give " was not in the original Crooks Act. It is made an 
 oSence to " give " intoxicating liquor in order to prevent such colorable trans- 
 actions as the sale of a worthless article accompanied with intoxicating liquor 
 for which it may be pretended that no charge is made. 
 
 (a) See sec. 11, ss. 8, note (u). 
 
 (b) The question of whether the wine contains more than 15 per cent, is one 
 of fact which must be proved by the evidence of a chemist, and the percentage 
 mentioned must be determined by weight. When there is any evidence on 
 which the Magistrate or Justices can find, the Court will not interfere. See 
 notes to sec. 70. 
 
 (c) The sale of port, sherry, and madeira is prohibited altogether under a 
 beer and wine license. On a prosecution for selling any liquors, the sale of 
 
 
 ^f't 
 
iS 
 
 60 
 
 THE LIQUOR LICENSE ACT. 
 
 fs. 
 
 25- 
 
 1 'I 
 
 be subject to the penalties provided by section 70 of this 
 Act, and in addition thereto, upon a convict* on for a second 
 offence the board of hcense commissioners may, by resolu- 
 tion, revoke and cancel his beer and wine license, (d) and 
 in the event of failure on their part so to do, application 
 may be made by any resident (e) of the municipality to the 
 Judge of the County Court, in the manner prescribed in 
 section 92 of this Act, which shall apply to such application 
 for an order to revoke and cancel said license ; (/") and if 
 it appears to such Judge that the holder of any such beer 
 and wine license has been twice ;onvicted (g) of having sold 
 or given intoxicating liquors other than those mentioned in 
 the liceiise, or of having kept the same upon or in the 
 licensed premises, for sale, or of having knowingly sold or 
 given (/t) native wine containing a greater percentage of 
 I alcohol than fifteen per cent, thereof, or light foreign wines 
 
 containing a greater percentage than fifteen per cent, thereof, 
 or port, sherry or madeira wine, as hereinbefore mentioned, 
 or of having knowingly kept the same upon or in the licensed 
 premises, then the said Judge shall make an order revoking 
 and cancelling the said license, and it shall be revoked and 
 
 which is prohibited, it is a question of fact for the Magistrate or Justices to 
 find whether the liquor sold is such as is prohibited. See sec. 70 and botes 
 thereto. 
 
 (d) See note {x), sec. 21. 
 
 To "revoke " is to undo a thing, or to destroy or make void some deed that 
 had existence until the act of revocation made it void : see Wharton, 647. 
 
 The words " cancel," and revoke, as used here, mean nearly the same thing. 
 To " revoke " is literally to " call back," but the meaning as given in Wharton, 
 supra, is very nearly the same as the definition of the word " cancel " as given 
 in Worcester, p. 196. The original meaning, according to Bartolus, was to 
 expunge or wipe out the Contents of an instrument by two lines drawn in tbe 
 manner of a cross ; but the word is now used to signify any manner of 
 obliteration or defacement. See Wharton, 111. 
 
 («) See note {g) to sec. 11, ss, 10, ante " any person," and note ($) to sec. 11, 
 SB. 20, "resident." 
 
 {f) Sec. 91 gives power to the County Judge upon *.he complaint of the 
 Incpeotor, Board of License Commissioners, or the County-Attorney, where a 
 licensee has been convicted on more than one occasion of any offence against 
 sec. 79, or more than three occasions of any violation of any of the provisions of 
 the Act, or where the license has been obtained by fraud, to cancel the license of 
 the offender : and sec. 92 merely provides for the procedure in such cases. See 
 those sections and notes thereto. 
 
 (g) See notes to sec. 70. 
 
 (h) As to meaning of the phrase "knowingly sold," etc., see note (j/) supra. 
 
II 51 
 
 SS,. ?5, 26, 27.] tHE LIQUOR LICENSE ACT. 61 
 
 cancelled from the date of such order, or from the passing 
 of the aforesaid resolution by the rotnmissioners. 44 V. 
 c. 27, s. 22 ; 49 V. c. 39, s. 15. 
 
 (2) The percentage mentioned in the preceding sub- 
 section, shall be determined by weight. 49 V. c. 39, s. 15. 
 
 90. The Inspector (/) may from time to time {j) take inspeotor 
 from the liquors kept by a person holding a beer and wine Jl^""?^ 
 license upon the premises sufficient thereof to determine iioenaee. 
 whether they are of a different kind from those mentioned 
 in the license, or contain more alcohol than is by law 
 allowed. 44 V. c. 27, s. 24. ' r 
 
 Accommodation. 
 !S 9 • Every tavern {k) or inn authorized to be licensed ^"^^i^n 
 under the provisions of this Act shall contain, (/) and required. 
 during the continuance of the license shall continue to con- 
 tain, (;«) in addition to what may be needed for the use of 
 the family («) of the tavern or innkeeper, {0) not less (/) 
 
 (t) " The Inspeotor," see sees. 6, 7, 127 and 128. See also seo. 2, ss. 8. 
 
 ( j) " Time to time." These are words which are constantly introdaced 
 where it is intended to protect a person who is empowered to act from the risk 
 of having completely discharged his duty when he has once acted, and, there- 
 fore, not being able to act again in the same direction : Lawrie t. Lees, 7 App. 
 Cas., 19 ; Re Sutton Goldfield Grammar School, 7 App. Cas., 91 ; WMtehonse 
 zj. Wolverhampton B'y Co., L. B., 6 Ex., 6; Stroud's Diet., 313. See also 
 Neilson v. Jarvis, 13 C. P., 176. The words may be construed to mean "as 
 often as he pleases." 
 
 -':) Every tavern. See sec. 2, sub-s. 2. 
 
 (I) This is imperative (see sec. 8, snb-s. 2, of the Interpretation Act, B, S. 0., 
 p. 3). The existence of the requisite accommodation is a condition precedent 
 to the granting of the license. By seo. 11, sub-s. 1, the Inspector is required 
 to report to the License Commissioners that the applicant has all the accom- 
 modation required by law. 
 
 (m) " Shall continue to contain." This is also imperative and a condition 
 upon which the continuation of the license depends. 
 
 (n) " Family " has various meanings and is controlled by the context. The 
 primary legal meaning of the word is " children :" per Jessel, M. B., Pigg v. 
 Clarke, 8 Ch. D., 674. In popular acceptance it included parents, children, 
 servants and all thoM whose domicile or home is in the same house, and under 
 the same manag«ment or head : Cheshire v. Burlington, 31 Conn., 329 (1863). 
 In its more limited sense it signifies father, mother and children ; in its ordinary 
 acceptation, all the relatives who descend from a common root ; in its most 
 Axtensive scope, all the persons who live under the authority of another, 
 including evnii servntits : per Bermudez, G. J., Oalligar v. Payne, 84 La. An., 
 10E8 (1882), and another and more comprehensive definition is, a number of 
 persons who live in one house and under one management or head : Poor v. 
 Hudson Inp. Co., 2 F. B., 438 (1880) ; see also Stilson v, Oibbs, 68 Mich., 280 
 
 m4 
 
 \ 
 
 ■ill 
 
 
IIP 
 
 i, I 
 
 1 
 
 'Li I 
 
 62 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 27 
 
 than four bed-rooms, and in cities six bed-rooms, together 
 with, in every case, a suitable complement {q) of bedding 
 and furniture, and (except in cities and incorporated towns) 
 there shall also be attached to the said tavern or inn, proper 
 stabling for at least six horses ; {r) but the foregoing re- 
 quirements shall not apply to such taverns as come within 
 sub-section 3 of section 4 of this Act. (j) R. S. O. 1877, 
 c. 181, s. 19 (i); 47 V. c. 34, s. 5. 
 
 Not to (2) Such tavern or inn shall form no part of, and shall 
 
 loatewith not communicate by any entrance (/) with any shop or store 
 wherein goods or merchandise known as groceries or pro- 
 visions are kept for sale ; but this sub-section shall not apply 
 to taverns in townships, unless so provided by by-law of the 
 township council. R. S. O. 1877, c. 181, s. 19 (2). 
 
 (1884). As ased here, it probably oomprises the nsoal members of the house, 
 hold, inoladiDR servants, bat not lodgers and guests (see Pigg v. Clarke, tupra) ; 
 and it is intended that the accommodation required shall be in addition to that 
 needed for the usual members of the household and the servants employed 
 about the place. 
 
 (0) To keep a place or thing involves the idea of having over it the immediate 
 control, of a character more or less permanent : B. v. Stannard, L. & 0., 349 ; 
 B. V. Barrett, L. & C, 263 ; Halligan v. Ganly, 19 L. T. N. 8., 268 ; B. v. Bice, 
 18 L. T. N. 8., 882. See note (9) sec. 11, ss. 8. 
 
 (p) " Not less," i. e., four bed-rooms or more in places outside of cities, and 
 six bed-rooms or more in cities. 
 
 (9) " Suitable complement " is rather a vague expression and may mean 
 much or little, according to the ideas of the tavern-keeper and of the Inspector 
 and License Commissioners, as to what is fit and proper, taking into consider- 
 ation the other surroundings of the place. It was held in Marriage Articles 
 that a trust to "provide suitably " for the settler's younger children is not too 
 vague to be executed, but the Court will direct an enquiry what the provision 
 should be: Brenan v. Brenan, I. B. 2, Eq. 266 ; Lewin, 117. A " suitable 
 complement " means a full and complete provision of appropriate and necessary 
 bedding and furniture. 
 
 (r) " At least six jorses," i. «., six horses or more. This only appUes to 
 taverns or inns in rural districts, and not to cities and incorporated towns. 
 No stabling accommodation is required in cities and incorporated towns. 
 
 («) Sub-sec. 8 of sec. 4 empowers the License Oommissioners to exempt from 
 be necessity of having any of the accommodation required by this section : 
 
 8 Taverns 
 6 
 
 10 
 2 
 
 tb. 
 
 In a city of less than 15,000, not more than 
 
 In a city of over 16,000 and not lass than 80,000 
 
 In a city of over 30,000 
 
 And in towns of over 6,000 not more than 
 
 The Commissioners are also empowered to pass resolutions regulating the 
 accommodation required. See sec. 8 and notes thereto. 
 
 (t) "Entrance" here means passage for entering, or inlet: see Worcester, 
 490. By sec. 64 the entrance to the hotel is required to be separate from the 
 entrance to the bar ; under the provisions of section 82 the Council of any Muni- 
 
 lit ^'^ 
 
ss. 28, 29.] 
 
 THE LIQUOR LICENSE ACT. 
 
 63 
 
 Every 
 tavern to 
 be an eat- 
 ing house. 
 
 City or 
 town 
 council 
 may 
 
 prescribe 
 lurther 
 require- 
 ments as 
 to tavern. 
 
 98« In addition to the accommodation required by 
 the last preceding section, each tavern or house of enter- 
 tainment shall be shewn, to the satisfaction of the license 
 commissioners, to be a well-appointed and sufficient eating- 
 house, with the appliances requisite for daily serving meals 
 to travellers ; and the requirements of this section shall 
 apply to all taverns or houses of entertainment, without any 
 exception whatever, and continuously for the whole period 
 of the license. («) R. S. O. 1877, c. 181, s. 20. 
 
 90« The council of any city or town (v) may, by 
 by-law (w) to be passed before the ist day of March in any 
 year, (x) prescribe for the then ensuing license year begin- 
 ning on the I St day of May, any requirements in addition 
 to those in the last preceding two sections mentioned, as 
 to accommodation (y) to be possessed by taverns or houses 
 of entertainment, as the council may see fit ; and the 
 license commissioners upon receiving a copy of such by-law 
 
 cipality may require that there shall be no internal oommnnioation between shops 
 licensed to sell intoxicating liquors and places for the sale of other goods and 
 merchandise, and Municipal Councils, in passing by-laws for the licensing of 
 billiard tables, may provide that there shall be no direct oommunioation between 
 the place in which such billiard tables are licensed for use and any place in which 
 liquor is sold : Neeley and The Oor. of Owen Sound, 87 U. 0. B., 289 : Arkell 
 and The Cor. of St. Thomas, 38 U. C. B., 694 ; see also Jones v. Whittaker, 
 L. B. 6, Q. B. 641. 
 
 (u) By this section it is necessary that every tavern should have the means 
 of supplying the travelling public with meals, and by section 72, a tavern 
 keeper failing or refusing to supply lodgings, meals, or accommodation to 
 travellers, is, on conviction, liable to a penalty of 920. See notes to ?eo. 19 
 and notes to sec. 72. These requirements are also imperative, and the t'^.ist- 
 ence of the appliances provided for is a condition not only of the 
 granting but of the continuance of the license. 
 
 The section applies to all taverns including those excepted from the accom- 
 modation required by sec. 27 and those which may be exempted under sub-sec 
 3 of Eeo. 4. 
 
 (v) City or town. See sec. 99 and notes thereto. 
 
 (w) See notes to sees. 20, 32, 42 and 42a as to the powers of Municipal 
 Coonoils to pass by-laws. 
 (x) See note (p) to sec. 20. 
 
 (y) The two preceding sections prescribe in general terms the accommodation 
 required in the case of persons applying for licenses for taverns or other houses 
 of entertainment ; this section empowers Municipal Councils of cities and towns 
 tu further regulate the accommodation required, but in doing so they cannot, 
 of course, decrease the extent of the accommodation required by the preceding 
 sections. 
 
 " Accommodation " means " provision of conveniences, applied often, aK it is 
 here, to things requisite to ease and refreshment :" Worcester, 12. 
 
 
 11 
 
 f, 
 
 11 
 
 
 m 
 
 '/■ 
 
 m 
 
i\ 
 
 I I 
 
 1 
 1 
 
 
 
 
 
 ■ 
 
 irv |- ;;i( 
 
 li| i) <;•« 
 
 i 
 
 64 
 
 THE LIQUOR LICENSE ACT. 
 
 [SS. 29, 30. 
 
 Security 
 t«be 
 Riven by 
 tavern 
 licensee. 
 
 shall be bound to observe the provisions thereof ; and such 
 by-law shall continue in full force for such year and any 
 future year until repealed, (z) R. S. O. 1877, c. 181, s. 2 1. 
 
 Security to he given. 
 
 SO* Before any tavern license is granted (a) the person 
 applying for the same shall enter into a bond (J)) to Her 
 Majesty in the sum of $200, with two good and sufficient 
 sureties, (c) (to be approved of by the Inspector) {d) in the 
 sum of $100 each, conditioned for the payment of all fines 
 and penalties {e) such person may be condemned to pay 
 
 (z) The latter part of this Beotion is in effect the Bame as the latter part of 
 aub-seoa. 1 and 2 of see. 20. The by-law, when paased, will apply to all fature 
 lioenaes, so long as the by-law remains in foroe. In aeotion 20 provision is 
 made for transmission of a copy of the by-law to the Commissioners ; here the 
 Gommissioners are not boand by it until a copy of it has been received by them. 
 Upon ita receipt, however, they maat comply with its terms and require all 
 persons obtaining licenses in the Municipality to do so. 
 
 (a) The mode of procedure in issuing tavern licenses is set forth in sec. 12, 
 by which it is provided, that upon the License Commissioners granting a 
 certificate stating that the applicant is entitled to a license, the license duty 
 shall be paid, and upon the applicant producing auoh certificate, together with 
 a receipt for the payment of the duty, the Inspector may issue the license. The 
 security required should be given and approved before the issue of the license. 
 
 (ft) For form of bond see Schedule A. 
 
 The seourity required is a bond, and the giving of this bond ia a condition 
 precedent to the granting of the license. A license issued without this bond 
 could be cancelled under sections 91, 92. 
 
 (c) An infant cannot be a party to the bond : Fisher v. Mowbray, 8 East, 330 ; 
 Baylis v. Dineley, 3 M. & S., 477; Stikeman v. OawBon, 16 L. J. Ch., 205; 
 nor would he be bound by it even if he had fraudulently represented himself to 
 be of age : Bartlett v. Wells, IB. 8t S., 836. A married woman could, it is 
 submitted, be one of the aureties, provided she were poasessed of aeparate estate -. 
 Lawson v. Laidlaw, 3 App. B.. 77 and 92, and cases there cited; CoUett v. 
 Dickenson, 11 Ch. D., 687: Dillon z/. Cunningham, L. B., 8, Ex., 23; He. 
 Shakespeare, Deakin v. Lane, 30 Ch. D., 169 ; Pallesier z>. Qumey, 19 Q. B. D., 
 519 ; Stogdon v. Lee, W. N. (1891), 47 : but in the present state of our law it 
 would not be well to approve of auch a bond. The applicant muat be a party to 
 the bond himaelf , for thia aection aaya that he shall enter into a bond with two 
 sufiBicient auretiea. The word " auretiea " alone meana aufficient auretiea : see 
 Interpretation Act, a. 8, aa. 20. See notes to sac. 31. A bond to Her Majes- 
 ty doea not bind the property of the peraon giving it to any greater extent than 
 a bond to a aubjeot : B. S. 0. , c. 94. 
 
 (d) The bond should- also be approved of before the iaaue of the licenae. The 
 Inapector ia the judge aa to the sufficiency of the auretiea. It ia hia duty to see 
 that they axe sufficient. No affidavits of justification are required, as ia usually 
 the case, but the Inspector may, if he sees fit, require the auretiea to justify. 
 No provision is made for payment of money into the hands of the Inspector, in 
 lieu of a bond. The seourity must be in the form of a bond. 
 
 («) The origin of the word "fine" is from "Finis," and "signifieth a 
 pecunarie punishment for an offence, or a contempt committed against the 
 
 ;. ,1/ ., ;; 
 
 ;:;„' X'^. 
 
 A-a\ 
 
 W>i 
 
30-] 
 
 THE LIQUOR LICENSE ACT. 
 
 65 
 
 fur any oflfence against any Act, by-law or provision in the 
 nature of law, relative to taverns or houses of public enter- 
 tainment then and thereafter to be in force, and to do, 
 perform and observe all the requirements thereof, and to 
 conform to all by-laws and regulations that may be estab- 
 lished by competent authority in such behalf (/), and such 
 bond shall be in the words or to the effect of Schedule A 
 to this Act (g) ; and when executed shall be filed in the 
 office of the Inspector, to be by him transmitted to the 
 office of the Provincial Secretary (A), R. S. O. 1877, c. 
 181, s. 22. 
 
 King, and regularly to it impriaonment appertainetb. And it is called ' Finis,' 
 because it is an end to that oflenoe : " Go. Litt., 126&. ; see Stroud's Diot., 286. 
 A " penalty " Is a punishment, whether in property or in person, imposed by 
 law or by iudioial decision ; the distinction therefore between a fine and a 
 penalty is that the first is pecuniary and is imposed, and the latter may be 
 either pecuniary or the infliction of a pain, and is inflicted or incurred ; a 
 '■ Hne " being imposed for the violation of some rule or law, and a " penalty " 
 for a crime : see Worcester, 656, 1061 ; see also note (n) sec. 46. 
 
 (/) The condition in the bond is : 
 
 1. That the licensee will pay all fines and penalties he may be condemned to 
 pay for any offence against any Statute or other provision having the force of 
 law now, or hereafter to be in force, relative to any tavern or house of public 
 eutertainment. 
 
 2. That he will do, perform, and observe all the requirements of such Statute 
 or other provision. 
 
 3. That he will conform to all rules aud regulations that are or may be 
 established by competent authority in such behalf. 
 
 The doctrine of strict construction applies to contracts of sureties, and they 
 are never held responsible beyond the clear and absolute terms and meaning of 
 their undertakings, and presumptions and equities are not allowed to enlarge, 
 or in any degree change or alter, their obligation : see Add. on Con. , Edsou Ed. , 
 653 etseq., and also appendix to Add. on Oon., Edson Ed., p. 66-71. 
 
 When a bond is given to secure the faithful performance of a duty, etc., if 
 the office is an annual office, and there is a fresh appointment each year, the 
 surety is only answerable during the current year : Add. on Con., Edson Ed., 
 654. Under this section, therefore, and the form prescribed, a new bond should 
 be furnished every year. 
 
 {g) See sec. 103 aud notes thereto. 
 
 (/() It is the duty of the Inspector to examine the bond and see that the 
 sureties are sufficient, and also to receive it when it has been executed and 
 approved, and to transmit it to the office of the Provincial Secretary. Formerly 
 the bond was sent to the Provincial Treasurer's Department. 
 
 Before the introduction of the " Crooks Act " was thought of, the Gonrts 
 held that a Municipality could, before granting a license, require a certificate 
 from the Township Treasurer that the applicant had deposited a bond binding 
 bim in £50, with two sufficient sureties, conditioned as in this section pre- 
 scribed : Greystook and The Municipality of Otonabee, 12 U. G. B., 468. 
 
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 ^ 
 
66 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 31. 
 
 SHOP LICENSES. 
 
 Shop 
 lloenses, 
 to whom 
 given. 
 
 S !• A shop license (1) shall not be granted (j) to any 
 person {k) unless he has filed his application (/) with the 
 Inspector on or before the 1st day of April in that year (m), 
 and unless the Inspector has reported to the License Com- 
 missioners («) that he is a person of good character, and 
 that his shop and premises are suitable for carrying on a 
 Beourity. reputable business (^), and unless he executes with sureties 
 a bond in the form expressed in Schedule B to this Act (p). 
 R. S. O. 1877, c. 181, s. 23. 
 
 ti,;i:;' 1 
 
 :«•!' 
 
 m 
 
 ■ l;:r; 
 
 (t) See see. 2, sab-seo. 8, as to what is a shop license. 
 
 0') This is imperative, see Interpretation Act, sec. 8, sab-seo. 2. Theproyis- 
 ions of this section are conditions precedent to the granting of a license. 
 
 (X;) See sec. 11, ss. 10, and notes thereto. 
 
 ({) The word " application " is used here, while the word " petition " is naed 
 with regard to tavern licenses; see sec. 11, sab-seo. 1. Both words are 
 evidently intended to mean the same thing. 
 
 (m) " On or before let April.'' See sec. 11, sub-sec. 2 and notes thereto. 
 The petition for a tavern license must also be filed before this date. 
 
 (n) The wording of sec. 11, sub-sec. 1, is similar to this, except that in the case 
 of a tavern license, the Inspector is required to report that the applicant is a 
 fit and proper person to have a license, and has all the accommodation reaniiod 
 by law. The notes to that sub-section are applicable to this. 
 
 (0) " Reputable business." See " good character and repute," p. 18, note (y). 
 
 (p) "Bond." See nates to sec. SO. See also sec. 108 and notes thereto. 
 
 The requirements precedent to the granting of a shop license are : 
 
 1. The filing of an application with the Inspector, on or before the 1st April, 
 in the year in and for which the license is asked. 
 
 2. The report of the Inspector, that the applicant is a person of good char- 
 acter and that his shop and premises are suitable for carryiug on a reputable 
 business. 
 
 8. The execution of a bond with sureties, conditioned that the applicant 
 " will pay all fines and penalties which he may be condemned to pay for any 
 offence against any Statute or other provision having the force of law now, or 
 hereafter to be in force, relative to any shop wherem liquor may be sold by 
 retail, and will do, perform, and observe all the requirements thereof, and con- 
 form to all rules and regulations that are or may be established by competent 
 authority in such behalf." 
 
 Sec. 80 requires two "sufficient sureties" besides the applicant himself, 
 this section requires '* sureties " besides himself. The word " sureties " shall 
 mean sufficient sureties, and the word *' security " shall mean sufficient security ; 
 and when these words are used one person shall be sufficient therefor, unlees 
 othevwise expressed : Interpretation Act, sec. 8, sub-s. 20 ; so that one surety 
 . . sufficient to comply wiUi the requirements of this section. See notes to 
 sec. 80. 
 
s. 
 
 32.J 
 
 THE LIQUOR LICENSE ACT. 
 
 67 
 
 Number 
 of shop 
 lioeniinB 
 limited, 
 and 
 
 lioens jb 
 may be 
 aabjeoted 
 to oertaia 
 restric- 
 tions. 
 
 S9« (i) The Council of every city, town, village or 
 township may, by by-law to be passed before the ist day 
 of April (q) in any year, limit the r umber of shop licenses 
 to be granted therein (r) for the th sn ensuing license year, 
 beginning on the ist day of May (s), and by such by-law 
 or any other by-law (/) passed before the ist day of April, 
 may require the shopkeeper to confine the business of his 
 shop solely and exclusively («) to the keeping and selling 
 
 (9) The Lieense GommisBianers have power to paaB reBolationB limiting 
 the nomber of taveri and Bhop lioenBes to he issaed within the year : See see. 
 4, sab-seo 2, and the Ooanoil of every oity, town, village or townBhip, are alBO 
 empowered to limit the number of tavern lieenBes, ander see. 20. This section 
 extendB the po^ere of sneh Monicipalities to the limiting of shop lioenses, and 
 Gonfera the power of restricting and regulating ilie sale of liquor in such shops. 
 The notes to ss. 2 of sec. 4, and to sees. 20 and 29 are appli'T'sble to this section. 
 And see also notes to sees. 42 and 42a. 
 
 (r) The number of tavern lioenses are limited by sec. 18, but the Act places 
 no restriction upon the number ot shop licenses to be issued. 
 
 A by-law limiting the number of shop licenses in a town to one, and requiring 
 the licensee to confine hia business exdusively to tie keeping and selUng of 
 liquors is bad, as being in effect a prohibitory law a 'd creating a monoply : 
 Brodie and The Oor. of Bowmanville, 88 XT. 0. B., 580. See also Barclay and 
 The Mun. of Darlington, 11 U. 0. B., 470 ; Ounningham and The Oor. of 
 Almonte, 21 0. P., 459 ; Barclay v. The Mun. of Darlington, 12 U. 0. B., 86 ; 
 'Qreystook v. The Mun. of Otonabee, 12 U. 0. B., 468. 
 
 A by-law directing licenses to be granted to sell spirituous liquors for the 
 year to two parties named, and that no such licenses should be issued to any 
 other persons. Held good under the special circumstances set out in the case : 
 Terry v. The Oor. of Haldimand, 16 U. 0. B., »80. See also Gifford v. The 
 Man. of Darlington, 85 U. 0. B., 286, cited in note (>■) to sec. 20. 
 
 A by-law prohibiting the sale of liquor in shops and places other than houses 
 of public entertainment and limiting the number of taverns to nine, held valid 
 as being within the power of Corporation : Slavin v. The Oor. of Orillia, 
 36 U. 0. B., 169. 
 
 A by-law prescribing the following restrictions was held valid : 1, limiting 
 the number of licenses for the ensuing year, beginning on May Ist, 1884, or for 
 any further license year until this by-law is altered or repeided. 2, That the 
 by-law should remain in force until idtered or repealed. 8, That every person 
 receiving a shop license shall confine the business of hia shop solely and exclu- 
 sively to the keeping and selling of liquor ; and it was held that this was not 
 in restraint of trade : Oroome v. the Oor. of Brantford, 6 O. B., 188. 
 
 (f) See note (r) to sec. 20. 
 
 (t) The by-law must be passed before the Ist April, in order that the License 
 Commissioners may have sufficient notice thereof before their first meeting : 
 8. 11, ss. 6. 
 
 The by-law may include provisions lor limiting the number of lioenses to be 
 issued as well as other regulations or restrictions : see Oroome v. Brantford, 
 6 0. B., 188. 
 
 (u) " Solely and exclusively," t*. «., separately and to the exclusion of every- 
 thing else. " Exclusive " means that which debars, deprives or 'excepts ; as an 
 exclusive right, privilege or jurisdiction, whioli is possessed, enjoyed or exercised 
 independently 0) another or others : Anderson's Diet. , 429. 
 
 '' 
 
 --5t 
 
^ 
 
 68 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. i2. 
 
 i;*.tt' ;: 
 
 m<. 
 
 Certified 
 copy to be 
 sent to 
 Lioeiue 
 Cominis- 
 Bionera. 
 
 of liquor (»), or may impose any restrictions upon the mode 
 of currying on such traffic as '.he Council may think fit (w) ; 
 and such last-mentioned by-law may be made to come into 
 force on the ist day of May then next ensuing, or on the 
 ist day of May of the succeeding year {x), and any such 
 by-law so passed shall not be repealed (y) during the three 
 years next after the year in which the same comes into force. 
 R. S. O. 1877, c. 181, s. 24 (r); 47 V., c. 34, s. 6 (i). 
 
 (2) It shall be the duty of the Clerk (2), immediately 
 after the passing of such by-law, to send a certified copy 
 thereof to the License Commissioners within whose license 
 district the Municipality is situate, and such by-law shall be 
 binding upon the License Commissioners, and any shop 
 license to be issued Fha" conform to the provisions 
 thereof (a) ; and such by-» v hall remain in force for any 
 
 {v) 866 note {y) B60. 11, ss. 8 ; see also notes to sees. 49, 70, 71. 
 The words " liquor," " intoxioating liquor," and " spirituous liquor " are 
 used in this Aot as convertible terms. Bee note (b), seo. 2, at p. 4, ante. 
 
 (w) The Council in passing a by-law may impose such restrictions as it sees 
 fit : Cairns, L. 0., was of the opinion that tiie words "if he shall see fit " 
 were mere surplusage, and if omitted, the clause would mean exactly the same 
 thing as it does with them inserted : Julius v. Bishop of Oxford, 6 App. Cas., 
 228. See note (0), p. 8, ante. 
 
 («) " Succeeding year," t*. «., the year which immediately follows that in 
 which the by-law is passed : sev* Bast Dean v. Everett, 8 E. «& E., 674. The 
 by-law must be passed before the 1st April, but it may be framed sd as not to 
 come into force until the next year. 
 
 (y) This is imperative, and the by-law when once passed must remain in 
 force for three years from the 1st May in the year in which it is made to come 
 into operation. It is also provided that it shall remain in force until repealed. 
 
 (c) The Clerk of the Municipality is here referred to, and it is his duty to 
 comply with the directions of this section. If he neglects or omits to do it, he 
 will be liable to the penalty imposed. Ignorance of the law would be no excuse 
 for such neglect or omission. See notes to sec. 20, sub-sec. 2. 
 
 (a) Whenever a Statute declares a thing " shall " he done, the natural and 
 proper meaning is that a peremptory mandate is enjoined. But when the thing 
 has reference to : 
 
 (a) The time or formality of completing any public Act, not being a step 
 in a litigation, or accusation ; or, 
 
 (6) The time or formality of creating an executed contract whereof the 
 benefit has been, or, but for their own act, might be, received by the 
 individuals or private companies or private corporations ; the enactment 
 will generally be regarded as merely directory, unless there be words 
 making the thing done void, if not done in accordance with the prescribed 
 requirements, tiometimes the word may be used in yhe same section as 
 compulsory and as optional. For a carious instance of this, see Oooke v. 
 New Biver Co., 88 Oh. D., 66, on appeal, 14 App. Oai., 698. But in this 
 
 ss. 32, 
 
 future 
 omits, ( 
 penalty 
 R. S. C 
 
 88. 
 
 store, s 
 merchai 
 
 case 
 
 oonf( 
 
 efFeul 
 
 restr] 
 
 to be 
 
 issue 
 
 (b) "N 
 
 than 960,' 
 
 A convioti 
 
 16 0. R., 4 
 
 16 0. R., ] 
 
 penalty in 
 
 this 860. tl 
 
 penalty is 
 
 nor more t 
 
 See note 
 
 (c) See e 
 
 id) See I 
 
 («) ''Gn 
 fonnd in tl 
 as it is hen 
 amongst ot 
 sell liquor i 
 ' grocery ' 
 strict sense 
 riaoe when 
 " grocery " 
 therein : N 
 
 The term 
 commerce ; 
 Worcester, 
 
 Any chati 
 
 within the i 
 
 Frands: At 
 
 has been h 
 
 B. & 8., 
 
 But if th 
 
 within the i 
 
 a solicitor p: 
 
 plans and m 
 
 Gnffin, 1 B. 
 
 within the 
 
 Q- B. D., 7 
 
 Barber, 6 T. 
 
 222 ; Heselt 
 
ss. 32. 33-1 
 
 THE LlQrOR LICENSE ACT. 
 
 69 
 
 future year until repealed, and any Clerk who neglects, 
 omits, or refuses to send such certified copy shall incur a 
 penalty of not less than $40 nor more than $100 (/^). 
 R. S. O 1877, c. 181, s. 24 (2). 
 
 3 8* (i) No shop license (c) to sell liquors (d) in any ^|,"**** 
 store, shop, place or premises where groceries or other iwaeof 
 merchandise (e) are sold, (/) or expo; ed for sale, (g) other Hcenaes. 
 
 case it is aubmitted that the expressionB " shall be binding " Jid " shall 
 conform" are, nnder ordinary oiroomstanoes, oompalsory, thongh their 
 e£Feut might depend very much upon the character of the regulations or 
 restrictions prescribed in the by-law. In respect of the namber of licenses 
 to be issued the License Commissioners must conform to the by-law, and 
 issue no more than the maximum number of licenses allowed thereby. 
 
 (b) " Not less than $40." It was held that the similar expression, " not less 
 than $60," In the G. T. Act, 1878, shoold be construed as '< 960 and no less." 
 A conviction imposing a penalty of 976 was therefore quashed : B. v. Smith, 
 16 0. B., 464 ; Stimson. qui tarn v. Pond, 2 Ourtis, 602. But see B. v. Cameron, 
 16 0. B., 115, in which it was held that the convicting Justices may inflict a 
 penalty in excess of $60 ; and a penalty of 960 was allowed to stand. Under 
 this sec. there can b:- no question as to the intention of the Legislature. The 
 penalty is restricted to ihe amounts mentioned, so that no fine of less than 940 
 nor more than 9100 may be inflicted. 
 
 See notes on " convictions " sec. 70. 
 
 (c) See see. 2, sub-s. 8. 
 
 (d) See note (v) to sec. 32 and note (6) to sec. 2, pp. 2-6. 
 
 («) "Groceries" or "grocery" is a word used to signify the commodities 
 found in the establishment of a grocer, and is generally used in the plural form 
 as it is here. It has been said that : " technically a grocery is a place where, 
 amongst other things, liquor is sold, and in this country all grocers as a rule 
 sell liquor in the same manner as other merchandise ; so that whether the term 
 'grocery' as used in the application (for insurance) is interpreted in its 
 strict sense or in the ordinarily accepted meaning, in either case it implies a 
 nlaoe where liquor may be sold :" and it v<ts held that in insuring a village 
 " grocery " the Insurance Company had knowlege that liquors might be sold 
 therein: Nicholson v. Phoenix Ins. Co., 46 U. G. B., 369. 
 
 The term " merchandise," as ordinarily understood, signifies, " the objects of 
 commerce ; anything usually bought or sold ; goods, wares, commodities :" 
 Worcester, 899. 
 
 Any chattel or chattels to be sold and delivered by one party to another comes 
 within the phrase, " goods, wares and merchandise," as used in the Statute of 
 Frauds : Atkinson v. Bell, 8 B. ift C, 277 ; and therefore a set of artificial teeUi 
 has been held to come within the meaning of the phrase : Lee v. Griffin, 1 
 B. & S., 272; see also Wolfenden v. Wilson, 88 U. 0. B., 442. 
 But if the substance of a contract be work and labor, it is not 
 within the meaning of the phrase, as for instance, an artist painting a picture, 
 a Bolioitor preparing a deed, a printer printing a book, or an engineer making 
 plans and models for an intended patent : Clay v. Yates, 1 H. (!fc N., 73 ; Lee v. 
 Qriffio, 1 B. <& S., 272 ; G.Afton v. Armitage, 2 0. B., 886. Fixtures ars not 
 within the p iirase : Hallen v. Bunder, 1 G. M. <& B., 266 ; Lee v. Gaskell, 1 
 Q. B. D., 70C; see also Humble v. Mitchell, 11 A. dc E.. 206 ; Latham v. 
 Barber, 6 T. B., 67 ; Bowlby v. Bell, 8 0. B., 284 ; Watson v. Spratley, 10 Ex., 
 222; Heseltine v. Siggers, 1 Ex., 866; Freeman v. Appleyard, 7 L. T 282 ; 
 
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 70 
 
 THE LIQUOR LICENSE ACT. 
 
 [s- 33- 
 
 than (k) mineral or aerated waters (not containing spirits), 
 ginger ale, liquor cases, bottles, or liquor baskets, or pack- 
 ages, taps or faucets, (M) or in any store, place or premises 
 connected by any internal communication (/) with such 
 first-mentioned store, shop, place or premises, shall here- 
 after be granted to any person who was not a licensee or 
 the holder of a shop license on the 25th day of March, 
 1884, or to his assigns, (j) 
 
 Knight V. Barber, 16 M. & W., 66 ; Ooalton v. Ambler, 18 M. & W., 403. 
 
 The words "goods, wares and merchandise," in a oonTiction for selling 
 without a pedlar's lioense, under 49 Vie. c. 18, s. 495, ss. 8, and 48 Vie. e. 40, 
 s. 1 (0), were too general, and the oonviotion was quashed : U. v. Ghayter, 11 
 O. R., 217. 
 
 trhe restrlotion upon the sale of things besides liquors and other articles 
 specifically mentioned in this section iz enlarged by the wording of sub-section 
 2, which prohibits the sale of " any other commodity " See note (k) infra. 
 
 if) "Are sold." See note (d), sec. 2, ss. 8, and notes to sec. 70. As to 
 when sale will be presumed, see sec. 108 and notes thereto. 
 
 {gt "Fxposed for sale." To "expose " means to set out, bring into view ; 
 display, exhibit : Anderson's Diet., 485. See also White «. Bedfem, 5 Q. B. D., 
 16 ; Barlow v. Terrett, W. N. (1891), 79. As to evidence of sale, and of keep- 
 ing for sale, see sees. 108-118. 
 
 (h) The words "other than" create &a exception: Wrotesley v. Adams, 
 1 Plow., 195. As used here it creates an exception in favor of the commodities 
 specifically mentioned, viz. : Mineral or aerated waters not containing spirits ; 
 ginger ale ; liquor cases ; bottles ; liquor baskets or packages ; taps or faucets ; 
 ail of which are allowed to be sold in licensed shops as well as liquors. 
 
 {hh) "Mineral water" is water impregnated with or containing minerals; 
 " aerated water" is that which is impregnated or filled with carbonic acid, or 
 air : see Worcester's Diet. These waters, as well as ginger ale, are not to be 
 sold in less quantities than half a dozen bottles, and are not to be consumed on 
 the premises. See sub-section 8. 
 
 (i) Persons who were licensed to sell under a " shop license" on 26th March, 
 1884, and their assigns were not subject to the provisions of this snb-seotion. 
 But the Council of any Municipality (see sec. 82) and the T^icense Commis- 
 sioners may impose the same or similar restrictions in respect of all shop 
 licenses. Sub -sec. 4 of this section also provides that no license shall be 
 granted after 1st May, 1R88, to any thop connected by internal communication 
 with any store, shop, place or premises where groceries or other merchandise 
 are sold, etc. If the provisions of this section are not complied with, no license 
 can be issued. The Inspector could not report the premises suitable for 
 carrying on a reputable business, as required by sec. 81, it there were any such 
 communication. See sees. 74 and 76 and notes thereto. 
 
 ij) The word " ;issignee " or " assign " means a person appointed by another 
 to do any act or perform any business ; also a person who takes some right, 
 title, or interest in things by an assignment from an assignor. They are 
 divided into (1) assignees by deed, as when a lessee of a term sells or assigns 
 to another; and (2) assignees by law as when property devolves upon an 
 executor without any specific appointment, the executor is assignee in Uw to 
 the testator. Assignees in bankruptcy are those persons in whom the property 
 of a bankrupt vests by virtue of their appointment : Wharton, 63 ; Stroud's 
 Diet., 66. 
 
s- 33-J 
 
 THE LIQUOR LICENSE ACT. 
 
 7> 
 
 (2) Ifany other commodity (^) or goods are sold or exposed yo,|°" 
 fjr sale, save as aforesaid, (/) in any licensed shop (w) in ^^^^ 
 the preceding sub- section provided for, the license shall be «>i*- 
 void, («) and such licensed person (o) may be convicted of 
 selling liquor without license, upon proof that any other 
 commodity or goods is or are exposed for sale or sold at 
 such shop, save as aforesaid, and such conviction rhall be 
 conclusive evidence (/>) that such person is unlicensed. 
 Nothing in this section shall limit the authority of munici- 
 pal councils in, respect of shop licenses under the next 
 preceding two sections. (^) All the provisions {r) regard- 
 
 (fe) " Commodity " means, according to Worcester,' " goods, wares, merchan- 
 dise," bnt it has a very wide signification. Within the meaning of the consti- 
 tution of Massachusetts, " commodities " embraces everything which may be 
 the subject of taxation, including the privilege of "*ing a particular branch of 
 business or employment, as the business of an au'itioneer, of an attorney, of 
 of a tavern-keeper, of a re'iiailer of liquors : Portland Bank v. Apthorp, 12 
 Mass., 256, and it was held that the the four words " Commodities, Emoluments, 
 Profits and Advantages " are of one sense and nature, implying things gainful : 
 London v. Southwall, Hob. , 304 ; Stroud's Diet., 20. " Goods " has also a very 
 extensive meaning and comprehends almost everything that a merchant can 
 sell or a customer buy. See Stroud's Diet., 829. In a merchant's store, it 
 refers to the merchancQae and commodities kept for sale : Curtis v. Phillips, 5 
 Mioh., lis ; Anderson's Diet., 489. 
 
 ({) "The words "save as aforesaid" refer to the liquors authorized to be 
 sold by virtue of the license, and the articles excepted in sub-sec. 1. 
 
 (m) " Any " is a word excluding limitation or qualification, therefore, every 
 shop, store, or place, other than inns, ale or beer houses, or other houses of 
 public entertainment licensed to sell, barter, or traffic, by retail, in liquors in 
 quantities of less than three half pints, as described in sec. 2, ss. 3, is included 
 in the restrictions imposed by this section. 
 
 (n) The license is not only void, but the conviction of the holder under this 
 section is conclusive evidence that it has ceased to exist. 
 
 (0) Undei^ this section alone the holder of the license is liable to conviction. 
 There is no provision in it for the punishment of the person actually making the 
 sale, if he is not the holder of the license. But see sec. 112 and note? theioto. 
 As to proof of license, see sec. 106. 
 
 (p) " Oondnsive evidence " is that which is not to be questioned, contro- 
 verted, or contradicted : not requiring support. See notes to sec. 112. 
 
 iq) The " next preceding two sections " are, of course, sees. 31 and 32. The 
 former has no reference to the authority of Municipal Councils. The powers 
 oonferred upon such OouncUs by sec. 32 are not interfered with by this section. 
 
 (r) The phrase, "aU the provisions," is probably intended to include pro- 
 visions made by the Act and by the by-laws of a Municipality, and the regula- 
 tions of the License Commissioners which are applicable to tavern licenses and 
 which, by virtue of this section, are made applicable to shop licenses. As to 
 provisions for *' dosing taverns," see sees. 64, 56 and 71. As to " evidences of 
 sale," see sees. 108-114, see also sec. 62. As to liability of purchaser, see 
 sec. 68, and as to unlawful consumption by, see sec. 78. 
 
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 72 
 
 THE LIQUOR LICENSE ACT. 
 
 Iss. 33. 34. 
 
 Mineral 
 
 waters 
 
 not to be 
 
 oon- 
 
 aumed 
 
 upon 
 
 lioeuRed 
 
 premiBes. 
 
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 tiona for 
 obtaining 
 sbop 
 lloense. 
 
 in^ the closing of licensed taverns and sales, and evidences 
 of sales«therein during prohibited hours shall apply to shops 
 licensed in any municipality after the by-law secondly pro- 
 vided for in the next preceding section shall have come into 
 force, and to shops which are provided for in the next pre- 
 ceding sub-section. 
 
 (3) The aforesaid mineral or aerated waters or ginger ale 
 shall not be sold in less quantities than one-half dozen 
 bottles, and shall not be allowed to be consumed upon 
 the licensed premises under the same penalty as is provided 
 for a breach of section 60 of this Act. (s) 
 
 (4) From and after the ist day of May, in the year 1888, 
 no shop license shall be granted to any person to sell 
 liquors in ;*ny store, shop, place, or premises where grocer- 
 ies or other merchandise are sold, or exposed for sale, 
 except as aforesaid or in any store, place or premises, con- 
 nected by any internal communication with such first-men- 
 tioned store, shop, place or premises. (/) 47 V., c 34, 
 s. 6 (3-5, 7). 
 
 LICENSES BY WHOLESALE. 
 
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 Hoenses ^^* ^^'^ ^^^ Inspector («) of the license district, {v) in 
 
 by whole- any Municipality (w) in which the license applied for is to 
 
 have effect, shall issue to any applicant (x), upon a requisi- 
 
 (») This provision prohibits the sale of mineral, aerated waters and ginger 
 ala in less quantities than six bottles at one time, and also prohibits its uee 
 upon the premises. 
 
 As to meaning and effect of the expression " allowed to be oonsamed," see 
 notes to sees. 73, 74, 76 and 78. And as to proof of oonsamption, see sec. 109. 
 
 Section 60 prohibits the oonsamption of liqaor in shopst and the penalty for 
 an infraction of its provisions is that imposed by sec. 70. 
 
 (tl This clause practically repeals that part of sub-sec. 1 referring to the 
 holders of chop licenses granted previous to 26th March, 1884, and places all 
 licensed shops on the same footing with regard to the internal oomamnioation 
 prohibited by the section. See sees. 74-77 and notes thereto. 
 
 (tt) By the B. N. A. Act, sec. 91, ss. 2, 8, exclusive power is given to the 
 Dominion Parliament to legislate in all matters affecting trade and commerce, 
 and to raise money by any mode or system of taxation. By sec. 92, ss. 2 and 
 9. power is given to the Provincial Legislatures to levy direct taxes within the 
 Province, and also to exclusively legislate with reference to shop, saloon, tavern, 
 auctioneer and other licenses, in order to the raising of a revenue for provincial, 
 local or municipal purposes. In B. v. Severn, 2 S. 0. B., 70. it was held that 
 the Provincial LegislatHre had not the power to tax and regulate the trade of 
 a brewer, as that would be a restraint and regulation of trade and commerce; 
 
s- 34.J 
 
 THE LIQUOR LICENSE ACT. 
 
 73 
 
 tion (y) therefor signed by him (s), and after payment (a) . 
 to the Inspector of the proper duty thereon, a license for 
 selling fermented, spirituous or other liquors (d), by whole- 
 sale only (c)f in his warehouse (d), store (e), shop, or place 
 
 and that the worda " other lioensea " in aa. 9 of aeo. 92 did not extend to 
 iioenaing brewers. Kitohle and Stroug, J. J., diaaented. Since that time the 
 Priyy Gonncil haa held " The Liquor Lioanae Aot, 1888," to be ultra virei of 
 the Dominion Parliament, inolncUng the proTiaionreapeoting wholesale lioenaea : 
 see sec. 8, note (m) ; see alao ««. p. DriaooU, 27 New Brnna. Bep. 2 Oart., 892. 
 
 (u) See aeo. 2, aa. 8. 
 
 {v) Bee aee. 2, aa. 6. 
 
 (lo) For the meaning and effeot of the word ' 
 B8. 12. 
 
 any," aee note (o) to aeo. 11, 
 
 (x) The word " ahall " ia imperatiTe : see Interpretation Aot. Lioensea by 
 wholeaale may be iasued between the 1st and last daya of May, bat all aaoh 
 licenses shall be deemed to have been issaed on the said 1st day of May. 
 See sec. 8, ss. 2. 
 
 " Any applicant " is equivalent to all applicants, without any limitation or 
 restriction : see Powell v. Howell, L. B. 8,' Q. B. 654 ; Holmes v. Meynell, 
 T. Baym. 462 ; Stroud's Diet., 89. The restrictions in the next following 
 section disqualify a retail dnuer in other goods from holding a wholesale 
 license to sell liquors upon ti^e premises in which other goods are sold, and 
 confines the busines to selling by wholesale and in unbroken packages. 
 
 (y) A " requisition " is a formal demand or request : See Anderson's Diet., 
 F86 ; Wharton, 687. The definition given by Worcester is, " the act of requir- 
 ing ; application for a thing to be done by virtue of some right ; requirement ; 
 demand ; claim ; exaction." 
 
 It may be noted that in case of a wholesale license, the word " requisition " 
 is used, while, in the case of tavern and ahop licenses, the termii used are 
 " petition " and " application," respeotivefy. 
 
 (i) Speaking generally, a signature is the writing, or otherwise affixing, a 
 person's name, or mArk to represent his name, by Umself or by his authority, 
 vith the intention of authenticating a document aa being that of, or as binding 
 on the person whose name or mark is so written or affixed. But the minute 
 requisites vary according to the nature of the document to which it is affixed : 
 B. V. Kent Justices, L. B. 8, Q. B. 805 ; and " in every case where a Statute 
 requires a document to be signed by a particular person, it must be a pure 
 question on the construction of the Statute whether the signature by an agent 
 ia sufficient :" per Bowen, L. J., re Whitley, 82 Oh. D., 887. In this section 
 the requisition is to be signed " by him," and it is submitted that the meaning 
 of this is, that the requisition should be signed by tiie applicant himself : see 
 Toms V. Ouming, 7 M. A O., 88 ; Davies v. Hopkms, 27 L. J. C. P., 6, and see 
 also oases cited in note (d), ante p. 27. A lithographed signature was held 
 insufficient : B. v. Oowper, 24 Q. B. D., 688. 
 
 (a) The Inspector must have received the duty before he issues the license. 
 The " proper duty " is 9260 : see see. 41, ss. 1, and seo. 44, sa. 1. This amount 
 cannot be increased by a by-law of the Municipality. 
 
 (b) See sub-sec. 1 of sec. 2. 
 
 (e) The wholesale license, as its name indicates, is for a sale by wholesale, 
 that is to say, in quantities of not less than five gallons, or one dozen bottles 
 of at least tluee half pints each, or two dozen bottles of at least three fourths 
 of a pint each. The sale is intended to be made at one time and not on 
 different occasions on the same or cUflerent days ; and the sale by the holder 
 
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 74 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 34- 
 
 to be defined (/) in the said license, and situate within the 
 said Municipality (g), and such license shall be deemed a 
 license by wholesale within the meaning and subject to the 
 provisions of sub-section 4 of section 2 of this Act (//). 
 R. S. O. 1877, c. 181, s. 25. 
 
 of a wholesale lioense of any qoantitv lesi than that authorized by his lioenae 
 is a punishable offence : B. v. Faolkner, 96 U. 0. B., 529 ; B. v. Denham, 86 
 J. C. B., 60S. It was held that neither thie nor the provisions of sections 49 
 and 70 applied to brewers : B. v. Boott, 84 U. 0. B., 20, and other cases cited 
 in notes to sec. 61. 
 
 Under the English Lioensing koi, it was held that a bona fide traveller for a 
 licensed dealer required no license : Stuchbery v. Spencer, W. N., (1886) 182 ; 
 see Stallard v. Marks, 8 Q. B. D., 413 ; but see note (g) infra, and sec. 17. As a 
 rule " wholesale " merchants deal only with persons who buy to sell again, 
 whilst " retail" merchants deal with consumers : per Bacon, V. 0., Treacher 
 V. Treacher, W. N., (1874) 4. 
 
 (d) A building or shed enclosed on two sides and roofed, used for purposes 
 connected with the occupation of a wharf, and also as a place of deposit for 
 goods, was not a "warehouse:" Watson v. Cotton, 6 0. B., 61, at p. 64. A 
 " warehouse " was construed to be <;u«f«m generin (of the same nature) with 
 "dwelling-house, outhouse, yard, garden, or other place: " B. v. Edniundson, 
 3 E. <fe E., 77. 
 
 («) In the United Stateb and Canada a " store " is generally a shop for the 
 sale of goods, or a building in which goods of any kind are kept for sale: 
 Worcester, 1421. In England it is never applied to a place where goods are 
 sold, only to a place where they are deposit^. In this country it denotes both 
 of these places : Barth v. State, 18 Conn., 440 (1847). 
 
 The common use of "store," when applied to a building, is to designate a 
 place where traffic is carried on in goods, wares and merchandise, and not to 
 designate a storehouse : Hittinger v. Westford, 186 Mass., 269 (1888) ; Boston 
 Loan Co. v. Boston, 187 Mass., 836 (1884) ; Anderson's Diet., 979. 
 
 (/) See section 17 ants, note (9). 
 
 (9) " Within the said Municipality " means " the Municipality in which the 
 license is applied for " (see «upra), and confines the selling of liquor to such 
 Municipality. Section 17 provides that a license shall only be for 
 the premises described in the license, and that the license shall remain valid 
 only so long as the licensee continues to be the occupant of the premises and 
 true owner of the business. 
 
 {h) Sub-sec. 4 of sec. 2 defines the meaning of " license by wholesale " and 
 " wholesale license " to mean " a license for selling, bartering, or trafficking, by 
 wholesale only, in such liquors in warehouses, stores, shops, or places other 
 than inns, ale or beer houses, or other houses of public entertainment, in quan- 
 tities of not less than five gallons in each cask or vessel at any one time ; and 
 in any case where such selling by wholesale is in respect of bottled ale, porter, 
 beer, wine, or other fermented or spirituous liquor, each such sale shall be in 
 quantities not less than one dozen bottles of at least three half pints each, or 
 two dozen bottles of at least three fourths of a pint each, at any one time. 
 The licenses provided for by the Act are four in number, viz.: (1) Tavern 
 lioensea— sec. 2, sub-sec. 1 ; (2) shop licenses — seo. 2, sub-sec. 8 ; (8) wholesale 
 licenses — defined above, and (4) beer and wine licenses — sec. 23. 
 
 See notes to sec. 36. 
 
35-] 
 
 THE LIQUOR LICENSE ACT. 
 
 75 
 
 8A. Wholesale licenses (i) may be issued ij) at any ^'gyjJi'to 
 time {k) during the year after the license commissioners (/) Jj^'^'JggJj,, 
 of the district {m) in which such license is to have effect, UoenaeH. 
 have directed the same to be granted, (») and shall be 
 strictly limited {o) to persons who carry on the business of 
 selling by wholesale or in unbroken packages, (/) and any 
 wholesale license so issued shall be and become void {q) in 
 
 (t) See teo. 2, bb. 4, and note (e) to Beo. 34. 
 
 ( j) See note (a) to Bee. 84. In general, the word " may " in permiBBive : In- 
 terpretation Act, Beo. 8, BB. 2. Bat notwitbBtanding this, the word must be 
 governed by the context, and where the Statute makee provlBion for efleotaating 
 a legal right, it and other enabling worde are oonstmed aB oompulBory : Bee 
 Boles V. BoBewell, 6 T. R., 688; Hardy v. Bern, 5 T. B., 686; Maxwell on 
 State., 221; AitcheBon v. Mann, 9 P. B., 478; JnliaB v. Bishop of Oxford, 
 6 App. Oas., 214, and other cases cited in note (o), p. 8 antt. 
 
 (k) These words have the widest possible signification and mean that the 
 license may be iBsned at any period of the year. 
 
 (I) See sec. 8. 
 
 (m) See sec. 2, ss. 6, and note thereto. 
 
 (n) The mode of procednre in issning tavern ivnd shop licenses is provided 
 for in sec. 12, bat there is no provision made in respect of the issae of wholesale 
 licenses. What is meant by the expression ased here is not qoite clear, bat it 
 may be presumed that some sach proceeding as that provided for in sec. 12 is 
 intended, and that apon the certificate of the Commisbioners " directing " him 
 to do so, and npon payment of the daty in the last ii'wction required, the 
 Inspector shall issue the license to the applicant. 
 
 (o) " Strictly limited," means that all those who do not ctvrry on business of 
 selling by wholesale in the way here described shall be rigorously excluded from 
 having a license to sell under this and the preceding section. 
 
 The qualification required by a person to entitle him to a wholesale license 
 is that he shall carry on a strictly and exclusively wholesale business. See 
 note (g) infra. 
 
 (p) A "package" is a parcel or bundle. Paintings laid npon one another 
 without any tie or coveri jg, in a waggon having sides but no top, is a package 
 within the English Carriers' Act, 11 Geo. 4, and 1 Wm. 4, c. 68, sees. 1, 2 ; 
 Wbaite v. Lancashire it Tcirkshire By. Co., L. B., 9, Ex., 67. 
 
 In the United States it was held that a package must be interpreted to mean 
 small parcels or bundles, whose appearance woidd give no adequate information 
 of their value to the carrier : Southern Express Co. v. Crook, 44 Ala., 468 ; 
 S. C. 4, Am. Bep. 140. 
 
 The term " unbroken packages " may be construed as parcels containing 
 goods as originally put up by the importer or manufacturer. The Municipal Act, 
 29, 80 Vic. 0. 61, sec. 262, provided that : " No tavern or shop license i^all be 
 necessary for selling any liquors in the original packages in which the same 
 have been received from the importer or manufacturer, provided such packages 
 contain not less than five gallons or one dozen bottles." 
 
 (q) This is a prorision for the forfeiture of the license. This forfeiture arises 
 in the event of the licensee at &ny time, either directly or indirectly, carrying on 
 the business of a retail dealer in any other goods, wares or merchandise, and 
 the forfeiture may occur if such retail business is carried on by means of a 
 partner, clerk, agent, or any other person. This only applies, however, to the 
 
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 76 
 
 THE LIQUOR LICENSE ACT. 
 
 fs- 35- 
 
 case the holder thereof, at any time during the currency of 
 the said license, directly or indirectly, (r) or by or with any 
 partner, (s) clerk, (/) agent (») or other person, (v) carries 
 on, (w) upon the premises to which such license applies, 
 
 pramiMi mentioned in the lioente, he is not prohibited from e»rrving on any 
 Bort of bniinesi upon other premiaee. Ae to meaning oi term toid see note (y) 
 to sec. 15, ante p. 42. 
 
 (r) " Direotly or indireotly." The addition or omiieion of these words to the 
 offence of an officer of a Corporation, being " interested" in a contract with 
 his Oorporation, seem to be immaterial : Todd v. Bobinson, 14 Q. B. D., 789. 
 
 («) " An agreement that something shall be attempted with a ^ew to gain, 
 and that the gain shall be' shared by the parties to the agreement is the grand 
 characteristic of every partnership : Lindley, 1 ; and persons engaged in any 
 trade, business, or adventare upon t^^; terms of sharing the profits and losses 
 to be derived therefrom, are neoessarilv to some extent partners in that trade, 
 business, or adventare, nor is the writer aware of any case in which persons 
 who have agreed to share profits and losses have bean held not to be partners : " 
 lb. 11. 
 
 (t) *< Clarke (derke)." '• 0Uri9u$ is two fold : eeeU$Uutimu (which 
 Littleton here, s. 180, intendeth), and he is either secnlar or regular, so called 
 becanse he is servui et hariditai domini, and laieui, and in this sense is signified 
 a penman who getteth his living in some Ooort or otherwise by the oae of his 
 pen : " Go. Litt., ISOa. 
 
 A clerk or servant is a perscn bound either by express contract or by conduct 
 implying such contract, to obey orders and submit to the control of his master 
 in transaction of the business which it is his duty as such clerk or servant to 
 transact : Steph. Or. 387 ; see 16. to page 340 for cases in illustration. 
 
 A "clerk " is a person employed in an office, public or private, for keeping 
 records, whose business is to write or register in a proper form the transactions 
 of the tribunal or body to which he belongs : Peopw v. Fixe Commissioners, 73 
 N. T., 443 (1878) ; see Boss v. Heathcook, 67 Wis., 96 (1888). 
 
 (tt) "An agent is a person duly authoriaed on behalf of another, or one 
 whose unauthorised act has been duly ratified : " Evans Prin. & Agt. See 
 note (u) to sec. 11, p. 81, ant». 
 
 (v) The words, " or other person," are intended to give to the section a very 
 wide scope and to apply to the aeti of any one who may, in any way, be connected 
 with the holder of the license. 
 
 (10) The phrase, " carrying on," implies a repetition or series of acts : per 
 Brett, L. J., Smith v. Anderson, 16 Oh. D., 347 ; see also re Siddall, 39 Oh. D., 
 1 ; Orowther v. Thorley, 48 L. T., 644 ; Be Thomas, 14 Q. B. D., 379 ; Harris 
 V. Amery, L. B. 1, O. P. 148. To " cany on " a business means, primarily, to 
 carry on one's own business; therefore it eannot be said in reference to a 
 salaried clerk " that he carries on business " at the place where his employer's 
 office is : Lewis v. Graham, SO Q. B. D., 780 ; 8. 0., sustained, W. N. (1888) 
 304 ; Buckley 0. Hann, 6 Ex., 48 ; Sangster «. Kay, 6 Ex., 886 ; Le Taileur v. 
 The South-Eastem By., 8 0. P. D., 18. " The business must be some busi- 
 ness in which he has control, or acts as one of the partners engaged in carrying 
 it on ; " and " a particular clerk or workman who is engaged about the buei- 
 ness, but has no control over it whatever, cannot be said to carry on business : " 
 per Coleridge, 0. J., Lewis v. Graham, ntpra. But " there is no principle of 
 Uw which decides what ' carrying on ' trade is ; a multitude of circumstances 
 make up what is called ' carrying on ' a trade : " per Jessel, M. B., Eriehsen v. 
 Last, 8 Q. B. D., 414. It has been said that the phrase " has been compara- 
 tively little considered or disousMd " (see Siaolair'a Con. D. 0. Aot, 1888, 
 
n 
 
 S. 35.] THE LIQUOR LICENSE ACT. 77 
 
 the business uf a retail dealer (x) in pny other goods, wares 
 
 p. 196), but it is aabmitted thAt it is not 00 mnoh beoaaM there baa been no 
 consideration or disoassion of it, but beoause the authoritiea have been enable 
 to agree upon its meaning, or bmanse it takes so manv different forms that it 
 is impossible to lay down a general rule whioh will apply to all. The definition 
 of the phrase *' to carry on," as given by Worcester, is " to proseente ; to help 
 forward ; to oontiane ; ai to carry on buninett; " and it would seem as though 
 the remarks made by Brett, L. J., in Smith v. Anderson, tupra, might be 
 applied to this as well as any other oases where the phrase is used, and that 
 whatever *' carrying on business " may mean, it implies a " repetition or series 
 of acts," and " that series of acts is to be a series of acta which constitute a 
 business." 
 
 The same principle has been laid down in American cases : see Weil v. State, 
 62 Ala., 20 ; United States v. Jackson, 1 Hughes, 082 (1875) ; Oooper Manuf. 
 Go. V. Ferguson, 118 U. S., 785 (1885;. See also Sinclair's D. 0. Acta, 1879, 8A-88; 
 Stroud's Dix.1., 108-110, 88 Alb , L. J.. 842; Sfatdair's Con. D. 0. Act, 1888, 
 125, 126 ; Anderson's Diet., 189. 
 
 The licensee is not prohibited from carrying on a retail bnsineaa upon other 
 premises unconnected in any way with thoae to which hia license applies. But, 
 see note (q), aec. 86. 
 
 (x) The holder of a " wholeaaU licenae " la not compelled to confine hia 
 basiness exclusively to the selling and keepina of liquors aa the holder of a 
 " shop licenae" is; but he must not, either himaelf or by any partner, clerk, 
 agent or other person, carry on buaineaa aa a retail dealer in any other gooda, 
 eto. The notea to aec. 84 ahew in a general way what a " wholeaale dealer " 
 is, and it ia important to know what the strict legal definition of a " retail 
 dealer " may be. It haa been held, in the United Statea, that a retail dealer ii 
 one who aella by amall quantitiea, to suit cuatomera, artidea whioh are bought 
 in larger amounts : State v. Lowenhaught, 11 Lea, 16 (1888) ; Webb v. State, 
 11 Lea , 664 (1688). To •< retail" is to sell in small quantities ; to sell by 
 small parcela or quantitiea, and not in groaa, aa to aell half a pint of alcohol at 
 once : Commonwealth v. Kimball, 7 Meto., 808 (1848) ; Bridges v. State, 87 
 Ark. 226 (1881). 
 
 To constitute the offence of carrying on the busineea of a retail liquor dealer 
 without having paid the tax required by United States law, the accused must 
 have procured the liquor sold with intent to retail it, or, having it on hand, 
 formed the intent to retail it, and carried out that intent by one or more acta : 
 United Statea v. Bonham, 81 F. B., 808 (1887). 
 
 Oratnitonaly distributing ardent spirits at a public gaming table doea not 
 constitute the keeper of the table a retailer of spirituous liquors : United States 
 V. Miokle, 1 Oranoh. 0. 0. 268 (1808). 
 
 " As a general rule whoUiale merchants deal only with persons who buy to 
 sell again, whilst retail merchants deal with conaumera : " per Baoon, Y. 0., 
 Treacher v. Treacher, W. N. (1874) 4. Wharton deflnea " retail " " to aell in 
 small parcela, and not in groaa." A wholesale and retail aale of liqaora is 
 defin«d by the Act, aee aec. 2. 
 
 For the purpoae of the English Licensing Acta the aale of beer, cider or perry, 
 in any leaa quantity than four and a half gala, ia selling by retail ; but as re- 
 gards spirits, there is no definition in the Acts, so that each case must be 
 decided on its own circumstances : Paterson's L. A. 6. By 6 Oeo. 4, c. 81, a 
 retailer of beer is defined as, " every person, not being a brewer, who ahall aell 
 strong beer only in caska, containing not leaa than four and a-half gallona, Ln- 
 perial standard gallon measure, or in not less than two doien reputed ^uart 
 bottles at one time to be drunk and consumed elsewhere than on hia, her, or 
 their premiaes," and it waa held that if the quantity sold at one time be four 
 
 
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 78 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 35. 36- 
 
 Monufao- 
 turen of 
 native 
 wioe. 
 
 or merchandise, (y) R. S. O. 1877, .. 181, s. 26. 
 
 3€l« Manufacturers (z) of native wines, (a) from grapes 
 grown and produced in Ontario, (^) and who sell such 
 wines in quantities of not less than one gallon, or two bottles 
 of not less (c) than three half-pints each at one time, [to be 
 sviiolly removed and not drunk upon the premises], (d) shall 
 
 and a-half gallons or more, it is not sold " by retail," tbongh it be delivered in 
 pint or half pint bottles : Fairolough v. Roberts, 24 Q. B. D., 850. See also 
 Shoolbred v. St. Panoras Jus., 24 Q. B. D., 846; Jones v. Bone, L. B. 9, Eq. 
 674 : Fuokle v. Frederioks, 44 Ch. D., 244. 
 
 {y) bee note (»), seo. 83. 
 
 (e) A person who mixes by boiling together drags to form a nostmm is not 
 a manafaoturer ; but a person wlio oonverts several things into articles of farm 
 or domestic ase, so that a new article is formed, is: per Smith, G. J., 
 N. 0. Sup. 0., May 7, 1888, State v. Morrell, 88 Alb., L. J. 869. Worcester 
 a> J defines *' manufacture " as " the process of making any thing by art, or of 
 reducing materials into a iorm fit for use by the hand or by machinery," and 
 « manufacturer " as " one who manufactures." For other authorities on the 
 meaning of the word, see Morgan v. Seaward, 2 M. <!; W., 668 ; B. v. Wheeler, 
 2 B. <& Aid., 849 ; Anderson's Diet., 664. 
 
 (a) " Native wines," as here described, are those manufactured from grapes, 
 grown and produced in Ontario. Worcester defines " native " •■ " that which 
 grows iu the country." See dso Whitstable Free Fishers v. Elliott, W. N. 
 (1888) 27. 
 
 (6) The words, "grown and produced," imply nearly the same thing: 
 "grown " means " raised or produced by cultivation," and " produced " means 
 "brought forth; borne; yielded." See Worcester, 186; see also Warren v. 
 Peabody, 8 0. B., 800. * 
 
 (e) " Not less " means " nothing less." So that no quantity less than one 
 gallon, or two bottles containing not less than three half pints each, can be 
 sold at one tirae. 
 
 (d) This clause is added by 62 Vic. c. 41, s. 2. A person licensed to sell beer 
 by retail " to be drunk or consumed off the premises," who supplied a pint of 
 beer to a traveller who sat upon a bench placed and fastened agidnst the wall of 
 the house, returning the mug in which he was served, was he^d to have been 
 properly convicted of selling beer to be drunk on the premises : Gross v. Watts, 
 13 C. B. N. S., "" 
 
 A person licensed to sell beer not to be drunk on the premises, whose servant 
 handed beer in a mug through an open window to a person who, after paying 
 for it, drank it immediately, standing on the highway as close as possible to the 
 window, was held to be improperly convicted of selling beer on the premises : 
 Deal V. Schofield, L. B. 8, Q. B. 8. In another case the beer was sold to a 
 person who carried it across tlie highway to a cottage about fourteen yards from 
 defendant's premises, and handed the beer to a person who was standing in his 
 own garden, who drank some of it, returning the rest to the purchaser and 
 others who drank it standing close to the wall. The jug was refilled and the 
 beer drank several times in this way. The defendent received the money on 
 each occasion and saw, or might have seen what was going on ; and it was held 
 this did not justify a conviction for permitting drinking on the premises : Bath 
 V. White. 8 G. P. D., 176. 
 
 Where defaodant had two shops, a grocer's and a draper's, which formed 
 part of his house, and both could be entered from the house at the back, as 
 
ss. 36, 37.] 
 
 THE LIQUOR LICENSE ACT. 
 
 79 
 
 be exempt (e) from any duty under this Act, and shall not 
 be required to obtain any license for so selling wines so 
 manufactured. R. S O. 1877, c. 181, s. 27. Amended 
 by 52 Vic. c. 41, sec. 2. 
 
 TRANSFER OF LICENSES. 
 
 39* (i) In case any person (/) having lawfully Transfers 
 obtained (^) a license (^) under this Act before the expira- licenses, 
 tion of his license (/') dieSj or sells, or by operation of law 
 or otherwise assigns (J) his business, or removes (k) from 
 the house or place in respect of which the said license 
 applies, his license shall, ipso facto (/), become forfeited, 
 
 well as the castomers' entranoe. The grocery businesa had an entrance for 
 onstomers on one street and the draper's a castomers' entranoe on another 
 street. Daring the day there were means of going, and castomers occasionally 
 p<4<>«ed, from one shop to the other, bat after ten o'clock shatters of partitions were 
 pat up, and all means of commanication, except throagh the hoase, prevented. 
 It was held defendent coald not be convicted of having the hoase open for the 
 sale of liquor after ten o'clock at night : Brigiien v. Heighes, 1 Q. B. D., B80 ; 
 flee also B. v. Palmer, 46 U. 0. B., 262. See notes to sec. £4. 
 
 («) This provision is evidently intended as "an enoonragement of home 
 industry." '* Exempt " means " free from :" see Attorney-Oeneral v. Fitzjohn, 
 
 2 H. & N., 465. Ilie exemption only applies to the kind and qaantity of wine 
 mentioned in the context, and if not strictly observed the seller will be liable to 
 the penalty for selling without a license ander sees. 49, 70. 
 
 (/) See note {g) p. 28, anXe. 
 
 (g) '* Lawfully obtained " means comformably or agreeably to law, that is, in 
 compliance with the provisions of this Act : See Worcester. 
 
 (A) See sec. 2. This applies to all licenses issued in pursuance of this Act. 
 
 (i) The license expires on the 30th April in each year ; see sec. 8, ss. 1. 
 
 ( j) The provision made here is wide enough to cover any case of a licensee 
 becoming divested of his interest in the business ; if he di<>5, his legal represen- 
 tatives must apply to and obtain the consent of the Licence Oommissioners in 
 the manner set out below ; if he sells, it is the duty of the purchaser to obtain 
 such consent. The holder of the license may become divested of his interest 
 in the business by virtue of some legal process, as in the case of a sale of the 
 business nnder an execution. A lease is said to be surrendered by act and 
 operation of law, when the lessee has been a party to some act, the validity of 
 vhioh he is estopped from disputing and which would not be valid if his lease 
 had continued to exist : See Sinclair's L. &, T., 89. But the meaning of the 
 phrase here has, it is submitted, a much more extensive meaning than this and 
 extends to any case in which the licensee has ceased to be the owner of the 
 business, by reason of any legal process or proceeding: See B. v. Booth, 
 
 3 0. B., 144, cited below. 
 
 (fc) A license applies only to the particular premises described in it and to 
 which it applies. The licensee mast also be the true owner of the bnsiness, 
 and so it is provided that if he ceases to be the owner of the business or 
 removes to other premises, his license becomes void. 
 
 \i) '•'• Ipso faeto" was originally a phrase applied to a oenture of excommuni- 
 cation in the Eoclesiastioi^ Oonrts immediately incurred for divers offences 
 
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 8o 
 
 THE LIQUOR LICENSE ACT. 
 
 b' 37- 
 
 and be absolutely null and void to all intents and purposes 
 whatsoever (w),-^unless such person («), his assigns, (««) or 
 'egal representatives, within one month {o) after the death, 
 
 after lawful trial. It means ' ' by the very aet itself," and therefore no proceeding 
 of any kind is neeessary to annul the Uoense in any of the events specified. It 
 becomes void of itself Uie very moment the event takes Dlaoe, unless tiie consent 
 of the License Commiasioners is obtained in the mann«.j provided and at the 
 time specified. 
 
 (m) The word "forfeit" is defined in Dr. Johnson's Dictionary to be: 
 ** Something lost by the commission of & crime ; Something paid for the expia- 
 tion of a crime; a fine; a mnlct;" and the verb "to forfeit" is defined to 
 mean, " to lose by some breach of condition ; to lose by some offence." 
 
 The word " forfeit " means not only the actnal taking away of the property 
 on breach of a condition, bat also the doing or suffering the thing which creates 
 a liability to such deprival : re Levy, 80 Oh. D., 119. It involves the idea of 
 permanent loss or liability thereto : Kensington v. Mansell, 18 Yes., 246 ; 
 Twining y. Muscott, 12 M. St W., 882 ; Dimes v. Grand Junction Canal, 9 Q. B., 
 469. A clause of forfeiture in a law is construed differently from a similar 
 clause in an engagement between individuals. A Legislature always impoBes 
 a forfeiture as a punishment ir^flioted for a violation of some duty enjoined by 
 law, whereas individuals commonly make it a matter of contract : Maryland v. 
 Baltimore, etc.. By. Co., 8 How., 662 (1846). Where an absolute forfeiture is 
 the penalty, title accrues to the Qovemment when the penal act is committed : 
 re The Mary Celeste, 2 Low., 866 (1874). 
 
 Whc e an enactment has some object of public policy in view which rtiqnirea 
 the strict construction, the word " void " receives its natural full force and 
 effect : Maxwell, 266, 267, citing per Bayley, J., B. z>. Hipswell, 8 B. & C, 471. 
 See note (y) to sec. 16, ante. 
 
 When an instrument is " void " it is so nugatory and ineffectual that nothing 
 can cure it: Wharton, 768. The word "null" is defined by Worcester to 
 mean " void ; of no legal force ; ineffectual ; invalid ; useless ; " and the 
 expression " absolutely null <md void " means that, in the fullest sense, the 
 license Rhall become inoperative, nu^Atory, ineffectual, and of no legal force ; 
 and the expressioo, " to all intents and purposes whatsoever," which foUovg, 
 if it can be said to add anything to the effect of that which precedes it, indues 
 it with all the force thst can be expressed in words, see Phillpotts v. PhiUpotts. 
 10 0. B., 86 ; re Toomer, ex parte Blaiberg, 23 Ch. D., 264 ; Davies v. Bees, 17 
 Q. fi. D., 408 ; Davies v Goodman. 6 G. P. D., 128 ; re Burdett, 20 Q. B. D , 
 310, and other cases cited in Stroud's Diet., 866-868. 
 
 (n) " Unless " is, probably, of like value as " except " in creating a condition 
 precedent : re Dickinson, ex parte Bosenthal, 20 Ch. D., 316 ; see also B. v. 
 Bridgnorth, 10 A. <& E., 66. The condition precedent created here is the 
 obtaining of the consent of the Lioense Commissioners to the transfer after the 
 death, assignment, or removal of the licensee. 
 
 [nn) Assigns are persons who become by act of the party or operation of law 
 entitled to rights or property theretofore vested in some other person. A 
 devisee, an heir, executor, and an administrator, have each been held to be an 
 assign : How v. Whitfield, 1 Tent., 388 ; Titley v. Wolstenholme, 7 Beav., 425 ; 
 Hall V. May, 8 E. <& J., 685. A purchaser is, of course, an assign : Hoole v. 
 Smith, 17 Oh. D., 484. An execution creditor is also, under some circumstan- 
 ces, an assign : Rf kVbott and Medoalf, 20 0. B., 299; Commercial Batik v. 
 Watson, 6 L. J., 163 ; see also Stroud's Diet., 66. 
 
 (o) See note (r) p. 24, ante. The application to the License Commissioners 
 should be made within one month, although the time for granting the consent 
 
[s. 37- 
 
 37-] 
 
 THE LIQUOR LICENSE ACT. 
 
 8l 
 
 assignment, or removal of the original holder of such 
 license, or other period, in the discretion of the License 
 Commissioners of the district in which the license has 
 effect, obtains their written consent (/) either to the cor . 
 tinuance (g) of the said business or to the transfer of such 
 license to any other person, and thereupon (r) forthwith (s) 
 transfers (/) the same to such other person, who, under 
 
 may be extended by the Liuense Oommisaioners for Buoh other period in their 
 diseretion. The GommiBsioners may al»o, if they see fit, extend the time for 
 making the appUoation. 
 
 {p) The consent here required is obtained on an roplioation for a transfer, 
 wbion mast be filed with the InBpeo;k>r, see snb-Beo. 6. 
 
 " As to what is a written consent: " See West v. Dobb, L. B., 6 Q. B., 460. 
 In an Aot of Parliament, expressions referring to writing, shall, unless the con- 
 trary intention appears, be construed as including words printed, painted, 
 engraved, lithographed or otherwise traced or copied: Interpretation Act, 
 
 860. 8, SB. 14. 
 
 The consent should be signed by the License CommissiouerB. 
 The consent of the License Oommissioners does not of itself validate a 
 transfer of a license : See B. v. Booth, 8 0. B,. 144. 
 
 {q) The business may be continued in the place for which the license was 
 originally issued in the name of the original licensee, or it may be transferred 
 to some other person and the busineas continued by him, in the house or place 
 to which it applies, but no other. 
 
 (r) Upon obtaining the consent of the Oommissioners, the license is to be 
 " forthwith " transferred. 
 
 (s) " Forthwith " is to be construed according to circumstances, but it may be 
 said to mean with as little delay as possible ; with all reasonable celerity : 
 Roberts v. Brett, 20 0. B. N. S., 148 ; Burgess v. Boetefeur, 7 M. & G., 494 ; 
 Re Southam, ex parte Lamb, 19 Ch. D., 169 ; Furber v. Gobb, 18 Q. B. D., 494 ; 
 B. V. Price, 8 Moo., P. G. 0., 203; Lowe v. Fox, 16 Q. B. O., 667; affirmed 
 12 App. Gas., 206. But where a consequence is *' forthwith " to follow on an 
 event, the word imperatively excludes a time within which something else may 
 be done, inconsistent with that conaequenee ; thus where a Statute provided 
 that a Town Council, on receiving the resignation of a person elected to a cor- 
 porate office, is " forthwith " to daclare that office vacant, the resignation 
 cannot be withdrawn : B. v. Wigan, 14 Q. B. D., 908. 
 
 (t) The verb " transfer " is one of the widest terms that can be used : per 
 James, L. J. , Gathercole v. Smith, 17 Gh. D., 1. A "transfer," e.g., of a 
 debt, does not necessarily mean Absolute Transfer: per Gotton, L. J., re 
 Combined Weighing Go., 48 Gh. D., 104. The definition of the verb "to 
 transfer," as given by Worcester, is : (1) "To carry, remove, or pass from one 
 place or person to another ; to transport ; (2) to make or pass over ; to con- 
 vey as a property or right ; to consign." Ajid the substantive, as : (1) " The 
 aot of trunsferring ; removal from one place or person to another ; (2) the 
 delivery or conveyance of property, right or title to another." The meaning of 
 the word, as used here, is to convey or pass over the right of one person to 
 another. Under the English Licensing Act, 1872, sec. 2, the appeal to Quarter 
 Sessions created by ss. 27, 28 and 29, and 9 Geo. 4, o. 61, is repealed except in so 
 far as they relate to the Benewals of Licenses or to the Transfer of Licenses. 
 The tenant of a licensed house gave it up on 29th Sept., and in the meantime, 
 having received notice of opposition, purposely neglected to apply for a renewal 
 
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 !-K !■: 
 
 .1 .'f i ■' 
 
 
 83 
 
 THE LIQUOR LICENSE ACT. 
 
 [s- 37- 
 
 such transfer, may exercise (u) the rights (v) granted by 
 such license, subject tc all the duties and obligations of 
 the original holder thereof, until the expiration thereof (w), 
 in the house or place for which such license was issued and 
 to which it applies (x), but in no other house or place (y). 
 
 of the license. The inooming tenant applied for a lioense at the next Special 
 SesBionB ; this was refused and he appealed. Held, that the application was 
 not for a new license, bat for a Renewal or Transfer, and therefore the right of 
 appeal was not taken away : Thornton v. Olegg, 24 Q. B. D., 182. 
 
 (u) " To exercise " means <* to porsae, carry on ; and to pat in ase, as to 
 exercise aathority." Bee Worcester, 616. 
 
 (v) " Bights " signifies those qaalities in a person by which he can do cer- 
 tain actions, or possess certain things which belong to him by virtue of some 
 title or authority : see Worcester, 1289. The rights to be exercised here are 
 those which apply to the sale of liquor in the manner specified in the license. 
 See also note {li p. 22, ante. 
 
 (to) The time for expiration in every case is 80th April. See sec. 8, ss. 1. 
 
 («) See note (9) tupra. 
 
 {y) See note (9) to sec. 17. 
 
 Upon the sale of a public house as a going oonoem, it is of the essence of the 
 contract that the license of the house be transferred : Day v. Luhke, L. B. &, 
 Eq. 886 ; and therefore, when, upon the day for the completion of the contract, 
 the vendors were not in a position to transfer the license, the purchaser was 
 held entitled to repudiate the contract: Oowles v. Oale, L. B. 7, Gh. 12; 
 Ckydon v. Green, L. B. 8, 0. P. 511 ; Modlin v. Snowball, 29 Beav., 641. 
 
 Where the executors of the owner of a public house renewed the license in 
 the name of the deceased owner, it was held that the lioense was absolutely 
 void : Gowles v. Gale, supra. There is no covenant implied in a parcl demise, 
 that the leasee will not suffer any thing tP be done whereby the license shall 
 become forfeited : Maw v. Hindmarsh, 28 Jj. T., 644. A covenant by the lessee 
 of a tavern that he would do nothing to endanger the license can be enforced 
 by the assignee of the reversion, but there* is no breach of it in selling liquor 
 after hours, if the conviction is not endorsed on the license as required by the 
 English Licensing Acts: Fleetwood v. Hull, 28 Q. B. D., 85. A, being the 
 keeper of ait hotel without a license, and B being cognizant of that fact, upon 
 the transfer of the premises to B, £160 were deposited in the hands of a stake- 
 holder to be handed over to B if A failed to procure and transfer a license. B 
 having faUed to give notice and attend the Magistrates on tho licensing day, 
 was held not entitled to recover the £150: Bryant v. Beattie, 4 Bing. N. C, 
 264. 
 
 The defendant and his brother were carrying on business as Booth Bros, 
 and had a license in the name of t'.he firm to sell intoxicating liquors. Before 
 the nomination of members of the Farkdale Council, the defendant, with the 
 consent of the License Gommissioners, transferred his interest in the license 
 to his brother in order to qualify as a Gouncillor, but the business continued 
 as before : Held, that a license cannot lawfully be transferred except in the 
 cases mentioned in this section, none of which had occurred here, that the 
 conseui. of the Gommissioners did not validate the transfer, and therefore the 
 defendant retained his interest in the license and was disqualified : B. v. Booth, 
 8 0. B., 144 ; 9 P. B., 452. See aUo R. v. Conway, 46 U. G. R., 85. 
 
s. 37.J 
 
 THE LIQUOR LICENSE ACT. 
 
 83 
 
 (2; In every such case of a transfer {z) of a tavern license, ^° of""' 
 the person in whose favour any such transfer is to be made Jj^g®" 
 shall first produce (a) to the License Commissioners a "'^^ 
 report of the Inspector similar (d) to that mentioned in sec- neoesaary 
 tion II of this Act (c). R. S. O. 1877, c. 181, s. 28. 
 
 (3) Upon receipt (d) by the Inspector of an application ^ovi- 
 
 for a transfer of a license, and pending (e) the consideration noneent 
 
 and consent thereto by the Board of License Commis- Jerof 
 
 uoenBe. 
 sioners, the Inspector may (/) within one month (g) 
 
 thereafter, {A) issue to the proposed transferee a written 
 provisional consent in the form Schedule M to this Act 
 annexed, under which the proposed transferee may exercise 
 the rights granted by the license issued to the premises 
 until the written consent (1) of the Board of License Com- 
 missioners may be obtained: provided always that such 
 written consent shall not operate or extend beyond one 
 month from the time of the death of the original licensee 
 or from the sale or transfer by the licensee or by operation 
 of law ; and provided further that such provisional consent 
 
 (z) " Tn.x8fer," see note (() ntpra. 
 
 (a) To " p^odaoe " meani " to bring forward ; to offer to view ; to shew." 
 Worcester, 1186. 
 
 (6) See see. 11, sab-seo. 1 and notes thereto. 
 
 (e) The Inspeotor mast report that the applioant is a fit and proper person to 
 have a license, and (in case of a tavei 1 license), has all the accommodation 
 reqaired by law, and is known V> thr Inspector to be of good character and 
 repute. See the notes to sec. 11, sab-eeo. 1. 
 
 (d) " The words ' on ' or ' npon,' it-has been decided, may either mean before 
 the act done to which it relates, or simoltaneonsly with the act done, or after 
 the act dona, according as reason and good sense require with reference to the 
 context and subject-matter of the enactment," per Denman, 0. J. : B. v. Ark- 
 wright, 12 Q. B , 970 ; B. v. Humphrey, 10 A. A E., 836. See Add. on Con., 
 EdBon Ed., 191. 
 
 (e) A legal proceeding is pending as soon as commenced and until it is con- 
 cluded : See Stroud's Diet., 676. Therefore, the application for a transfer is 
 pending from the time of its receipt by the Inspector, until finally disposed of 
 by the Commissioners. But this period must not exceed one month from the 
 time of the death of the original licensee, or from the sale or transfer by him 
 of the license. 
 
 " Consent," see note (0) to sab-seo. 1. 
 (/) This provision is optional. See note (0) to see. 4. 
 (g) See note (r) p. 34, ante. 
 
 {h) As to the meaning of " thereafter," see re Manning, 29 S. J., 683 ; 
 Stroud's Diet., 802. It refers here to the date of the receipt of the application. 
 
 (i) See note (d) see. 8. 
 
 
 
 
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 84 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 37, 38. 
 
 (j) shall not have any force or efTect, unless the same be 
 countersigned by one member of the Board (k). 44 Y., 
 c. 27, s. I. 
 
 ^■^tor ^4) Whore an application is made for a transfer of a 
 
 S^Med ^'^*^"5^ issued to a tavern or shop situate in a remote part 
 
 with. of the license district, or where for any other reason the 
 
 License Commissioners see fit, they may dispense with the 
 
 report of t..'' Inspector, and act upon such inform^ition as 
 
 may satisfy them in the premises (/). 47 V., c. 34, s. 7. 
 
 REMOVAL OF LICENSEE. 
 
 may^ra' ^®* ^'^ "^"^ inspector (w) may, («) after resolution (o) 
 
 "* *fti ^^ ^^^ license commissioners allowing the same, endorse (/) 
 
 of tavern ©n any tavern or shop license permission to the holder 
 
 another thf.reof, or his assigns or legal representatives, to remove 
 
 from the house to which his license applies to another 
 
 house to be described in the endorsement to be made by 
 
 the inspector on the license, and situate within the same 
 
 municipality, and possessing all the accommodation required 
 
 by law. if) 
 
 (j) A " Provisional" oonsent is a temporary one, provided for present ne<4, 
 or for the time being : Worcester, 1147. The consent hereby provided for is 
 to operate only daring the time the application for the final written consent of 
 the License Oommissiocers is pending, and is not to exceed one montl in 
 duration from the date of the death of the original licensee, or from salit or 
 transfer of the business. 
 
 (k) " To countersign " means to authenticate a document whioL hsa slrAitdy 
 been signed by the signature of another ; the provisional consent must be signed 
 by the Inspector and authenticated by the signature of at least one of the License 
 Commissioners, and until this is done it has no force or effect. 
 
 (I) The provision made in this sub-section is the same as that contained in 
 sec. 11, ss. 4. See notes to next sub-section. 
 
 (in) " Any Inspector." See note (0) to sec. 11, ss. 12 ante. It should be 
 noted that &e expression used is " any Inspector ; " not the Inspector for the 
 license district in which the premises ore situated, though the latter is, no 
 doubt, intended. 
 
 (n) See note (0) to sec. 4. 
 
 (0) See note (p) to sec. 4; see also note (x), seo. 21. 
 
 (jp) A dureotion to " endorse" anything on a document means, as^a general 
 rule, to write it on the back of the document : Akers v. Howard, 16 Q. B. D., 
 789 (a decision on the Ballot Act). But this definition is not of universal appli- 
 cation ; for it is not essential to the validity of an endorsement on a Bill of 
 Exchange or Promissory Note that it should be on the back of the document : 
 Byles on Bill, 14 Ed., 171. In the case of an endorsement upon the license, 
 however, it should be written on the back of the document. 
 
 (9) The license applies only to a particular place described, and the death, 
 
ss. 38, 39-] 
 
 THE LIQUOR LICENSE ACT. 
 
 85 
 
 (2) Such permission, (r) when the approval of the in- j^gj"***^ 
 spector is endorsed on the license, (s) shall authorize the oonwn*- 
 holder of the license to sell the same liquors in the house 
 mentioned in the endorsement (/) during the unexpired 
 portion of the term for which the license was granted, («) 
 in the same manner, and upon the same terms and condi- 
 tions ; but no such permission shall be granted unless and 
 until (v) the person applying therefor has filed with the 
 license commissioners a report of the inspector containing L 
 
 the information required by law in case of application for 
 a license, and any bond or security (w) which such holder Bond to 
 of a license may have given for any purpose relative to such ' 
 
 license, shall apply to the house or place to which such 
 removal is authorized, but such permission shall not entitle 
 him to sell at any other than this on*, place. R. S. O. 1877, 
 c. 181, s. 29. 
 
 SO* Where the inspector (x) is required, (y) in the M^lS**^,^ 
 
 assignment, or removal of the original holder of snoh lioonse operates as a for- 
 feitare of the license under see. 87, ss. I, nnless the consent of the Gommis- 
 sioners is obtained, as provided in thr.t section, or unless permission is first 
 obtained from the License Commissioners under this section. The difference 
 between sec. 87 and this one is, that the former provides for the transfer of 
 the license to a person continuing the business in the premises to which it 
 applies, and this section for the transfer to other premises. See note (k), p. 21, 
 ante. 
 
 (r) " Snoh permission " refers to the permission of the License Gomriissioners 
 mentioned in the last sub-sec. 
 
 (1) 'Ihis section is very loosely framed. It is not expressly stated that the 
 approval of the Inspector for the license district in which the premises are 
 sitaated is reqnirtid. But the word " when," like " if," is ordinarily a word of 
 condition, or of conditional limitation, and, as used here, imports that the 
 approval of the Inspector is a requisite condition. See Jolly v. Hancock, 7 Ex., 
 820, and other cases cited in Stroud's Diet., 879. 
 
 (() The permission here granted, like the license itself, applies to a particular 
 place, and only authorizes the sale of liquor in that place. 
 
 (u) " During the unexpired portion of the term for which the license was 
 granted," would be from the date of the permission to the following 80th April. 
 
 {v) " Unless and until." These words create a condition precedent, which, 
 in this case, is the report ut the Inspector, as in sec. 11, sub-sec. 1. (See notes 
 thereto) ; and the report must be ddivered to the License Oommissioners before 
 this permission is given. 
 
 (w) " Bond or security." The security required in case of a tavern license is 
 provided for in sec. 80, and that for shop license, in sec. 81. See notes to these 
 sections. 
 
 (x) This section is intended to make provision for payment of the Inspector's 
 expenses in the case of a necessary inspection previous to the transfer or 
 removal of the license under the last two sections. 
 
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 THE LIQUOR LICENSE ACT. 
 
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 in Mrtain *^^^® °^ ^" application for leave to transfer or remove a 
 oasM. license, to make an inspection, under the next preceding 
 two sections and to travel, in order to make such inspection, 
 a distance of more than three miles from his office or resi- 
 dence, (2) the person making such application for a transfer 
 or removal, shall pay (a) to the inspector, in addition to all 
 other fees, (b) the sum of ten cents per mile, one way, (c) 
 for his travelling expenses, and the same shall be deposited 
 by the inspector to the credit of the license fund ; {d) but 
 the inspector may be allowed the same, {e) or so much 
 thereof as is necessary to pay the actual cost (/) of his 
 travelling expenses in order to make such inspection, upon 
 his accounts being rendered and approved in the ordinary 
 manner ; (^) but this section shall not apply to city license 
 districts, (h) 44 V. c. 27, s. 18. 
 
 (y) The Inspector mast famish a report in every case of a removal : see note 
 to see. 88 above ; bat in the case of a transfer the report may be dispensed 
 with under sab-sec. 4, see. 87. There is no provision making an inspection 
 V iispensable, thoagh the Inspector vonld scarcely be performing his daty 
 properly were he to report without making sach an inspection as would enable 
 him to speak from personal knowledge of tiie facts reported. 
 
 (c) •• O^ce or residence." See sec. 11, ss. 20, and notes thereto. 
 
 (a) See Interpretation Act, sec. 8, ss. 2, and section 8, note (I), ante. 
 
 (b) By section 41, ss. 6, the fees payable for every transfer or removal is 96 
 and the mileage, as provided ta this section. 
 
 (e) It is not very clear as to whether the Inspector is entitled to charge for 
 more thaii one trip, but probably if more than one be made necessarily, he would 
 be entitled to the mileage on each. See Sinclair's D. 0. Acts 1879, 844, and 
 D. 0. Act. 1886, 108-129. 
 
 (d) See sees. 46, 46. 
 
 (e) The license fund is under the control of the License Oommissioners and 
 Inspector, subject to the regulations of the Lieutenant •Qovemor-in-Gounoil. 
 The Commissioners are given discretion here as to whether the Inspector shall 
 be paid the mileage received for the necessary inspection, or such part of it as 
 may be necessary to pay his actual travelling expenses, or oost of inspection. 
 
 (/) " The word ' actual ' does not usually advance the meaning. Speaking 
 generally, a thing is not more itself because it is spoken of as < actual,' nor an 
 act more done or enioined because it is said, or required to be ' actaally ' done: " 
 Gladstone v Fadwick, L. B., 6, Ex., 203. The " actual cost " of his travelling 
 expenses, means railway fare, or if the place to be inspected is not accessible by 
 railway, then the hire of a conveyance, but it must not exceed the allowance 
 made for mileage. 
 
 (tr) By sec. 117, ss. 2, the mileage or other expenses shall be verified by the 
 oath of the Inspector, and by ss. 8 of the same section, he is required to make 
 quarterly returns in detail, under oath to the department of the Provincial Sec- 
 retary, of all sums received by him for mileage and other expenses in that 
 section provided for. 
 
 (A) No provision is made for payment of mileage and expenses to the Inspec- 
 tor of city license districts. 
 
s. 40. J 
 
 THE LIQUOR LICENSE ACT. 
 
 WHERE LICENSE LAPSES. 
 
 87 
 
 How 
 
 40* In case for any cause (1) the license becomes uoenBei 
 void (j), or in case the term or interest (k) of the holder of granted 
 a license in the premises licensed (/) ceases before the laeawbera 
 expiry of the license (m), or if such licensee absconds (;i) cause the 
 or abandons {0) the premises, or becomes insolvent (/), the beoomes 
 
 void, etc. 
 
 (i) Ab to the meaning and effect of " any," see note (0), aeo. 11 , bb. 12. " CaoBe " 
 as used here maBt be taken to mean anything whioh, under the proviRions of the 
 Act, prodaoea the effect of annulling the ''oonae. The word meana '* that 
 which produoea or effeota a reault; that frc.u which anything proceeds, and 
 without which it would not exist :" Webster's Diet. See see. 83, ss 2 ; sec. 8S 
 BM. 87, SB. 1 ; sec. 69, ss. 2 ; sec. 71, ss. 1 ; 
 which lead to the forfeiture of licenses. 
 
 sees. 76, 79, 83 and 91 for causes 
 
 " License " here means any license. 
 
 {j) See note (m), see. 87. 
 
 (k) The word " term " may signify either the time or the estate granted : 
 Green v. Edwards, and other oases cited in Woodfall, 144. The word " term " 
 means not only for the interest but for the time : Green v. Edwards, Oro. Eliz. , 
 216 ; Cotter v. Richardson, 7 Ex., 161. 
 
 The legal meaning is : " A limitation of an estate to a certain period, as for 
 life or for years ; an estate or interest conveyed for a certain time or limited to 
 a certain period of time :" Bnrrill, cited in Worcester, 1490. 
 
 A term is usually created by a deed or specialty contract called a lease or 
 demise under the common law : Wharton, 723. 
 
 " Interest " means any estate, right, or title in realty : Wharton, 386. See also 
 Stroud's Diet., 896-398. 
 
 ({) The expression "licensed premises" was construed to mean premises 
 open to the public for the sale of drink under the provisions of the Act : Lester 
 V. Torrens, 2 Q. B. D., 403. But property is frequently spoken of, as it is here, 
 as " premises " without a preceding description or mention of it, and may be 
 taken to mean houses ; when used in connection with other words, as a mansion, 
 house, garden, and premises, it is as nearly as possible synonymous with appur- 
 tenances: see Lethbridge v. Lethbridge, 4 D. G. F. & J., 85 ; Bead v. Bead, 
 W.N. (1866), 886; Hemming v. Willetts, 7 G. B., 709; Stroud's Diet., 610; 
 Wharton, 676. See also sec. 2, ss. 2. 
 
 (m) The " term or interest " of the licensee may cease (t. «., be determined) 
 in a number of ways. If he is the tenant his interest would expire at the ex- 
 piration or on the determination of his leaBe. It would also " cease " on his 
 death or assignment, or on the disposal of the premises as specified in section 
 37, and, in any such event, unless the consent of the License Commissioners to 
 the continuance of the Ucense is obtained, the license will become void. 
 
 (n) The legal meaning of the term " absconds " is " to so out of the jurisdic- 
 tion of the Oourts, or to lie concealed in order to avoid any of the processes." 
 Wharton, 6. 
 
 (0) "To abandon the premises" means to give up, relinquish, or forsake 
 them. See Worcester, 2. It is used here in its ordinary and natural sense. 
 
 (p) A man is in " insolvent circumstances," not only if he is *' behind the 
 world if an account were taken, but insolvent to the extent of being unable to 
 pay just debts in the ordinary course of trade and business : " per Willes., J., 
 B.Z/. Saddlers' Go., 10 H. L. Gas., 404; Teale v. Tonnge, McGl. <fc Y., 497. 
 "In8olvency"i8the8tateof one whohas not property sufficient for the full 
 
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 THE LIQUOR LICENSE ACT. 
 
 [S. 40. 
 
 License Commissioners may grant a new license (^) for the 
 same premises (r), subject to the provisions of this Act, 
 upon such terms (s) as to the payment or refund (/) by the 
 new licensee of the duty for the unexpired period to the 
 person entitled thereto under the original license, .is to the 
 License Commissioners may seem just. R. S. O 1877, 
 c. 181, s. 30. 
 
 payment of his debta. An " insolvent," sa dlatingaiahed from » " banknipt," 
 waa said to be an inaolvent who waa not a trader ; for originally only a trader 
 ooold be a bankrupt in the aenae of obtaining an abaolate diaoharge from big 
 debta, while the future eatate of an inaolrent remained liable for hia debta even 
 after bia diaoharge : Wharton, 878. 
 
 Under a by-law of the " Toronto Btook Exchange " it waa provided that a 
 member beooming bankrupt or inaolvent ahould not be able to take hia aeat u 
 a member of the Uorporation, or be preaent at any meeting thereof ; and auoh 
 aeat ahould revert to the Corporation to be sold by them, etc. Under thia by- 
 law it waa claimed that a member who waa offering to oompromiae with big 
 oreditora waa inaolvent within the meaning of the by-law, and hia name was 
 struck out of the. liat of members ; but it waa held that the inaolvenoy under 
 the by-law did not refer to a oon'iit.on of inaolvenoy. but to a definite act of 
 insolvency under a Bankrupt or Insolvent Act, «. g. by an assignment or the 
 issue of a writ of attachment, and therefore the member did not come within 
 its terma : Temple v. The Toronto Stock Exchange, 8 0. B., 706. 
 
 It was aaid by McLean, 0. J., in Sutherland v. Nixon, 31 U. 0. B., 629, at 
 page 638: "It does not neceaaarily follow becanae a man ia unable on a par- 
 ticular day to meet his debta and pay them in money, that he is therefore 
 insolvent:" see also Hersee v. White, 29 U. C. B., 232. See also Bae v. 
 McDonald, 18 0. B.,852; Warnook v. Eloepfer, 14 0. B., 288; 16 App. B., 
 affirmed by the Sup. Ct., 824 ; Glarkso^ v. Sterling, 14 0. B , 46t ; 15 App. B., 
 284 ; Dominion Bank v. Oowan, 14 0. B., 465. 
 
 (9) The power to grant a new license ariaea, 1. Where the original lioenae 
 beoomea void from any cause. See note (a) supra. 
 
 2. Where the term or intereat of the holder of the original lioenae in the 
 premiaea is determined before the expiration of hia lioenae. See note (m), lupra. 
 
 8. In caae the licensee abaconda (see note (n), $upra) or abandons (see note(o) 
 supra) the premises, or becomes insolvent, the Licen«t> Commissioners in either 
 of these events, may, in their discretion, grant a new license for the same 
 premiaea. The new license will be subject to the provisions of sections 8 and 
 11, and must bear date as of 1st May and will expire on the 80th April. See 
 sec. 8. 
 
 (r) The new license can only issue for the premises described in the original 
 license, which has become void or been forfeits ' . There la no power given to 
 isane new licenaea for the premises unless application is made prior to 1st April. 
 See sec. 8, as. 3. 
 
 («) The power of the License Commissioners to impose terms as to the dnty 
 to be paid is very ample, but it would not be legal for them to exact more than 
 the dnty payable by other licensed houses in the same municipality. 
 
 (t) The Commissioners may also remit or refund to the original holder of 
 the license such part of the original duty paid by him as they may think just, and 
 may require the new licensee to pay to him part of the dnty imposed upon the 
 former. 
 
41. J 
 
 THE LIQUOR LICENSE ACT. 
 
 DUTIES PAYABLE. 
 
 89 
 
 4 1* (i) The following license duties (u) shall here- Dnties. 
 after be payable, and shall, subject to the provisions of the 
 next following three sections, be in lieu (v) of all others. 
 Provincial or Municipal, that is to say (w) : 
 
 1. For each wholesale license (jf) - - - $150 00 
 
 2. For each tavern license in (y) cities - - 100 00 
 
 towns (z) - 80 00 
 
 othermunicipalities (a) 60 00 
 
 II 
 i< 
 
 00 
 
 00 
 
 80 
 
 00 
 
 60 
 
 00 
 
 50 
 
 00 
 
 40 
 
 00 
 
 30 
 
 00 
 
 3. For each shop license (6) in cities 
 
 '• *' towns - 
 
 " " other municipalities - 
 
 R. S. O. 1877, c. 181, s. 31 (1-3). 
 
 4. For each beer and wine license (c) in cities 
 
 " «* '• towns - 
 
 " " " other municipalities 
 
 5. [Paragraph 5 and sub-sec. 2 are struck out by 53 Vic, 
 
 c. 56, s. 2, sub-sec. 3.] 
 
 (u) The word dnty, as as«d here, metna *' a t«x ; an impoat, or imposition :" 
 Wharton, 268. Formerly an imperial as well as Provinoial doty was exaoted, 
 nnder the Imperial Aot, 14 Oeo. 8, 0. 88, bat sinee the 1 <!k 2 Will. 4, e. 28, the 
 issuing of snidx licenses has been regolated by the Provineial Legislature: 
 Andrew v. White, 18 U. 0. B., 170. The duties specified here are the lowest 
 that can be imposed nnder any oironmstsnees. See sec. 48. A.8 to the Pro 
 vincial doty see sec. 44. As to payment of duty see B. v. Straohan, 20 0. P., 
 120, cited hi notes to sec. 48. 
 
 (v) The phrase "in lieu "means "instead of:" see Wharton, 429 ; and a 
 fine provided by Statnte " in lien of " other means of payment, may become 
 the primary fine : B. v. St. Saviour's, 7 ▲. <t; E., 926. 
 
 (to) It was held that a Dominion license issued to a brewer was sufficient to 
 authorize the selling by wholesale of the ale, etc., brewed by himself and that 
 a ProTincial license was not required : B. v. Young, 8 0. B., 476 ; and other 
 oases cited in note (tt), sec. 84, and also notes to sec. 61. 
 
 {x) See sec. 3, sa. 4 ; note (fe) sec. 8 ; sees. 84, 86, 61, 144. 
 
 (y) See sec. 2, ss. 2, and sees. 11, 12, 18, 21, 27,, 28, 29 and 80. 
 
 (z) As to cities and towns, see sec. 99 and notes '.hereto. 
 
 (a) " Other Municipalities." This term will include incorporated and police 
 Tillages and townships. 
 
 For dnties payable in unorganized districts, see see. 188, ss. 2. 
 
 {b) As to " shop licenses," see sec. 2, sb. 4 ; see. 4, ss. 2 ; sees. 21, 81 and 42. 
 
 (e) As to " beer and wine licenses," see sees. 22, 28, 24, 26, 26 and 88. 
 
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 90 
 
 THE LIQUOR LICENSE ACT. 
 
 [as. 41, 42. 
 
 Oonncil 
 may im- 
 
 f)OM a 
 araer 
 duty up 
 tofgoo, 
 but not 
 more 
 without 
 
 6. For every transfer or removal (d) of a license under sec 
 tions 37 and 38 of this Act, $5, and the mileage of the 
 Inspector, as provided by section 39 of this Act (<■), 
 44 v., c. 27, s. 2. 
 
 A9m (1) The Council of any Municipality (/) may by 
 by-law (g) to be passed before the ist day of March (A) in 
 any year, require (/) a larger duty to be paid for tavern or 
 shop licenses therein, but not in excess of $200 in the 
 whole ij), unless the by-law has been approved {k) by the 
 
 (d) As to "transfer " and " removal," lee seoa. 87 and 88. 
 
 («) A8 to mileage to the Inapeotor, Me aee. 89. 
 
 The duties payable ander this section and section 44 are the only impoHta 
 whioh can be lenally ezaoted, unless the amount is increased by a by-law under 
 sees. 42, 48. 
 
 It was held that the duty, whether Provinoial or Munioipal, should be paid 
 to the ProTinoial Oovemment : B. v. The Board of Poliee of Niagara, 4 U. 0. B., 
 141. But provision is now made for a " License Fund," comprising the duties, 
 Anes and penalties received by the Inspector, and the application of it is gov- 
 erned by sees. 46 and 46. 
 
 {f) " Any Municipality." See see. 11, ss. 12, note (0). 
 
 {if) " By-law." Bee notes to sec. 4 ; also notes to sec. 20. 
 
 {h) " 1st day of March." See sees. 20 and 82. 
 
 (i) " Bequire " has been held in certain oases to mean, *' reasonably require :" 
 see Braunstein v. Accidental Ins. Oo., 1 B. & S., 782. That construction is 
 unnecessary here as the duty which may be required to be paid is limited to 
 9300, unless the approval of the electors is obtained. 
 
 The Court refused to interfere with a by-law fixing the sum to be paid for 
 a license for billiard tables at 9300, on the ground that the sum required was 
 extravagant, disproportioned to the nature and profits of the business, and that 
 it was in effect a prohibition : re Neilly and The town of Owen Sound, 87 
 U. 0. R , 289. 
 
 ( j) "9300 in the whole " is the maximum amount whioh can be imposed by a 
 by-law without the assent of the electors . The Oovemment duty imposed by see, 
 44 is in addition to that imposed by sec. 41, as well as afij duty which may be 
 required by a by-law under this section. If the amount is over 9200, one-half 
 of the excess is payable to the Provincial Treasurer and the other half to the 
 Municipality ; see sec. 46. It was held that a by-law providing that the duties 
 to be paid for a tavern license should be 9100, and for a shop license 9200, 
 meant that the sums mentioned should include the Government duty, and 
 therefore to be within the power of the Council under this section : re Brodie 
 and The Cor. of Bowmanville, 38 IT. C. B., 680. But if a by-law require a 
 larger duty than 1200 in the whole, that is, including the Oovemment duty, 
 it must be submitted to the electors for approval : see judgment of Harrison, 
 G. J., in Brodie and The Cor. of Bowmanville, at p. 588 ; but sec. 44 has been 
 enacted since this decision was pronounced. 
 
 A township cannot make the sum payable vary according to the locality, as 
 in certain villages named 9100, and elsewhere 976 ; Donelly and The Cor. of 
 of Clarke, 88 U. C. B., 699. 
 
 The Court, because of the long delay in moving, refuse a rule ntn to quash 
 a by-law passed eighteen monttis before, which ought to have been moved 
 

 4a.] 
 
 THE LIQUOR LICKNSK ACT. 
 
 91 
 
 electors (/) in the manner provided by The Municipal Act """IJJJ* 
 (///) with respect to by-laws which before their final passing *<"•• 
 require the assent of the electors of the Municipality. Rer. sut 
 R. S. O. 1877, c. 181, s. 32 (1). "•^^• 
 
 (a) Such by-law shall take effect from the passing thereof 
 (//), unless passed later than the 1st day of March {o)\n any 
 
 againit on the ground th»t it waa not 8ubmitt«d to the eleotora : re Sheley and 
 The Town of Windaor, iiS U. 0. R., 609 ; re Drope and The Oor. of Hamilton. 
 25 U. G. R.. 86:^ ; Riohardaon and The Police Oommiaaionera of the City of 
 Toronto, 88 U. 0. R.. 621. 
 
 Aa to the repeal of a Townahip by law by an ineorporated village, which waa 
 at the time of incorporation in force in the Townahip : aee Oanningham v. The 
 Cor. of Almonte, 91 0. P., 4S0. If there haa been a licenae granted and iaaned 
 under a by-law, the qaaahing of tb* by-law doea not annal the licenae : R. v. 
 Stafford. 38 0. P.. 177. 
 
 Under 18, 14 Vic. c. 66, Monioipal Ooancila had power to discriminate 
 between different kinds of public honaes, and were authorized to charge differently 
 in the oaaea of aaloon and tavern Ueenaes. and require different accommodation : 
 re Grand and The Oor. of Onelph, 37 U. C. R., 46, but this is now provided for 
 by the Statute, and the Municipality has no anch power. 
 
 When the plaintiff leased a tavern to the defendant for three years at a rent of 
 9400 a year, payable quarterly, ** the said lessor to allow the said lessee the 
 amount he has to pay for hia license feea out of the first qnarter'a rent in each 
 year," and the license fee when the lease was issued, and for some years pre- 
 viously was 986, but in the following Tear was raised to 9200, it was held that 
 the lessee could claim no allowance beyond the first quarter's rent, the lessor 
 being bound to allow the fee only provided it did not exceed such rent : Writt 
 V. Sharman, 41 U. 0. R., 249. 
 
 (h) "Approved" may be construed as "confirmed" or "ratified:" see 
 Worcester's Diet. The following definition has been given : " To concur in 
 the propriety or expediency, the legality or constitutionality of ; to give execu- 
 tive sanction to ; as, to approve an ordinance proposed by the Council of a^city," 
 etc.; Anderson's Diet. In the Municipal Act the phrase used is " assent." It 
 was held that secp, 298-806 of the Municipal Act were the clauses providing the 
 machinery, but that sees. 808>812 of that Act were not applicable : re Oroft and 
 the Town of Peterborough. 17 App. R., 21. 
 
 (I) The electors entitled to vote upon a by-law under this section are those 
 entitled to vote at Municipal elections : re Oroft and the Town of Peterborough, 
 17 0. R., 622 : 17 App. R., 31. 
 
 (ffl) '< The Municipal Act," R. S. 0. 1887, e. 184, division III, sees. 293-828, 
 pages 1846-1866, makes provisions as to proceedings to be taken for ascertain- 
 ing the assent of the electora, except in cases otherwise provided for. But it 
 has been held that : " The machinery is to be found in clauses 293 to 806 
 inclusive. Clauses 808 to 812 become inapplicable, inasmuch as the description 
 of persons entitled to vote has already been defined " : per Burton, J. A. Be 
 Croft and The Town of Peterborough. 17 App. R., 21, at p. 26. See note (I) 
 tupra. 
 
 (n) The date of the assent or signification of the Lientenant-Qovemor, as the 
 case may be, is the date of die commencement of the Act. if no later commence- 
 ment is therein provided : Interpretation Act, (R. S. 0.. 1887.) p. 8. 
 
 An enactment " from henceforth de ecetero," does not necessarily imply a new 
 law, as may be seen upon the donbti ariaing on the Stat. Merton, 0. 2 : Dwar., 
 685, cited Strond's Diet.. 812. 
 
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 93 
 
 THE LIQUOR LICENSE ACT. 
 
 [s^. 42, ^2a. 
 
 year, in which case it shall come into force on the ist day 
 May of the next (/) succeeding year, and every such by-law- 
 shall remain in force until repealed {q). R. S. O. 1877, c. 
 181, s. 32 (2); 49 V., c. 39, s. 3. 
 
 (3.) Any by-law so approved shall not {r) be varied (s) or 
 repealed (/) unless the varying or repealing by-law has been 
 in like manner («) submitted to and approved of by the 
 electors of the Municipality. R. S. 0. 1877, c. 181, s. 32 (3). 
 Preamble ^9li. [Whereas the following provision of this section 
 was at the date of Confederation, in force as part of The 
 ConsoUdnfp.d Municipal Act, (29 & 30 V., c. 51, s. 249, 
 sub-sec. 9), and was afterwards re-enacted as sub-sec. 7 of 
 s. 6 of 32 v., c. 32, being The Tavern and Shop License 
 Act of 1868, but was afterwards omitted in subsequent 
 consolidations of The Municipal and The Liquor License 
 Acts, similar provisions as to local prohibition being con- 
 tained in The Temperance Act of 1864, 27 & 28 V., 
 c. 18; and the said last mentioned Act having been 
 repealed in municipalities where not in force by The 
 
 The word "from " exolades the day from whioh the time is to be reokooed : 
 Wharton, 419. See McLean v. Pinkerton, 7 App. B., 490. 
 
 (0) See see. 20 and note Tp; thereto. 
 
 (p) The word *' next " in an Aot, shall be oonstmed as having reference to 
 the time when the Aot was presented for the Boyd Assent : Interpretation 
 Aot, (B. S. O., 1887, page 8). See note (x) to sec. 92. 
 
 (9) The by-law continues in force from the time of its passing, or from the 
 Is*; May in the " next snceeeding year," until it is repealed ; there is therefore 
 110 occasion for its renewal each year. 
 
 (r) The words " shall not," as used here, are peremptory ; nee Interpretation 
 Act, B. S. 0. 1887, page 8 ; see also notes to sec. 8, ante, 
 
 (<) The approval of the electors must be obtained, in the sii»me manner as 
 provided in sub-sec. 1, to any by-law making any alteration in the original by- 
 law ; nor can the by-law be repealed without sncui approval. 
 
 (t) It was held that a Municipal Oounoil of a village incorporated and separ- 
 ated from a Township, in which before, and at the time of the incorporation, a 
 by-law existed prohibiting the sale of Uquors in shops and places other than 
 houses of public entertainment within the Township, could not, by a by-law 
 not submitted to the electors for their approval, repeal the prohibiton so far as 
 it affected tho village : In re Cunningham v. The Cor. of Almonte, 21 0. P., 469. 
 
 (u) " In like manner " refers to the manner of obtaining the approval of the 
 electors, as in sub-sec. 1. The expressions " as aforesaid," " in manner afore- 
 said," "as before," "in like manner," " on the same terms and conditions, " are 
 often used to imply the same thing. They are simply referential ex^'ressions 
 indicating that something is to be done in a manner whioh has been before 
 described. Here the reference is to everything in the section which refers to a 
 by-law submitted for the approval of the electors. 
 
 
 p 
 
 11 
 
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 li, 
 
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42<l.] 
 
 THE LIQUOR LICENSE ACT. 
 
 93 
 
 Canada Temperance Act^ it is expedient that municipali- 
 ties should have the powers by them formerly possessed ; it 
 is hereby enacted as follows ; {v) 
 
 (v) This provision is introdaoed by 63 Vie, o. 66, s. 18 (0), and is int jnded 
 to take the place of what was known as the " local option " clause of the Muni- 
 cipal Institutions Act, 29, 30 Vic, c. 61, s. 249, as. 9. Under it Municipal 
 Counoils were empowered to pass by-laws ' ' for prohibiting the sale by retail of 
 spirituous, fermented, or other manufactured liquors in any inn or other house 
 of public entertainment, and for prohibiting totally the sale thereof in shops 
 and places other than houses of public entertainment, provided the by-law 
 before the passing thereof has been duly approved by the electors of the Muni- 
 cipaUty in the manner provided by this Act." 
 
 Section 252 of the same Act also provided : *' No tavern or shop license shall 
 be necessary for selling any liquors in the original packages in which the same 
 have been received from the importer or manufacturer ; provided such packaged 
 contain respectively not less than five gallons or one dozen bottles." 
 
 It has been objected that the clause now under consideration was an inter- 
 ference with sec. 252 of 29, 30 Vic, c. 51, and that by-laws passed under it are 
 in excess of'the authority of the Provincial Legislature, and effect has been 
 given to that objection in the following judgment of Gbief Jn tioe Gait in three 
 oases of motions to quash Local Option By-laws passed by Municipal Councils, 
 with the approval of the electors, under the authority of this section, as follows : 
 
 " These three motions are made to set aside three by-laws thaii had been passed 
 in their respective Municipalities. The by>la vs are based on the 18th sec. of 
 c. 66, 53 Vic, which enacts that ' the Oouncil of every township, city, town, and 
 incorporated villa"» may pass by-laws for prohibiting the sale by retail of 
 spirituous, fermeu jd, or other manufactured liquors in any tavern, inn or other 
 house or place of public entertainment, and for prohibiting altogether the sale 
 thereof in shops and places other than houses of public entertainment.' There 
 are several objections applied to each of these by-laws. The first is that there 
 is no penalty enacted. The second is that the respective Municipalities had no 
 authority to pass the by-laws to take effect at once ; kc'S lastly, that the said 
 by-laws are in excess of the authority of the Provincial Legislature. 
 
 To deal with the last objection, or. reference to section 18 it will be foand 
 that the provision to which I have referred was at the date of Oonfederatioia in 
 force as part of the Consolidated Municipal Aut, 29 and 30 Vic, c. 51, sec. !S49, 
 B8. 9, and by provision at the end of section 18, authorizing the GouncU to pass 
 Buoh by-laws, it is provided ' that nothing in this section contained shsU be 
 construed into an exercise of jurisdiction by the Legislature of the Province 
 of Ontario beyond the revival of provisions of law which were in force at the 
 date of the passing of the B. N. A. Act.' It appears to me that in framing sec. 
 18 of c. 66 the provisions of the 29 and 30 Vic to which I have referred have 
 been overlooked. The clause which under sec. 18 purports to be re-enacted 
 has reference simply to shop and tavern licenses, and it is sub-sec 9 of sec 
 249 which has been re-enacted. Judging from the whole Statute, o. 61, it will 
 be seen that on reference to sec. 252 no such general provision as is now con- 
 tended for under the present Statute had application, because tmder sec. 262 it 
 was positively enacted that no tavern or shop license should be necessary for 
 soiling any liquors in the original packages in which the same had been re- 
 ceived from the importer or manufacturer, provided such packages contain 
 respectively not less than five gallons or one dozen bottles. 
 
 It is manifest from this that when the Legislature enacted the above sec 249 
 it was not the intention that there should be a general prohibition, bat it was 
 that the prohibition should be confined to shop and tavern licenses. 
 
 T' live effect to the by-laws now before me, according to their literal exprea- 
 
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 THE LIQUOR LICENSE ACT. 
 
 [s. 42a. 
 
 sion, it would be positively illegal for the owner of a distillery to sell spiritacus 
 liquors at his distillery in case saoh a by-law was in foroe in the Manioipality 
 in which the distillery was located, and it was quite manifest that such never 
 was and never could have been the intention of the Legislature. Their inten- 
 tion was that the provision of sub-seo. 9, which is similar to seo. 18 of 63 Vic. 
 applied only to cases of shop and tavern licenses. 
 
 Then as to the objeoticn that there is no penalty. The case of Hall v. Nixon, 
 L. B., 10 Q.'B., page 162, appears to be in point. It is trr>c that the quotation 
 which I am about to make is not part of the judgment of the Court, but it is 
 cited by Lush, J., aa showing the inefficiency of a by-law to which no pecuniary 
 penalty is attached. He says : — " To secure the obedience to a by-law, it is 
 necessary that a penalty of some kind should be annexed to a breach of it, 
 or otherwise the by-law will be nugatory. The only penalty permitted by the 
 law of England is a pecuniary one. That obedience to a by-law cannot be en- 
 forced by the imprisonment of the offender or by the forfeiture of his goods, 
 there are a multitude of authorities." On this ground also the by-law appears 
 to me to be invalid. 
 
 Then as to the operation of the by-law. From the terms of the respective 
 by-laws tibey were to go into foroe at once, and therefore a person in possession 
 of a tavern or shop license would have been prohibited from carrying on Lis 
 business. Now, under the liquor license law, licenses remain in force till the 
 dOth of April of each year, consequently it was not in the power of the Munici- 
 pality to pass a by-law interfereing with the ri((htB of license holders until their 
 respective lioenaes had expired. It is quite unnecessary to consider the question 
 as to the legislation being ultra virei, because by the Act itself, the Legislature 
 expressly limits the operation of the Statute to the powers which they possessed 
 and exercised at the date of the passing of the B. N. A. Act. Were it otherwise, 
 it appears to me that such an absolute prohibition as is contained in these 
 respective by-laws would be an interference with trade and commerce, which 
 unquestionably are within the exclnsive jurisdiction of the Dominion Parliament. 
 As I have said before, the authority exercised by the Legislature of Canada 
 previous to Confederation was confined in this particular instance to tavern and 
 shop licenses, and did not authorize Municipalities to prohibit the sale of liquors 
 where the same had been received from the importer or manufacturer. 
 
 In my opinion, therefore, these by-laws must be quashed, but as they were 
 enacted in accordance with the terms of b. 18, there will be no costs beyond the 
 costs of the motion and the argument. In several cases there was a vast num- 
 ber of affidavits filed. The costs of th^se are not to be taxed against the 
 Municipalities. This does not apply to such affidavits, as in the opinion of the 
 taxing officer were necessary to bring the by-laws before the Court :" Re Malcolm 
 and The Township of Oakland ; re Huson and The Township of South Norwich ; 
 re Je£freys and The Village of London West, 22nd April, 1891 (not reported) ; 
 re Toung and The Corp. of Binbrook, May 1st, 1891 (not reported). 
 
 In consequence of this judgment, and in view of the importance of the 
 questions arising out of it, and in order to declare the meaning of the Legisla- 
 ture, the following enactment was passed during the last sessi;.!! of the 
 Provincial Legislature: 
 
 AM ACT BBBPBCTINO LOCAL OPTION IN THB UAITBB OF 
 LIQUOR SBLLINO. 
 
 HER MAJESTY, by and with the advice and consent of the Legis- 
 lative Assembly of the Province of Ontario, enacts as follow 1 : 
 
 Section 1 1. It is hereby declared that the Legislature of this Province by 
 0. S6 s. 18, flOMtiug seution 18 of the Act To improve the Liquor Licen$e Lawi, 
 declared, passed in the 68rd year of Her Majesty's reign, chaptered 66, 
 
42dt.] 
 
 THE LIQUOR LICENSE ACT. 
 
 (or the reviTal of i;>roTiBion8 of law which were in force at the date of 
 The Britiih Nr th America Act, 1867, did not intend to affect the 
 proTisions of f lotion 252 of The Con$oUdated Municipal Act, being 
 chapter 61 of t^. 9 Acta passed in the 29th and SOth years of Her 
 Majesty's reign by the late Parliament of Ganada, which enacted that 
 " No tavern or shop license shall be necessary for selling any liqnors 
 in the original packages in which ^he same have been received from 
 the importer or mannfactarer ; provided snch packages contain 
 respectively not less than five gallons or one dozen bottles," save in 
 so far as the said section 262 may have been affected by the 9th snb- 
 eection of section 249 of the same Act, and save in so far as licenses 
 tor sales in such qaantities are required by The Liquor Lvi i«« Act ; 
 and the said section 18 and all by-laws which have heretofore been 
 made or shall hereafter be made under the said section 18 and pur- 
 porting to prohibit the sale by retail of spirituous, fermented, or 
 other manufactured liquors, in any tavern, inn, or other house or 
 place of public entertainment, and prohibiting altogether the sale 
 thereof in shops and places other than houses of public entertain- 
 ment, are to be construed as not purporting or intended to affect the 
 provisions contained in the said section 262, save as aforesaid, and 
 as if the said section 18 and the said by-laws had expressly so 
 declared. 
 
 2. Wh<)rA{.j doubts have arisen as to the power of this Legisla- 
 ture to enact the provisions of the said section 18, or of the said 
 section as explained by this Act, and it is expedient to avoid a 
 multiplicity of appeals involving the said question, the Lieutenant- 
 Govemor-in-Council is to refer to the Court of Appeal for Ontario 
 under authority of The Act for expediting the decision of Comtitu- 
 tional and other Provincial queitions, the question of the constitu- 
 tional validity of the said section 18 and its true construction, effect 
 and application. 
 
 3. The reference under this Act to the Court of Appeal by the 
 Lientenant-Govemor-in-Gounoil is to be heard in priority to any 
 other cause or matter in said Court, unless the Court otherwise 
 orders. 
 
 4. In oabC any by-law passed nnder snid section 18 ia quashed 
 before the passing of this Act the application may be re-heard by the 
 High Court of Justice, at the instance of the municipality which 
 passed said by-law, by motion of ten days' notice served on the relator, 
 or within such further time as may be allowed b/ a judge of the High 
 Court, and the court shall make such order for the rescission of the 
 order to quash and as to costs as to the Court shall seem meet. 
 
 H. The limit as to the time for appealing from the judgment or 
 order of any CoQ?t, in the case of quashing a by-law, or any other 
 judgment, shall not apply to an appeal against a judgment or order 
 quas'aing a by-law passed under the said section 18. 
 
 Preamble 
 
 Refer- 
 ence of 
 constitu- 
 tional 
 questions 
 to courts. 
 
 Refer- 
 ence to 
 have pri- 
 ority of 
 hearing 
 in courts. 
 
 Re-bear- 
 ing where 
 by-law 
 already 
 quashed. 
 
 Time for 
 appeal. 
 
 
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 Powers of 
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 Connoili 
 as to 
 prohibi- 
 tory sale 
 of liquors. 
 
 THE LIQUOR LICENSE ACT. [s. 42a. 
 
 The Council of every township, city, town and incorporated 
 village, may pass by-laws (w) for prohibiting (x) the sale by 
 retail (y) of spirituous, fermented, or other manufactured 
 liquors, (z) in any tavern, inn, or other house or place of 
 public entertainment, («) and for prohibiting altogether the 
 
 Exten- 
 sion of 
 licenses 
 until 
 
 questions 
 referred 
 are deter- 
 mined. 
 
 Suspen- 
 sion of 
 proceed- 
 ings 
 pending 
 to quash 
 by-laws. 
 
 6. Where any sach by-law has been qnasbed or has been passed 
 and shall not be quashed before the determination of the questions 
 referred under this Act, by the Lieatenant-GoTemor-in-Counoil, to 
 the Goort of Appeal, the license GommiBsioners, nnder the lAquor 
 Licetue Acta, are not to grant licenses to any new applicants, and 
 may only extend the duration of any existing license, from time to 
 time, for any specified period of the yea., not exceeding three months 
 at any one time in their discretion, upon payment of a sum not 
 exceeding the proportionate part of the duty rftyable for such license 
 for a year. 
 
 7. All proceedings to quash by-laws passed under the authority 
 of said section 18, or the enforcement of orders for payment of costs 
 thereon shall he suspended, and no proceedings to quash other such 
 by-la^s shall be instituted until after the final determination of the 
 questions io be referred as he-einbefore provided. 
 
 It was held by the Supreme Court, that the Dominion Parliament alone 
 has the power of prohibiting the traffic in intoxicating liquors in the Dominion 
 or any part of it : Frederioton v. The Queen, 3 S. G. B., 605. 
 
 And it has been also decided by the Privy Gonnoil that a general law as to 
 prohibition respecting all Canada is within the scope of the Dominion Parlia- 
 ment : Itussell V. The Queen. 7 App. Cas., 829, but that it could not legislate 
 with respect to licenses for the sale of liquor in shops, taverns and saloons. 
 See notes to sec. 1, also note (m), p. 16, ante, and note {tt) to sec. 84, p. 72, 
 ante. 
 
 Iwj " By-laws." See sec. 20, ante, and notes thereto. 
 
 (x) The verb " to prohibit," means " to forbid ; to interdict ; to inhibit : " 
 Worcester, 1137. A total prohibition is : " The interdiction of the liberty of 
 making, selling, or giving away intoxicating liquors for other than medicinal, 
 scientific and religious (sacramental) purposes : Anderson's Diet., 823. 
 
 It was held that authority conferred upon a town by its charter to prohibit 
 the sale of liquor, did not embrace a power to regulate sales. The exercise of 
 the power to regulate sales provides for the continuance of the traffic under 
 prescribed rules. The power to prohibit is to be used only for suppression : 
 State V Fay, 44 N. J. L., 476, (1882). 
 
 (y) See sec. 2, ss. 2, also notes to sees. 34 and 85. 
 
 («) " Spirit'ions, fermented, or other manufactured liquors." See note (() to 
 to sec. 2 nnie, p. 2. 
 
 This is a wider expression than that used in the Interpretation olause, sec. 2, 
 ss. 1, ante. The words used there in defining the meaning of "liquors "or 
 "liquor" are " all spirituous and fermented malt liquors, and all combinations 
 of liquors and drinks and drinkable liquors which are intoxicating." The pro- 
 hibition authorized here includes all of thepe and " other manufactured liquors" 
 as well. For meaning of " manufactured " see note (z) to sec. 36, ante. 
 
 (a) See note {g) to sec. 2, ss. 2. 
 
li 
 
 ss. 42a, 426.] 
 
 THE LIQUOR LICENSE ACT. 
 
 97 
 
 sale thereof— in shops and places other than houses of public 
 entertainment : (^)— Provided (c) that the by-law, before the 
 final passing thereof, has been duly approved (d) of by the 
 electors of the municipality in the manner provided by the 
 sections in that behalf of TAe Municipal Act : {e) pro- 
 vided further that nothing in this section contained, shall be 
 construed into an exercise of jurisdiction by the Legislature 
 of the Province of Ontario beyond the revival of provisions 
 of law which were in force at the date of the passing of The 
 British North America Act, and which the subsequent 
 Legislation of this Province purported to repei.. ] 53 V., 
 c. 56, s. 18. 
 
 JL9b* [(i) In license v'istricts, (/) where the second part 
 of The Canada Temperance Act is in force, it shall be 
 lawful {g) for the Council of any city, town, village or ^®i^f*Sj 
 
 Power to 
 
 {)a8B by- 
 awB 
 under 
 
 \l 
 
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 (b) See note (q) to iieo. 11, bb. 88. 
 
 A house of public Antertainment does not mean a place of " diversion or 
 amusement, but the provision of food, drink, and whatever else might be 
 reasonably required for the personal oom'srt of guests :" see Taylor v. Oram, 
 1 H. & 0., 870 ; Muir v. Eeay, L. B. 10, Q. B. 694 ; Howes v. Inl. Bev. 1 
 Ex. D., 886. 
 
 (c) The word " provided " creates a condition precedent, and is synonymous 
 with the phrases " on condition," " in case," ** so soon as," <' if," '< when," etc : 
 Bee Shrimpton v. Shrimpton, 81 Beav., 426, and other cases cited, Stroud's Diet., 
 879 ; see also Worcester, 1147. The conditions precedent to the by-law pro- 
 vided for here are: 1. The approval of the electors, and 2. that any power 
 beyond that possessed by the Ontario Legislature at the time of Confederation 
 is not to be exercised. • 
 
 ((f) " Approved." See note (ft) to sec. 42. 
 
 (e) Municipal Act^ See notes to sec. 42. 
 
 For oases on the Legislative authority of the Province of Ontario, see note 
 to sec, 1, and note (m) sec. 8. 
 
 (f) " License districts." See sec. 2, ss. 6. 
 
 " The 0. T. Act is in force." See sees. 141-163. 
 
 (g) "It shall be lawful." These words used in a Statute conferring an 
 authority to do a judicial, or, indeed, any other act whioh the public interest, 
 or even individual right, may demand, n..akes it imperative on those so author- 
 ized to exercise the authority when the case arises; " when,- therefore, the 
 language in which the authority is conferred is only directory, permissive, or 
 enabling ; for instance, when it is enacted that the person authorized * may ' 
 or 'is empowered' or 'shall if he deems it advisable' or that 'it shall be 
 lawful ' for him to do the act, it has been so often decided as to have become an 
 axiom that such expressions have a compulsory force, unless there be specf'il 
 grounds for a different construction : " Maxwell on Stats., 219 ; see The Queen 
 0. Bishop of Oxford, 4 Q. B. D., 668 ; Aitcheson v. Mann, 9 P. B., 478 ; B. v. 
 Tithe Commissioners, 14 Q. B. , 474. See note (0) to sec. 4, ante. 
 
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 98 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 4td 
 
 4a' pend* township at any time after (A) a petition to the Governor- 
 o%"i*** in-Council, (1) as required by the said Act and amendments 
 Act thereto, praying for the revocation (j) of the order in Coun- 
 
 cil passed for bringing the second part of the said Act into 
 force, has been deposited with the sheriff or registrar of 
 deeds of the county or city, to pass by-laws under sections 
 20, 32 and 42 (k) of The Liquor License Act ; and all by- 
 laws so passed shall take effect upon, from and after (/) the 
 repeal of the said second part of The Canada Temperance 
 Act in any such Municipality, and shall remain in force as 
 provided by the said sections ; and no by-law already passed 
 in any Municipality under said sections 20, 32 and 42 of 
 the said Liquor license Act or any of them subsequent 
 to the deposit of the said petition with the said sheriff or 
 registrar during the year 1889, shall be invalid by reason 
 only of the same having been passed while the second part 
 of The Canada Temperance Act was in force or after the 
 dates mentioned in any of the said sections respectively. 
 
 (2) Nothing in this section contained shall be construed 
 a"! in any way extending the powers of the said Municipal- 
 ities, to pass by-laws und*^r any of the said sections 20, 32 
 
 (A) " At any time after -' zsctms at any time of any year after : see Bridges v. 
 PottB, 17 G. B. N. B., 314. 
 
 (t) « Petition the GoTemor-in-Goancil." See B. S. 0., 1886, 0. 106, see. 96 
 et seq., page 1423. 
 
 (j) " Bevooation," the undoing of a thing granted, or destroying or making 
 void of some deed that had existence until the act of revocation made it void. 
 It may be either general of all acts and things done before, or special to revoke 
 a particular thing : Wharton, 647. 
 
 (k) " Sections 20, 32 and 84," In order that provision may be made for the 
 proper working of this Act, upon the repeal of The Canada Tepiperanoe Act, 
 and to place the Municipality in the same position as it was before the intro- 
 duction of the second part of the 0. T. Act, the Municipality is here empowered 
 to pass by-laws under sec. 20 limiting the numW of tavern licenses ; under 
 sec. 32 limiting the number of shop licenses and regulating the sale in shops ; 
 and under sec. 42 fixing the amount of the license duty if it is thought advisable 
 that such duty should be in excess of that provided by the Statute. The latter 
 by-law must, however, be approved of by the electors if the duty is to be in 
 excess of 9200 in the whole. 
 
 {I) The by-laws so passed by the Municipality will not take effect if the 
 Order-in-Counoil bringing the 0. T. Act into force is not repealed. But if 
 repealed, the by-laws passed under this section will immediately come into 
 force, and those Municipalities in which the by-laws existed previous to the 
 introduction of the 0. T. Act are thus able to place themselves in the same 
 position as before. But all such Municipal by-laws must be passed after the 
 deposit of the petition for the repeal of the G. T. Act. 
 
fm'} 
 
 ss. 
 
 42^. 43J 
 
 THE LIQUOR LICENSE ACT. 
 
 99 
 
 and 42 after the dates limited in the said sections respectively 
 in any year subsequent to the year of the repeal of the 
 said second part of TAe Canada Temperance Act in any 
 of such Municipalities.] (w) 52 Vic, c. 41, sec. 8. 
 
 4IS« In any municipality where, by virtue of any by- 
 law in that behalf, passed under the provisions of any former 
 Act («), a larger sum or duty in the whole than that men 
 tioned in section 41 (<?) was on the loth day of February, 
 1876, (/) payable for any shop or tavern license, such sum 
 or duty shall be the lowest duty payable under this Act for 
 any such license, until altered by by-law {q) of the munici- 
 pality to be passed for the purpose, but in no case shall the 
 duty be under the amount in the said section . yecially 
 prescribed. R. S. S. 1877, c. 181, s. 33. 
 
 When 
 duties 
 now ex- 
 ceed the 
 statutory 
 figure 
 tney are 
 not 
 affected. 
 
 (m) The effeot of this and the first Bub-eeotion together is that if a Manioi- 
 pslity in which the 0. T. Act has been in force desires to reinstate any by-laws 
 limiting the nnmber of tavern (sec. 20) or shop licenses, or restricting the sale 
 of liquor (sec. 82), or fixing the amount of the license duty in excess of 9200 
 (sec. 42), existing before the introduction of the G. T. Act, such Municipality 
 may re-enact any such by-laws, or pass any new ones within the scope of its 
 authority, at an;^ time of the year in which the repeal of the 0. T. Act takes 
 e£feot, subsequent to the date of the deposit of tl^ petition for such repeal 
 with the Sheriff or Begistrar ; but after that year atay such by-laws must be 
 passed in the usual manner and before the 1st March, as required by the sec- 
 tions named. See sees. 141-162. 
 
 (n) Before the passing of "The Liquor License Act," the Municipality had 
 power to pass by-laws under 82 Vic. 0. 82, s. 10, determining the duties to be 
 paid for licenses, but no by-law exacting a duty of more than 9130 per annum 
 could be passed without the approval of ttie electors. The powers given to 
 Municipalities were very much the same as those conferred by this Act: 82 
 Vio. c. 82 ; 86 Vic. 0. 84 ; 87 Vie. c. 82, s. 28 ; and by 89 Vie. 0. 26, s. 16 
 (which is the Act passed 10th February, 1876) the maximum duty to be imposed 
 by by-law without the approval of the electors was increased to 9200. 
 
 (0) Section 41, viz., 9200. 
 
 (p) " 10th day of February, 1876." This is the date of the passing of the 
 Act 39 Vio. 0. 26, by which the provision was made requiring the assent of the 
 electors to a by-law imposing a license duty in excess of 9200. The powers of 
 Municipalities previous to this were as stated in note (n) «upra. 
 
 (9) " Until altered. " If a by-law of the Municipality was in force on the date 
 mentioned fixing the duty to be imposed, that duty is the lowest payable under 
 the Act until a new by-law is passed changing the amount. But the amount 
 must not, even in that case, be less than the duty fixed by section 41. 
 
 If a new by-law is passed it must comply with the provisions of the section 
 under which it is authorized. See sees. 20, 82 and 42, and the notes thereto. 
 
 It was held per Qw3mne, J., that although no new by-law had been enacted 
 by the Municipality under sec. 6, sub-s. 6, of 82 Vic, 0. 82, the applicant was 
 bound to have paid for the license, which he had in fact obtained, the amount 
 due under the by-law then in foroe, and that the payment after complaint, but 
 
 p. 
 
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 Additton- 
 al lioense 
 dntlea. 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 44. 
 
 44* (i) Over and above (r) the duties for licenses 
 hereinbefore imposed (s), and any duties wh'ch have been 
 or may be imposed by any Municipal By-law (/), unless the 
 Municipality shall by by-law otherwise provide («), there 
 shall be paid, in order to the raising of a revenue for Pro- 
 vincial purposes, for the exclusive use of this Province, the 
 following additional duties thereon, the whole of which 
 shall form part of the Consolidated Revenue of the Pro- 
 vince {v) : 
 
 1. For each wholesale license (w) - - $100 00 
 
 2. For each tavern or shop license {x) in cities of 
 
 over 20,000 inhabitants - - - 150 00 
 
 For each tavern or shop license in cities of less 
 
 than 20,000 inhabitants - - - 100 00 
 
 For each tavern or shop license in towns - 70 00 
 " '* in incorporated villages 60 00 
 
 " " in townships - - 30 00 
 
 For each tavern license in cities granted to prem- 
 ises exempted from the necessity of having 
 all thelavern accommodation provided by 
 
 law f 200 00 
 
 do. do. in towns - - 170 00 
 
 ^llri 
 
 before jadgment, of the sam fixed by the latter Aot, did not enore to make the 
 lioense valid from its date : B. v. Straohan, 20 0. P., 182. 
 
 (r) "Over and above "is defined in Woroester's Diet., as "beaides; beyond 
 what was first aapposed or immediately intended." 
 
 («) " Hereinbefore imposed " refers to the duties imposed by see. 41. See 
 notes to that see. This section has been added since the jadgment in re Brodie 
 and The Oor. of B> -nville, 88 U. 0. B., 680, dted in the notes to seo. 42, 
 and there has bees n\> deoision as to the effect of this provision on the powers 
 conferred by seo. 42, with respect to the increase of license duties. Bat it is 
 certain that the daties imposed by this section are in addition to all other 
 duties, whether Provincial or Municipal, unless it is otherwise provided in the 
 Municipal by-law. See note (a) infira, 
 
 (t) See sec. 42 and notes thereto. 
 
 (u) The Municipality, in any by-law determining the amount of the duty to 
 be paid, may provide that the duties payable under this section shall be inclusive 
 of the amount fixed by the by-law, so long as the whole amoant does not fall 
 short of the amoant imposed by sec. 41, added to the duty payable under this 
 section. 
 
 (v) The Oonsolidated Bevenue Fund of the Province is authorised and regu- 
 lated ander the provisions of B. S. O., 1887, c 19. 
 
 (to) See sec. 2, ss. 4 and se6B. 84, 86, 41. 
 
 («) " Tavern license," see seo. 2, sa. 2 ; " shop lieense," see seo. 2, ss. 8. 
 
 m 
 
 p. 
 
 
I^"< 
 
 ss. 44, 45-] 
 
 THE LIQUOR LICENSE ACT. 
 
 lOI 
 
 3. For each beer and wine license (y), a fee in ad- 
 
 a.iion to that provided by sub-section 4 of 
 section 41, of one-forth that hereby added 
 to tavern licenses .... 
 
 4. [Paragraph 4 is struck out by 53 Vic , c. 56, s. 2, sub- 
 
 sec. 4.] 
 
 (2) The population of a city for the purpose of this sec- 5o5"'Jow 
 tion shall be determined by the enumeration taken by the ^iJwkL 
 Municipal assessors at the last preceding assessment (z). 
 
 (3) Nothing herein contained shall limit the right of the Lioonse 
 Council of any Municipality, without submitting the same impoMd 
 to the ratepayers, by their by-law to fix the duties or fees o^autieB. 
 upon tavern or shop liceases, wholly for the use of the 
 Municipality, and the sum so fixed, or to be fixed, by any 
 Municipal Council, may be, in addition to the sum imposed 
 
 by this section, in and for the respective Municipalities 
 above mentioned {a). 49 V., c. 39, s. i. 
 
 LICENSE FUND. | V\- \v ^^ '^'! / ' 
 
 4 A* (i) AH sums received from duties oh t*JiV«!rh, i^J? fln'og 
 shop and wholesale licenses (6), and for trapsfirs and »ndpan- 
 
 (y) See b. S8. The duty on a beer and wine lioense jlS' $60 in oitiea, 910 in 
 towns, and $80 in other Monieipalities, by adding one fqnrth thereto, the total 
 doty of 962.tO in cities, $S0 in towns and $37.60 in other Municipalities is 
 obtained. 
 
 '■ Over 20,000 " means upwards of 20,000. 
 
 "Less than 20,000" has been read as "not exceeding" 20,000: See 
 Garby v. Harris, 7 Ex., 691. 
 
 (2) For the purpose of limiting the number of licenses under sec. 18, the last 
 preceding census is taken as a basis. Under this section, the enumeration 
 taken by the Municipal assessors at the last preceding assessment, is the basis 
 on whidi the population is to be ascertained, The census is obtained from 
 the assessment roll, which must show the number of persons in each family 
 rated as a resident. B. S. 0. 1887, c. 198, page 2091. 
 
 The " last preceding " assessment is that shewn by the finally revised roll 
 immediately preceding the date of the issue of the lioense. 
 
 (a) The Council of a Municipality can impose duties wholly for the use of the 
 Municipality, in addition to the duties above mentioned, without submitting 
 the by-law determining such additional duties to a vote of the ratepayers. It 
 is submitted that the effect of this is to give Municipalities power under section 
 42, to establish a license fee, which shall be payable wholly to the Municipality, 
 and be separate and distinct from the Provincial fee. But see the following 
 section and notes thereto. 
 
 (b) The licenses are issued by the Inspector under the direction of the Lioense 
 Commissioners (sec. 9), and the procedure to be followed in the issue of the 
 
 
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 THE LIQUOR LICENSE ACT. 
 
 [8. 45- 
 
 removals thereof (c), and received by the Inspector for fines 
 and penalties (d), shall form the license fund of the license 
 district, for which the Board of License Commissioners has 
 been appointed. R. S. O. 1877, c. 181, s. 34 (i); 44 V., 
 c. 27, s. 3 ; 48 v., c. 43, s. 8, parf. 
 
 (2) So much of the license fund as is not specially appro- 
 priated otherwise (e), shall be applied (/), under regulations 
 (g) of the Lieutenant-Governor-in-Council (^), for the pay- 
 
 lioense is as follows : A oertifioate is granted by the License CommiMioners 
 under the hands of any two of them to the applicant, stating that he is entitled 
 to a license. The duty is then paid by the applicant into such bank as may be 
 designated by the Provincial Secretary to the credit of the " License Fund 
 Account " for the district, and upon the production of the certificate of the 
 Commissioners and the receipt of the bank for the duty, the Inspector may 
 issue the license (sec. 12). The duties payable upon licenses, it will be observed, 
 are not to be paid to the Inspector, but into the bank. 
 
 (e) The fees for transfers and removals are payable to the Inspector, to be by 
 him paid in to the credit of the "License Fund Account," sec. 89. 
 
 (d) y Fines and penalties " are to be paid by the convicting Magistrate to the 
 Inspector, and paid in by him to the " License Fund Account," sec. 46. 
 
 From this ^t would appear that the only moneys which should be allowed to 
 pasA tmongh th^v Inspector's hands are those collected for transfer and 
 remoTal of uoenoep fttid for fines collected by the convicting Magistrates. 
 
 It would appear that all license duties must be paid into the bank designated 
 by the Provincial Secretary, including the duties payable to the Municipalities 
 under see. 43 and kc. 44, ss. 8. 
 
 The words " all sums ^received," it is contended, are wide enough to include 
 everythiqg — Qui tmru f/ieit, nihil exeludit (in the mention of all things nothing 
 is excluded), see oiises 6ited Stroud's Diet., 28 ; although in some oases it may 
 by the context mean " any," 1 Jarm., 504 ; Oilmour v. Lookhart, H. T., 6 Vic. ; 
 B. ft H. Dig. 266. And in McLaren r. Caldwell, 8 0. S. B., 486, " all 
 streams " ^ere held to mean those streams which in their natural state permit 
 lumber i^ t)e floated down them ; but this decision was reversed on appeal to 
 the Privy Council, where it was held that the expression meant *' all streams 
 without any limitation:" 9 App. Cas., 892. 
 
 («) *' Appropriated other?,'ise," means set apart by law for some other purpose ; 
 see Worcester, 1006, Stroud's Diet., 648-650 ; as, for instanee, that portion 
 which .s set apart for the exclusive use of the Munioipality under its by-law. 
 
 (/) "When a Statute confers an authority to do a judicial, or indeed any 
 other act, which the public interest or even individual right may demand, it is 
 imperative on those so authorized : " Maxwell, 219. See also notes to sees. 3 
 and 4, ante, and note (g) to see. 42b. The fund created under this section must 
 be applied in the manner directed. 
 
 (g) Acts which delegate subordinate legislative authority, or other powers, 
 are subject to the principle of strict construction. Thus a general order made 
 by the Judges of the Court of Chancery, under Parliamentary authority to 
 regulate the procedure of that Court, and which directecl how a defendant, " in 
 any suit," might be served with process abroad, was held by Lord Westbury, 
 to be limited to those suits in which service abroad had been provided for by 
 law, viz. : suits relating to land and public stock, by the 2 Wm., 4, 0. 88 and 
 4 and 6 Wm., 4, 0. 82. If the order nad been oonstraed as literally applicable 
 
 iH' I.' 
 
 
 m^^ 
 
/ 
 
 s. 4SJ 
 
 THE LIQUOR LICENSE ACT. 
 
 ment of the salary and expenses of the Inspector, and for 
 the expenses of the office of the Board and of officers, and 
 otherwise in carrying the provisions of the law into effect, 
 and the residue, on the 30th day of June in each year, and 
 at such other times as may be prescribed by the regulations 
 of the Lieutenant-Governor-in-Council, shall be paid over, — 
 one-third to the Treasurer of the Province, to and for the 
 use of the Province, and the other two-thirds to the Treas- 
 urer of the city, town, village, or township municipality in 
 which the licensed premises are respectively situate (/) ; but 
 in cases where any Municipality by by-law requires a larger 
 duty in the case of tavern or shop licenses to be paid than 
 the specific sums mentioned in sections 41 and 44 for any 
 license, the whole of such excess shall be paid over to the 
 Treasurer of such Municipality. [But all sums imposed by 
 the Municipality in excess of the sum of $200, mentioned 
 
 »03 
 
 t 
 
 w 
 
 to all BQits, it would while profeBsedly only regulating the prooeedure, have in 
 effect extended the juriadiotion of the Court, an object foreign to the Act which 
 conferred the power of regulation : Maxwell on Stats., 266. 
 
 (A) See note (a) to sec. 6 ; see also Interpretation Act, Beo. 8, as. 7. 
 
 (i) The manner in which the fund ie to be applied is : 
 
 1. In payment of the salary and expenses of the Inspector, and the expenses 
 of the officers, and otherwise in carrying the provisions of the law into effect. 
 
 2. In payment, (a) to the Treasurer of the Province of one-third of the 
 residue, and (b) to the Treasurer of the Municipality in which the license 
 premises are respectively situate of the remaining two- thirds. 
 
 This applies only to the amoants paid in under aeotions 41 and 44, and the 
 fines, penalties and costs relating to transfers and removals received by the 
 Inspector. 
 
 Where Mnnioipalities have by by-law fixed the license duties at a greater 
 amount than that provided for in sees. 41 and 44, the whole of the excess up to 
 $200 is to be paid to the Treasurer of the Municipality, and the excess over 
 9*200 to be divided equally between the Province and the Municipality. 
 
 Some question may arise as to who are the " officers " referred to whose 
 expenses are to be paid out of the fund. The expenses of the *' Board and of 
 Officers" are here spoken of, but it is submitted that no payment for the 
 expenses to officers can be legally made whose appointment is not expressly 
 provided for by the Act. 
 
 The Lieutenant-Governor and the Licenae Commissioners, with the sanction 
 of the Lieutenant-Qovemor-in-Gouncil, have power to appoint one or more 
 officers to enforce the Act : see sees. 127, 128; and the expenses of these officers 
 are here provided for. 
 
 The fund is under the control of the License Commissioners and Inspector, 
 sabject to the regulations of the Lieutenant-Qovernor-in-Council, and no draft 
 can be made upon it except by cheque signed by the Inspector, aad counter- 
 signed by the chairman or at least two of the GommissionerB. 
 
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 THE LIQUOR LICENSE ACl'. 
 
 [m. 45. 46. 
 
 Obequea 
 upon the 
 IloeDM 
 fund ao- 
 count 
 
 Applica- 
 tion of 
 
 in section 42 of this Act, shall be divided equally between 
 the Province and such Municipality.] (Amended by 53 V., 
 c. 41, sec. 3.) 
 
 {3) Cheques (/') upon the license fund account shall he 
 drawn by the Inspector, and countersigned {A) by the 
 Chairman of the Board (/), or any two of the License 
 Commissioners, subject to the regulations of the Lieutenant- 
 Governor-in-Council. R. S. O. 1877, c. 181, s. 34 (2, 3). 
 
 40* (i) Any penalty (m) in money (n) recovered (o) 
 
 (j) A "obeqae" ia a Bill of Exohange drawn on a Banker, payable on 
 demand : Bills of Etohange Act, 1890 (68 Yio., 0. 88, a. 73), page 36 ; a " Bill 
 of Exchange ia an unionditional order in writing addressed by one person to 
 another, signed by the person giving it, requiring the person to whom it is 
 addressed to pay, on demand or at a fixed determinable fntare time, a sum 
 certain in money to, or to the order of, a specified person or to the bearer : " 
 BUls of Exchange Act, 1890, page 3. A cheque drawn by the Inspeotor mast, 
 therefore, be signed by him. 
 
 {k) See note {k) to sec. 87. 
 
 (I) The Act makes no provision for the appointment of a Ghairman. 
 
 The Commissioners will bepresnmfid to appoint a chairman from among them. 
 
 The addition, " Chairman of the Board of License Commissioners, for the 
 
 license district of " to the signatore, is the proper form in which to 
 
 countersign the oheqnes. This will be a mere " deteriptio per$ona," an addi- 
 tion to the name or signature as " president," " agent," " assignee," " executor," 
 etc. 
 
 (m) As to meaning and effect of the word " any," see note (0) to sec. 12, 
 ante, p. 29 ; and as to '* penalty " see note («) to sec. 80. 
 
 (n) " Money, originally stamped coin, is now applied to whatever serves as 
 a circulating medium, including bank notes and drafts, as well as metallic 
 coins ; cash is ready money and is sometimes restricted to coin or metallic 
 money bearing a legal stamp ; but it is oonrmonly used to include bank notes, 
 drafts, etc. :" Worcester, 936. A " penalty in money " is a " fine," or pecuniary 
 penalty, as distinguished from punishment by imprisonment. But the word 
 "penalty" alone is more frequently used to denote a pecuniary punishment : 
 Bouvier, cited Worcester, 1061 ; and where the words " penalty or forfeiture" 
 were used in an Act, it was held that they should be construed as dearly 
 relating " to a sum inflicted :" B. v. The Justices of Middlesex, 9 Q. B. D., 41. 
 
 (0) The word " recover " has a technical meaning in law whereby it signifies 
 to recover by action and the judgment of the Court, but it is said that there are 
 cases which may be found in which the word has, the larger and more popular 
 sense of " recover " by any legal means which would include, e. g., a distress : 
 per Willes, J., Haines v. Welch, L. B. 4, C. P. 91. In that ease it was held 
 that the word in s. 1, 14 & 16 Vic, 25, includes the right to distrain. See 
 that and other cases cited Stroud's Diet., 660. But the amount of a verdict is 
 not "recovered" till judgment can be signed upon it: per Brett, J., Ingsz). 
 Lond. <& S. W. By., L. B. 4, C. P. 17. 
 
 It was decided that a debt for spirituous liquors was not " recovered " within 
 the Tippling Act, 34 Oeo. 4, 0. 40, s. 13, by crediting an unappropriated pay- 
 ment Uierefor : Philpott v. Jones, 3 A. dr E., 41. " Becover as damages " in 
 
s. 46.J 
 
 THE LIQUOR LICENSE ACT. 
 
 105 
 
 IMinaltlM 
 
 wh«n 
 
 Inipcotor 
 
 iiproM- 
 
 oulor. 
 
 Where 
 the whole 
 penalty 
 and ooeta 
 are not 
 reouvered 
 
 Where 
 ooits are 
 not recov- 
 ered. 
 
 under this Act, in cases in which an inspector (/) is the 
 prosecutor (f) or complainant, (r) shall be paid (s) by the 
 convicting Justice, Justices or Police Magistrate (/) to the 
 inspector, and paid in by him to the credit of the " License 
 Fund Account." («) 
 
 (2) In case the whole amount of the penalty and costs is 
 not recovered, the amount recovered shall be applied, first, 
 to the payment of the costs, and the balance shall be appro- 
 priated as hereinafter mentioned, (v) 
 
 (3) In any case where the inspector has prosecuted and 
 obtained a conviction, and has been unable to recover the 
 amount of costs, the same shall be made good out of the 
 said license fund, (w) 
 
 a Looal Improvement Aot means to recover befora Jaatioes : Blaokbnm v. 
 Parkinson, 1 B. <& E., 71. 
 
 As to meaning of "sam 'eoovered," see Johnson v. Harris, 15 0. B., 867 ; 
 Dixon V. Walker, 7 M. (fe W., 314 : James v. Vane, 2 E. «& E., 888 ; see also 
 Clark V. Irwin, 8 L. J., 21. 
 
 (p) *' An Inspector." See seo. 3, ss. 7. 
 
 {q) " Prosecutor." The " proseoator " is one who proseoates another for 
 a crime in behalf of the Government : Blackstone, cited Worcester, 1144. The 
 word " prosecution," in 49 Vic, c. 61, a, 1 (d), includes the proceedings before 
 Magistrates as well as before a higher Court : B. v. Meyer, 11 P. B., 477- 
 
 (r) " Oomplainant " is the person who commences a prosecution : GoUier 
 cited Worcester, 279, one who lays the information before the Magistrate. 
 
 It is only when the Inspector acts either in the capacity of prosecutor or 
 complainant that the penalty is payable in the manner provided ; in the case 
 of a private prosecution under the Act it should be applied in the same manner 
 as any other fine : see Interpretation Act, B. B. 0. 1887, 0. 1, s. 8, ss. 80-83 ; 
 B. S. 0. 1887, c. 76 ; B. S. 0. 1887, 0. 77. 
 
 («) This is imperative, and the convicting Justice, or Justices, must pay the 
 fines as directed. 
 
 (t) " Convicting Justice." One Justice of the Peace may try certain cases ; 
 aee sees. 97, 99. 
 " Justices." Two or more Justices of the Peace may try certain cases : see 
 
 860. 96. 
 
 " Police Magistrate." See B. S. 0. 1887, c. 72. By sec. 21 a Police Magis- 
 trate may sit alone with the powers of two or more Justices of the Peace. 
 
 (u) " License Fund Account." See sees. 89, 46 and notes thereto. 
 
 {v) " Hereinafter mentioned." The word " hereinafter " is uvidently a mis- 
 print; it should be '* hereinbefore." It is dear that if there is any sum 
 remaining after payment of costs, it should be paid into the License Fund 
 Account. 
 
 (it) This applies only to oasws where the Inspector is prosecutor or com- 
 plainant, as provided in sub-sec. 1, and where the costs of the information and 
 conviction cannot be recovered from the defendant. In that event the costs 
 are to be paid out of the License Fund. 
 
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 THE LIQUOR LICENSE ACT. 
 
 [ss. 46, 47. 
 
 Indem- 
 nity of 
 Inspector 
 where he 
 fails to 
 obtain a 
 oouvic- 
 tion. , 
 
 Licenses 
 to be kept 
 exposed. 
 
 (4) In any case where the inspector has prosecuted and 
 failed to obtain a conviction, he shall be indemnified 
 against all costs out of the license fund, should the Justice, 
 Justices or Police Magistrate before whom the complaint is 
 made certify that such oflficer had reasonable and probable 
 cause for preferring such prosecution or complaint, (x) 
 R. S. O. 1877, c. 181, s. 35. 
 
 REGULATIONS AND PROHIBITIONS. 
 
 '^9* All licenses (y) shall be constantly and conspicu- 
 ously exposed {z) in the warehouses, shops or in the bar 
 room (a) of taverns, inns, alehouses, beerhouses or other 
 places of public entertainment, (d) and in the bar-saloon, or 
 bar cabin of vessels, {c) under a penalty of $5 for every 
 day's wilful or negligent omission so to do (d), to be re- 
 
 {x) The Inspector is to be iademnified against the costs in case he fails to 
 jbtain a conviction. In such case he might be made liable for the costs (see 
 B. S. C. 1886, c. 178, 8. 70), and, therefore, be is secured against such liability 
 oat of 'nh') fund. Bat the Justices or Police Magistrate must first certify that 
 there was reasonable and probable cause for the prosecution. 
 
 " Reasonable and probable cause." In actions for malicioas prosecutions, 
 "it is now a settled question that the question of reasonable and probable 
 cause must be decided by the Judge : " Boscoe's N. P., 851 ; and so in this 
 case the question is one which must be settled by the Justices or Police Magis- 
 trate on the facts adduced in evidence during the hearing. 
 
 " Beasonable and probable cause " in such cases has been held to be : " Such 
 a state of facts in the mind of the prosecutor as would lead a man of ordinary 
 caution and prudence to believe that the ^rson aooased is guilty of the offence 
 with which he is charged." See Boscoe's N. P., 811-813 ; see al' Anderson's 
 Diet., 167 ; Stroud's Diet., 655. 
 
 (y) "^ All licenses." 
 sec. 45. 
 
 This applies to licenses of every kind. See note (a) to 
 
 (z) " Constancy is the quality of being constant ; unalterable continuance :" 
 Worcester 800 ; and " conspicuous " is defined to mean " obvious to the sight ; 
 seen at a distance :" lb. The license must, therefore, not only be kept con- 
 tinually exposed but must also be so prominently placed as to be re m lily seen. 
 
 (a) The word " bar-room " is not to be found in an; dictionary of the English 
 language. It England the " bar " of a tavern or inn is a part of a room in such 
 tavern or inn enclosed by a low partition, with a coanter at which the reckoning 
 is received and refreshments are sold. The " bar-room " is, of course, the 
 room in which such ba:.' is placed ; but the word " bar-room " is not used in 
 England. 
 
 (b) Definitions ^f "taverns, inns, alehouses, beerhouses, and other places of 
 public entertainment " are given in the notes to se<^. 2, ante. 
 
 (c) "Bar-saloon, or bar cabin of vessels." These words should be struck out 
 as no licenses are now issued to vessels. 
 
 (t^) The omission by the license holder of his duty under this section will 
 subject him to a fine of $6 for e'^ery day's failure in its performance, whether 
 wilfal or not. 
 
 «';■■ 
 
 1.4 
 ■"1 
 
 m 
 
ss. 47, 48.] 
 
 THE LIQUOR LICENSE ACT. 
 
 covered (e) with costs (/) from the merchant, {§) shop- 
 keeper (A) or tavern, inn, alehouse or beerhouse-keeper or 
 keeper of any other place of public entertainment, or master, 
 captain or owner of the vessel (/) so making default. , 
 R. R. O. 1877, c. 181, s. 37. 
 
 4 8. Every person (/) who keeps a tavern (k), or other JeepM^ 
 place of public entertainment (/), in respect of which a n° tioe'of * 
 tavern license has duly issued (w) and is in force («), shall {Jeered 
 
 " Wilful " is a word of familiar use in every branch of law, and althongh in 
 some branches of law it may have a special meaning, it generally, as used in 
 Gonrts of law, implies nothing blameable, but merely that the person of whose 
 action or default the expression is nsed is a free agent, and that what has been 
 done arises from the spontaneous action of his will. It amounts to nothing 
 more than this, that he knows what he is doing, and intends to do what he is 
 doing, and is a free agent : per Bowen, L. J., re Young and Harston, 31 Gh. D., 
 174 ; and to "neglect" doing, "is the omission to do some duty which the 
 party is able to do :" per Patteson, J., King v. Barrell, 12 A. <& E., 468. When 
 *' negligently " is a part of the definition of an offence, it implies that the act 
 constituting the offence shall have been done or caused by the alleged offender 
 himself ; proof that it was done by the alleged offender's servant, witihout more, 
 will not bring the charge home : Ohisholm v. Doulton, 68 L. J. M. 0., 133. 
 " Negligence is the omitting to do something that a reasonable man would do, 
 or the doing something which a reasonable man would not do :" per Alderson, 
 B., Blytb V. Birmingham Water Works Go., 11 Ex., 781. As to the meaning 
 of tl- ■• words " neglect or refusal " and "negligence or omission " in a Statute, 
 see VoKcl v. Grand Trunk By. Co., 10 App. B., 162. 
 
 (e) See note (0) to see. 46. 
 
 if ) $5 for every day's omission to expose the license, with the costs of hearing 
 and conviction is the limit of the penidty to be imposed. A conviction impos- 
 ing a greater or less penalty wotUd be bad: B. v. Lennox, 26 U. C. B., 141 ; 
 in re Bright and Toronto, 12 G. P., 488. See Form of Gonviotion, Sch. D., No. 1. 
 
 " With costs " means the costs of and incident to the conviction : Dwar., 692, 
 citing Durham By. v. Walker, 2 Q. B., 966. 
 
 (g) "Merchant." This refers to the holder of a wholesale license. The 
 word is usually applied to a wholesale trader : see Worcester, 899. It relates 
 back to the word " warehouses." 
 
 (A) Sho^'^keeper refers to the holder of a " shop license." 
 
 (t) " Or master, captain, or owner of the vessel," should be struck out. See 
 note (c) iupra. 
 
 ij) A peL<alty on *' every person " eonoemed in an offence may be recovered 
 for the same offence against each person therein concerned : B. v. Dean, 
 12 M. & W.. 86. See also notes to seo. 68, poit. 
 
 (k) " Tavern." See note {g) to seo. 2, ss. 2. 
 
 (I) '* Other olaoe of public entertainment." See note {b) to see. 42a, ante, 
 
 Im) ■* Duly issued " means issued under the authority of the Act. See 
 Wharton, 281 and cases there cited. 
 
 (n) The requirements of this section, of course, only apply to taverns and 
 other houses of public entertainment licensed under this Act. But exhibiting a 
 r^'gn denoting that the place is licensed, when it ia not, is prohibited. See 
 see. 49, sa. 2. 
 
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 1 08 
 
 Penalty. 
 
 No person 
 shall sell 
 liquors 
 without 
 license. 
 
 THE LIQUOR LICENSE ACT. 
 
 fss. 48, 49. 
 
 exhibit (0) over the door (/) of such tavern, inn, alehouse, 
 beerhouse, or other place of public entertainment, in large 
 letters, the words: ^'^ Licensed to sell wine,- betr, and other 
 spirituous or fermented liquors " and in default thereof, shall 
 be liable to a penalty of $5, besides costs {q). R. S. 0. 
 1877, c. 181, s. 38. 
 
 4IO. (i) No persni, {r) shall sell by wholesale or retail 
 {s) any spirituous, iermented, or other manufactured liquors 
 without having first obtained a license under this Act 
 authorizing him so to do (/) : but this section shall not 
 apply to sales under legal process or for distress, or sales by 
 assignees in insolvency. 
 
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 (0) The daty imposed here is oompulsory upon the keeper of every taTem and 
 house of public entertainment lioensed, and if omitted through oarelesaness or 
 negligence, is punishable the same as if done wilfully. To " exhibit " means 
 nearly the same thing as the word " expose " in the last section, t. e., " to show 
 or expose publicly. " See Worcester, 517. Proof that there is nothing over the 
 door denoting that the house is licensed, has in England been held prima facie 
 evidence in an action for penalties that the house is unlicensed : Gregory v. 
 Tuffs, 6 C. <b P., 271. 
 
 {p) *'Over the door" means, in the ordinary sense, above the door ; but it 
 has been held that it does not mean vertically above, as in an indictment for 
 playing cards in a room over a saloon: Patterson v. State, 12 Tex. Ap., 232, 
 (1882). 
 
 (g) See note (n) to sec. 46. 
 
 As to form of conviction under this seo. see Soh. D., No. 2. 
 
 (r) The word person, prima faeie, includes a corporation as well as a natural 
 person ; per Selbome, L. 0., Pharmaceutical Soo'y. v. Lond. <ft Provincial Supply 
 Ass'n., 6 App. Gas., 867. 
 
 By the Interpretation Act, (B. 8. 0. 0. 1, s. 8, as. 18), the word " person " is 
 made to include" any body corporate or politic, or party, and the heirs, execn- 
 iors, administrators or other legal representatives of such person to whom the 
 context can apply according to law." 
 
 (s) "Wholesale or retail." This section applies to all persons. Tio.e can 
 be no sale of intoxicating liquor without a license : B. v,'Straoha&, 20 0. P., 
 182. (See sec. 2 and notes thereto.) But there are certain statutory exceptions 
 in sections 61 and 62, by which Brewers are exempted from the necessity of 
 taking out a retail license, and Ohemists are permitted to sell liquor in certain 
 quantities, for medicinal purposes only, besides the exceptions in this section 
 provided for. 
 
 " Spirituous, fermented, or other manufactured liquors." See note (b) to sec. 
 2, for definitions of these terms and oases thereon. See also B. v. Deuham, 
 86 U. U. B., 608 ; B. v. Straohan, iupra; 16 L. J., N. S., 241 ; Add. on Con., 
 Vol. 11, p. 1161 ; Paterson's L. A., p. 6. 
 
 U) It was said by Wilson, J., in Boss v. The Oor. of York and Peel, 14 0. P., 
 171, at p. 174 : " The sale of intoxicating drinks has been placed, and wisely 
 so, under stringent and special legislation in many respects." See also Barclay 
 and The Uunicipality of Darlington, 11 U. 0. B., 470. The lioenses authorised 
 by the Act are : (1) Tavern Uoenses, seo. S, m. 9, 11, 12, 18, 91, 97 and 80 ; 
 

 s. 49-] 
 
 THE LIQUOR LICENSE ACT. 
 
 109 
 
 (2) Shop lioenses, see. 2, ss. 8, seo. 4, ss. 2, 21, 81, 32, 88 and 60; (3) Whole- 
 gale lioenses, seo. 2, bs. 4, 84, 35 and 144 ; (4) Beer and wine lioenses, sec. 22, 
 23, 24, 26 and 26 ; (6) Brewers lioenses, see seo. 51. No penalty can now be 
 recovered for selling liquor without a license from the Oovemor or Lieutenant- 
 Oovemor under the Imperial Act, 14 Oeo., 3, 0. 88, for since the 1 and 2 Wm., 4, 
 c. 23, the : jbuing of such licenses has been regulated by the Colonial Legisla- 
 ture : Andrew v. White. 18 U. G. B., 170. In the Statute 32 Vic, 0. 32, iibe 
 reading was " without tiie license therefor by law required," remarking upon 
 which Morrison, J., said : " It does not enact that any person selling without a 
 tavern license or shop license, (the licenses authorized and contemplated by the 
 Act), or a license issued by virtue of the Statute, shall be subject to the penalty, 
 the language is, ' any person who shall sell, <&c., without the license therefor by 
 law required,' " and it was held that a person holding a brewer's license from 
 the Dominion, was not required to take out any further license : B. v. Soott, 
 34 U. 0. B., 20, p. 27. The language of the section has been changed, but it 
 is still held that a brewer does not require a Provincial license. See B. v. Tay- 
 lor, 36 U. C. B., 18r; ; B. v. Severn, 2 S, C. B., 70, cited in notes to sec. 51. 
 
 A conviction under this section, in a Municipality where " The Temperance 
 Act of 1864 " was in force, was held bad. It was also held ultra vires of the 
 Outario Legislature, to enact that the provisions of the Licensing Act should have 
 fall force in a Municipality where the Temperance Act is in force : B. v. Prittie, 
 42 U. C. B., 612. See also Slavln v. The Cor. of Orillia, 36 U. G. B., 159. 
 Under 40 Vic. c. 18, s. 30 (0) the Licensing Acts were held by Wilson, J., to 
 be in full force and effect in all Municipalities where the Temperance Act, 1864, 
 was in operation, with the exception of those provisions which relate to the 
 granting of lioenses to sell by retail, and a conviction for selling liquor contrary 
 to this section in a county in which the Temperance Act is in force is valid, 
 although such conviotion would be illegal at Gom'iuon Law : B. v. Lake, 7 
 P. B., 216, but this decision was reversed, the Court holding that the conviotion 
 was invalid and must be quashed, the proper construction of 40 Yio. 0. 18, s. 80 
 being that the Legislature intended either that a wholesale license must be 
 taken out for the sale of liquor in the quantities allowed to be sold, under the 
 Temperance Act of 1864, in MnnioipaUties where that Act is in force, and making 
 a sale thereof a contravention of sees. 24 and 25 of 37 Vic. 0. 32, (sees. 49 
 and 60 of this present Act) as a selling by wholesale without a license ; or as 
 providing in addition that a sale in such Municipalities of ihe quantities pro- 
 hibited by the Temperance Act should be a contravention of said sees. 24 and 
 26 as a selling by retail without license, and if the former were the intention, 
 then the conviction was bad, as it was for selling by retail under a provision of 
 the License Act not in force when the conviction was made ; and if the latter, 
 the Legislature were exceeding their powers in directly legislating on criminal 
 law and enacting criminal procedure for the punishment of offences against the 
 Temperance Act : S. G. 48, U. G. B. 615 ; see sec. 147. See also in re Watts 
 and in re Emei7, 6 P B., 267, in which it was said by Owynne, J., " any sale 
 of intoxioating liquora is in effect illegal as made without a license, unless the 
 accused has the protection not only of a license, but also of a by-law of the 
 Municipality authorizing the same." 
 
 Besides the enactments against the sale of liquor without license under the 
 laws of Ontario, the following Statutes of the Dominion are in force in this 
 Province: B. S. 0. 0. 161, sees. 1, 18, 14, 16, f)l, An " Act respecting the preser- 
 vation of peace in the vicinity of public works : 60 and 61 Yio. fD) 0. 46, s, 1 ; 
 16 and 17 Vic. c. 69, a. 12 ; the object aimed at being the maintenance of 
 diaoipline on board Her Majesty's ships ; B. S. 0. c. 8, s 83, for prohibiting the 
 Bale of liquor on polling days ; The Canada Temperance Act, B. S. G. 0. 106 ; 
 The Bailway Act, 61 Yio. (D) 0. 29, s. 2flB, h\ which the sale or gift of liquor to 
 any servant of a Bailway Go. while on duty Is made punishable upon conviction 
 
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 THE LIQUOR LICENSE ACT. 
 
 [s. 49. 
 
 by a fine of $50 or one month's impriaonment with or without hard labor, or 
 by both fine and imprisonment : B. S. 0. 0. 48, ss. 94-105 ; 50 & 61 Vic. (D) 
 c. 33, B. 10 ; 61 Yio. (D) c. 22, s. 4, and B. S. 0. 0. 85, seos. 10, 11, as to sale of 
 intoxicating liquor to Lidians ; B. S. 0. 0. 50, seos. 92-100; and 61 Vic. (D) c. 19, 
 s. 18, as to such sales in the Territories ; and B. S. G. c 68, seos. 85-43, in 
 Eeewatin ; see also ''The Temperance Act, 1664." 27 & 28 Vic, (P. 0). 
 
 The owner of a shop is liable for any unlawful act done therein, in bin 
 absence, by a clerk or assistant, and a conviction of the owner for the sale of 
 liquor without a license by a female attendant was held good ; but " it may be 
 that if the act was an isolav'-ed act, wholly unauthorized by him, and not done 
 in any way in the course of business, but a thing done wholly by the unwar- 
 ranted or wilful act of the subordinate," the owner might escape personal 
 responsibility : B. v. King, 20 G. P., 246. 
 
 k conviction for selling " a certain quantity, to wit, one pint," was held 
 sufficient : Beid v. MoWhinnie, 27 U. C. B., 289. 
 
 A conviction that defendant " did sell wine, beer, and other spirituous or 
 ' fermented liquors, to wit, one glass of whiskey, contrary to law," held bad for 
 uncertainty as not shewing whether the offence was for selling without a license 
 or during Uegal hours : B. v. Hoggard, 80 U. 0. B. , 162. 
 
 The sale of a bottle of gin without a license is contrary to law ; and semole, 
 that even if a license be necessary only on a sale by retail, the sale of a bottle, 
 value 60 cents, would be a sale by retail: B. v. Straohan, 20 G. P., 182. 
 
 The quashing of a by-law under vhich a certificate has been granted and 
 license issued, does nCu nullify the license ; and a conviction for selling with- 
 out license cannot, under these circumstances, be supported : B, v. Stafford, 
 22 0. P., 177. 
 
 A plea to an action for goods sold, etc., to the effect that the plaintiff's claim 
 was for intoxicating liquors, etc., that the defendant was not the holder of a 
 license and was accustomed to sell liquors without a license, and that the 
 liquors were furnished to be sold contrary to law to the knowledge of the plain- 
 tiff, was held bad, because, by the License Act, there was a class of persons, to 
 wit, druggists, etc , who might sell without license, and the plea did not allege 
 that the defendant was not one of such class : Kelly v. Earl, 29 G. P., 477 ; 
 see also Hodgson v. Temple, 6 Taunt. 181 ; Brown v. Duncan, 10 B. & G., 93 ; 
 Bowry « Bennet, 1 Gamp., 848 ; Pearee v. Brooks, L. B. 1, Ex. 216 ; Gannan 
 V. Bryoe, 3 B. & Aid., 179 : Bitchie v. Smith, 6 0. B., 462. 
 
 In Smith v. Benton, 20 0. B., 844, the plaintiffs, wholesale merchants, having 
 a license to sell in Middlesex, supplied liquors to the defendant, who carried on 
 a place of public entertainment in Kent before and after the repeal of the G. T. 
 Act in the Oounty. It was held that the plaintiff could not recover the price of 
 liquors sold before the repeal. 
 
 A married woman, who was lessee of certain premises in which her husband 
 sold liquor without a license, was held liable, although the sale took place in 
 her absence : B. v. Gampbell, 8 P. B., 66 ; see see. 112. 
 
 The defendant, a servant of one Ward, the keeper of an unlicensed tavern, 
 was convicted of selling liquor in the absence of her master ; Oameron, J. , held 
 the conviction good, the case being nndistinguiriiable in principle from B. v. 
 Williams, 42 V 0. B., 462, though he would otherwise have held the master 
 alone responsible : B. v. Howard, 46 U. 0. B., 846. 
 
 In B. V. Williams, 42 U. 0. B , 462, the occupant of the house in which tbe 
 sale took place was in gaol, and the conviction of the wife for selling in the house 
 was sustained : see B. v. Grofta, 2 Stra., 1X20 ; Paley on convictiops, 6th Ed., 72, 
 and oases there cited. In an opinion delivered by Simonton, J., in U. S. 
 Dis. Gt.. Oar., Aug. 1, 1887, it was said that " the presumption that a wife. 
 
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[s. 49. 
 
 s. 49-] 
 
 THE LIQUOR LICENSE ACT. 
 
 Ill 
 
 who, on her hnsband's premises, and in his presence, and with his knowledge, 
 makes illegal sales m> retail of intoxicating liquors, does so as his agent, does 
 not attach to such sales so made by a woman living with a man as his conca- 
 bine ; and to authorize the conviction of the man for such sales by the ooncu* 
 bine, the jury must be satisfied, from the evidence, that she was acting as the 
 agent of the accused when she made the sale : United States v. Bonham, cited 
 36 Alb., L. J. 354. 
 
 It was held in the Mass. Sup. Jnd. Gt. that an illegal sale by a bartender in 
 his master's shop, and in the regular course of his master's lawful business, 
 was not prima facie a sale by the master : Commonwealth v. Briant, 23 
 L. J. N. 8., 196. 
 
 Where a wife held a license, and the husband carried liquor to a private 
 bouse and sold it at a raffle there going on, and brought back the money and 
 wna I10U Rave it to his wife, she was convicted of selling at an unlicensed place : Seager 
 
 " V. White, 61 L. T. N. S., 261, cited Paterson's L. A., 87. 
 
 In B. V. Frawley, 46 U. G. B., 163, and B. v. Allbright, 9 P. B., 25, it was 
 held that a Magistrate had not power to impose imprisonment with hard labor, 
 and the conviction was therefore invalid, but this decision was reversed and it 
 was held that the word " imprisonment " used in sec. 92 of the B. N. A. Act 
 means imprisonment with or without hard labor, and that the Legislature of 
 this Province has power to impose heid labor in addition to imprisonment : 
 R. V Hodge, E. V. Frawley, 7 App. E., 246 ; 9 App. Gas., 117. 
 
 It was held that the Liquor License Act applies to Indian land imder lease 
 from the Crown to a private individual, and a conviction for selling liquor 
 without a license on Dickinson's Island was upheld : B. v. Duquette, 9 P. B. 29. 
 
 The defendant was licensed to sell *' in and upon the premises known as the 
 Palmer House." The Palmer House stood upon the front part of a deep lot 
 owned by the defendant, the rear part of which was enclosed and used as a fair 
 ground, immediately within which enclosure the defendant sold liquor, for 
 which he was convicted, ffeld, that the conviction was right and that the fair 
 ground, though part of the lot on which the hotel stood, was not used in con- 
 nection therewith or for its enjoyment, and it was not covered by the licer. ,e : 
 B. V. Palmer, 46 U. C. B., 262. 
 
 The defendant was convicted for selling liquor without a license, and for 
 allowing liquor sold by him to be consumed on the premises ; and one penalty 
 was inflicted " for his said offence." Held bad, innotshowing for which offence 
 the penalty was imposed ; also that it was bad in not showing the place where 
 the offence was committed : B. v. Young, 6 0. B., 184a. 
 
 Where the offence was selling liquor to an Indian, it was held no objection to 
 a conviction under this Act, for if so the defendant was guilty of two offences, 
 one under the latter Act and one under the Indian Act : B. v. Young, 7 O. B., 
 88. See also B. v. MaoEenzie, 6 0. B , 163. 
 
 The Court refused to quash a conviction on the ground that the only witnesses 
 were blind persons, and that the defendant was compelled to speak in order 
 that they might be able to identify him : B. v. Excell. Div. Ct., 6th Dec, 1890. 
 
 An agreement of a licensed person to sublet a room to an unlicensed person 
 to sell liquors, is contrary to public policy : Bitohie v. Smith, 6 G. B., 462 ; see 
 alao Stallard v. Marks, 3 Q. B. D., 412, cited in note (e\ sec. 3. 
 
 The sale of liquor without a license does not disqualify the seller from hold- 
 ing the office of alderman, under the Municipal Act, B. S. 0. 1877, c. 174, s. 
 74 ; though he may have rendered himself liable to penalties for breach of 
 the Liquor License Act : B. ex rel. Clancy v. Conway, 46 U. O.-B., 85 ; B. ex rel. 
 Brine v. Booth, 9 P. B., 462. 
 
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 THE LIQUOR LICENSE ACT. 
 
 [SS. 49, SO. 
 
 PersonB 
 not to 
 keep 
 
 m 
 
 (2) No person unless duly licensed shall by any sign or 
 notice hold himself out to the public as so licensed ; and 
 the use of any sign or notice for this purpose is hereby pro- 
 hibited (u). R. S. O. 1877, c. 181, s. 39. 
 
 AO. No person shall keep or have (v) in any (w) 
 house, (x) building, (y) shop, {z) eatirtg-house, (a) saloon, (d) 
 
 (w) It baa been beld tbat a Manioipal Oonnoil bas power to compel the 
 removal of a notioe, auob as is required by see. 48 of tbis Act, from over tlie 
 door of a bouae not for tbe time lioenaed : In re Brigbt v. Tbe City of Toronto, 
 12 0. P., 433. 
 
 Tbe word " notioe," aa defined by Stroud, ia " a direct and definite statement 
 of a tbing, as distingnisbed from supplying materials from wbiob tbe existence 
 of sucb thing may be inferred : " per Parke, B., Burgb v. Legge, 6 M. & W., 
 420 ; Yallee r. Dumergne, 4 Ex. , 290 ; see note (0) to sec. 48. 
 
 "Will not bold bimself out nor seek to induce others to believe:" see 
 Wolmersbausen v. O'Connor, 36 L. T., 921, cited Stroud's Diet., 358. 
 See B. V. Menary, 19 0. B., 691, cited post. 
 
 (v) '* To keep " a place or thing involves tbe idea of having over it the 
 immediate control of a character more or less permanent. See note (q) to seo. 
 11, as. 8, ante. The worda " have " and " keep " are not jp«r se aynonymous in tbe 
 phrase " to have or keep," and it does not comprehend permanency of character 
 as in the caae of the word " keep." Therefore where tbe owner of a theatre 
 allowed tbe place to be used gratuitously on a few occasions for the performance 
 of stage plays, to which the public were admitted, it was beld a keeping or 
 having a house for the public performance of stage plays without a license : 
 Shelley v. Betbell, 12 Q. B. D., 11. But it would seem tbat the person to whom 
 such occasional permission was given would neither '* keep " nor " have " the 
 theatre : B. v. Struguell, L. B. 1. Q. B. 93. See also Biggs v. Mitchell, 2 
 B. & S., 623 ; Foster v. Diphwys Casson Co., 18 Q. B. D., 432. 
 
 (to) See notes to sec. 11, ss. 12, ante p. 29. 
 
 (x) A " house " ia a structure of a permanent character atmoturally aevered 
 from other tenementa (and usually, but not neceaaarily, under its own separate 
 roof) that is used, or may be used, for tbe habitation of man, and of which the 
 holding (as distinct from lodgings) is independent. There are a number of 
 authorities in support of this definition, all of which will be found in Stroud's 
 Diet., 368. It is not necessary that a " bouae," if adapted for reaidential pur- 
 poses, should be actually dwelt in : Daniel v. Conlsting, 7 M. & G., 122. See 
 note [k) to sec. 11, ante p. 21. 
 
 (y) " Building." Stroud says, " What is a ' building' must always be a 
 question of degree." 
 
 The phrase " bouse, warehouse, counting house, shop, or other building," as 
 xtaeA to confer the franchise in the English Reform Act, includes in its last term 
 only buildings of a permanent character used for residentiary or commercial 
 purposes, and does not include a tool shed : Pownall v. Dawson, 11 O. B., 9 ; 
 Powell V. Boraston, 18 C. B. N. S., 175 ; Morrish v. Harris, L. B. 1. 0. P. 155. 
 
 Query, is a " pig-sty " sucb a " building ? " Powell v. Farmer, 18 C. B. N S., 
 168. A cow-house may be : Whitmore v. Wenlock, 7 Scott's N. B., 489. An 
 unfinished bouse is a building : B. v. Manning, 26 L. T., 673. Tbe masonry 
 on the sides of a canal is not sufficient to constitute a ** buUding." A London 
 street, though paved and faced with stone- work, would yet be land ; whilst 
 Holbom vif^uct would be a building ; per Blackburn, J., B. v. Neath Canal 
 NaT. Co., 40 L. J. M. C, 197. A bay window is a " building," and its addition 
 
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 THE LIQUOR LICENSE ACT. 
 
 "3 
 
 or house of public entertainment, (c) or in any room (d) or ■p^'^'J" 
 place {e) whatsoever, any spirituous, fermented or other ^^^^°^^ 
 manufactured liquors (/) for the purpose of selling, bar- J^^Jwd. 
 taring or trading therein, (g) unless duly licensed (A) thereto 
 under the provisions of this Act ; nor shall the occupant (/) 
 
 to a house will be a breach of a oovenant not to erect " any building " in advance 
 of the house : Manners v. Johnson, L. B. 1, Ch. D. 678 ; and a wooden adver< 
 tisement hoarding is a contravention of a oovenant not to erect a " building or 
 erection " on the premises : Pooook v. Gilham, 1 Gab. & EL, 104. See Stroud's 
 Diot., 91. 
 
 (z) The word " shop " implies a place where a retail trade is carried on: a 
 blacksmith's shop is rather a war^ouse than a shop : B. v. Chapman, 7 J. P., 
 132. " In order to constitute a ' shop ' there must be some structure of a more 
 or less permanent character : " per Miller, J., Hooper v. Eenshole, 2 Q. B. D., 
 127. It must be something "more than a mere place for sale;" it imports 
 a place for storing, also where the commodities admit of storing : per Miller, J., 
 Pope V. Whalley, 6 B. ds S., 308 ; Llandaff v. Lindon, 8 C. B. N. S., 615 ; 
 Fearon v. Mitchell, L. B. 7, Q. B. 690 ; McHole v. Oavies, 1 Q. B. D., 59. A 
 wooden shed affixed to a house and supported on wooden posts was held fo be 
 a shop : Ashworth v. Heyworth, 10 B. <& S., 809 ; see also Wiltshire v. Baker, 
 6 L. T., 856 ; Wiltshire v. Willet, 11 0. B. N. S., 287. A private bouse con- 
 verted into a place for selling photographs, albums, etc., is a " shop : " 
 Wilkinson v. Bogers, 2 D. G. J. & S., 62. A tavern was held not to be a " shop :" 
 Coombs V. Cook, Gab. <& El., 76. See note {k), sec. 11, p. 21. 
 
 (a) " Eating-house." The meaning of this term is quite obvious. 
 
 (6) The meaning of the term " saloon," as defined by Worcester, is ** a place 
 of refreshment." Some humorous references to the decisions on the meaning 
 of the term are to be found in " Drinks, Drinkers, and Drinking," by B. Y. 
 Rogers, jr., in 27 Alb., L. J. He says : " Judges do not exactly know, at least 
 when on the bench, what a ' saloon ' is. They say it does not necessarily 
 import a place to sell liquor ; that it may mean a place for the sale of generiJ 
 refreshments, Eitson v. Mayor of Ann Arbor, 26 Mich., 326 ; or, that it may 
 mean a room for the reception of company, or for an exhibition of works of 
 art, etc.. State v. Mansker, 36 Tex., 364. * « « * Neither an enclosed 
 park of four acres in extent, nor an unenclosed and uncovered platform, 
 erected for dancing and where lager beer is sold, can rightly be considered a 
 ' saloon ' or a ' house ' or ' building ' within the meaning of the Connecticut 
 Statute forbidding Sunday selling of intoxicating liquors, etc., State v. Barr, 
 39 Conn., 41." Mr. Boger's paper is also to Le found in 16 L. J. N. S., 289. 
 
 But a *' saloon " is now usually held to mean " a place where intoxicating 
 liquors are sold:" McDougall v. Qiaoomini, 18 Neb., 484 (1882) ; Anderson's 
 Diet., 917. 
 
 (c) See note (b) to sec. 420, ante. ' 
 
 {d) Sec note (o) to sec. 11, p. 29, ante. 
 
 («) See note (A;) to sec. 11, p. 21, ante. 
 
 if) See note (b) to sec. 2, p. 2, ante. 
 
 (g) See note (d) to sec. 2, p. 6, ante. 
 
 {h) " Duly licensed," means licensed by the proper persons in the manner 
 and under the authority of the Act : See Butcher v. Steuart, 11 M. & W., 857 ; 
 R. V. West Biding Jus., 1 Q. B. D., 220 ; Lloyd v. Ingleby, 16 M. & W., 466 ; 
 R. V. Glamorgan, 40 J. P., 150. See also note (e) to sec. 2, p. 6, ante. 
 
 (i) The tenant, though absent, is osnally the " occupier " of premises : B. v. 
 
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 THE LIQUOR LICENSE ACT. 
 
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 of any such shop, eating-house, saloon, or house of public 
 entertainment, unless duly licensed, permit any liquors, (J) 
 whether soid by him or not, to be consumed upon the 
 premises, (k) by any person other than members of his 
 
 Poynder, 1 B. <& C, 178, bat a servant or other person, who may be there 
 virtute offleii, iu not an ooonpier : Clarke v. St. Mary, Bary St. Edmunds, 
 1 G. B., N. S., 23; Bent v. Roberts, 8 Ex. D., 66; B. v. Sparrell, L. B., 
 1 Q. B. 72. See also Saunders v. Pitfield, 4 Times Bep., 288. 
 
 The ordinary meaning of the term " oooupant," is " one who has the actual 
 use or possession of a thing," and the legal definition aa given by Burrill, is 
 " one who takes possession of a thing of which there is no owner, or of a thing 
 which has been abandoned : " Worcester, 983. See also Wharton's Diet., 615. 
 ' ' Occupancy is the thing by which title was in fact originally gained ; every 
 man seized to his own continued use such spots of ground as he found most 
 agreeable to his own convenience, provided he found them unoccupied by any 
 one else: " Blaokstone, (by Eerr, 4th Ed.) Vol. II., p. 74. *' Occupancy is the 
 taking possession of other things which before belonged «o nobody : " 2 Broom 
 & Hadley's Com., p. 411. But it was held, O'Connor, J., dissenting that an 
 " occupant " to be within the terms of the 46 Vic, c. 24, s. 9, (D.) must be a 
 pro(irietor or tenant of the land : Conway v. Canada Pacific B'y Co., 7 0. B., 673. 
 
 An "occupant "is defined by Wharton as "he who is in possession of a 
 thing :" see Wharton's Diet., 615. See also Stroud's Diet. , 624, 625. See also 
 sec. 112, ss. 8. 
 
 {j) The word "permit" means the same as su£Fer: per James, L. J., Ex 
 parte Eyston 7, Ch. D. 145, and " permitting and suffering " do not bear the 
 same meaning as " knowing of and being privy to;" the meaning of them is 
 that the covenanter should not concur in any act over which he had control : 
 per Bayley, J., Hobson v: Middleton, 6 B. & C, 808 ; nor does the phrase mean 
 ' to hinder and forbid :" per Lopes, L. J., Hall v. Bwin, 87 Ch. D., 74 ; Bo% 
 V. Bent, L. B. 3, Eq. 769. 
 
 It was held that a sale in which the lessee took no part, but which was made 
 under a Bill of Sale he had given was not " permitted " by hiro : Toleman v. 
 Portbury, L. B. 7, Q. B. 844. See also note (d), sec. 2, p. 6, and note (j), p. 120. 
 
 It is to be observed that there is no exception or proviso in this section ; but 
 sec. 61 enacts that sees. 49 and 60 shall not prevent any brewer, distiller, or 
 person duly license' by the Qovemment of Canada for the manufacture of 
 fermented, spirituous, or other liquors,- from keeping, having or selling any 
 liquor manufactured by him, etc., and the 62nd sec. also excepts " any chemist 
 or di nggist duly registered " ifrom the provisions of this section ; but it was 
 held that a conviction under this section need not negative the exceptions con- 
 tained in sees. 61 and 52. It was also held that the penalty attaches where the act 
 complained of was done either by the occupant or any other person, and " that 
 the occupant should be in all cases responsible, and that he should not be 
 heard to say that the act was done by some other person without his directions :" 
 B. V. Breen, 36 U. C. B., 87. 
 
 Since this decision the section has been amended by the addition of the latter 
 part of the section from the word "Act " in the sixth line, thus prohibiting the 
 consumption of liquors on the premises, whether sold by the occupant or not. 
 
 It was held that two several defendants could not be jointly convicted of an 
 offence under this section and that the award of one penalty against them 
 jointly was erroneous : B. v. Sutton, 42 U. C. B., 220 ; see Gill v. Bright, 26 
 L. T. N. S., 691, cited Paterson's L. A., 14. See also B. v. Ambrose, 16 O.B. 
 251. 
 
 (A;) " Consumed upon the premises." Where a beer retailer placed a bench 
 
 
SS. 50, 5 I.J THE LIQUOR UCENSK ACT. H5 
 
 family (/> or employees, (/«) or guests («) not being cus- 
 tomers, (o) R. S. O. 1877, c. 181, s. 40 ; 47 V. c. 34, s. 8. 
 
 . Seotions 
 
 9m.» (i) Sections' 49 and 50 shall not prevent any 4otonotto 
 brewer (/), distiller (^), or other person {r) duly licensed brewers, 
 
 oco* 
 
 just outside his street door, and bis oastomers sat on the bench whilst drinking 
 ale he supplied to them, it was held that the ale was sold " to be consumed on 
 the premises :" Gross v. Watts, 18 0. B. N. 8., 239 ; but ale handed through 
 •\ window to a customer who called for it and drank part of it whilst standing 
 on the highway, was held not to have been sold "to be consumed on the 
 premises," though he drank the remainder whilst sitting on the window sill of 
 the house : Deal v. Sohofield, L. B. 3, Q. B. 8. Bee also notes to sec. 112. 
 {I) See note (n) to sec. 27. 
 
 (m) An "employee" is "one who is employed; an official; a clerk; a 
 Hervant :" Worcester, 478. It applies equally to a person within or without an 
 oflice, whether a servant or clerk: Webster's Diet. It usually embraces a 
 laborer, servant, or other person occupied in an inferior position : Onrney v. 
 Atlantic, etc., By. Co., 2 N. T. Sop. Ot., 463, (1878). 
 
 (n) An inn-keeper's "guest" ii a traveller who by himself, or his beast, has 
 been, however temporarily, accepted to and remains under hospitality within an 
 inn or its curtilage : Oalye's case. 1 Sm. L. 0., EdsonEd. 261 and cases there cited; 
 Strauss v. County Hotel Co., 18 Q. B. D., 27 ; Sinclair's L. & T., 124. The 
 term in its ordinary acceptation means a visitor ; one who is entertained at the 
 table of another : Worcester, 647. 
 
 (0) A "customer" means vx aooustomed buyer: see Worcester, 852. A 
 distinction is here made between those guests who are merely entertained as 
 Buoh, and those who visit the oooapant for the purpose of dealing or trading as 
 well as for entertainment. Xt was held that the word " customer " included 
 intending as well as actual oastomers : McLean v. Dun, 39 U. 0. B., 661 ; 
 S. G. 1, App. B. 168. See remarks of Patterson, J. A., at page 172 of that 
 report. 
 
 An agreement, the objeot of which ia to enable an unlicensed person to sell 
 spirituous, fermented or manufactured liquors without a license, is illegal and 
 cannot be enforced at law. See note (() to seo. 49 ; also sec. 126 and notes 
 thereto, and see also notes to seo. 108, 
 
 (p) By the Inland Btvenne Aot, B. S. 0., 1886, 0. 34, s, 172, ss. 0, the expres- 
 sion " brewer," is defined to mean and include any person who occupies, carries 
 on, works, or oondaots any brewery, either by himself or his agent. A 
 " brewery " means and inoludes any place or premises where any beer or malt 
 liquor, or beverage in imitation of malt liquor, is manufactured, <&c. 
 
 A Dominion license nany be granted to any person who has complied with 
 the conditions of the Inland Bevenue Aot, if the district Inspector of Inland 
 Revenue has approved of granting it, and the applicant has given security in 
 the sum of 91000, in a bond to be entered into by himself and two good and suffici- 
 ent sureties, before the Collector of Inlrnd Bevenue, his deputy or other officer 
 authorized thereto by the Department of Inland Bevenae. See B. S. 0., 1886, 
 0. 34, sees. 173-176. 
 
 {q) By the Inland Bevenue Aot cited above, the expression " distiller " means 
 and inoludes any person who conducts, works, occupies, or carries on any dis- 
 tillery, or who rectifies any spirits by any process whatsoever, either by himself 
 or his agent ; and every person making or keeping beer, or wash, prepared or 
 in preparation, or fit for distilling, or low wines or faints, or having in his 
 possession or use a still or rectifying apparatus, shall be deemed to be a 
 distiller and liable to Uie wrwii dutiei, obligations, penalties and forfeitures 
 
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 it ! 
 
 116 
 
 THE LIQUOR LICENSE ACT. 
 
 [S. 5t. 
 
 by the Government of Canada for the manufacture of 
 fermented, spirituous, or other liquors (s), from keeping, 
 having or selling (/) any liquor manufactured by him in 
 any building wherein such manufacture is carried on, pro- 
 vided such building forms no part of and does not com- 
 municate (?/) by any entrance with any shop or premises 
 wherein any article authorized to be manufactured under 
 such license is sold by retail (v), or wherein is kept any 
 broken package of such articles. 
 
 (2) Every such brewer, distiller, or other person {7t>), 
 
 impoBod by law on distiilers, or who has in his possesBion, complete or partially 
 eompleted, or who imports, makes or manufaotares, in whole or in part any 
 ■till, worm, rectifying or other apparatus suitable for the manufaotnre of wash, 
 beer or spirits. A license may be granted to a distiller under similar oiroum- 
 stances to those governing the issue of a brewer's license. See the Inland 
 Bevenue Act, sees. 122-126. 
 
 (r) The other licenses provided for in the Inland Bevenue Act are licenses to 
 rectifiers ; importers or makers of apparatus ; manufacturing chemists or 
 druggists ; compounders of imitations of British or foreign wines, brandy, rum, 
 gin, Old Tom, Geneva schnapps, British or foreign whiskey, and bitter liquors 
 and cordials, when containing alcohol ; maltsters and bonded manufacturers. 
 
 The general provisions as to licenses are to be found in sees. 9-26 of the 
 Inland Bevenue Act. 
 
 The Court of Queen's Bench held that to entitle a brewer or distiller to sell 
 liquor manufactured by himself, it was not necessary to obtain a license from 
 the Provincial Oovemment ; but that decision was reversed by the Oourt of 
 Appeal, and afterward restored by tbe Supreme Court : see B. z>. Taylor, 36 
 U. C. B., 188 ; 8. C, 86 U. 0. B., 218 ; B. v. Severn, 2 S. C. B., 70. See also 
 B. V. Scott, 84 U. C. B., 20 ; Slavin and The Corporation of Orillia, 36 
 U. 0. B., 172 ; and see notes to sec. 84, ante, p. 72, and note {t) to sec. 49. 
 
 (f ) See notes to sec. 2, ante, p. 2. The word " liquors " has a most 
 comprehensive meaning, and includes all kinds of liquors : Morrison, J., B. v. 
 Scott, 84 U. 0. B., 26. 
 
 (t) See note («) to sec. 60. 
 
 (u) See note (v) to sec. 74. There is a similar provision in the Dominion 
 Act respecting licensed manufacturers : see Inland Bevenue Act, B. S. 0. 1886, 
 0. 34, s. 15, ss. 8. 
 
 (v) This applies to all persona holding a license to manufacture, and, there- 
 fore, every person holding a license as a manufaotOring brewer or distiller, or as 
 a wholesale dealer, must keep his premises separate and distinct from any 
 placd in which a retail liquor business is carried on. See note (s) to sec. 35, 
 as to meaning of the word " retail." 
 
 (to) Under the B. N. A. Act the power to regulate trade and commerce rests 
 exclusively with the Dominion Parliament, as also the right to raise money by 
 the mode of indirect taxation, except so far as the same may be expressly given 
 to the Loeal Legislature. Making it necessary to take out and pay for a license 
 to sell by wholesale or retail, spirituous, fermented, or other manufactured 
 liquors is raising money by the indirect mode of taxation. The powers of the 
 Local Legislature are restricted to '* shop, saloon, tavern, auctioneer and other 
 licenses, in order to the railing of a revumo for provinoial, loeal, or municipal 
 
 
s.5>.] 
 
 THE LIQUOR LICENSE ACT. 
 
 117 
 
 shall also first obtain a license to sell by wholesale under 
 this Act the liquor so manufactured by him, when sold for 
 consumption within this Province, under which license the 
 said liquor may be sold by sample (x), or in original pack- 
 ages (y), in any Municipality, as well as in that in which it 
 is manufactured ; but no such sales shall be in quantities 
 less than those prescribed in sub-section 4 of section 2 of 
 this Act. R. S. O. 1877, c. 181, s. 41. 
 
 pnrposes, bat it was not intended by the words ' other lioensos ' to enlarge the 
 powers referred to beyond shop, saloon and tavern licenses, in the direction o( 
 licenses to effect the general purposes of trade and commerce and the levying 
 of indirect taxes, but rather to limit them to licenses which might be required 
 for objects which were merely Municipal or local in their character :" per 
 Ritchie, 0. J., Severn v. The Queen, 2 S. 0. B., at pp. 96, 97. It was held, 
 therefore, that the power to tax and regulate the trade of a brewer, being a 
 restraint and regulation of trade and commerce, falls within the class of subjects 
 for the exclusive Legislative authority of the Parliament of Canada ; and that 
 the license imposed was a restraint and regulation of trade and commerce and 
 not the Dzsroise of a police power ; and that the right conferred on the Ontario 
 Legislature to deal exclusively with shop, saloon, tavern, auctioneer and " other 
 licenses " does not extend to licenses to brewers or " other licenses " which 
 are not of a local or Municipal character. 
 
 It was also held that a brewer licensed to manufacture ale, (bo., at Palmerston 
 under a Dominion License, was authorized to sell in other places within the 
 Province without taking out a Provincial License. " He pays one Oovemment 
 for the privilege of brewing, he cannot be compelled to pay another for the 
 privilege of selling:" per Bose, J. : B. v. Young, 8 0. B., 476. 
 
 The following oases in the U. S. Gourts are referred to : 
 
 A license received under an Act of Congress, gives no right to keep or sell 
 intoxicating liquors in violation of a State law, and is no defence to a Statute 
 of the State : McQuire v. Massachusetts, 8 Wall, 387 ; United States v. Vassar, 
 6 Wall, 462 ; Gamey v. Iowa, ib. 480. 
 
 The requirement of payment of such license is only a mode of imposing taxes 
 on the licensed business ; and the prohibition under penalties, against carrying 
 on the business without license, is only a mode of enforcing the payment of 
 such taxes : Idem. 
 
 The provision of the Acts of Oongress requiring such licenses and imposing 
 penalties are constitutional : United States v. Vassar, 5 Wall, 462. 
 
 A fine of $50 and imprisonment at hard labor for 8 months is not excessive 
 cruel or unusual : Oarney v. Iowa, 6 Wall, 480. The above oases are cited in 
 Index Pig,, U. S. Sup. Gt., p. 936. See also Danforth's Dig., 663. 
 
 {x) " A sale ' by sample ' has only reference to the quality of the article 
 sold : " per Parke, B., Nichol v. Godts, 10 Ex., 191. In that case the contract 
 was for " Foreign refined Bape Oil, warranted only equal to samples." It was 
 held that the buyer was not bound to accept oil which corresponded with the 
 samples, but was not Foreign Befined Bape Oil ; se also Azemar v. Gasella, 
 L. B. 2, 0. P. 677 ; Heyworth v. Hutchinson, L. B. 2, Q. B. 447. But a sale 
 by sample simpliciter is a warranty that the bulk shall be equal to the sample : 
 Parker v. Palmer, 4 B. <& Aid., 887 ; yet a sale by sample does not exclude im- 
 plied warranty of merohantable quality respecting such matters as the sample 
 
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 Rev. Stat, 
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 THE LIQUOR LICENSE ACT. 
 
 Is. 5-' 
 
 (ktB» (i) The said sections numbered 49 and 50 ol 
 this Act shalll not prevent any chemist or druggist (5) duly 
 registered as such under and by virtue of IVie Phar <cy 
 Actt from keeping, having or selling {a) liquors for strictly 
 medicinal purposes, {b) and then only in packages of not 
 
 would not diBoloae to a parobaser using ordinary skill and diligence : Mody v. 
 OregBon, L. B. 4, Ex. 4U ; Drummond v. Van Ingen, 12 App. Oas., 284. 
 (2/) " Original packages." See note (p), sec. 85. 
 
 (2) " Chemist and druggist." A " chemist " is a professor of, or one who in 
 versed in, the science of chemistry : Worcester, 282 ; and a " druggist " is a 
 dealer in drugs and medicines : Worcester, 480. A pharmaceutical chemist Ih 
 one who prepares medicines. " The Pharmacy Act," K. 8. 0., c. 161, s. 1<J, 
 enacts, that " that any person registered under this Act, and no other person, 
 shall be entitled to be called a pharmaceutical chemist," and no other than a 
 pharmaceutical chemist, or his employees, are authorized to dispense medicines ; 
 and by sec. 24 no one is allowed to assume the title of " Ohemist and Druggist," 
 or " Chemist " or *' Druggist" or " Pharmacist " or " Apothecary " or " Dis- 
 pensing Chemist " or " Dispensing Druggist," in any part of Ontario, unless 
 so registered. But such enactment does not apply to medical practitioners. A 
 ohemist ma^ prepare and vend, but not prescribe or admininitter, medicines : 
 Allison V. Haydon, 4 Bing., 621 ; see also B. S. 0. 1887, 0. 148 ; cited note (/), 
 infra. 
 
 " A ohemist is one who sells medidnea which are ^ked for ; he does not 
 select the medicines : " per Oreswill, J., Apothe ' Go. v. Lotinga, 2 
 Moo. & B., 600. 
 
 In the United States a " druggist," in the popular acceptation, is " one who 
 deals VI medicines, or in the materials used in the preparation of medicines," 
 in its largest signification : Mills v. Perkins, 120 Mass., 42 (1876) ; and 
 properly, one whose occupation is to buy and sell drugs without ooinponndinR 
 or preparation : State v. Hobnea, 28 La. An., 767 (1876). 
 
 (a) " Keeping, having or selling." See notes to sec. 60. 
 
 Formerly the provision against selling intoxicating liquors without a license, 
 in the Liquor License Act, contained no exception in favor of chemists or drug- 
 gists. The Act 86 Vic, 0. 81, s. 1, (0), prohibited persons from keeping or 
 having in any house, shop, iftc, any spirituous liquors for the purpose of selling 
 therein unless licensed thereto. But that provision was not to apply to brewers 
 or distillers doly licensed by the Government of Canada, nor to any "chemist 
 or druggist," &o. It was held that this merely referred to the keeping of liquor 
 for the purposes of selling, but did not authorize chemists and druggists to sell, 
 per Bichards, 0. J. : B. v. Denham, cited below. 
 
 But by 37 Vic, 0. 82, the provisions of the Statute respecting chemists and 
 druggists were amended by sec. 27, so as to permit the sale of liqaors by them, 
 for striotly medicinal purposes, in packages of not more than 12 ounzes at one 
 time, except under a certificate from a registered medical practitioner. ^ 
 
 (h) It was held that on an information against a registered druggist for selling 
 spirituous and intoxicating liquors by retuU, without having the license to do so, 
 as required by law, the said spirituous and intoxicating liquor having been sold 
 for other than striotly medicinal purposes only, it was not necessary to shew 
 that the defendant was not licensed to sell liquor, that it was for him to shew 
 that he was licensed ; that the magistrate having decided that it was not bought 
 for medieal purposes, and did not think the evidence shewed it was so sold, the 
 Court oonld not quash the conviction for want of evidence ; and that selling a 
 bottle of brandy for $1.86, was a sale by retail : B. v. Denham, 86 U. 0. B., 603. 
 
5^-J 
 
 THE LIQUOR LICENSE ACT. 
 
 119 
 
 more than six ounces (c) at any one time (J) except under 
 certificate {e, .Vom a registered medical practitioner ; (/) but \ 
 
 it shall be the duty of such chemist or druggist to record in 
 a book, (^) to be open to the inspection (A) of the license 
 commissioners or inspector, every sale or other disposal by 
 him of liquor, and such record shall show as to every such 
 sale or disposal, the time when, the person to whom, the 
 ([uantity sold, and the certificate, if any, of what medical 
 practitioner, and in default of such sale or disposal being so 
 
 Au to what ia a sale by retail Bee Oorsaoh v. Batterfield, 2 Wis., 237, and also 
 note (x) to seo. 86. 
 
 The mere faot that a person saya he wants liquor as a , medicine will not 
 exonerate a druggist from the charge of selling it as a beverage, nor entitle the 
 druggist to sue for it in the Division Court : See State v. Enowles, (Iowa), 
 II N. W. Bep., 620. It was held ii one case, that where the sale was by a drug- 
 gist, as alleged, to fill perscriptions, proof of other sales was admissable to show 
 intent by proof of prescription and the quantity of liquor it called for : Dobson v. 
 State, 6 Lea, (Tenn.,) 271. 
 
 (c) " Not more than six ounces " means six ounces or less ; the maximum 
 quantity allowed to be sold without the certificate of a registered medical prac- 
 tioner being six ounces. 
 
 {d) " At any one time " means at the same time, see Hood v. Franklin, L. B. 
 16, Eq. 406 ; St. Leger v. Magniac, W. N. (188U), 183. 
 
 («) The usual meaning of " certify " does not require anything written ; 
 otherwise, why should parties ever expressly stipulate as to certifying in writ- 
 ing? per Byles, J., Roberts v. Watkins, 14 0. B. N. S., 692 ; it was there held 
 that an architect's certificate need not be in writing unless so stipulated. But 
 the meaning of the word " certificate," as defined by Wharton, is " a testimony 
 given in writing to declare or verify the truth of anything : " Wharton's Diet., 
 121. See note (to) to sec. 11, p. 32, ante. 
 
 It is an offence against the Aet to give a colorable certificate ; see ss. 2. 
 
 (/ ) " Medical practitioner." The Statutes respecting the medical profession 
 are 29 Vic, 0. 84 ; 32 Yic, c. 46 ; 87 Vic, 0. 80; B. S. 0., c. 142, and B. S. 0., 
 0. 148. For the provisions as to the registration, see sees. 21-38 of the last- 
 mentioned Act. By seo. 60 certificates by unregistered persons are declared to 
 be invalid, and any person wilfully or falsely pretending to be a registered 
 practitioner is liable to a penalty not exceeding 960 and not less than $16, 
 (sec. 46) and any person using a title implying that he is registered, is liable to 
 a penalty not exceeding $100 nor less than 926. 
 
 {g) The expression " to record " means to register or enrol, so as to preserve 
 the memory of the fact or transaction or occurrence taking place. The terms 
 "record" and "register," as used here, are synonymous: see Worcester 
 1195 ; Wharton, 626. It is the duty of the chemist or druggfst to enter in his 
 book, 1. the fact of the sale ; 2. the time of sale ; 3. the person to whom the 
 liquor is sold ; 4. the quantity sold ; 6. particulars of the certificate, if any, and 
 B, the name of the medical practitioner by whom it was given. 
 
 The record applies to all sales whether under a doctor's certificate or not. 
 
 (h) " Open to the inspection." This expression conveys the meaning that 
 the persons referred to («. g., the License Commissioners and Inspector) are to 
 have free access to the book kept by the chemist or druggist at all reasonable 
 times as a matter of right. 
 
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 THE LIQUOR LICENSE ACT. 
 
 [S. 52. 
 
 Medioal 
 praoti- 
 
 placed on record, (/) every such sale or disposal shall, //•//«« 
 faa\;, (j) be held to be in contravention (k) of the provisions 
 contained in the said sections 49 and 50 of this Act. (/) 
 R. S. O. 1877, c. 181, s. 42 ; 44 V. c. 27, s. 4. 
 
 (2) Any medical practitioner or Justice of the Peace (m) 
 tionef or who colourably («) gives a certificate or requisition {0) for 
 
 (i) The ooDBeqaenoes entailed by negleot of the ohemist or droggist to make 
 the neoespAry entries will eneae whether saoh negleot is intentional or not. In 
 such case the burden of proving that the sale is legal will fall apon the person 
 making suoh sale. 
 
 ij) A " sale " is defined by Blaokstone as " a transmutation of property from 
 one man to another in consideration of some price. A more modern writer 
 has defined it to be " a transfer of the absolute or general property in a thing 
 for a price in money :" Benjamin ou sales, 2nd ed., p. 1 ; Smith's Mer. Law, 
 10th ed., vol 11, p. 696. 
 
 "To dispose" means to give away; to bestow: Worcester, 421. But the 
 word " disposal " is used here in a wider sense than this. The word " dispose " 
 can be applied in many ways. A person may dispose of his property or business 
 by gift, exchange or sale ; a person may have a disposing mind as in making 
 his will, meaning that he is conscious of the act he is doing ; a person may 
 dispose his grounds or books according to 8, certain plan or order ; and a 
 person may not be disposed to do a particular act, meaning that he is not , 
 inclined to do it : per Wilson. C. J., B. v. Hodgins, 12 O. B. 867, at p. 371. 
 In this case it was held that there was no variance between the information aud 
 conviction because the former used the expression " disposal," and the latter 
 "sale." The word is also considered in Oliver v. Hyman, SO U. C. B., 517. 
 See aldo Stroud's Diet., 218, 219. See note («) to sec. 64. 
 
 *< Prima facie " evidence is that which not being inconsistent with the falsity 
 of the hypothesis, nevertheless raises such a degree of probability that it must 
 prevail if it be credited by the jury unless it be rebutted, or the contrary 
 proved : Wharton, 681. 
 
 (k) " Contravention " means an act done in violation of a legal condition or 
 obligation : Wharton, 177. 
 
 (l) See schedule D. , No. 11, for form of conviction. See also as to breaches 
 of this section, sec. 101, sub-sec, 6. 
 
 (tr) The reference is to the certificate of a Justice of the Peace under sec. 64, 
 authorizing the sale of liquor for medicinal purposes by licensed liquor vendors 
 during prohibited hours, on the production by the purchaser of a certificate of 
 a licensed medical practitioner, or a Justice of the Peace, but such liquor is 
 not to be drunk on the p emises. 
 
 (n) The ordinary meaning of the word " colorable," as defined by Worcester, 
 is " specious, plausible ; " e. g.. having the appearance of truth but not being 
 so in rehl'icy. The word means the reverse of bona fide : Stroud's Diet., 137 ; 
 and see judgment of James, L. J., Etherington v. Wilson, 1 Oh. D., 160. A 
 colorable act is one which is d«ne for the purpose cf evading the law, and any 
 certificate given for thbt purpose would come within tiiis section. See 
 Wharton's Diet., 162 ; Worcester, 260, 1183. 
 
 (0) "Certificate or requisition." This is, no doubt, intended to cover the 
 oaso of a certificate given by a medical practitioner to another person for the 
 purpose of obtaining intoxicating liquors, as well as the case of a medioal 
 practitioner obtaining such liquors for his own use. A requisition ordinarily 
 means " an application for a Uting to be done by virtue of some right." 
 
i 
 
 s. 52.J 
 
 THE LIQUOR LICENSE ACT. 
 
 121 
 
 medical purposes, without which liquor could not be lawfully ^ ^*"» 
 obtained, (/) or be lawfully obtained from a chemist or ^i^® j*j. 
 druggist in quantities of more than six ounces, (^) to enable t|9«»'o' 
 or for the purpose of enabling (r) any person to obtain (s) cdour- 
 liquor to drink as a beverage, (/) shall, for the first offence, 
 be liable to a penalty of not less than $10 nor more than 
 $L'0, and for a second or any subsequent offence, («) of not 
 less than $20 nor more than $40. 47 V. c. 34, s. 12. 
 
 (3) Nothing in this section shall restrict the sale of ^^^f' 
 methylated alcohol, (v) or oil of whiskey or other medicines 
 for cattle or horses, (w) 50 V. c. 8, Sched. 
 
 See note (y), seo. 34. 
 
 (j>) " Lawfully obtained." This has reference to the selling of liquor for 
 medicinal purposes, permitted under seo. 54. 
 
 (q) " More than six ounces." This applies to sub-s. 1 of this section. 
 
 (r) In the case of a contravention of the English Salmon Fishery Act, 1865, 
 it was held : " That an unlicensed person does not fish ' for ' salmon unless he 
 tishes lor the purpose of catching salmon^ etc.:" Marshall v. Biohardson, 58 
 L. J. M. C, 45 ; but the intent is immaterial qua the offence of using without 
 liceuso an instrument othei than that permitted by the Act for catching salmon, 
 etc., Lyne v. Leonard, L. B. S, Q, B. 156. 
 
 (ii) " To obtain " means " to (set, to acquire : " Worcester, 982. The word 
 ' obtain ' means the same as the word * get ' in its sense of * acquire ' :" per Maule, 
 J., B. V Garrett, 1 Deers, G. 0., 232, cited Bosooe's Grim. Evi., 11th Ed., 471. 
 But in the case of obtaining money by false pretences it has a special meaning. 
 See BoBcoe's Grim. Evi., 471 ; Stroud's Diet., 523. In this section the meaning 
 i8 clear, it is to get intoxicating liquor for the purpose of drinking it. 
 
 (t) The word " beverage " is defined by Worcester as " liquor to be drunk." 
 If the liquor is supplied for the purpose of being drunk, it is sufficient : "as a 
 beverage," would seem to be mere surplusage. But it is here used, however, to 
 distinguish between liquor used for medicinal purposes, and Uquor which is 
 drunk in the ordinary way '* as a beverage." 
 
 (u) See notes to sec. 101, for formalities and evidence required for conviction 
 for a second offence. 
 
 (zf) " Methylated alcohol," usually known as " methylated spirit," is com- 
 posed of alcohol mixed with wood naptha, in such proportions and subject to 
 such regulations as the Department of Inland Bevenue may determine. See 
 The Inland Bevenue Act, B. S. G. 1886, c. 34, s. 284. 
 
 By 61 Vic. 0. 16, s. 7, (D), " when wood naptha, wood alcohol or any similar or 
 equivalent substitute for methylated spirit is to be used for manufacturing pur- 
 poses, it shall be supplied to the manufacturer by the Department of Inland 
 Revenue, or by such agency and on such conditions as are determined by 
 departmental regulations in that behalf, and the price thereof shall not exceed 
 the actual cost with the addition of fifteen per cent. 
 
 (w) " Oil of whiskey," 0..' " oil of wine " is an essential oil obtained in the 
 distillation of spirits and is usually destroyed, in this country, under the juper- 
 vision of an Inland Bevenue Officer. 
 
 Aa to sale by druggists, see Oommonwealth v. Bamsdell, 25 Alb. L. J., 366 ; 
 Wright V. People, 101 lUinois, 126. 
 
^ 
 
 hi 
 
 
 ' i: 
 
 IN 
 
 if 
 
 ?.i» 
 
 |K| r 
 
 III * i' 
 
 - II* i ': 
 
 /'ii' 
 'I 
 
 I2i 
 
 Clubs or 
 societies 
 incorpor- 
 ated 
 under 
 Rev. Stat, 
 o. 172, not 
 to sell 
 liquors. 
 
 THE LIQUOR LICENSE ACT. 
 
 CLUBS, 
 
 [s- 53- 
 
 4»8a (i) Any Society {x), Association (_y) or Club (z), 
 which has been or shall be formed or incorporated (a) under 
 T/ie Act respecting Benevolent, Provident, and other Societies 
 {i>), and any unincorporated Society, Association or Club, 
 and any member {c), officer {d) or servant {e) thereof, or 
 person resorting thereto (/), who shall sell or barter {}:;) 
 liquor to any member thereof or to any other person {h) 
 
 (x) " Society " means an assooiation of persoDs united together by mutual 
 consent. It may be formed for the purpose of deliberation, or to determine 
 and act jointly for some common purpose, or for the promotion of some object, 
 either literary, religions, benevolent, political, or convivial. They are either 
 incorporated, in which case they are known to the law, or unincorporated, of 
 which the law does not generally take notice. Such associations as are formed 
 for commercial purposes or for purposes of gain are' usually called companies, 
 or partnerships. Those formed for convivifd or political purposes are most 
 usually denominated clubs. 
 
 (y) An "association" is a very similar organization to a " society," in fact, 
 according to lexicographers, the terms "society" and "association" are 
 synonymous. 
 
 (z) " Clubs " or club-houses are associations to which individuals subscribA 
 for the purposes of mutual entertainment and convenience, the affairs of which 
 are generally conducted by a steward or secretary, who acts under the immediate 
 superintendence of a committee. The members of a club, merely as such, are 
 not liable for debts incurred by the committee for work done or goods supplied : 
 Wharton, 145. See Flemyng v. Hector, 2 M. A W., 172. 
 
 (a) " Incorporation means the formation of a legal or political body with the 
 authority of perpetual existence and succession, except so far as it may be limited 
 by the Act under which it is incorporated :" Wharton, 864. See note (h), p. 44, 
 ante. 
 
 (6) The Act respecting Benevolent, Provident, and other Societies, B, S, 0. 
 1887, c. 172, provides that a society may be formed of any five persons, of full 
 age, for any purpose which is not illegal, except for the purpose of trade and 
 commerce, or for any of the purposes provided for by a schedule given in the 
 Statute. B. S. 0. at page 1699. 
 
 \e) It was held that the word "members " in s. 199 of the English Companies 
 Act, 1862. does not necessarily mean shareholders : re South London Fish 
 Market, 89 Gh. D,, 824. 
 
 (ri) Neither a banker nor a solicitor is an " officer of a Joint Stock Company," 
 within the meaning of s. 165 of the English Companies Act, 1862 ; but a trustee 
 may be. See Stroud's Diet, and cases there cited. The officers to he appointed 
 under the Act are trustees, a treasurer, a secretary and other offioars. It is 
 presumed that such officers as are named in the Act, and such other officers as 
 the association may appoint under it, would come within this section. 
 
 {e) See note (() to sec. 85, ant«. 
 
 (/) " To resort " means " to have recourse ; to betake oneself ; to go ; to 
 repair : " Worcester, 1224. 
 
 (g) See note (./) to sec. 62, ante, for consideration of the term sale ; also see 
 note (d) to sec. 2, p. 5, as to the term " sale and barter." 
 
 {h) "Any other person." This expression is comprehensive and includes 
 every one to whom a sale may be made. See note (o) to sec. 11, p, 29, ante. 
 
s- S3-] 
 
 THE LIQUOR LICENSE ACT. 
 
 123 
 
 without the Hcense therefor by this Act required, shall be 
 held to have violated section 49 of this Act, and shall incur 
 the penalties provided for the sale of liquor without 
 hcense (/). 
 
 (2) (/) The keeping or having in any house or building. Keeping 
 or in any room or place occupied or controlled (k) by such by.oiubs 
 
 ■' '^ '^ ^ ' ^ or Bocie- 
 
 Club, Association or Society, or any member or members "eaa 
 
 •" ■' violation 
 
 thereof, or by any person resorting thereto, of any liquor of sec. 50. 
 for sale or barter, shall be a violation of section 50 of this 
 
 Act. 
 
 >_ 
 
 (i) This section was amended by 63 Yio., c. 66, s. 4. It was formerly appli- 
 cable only to the Societies incorporated nncter " The Act respecting Benevolent^ 
 Provident and other Societies, and any unincorporated Society, Association or 
 Club, which ha$ been or may be formed or carried on $peeiaUy or chiefly for the 
 purpoie of selling, bartering, or supplying, or of enabling any such Society, At$o» 
 elation or Club, to sell, barter, or supply liquor to the members thereof, or to 
 others, without a license under this Act, and so as by means of such organization to 
 evade the operation of this Act." But the words in italics were stmck out, the 
 effect of which was to extend the Act to every sort of organization which may 
 be formed for any porpose whatever, if incorporated " under the Act respecting 
 Benevolent, Provident and other Societies," or if unincorporated. Previous to 
 this amendment it was held that where liquor was supplied to members, but 
 where such sale was not the special or main object of the Club, etc., but merely 
 an incident resulting from its principal object, there was no violation of the 
 License Act ; but that if the sale or supplying of liquor was the main object of 
 the incorporation it would be otherwise. It was also held that the question 
 was one for the decision of the Magistrates on the evidence, andr where the 
 Magistrate found that the speaial or main object of the Glub was the sale of 
 liqaor with intent to evade the Liquor License Act, the Court refused to 
 interfere with the finding : B. v. Austin, 17 0. B., 743. 
 
 Under the English Licensing Act it was held that where there is a Olub or 
 AsBooiation of persons, such as a Subscription Olub, who buy liquor for the whole 
 body and then distribute it among the members according to rules and by-laws 
 of their own, there would be no violation of the law respecting the sale of 
 liquor without license : Oraft v. Evans, 8 Q. B. D., 878 ; Newell v. Hemingway, 
 58 L. J., 46. But MaoMahon, J., in his judgment in B. v. Austin, says: 
 "These oases are, howevor, of little value in determinining the question to be 
 decided in the present case under the speoial enaetment I have endeavored to 
 construe " (p. 746). Under the English Licensing Aets the rights of " Proprie- 
 tory Clubs " to supply liquors to their members are not recognized, and the 
 proprietor, or any servant actnally managing the Olnl). is deemed the person 
 Belling without license ; see Paterson's L. A., 3. A proprietory club is one 
 in which the members have no interest, but merely the use of the property. 
 The property is owned by the proprietor : Baird v. Wells, 44 Ch. D., 661. 
 
 (j) See notes to see. 60. 
 
 {k) For meaning of the word "ocenpant," see seo. 60 and notes thereto. 
 " Control " is defined by Worcester as " superintendence ; power of directing ; 
 government ; command ; as ' to have control of any person or thing.' " 
 
 It was held that to give or refuse assent to certain proposed acts was exercis- 
 ing control : per Esher, M. B., B. v. Croydon Tramways Co., 18 Q, B. D., 39, 
 at p. 42, 
 
 pi 
 
 >^h:i 
 
 -11 
 
 li^ 
 
 mm 
 
 
 V 
 
124 
 
 THE LIQUOR LICENSE ACT. 
 
 [s- 53- 
 
 -f'.ii,, 
 
 ■I. ■ i 
 
 11 M: 
 
 ^°^' M (3) Proof of consumption or intended consumption of 
 
 of liquor, liquor (/) in such prefhises by any member of such Club, 
 
 (1) MaoMahon, J., in B. v. Austin, 17 0. B., 748, at p. 746, says : '< There 
 was, I conceive, ample proof of ' intended consumption of liquor in saoh premi- 
 ses ' by the members of the Club, so as to make the defendant liable as a 
 member of the club, to be held * to be the person who has or keeps therein such 
 liquor for sale or barter,' within the meaning of sub-sec. 8 of sec. 58, provided 
 there was evidence upon which the magistrate nould have found that the Club 
 had been incorporated or carried on specially or chiefly for the purpose of 
 evading The Liquor License Act." In that case, the evidence shewed that the 
 Club was composed of 160 members, *and had rooms rented for the purposes of 
 the Club, two of which were used for natural history and reading rooms, in 
 which there were six stuffed birds. The Club took one paper, some membera 
 occasionally giving a paper, and one member having his fVorld delivered at the 
 Club, and it was left there. A third room had a pool table, it was also used as a re- 
 freslunent room, being fitted up with a small counter, with a working board behind 
 it for mixing drinks, where the steward, who was employed by the Club, kept 
 ale, lager beer, whiskey, gin, cigars and lemons for lemonade. The Police 
 Inspector, who laid the information, also found in the room a counter with 
 glasses, bottles and a large quantity of beer, lager beer, whiskey, gin, &c. The 
 defendant was the secretary and treasurer of the Glub and was convicted upon 
 this evidence. It was held that the trustees and members of a Glub could 
 not be convicted for setling liquor without license, when such sale was made by 
 the steward of the Club, in direct contravention of the orders of the trusteeB 
 and members and without their knowledge and assent, the money received by 
 him being paid by him to the account of the Olub: Newman v. Jones, 
 17 Q. B. D., 182. But where an act is done by a servant, '*not from any 
 caprice of the servant, but in the course of employment," the master is held 
 answerable: Bayley v. Manchester S. <& L. B'y. Co., L. B., 7 0. P., 420; 
 Attomey-Qeneral v. Bidden, 1 Cr. & J., 220 ; B. v. Stephens, L. B. 1 Q. B., 702; 
 B. V. King, 20 C. P., 246 ; Limpus v. The London General Omnibus Co., 
 1 H. & 0., 626 ; Gooley on Torts, 248. On the authority of these oases, it was 
 held in our Court of Appeal, that the defendant was liable for the act of his 
 bar-keeper, although it had been forbidden by the defendant : Austin v. Davis, 
 7 App. B., 478 ; in which case, Hngill v. Merrifield, 12 G. P., ^69, (a ct.Be in 
 which the same decision was given as in Newman v. Jones, supra), was over- 
 ruled. The law with respect to the liability of the master for the servant's acts, 
 in such cases, seems to be somewhat uncertain. But this is the principle laid 
 down in the judgment of A. L. Smith, J., in Newman v. Jones, that although 
 the legal presumption is, " that whatever a seivant does in the course of the 
 employment with which he is intrusted, and as part of it, is the master's act," 
 this presumption may be rebutted, and where the servant's act is done in direct 
 contravention of the bonajide orders given and without the knowledge or assent, 
 direct or indirect, of the master or principal, the latter is not liable. 
 
 In the case of Bond v. Evans, 21 Q. B. D., 249, it was held that where gaming 
 had taken place upon licensed premises to the knowledge of a servant of the 
 licensed person who was in charge of the premises, but without any knowledge 
 or connivance on the part of the licensed person, the latter was liable and that 
 he was rightly convicted. In that case it was stated by Mr. Justice Stephen (p. 
 267) that " the trustees of a club were on a different footing from a licensed 
 vitualler, who is the proprietor of a house and the holder of a license. For 
 these reasons, I think Newman v. Jones stands on its own circumstances and 
 is distinguishable from the present case." The judgment in Bond v. Evans 
 follows Bosley v. Davies, 1 Q. B. D., 84 ; Bedgate v. Haynes, 1 Q. B. D., 89 ; 
 see also Somerset v. Hart, 12 Q. B. D., 860 ; Oondy v. lie Gocq, 18 Q. B. D. 
 207. 
 
z' 
 
 ss- 53, 54-] 
 
 THE LIQUOR LICENSE ACT. 
 
 »25 
 
 Association or Society, or person who resorts thereto, shall ejWenoe 
 be conclusive evidence of sale of such liquor, and the occu- 
 j)ants of the piemises or any member of the Club, Associa- 
 tion or Societ)', or person who resorts thereto shall/ be 
 taken conclusively to be the person who has or keeps 
 therein such liqu(>r for sale or barter ; and any liquor found 
 upon such premises shall be liable to seizure in the maimer 
 [trovided by this Act (m). 47 V., c. 34, s. 9. 
 
 ik^» (i) In all places («) where intoxicating liquors An places 
 are, or may be, sold by wholesale or retail, no sale "or other toxioa- 
 disposal (o) of the said liquors (p) shall take place therein, "^*i°F!. 
 or on the premises (^) thereof, or out of or from the same (r), closed 
 
 In B. V. MoAnlay, 14 O. B., 643, the aot of the wife was held to be that of 
 the husband, and a oonviotion of the defendant for selling liquor to Indians, 
 the sale having been made by the defendant's wife without his knowledge or 
 assent, he being away at the time and for sometime afterwards, was sustained. 
 
 But whatever the law may be with regard to the liability of the master for the 
 acts of the servant, the liability of the occupants of the premises, the members 
 of the club who resort thereto, is sufficiently clear under this section. See 
 cases cited in notes to sec. 112. 
 
 (m) See sec. 132 and notes thereto. 
 
 (n) "In all places." " All " has been held to be equivalent to " each and 
 every :" see judgment of Lord Fitzgerald in Burnett v. Q. N. of Scotland By. 
 Co., 64 L. J. Q. B., 539 ; but by a context may mean " any :" 1 Jarm., 604, 
 cited Stroud's Diet., 28. 
 
 " All places where intoxicating are or may be sold," has been held to apply 
 only to licensed premises, and that a person who is not the holder of a license 
 cannot be convicted for selling liquor on prohibited days : B. v. Duquette, 9 
 P. B., 29. 
 
 (0) It was held that an information stating that defendant, "a licensed 
 hotel-keeper in the town of Peterborough, did on Sunday the 2nd July, 1876, 
 at the hotel occupied by him in the said town, dispose of intoxioating liquor to 
 a person who had not a certificate therefor," sufficiently showed that the hotel 
 was a licensed hotel at which liquor was allowed to be sold : B. v. Cavanagh, 
 2/ C. P., 687. But important changes in the provisions of the Act have since 
 been made by sec. 66. See that sec. and notes thereto. 
 
 " Sale or other disposal " would include gift. See Overton v. Hunter, 1 
 L. T. N. S., 866 ; Petheriok v. Sargent, 6 L. T. N. S.. 48. See notes to 
 sec. 62. 
 
 (pi " Liquors " is invariably used in the sense of intoxioating liquors. See 
 sec. 2, ss. 1. 
 
 iq) It was held that a sale " at the hotel" fairly enough describes a sale " in 
 the hotel." A person who is at home or at church may rightly be in his house 
 or in church, and one who keeps a hotel at such a building, may be said to 
 keep it tn the building : per Wilson, J., B. v. Cavanagh, 27 0. P., 637. Soe 
 also R. V. Parlee, 28 0. P., 369. 
 
 (r) No sale can be made, under this section, of liquor to be drunk either upon 
 the premises (see note (d) to b60. 86) or to be consumed off the premises. 
 
 M 11 
 
 
 
U :Jr '^ ' 
 
 :i;i. 
 
 126 
 
 THE LIQUOR LICENSE ACT. 
 
 [s- 54- 
 
 from 
 seven 
 o'clock on 
 Saturday 
 niKbt till 
 six o'clock 
 on Mon- 
 day morn- 
 ing. 
 
 to any person or persons whomsoever (s), from or after (/) 
 the hour of seven of the clock on Saturday night till six of 
 the clock on Monday morning thereafter, and during any 
 further time on the said days, and any hours or other days 
 during which, by any Statute in force in this Province («), 
 or by any by-law in force in the Municipality {v) wherein 
 
 (s) '* To any person or persons whomsoever," covers oases in which '! a sale 
 or other disposal " of liquors coald be made, so that if it were not for the 
 exceptions mentioned farther on it would amount to an absolute prohibition. 
 
 (t) " From " means " beginning at," and " after" means " subsequent to : " 
 See Worcester, 80, 692. 
 
 The time for selling is precisely seven o'clock and nothing may legally be sold 
 or disposed of after that hour : See re MoAIpine and The Township of Euphemia, 
 45 U. C. B., 199, as to meaning of " from and after." 
 
 Formerly there was an exception in favor of travellers on Sunday : Baker v. 
 The Mun. of Paris, 10 U. 0. B., 621 ; In re Barclay and The Mun. of Darlington, 
 12 U. G. B., 86 ; In re Boss v. The Cor. of Tork and Peel, 14 0. P., 171 ; but 
 this exception does not exist under the present Act. 
 
 (u) Sales of liquor are prohibited on any polling day by sec. 67. By sec. 83 
 of the " Dominion Elections Act, " B. S. 0., c. 8, no spirituous or fermented 
 liquors, or strong drinks are to be sold or given at any hotel, tavern, shop, or 
 other place within any polling district during the whole of the polling day, at 
 any election for the House of Oommons, under a penalty of 9100 and to imprison- 
 ment for a term not exceeding six months in default of payment of such 
 penalty, and a like provision is also oontiLiued in The Canada Temperance Act, 
 B. 8. 0., 0. 106, s. 74. 
 
 (v) The Municipality has no power under the Act to pass by-laws prohibiting 
 the sale of liquors on Sunday unless some such power is here conferred. The 
 power of regulating taverns and shops to be licensed is given to the Board of 
 License Commissioners (see sec. 8), and their functions in that respect are per- 
 formed by resolutions, not by by-laws (see see. 4). The powers possessed before 
 the introduction of the Liquor License Act, by Municipal Councils and Boards 
 of Police Commissioners, are, with the exception of those conferred by sees. 
 20, 32 and 42, and some other hereafter enumerated, now given to the License 
 Commissioners. What, if any, power is hereby conferred on Municipal Coun- 
 cils it is impossible to say, but it is thought the License Commissioners possesB 
 the only power to regulate these matters. A by-law providing that the bar- 
 room should be dosed and unoccupied, except by members of the keeper's 
 family or his employees, and that there should be no light therein except the 
 natural light of day during prohibited hours, was held bad and in excess of the 
 powers of Police Commisdoners : B. v. Belmont, 36 U. C. B., 298. Formerly 
 Municipal Councils could pass by-laws prohibiting the sale to a person in a 
 state of intoxication : In re Ghreystoek and The Cor. of Otonabee, 12 U. C. B., 
 458 ; or to idiots and insane persons : In re Boss and The Cor. of Tork and 
 Peel, 14 C. P., 171 ; and it has more recently been held that they may prohibit 
 the sale of intoxicating liquora to a child, servant or apprentice, without the con- 
 sent of the parent, master or guardian : In re Brodie and The Cor. of Bow- 
 manville, 38 U. C. B„ 680, cited ante, p. 68. But in the same case it was 
 held that the Municipality could not exercise powers which had been trans- 
 ferred to the License Commissioners by the Liflenvng Act. But a clause pro- 
 hibiting gambUng, profane swearing, blasphemous or grossly insulting language, 
 or any indecency or disorderly conduct in any tavern or shop was held to be 
 valid as authorized by the Municipal Act. See notes to sees. 90, 82 and 42, 
 ante. See also in re Arkell and The Town of St. Thomas, 88 U. 0. B., 694. 
 
54-] 
 
 THE LIQUOR LICENSE ACT. 
 
 127 
 
 such place or places may be situated, the same, or the bar- 
 room or bar-rooms thereof, ought to be kept closed, save 
 and except in cases where a requisition for medical pur- uon?^' 
 
 It has been qoestioned whether or not a resolation passed by the License 
 Commissioners for the purposes of the section would be " a by-law in force in 
 the Municipality " within the meaning of the section ; but it is of no import- 
 ance, as the License Commissioners have ample powers under sec. 4. See 
 Hodge V, The Queen, 9 App. Cas., 117 ; and other cases cited in notes to sec. 
 
 4, ante. 
 
 The charge under this section must be certain, and so stated as to be plead- 
 able in the event of a second prosecution for the uame offence, therefore a con- 
 viotion for that G. H. "did sell wine, beer, and other spirituous or fermented 
 liquors to wit, one glass of whiskey contrary to law," was held bad for uncer- 
 tainty, as not shewing whether the offence was for selling without license or 
 during illegal hours : B. v. Hoggard, 80 U. G. B., 152 ; B. v Parlee, 23 G. P-, 
 359 ; B. V. Oavanagh, 27 ,C. P., 537 ; B. v. Toung, 7 0. B., 88 ; see also notes 
 to sec. 70. 
 
 Where in proceedings for selling liquor on Sunday it was not shewn that the 
 defendant had a license or that the place in which the liquor was sold was one 
 where intoxicating liquors were or might be sold by wholesale or retail, the 
 conviction was held bad : B. v. Bodwell, 6 0. B.| 186. 
 
 The prohibition and regulation of the sale of liquor in taverns and saloons 
 was held within the powers of the Local Legislature : Poulin v, Quebec, 9 
 
 5. G. B., 185 : Hodge v. The Queen, 9 App. Gas., 117. 
 
 It was held that an information for selling liquors on Sunday is so far a 
 charge of a criminal character that the defendant cannot be compelled to give 
 evidence against himself : B. v. Boddy, 41 U. G. B., 291 ; B. v. Lackie, 7 O.B., 
 431; see also B.z/. Halpin, 12 0. B., 330; B. v. Gonnoliy, 4 G. L. T., 301. 
 But the decisions in the two latter oases were not approved of in B. v. Fee, 13 
 0. B., 590, in which case Boyd, C, in delivering the judgment of the Court, 
 said : "My opinion is we ought not to follow the cases cited. The decision of 
 Gait, J., in 12 0. B., (B. v. Halpin), was one rather out of comity to the decis- 
 ion of the Court of Prince Edward's Island, (reported in 4 G. L. T , 301), than 
 because of the independent views of the learned Judge himself," and it was 
 held that under The Canada Temperance Act, a defendant is compellable when 
 called as a witness to answer questions even though tending to criminate him- 
 self. 
 
 The origin of the legislation making the defendant a competent and compell- 
 able witness in liquor cses is to be found in 86 Vic, c. 10, s. 4, (0), and this 
 enactment was carried into B. S. 0. 1877. 0. 62, s. 9 ; and is now to be found, 
 somewhat changed, in B. 8. 0. 1887, c. 61, s. 9. These sections, together with 
 sees. 116, 116 of this Act, are now the governing enactments respeotmg evidence 
 of parties to proceedings such as these. The whole question is very ably dis- 
 cussed in the judgment in B. v. Fee, lupra. See the notes to sees. 116-116. 
 
 It was held in a case before Paxson, J., at the Quarter Session, Philadelphia, 
 May 4, 1372, that it is a conspiracy for two or more persons to act in ccnoert 
 iu unlawful measures to enforce the Sunday Liquor Law, as by inducing a 
 tavern keeper to furnish beer on Sunday by artifice or persuasion : Common- 
 wealth V. Leeds, reported 8 L. J. N. S., 216. 
 
 A conviction for selling liquor on Sunday was required at one time to negative 
 the exceptions : see B. v. White, 21 G. P., 364, in which it was held that a 
 conviction was bad because it did not shew that the liquor was not supplied 
 upon a requisition for medicinal purposes : see also Mills v. Brown, 9 U. G., 
 L. J. , 246. But it has since been held, and the law now is, that it is unnecessary 
 to negative the exceptions : B. v. Breen, 36 U. 0. B., 84. 
 
 I >\ 
 
 
I 
 
 ;>-■ i 
 
 .1 
 
 i..,.M r .; ; 
 
 r| 
 
 II 
 
 (ivf 
 
 1 
 
 ij 
 
 ■1 
 
 1 
 ■fei 
 
 ; 
 
 1 
 
 128 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 54- 
 
 Inspeotor 
 to proae- 
 cute for 
 
 poses, signed by a licensed medical practitioner, or by a 
 justice of the Peace, is produced by the vendee or his 
 agent (w) ; nor shall any such liquor, whether sold or not, 
 be permitted or allowed to be drunk in any such places 
 during the time prohibited by this Act for the sale of the 
 same, except by the occupant or some member of his 
 family, or lodger in his house. R. S. O.1877, c. 181, s. 43, 
 
 (2) Where a prior conviction or convictions have been 
 had (x), it shall be the duty of the Inspector (y), when 
 
 {w) The only exceptions created are : the sale for medicinal purposes on the 
 production by the buyer or his agent of a requisition signed by a licensed 
 medical practitioner or by a Justice of the Peace (see note («) to sec. 62). Such 
 liquor, when supplied on the authority mentioned, is not to be drunk on the 
 premises e^toept by the occupant himself, or by some member in his family or 
 lodger in his house. 
 
 Special attention is directed to the wording of the latter part of this section. 
 It is generally supposed that supplying liquor to the members of the occupant's 
 family or lodgers in his house is not prohibited ; and it is stated in the note to 
 this section in Harrison's Mun. Man., p. 927, that " This, however, does not 
 prevent the licensee giving to some member of his family or lodger in his 
 house " It is submitted that the annotator did not read the section carefully. 
 It is expressly provided that no sale or other disposal shall be made to any 
 person or persons whomsoever except for medicinal purposes, and even then the 
 liquor shall not be drunk on the premises, " except by the occupant or some 
 member of his family or lodger in his house." The English Licensing Act, 
 1874, contains a provision that no person keeping a house licensed under th» 
 Act shall be liable to any penalty for supplying intoxicating liquors after the 
 hours of closing, to private friends, bona fide entertained by him, at his own 
 expense. And it was held that the landlord cannot obtain the benefit of this 
 enactment by saying to the ordinary customers when the hour of closing arrives 
 that if they stay he will treat them as private friends, as this would be an 
 evasion of the'Aot: Gorbett v. Haigh, 42 L. T. N. 8., 185. See also Pine v. 
 Barnes, 20 Q. B. D., 221 ; note («) to sec. 70. 
 
 (a-) The duty of the Justices is, in the first instance, to enquire concerning 
 the subsequent offence only, and if the accused be found guilty thereof, he 
 shall then, and not before, be asked whether he was previously convicted as 
 alleged in the information. If ae admits the previous conviction he may be 
 forthwith sentenced. If he deny it, stand mute, or do not answer directly to 
 the questioi), it becomes the duty of the Justice to enquire concerning the first 
 conviction. The number of previous convictions is provable by a certificate 
 under the hand of the convicting Justice or Clerk of the Peace, without proof 
 of signature or official character. A conviction may be had in any case for the 
 first offence, notwithstanding there may have been a prior conviction for the 
 same or any other ofience. Convictions may be maide for several offences 
 although such offences may have been committed on the same day ; but the 
 increased penalty or ptmishment is only recoverable in the case of offences 
 committed on different days and after information laid for a first offence. 
 Power is given to the Justice to amend a second or subsequent conviction in 
 case of the previous conviction being set aside, quashed, or rendered void : see 
 sec. 101 ; B. v. French, 84 U. 0. B., 18S, 184, cited below. The occupant is 
 personally liable to these penalties and punishments, notwithstanding the sale, 
 barter, or traffic be made by some other person who cannot be proved to have 
 done 80 under or by the direction of the occupant : see sec. 112, es. 1. 
 
54.] 
 
 THE LIQUOR LICENSE ACT. 
 
 139 
 
 aware of the same («), or when the same have been brought J5?°°^ 
 to his knowledge, to prosecute as for a second or subse- J'^2''„ 
 quent offence, as the case may be, but an omission by the ^J^^j^^^ 
 Inspector to do this shall not invalidate any conviction that Sunday, 
 may have been obtained (a). This sub-section shall only 
 
 The oflenMB ander thia Motion are not merely offences against the license 
 issaed for a particular year, bat oflenoer 'Against the Act and the social order 
 which it is intended to enforce. Whetl er the several offences are committed 
 on several days in the same year, or on different days in different years, the 
 offences are still against social order and still against the law, and must be 
 still classed as first, second, third, and fonrth, according to the time of their 
 commission : see ex parte Short, L. B. 6 Q. B., 174 ; B. v. Vine, L. B. 10, 
 Q. B. 195. Thersfore, it was held tiiat the previous offence need not be against 
 the same license, but may be against a license granted for a previous year : B. 
 V. Black. 43 U. 0. R., 180. See also Finch v. Blnndell, (( L. T. N. S., 672 ; 
 Smith V. Vanz, 6 L. T. N. S., 46; Tennant v. Gumberland. 1 E. <fe E., 401 ; 
 4 Mew's Dig., 1117. 
 
 (y) " Duty of the Inspector. " " Duty " means an obligation. It is therefore 
 an imperative obligation upon the Inspector to prosecute for a second offence 
 as herein provided. 
 
 (f) " When aware of the same," If the Inspector has been the prosecutor 
 or complainant in a previous prosecution resulting in a conviction, he must be 
 "aware" of such conviction. But although it is the duty of the Inspector to 
 prosecute for a second or subsequent offence when he is aware of a previous 
 conviction or convictions, his neglect to do so will not invalidate any convic- 
 tion that may have been obtained. 
 
 F was convicted on the 6th Feb. before B, a Justice of Peace, for that he did 
 on Sanday, the 19*1: of January, sell and receive pay for intoxicating liquor at 
 his hotel, and was fined 940 and costs to be paid forthwith, and in default of 
 distress to be imprisoned for twenty days at hard labor. On 12 Feb. he was 
 convicted before S and L, two Justices of the Peace, for that he did " on 
 Sunday, the 26th of Jannaxy, sell and receive pay for intoxicating liquors," etc., 
 "the same being the third offence," etc., and was fined 9100 and costs, and in 
 default of distress to be imprisoned for fifty days. A certificate of the first 
 conviction was before the Magistrates on the second conviction. There wa3 
 evidence of the sale of liquor en three Sundays, but the information did net 
 allege the previous offence. It was not shewn whether defendant was licensed. 
 Held, that the first conviction was bad, for it did not shew whether it was for 
 selling liquor without a license or having a license, for selling on Sunday ; and 
 if for selling without a license it was baa, because it awarded imprisonment at 
 hard labor ; and if for seUing on Sunday, then because it was not alleged to be 
 a second offence. Held, also that the second conviction was bad, because, if 
 for selling without a license, the fine was beyond what the Statute warrants, 
 and if for selling on Sunday, it was not shewn or charged that defendant was 
 licensed, and because the information did not charge the two previous offences : 
 B. V. French, 84 U. O. B., 408. For further notes see sec. 71. 
 
 (a) A final judgment is not " obtained " within the meaning of the English 
 Bankroptoy Act, sec. 4, (g) by any one except the successful party to the action 
 himself, or his personal representative, who, for this purpose, are in fact the 
 same person : ex parte Woodall, 18 Q. B. D., 479. An assignee of a judgment 
 debt is not within the phrase : re Keeling ex parte Blanchett, 17 Q. B. D., 803. 
 Bnt the assignee of a judgment debt is a person who has " obtained " the judg- 
 ment for the purpose of getting a garnishee order ; Ctoodman v. Bobinson, 18 
 Q. B. D., 882. 
 
 
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 THE LIQUOR LICENSE ACT. 
 
 [ss. 54, 55- 
 
 When 
 keeper of 
 house 
 
 apply to convictions for violations of that portion of the 
 next preceding sub-section which prohibits the sale or other 
 disposal of liquors in all places where intoxicating liquors 
 are or may be sold, from and after the hour of seven of the 
 clock on Saturday night till six of the clock on Monday 
 morning thereafter ; but where any prior conviction is for a 
 violation of the said next preceding sub-section the onus of 
 establishing that it was not for a violation during the said 
 hours from Saturday night until Monday morning shall lie 
 upon the defendant {i>). 47 V., c. 34, s. 13. 
 
 (3) Any Inspector who shall knowingly or wilfully violate 
 the provisions of this section shall incur a penalty of not 
 less than $10 and not more than $20 (c). 49 V., c. 39, s. 17. 
 
 A A* (i) The keeper (d) of any licensed tavern (e) in 
 a city or town (/) shall keep (g) the bar-room or room in 
 
 (b) This Bnb-seotion applies to oflenoes oommitted daring the prohibited 
 hoara from Saturday night until Monday mominft, not to infractions of other 
 Statutes prohibiting sales at particular times ; but any conviction under the 
 section may be held to be for an offence against the provisions of the Act respect- 
 ing the sale between Saturday night and Monday morning if the defendant does 
 not shew the contrary. This is for the purpose of determining whether the 
 conviction is for a first, second, or other subsequent offence. As to what are 
 to be considered prior convictions, see sec. 101, ss. 6. 
 
 (c) As to effect of " knowingly or wilfully," see note («) sec. 6, and note 
 (y) sec. 26. 
 
 {d) " The keeper " is one who keeps : Stroud's Diet., 416. To keep a place 
 or thing involves the iilea of having over it the immediate control of a charac- 
 ter more or less permanent. Thus, the landlord of a brothel, wholly let out in 
 rooms to different tenants at weekly rents, and who has no control over the 
 premises except that of determining the tenancies, does not " keep " the 
 brothel : B. v. Stannard, 9 L. T- N. S., 428 ; B. v. Barrett, 7 L. T. N. S., 435 ; 
 Halligan v. Oanly, 19 L. T. N. S., 268 ; 3 Mew's Dig., 435. And to keep a place 
 for a particular purpose involves the idea that it is used for that purpose on 
 more than one occasion ; but the how many or how frequent those occasions 
 must be is a question to be determined in each case : Marks v. Benjamin, 6 
 M. & W., 666 ; see Clarke v. Hague, 2 &.& *&., 281 ; Jenks v. Turpio, 13 
 Q. B. D., 606 ; 1 Mew's Dig., 107. See also note (9) to sec. 11, p. 24, anU.. The 
 word " keeper" is defined as including the person actually contravening the 
 provisions of the section, whether acting for himself or another or others, and 
 the actual offender, as well as the " keeper " is personally liable to the penal- 
 ties, and both the keeper and offender may be jointly or separately prosecuted 
 (see notes infra), but only one of them may be convicted of the same ofieuoe. 
 See also B. v. Oavanagh, 27 0. P., 637, cited note (u) to sec. 64. 
 
 («) " Licensed tavern." See sec. 2, ss. 2, p. 6, ante. 
 
 (/) " City." See note [3) to sec. 2, p. 7. 
 
 (g) " Shall keep." '* Keep is a very general term and is variously applied: " 
 Worcester, 798. In the sense it is used here, " to keep closed," it is difficult to 
 define. But " to keep " involves the idea of permanency more or less prolonged, 
 
 ^'Kb 
 
S. 55. J THE LIQUOR LICENSE ACT. 131 
 
 which liquor is trafficked in, (A) closed as against all persons, 8""*y °' 
 
 as in B. v. Stannard, oited above. To keep a place or thing in repair pre- 
 Biipposes the putting it in repidr and maintaining it in that condition : Payne 
 V. Haine, IG M. A W., 646 ; and " to keep a place oloBed " would, by analogy, 
 mean that the place should not only be oloaed up, but that it should be main- 
 tained in that condition during the whole period specified, namely, from seven 
 o'clock on Saturday night until six o'clock on Monday morning. To "Keep 
 open " implies a readiness to carry on the usual business in a store, saloon, etc. : 
 Lynch v. People, 16 Mich., 477 (1868). 
 
 (/() The " bar-room or room in which liquor is trafficked in," is the place in 
 the tavern, <&c., which is ordinarily used for the sale or disposal of liquor and 
 ia referred to in sec. 68, under the provisions of which there must only be one 
 snoh room in the tavern, and in sec. 110, where it is enacted that light in the 
 bar-room during prohibited hours is prima facie evidence of sale. The object 
 of closing the bar-room is to prevent the sale or exposure for sale of liquor 
 during those hours in which such sale, <ftc., is prohibited. The charge in a 
 conviction under this section must be certain. A conviction that H. "did keep 
 his bar-room open and allow parties to frequent and remain in the same con- 
 trary to law," was held dearly bad as shewing no offence. The exact time ought 
 to be stated ; see B. v. Hoggard, 80 U. 0. B., 162. It was held that a oonvlo- 
 tion, under the English Licensing Acts, for allowing beer to be consumed in a 
 licensed house at other hours than those prescribed, must state the time fixed 
 at which houses may be kept open and the hour at which the beer was con- 
 sumed : Newman v. The Earl of Hardwiok, 8 A. (ft E., 124. 
 
 The offence of selling during prohibited hours is different to that of keeping 
 open during such hours, and the evidence which might be sufficient to prove 
 one offence may be insufficient to prove the other. Great care is therefore 
 required in selecting the proper section under which to proceed, is stated in 
 note (t) to see. 64, there was formerly an exception in favor of travellers on 
 Sunday, hot this no longer exists. Under sec. 64, the consumption of liquor 
 previously purchased is not allowed in any case, at least as between the cus- 
 tomer and licensee. A conviction for more than one offence is bad : Newman 
 V. Bendshye, 10 A. <& B., 11. 
 
 The following English oases are referred to as illustrative of the distinction 
 between selling and keeping open: A beer-house keeper was charged with 
 opening his house for the sale of beer before a certain hour on Sunday. The 
 evidence was that the door was shut at twelve o'clock on Saturday night, but 
 about two un Sunday morning a constable saw the keeper and another man 
 drinking ale inside, and soon afterwards the man came out. There was no 
 proof of selling beer, and the Court of Queen's Bench held there was no evidence 
 of the offence of keeping his house open though there was some of selling beer 
 dnring the time : Tennant v. Cumberland, 1 E. & E., 401. An ale-house 
 keeper was charged with keeping his house open during prohibited hours. The 
 evidence was that guests remained in the house after closing, but there was no 
 Belling of beer after the hour of dosing. The Court held there was no evidence 
 of keeping open, and that an ale-house keeper was not bound to turn his guests 
 out when the dock struck twelve : Gates v. South, 23 J. P., 789. In another 
 case some eoimtry farmers had met to transact business and remained after the 
 hoars of closing, the outer doors being open, and the court held there was. 
 evidence of keeping open: Pearoe v. Oill, 41 J. P., 742. 
 
 An ale-house keeper was charged with opening hia house in prohibited hours. 
 The door was kept partly open, and during the prohibited hours some men were 
 found inside with glasses before them and liquor, and the Court held this was 
 evidence to support the charge : Thompson v. Qreig, 84 J. P., 214. In a case 
 vhere men were seen to come out, though the front door was shut, but there 
 was no evidenoe of selling liquor. It was held theto was no evidence to support 
 
 

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 THE LIQUOR LICENSE ACT. 
 
 [s- 55- 
 
 of*provii- °*^®'" *^^" '^°'® permitted to enter the same under clauses 
 Sunday" ^^) ^^^ (^) °^ ^^^^ section, between the hours of seven 
 doling, o'clock on Saturday night and six o'clock on Monday morn- 
 ing thereafter ; (t) and any keeper of such licensed tavern 
 who allows or suffers any person or persons to frequent or 
 to be present in such bar-room or room in which liquor is 
 trafficked in during the time aforesaid, shall be guilty of an 
 offence under this Act, unless it be established to the satis- 
 faction of the Police Magistrate or other Justice or J usticcs 
 before whom the prosecution is heard, 
 
 (a) That the person so found frequenting, or present 
 in the bar-room where liquor is trafficked in, as 
 aforesaid, was at the time he or she so frequent- 
 ed or was present in such bar-room, a member 
 of the family or household, (j) (other than a 
 lodger, boarder, or guest) or a servant, or em- 
 ployee of such keeper actually engaged in 
 necessary domestic occupation or service within 
 the said bar-room, (k) 
 
 a charge of keeping open : Jefferson v. Biehardson, 86 J. P., 69. Where a man 
 was seen to go into the hoose after the hoar of closing, and to come oat with a 
 bottle of beer and it was explained that he had previoasly called before the 
 hoar of dosing and paid for the beer, the Ooart held there was evidence to 
 sapport the defendant's conviction for keeping open : Brewer v. Shepherd, 36 
 J. P., 378. See also Finch «. Blnndell, 6 L. T. N. B., 672 : Smith v. Yaaz, 6 
 L. T. N. 8., 46. 
 
 (i) " Seven o'eloek on Saturday night and $i* o'eloek on Sunday morning." 
 Under the English Licensing Acts it was held that the Jastices are not bound 
 to follow Ghreenwich time : Oartis v. Marsh, 28 J. P. 668. 
 
 (j) *' Member of the family," see notes to see. 27, p. 61, ante. That this is only 
 intended to apply to the " family " in its sirictest sense is shewn by the con- 
 text — boarders, lodgers and gaests, who might otherwise be heiu to be comprised 
 in the term, being excluded. 
 
 (Xt) What the term " neeetsary domestic occapation or service " inclades is 
 not at till certain. In the interpretation of the Sunday Act, 29 Oar. 2, c. 7, it 
 was held that baking rolls on a Sunday wfts not a work of necessity : Orepps v. 
 Durden, 2 Oowp., 64 ; nor is baking bread in the ordinary course of a baker's 
 business : B. v. Younger, 6 T. B., 451 ; but baking dinners for customers is : 
 B. V. Oox.,2 Burr., 787; B. v. Tounger, 6 T. B., 449. Whether haymaking 
 (and, indeed, it would seem any other work not covered by authority) is of 
 " necessity " is a question of fact on which the finding of the Justices is con- 
 clusive : B. V. Cleworth, 4 B. <fe S., 928. 
 
 (" Domestic " means pertaining to the house. A " domestic servant " is a 
 ho'Mii servant, one who " dwells remote from all knowledge of his lord's pur- 
 poses ; he lives as a kind of foreigner under the same roof ; a domestic, and 
 yet a stranger too: South, cited Woroester'a Diet., 486. 
 
ss. 55. 56-] 
 
 THE LIQUOR LICENSE ACT. 
 
 »33 
 
 {l>) Or that such person was present therein lawfully 
 engaged in receiving or supplying liquor which 
 might lawfully he sold during said prohibited 
 hours. (/) 
 (2) The word " keeper " when used in this section shall 
 include the person actually contravening the provisions of 
 this section, whether acting on behalf of himself or of 
 another or others, and the actual offender as well as the 
 " keeper " of the licensed tavern shall be personally liable 
 to the penalties and punishments which may be imposed 
 for the infraction or violation of this section, and at the 
 prosecutor's option the actual offender may be prosecuted 
 jointly with or separately from the keeper, but both of them 
 shall not be convicted of the same offence, and the convic- 
 tion of one of them shall be a bar to the conviction of the 
 
 other of them therefor. 
 
 {m) 49 V., c. 39, s. II. 
 
 Any person so found in such bar-room, or who when 
 ' *^ persons 
 
 has been present therein during the prohibited hours, m other 
 
 the preceding section mentioned, and who does not come keeper of 
 
 house 
 within the exceptions and proviso in that section contained, gniity. 
 
 shall be guilty of an offence under this Act, and upon con- 
 viction thereof shall be liable to a penalty for each offence 
 of not more than $10 and not less than $2 with costs (n). 
 49 v., c. 39, s. 12. 
 
 Books are artioles of " domestio " use and enjoyment : Gomwall v. Cornwall, 
 10 L. J. Oh., 864. Watering private hones and washing private oarriages is 
 nsing the water for a domestio u$e or purpote : " Bnsby v. Chesterfield Water- 
 works Co., B. B. & E., 176. Water used for the amenities of a house, e. g., 
 watering a pleasure garden attached to and oocapied with the bouse, may be 
 legitimately held to be used for domestic purposes : per Smith, J., Bristol 
 Waterworks Co. v. Uren, 16 Q. B. D., 687 : Cooke v. New Biver Co., 14 App. 
 Gas., 698 ; and any kind of occupation or work connected with the bouse or 
 hoasebold may be said to come within the meaning of " domestic service or 
 ooonpation." 
 
 (I) This applies to the sale of liquor upon the certificate of a medical practi- 
 tioner or Justice of the Peace. See sees. 62, 68, 64. 
 
 (m) Formerly the holder of a license could alone be prosecuted for selling 
 liquor on prohibited days, but under this sub-section, the hotel or tavern keeper 
 and the actual offender are both personally liable and may be prosecuted either 
 jointly or separately, at the prosecutor's option, although only one of them may 
 be convicted of the same offence. 
 
 (n) This section creates an offence in any person being found in the bar- 
 room during prohibited hours, and who is not either a member of the licensee's 
 family or household, a servant, or employee of the lioensee actually engaged in 
 
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 days. 
 
 THE LIQUOR LICENSE ACT. 
 
 is. 57- 
 
 ». 8. 0., 
 0. IOC. 
 
 49* No sale or other disposal of liquor {0) shall take 
 place in any licensed premises (/) within the limits of a 
 polling subdivision (^), on any polling day (/•) for or at any 
 Parliamentary election or election of a member for the 
 Legislative Assembly, or any municipal election, or on any 
 day in which a vote in accordance with the provisions of 
 TAe Canada Temperance Act, is being taken, from or after 
 the time of six o'clock in the morning of the said day, until 
 the following lawful day at six o'clock in the morning {s). 
 47 V-> C' 34i s. 10. 
 
 neoessary domestio oooapation or service within the bar room, or not present 
 for the purpose of reoeivinR or supplying liquor which may be lawfully sold 
 during prohibited hours, under the certificate of a medical practitioner or 
 Justice of the Peace. In order to convict it is not necessary that an offence 
 should have been committed by the keeper, nor that the person found on the 
 premises should have consumed or purchased liquor dwring the prohibited 
 hours. The mere presence of the person so found is sufficient piima facie 
 evidence of the offence, and unless it is ex;>!ained that he is one of those 
 persons coming within the exceptions (a) and (b) of as. 1 of sec. 66, he will be 
 liable to a penalty of not more than 910 nor less than $2. 
 (0) " No sale or other disposal." See note (n) to sec, 64. 
 
 (p) This section applies to all places having licenses of any kind, either 
 wholesale or retail, shop, tavern, saloon, or beer and wine licenses. 
 
 (q) *• Pollmg sub-division." See The Ontario Election Act, B. S. 0. c. 9, 
 sees. 8-14 ; The Municipal, B. S. 0. c. 184, sees. 97-101. This section only 
 applies to a polling sub-division in which there is an election being held. 
 
 (r) Polling day. See The Ontario Election Act, B. S. 0. 0. 9, sees. 23-26 ; 
 Municipal Act, B. S. O. 0. 184, sees. 88-96 ; B. S. C. 0. 8, s. 88, and The Canada 
 Temperance Act, B. S. 0. c. 106, s. 74. 
 
 (s) This section applies to all days on which any election may be held for the 
 House of Commons, The Ontario Legislature, The Municipal Council, or under 
 the provisions of The Canada Temperance Act. 
 
 It was held in an action for penalties under the Con. Stat, of Canada 0. 6, 
 s. 81, prohibiting the sale of liquor on polling days, that a Judge was wrong in 
 directing the Jury that defendant was responsible for his agent's (bar-keeper's) 
 acts, although done in direct contravention of the defendant's Command, and 
 tiie question of connivance on the defendant's part, notwithstanding his com- 
 mand to his bar-keeper, not having been left to the Jury, a new trial was 
 ordered without costs : Hugill v. Merrifield, 12 C. P., 269. But this decision 
 was overruled in the case of Austin v. Davis, 7 App. B., 478 ; Newman v. Jones, 
 17 Q. B. D., 182, and other cases cited in notes to sees. 68 and 64. See also 
 Widderfield v. Metcalfe, 21 U. 0. B., 247. 
 
 The Ontaiio Election Law, B. S. O., 0. 9, u. 161, provides that " no spirituous, 
 or fermented hquors, or strong drink shall be sold or given in any hotel, tavern, 
 shop or other place within a polling sub-division, during the pollinr, day therein 
 or any part thereof, under penalty of 9100 for every offence, and the offender 
 shall be subject to imprisonment not exceeding six months, at the discretion 
 of the Court or Judge, in default of payment of such fine." 
 
 The distribution of spirituous liquors on the polling day, with the object of 
 promoting the election of a candidate, will make his election void : South Qrey 
 Election, (Ont ), Hunter v. Lauder, 1 E. B. 0., 62 ; Bossell Eleotion, (Ont.), 
 
S. 58.J THE LIQUOR LICENSE ACT. 135 
 
 AS. (i) Every person, (/) not being the occupant or a obtaining 
 
 Ogilvie V. Baker, 1 H. E. 0., 199 ; Soath Ontario Election, (Ont.). Farwell v. 
 Brown, 1 H. E. C, 420 ; South Essex Election, (Ont.). MoOee v. Wigle, 1 
 H. E.G., 236; North Grey Eleotion, (Ont.), Boardman v. Scott, 1 H. E. C, 
 362 ; North Wentworth Election, (Ont.), Christie v. Stock, 1 H. E. 0., 343 ; 
 North Victoria Election, (Ont.), McBae v. Smith, 1 H. E. C, 252 ; Lincoln 
 Election, (Ont.), Bykert v. Neelon, 1 H. E. C, 391, (not approved of in North 
 Wentworth Election, (Ont.). Christie v. Stock, 1 H. E. C, 343). Bat the viola- 
 tion of the law prohibiting the sale of liqaor on polling day is not a corrupt 
 practice, unless committed in order to influence votes at &e Election complained 
 of : North York Election, (Ont ), Gorbam v. Boultbee, 1 H. E. C. 62 ; Brock- 
 ville Eleotion, (Ont.), Flint v. Fitzsimmons, 1 H. E. 0., 139 ; London Election, 
 (Ont.), Jarman v. Meredith, 1 H. E. C, 214. 
 
 It was held that under this section, which was substituted for sec. 66 of the 
 Eleotion Law of 1868, tavern keepers, or persons acting under that capacity 
 for the time, who sell or give liquor at taverns on polling day and within the 
 hours of polling are guilty of corrupt practices ; but persons who treat or are 
 treated at such taverns are not affected by the Statute : Ford's vote, Lincoln 
 Eleotion (2) (Ont.), Pawling v. Bykert, 1 H. E. C, 600. 
 
 A person baying a glass of beer for himself alone is not guilty of a corrupt 
 practice : East Peterborough Election (Ont.). Stratton v. O'Sullivan, 1 H. E. C, 
 246. 
 
 The majority of the respondent was 337 ; but it appeared that two agents of 
 respondent bribed between 40 and 60 voters ; that in dose proximity to the 
 polls spirituous liqaor was sold and given at two taverns daring polling hours, 
 and that one of such agents took part in furnishing the liqaor ; and that such 
 agent had, previous to the eleotion, famished drink or other entertainment to a 
 m<?eting of electors held for the purpose of promoting the election. Held that 
 ;,he result of the eleotion had been affected thereby, and that the election was 
 void: West Hastings Election (2) (Ont.), Holden v, Bobertson, 1 H. E. C, 639. 
 
 About an hour after a meeting of a few friends of the respondent at a tavern, 
 cue of thbir number was sent some distance to bay oysters for their own 
 refreshmeu';, of which the parties and others partook. The following day a 
 friend of the respondent treated at a tavern, and not having change, the 
 respondent gave him 26 cents to pay for the treat. Held, not a corrupt prac- 
 tice : Welland Election (Ont.), Buchner v. Currie. *. H. E. C, 187. 
 
 It was held that a violation of this section during polling hours by an agent 
 of the candidate, must be conclusively presumed to have been intended corruptly 
 to iaflaenoe the election : Prescott Election (Ont.), Cunningham v. Hagar, 1 
 E. C, 88 ; North Ontario Election (Ont.), Treleaven v. Gould, 1 E. C. 1. 
 
 Bat where on<) S, an agent of the respondent, on the election day brought 
 some liquor to a blacksmith shop near a poll, being a place where the neighbors 
 were in the habit of congregating to warm themselves, etc., there being no 
 tavern in the neighborhood, and treated those present (most of them being 
 voters) without reference to their voting, and without distinction as to which 
 side they supported. Held not a corrupt practice: Lennox Election (Ont.), 
 Miles V. Boe, 1 E. C, 41. 
 
 The giving of refreshments to persons " having voted or being about to vote ' 
 }n the polUng day is also a 'sorrupt practice : West Simcoe Election (Ont.), 
 Bedford v. Phelps, 1 E. C, l2Ci ; see also West Northumberland Election (Dom.) 
 Henderson v. Guillet, 10 S. 0. B., 636 ; East Simcoe Eleotion (Ont.). Beid v. 
 Drury, I E. C, 487. 
 
 it) " Every person." Dr. Johnson says that the word " every " was formerly 
 spelt " dverich," and that the true meaning is " each one of all ; " and Stroud, 
 commenting on this definition, says : "The word may be used in this sense. 
 
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 136 THE LIQUOR LICENSE ACT. [s. 58. 
 
 liquor at member of his family or lodger (u) in his house, who buys 
 
 althongh other lexicographers may give another meaning to it : " Stroud's 
 Diot.,268. The definition given by Worcester is, "each; all; taken separately." 
 An innkeeper, whilst in his own inn after the same is closed, is not within the 
 phrase : " Every person found drank on licensed premises," as used in s. 12, 
 35 and 86 Vic, c. 94 : Lester v. Torrens, 2 Q. B. D., 408. But " every person " 
 committed " for any offence or misdemeaner " to bear his own charges of being 
 conveyed, includes deserters as well as ordinary criminals : B. v. Pierce, 3 
 M. & S., 62 ; and a penalty on " every person" concerned in an offence may 
 be recovered for the same offence against each person therein concerned : B. v. 
 Dean, 12 M. & W., 89. 
 
 " It includes all the separate individuals which constitute the whole regarded 
 one by one ; as in the expression, * every person not having a license shall be 
 liable to a fine:' '' per Simpson, C. J.. State v. Penny, 19 S. 0., 221 (1882). 
 
 (u) " Not being the occupant," etc. As to the meaning of " occupant," see 
 note {g) to sec. 16 ante. As to meaning of the expression "member of his 
 family," see note {j) to sec. 66 ante. 
 
 A '* lodger," generally speaking, " is a person whose occupation is part of a 
 house, and subordinate to, and in some degree, under the control of a landlord 
 or his representative, who either resides in or retains the possession of or 
 dominion over the house generally, or over the outer door, and under such 
 circumstances that the possession of any particular part of the house held by 
 the lodger does not prevent the house being in the possession of the landlord :" 
 Stroud's Diet., 443. " Where a landlord resides in part of a house, and there 
 is an outer door from the street, and he, by himself or his servants, has the 
 control of this outer door and undertakes the care or control of rooms let to 
 other persons, and the access to them and the rooms themselves have not 
 anything in the nature of an outer door, and are not structurally severed from 
 the rest of the house, there could be little hesitation in saying that an occupier 
 of those rooms, being part of the house, is only a *' lodger." On the other 
 hand, if there be no real outer door to the street, and neither the landlord nor 
 his servants, nor any one representing him occupies any part of the premises 
 or exercises any control over any part of them, and the rooms occupied by 
 another person are straotnrally severed from the rest of the house, and have an 
 outer door to the general landing or staircase, and no one but such tenant has 
 or exercises any care or control ovor the room or that outer door, as a general 
 proposition, the person so occupying those rooms could not be a lodger. It is 
 always important in determining whether a man is a lodger to see whether the 
 owner of the house retains his character of maeter of the house, and whether 
 he occupies a part of it by himself or his servants, and at the same time retains 
 the general control and dominion over the whole house, and this he may do 
 though he do not personally reside on the premises :" per Bovill, 0. J., 
 Thompson v. Ward, L. B. 6, 0. P. 360, 361. See also AncketUl v. Baylis, 10 
 Q. B. D., 577 ; Bradley v Baylis, 8 Q. B. D., 195 ; Hogan v. Sterrett, 20 
 L. B. Ir., 344 ; Phillips v. Henson, 8 C. P. D., 26 ; the judgment of Brett, J., 
 Morton v. Palmer, 61 L. J. Q. B., 7 ; Toms v. Luckett. 6 G. B., 23 ; the rooms 
 may be unfurnished ; see Allan v. Liverpool, L. B. 9, Q. B. 180, in which Mr. 
 Justice Blackburn defines the meaning of the word and in concluding says : 
 " the person who takes in another to lodge must retain power in and dominion 
 over the house, as the master of a house usually does in this country. It is 
 not absolutely necessary that he should live or sleep in the house ; he may live 
 elsewhere and yet reserve power in and dominion over the house, such as a 
 master does in this country usually have. If, however, he goes away, if he gives 
 up all power of dealing with the house or master, then I do not think it is 
 possible to say that he takes another person to lodge with him." And a very 
 good definition is given by Cotton, L. J., in the same case. He says : " I think 
 
58.J 
 
 THE LIQUOR LICENSE ACT. 
 
 "37 
 
 or obtains, or attempts to buy or obtain intoxicating liquor ^^^^ 
 {v) during the time prohibited by this Act (w) for the sale anoftenoe 
 thereof, in any place where the same is or may be sold {x) , 
 
 by wholesale or retail, (y) shall be guilty of an offence 
 under this Act. 48 V., c. 43, s. i. 
 
 that a * lodger is a man living in a honse owned by or leased by another 
 person, and to novae extent living there with that other person." 
 
 The exemption from the penalty is confined to the ooonpant, members of his 
 family and lodgers in his hoase. The lodger mast be an occupant of the 
 licensed honse in order to claim the exemption. This exemption does not 
 extend to the sale of liqaor — such sale is illegal— daring prohibited hoars, bat 
 it will be seen that nnder snotion 64 the same class of persons is exempt from 
 the prohibition against allowing liqaor to be drank on the premises, when the 
 liqaor is obtained for medicinal parposes. In this section saoh persons are 
 exempted from the penalty for baying or obtaining or attempting to bay or 
 obtain liqnors daring the prohibited time. 
 
 It was held that the exemption in the English Licensing Acts (which permits 
 the sale of liqaor to travellers and lodgers daring the prohibited hoars) extended 
 to the gnests of sach lodgers : Fine v. Barnes, 20 Q. B. D., 221. 
 
 In any proceeding against a person for an infraction of this section it will 
 rest with the defenudnt to prove that he comes within the exemptions. See 
 Roberts v. Hamphreys, L. B. 8, Q. B. 488. 
 
 A lodger in Hoensed premises is not allowed to play games in the hoase after 
 the dosing hoar for the sale of liqaors : Ovenden v. Raymond, 34 L. T. N. S., 
 698 ; Hare v. Osborne, 84 L. T. N. S., 294. Bat there is nothing to prevent a 
 lodger entertaining his friends so long as there is no selling to sach friends, 
 see Paterson's L. A., 136. 
 
 (ff) " Bays or obtains," etc. To "bay" is to obtain by paying a price or 
 equivalent in money ; to '* obtain " means "to get possession of ; to gain ; to 
 acquire; toprocare in any manner;" and an "attempt to bay or obtain" 
 means to try by any means, to bay or proonre. 
 
 " An attempt to commit a crime is an act done with intent to commit that 
 crime and forming part of a series of acts which would constitute its actual 
 commission if it were not interrnpted. The point at which sach a series of acts 
 begins cannot be defined ; \ia.t depends upon the circumstances of each particu- 
 lar case. An act done with intent to commit a crime, the commission of which 
 iu the manner proposed was, in fact, impossible, is not an attempt to commit 
 that crime. The offence of attempting to commit a crime may be committed 
 in oases in which the offender voluntarily desists from the actual commission 
 of the crime itself : " Stephen's Grim., 87, 88 ; see B. v. Oheeseman, 31 L. J. M. G., 
 89; B.V. Beed, 110. B.,242. 
 
 "Intoxicating liqaor." See sec. 2, ss. 1, and notes thereto. 
 (to) *' Daring the time prohibited by this Act." See sees. 64, 57 and notes 
 thereto. 
 
 (x) " Is or may be sold." See notes to sec. 64. 
 
 iy) " Wholesale or retail." See notes on pages 6, 78 and 74, ante. 
 
 By sub-section 8, provision is made for the protection of ofScers and persons 
 charged with the enforcement of the law. Sab-sec. 2 of sec. 71 of this Act, 
 originally provided a penalty for each offence against this sab-section, of not 
 more than 910 and not less than $2 with costs. Bat thin provision was repealed 
 by 63 Vic, c 66, s. 6, and a new sab-seo. sabstitated as in the context of this 
 work. 
 
 m^ 
 
 
138 
 
 Power to 
 exempt 
 witnoBS 
 from 
 , penalty. 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 58. 
 
 (2) Notwithstanding anything in this Act contained, any 
 Police Magistrate or Justice of the Peace (z) before whom 
 any information or complaint (a) is laid or made for the 
 prosecution of any offence (i>) against the provisions of sub- 
 section I of section 54 may, having regard to the demeanour 
 of any witness and his mode of giving his evidence, (c) by 
 certificate in that behalf exempt such witness from the 
 operation (d) of sub-section i of this section and from all 
 proceedings (e) and penalties (/) thereunder in respect of 
 the subject matter of such information or complaint. {^^) 
 48 v., c. 43, s. 4. 
 
 
 If 
 1 r^ 
 
 I 
 
 ii 
 
 fK 
 
 I'i h 
 
 . ' i ' f 
 If. k - , 
 
 ; ' "I 
 
 • ' ' 
 
 'I' i 
 
 " Notwithstanding anything in this Act oontainod," ia equivalent to saying 
 that this Act shall be no impediment to the action of the Pohoe Magistrate or 
 Jastioes as stated, and the expression precisely corresponds to the words " as if 
 this Act had not been made." See Dwar., 683, citing Cheinie's case ; Cecil's 
 case, 7 Bep., 20. 
 
 (z) " Police Magistrate or Justice of the Peace." See notes to sec. 96. 
 
 (a) " Information or complaint." See sec. 102 and notes thereto. 
 
 (b) " Prosecution " means a proceeding either by way of indictment or infor- 
 mation in the criminal Courts in order to put an offender upon his trial. In all 
 criminal prosecutions the Queen is nominally the prosecutor : Wharton, 581. 
 
 " Any offence " applies to sub-sec 1 only. e. g., the offences of buying or 
 obtaining, or attempting to buy or obtain, liquor during the time prohibited by 
 the Act for the sale thereof. 
 
 " May." This is one of the cases in which the word may is used in a permis- 
 sive sense. See Interpretation Act, sec. 8, ss. 2. 
 
 (c) " Having regard to the demeanour, <&o.," means that the Police Magistrate 
 or Justices, taking notice and observing the conduct and demeanour of the 
 witness, if such conduct and demeanour be satisfactory to him or them, 
 may by certificate, d^c, exempt such witness from the penalties attached by 
 SB. 1 to his offence : See B. v. St. George's Southwark, 19 Q. B. D., 533 ; B. v. 
 St. Pancras, 24 Q. B. 0., 371. 
 
 << By certificate." See note (w) p. 32. 
 
 id) " The operation " means the legal effect of the enactment in consequence 
 of his violation of its provisions. 
 
 («) *' Proceedings " refers to any proceeding that may be brought. A 
 "criminal proceeding" is a far larger term than "criminal prosecution:" see 
 Tates V. The Queen, 14 Q. B. D., 648. 
 
 (/) " And penalties." See note («) to sec. 80, ante. 
 
 {g) "Information or complaint." The subject matter is the matter or 
 offence concerning which the information or complaint is made and upon 
 which the evidence of such witness is given at that time. The protection to 
 the witness here provided for cannot be made to extend to any other than that 
 particular case or offence. 
 
 The provisions of this sub-sec, apparently conflict with those of sec. 87, 
 wliioh provides that no Police Magistrate or Justice or Justices of the Peace, 
 etc., shall have power or authority to remit, suspend, or compromise any 
 penalty or punishment inflicted under this Act. But this latter provision 
 only applies in case of the conviction of an offender, and the Magistrate's oer- 
 
 l.'i f; 
 
[s. 58. 
 
 ained, any 
 )re whom 
 le for the 
 ns of sub- 
 emeanour 
 :e, (c) by 
 from the 
 from all 
 aspect of 
 aint. (^r) 
 
 . to saying 
 igistrate or 
 ords " as if 
 tse; Cecil's 
 
 , 96. 
 
 it or infor- 
 rial. In all 
 ton, 581. 
 
 baying or 
 }hibited by 
 
 napermis- 
 
 Magistrate 
 loar of the 
 L or them, 
 .ttaohed by 
 , 533 ; B. V. 
 
 wsequouce 
 
 ought. A 
 ition:" see 
 
 matter or 
 and upon 
 jteotion to 
 : than that 
 
 >f sec. 87, 
 the Peace, 
 )miBe any 
 provision 
 rate's oer- 
 
 58.] 
 
 THE LIQUOR LICENSE ACT. 
 
 139 
 
 f(2b.) (A) The purchaser (1) of any intoxicating liquor . 
 from a person who is not licensed to sell the same, (j) or "^ 
 
 any person who drinks upon the premises (k) liquor so 
 purchased, at the time of the purchase thereof (/) shall be 
 guilty of an offence under this Act.] (;«) 
 
 (3) If it shall be made to appear («) to the Police Mag- whe'r6^°" 
 
 tifioate nnder this proTlsion is a protection again:. < the conviction of an offender 
 who has given satisfactory evidence. 
 
 {h) This clause is inserted by 62 Vic, 0. 41, sec. 4, 0. 
 
 (i) " The purchaser." The word ** purchase," in its legal significance, 
 means tn acquire by any other means than by descent or devolution of law : 
 Wharton, 636. In its popular sense it means to obtain anything by way of 
 bargain and sale for money or some other valuable consideration. It is equiv- 
 alent to '* buy ; " see Worcester, 1166. But it may have even a wider meaning, 
 and the word *< purchaser " may be held to include any one not only who " pur- 
 chases " or " buys," but who obtains or procures intoxicating liquor from an 
 unlicensed person by any means or in any manner. The clause is evidently 
 intended to h&ve a wide scope, for it includes not only the purchaser, but also 
 any person who drinks liquor so purchased. 
 
 {j) "Who is not licensed to sell the same." This clause, of course, only 
 applies to persons who do not hold any description of license, and refers to 
 section 49. 
 
 (k) "Drinks upon the premises." See sec. 109 as to evidence of consump- 
 tion ; see also notes to sec. 86. 
 
 {I) " At the time of tne purchase thereof " may not mean precisely at the 
 moment the purchase is made. " At " means " near," though it may, accord- 
 ing to the context, mean " oo-existent or coincident with," as " at the same 
 time : Worcester, 92. 
 
 " In determining what was the general object of the Legislature or the 
 meaning of its language in any particular passage, it is obvious that the inten- 
 tion which appears to be most agreeable to convenience, reason and justice, 
 should in all oases open to doubt, be the true one :" Maxwell on Stats., 166 ; 
 and this principle has been generally observed whenever anything is to be done 
 at a particular time. See Btrond's Diet., 68 : Brown v. Wilkinson, 16 M. & W., 
 891. 
 
 (m) " Shall be guilty," etc. The evident intention of the Legislature is to 
 make the purchase of liquor, as well as the drinking of it at the time of its 
 purchase, an offence against tiie Act, in order that the law may not be evaded 
 by mere technicalities, or defeated for want of evidence. 
 
 There is no penalty provided here for the offeftce created by this clause, but 
 by sec. 78, ss. 1, the seller is liable to a penalty of not less than 920 for a first 
 offence, and not less than $10 nor more than 960 for a second offence. By ss. 
 2 of sec. 78 the purchaser is liable to a penalty of not less than 910 or more 
 than $20, for drinking or causing any one to drink or allowing liquors to be 
 drunk in a house or premises to which a shop or wholesale license applies, and 
 section 85 provides for penalties for violation in cases not otherwise provided 
 for. See notes to that section. 
 
 (n) This sub-section is intended for the protection of officers charged willi the 
 enforcement of the law and persons acting under the authority of the License 
 Commissioners, or of any Inspector or Provincial Officer. 
 
 " If it shall be made to appear," means that whenever it is shewn by the 
 evidence. The word " if " is oynonymoiu with the phrases " when " or *' pro- 
 
 r n 
 
 in 
 
 ^l't. '. 
 
i 
 
 i'li 
 
 m\\\ 
 
 w.:\\\ 
 
 »'ft 
 
 1 
 
 I A I ! 
 
 It 
 
 
 m 
 
 ill*'? ^ii i! 
 
 140 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 58 
 
 violation 'strate or Justices before whom any complaint under this 
 
 oommit- ^ ^^^ ^^ heard, that the person charged with the violation of 
 
 dTte' tt sub-section i [or 2b.] (o) of this section was so acting as an 
 
 breach of officer whose duty it was to enforce the liquor license laws, 
 
 (/) or under the instructions or authority in writing (^) of 
 
 any board of license commissioners, inspector or provincial 
 
 officer, for the purpose of detecting a known or suspected 
 
 offender against the liquor license laws, and of obtaining 
 
 evidence upon which he might be brought to justice, the 
 
 defendant shall not be convicted, (r) 48 V., c. 43, s. 5, 
 
 as amended by 52 Vic, c. 41, s. 5. 
 
 Tided," or " in oase " or *' so Boon as." See oaaes oited in Stronds Diet., 879. 
 A person charged with an offence nnder this section most shew that he comes 
 within this exemption here made. 
 
 (0) " Or 2b." This is added by 62 Vic, c. 41, s. 5, and refers to sec. 2b. 
 introdaced by sec. 4 of the same Act, see supra. 
 
 (p) " Officer." See notes to sec. 120. 
 
 " Whose duty it was to enforce the liqnor license laws," refers to the Inspec- 
 tor, Provincial Inspector, all officers appointed nnder sees. 127, 128 and 129, 
 and any officer, poUoeman or constable acting nnder sees. 129 and 184. 
 
 (g) " Instructions " mean either orders or authorative information or direction 
 given by a principal or superior officer to an agent or subordinate. See Wor- 
 cester, 768. 
 
 " To instruct " often means to convey information, as a client to a Solicitor, 
 or a Solicitor to a Counsel, and the expressions " instructions " and " authority " 
 are sometimes used as synonymous terms. 
 
 An " authority " is an official or judicial command ; also a legal power to do 
 an act given by one man to another, see Wharton, 70. When a document is to 
 be in writing, it usually means that it must be signed. See Stroud's Diet., 
 876, 899. By the Interpretation Act the " words * miting ' or ' written,' or any 
 term of like import, shall include words printed, painted, engraved, lithographed 
 or otherwise traced or copied." 
 
 (r) " Shall not be convicted." In oase the accused proves that he is one of 
 the persons exempt, the Magistrate or Justices will have no option in the 
 matter, they must dismiss the charge. 
 
 The persons who are guilty of offences under this section are, 1. the purchaser 
 or obtainer on unlicensed premises of intoxicating liquor during the time pro- 
 hibited by the Act for the sale thereof ; 2. any one attempting to buy or procure 
 such liquor on such licensed premises during such time ; 8. the purchaser of 
 liquor from an unlicensed person ; 4. any person who, at the time of such 
 purchase, drinks liquor so purchased upon the premises where it is procured. 
 The exemptions from the operation of the section are divided into two classeB : 
 those exempt from sub-section 1, being witnesses whose demeanor is satisfactory 
 to the Magistrates and Justices, and those who are exempt from the operation 
 of the whole section, including sub-sec. 2 (b), viz.: Any officer charged with the 
 duty of enforcing the Aot, or who is acting under instructions from the License 
 Oommissiouers, Inspector or Provincial Inspector, for the purpose of detecting 
 a known or suspected, offender and of obtaining evidence to convict snob 
 offender. This latter rjlass includes Inspectors and other officers appointed by 
 the Qovemment ondor aaotion 127, offlOMM amtointod by the ItioeuM Commis- 
 
S. 59.] THE LIQUOR LICENSE ACT 14I 
 
 39* (i) Where a license is issued under this Act, to ^^^l 
 authorize the sale of liqucrs upon nny vessel navigating any J™^ ^^ 
 river, lake, or water in this Province, no sale or other dis- |jbitod?" 
 posal of liquor shall take place thereon or therefrom, to be 
 consumed by any person other than a passenger on the said 
 vessel, whilst such vessel is at any port, pier, wharf, dock, 
 mooring or station ; nor shall any liquor, whether sold or 
 not, be permitted or allowed to be consumed in or upon 
 any vessel departing from and returning to the same port or 
 wharf, dock, mooring or station, within the time hereinafter 
 in this section mentioned, by any person during the hours 
 prohibited by sec. 54, for sale of the same except for medi- 
 cal purposes as provided in the said section. 
 
 (2) In case any such sale or other disposal of liquor takes Penalty, 
 place, the said license shall ipso facto be and become for- 
 feited and absolutely void, and the captain or master in 
 charge of such vessel, and the owner or person navigating 
 the same, as well as the person actually selling or disposing 
 of liquor, contrary to this section, shall be severally and 
 respectively liable to pay to the Crown for the public uses 
 of this Province the sum of $100; and any person who 
 sells or disposes of any liquor contrary to the provisions of 
 this section, shall also be liable to the same penalty and 
 punishment therefor as are hereinafter prescribed in section 
 71 of this Act. {$) R. S. O. 1877, c. 181, s. 44. 
 
 Bioners with the Banotion of the Lientenant-Oovenior-iii-Oomioil imder seo. 
 128, Policemen and Constables as well as Inspectors nnder sec. 129, and lastly, 
 any person who may be authorized or instmoted in writing by the Board of 
 License Oommissioners or by any Inspector or Provincial Inspector, for the 
 pnrpose of detecting a known or saspeoted offender, and of obtaining evidence 
 npon which to oonviot snoh offender. This latter class includes those persons 
 usnaJly known as " informers " appointed by the License Oommissioners or 
 Inspector, with authority or directions in writing signed by such Board or 
 Inspector. 
 
 («) The issue of licenses to vessels navigating any of the great lakes, or the 
 rivers St. Lawrence or Ottawa, or any of the inland waters of the Province of 
 Ontario, is abolished, and selling or keeping any liquor for sale in any room or 
 place on any such vessel is prohibited by sec. 10, 58 Vic, 0. 56 (0) ; and unless 
 saoh licenses are re-instated hereafter, this section will be inoperative ; the sale 
 of liquor on board any such vessel within the Province of Ontario beiog 
 restricted by the provisions prohibiting the sale of liquor without license. 
 
 " Sale or other disposal." Bee notes to seo. 64. 
 
 " Thereon or therefrom." See notes to sec. 64. 
 
 A *■ passenger " on a boat is looked npon in the same light as a lodger in a 
 
!; 
 
 ;l 
 
 
 I; ^1^ : 
 
 ! 1 ) 
 
 
 ■1 
 
 ;' 
 
 ; t , 
 
 i'' 
 
 1 
 
 I ii 
 
 ■^^■iihte'ir:I 
 
 ^'ll 
 
 !:■';-. 
 
 r .!■ 
 
 I: 
 
 142 
 
 Shop 
 license 
 not to 
 authorize 
 liquor 
 sold to be 
 con- 
 sumed in 
 the house 
 
 Penalty. 
 
 Liquor 
 not to be 
 con- 
 sumed on 
 premises 
 ofpersouB 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 60, 61. 
 
 00« No person having a shop license to sell by 
 retail, (/) and no chemist or druggist (u) shall allo.v any 
 liquors sold by him or in his possession, (v) and for the 
 sale of which a license is required, to be consumed within 
 his shop, (w) or within the building (x) of which such shop 
 forms part, or which communicates by any entrance with 
 such shop, either by the purchaser thereof, (y) or by any 
 other person not usually resident (z) within such building, 
 under the penalty, in money, (a) imposed by section 70 of 
 this Act. R. S. O. 1877, c. 181, s. 45. 
 
 OA* No person having a license to sell by wholesale, 
 shall allow any liquors sold by him or in his possession for 
 sale, and for the sale or disposal of which such license is 
 
 house, and so privileged to oonsame spirituous c fermented liquors when other 
 people are prohibited. The only exception is when the vessel is departing from 
 or returning to port within the hours mentioned in see. 64. See Harrison's 
 Mnn. Man., 982 (0). 
 
 The penalties are cumulative : (1) Forfeiture of license ; (3) Penalty of 9100 
 on the captain or master in charge of the vessel and the owner or person 
 navigating the same, as well as the person actually selling or disposing of the 
 liquor contrary to the section ; (8) Penalties under section 71. See sec. 101, 
 sub-B. 6. 
 
 (t) " Shop license to sell by retail." See see. 2, ss. 8, and sec. 81, ante, 
 (u) " No chemist or druggist." See notes to sec. 62. 
 
 (v) " Sold by hiia or in his possession." This expression has a very exten- 
 sive meaning. The holders of shop licenses and chemists and dmg^sts are 
 allowed to have liquors in their possession and to sell them in certain quanti- 
 ties, but they must not permit such liqudr to be drunk in their shop or 
 premises, or anywhere in the building in which it is situated, or any building 
 which communicates by any entrance with the shop ; and this applies to the 
 gift of such liquor as well as to its sale. This section only applies to liquora 
 for the sale of which a license is required ; chemists and druggists do not 
 require a license except for manufacturing purposes, (see notes to sec. 61, ante), 
 but any liquors which they are authorized to sell may not be consumed on the 
 premises. 
 
 (to) " Within his shop." See note (q) to sec. 64. 
 
 (x) " Within the building." See note (y) to see. 60. 
 
 {y) " Purchaser thereof." See note (J) to sec. 68. 
 
 (») '* Usually," in its natural sense, is defined by Worcester to mean " com- 
 monly ; customarily; ordinarily; frequent;" but in its legal sense the meaning 
 of the word " usual " is not so easily stated. But it has been held that the 
 place where an individual eats, drinks and sleeps, or where his family or 
 servants eat, drink or sleep is his usual residence : B. v. North Gurry, 4 B. & C. 
 959. See Stroud's Diet., 678 ; see also notes to sec. 11, p. 29, ante. 
 
 (a) This is the penalty prescribed for selling liquor without a license. It ia 
 not less than 950 and not more than 9100 besides costs. Sec. 70 provides for 
 punishment by imprisonment for second, third or subsequent offences, but 
 these latter penalties do not apply to this section. In this the penalty is merely 
 the peonniaiy one. See sec. 71, as. 3. 
 
 Ri'— ■ 
 
ss. 6i, 62.] 
 
 THE LIQUOR LICENSE ACT. 
 
 143 
 
 required, to be consumed within his warehouse or shop, or u*g*?g 
 
 licenw by 
 within any building which forms part of or is appurtenant wiwiesaie 
 
 to, or which communicates by any entrance with any ware- 
 house, shop or other premises wherein any article to be sold 
 or disposed of under such license is sold by retail, or 
 wherein there are kept any broken packages of such / 
 
 articles, {b) R. S. O, 1877, c. 181, s. 46. 
 
 OI9* (i) No person shall by himself (f) or his partner, ^'o***^*- 
 {d) servant, {e) clerk, (/) agent (^) or otherwise, {h) sell or sale to 
 deliver (/) intoxicating liquors of any kind (y) to any per- 
 
 (h) This seotion applies to wholesale lioenses only ; its provisions are nearly 
 the same as those of the next preoeding seotion, exoept that no penalty is pro- 
 vided for. See notes to sections 2, 34, 36, 144 ; also notes to sections 64 and GO. 
 
 See Soh. D., seo. 10, for form of oonviotion. 
 
 (c) " No person shall by himself." Where a person " himself " has to do a 
 tiling he cannot do it by an agent: Monks v. Jaokson, 1 0. P. D., 683. So 
 where a person reported guilty of malpractices at an election is to be heard "by 
 himself," he cannot appear by Oonnsel: Hereford Case, B. v. Jones, 23 
 Q. B. D., 2tf. 
 
 (d) " Or his partner." See note (*) to sec. 36, ante. 
 
 (e) " Servant." " The relation of master and servant exists when a person 
 caUs in the assistance of others, where his own skill and labor are not sufficient 
 to carry out his own business or purpose : " Wharton, 463 ; see note (t), seo. 35. 
 
 {f) A " clerk or servant " {qua embezzlement), is a person bound either by 
 express contract or by conduct implying suoh a contract to obey the orders and 
 submit to the control of hia master in the transaction of the business whicb it 
 is his duty as such clerk or servant to transact : Steph. Or. 239, cited Stroud's 
 Diet., 134 ; see also note (t) to sec. 36. 
 
 {(g) "Agent." See notes to sec. 49, notes to sec. 64, and note (u) to 
 sec. 36. 
 
 (A) " Or otherwise " generally means something or some one in the same 
 class as those which precede it. As to this '* no authority is neoassary," per 
 Cleasby, B., Monck v. Hilton, 2 Ex. D., 268, and Pollock, B., S. 0. at p. 
 278. But it is a general rule which is not infrequently found inapplicable : 
 Stroud's Diet., 649. It may be construed as enlarging rather than limiting the 
 words which it follows: see Monck v. Hilton, 2 Ex. D., 268; Johnson v. 
 Fenner, S3 J. P., 740 ; B. v. Middlesex Jus., 41 J. P., 629; re Stade, 86 L. T. 
 N. S., 402. 
 
 In this sMlion it refers to the subject matter, and includes a sale in any 
 manner not particularly specified. See Oommonwealth v. Bice, 9 Mete, 258 
 (1845), and other oases cited in Anderson's Diet., 740. 
 
 (t) " Sell or deliver." As to meaning of the term " to sell,'* see note (d) to 
 seo. 2, p. 6, and also notes to seo. 64. 
 
 The ordinary meaning of the term " deliver " is '* to give over " or " transfer " 
 from one person to another : see Worcester, 378. But in law a " delivery " of 
 goods, etc., may be made without any actual transfer taking place. As to the 
 delivery of bills and notes, speaking generally, "delivery" means *' transfer of 
 possession, actual or oonstraotive, from one person to another : The Bills of 
 Exchange Act, 1890, 63 Vic, c. 88, s. 2, ss. (/). 
 
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 sedper- 
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 THE LIQUOR LICENSE ACT. 
 
 [s. 62. 
 
 son not entitled to sell liquor, (A) and who sells such liquor, 
 or who buys for the purpose of re-selling, (/) and any viola- 
 ^ tion of the foregoing provision shall be an offence under 
 this Act. (m) 
 
 (2) («) But no person shall be convicted under this sec- 
 
 » tion who establishes (0) to the satisfaction (/) of the Police 
 
 Magistrate or other J ustice or Justices (</) before whom the 
 
 The delivery of goods may be either real or symbolioal, aotaal or oonstraotive. 
 Things capable of manual delivery — snoh as a watoh, book, or a gon— are 
 usually transferred from the hand of the vendor to that of the purchaser, and 
 this constitutes a real or actual deUvery. And where balky commodities are to 
 be delivered, they are removed from the warehouse of the vendor to that of the 
 purchaser and placed under the control of the latter. This also constitutes an 
 actual delivery. But where the transfer is effected by the vendor giving the 
 
 Eurchaser the means of removing the goods, and the control of them as by 
 anding over the key of the room, warehouse, or receptacle, in which the goods 
 are deposited, there is a case of symbolical or constructive delivery ; but in tho 
 latter case the goods to be deUvered must be separated from others and identified 
 BO that nothing remains to be done but delivering in order to complete the 
 contract. A law against selling or delivering intoxicating liquors to a minor 
 was held not to include a delivery to a minor for his father-: State v. McMahon, 
 53 Conn. 416 (1886). 
 
 (J) " Liquors of any kind " mean intoxicating liquors. See note (b) to sec. 
 2, p. 4, ante. 
 
 {k) " Any person not entitled to sell liquor " may mean not only any person 
 who has not a license to sell liquor in places where this Act is in force, but also 
 any person who, under any prohibitory law in force, is not authv.-dzed to sell 
 such liquor. But no conviction can be made under this Act in places where 
 the 0. T. Act is in force. See notes sec. 49. 
 
 ({) The section first prohibits the sale of liquor to a person who is not 
 authorized to sell it, for the purpose of re-sale, and then makes it an offence ; 1. 
 for any such vendor to sell, and, 2. for any such purchaser to buy liquor for the 
 purpose of re-selling it. 
 
 fm) The penalty is not provided for, therefore the offence is one covered by 
 sec. 86. 
 
 (ft) This sub-sec. applies only to the vendor. If he be charged with on 
 infraction of this section, the onus of proving that he believed the purchaser 
 was licensed will lie with the defendant. 
 
 (0) " Establishes " may be taken to mean, " confirms " by evidence or other- 
 wise a fact which exists but which does not appear on the face of the proceedings. 
 
 (p) Where one party has to do something to the satisfaction of another, as 
 for instance to furnish proof satisfactory to him, it does not follow that the 
 latter is to act capriciously, he can only ask for a reasonable fulfilment of the 
 obligation : Braunstein v. Accidental Ins. Co., 1 B. <& S. 782. 
 
 By " satisfactory " evidence, what is meant is, " that amount of proof which 
 ordinarily satisfies an unprejudiced mind beyond reasonable doubt. The cir- 
 cumstances which will amount to this degree of proof can never be previously 
 defined ; the only legal test of which they are susceptible is their sufficiency to 
 satisfy the mind and conscience of an ordinary man, and so to convince him, 
 that he would venture to act upon that conviction in matters of important 
 personal interest : Taylor on Evi., 8th Ed., 2. 
 
 (9) By sec. 96 all prosecutions under sees. 49, 50, 64, 69, 60, 66, 70 and 79 
 
 ; I * 
 
 I'll 
 
 r-':i^f 
 
s. 62.] 
 
 THE LIQUOR LICENSE ACT. 
 
 M5 
 
 [jfosecution is heard (r) that he had reason to believe and 
 did believe (s) that the person to whom the liquor was sold 
 or delivered was duly licensed to sell such liquor, or did not 
 sell liquor unlawfully, or did not buy to re-sell. 
 
 (3) This section applies only to a sale or delivery of 
 liquor in any city, town or village (/) by a person residing («) 
 or carrying on business (v) therein to a person who sells 
 
 or any Beotion for the oontravention of which a penalty or paniahment is pre- 
 cribed by aeo. 70, are to be before two or more Justioes of the Peace. A Police 
 Magistrate has the 4ame power, in certain cases, as two Justices of the Peace, 
 by B. S. 0. c. 72, s. 21 ; see notes to sec. 96. Under sec. 99, one Justice 
 may hear such cases in certain rural Municipidities, and by sec. 97, all other 
 proHOOutions, except those above mentioned, may be before one Justice of the 
 Peace. 
 
 (r) " Heard." See note («) p. 27, ante, and note (p) p. 36 ante. 
 
 it) "Reason to belie. 3 and did believe." Where there is a question of 
 belief, it is for the Judge or Justioes before whom the case is tried to decide 
 whether the facts upon which such belief rests are reasonable or satisfactory. 
 The rule in actions on the case for malicious prosecutions is thus stated in 
 Taylor on Evidence, 8th Ed., p. 43 ; "If a Magistrate on being sued for false 
 imprisonment, were to rely, under ' not guilty by Statute,' upon want of notice 
 of action or the like, the question whether he beUeved, with some colour of 
 reason and bona fide, that he was acting in pursuance of his lawful authority, 
 would, in strictness, be for the jury to detenjiine under all the circumstances, 
 if the plaintiff should desire their opinion to be taken on evidence ; though if, 
 as is commonly the case, these questions were first submitted to the Judge on 
 an appUcation for a non-suit, and the plaintiff did not then desire them to be 
 left to the jury, he would be bound by the decision of the Judge, if the Court 
 should think it warranted by the evidence. See also Pollock on Torts, 149. So 
 that in any prosecution under this section the question of whether the defend- 
 ant "had reason to believe and did beUeve" that the person to whom the 
 liquor was sold or delivered was duly licensed to sell such liquor, or did not 
 sell liquor unlawfully, or did not bay to re-sell, is for the Justice or Justices 
 to decide ; see Mclntee v. MoGullongh, 2 E. <& A., page 390. It must be noted 
 that there are three grounds of belief under which a defendant may escape from 
 a prosecution under this section. 1st. That the person to whom the liquor was 
 sold or delivered was duly licensed to sell such liquor. By which is meant that 
 the vendor believed the purchaser had a license to sell the particular kind of 
 liquor sold, either by wholesale or retail. Such belief would not be reasonable 
 if the quantity sold was less than the purchaser could lawfully sell, or if the 
 license which the vendor believed the buyer to have did not authorize the sale 
 of the kind of liquor purchased ; as, for instance, if the license was said to be a 
 beer and wine license, and the liquor sold was not such as is authorized to be 
 sold under that license. 2nd. That he beUevcd the purchaser to be a person 
 who did not sell unlawfully — e. g., one who, not being licensed, was not in the 
 habit of selling hquor in any form, or having a special license, or being a 
 chemist or druggist, did not sell liquor in contravention of such license or of 
 the Act. And 3rd, that the liquor purchased was not bought to be re- sold. 
 
 (t) As to the meaning and scope of the words " city, town, or village," see 
 note (j) to sec. 2, p. 7. 
 
 (u) " Besiding." See notes to sec. 11, ss. 11, p. 29. 
 
 (v) Or carrying on business. The phrase "carrying on " implies a repetition 
 
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 146 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 62. 
 
 liquor unlawfully in the same city, town or village, (w) 
 49 v., c. 39, s. 13. 
 
 or Bering of aots: per Brett, It. J., Smith v. Anderaon, 15 Oh. D., 347. See 
 alio re Siddall, 29 Ob. D., 1 ; re Thomsa, 14 Q. B. D., 879. The term 
 " bnsineaa " aa aaed here refera to the baaineaa of liquor aelling : R. v. Oook, 
 18 Q. B. D.. 877. 
 
 The phraae " oarriea on buaineaa " haa not been fully oonaidered or diaonaaed. 
 " Buaineaa " ia a term of extenaive import and indefinite meaning. In its 
 broadeat aenae it inoludea nearly all the affairs in whioh an individual can be 
 an actor. What ia meant here, however, ia that which ia moat commonly 
 denominated buaineaa. In auch a connection, it haa been held that a peraon 
 who merely haa an ciBoe in a place where he receivea ' ' '9 and ia engaged in 
 winding up the affairs of an inaolvent firm to which ' belonged does not 
 " carry on " buaineaa. A peraon who anperintenda the businesB cannot be aaid 
 to carry on the buaineaa, for he is only uoting on behalf of his principal ; he 
 does not furnish the capital, and no one carries on a business unless he provideB 
 the money that ia needed in it, or has an interest in it by contributing his labor. 
 The capital may be borrowed, but it must stand in the name of the person who 
 ia aaid to *' carry on the buaineaa." Therefore, it follows that a business to be 
 carried on must be the person's own business, and not that of another. But in 
 the case of two persons who had failed after having carried on business in n 
 district for a long time, and after their failure, one was employed as a clerk and 
 the other aa an agent to superintend the business, it was held that both were 
 carrying on buaineaa in the district. 
 
 "The phrase 'carrying on buaineaa ' looks to the scheme and purpose to 
 which all the transactions tend, the design and object which the party has in 
 view. In carrying on a businesa there are many affairs wliioh are merely 
 incidental and which may be, and often are, transacted elsewhere than at the 
 place where the business is located, and such transactions may be of such 
 frequent, and even daily occurrence, as to require an agency of considerable 
 duration. Such collateral or incidental transactions do not constitute the 
 business, nor are they a carrying on of business in the aense of the law." The 
 authorities upon thia aubject are so numerous that there is not room for them 
 here, but they may be found in Sinclair's D. 0. Act, 1879, 84-88; Sinclair's 
 Oon. D. 0. Act, 1888, 125 ; 88 Alb. L. J., 842. See also Graham v. Lewis, 59 
 L. T. N. S., 85. It was held that if a person takes a house, or part of a house, 
 either in his own name or in that of another person, and there personally or by 
 his agent makes sale of spirits, even though no spirits are actually stored on 
 the premisea, he oarriea on the business of selling liquor there: Stallard v. 
 Marks, 8 Q. B. D., 412 ; and even though the store was kept in another town. 
 Idem. Selling a single drink was held not to be " carrying on business :" 
 Lawaon v. State, 66 Ala., 118 ; L. B. 2, 0. P. 270 ; B. v. Andiews, 25 
 U. C. R., 196. 
 
 (to) If any prosecution should ever be instituted under this section, it will be 
 necessary to prove, in addition to the other facts whioh may be gathered from 
 the foregoing notes, that the purchaser is " a peraon who sells liquor unlawfully 
 in the »ame city, town and village." " Unlawfully " means something whioh is 
 " forbidden by some definite law : " per Stephen, J., B. v. Olarenee, 22 Q. B. D., 
 23 ; and in this case it has reference to the sale of liquor in any manner for- 
 bidden by the Act. 
 
 The word ".same" generally refers to the next preceding antecedent: 
 Oo. Litt. 206, 2856, aa it here refers to the city, town, or villas;e in which the 
 liquor is sold or delivered, and in which the buainess of the seller is carried on : 
 see Stroud's Diet., 698. 
 
 An agreement, the object of whioh is to enable an unlicensed person to sell 
 
 14; ms^- 
 
SS. 63, 64, 65. J THE LIQUOR LICENSE ACT. 
 
 147 
 
 Stt. Not more than one bar (x) shall he kept {y) in ^,^,^''"' 
 any house or premises licensed under this Act (z) 47 V., 
 c. 34, s. 23. 
 
 O'ft* No tavern license shall be granted in respect of ^'hotoUo 
 any house in any city, town or incorporated village not ^fo'from 
 already licensed, {a) unless such house has a separate front bur. 
 entrance, in addition to the entrance to the bar or place 
 wliere liquors are sold. 47 V., c. 34, s. 25. 
 
 04« If any person (i) holding a license (c) purchases Lioemee 
 
 gpiiituoas, fermented or mannfaotared liqaora without a lioense, is illegal and 
 cannot be enforced at law. See aeo. 126 and notes thereto. 
 
 (x) *' One bar." See note (A) to see. 66. 
 
 {y) " Shall be kept." See note (a) to aeo. 32, p. 68, and note (0) to seo. 27. 
 
 To " keep" a place for a particular purpose invoWea, aa haa been ahewn, the 
 idea that it is uaed for that purpoae on more than one oocaaion : Marks v. 
 Benjamin, 6 M. & W., 668, cited in note {q) to sec. 11, p. 24 ante. 
 
 " Keep open " impliea a readlneap to carry on the uanal busineaa in a atore, 
 saloon, etc.: Lynch v. People, 18 Mich. 477 (1868), and also to allow general 
 acoeaa for the pnrpoaea of traffic, although the outer entrance ia cloaed: 
 Commonwealth v. Harriaon, 11 Oray, 808 ^1858). Keeping apirituous liquor 
 for sale ia having poaaeaaion and control of it with intent and readineaa to make 
 a sale. This may be long continued practice, or it may be instantaneous : 
 State V. Haney, 68 N. H., 879 (1878). 
 
 " House or premises." See note (9) to sec. 17 ante. 
 
 (s) There is do penalty attached to the keeping of more than one bar, nor is it 
 made an offence to do so ; but the prohibition is absolute, and it therefore 
 belongs to that class of " provisions "for the violation of which " no other pun- 
 ishment is prescribed " than that provided by sec. 85. " Every one commits a 
 misdemeanor who wilfully disobeys any Statute by doing any act which it for- 
 bids or by omitting to do any act which it requires to be done, and which 
 concerns the public or any part of the public, unless it appears from the Statute 
 that it was the intention of the Legislature to provide some other penalty for 
 such disobedience : " Burbidge's Grim. Dig., 116, 116. 
 
 (a) '* Not already licensed " refers to the date of tb«) pirssing of the Act, viz.: 
 26th March, 1884, so that all houses licensed since that date must be provided 
 with a front door entrance separate from the entrance to the bar. The term 
 '* separate" as used here means " unconnected." The " front" of a building 
 is that part which fronts or abuts upon any public street, and if the building is 
 situated upon more than one public street it " fronts " on all such streets ; per 
 Pollock, C. B., Bedfordshire Jus. v. Bedford, 7 Ex., 658 ; Governors of Bedford 
 Infirmary v. Bedford, 7 Ex., 768. A building may therefore have more than one 
 front entrance. The entrance to the " bar " may be upon one street and that to the 
 other part of the house on another street, but there must be at least two 
 separate entrances. No penalty attaches tc non-compliance with this provision 
 except that the License Commisaioners must not grant a license to any house 
 in any city, town or incorporated village, which has not complied with it by 
 famishing separate entrances. 
 
 (6) " Any person." See note {g) to sec. 11, p. 28, ante. 
 
 (e) " Holding a lioense," means being legally in possossion of a lioense, e. g., 
 a person licensed to sell liquors by wholeside or retail, or under the provisions 
 of the beer and wine lloeniie olaases of this Act. 
 
 W-^ 
 
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 J-i ' I 
 
 148 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 65. 
 
 {d) from any person any wearing apparel (e), tools (/), 
 
 not to 
 
 purohase 
 
 artioLM implements of trade or husbandry {g), fishing gear (//), 
 
 toem'in'* household goods (/), furniture (/), or provisions (k) either 
 
 pledge, by way of sale or barter (/), directly or indirectly (m), the 
 
 {d) " ParohaBes." See notea to see. 68. 
 
 («) " Wearing apparel " oonRists of that whioh is worn or made to be worn. 
 Gloth actually appropriated thereto may be regarded as apparel : Biohardson v. 
 Bnswell, 10 Meto., 607, (1845) ;• see also Astor v. Merritt, 111 U. S., 202, (1884). 
 
 (/) "Tools" are " meohanioal instramenta of any kind for working with." 
 The term includes all instruments of manual operation, but particularly such 
 as are used by farmers and mechanics : Oliver v. White, 18 S. C, 241, (1882). 
 
 {g) "Implements" is used for things of necessary use in any trade or 
 mystery which are employed in the practice of the said trade, or without which 
 the work cannot be accomplished. And so, also, for furniture of household 
 with whioh the houso is filled. And in that sense you shall find the word often 
 in wills and conveyances :" Termes de la Ley, cited Stroud's Diet., 462. 
 
 '* Implements of trade " are those implements used in a man's trade or busi- 
 ness. It has h<3en held that the expression " implements of a debtor's trade," 
 refers to the business of a mechanic, as a carpenter, blacksmith, silversmith, 
 printer or the like : Aitwood v. De Forest, 19 Conn., 517 ; 11 Mete, 79 ; 6 Gray, 
 298, 23 Iowa, 869. They rarely include animals : GooUdge v. Ghoate, 11 Mete, 
 82 ; a music teacher's piano has been held to be an instrument of business : 
 Amend v. Murphy, 69 111., 338. 
 
 " Implements of husbandry " are instruments of all kinds used in husbandry. 
 A steam engine used for working a threshing machine was held to be an instru- 
 ment of husbandry : B. v. Malty, 8 E. <& B., 712. 
 
 {h) " Fishing gear " includes all instrnments, nets, tackle, blocks, ropes, &e., 
 used in the trade or business of fishing. 
 
 (t) " Household goods " includes all personal chattela that may contribute to 
 the uae or convenience of the householder or the ornament of the house, such 
 as plate, linen, china, (both useful and ornamental), pictures, prize medals, 
 coitid or trinkets if framed or otherwise disposed of as household ornaments, 
 <&o. : Stroud's Diet., 369-361. 
 
 (j) "Furniture." It has not yet been declared what is meant by " furni- 
 ture :" per Brett, M. B., re Parker, 14 Q. B. D., 636 ; but the definition given 
 by Worcester is, " goods put into a house for use or ornament." It has a very 
 wide meaning and includes everything whioh goes to the furnishing of a housa, 
 such as sofas, chairs, tables, sheets, blankets, and counterpanes, wasL-hund 
 basins and wash-hand stands, linen and crockery, and other things besides 
 those enumerated may be included in the term : see re Parker, iupra. The 
 word relates ordinarily to moveable personal chattels, but ia very general in 
 meaning and application, and the meaning changes, so as to take color of, or to 
 accord with the subject to which it is applied : Fore v. Hibbard, 63 Ala., 412 
 (1879). 
 
 {k) " Provisions " includes all those things which are used for food, victuals 
 or provender : Worcester, 1147. See Golher v, Worth, 1 Ex. D., 464, cited 
 Stroud's Diet., 630. 
 
 (I) " Sale or barter " means the exchange of goods either for money or for 
 commoditi>ja of other kinds. See note (d) to sec. 8, p. 6, ante. 
 
 (m) " Directly or indirectly " means either in a direct manner or by implication 
 or circumlocution : Worcester, 407. It was held that the addition or omission 
 of these words to an offence was immaterial : Todd v. Robinson, 14 Q. B. D., 
 789. Bat see Stewart v. Maodonald, 11 L. J. N. S., 19. 
 
 If f 
 
65-] 
 
 THE LIQUOR LICENSE ACT. 
 
 149 
 
 consideration («) for which, in whole or in part, is any 
 intoxicating liquor (<?) or the price thereof (/), or receives 
 from any person any goods in pawn {pp\ any Stipendiary 
 or Police Magistrate, or any two Justices of the Peace (^), 
 
 (n) " Consideration " means 
 
 ' the price, motive, or matter of inducement of 
 It also means an equivalent or compensation : 
 
 a contract : see Wharton, 167. 
 Worcester, 298. 
 
 The definition gi^en by Gray, J., in Phoenix Ins. Go. v. Baddin, 120 U. S., 
 197 (1887), is : '* That which the party to whom a promise is made does or 
 agrees to do in exchange for the promise." 
 
 (0) " Intoxicating liquor." See sec. 2, as. 1, and notes thereto. 
 
 (p) The "price thereof may be either the sum for which anything may be 
 bought, or at which its value is rated ; or an equivalent or compensation in 
 any form asked or paid for anything : Se'j Worcester's Diet., 1127 ; Anderson's 
 Diet., 809. " The first and general me tning originates in the fact that property 
 is ordinarily sold for money ; not because the word is restricted to that mean- 
 lug : " per Earl, C, Hudson Iron Co. v. Alger, 64 N. Y., 177 (1873). 
 
 The Latin is pretium — reward, value, estimation, equivalent. 
 
 (pp) " Beceives from any person any goods in pawn." " Pawn," or pledge, 
 is defined by Wharton as: "A bailment of goods by a debtor to his creditor, 
 to be kept till the debt is discharged ; " which is, in other words, something 
 given as security for the repayment of a debt ; or, as Worcester defines it, 
 " something given for the repayment of money borrowed." 
 
 " As to things which may be the subject of pawn. These are ordinarily 
 goods and chattels; but money, debts, negotiable instruments, ohoses in 
 action, and, indeed, any other valuable thing of a personal nature, such as 
 patent-rights and manuscripts, may, by the common law, be delivered in pledge. 
 It is not indispensable that the pledge should belong to the pledgor ; it if suffi- 
 cient if it is pledged with the consent of the owner. By the pled^^o <ji a thing, 
 not only the thing itself is pledged, but also as accessory the natural increase 
 thereof. There must be an actual delivery of the thing to the pledgee, though 
 not an actual manual delivery — such acts as the law deems sufficient to consti- 
 tute a delivery (see note (t) to sec. 62), being all that are required ; and it is 
 also necessary that the thing should be delivered as security for some debt 
 or engagement. It may be delivered for some future debt or engagement as 
 well as for a past debt, or for one or many debts and engagements ; upon con- 
 dition or absolutely ; for a limited time or an indefinite period. It may also 
 be implied from circumstances, as well as arise by express agreement, and it 
 matters not what is the nature of the debt or engagement. The pledge is 
 understood to be a security for the whole and for eveiy part of the debt or 
 engagement. It is undivisible." This is the definition and description of 
 what constitutes a " pawn," or pledge, in Wharton's Lexicon, at p. 641. As to 
 what are the pledgee's or pawnee's rights, see Story on Bailment. The Statu- 
 tory definition of a pawnbroker is : " Every person who takes or receives, by 
 way of pawn, pledge or exchange, any goods for the repayment of money lent 
 thereon." And it is an offence against the Statute to exercise the trade of a 
 pawnbroker without license, punishable by a fine of $50 for every pledge taken, 
 and a fine of $40 for neglect to exhibit a sign : see B. S. 0. , 0. 164. 
 
 (q) " Stipendiary Magistrate." See B. S. 0., c. 91, sees. 2-7. 
 
 " Police Magistrate." See note (t) to sec. 46, p. 105. 
 
 " Two Justices of the Peace." See notes to sec, 96. 
 
 Stipendiary and Police Magistrates have the same power as two Justices of 
 the Peace by B. S. 0., u. 72, t. 21, and B. B. 0., 0. 91, a. 7. 
 
 . t 
 
! i 
 
 ,! il 
 
 . ( 
 
 150 
 
 THE LIQUOR LICENSE ACT. 
 
 Ls. 65. 
 
 on sufficient proof on oath (r) being made before him or 
 
 them of the facts, may issue his or their warrant for the 
 
 RestitQ- restitution (s) of all such property, and for the payment of 
 
 be or- costs (f) ; and in default thereof (7^) the warrant shall con- 
 
 deredand ^ ' ' ^ ' 
 
 enforced, tain directions for levying by sale of the offender's goods to 
 the value of such property so pawned, sold, or bartered, 
 and costs, and the offender shall also be liable to a penalty 
 not exceeding $20 (v). 47 V. c. 34, s. 27. 
 
 (r) " Sufficient proof" is equivalent to the phrase "satisfactory evidence." 
 See note (p) tc sec. 62. It is that amount of proof which ordinarily satisfies 
 an unprejudiced mind beyond reasonable doubt : Taylor in Evi , 2. 
 
 The word "oath" shall be construed as meaning a solemn affirmation 
 whenever the context applies to any person and case by whom and in which a 
 solemn affirmation may be made instead of an oath : Interpretation Act, 
 R. S. 0. 1887, 0, i, s. 8, ss. 18. 
 
 " Proof made upon oath " admits proof on affidavit, but is not confined to it : 
 per Esher, M. B., Osborne v. Milman, 56 L. J. Q. B., 264. 
 
 {n) "Restitution" means the restoring of anything unjustly taken from 
 anotner : Wharton, 641, 
 
 The " warrant for the restitution " of such property would be similar to the 
 writ of restitution awarded in cases of stolen property : see R. 8. C, 0. 174, 
 s. 260, SB. 2. For form of such warrant see apperdix. 
 
 (t) By sec. ICO, the Justice or Justices may order that the defendant shall pay 
 to the prosecutor or complainant such costs as to the said Justice or Justices may 
 seem reasonable, &o. Sea that sec. and notes thereto. 
 
 • 
 
 (u) " Default " means " an omission of some act which a person ought to do 
 in oi^er to entitle himself to a legal remedy, as non appearance in Court at a 
 day assigned," and also, "to fail in performing any act, contract or stipulation, 
 or to appear in Court ;" see Worcester, 872, Stroud's Diet , 192. A better 
 definition, perhaps, is " an omission of that which a man ought to do," neglect. 
 The warrant is to contain directions for levying the value of the goods only on 
 default of restitution and payment of costs. What procedure is to be had in 
 order to ascertain the value of the goods is not shewn, but it is suggested that 
 it would be the duty of the Justice or Justices to ascertain this in the enquiry 
 before them. 
 
 (7j) " Not exceeding $20 " means $20 or less. 
 
 The procedure whiol phould be followed in carrying out the provisions of this 
 section is not defined. Any person may be prosecutor or complainant— sec. 93. 
 The initiative proceedings must be in compliance with see. 94. For form of 
 fnformation see appendix of forms. If the Justice or Justices find that there is 
 sufficient proof adduced (1) that the defendant is a person holding a license; 
 (2) that he has purchased, exchanged, or bartered liquor for any of the things 
 enumerated fn this section, or given liquor as the consideration, either wholly 
 or in part, for the purchase or exchange of such articles ; or (3) has received 
 them in pledge for liquor or for the payment of money, or received them in 
 pledge under any circumstances, then such Justice or Justices may issue the 
 warrant for the restitution of such property, and if the property is not forth- 
 coming, then for the value of snob property as per form of waiTant in the 
 appendix. 
 
 i 
 
s. 66.J 
 
 THE LIQUOR LICENSE ACT. 
 
 PENALTIES. 
 
 151 
 
 OO. It shall not be lawful (w) fc~ the license com- Not law- 
 
 Till to iifLKA 
 
 missioners of any license district, fx) or any of them, ( v) money 
 
 ^ ' f or certi- 
 
 nor for any inspector, (z) either directly or indirectly, (a) to flcate, 
 receive, take, or have {^) any money whatsoever, {/>/>) for 
 
 ill 
 
 ;r,;: 
 
 (w) " It shall not be lawfal" ie an imperative command prohibiting the acts 
 which follow being done by the pei ons to whom it relates. It is equivalent to 
 saying: " It shall not be allowed by law." Where the Statute forbids the doing 
 of a thing, the doing of it wilfully, although without any corrupt motive, is 
 indictable; and in B. v, Sainsbury, 4 T. B., 451, it was held to be a misde- 
 meanor in Magistrates to grant an ale license where they had no jurisdiction. 
 " It is a general rule that a public officer is indictable for misbehaviour in office. 
 And where the act done is clearly illegal, it is not necessary, in order to support 
 an indictment, to shew it was dune with corrupt motives. Still more is such 
 an offence punishable when it proceeds from malicious or corrupt motives : " 
 Bosooe's 0. E., 782 ; see also Russell on Grimes, 49. 
 
 An officer is indictable for neglect of a duty incumbent on him either by 
 common law or by Statute. 
 
 A "public officer" is defined as "one who is invested with authority to 
 execute any public duty and legally bound to do so : " see 7 Rep. Crim. Law 
 Ors., 0. 4, p. 153, and of 5 Grim. Law Grs., p. 40, cited Burbidge's Grim. Dig., 
 109 ; and every public officer commits a misdemeanor who, in exercise, or 
 under color of exercising, the duties of his office, does any illegal act, or abuses 
 any disoretionaiy power with which he is invested by law from an improper 
 motive, the existence of which motive may be inferred either from the nature of 
 the act or from the circumstances of the case : Stephen's Dig., 119 ; B. v. 
 Wyat, 1 Salk., 380; B. v. Bembridge, 3 Doug., 327 ; Bacon's Abridgment, tit., 
 " Office and Officer," N. ; E. '-. Borron, 8 B. & Aid., 434. 
 
 If the illegal act consists of taking, under color of office, from any person any 
 money or valuable thing, which is not due from him at the time when it is 
 taken, the offence is called " extortion," If it consists in inflicting upon any 
 person any bodily harm, imprisonment or other injury, not being extortion, the 
 offence is called " opression :" R. v. Tisdale, 20 U. G. B., 272 ; Parsons v. Crabbe, 
 31,0. P., 161. 
 
 It was held, where two Justices refuse licenses to the keepers of public houses, 
 because they refuse to vote as the Justices wish, the Justices commit " oppres- 
 sion :" R. V. Williams, 3 Burr., 1317. See notes (<)and {«) to sec. 12. A public 
 oiKceris also liable to indictment for frauds and breaches of trust, neglect of offi- 
 cial duty, and refusal to serve any public office which he is required by law to 
 accept if duly appointed. See Stephen's Dig., 123 ; Burbidge's Dig., 109-144. 
 
 But under this section a penalty is prescribed, and no other punishment or 
 penalty can be inflicted in respect of any of the corrupt acts mentioned in the 
 section : see note (z), sec. 63. 
 
 (x) " License Commissioners." See sec. 3 and notes thereto. 
 " Any license district." See sec. 2, ss. 6, and notes thereto. 
 iy) " Any of them." " Any " is a word which excludes limitation or qualifi- 
 >.atioD, and is as wide as possible. See note {0), p. 29, ante. 
 
 {z) " Any Inspector." See sec. 2, ss. 8 ; sees. 6, 7, 11, 67 and 127. 
 
 (a) " Directly or indireatly." See note (m) to sec. 65. 
 
 (h) " Beoeive." See Stroud's Diet., 569: it means to take ; accept; obtain : 
 Worcester, 1191. 
 
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 fli 'i' 
 
 152 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 66. 
 
 Penalty. 
 
 any certificate, license, report, matter or thing (c) connected 
 with or relating to (d) any grant of any license, (e) other 
 than the sum to be paid therefor as the duty under the pro- 
 visions of this Act, (/) or to receive, take or have any 
 note, (g) security or promise (k) for the payment of any such 
 money or any part thereof, from any person or persons 
 whatsoever (/) ; and any person or persons guilty of, (j) or 
 
 " Take or have " is a phrase of wide meaning and includes any acts of a 
 receptive obarncter which could pnssihly be performed. 
 
 (bb) " Any money whatsoever " is <ii3 a phrase of very extensive meaning. 
 It is said that " whatsoever " as a rule excludes any limitation or qualification, 
 and implies that the genus to which it relates is to be understood in its utmost 
 generality : see judgment of Fry, L. J., Duck v. Bates, 13 Q. B. D., 84.S. 
 
 (c) " Matter or thing " is an expression of the same kind as the foregoing. 
 "Matter" is whatever is perceptible to the senses; that about which one 
 speaks, thinks or writes ; anything with which one is concerned ; any affair, 
 business, concern : see Worcester's Diet., 388 ; Anderson's Diet., 665. And 
 " thing " means *' subject-matter ; substance ; effects ; any object that may be 
 possessed:" Anderson's Diet., 1029. It is usually applied to denote an act, 
 action, deed, event, transaction, matter, and circumstance : Worcester's Diet,, 
 1501. See Potts v. Jinders, 2 Dowl, & L., 986. 
 
 (d) " Relating to," means to have reference or relation to: see Worcester, 
 1208. In Gompagnie Fiaanciere v. Peruvian Guano Co., 11 Q. B. D., 55. 
 Brett, L. J., discussing the words " relating to the matter in question," said: 
 " It seems to me that every document relates to the matters in question in the 
 action, which not only would be evidence upon any issue, but also which it is 
 reasonable to suppose, contains information which may — not which must— 
 either directly or indirectly enable the party requiring the affidavit either to 
 advance his own case or to damage tlie case of his adversary." See Anclior 
 Marine Ins. Co. v. Corbett, 9 S. C. R., 73 ; re Betts, 19 Q. B. D., 39 ; Board 
 of Trade v. Block, 13 App. Gas., 570. See also Lawson v, Wallasey, 11 
 Q. B. D., 229. 
 
 (e) " Grant of any license." See sees. 8, 9, 11, 12, 13, 17, 18, 19, 20, 21, 32 
 and 40. 
 
 (/) " Under the provisions of the Act." See sees. 41, 42, 44 ; also sees. 12, 
 45, 138 and 150. 
 
 {g) " Note," probably means promissory note. 
 
 (h) " Security or promise. " A "security," speaking generally, is anything 
 that makes money more assured in its payment, or more readily recov- 
 erable as distinguished from {e. g. a mere T. O. U.), which is only evidence of a 
 debt : Stroud's Diet., 708 ; see also Byles, especially preface to 1st Ed. ; Fisher, 
 51 et seg. : A " promise " is " an engagement for the performance or non per 
 formanoe of some particular thing, which may be either by deed, or without 
 deed, when it is said to be by parol. It is usually applied when the engagement 
 iu by parol only, for a promise by deed is technically called a covenant : Whar 
 ton, 590. 
 
 (t) " Any person or persons." See note (g) to sec. 11, p. 28, ante. 
 
 (j) "Guilty of" means justly chargeable with : see Worcester, 647. The 
 word "guilt," according to some authorities, is from the Anglo-Saxon wiglian, 
 bewiglian, gewiglian, to conjure, to devine, a:i'i hence to practise, cheat, im- 
 posture, and enchantment ; the past pi> Mciple of mniqlian is gewiglet, guilded, 
 guilt: Tooke. Others say it is derived from gildua, to pay a ts.:. and originally 
 
ss. 66, 67. J 
 
 THE LIQUOR LICENSE ACT. 
 
 153 
 
 concerned in, or party to (k) any act, matter or thing 
 contrary to the provisions of this section, or of sections 1 2 
 and 13, (/) shall forfeit and pay to and for the use of Her 
 Majesty a penalty of not less than $50, nor more than 
 $100, (m) besides costs, for every such offence. -R. S, O. 
 1877, c. i8t, s. 47. * 
 
 09* Any member (n) of a board of license commis- Penalty 
 sioners or any mspector, officer or other person (o) who, ing any 
 
 signified the fine or mulct paid for an offence, and afterwards the offence itself. 
 See Wharton, 335. 
 
 (A;) *' Concerned in " means to be interested in ; to be at^fected by. 
 
 A shareholder in a company which has a contract with a local authority, 
 would seem not to be " concerned in " that contract : per Brett, M. B., Todd v. 
 liobinson, 14 Q. B. D., 739. But to do part of a work for another, knowing 
 tliat that other has contracted with a local authority to do the work, is to be 
 "concerned in " the contract : Nutton v, Wilson, 68 L. J. Q. B., 448. 
 
 Acting as a salaried servant is being concerned in a business within a covenant 
 not to be concerned in such business : Hill v. Hill, 55 L. T. N. 8., 769 ; Jones v. 
 Heavens, 4 Ch. D,, 636. The owner of a vessel, who knowingly lets it to be 
 employed in smuggling, is *< concerned in " the illegal unshipping of goods : 
 Atty.-Gen v. Robson, 5 Ex., 790. 
 
 It wan said by Morrison, J., MoBossie v. The Provincial Ins. Co., 34, U. G. B., 
 at p. 59, that in the case of a condition in a policy of Insurance requiring cer- 
 tain information under the hand of a Magistrate or Notary Public not " concerned 
 ia " the loss, &c,, meant the same as " interested in." 
 
 A " party to " any act or transaction is " a person concerned or having any 
 part in the affair or transaction :" Worcester, 1039. Wharton's definition is " a 
 person concerned in any act." See also Stroud's Diet., 668 ; Anderson's Diet., 
 753. 
 
 As to meaning of " pair; to a cause," see Cameron v. Allen, 10 P. B., 192. 
 
 ({) ' Sections 12 and 13." Section 12 applies to the procedure in obtaining 
 tavern or shop hoenses : and sec. 13 prohibits the granting of any license or 
 oertitioate at Agricultural Exhibitions. See these sections and notes thereto. 
 
 (m) "Not less than $60." In B. v. Black, 43 U. 0. B,, 180, Harrison, 0. J., 
 said : " Then what is meant by fining a man not less than $40 ? Does this 
 mean that he may be fined any, and if any, what amount above $40 ? Does it 
 intend that for a second offence the offender may be fined $100, when the fine 
 for the third offence is not less than $100 ?" In this section the penalty is not 
 less than $40 nor more than $100, clearly showing that the intention of the 
 Legislature is that the fine may be either $40 as the minimum, or any sum 
 above that up to $100 as the maximum penalty to be awarded. 
 
 (n) " Any member." A ** member " means one of a community, society, or 
 association ; as any one of the License Commissioners. See Worcester, 896 ; 
 Anderson's Diet., 669. 
 
 (0) " Board of License Commissioners." Bee sees. 3, 4 and 5. 
 
 '' Any Inspector." See sees. 2 and 6 and notes thereto. 
 
 " OiUcer." See sec. 53 and notes thereto ; see also notes to sec. 66. 
 
 " Other person " applies to any other persoQ of the same class. See note {g) 
 to sec. 11, p. 28, ante. 
 
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 contrary 
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 Act 
 
 THE LIQUOR LICENF;E ACT. 
 
 [s. 67. 
 
 contrary to the provisions of this Act, (/) knowingly 
 issues, (g) or causes or procures (r) to be issued, a tavern 
 or shop license, or a certificate therefor, shall, upon con- 
 viction thereof, (s) for each offence pay a fine of not less 
 than $40, nor more than $100, and in default of payment 
 of such fine, the offender or offenders may be imprisoned 
 in the county gaol of the county (/) in which the conviction 
 
 {p) " Oontrary to the proTisions of this Act," means opposed to the terms and 
 direotions, and to the rales and requirements of the Act. 
 
 A verdict " contrary to law," is contrary to the prinoi* les of law applicable to 
 the facts which the jary were to try : Candy v. Hanmor ', 76 Ind., 128, (1881). 
 
 (9) " Knowingly issnes," imports that the person doing the act prohibited, 
 knew what he was about to do, and with such knowledge proceeded to commit 
 the o£fenoe. See cases cited in note («), sec. 16, and note (y) to sec. 25 ; see 
 also United States z'. Claypool, 14 F. B., 128, (1882) ; Gregory z;. United States, 
 17Blatch.330,(1879). 
 
 The 32 Vic, c. 82, as amended by 88 Yio., c. 28, (0) (now repealed), enacted 
 that no certificate for a license should be issued until tlie Inspector had reported 
 that the proper accommodation, &o,, had been provided, and that any member 
 of a Municipal Council, who should, contrary to the Act, vote for, or issue, or 
 cause, or procure to be issued a certificate, &o., should on conviction be liable 
 to a fine. B. applied for a license, but the Inspector reported that his premises 
 were insufficient. A minute was entered at a meeting of the Council, that the 
 license should be issued as soon as the applicant produced the Inspector's cer- 
 tificate, and the defendant, the Beeve, signed a certificate and gave it to the clerk, 
 instructing him not to hand it over until he had received the certificate of the 
 Inspector ; Held, that there had been no breach of the Statute : B. v. Paton, 
 35 U. C. B., 442. 
 
 A certiorari will not lie to remove a conviction under this section, which has 
 been affirmed and amended on appeal to the Sessions, for issuing a license 
 contrary to the Act, the procedure being regulated by 32, 38 Vic, c. 31, s. 71 
 (D), as amended by 83 Vic, 0. 271, s. 2 (D), now B. 8. C, 0. 178, s. 83 : B. v. 
 Grainger, 46 U. 0. B., 196 ; see also B. v. Johnson, 30 U. C. B., 423 ; B. v. 
 Itoddy, 41 U. C. B., 291, and see notes to sec. 105, ss. 2. 
 
 (r) "Causes or procures." To "cause" means '* to effect, as an agent; to produce ; 
 to occasion:" Worcester's Diet., 216. "Procure" means "to obtain; to 
 acquire ; to gain ; to win ; to get by effort or purchase ; to provide ; to furnish ; 
 to contrive ; to forward ; to bring about : to prevail on ; to persuade ; to solicit : " 
 lb., 1134. 
 
 See re De Bos, 81 Ch. D., 81 ; Monaghan v. Taylor, 2 Times Bep., 685; 
 Marsh v. Conquest, 17 C. B. N. S., 418 ; Stroud's Diet., 116. 
 
 («) " Upon conviction thereof." See note (p), p. 23. 
 
 (e) " The County Gaol of the County." The meaning of the word " County " 
 in regard to this, means County or union of Counties : B. S. 0. 1887, 0. 250, 
 8. 2. See also sees. 22-27 of the same Act. As to transfer of prisoners to 
 Central Prison see B. S. 0. c. 238, s. 12. 
 
 By B. S. 0. c. 243, no license shall be granted for retailing spirituous liquors 
 within any gaol or prison ; and if any gaoler, keeper, or officer of the prison, 
 sells, lends, uses or gives away, or knowingly permits or suffers any spiritaous 
 liquors or strong drink to be dold, used, lent or given away in such gaol or 
 prison or to be brought into the same other than such as may be prescribed by 
 or given by the preset 1^' 'on or direction of a legally qualified medical practi- 
 
ss. 67, 68.] 
 
 THE LIQUOR LICENSE ACT. 
 
 »55 
 
 takes place for a period not exceeding three months, (u) \ 
 R. S. O. 1877, c. 181, s. 48. 
 
 08« If an officer (v) of any municipal corporation (w) vortei- 
 is convicted of [having knowingly committed (x)] any offence office by 
 under this Act, he shall, in addition to any other penalty (y) p" officer 
 to which he may be liable under this Act, thereby forfeit vtoted. 
 
 tioner, such gaoler, keeper, or other officer shall, for every such o£fenoe, forfeit 
 the sum of 980, etc., and for a seoond oonviotion he shall forfeit his office. 
 
 (u) " Not exceeding three months " means for no more than three months. 
 The word " month " means a calendar month : Int. Act, sec. 8, sa. 16. See 
 Palmer v. Newell, W. N. (72) 9 ; B. 9. St. Qeorge's, Southwark, 19 Q. B. D., 
 533. 
 
 {v) "If an officer." An officer is "a person invested with an office:" 
 WorcPBter, 987. An architect to a School Board was held to be an officer 
 within rule 7, Sch. 3, of the English Elementary Education Act, 1870, 33 & 34 
 Vic, p. 76: Scott v. Olifton School Board, 1 Gab. & El., 435. A Union 
 Chap«ain or Doctor is an officer within the Poor Law Amendment Act : B. v. 
 Brainiree Union, 1 Q. B., 180 ; B. v. Haslehnrst, 13 Qi B. D., 263. 
 
 The Clerk to Stipendiary Magistrates appointed under 63 Geo. 3, c. 72, was 
 held not an officer of a Borough, Gonnty or division of a County: B. v. 
 Manchester, 9 Q. B., 468. Township Councillors are not Township officers : 
 Wright V. Municipality of Cornwall, 9 U. 0. B., 442 ; Daniels v. Municipality 
 of Burford, 10 U. 0. B., 478; Corporation of St. Vincent v. Orier, 13 Gr., 173. 
 The Tie Inspector of a Bailway Company is not an officer of the Company : 
 Dalziel v. Grand Trunk By. Co., 12 L. J. N. S., 149 ; neither are an engine 
 driver nor a paymaster of a railway : McLean v. Great Western By. Co., 7 
 P. B., 368. The overseer of highw^s was held to be an officer of a Munici- 
 pality: B. ex M, Bichmond v. Tegart, 7 L. J., 128. See sees. 2, 6, 7, 
 127, 128, 129, 184. 
 
 (w) " The officers of a Municipal Corporation," appointed under the Municipal 
 Act, consist of : 1. the head, called in Counties the Warden ; in cities and towns, 
 the May^ and in townships and incorporated villages the Reeve thereof. 2. 
 The Cletl., or some person appointed in his stead. 3. The Treasurer, or 
 Treasurer pro tern. 4. The Assessors. 6. The Collectors. 6. The Auditors. 
 7. The Valuators : B. S. 0. c. 184, sees. 243-269. See also Harrison Mun. 
 Man., 6th ed., 179-197. The operation of the section is restricted to officers of 
 Municipal Corporations. The members of Municipal Councils are treated of in 
 the next section. 
 
 (x) " Is convicted." See note (p), p. 23. 
 
 " Having knowingly committed " are words added by 63 Vic, c. 66, s. 5; 
 see note («) to sec. 16, and note (y), p. 69. 
 
 "Any offence." An "offence" is defioAd to be: "the transgression of a 
 law : an act committed againct a law, or omitted where the law requires it : 
 Worcester, 986. It is used as • genui, comprehending every crime and misde- 
 meanor, or as a $peeie» signifjdng a crime not indictable, but punishable 
 summarily, or by the forfeiture of a penalty : Wharton, 616 ; see also note (o), 
 p. 29. It includes also such violations of Municipal Ordinances as are 
 punishable by fine or imprisonment : State v. Cantieny, 34 Minn., 9 (1886). 
 
 (t/) "In addition to any other penalty." The penalties imposed by this 
 section are hot in substitution for, but in addition to the ordinary penalties. 
 The words ' ' any other penalty " refer to penalties ^'utdeiii generis not prescribed 
 by this section. 
 
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 THE LIQUOR LICENSE ACT. 
 
 [ss. 68, 69. 
 
 Forfeit- 
 ure of 
 office by 
 member 
 
 and vacate his office and shall be disqualified from holding 
 any office in any municipality in this Province for two years 
 thereafter (2). R. S. O. 1877, c. i8i, s. 49, as amended 
 by 53 V. c. 56, s. 5. 
 
 OO* If a member (a) of any municipal council (i>) is 
 convicted of [having knowingly committed {c)] any offence 
 f/convio-' ""<3^'" this Act, he shall, in addition to any other penalty to 
 **^- which he may be liable under this Act, thereby forfeit and 
 
 (z) *' Forfeiture " is a penalty for an o£Fenoe or unlawful act, or for aome wil- 
 ful omission whereby a person loses his property, right or office, together with 
 his title, which devolves upon others : see Wharton, 810 ; Worcester, 579. 
 The word *' forfeit" means not only an actual taking away of property or of a 
 right in the breach of a condition, but also the doing or suffering a thing which 
 creates liability to such a deprival : re Levy, 80 Gh. D., 119. It involves the 
 idea of permanent loss or liability thereto : Stroud's Diet., 298 ; see also note 
 (0), p. 28. "Forfeit and vacate" means that he shall not only be liable 
 to lose his office, but that it shall be taken away from him and rendered vacant, 
 and that he shall quit possession of it. This is a peremptory mandate, and 
 disobedience to it would render the offender liable to indictment ; see notes to 
 sec. 66. The offender will be personally incapable of holding any office in 
 any Municipality in the Province for two years. 
 
 " Any Municipality " is defined by the Municipal Act to mean " any locality, 
 the inhabitants of which are incorporated or are continued or become so under 
 this Act." B. S. O., 0. 184, s. 2, ss. 1. 
 
 See notes to sec. 69. 
 
 (a) " A member." See note (n) to sec. 67. 
 
 (b) " Any Municipal Council." The members of Municipal Councils are, in 
 counties, the Beeves and Depnty-reeves of the townships and villages within 
 the county, and of any towns within the county which have not withdrawn 
 from the jurisdiction of the Council of the County ; in cities, the Mayor and 
 three Aldermen for every ward ; in towns, the Mayor and three Councillors for 
 every ward, when there are less than five wards, and twQ Councillors for each 
 ward when there are five or more, and if the town remains in the jurisdiction 
 of the County Council, then a Beeve shall be added and a Deputy-reeve for every 
 600 names of persons entitled to vote at Municipal elections appearing on the 
 last revised voters' list ; in incorporated villages the Beeve and four Councillors 
 with one additional Councillor for every 600 persons entitled to vote at 
 Municipal elections on the last revised voters' list ; in townships, the Beeve and 
 four Councillors, one Councillor being elected for each ward, where the 
 township is divided into wards, but if the township has the names of 600 persons 
 entitled to vote at Municipal eleotiods on the last revised voters' list, then the 
 Council shall consist of a Beeve, Deputy-reeve, and three Councillors, and for 
 every 600 additional names of persons entitled to vote on Euch list, there shall 
 be elected an additional Deputy-reeve instead of a Councillor. See B. S. 0., c. 
 184, B. 84, et seq. as amended by 61 Yic, c. 28, sees. 7, 8 ; Harrison's Mun. 
 Man., 6th ed.. 60-67. 
 
 (e) " Having knowingly con^mitted " is inserted here by 63 Vic. c. 66, s. G, 
 See note {x), see. 68, and note {y), p. 69. 
 
 The last section is restricted to officers of Municipal Corporations while this 
 section applies to the members of Municipal Councils. 
 
 See notes to sec. 68. 
 
SH. 
 
 6q, 70.] 
 
 THE LIQUOR LICENSE ACT 
 
 »S7 
 
 vacate his seat, and shall be ineligible to be elected (d) to 
 or to sit or vote in any municipal council for two years 
 thereafter J and if any such person, after the forfeiture p^Q^i^, 
 aforesaid, sits or votes in any municipal council, he shall 
 incur a penalty of $40 for every day he so sits or votes. 
 R. S. O. 1877, c. 181, s. 50, amended by 53 Vic, c. 56, 
 s. 5. 
 
 3f 0« Any person (e) who sells or barters (/) spirituous, for°BeuLig 
 
 (d) " Ineligible to be eleoted " means literally that enoh person cannot be 
 chosen. A person who is " ineligible," therefore, cannot be a candidate. " He 
 that cannot be admitted cannot be elected ; and the votes given to a man 
 'tn«!tptbl«,' being given in vain, the highest number of an eligible candidate 
 becomes a majority : " Johnson. The expression refers as well to disqualiiica- 
 tion to hold, as to disqualification to be eleoted to, an offiVse : State v. Murray, 
 28 Wis., 99 (1871). 
 
 The consequences of being found guilty of an offence under this section are : 
 (1) Liability to the penalty imposed by this Act for the particular offence com- 
 mitted ; (2) Forfeiture of the seat ; (3) Personal incapacity, for two years 
 thereafter, to be a candidate at a Municipal election or to sit and vote in any 
 Municipal Council ; and (4) a penalty of 94 for every day such offender may 
 sit and vote in the Municipal Council after such disqualification. 
 
 "After the forfeiture aforesaid" refers to the time of the conviction, as 
 forfeiture does not ensue until conviction. 
 
 (e) " Any person.^' See note (g) to sec. 11, ss. 10. 
 
 In B. V. Williams, 42 U. G. B., 462, it was held that the wife 
 of the occupant of a house in which a sale took place was liable to be convicted, 
 her husband being in gaol at the time ; and that a married woman or servant 
 who commits the act of selling contrary to the law is included in the expression 
 " any person who sells." See also B. v. Howard, 46 U. 0. B., 346, in which it 
 was held that the Legislature intended to include a servant who sells without 
 the authority of the occupant ; and B. v, Campbell, 8 P. B., 56, where a mar- 
 ried woman was held liable although the sale took place in her absence. 
 
 It was held that a conviction of two persons under this sec. was bad, as they 
 could not be jointly convicted, nor one penalty awarded against them jointly, 
 and that such a conviction could not be amended : B. v, Sutton, 42 U. G. B. , 
 220 ; see also B. v. Justices of Middlesex, 2 Q. B. D., 620 ; B. v. Ambrose, 16 
 0. R., 261. 
 
 (/) "Who sells or barters." A sale implies the transfer of property for 
 money, though time may be given for payment ; and so when a liquor dealer 
 farnisbes liquor and receives in payment therefor pool-checks, which he has 
 previously sold, worth the price of the liquor, the transaction is not a sale but 
 a 'barter': Massey z^. State, 74 Ind., 868. Where a club was formed, the 
 purposes of which, as described in its charter, were as follows : " The 
 * Concordia ' shall be dedicated to the intellectual, moral and social improve- 
 ment of its members, the refinement of their tastes, and the development of 
 good feeling among them. In furtherance of these objects it shall afford them 
 opportunities for scientific cultivation, and rational amusements, and shall 
 place before them, as far as may be, the best models of musical and dramatic 
 art." tiager beer would not seem to be calculated to further these objects, but 
 the Court held : " We conclude that the members of such associations as the 
 ' Concordia ' is admitted to be, who obtain refreshments and liquor at the club 
 by paying into the common fund the price fixed by the regulations of the 
 
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 158 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 70. 
 
 society, cannot be said in any Benae to bay their liquors from the Corporation, 
 nor can the Corporation be said to $ell them to the members within the meaning' 
 of the Act of 1866. It is argued by the Attorney-Oeneral that the Uquors and 
 other supplies are purchased by the Corporation, and are consequently its pro- 
 perty ; and when furnished to a member are sold to him, and if the sale ih 
 made on Sunday it is an offence within the Act of 1866. But that Act equally 
 prohibits the sale of any article of merchandise whatever on Sunday, and if 
 the argument of the appellee be sound, the society could not furnish a meal to 
 a member on Sunday without violating the law and subjecting itself and its 
 officers to the penalties prescribed by the Act of 1866. We do not so construe 
 the law. The society is not an ordinary Corporation, but a voluntary associa- 
 tion or club united for social purposes ; each member must be elected and eaoli 
 is joint owner of the property and assets and entitled to the privileges of the 
 society as long as he remains a member. Among these privileges is that of 
 partaking of the provisions and refreshments provided for the use of its 
 members. Such a transaction is not a barter or sale in the way of trade, and 
 therefore is not within the purview or meaning of the Act of 1866 :" Seim 71. 
 State, 66 Md., 566 ; S, C. 89, Am. Bep. 419. (Under our law such transac- 
 tions are made illegal. The case is cited chiefly for its reference to the meaning 
 of " sale and barter :" see sec. 68 and notes thereto.) 
 
 Where an Association was formed for the avowed purpose of promoting 
 temperance, friendship, etc., they claimed to have bought the dram shop of one 
 of their members, who was elected thehr treasurer, and who continued in the 
 possession of the dram shop, having no license to sell intoxicating liquors. 
 Each member was required to pay 91i for which he received a ticket with the 
 numbers from one to twenty upon it, and upon presenting this ticket at the 
 bar, the member received liquors or cigars, as he wished, and paid for the same 
 by having numbers punched out of his ticket, each number representing five 
 cents. Any person could become a member by paying $1. The treasurer 
 received all the money, and rendered no account to the other members. He 
 also bought all liquors and cigars. Held that this was a device to evade the 
 law, and that the treasurer was guilty of unlawfully selling intoxicating liquors. 
 In such a cade, if the liquors really belonged to the Association, and the 
 treasurer acted for them, then all the members would be guilty of unlawful 
 selling, as the liquor would be partnership stock, and the company would have 
 no more right to sell to the inuvidual members, or partners, than a stranger 
 would : Biokart v. People, 79 III, 85. 
 
 A Society or Club of persons, having a treasurer and other officers, met every 
 Sunday, and each person on beconoing a member, paid into the treasury a 
 certain sum and monthly assessment thereafter, to form the basis of a fund to 
 pay expenses and for relief, and the treasurer, by order of the Glub, and for the 
 Club, on each Saturday evening purchased a keg of ** lager beer" and placed it 
 in the hall where the meetings were held, and on Sunday whenever a member 
 desired to have a glass of beer he got it, drank it on the premises and delivered 
 to the treasurer five cents, which money was placed in ibe treasury to keep up 
 the funds, pay expenses, and for relief for sickness and other mishaps to mem- 
 bers : Beld, that this constituted a lale by the treasurer, as agent of the Club, 
 within the meaning of the Statute prohibiting the sale of intoxicating liquors on 
 Sunday : Marmot v. State, 48 Ind., 21 ; see also Commonwealth v. Smith, 
 102 Mass., 144 ; State v. Mercer, 82 Iowa, 405. The foregoing oases are cited 
 in Browne on the Judicial Ii terpretation of Common Words and Phrases, pp. 
 384-892. 
 
 See also oases cited in notes on pages 6, 69, ante. 
 
 " In a ' barter,' the consideration, instead of being in money, is paid in gooda 
 or merchandise susceptible of a valuation:" Commonwealth v. Davis, 12 Bush, 
 241, (1876) ; Cooper v. State, 87 Ark., 418, (1881). 
 
s. 70.] 
 
 THE LIQUOR LICENSE ACT. 
 
 159 
 
 fermented or manufactured liquors of any kind, or intoxica- without 
 ting liquors of any kind, (g) without the license therefor 
 by law required, (A) shall (1) for the first offence, on con- 
 viction thereof, ( ;) forfeit and pay a penalty of not less than 
 
 (g) "Spiritnoas, fennented, or manafaotared liquors of aoy kind." See 
 note (b), p. 2, note (•), p. 78, and note (<) p. 96, ante. 
 
 (h) " Without the lioenee therefor by law required." A lioense irregularly 
 issued, when there is no fraud in the obtaining of it, is a proteotion against 
 penal oonseqnenoes : Stevens v. Emson, L. B., 1, Ex. D., 100. The proof of 
 being licensed rests with the defendant : see seo. 114, ss. 1. The production of 
 a license, which on its face purports to be duly issued, ia prima facie evidence in 
 favor of the defendant : seo. 114, ss. 2 ; see also B. v. Dobson, 7 East, 218 ; 
 and it was held that it was no objection to a conviction, that it did not show 
 defendant was not licensed : B. v. Young, 7 0. B., 88. 
 
 A married woman was lessee of certain premises in which her husband sold 
 liquor without a license. Held, that she was liable although the sale took place 
 in her absence : B. v. Campbell, 8 P. B., 66. 
 
 A servant of the keeper of an unlicensed tavern is liable to be convicted for 
 selling liquor in the keeper's absence, but Cameron , J., would otherwise have 
 held but for B. v. Williams, 42 U. 0. B., 462 ; B. v. Howard, 45 U. C. B , 
 346. See cases cited in notes to seo. 49. 
 
 A conviction for selling liquor without a license, purporting to be made by three 
 Magistrates, but signed only by two, was returned with a certiorari : Held, if an 
 objection at all, a ground for sending back the writ, that the third Magistrate 
 might sign the conviction : B. v. Toung, 7 O. B., 88. 
 
 It was held no objection to a conviction under this section, that the offence 
 was selling liquor to an Indian contrary to tho Indian Act of 1880. For if so, 
 the defendant was guilty of two offences, one under this Act and one under the 
 Indian Act, and the defendant might be liable to a penalty under both Acts : 
 B. V. Y>ung, 7 0. B., 88. 
 
 (t) ' Shall." See note (I) to seo. 3, p. 8, and note (a), sec. 32, p. 68. 
 
 No Magistrate, or Justice, or Justices, License Commissioner, or Inspector, 
 or Municipal Council, or Municipal officer, shall suspend or compromise any 
 penalty or punishment inflicted under this Act. See sec. 87. 
 
 (j) " On conviction thereof." The word " convicted " or the " conviction " 
 of a person accused is equivocal. In common parlance, no doubt it is taken 
 to mean the verdict at the time of the trial ; but in a strict legal sense it is 
 used to denote the judgment of the Court ; per Tindal, C. J., Burgess v. 
 Boetefeur, 7 M. <& G. , 481 ; and accordingly it was there held that a person 
 who pleaded guilty to keeping a brothel on an indictment instituted under s. 6, 
 26 Geo. 2, 0. 36, and who at a subsequent Sessions came up for judgment, was 
 not convicted when he pleaded, but when judgment was pronounced. But if 
 under the same section the plea of guilty be followed by an order that defendant 
 enter into recognizance to come up for judgment when called on, he is then 
 "convicted:" per Stephen, J., Jephson v. Barker, 3 Times Bep., 40; see 
 Sntton V. Bishop, 1 W. Bl., 666; Lee v. Gansel, Cowp. 1, cited Stroud's Diet., 
 169. But in the United States it was said that the word " conviction " 
 ordinarily signifies "verdict," not "judgment:" United States v. Watkinds, 
 6 Fed. Bep., 158 ; Blair's case, 25 Gratt., 860. " Upon conviction " in s. 91 of 
 the Imperial Elementary Education Act, 1870, 33 and 34 Vic, 0. 75, means 
 " upon summary conviction : " B. v. Gaunt, 43 L. T. N. S., 696. 
 
 The charge in the conviction should be certain and eo stated as to be pleadable 
 in the event of a second proseontion for the same offence : B. v. Hoggard, 30 
 
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 U. 0. B., 152 ; B. v. Frenoh, 84 U. C. B., 408, and other oases cited in notes 
 to seo. 106. Where the defendant was oonvioted for selling liquor without a 
 license, and for allowing liquor to be consumed on the premises, hud one 
 penalty was inflicted '* for his said offence :" Held bad in not shewing for which 
 offence the penalty was imposed : B. v. Toung, 6 0. B., 184a. See also B. v. 
 Solomon, 1 T. B., 251 ; B. v. Chandler, 14 East, 267 ; B. v. Clennan, 8 P. B., 
 418 ; B. S. 0. 0. 178, s. 26 ; Wilson v. Graybiel, 5 U. C. B., 227 ; B. v. Spain, 
 18 O. B., 885. 
 
 But it is not necessary to mention the Statute or the person to whom the 
 liquor was sold : B. v. Strachan, 20 C. P., 182 ; B. v. Faulkner, 26 U. 0. B., 
 529 ; but see B. v. Gavanagh, 27 0. P., 587. 
 
 Nor is it necessary to mention the kind and quantity ; a conviction setting 
 out that defendant sold spirituous liquor by retail without license, stating time 
 and place was held sufficient : B. v. King, 20 0. P., 246. 
 
 The conviction should also shew the place where the oiieaee was committed, 
 in order that the jurisdiction of the convicting Justices may appear : B. v. 
 Young, 5 0. B., 184a. 
 
 The conviction should correspond with the minute of the actual adjudication 
 and where at the close o' the case the Magistrate made a minute in which he 
 stated that he found the defendant guilty, and imposed a fine of 950 and oosta 
 to be paid by a date named, and awarded imprisonment for thirty days in 
 default of payment, and afterwards when drawing the formal conviction he 
 adopted the form J 1. in the Schedule to the Summary Conviction Act, directing 
 that in default of payment by the day named, the penalty should be levied 
 by distress and sale, and awarded imprisonment in default of sufficient distress. 
 The conviction was held to be open to the objection that it did not correspond 
 to the minute of adjudication and therefore could not be supported for want 
 of jurisdiction in the Majgistrate to make it : B. v. Brady, 12 0. B., 868. 
 
 The quashing of a by-law under which a liceaae had been granted does not 
 nullify the license, and a conviction for selling without a license, cannot under 
 these circumstances be supported : B. v. Stafford, 22 0. P., 177. 
 
 See B. V. Denham, 35 U. G. B., 503, cited in noto (b) to sec 52 ; B. v 
 86 U. G. B., 84, cited in note (v) to sec 54 ; B. ?>. Duquette, 9 P. B., S 
 in note (t) to sec. 49 ; B. v. Palmer, 4(> U. G. B., 262. 
 
 It is not necessary to negative the exceptions : B. v. 
 503 ; B. V. Breen, 86 U. C. B., 84. 
 
 See also cases cited in notes to sees. 49, 60, 51 and 52. 
 
 Where there is no evidence that any intoxicating beverage has been sold and 
 therefore no evidence to support a conviction, the conviction will be quashed : 
 B. zf. Beard, 13 0. B., 608. 
 
 As to variance see B. v. Allen, 15 East, 338 ; Leary v. Patrick, 16 Q. B., 266, 
 B. S. 0., c. 74, s. 1 ; B. S. G.. c. 178, s. 6 ; B. v. Hodgins, 12 0. B., 867. 
 
 A conviction under 40 Geo., 3, 0. 4, for selling liquor without license, was 
 quashed because the information did not charge any special offence, or shew 
 time and place : B. v. Ferguson, 8 0. S., 220. 
 
 A conviction for selling " a certain spirituous liquor called whiskey," was held 
 a sufficient statement of the offence under the clauses 29, 80 Vic, 0. 61, s. 254, 
 although the phrase used there is " intoxicating liquor of any kind," for intoxi- 
 cating liquors and spirituous liquors are convertible terms, and whiskey is 
 recognized as a spirituous liquor : Beid v. McWhinnie, 27 U. 0. B., 289. 
 
 The principle that a wife is exempt from liability in certain criminal acts 
 upon the ground of coercion on the part of the husband, does not apply when 
 the wife has committed the offence by the husband's order or procurement, if 
 she committed it in his absence ; in such a case the presumption arises that 
 
 Breen, 
 I, cited 
 
 Denham, 86 U. 0. B., 
 
70.] 
 
 THE LIQUOR LICENSE ACT. 
 
 l6l 
 
 tiua one 
 
 $50 besides costs, and not more than $100 besides costs ; 
 (k) and in default of payment (/) thereof he shall be impris- 
 
 she aoted by ooercion of her husband, and the presamption, when it does arise, 
 is removable by proof that the wife was the more active party, even when the 
 offence was committed in the presence of her hasband ; and it was held she 
 coold be convicted of selling gin against the injunctions of 9 Geo. 2, 0. 23 ; 
 Croft's case, Str. 112U, Buss, on Grimes., 8rd. Ed., 20, 21 ; per Gwynne, J., B. 
 V. WiUiams, 42 U. 0. B., 462. 
 
 "The first offence." The penalties prescribed by the section fjre on ^ 
 graduated scale. For the first offence the person convicted is made subject to 
 a pecuniary penalty of not less than 960 besides costs, and not more than $100 
 besides costs, and in default of payment thereof he shall be committed to the 
 county gaol of the county in which *h.e offence is committed for a period of not 
 less iban three months. The minimum period of imprisonment is given, but 
 no limit is fixed as to the maximum period. 
 
 Where a second or subsequent offeree is not charged in the information, the 
 proceedings will be as for a first offence in every case, and a conviction may be 
 had as for a first offence, although there may have been prior convictions ; see 
 sec. 101, Bs. 3 ; see B. v. BodweU, 6 0. B., 136. 
 
 There is no provision in this section for the collection of the penalty by 
 distress, and it was recently held that the Justices had no power to award 
 distress under this section: xl. v. Brady, 12 O. B., 858; B. v. Lynch, 
 12 0. B.. 372. 
 
 In B. V. Menary, 19 0. B., i^Ol, Armour, 0. J., said: " I doubt very much 
 the power of Justices to issue a distress warrant under section 70, or to make 
 the imprisonment thereby imposed dependent upon payment of the fine and 
 costs." See further notes to sec. 100, and B. v. Higgins, 18 0. B., 148 ; B. v. 
 Clarke, 19 0. B., 601, cited in notes to sec 102. 
 
 But by sec. 7, 68 Vic. e. 66, the power to make imprisonment dependent on 
 payment of the fine and costs has since been expressly given m all cases where 
 the Justices are authorized, na they are under this section, to adjudge that a 
 penalty in money and costs be paid, and that in default the defendant be 
 imprisoned. See sec. 88 and notes thereto. 
 
 The penalty must not be in excess of that warranted by the Statute : B. 
 V. Sparham, 8 0. B., 670 ; B. v. Logan, 16 0. B., 836 ; and when the maximum 
 penalty was imposed, a defect in the conviction in the provision for distress, is 
 not cured under B. S. 0. 0. 178, sees. 87, 88. See also B. v. Smith, 16 
 0. B.,464. 
 
 Where more than one Justice of the Peace takes part in a conviction, an 
 immediate return thereof to the Olerk of the Peace is necessary : Atwood v. 
 Bosser, 30 0. P., 628; B. S. 0. 0. 76, s. 1. 
 
 A greater penalty cannot be imposed by the Municipality or the Board of 
 License Commissioners than that which Uie Statute declares : B. v. Lennox, 
 26 U. C. B., 141. 
 
 No penalty can be recovered for selling liquor without a license nnder the 
 Imperial Act, 14 Geo. 8, 0. 88 : Andrew v. White, 18 U. 0. R., 170. 
 
 (k) " Besides costs." Held that the Magistrates in ordering the defeudant 
 to pay $1 for the use of the hall for trying the case were cleiurly exceeding their 
 jurisdiction : B. v. Elliott, 12 0. B., 624. It was held also that the imposition 
 of the costs of commitment and conveying the defendant to gaol was unauthor- 
 ized, and that B. S. O., 0. 74, s. 1, did not affect the question : B. z/. Bowlin, 
 19 0. B., 199 ; B. v. Wright, 14 O. B., 668; B. v. Ferris, 18 O. B., 476 ; B. v. 
 Tucker, 16 0. B., 127 ; B. v. Good, 17 0. B., 726 ; B. v. Grant, 18 0. B., 169. 
 But since the passing of the Act 68 Yic, 0. 66, s. 7, ss. 1, the Magistrates have 
 
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 THE LIQUOR LICENSE ACT. 
 
 [s. 70. 
 
 PaniBh- 
 mentB for 
 seoond 
 and third 
 offenoea. 
 
 oned in the county gaol of the county in which the offence 
 was committed, for a period of not less than three months, 
 and to be kept at hard labor, in the discretion of the con- 
 victing magistrate; and for the second offence, (m) on 
 conviction thereof, such person shall be imprisoned in such 
 gaol for the period of four months, to be kept at hard labor 
 in the discretion of the convicting magistrate ; and for the 
 third or subsequent offence, («) on conviction thereof, such 
 
 power to impose the oostB of oommitment and oonveyinR defendant to gaol ; 
 see seo. 71, ss. 2, and seo. 88 and notes thereto. Even although the Jastioes 
 had no power to require costs of conveying the defendant to gaol to be paid 
 by him the conviction was amendable : B. v. Menary, 19 0. B., 691. Where it 
 was alleged that too large a sum had been charged for costs, it was held that 
 the conviction oe' "j regular on its face, and not showing any excess of 
 jurisdiction, su ' . irregularity (even if it existed) could not be enquired into 
 on an applicatiou ior prisoner's release: B. v. Sanderson, 12 0. B., 178. See 
 sec. 100 and notes thereto. 
 
 {I) " Default of payment." See notes to see. 67. " If a fine is ordered to 
 be paid forthwith and it is not so paid, there is, then, the default in payment 
 which calls for the alternative pnniidiment of imprisonment :" per Armour, 
 0. J., B. V. Menary, 19 0. B., 691. 
 
 (m) For a seoond offence the person convicted shall be imprisoned in the 
 county gaol of the county in which the offence was committed for the period of 
 four months, without the option of a fine, to be kept at hard labor in the 
 discretion of the convicting Magistrate. 
 
 As to the meaning of the term " seoond offence " see seo. 101, ss 6. 
 
 The principle of treating repeated offences and those offenders who by 
 committing them appear to be hardened and incorrigable with greater severity 
 than such as appear for the first time, has been given effect to by the Legisla- 
 ture for a very long period. By 16 Geo. 2, c. 28, s. 8, the counterfeiting of 
 coin or uttering of counterfeit coin was punishable by one year's imprisonment, 
 but it was provided that for a second offence the person convicted should be 
 adjudged *■ guilty of felony, without the benefit of clergy," and in 1799 it was 
 held as a matter of pleading tb&t in order to warrant tiie greater punishment 
 it was necessary to shew in one and the same count of the indictment not onlj 
 the first, but the second commission of the offence : see judgment of Harrison, 
 C. J., StonesB v. Lake, 40 U. G. B., 820, at y. 880 ; see alio B. v. Tandy, 2 
 Leach, 838 ; B. v. Martin, 2 Leach, 923, cited therein. 
 
 " The proof of these, being material allegations, is of course necessary :" see 
 B. V. Martin, L. B. 1, 0. 0. 214, cited in Stoness v. Lake, 40 U. 0. B., at p. 
 830. By analogy there would appear to be no doubt that in strictness the 
 information for a second or subsequent offence should shew whether the 
 offender was previously convicted, and if so, whether once or twice, in order to 
 justify the graduated scale of punishment prescribed by this section ; B. v. 
 French, 34 U. 0. B., 403, cited in judgment of Harrison, G. J., in Stoness v. 
 Lake, 40 U. G. B., 820 ; B. v. Justices of Queen's, 2 Pugs. N. B., 110 ; eee 
 also sec. 101, ss. 4. 
 
 But where the defendant dispntod the evidence of a first conviction, but did 
 not take objection to an information in which he was not charged with a seemd 
 offence, it was held that he had waived the objection to the information: 
 Stoness v. Lake, 40 U. G. B., 820. See seo. 101 and notes thereto. 
 
 (n) For the third or any after offence the penalty is imprisonment for six 
 
70.J 
 
 THE LIQUOR LICENSE ACT. 
 
 163 
 
 person shall be imprisoned in such gaol for the period of 
 six months, to be kept at hard labor {0) in the discretion of 
 
 month$, to be kept at hard labor, in the disoretion of the oonvioting Magistrate. 
 The mode of proTing the previooB offences is by prodaotion of a certificate 
 under the hand of the oonvioting Jastioen or Police Magistrate or of the Olerk 
 of the Peace, without proof of his aignatore or official diaraoter, or other satis- 
 factory evidence. See seo. 101, bb. 2, and notes thereto. The authorities cited 
 in the foregoing notes with regard to a second offence are applicable to a third 
 or any subsequent offence. 
 
 There is no limit of time specified between the first, second, third or any sub- 
 sequent offence. Any number of offences may be committed on the same day, 
 l9Ut the increased penalty or punishment shall only be recoverable in case the 
 offences are committed on diiferent days and after information is laid as for a first 
 offence : B. v. Bodwell, 6 O. B., 186, and other cases in notes to sec. 101 ; oee 
 sec. 101, SB. 4 ; and as to meaning of " third offence," see sec. 101, ss. 6. 
 
 (0) "The punishment of imprisonment consists in the detention of 
 offender in prison, and in his subjugation to the discipline appointed 
 i>risoners during the period expresaed in the sentence : " B. S. C, c. 181, s, 
 (7), Stephen's Digest Urim. Law. Art. 4, cited in Barbidge's Dig., 15. 
 
 the 
 
 for 
 
 . 28 
 
 "Im- 
 
 priBonment is of two kinds : (i.) Imprisonment with hard labor, (ii.) Imprison- 
 ment without hard labor." As to hard labor, see note below. See Burbidge's 
 Dig., 16, 16; Wharton's Diet., 860; 1 Stephen's Hist, of Crim. Law, 483- 
 487. 
 
 The power of imprisoning is generally, given either as an original punishment 
 or as the means of enforcing payment of a pecuniary fine : See Slater and Wells, 
 9 L. J., 21 ; re Greystook and Municipality of Otonabee, 12 U. 0. B., 458-462, 
 and in regard to offences oogniaable by summary jurisdiction is derived solely 
 from legislative authority. See Paley on Oon., 6th. Ed., 816. Statutes which 
 provide for the summary trial of offenders are strictly construed. See B. v. 
 Barton, 12 Q. B., 889. 
 
 When a Statute provides " imprisonment " without stating its commencement 
 it commences immediately : Foggassas' case, Bonham's case. Plow. Oom., 17b, 
 and 8 Bep., 119 ; but if there be no limit to its diuration, the prisoner must 
 remain at tiie discretion of the Court : Dwar. 674, citing Dalt., 410. 
 
 The defendant being present in Oonrt on a charge which was disposed of, was, 
 without any summons having been issued, charged with another offence, namely, 
 of selling Uquor without a license. The information was read over to him to 
 which he pleaded " not guilty," and evidence for the prosecution having been 
 given, he thereupon asked for and obtained an enlargement till the next day, 
 when, on his not appearing, he was convicted in his absence and fined $50 and 
 costs, and in default, without any distreas having been directed, imprisonment 
 was awarded. Held, that under the circumstances the issuing of a summonr, 
 was waived. Held, also, that the conviction awarding imprisonment in defaui:i 
 of payment was properly drawn for by this section (70), under which the con- 
 viction was made, there waa no power to direct diatresa : B. v, Olarke, 19 0. B., 
 601. But aee note (k) lupra. 
 
 The defendant waa convicted before two Jnaticea of the Peace of selling liquor 
 without a license contrary to seo. 49. A conviction was drawn up and filed 
 with ttd Olerk of the Peace in which it waa adjudged that the defendant should 
 pay a fine and eoata, and if they were not paid forthwith, then, inasmuch as it 
 had been made to appear on the admission of the defendant that he had no 
 goods whereon to levy the sums imposed by distress, that he should be 
 imprisoned for three months, unless those sums and the costs and charges of 
 conveying him to gaol should be sooner paid. An amended conviction was 
 afterwards drawn cp and filed, from which the parts relating to distress and the 
 
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 THE LIQITOR LICENSE ACT. 
 
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 the convicting magistrate ;(/) and in the event of the imprison- 
 ment of any person upon several warrants of commitment 
 under different convictions in pursuance rf this Act, whether 
 issued in default of distress for a penalt} or otherwise, the 
 terms of imprisonment under such warrants shall be con- 
 secutive and not concurrent. (^) 49 V., c. 39, s. 4. 
 
 costs of conveying to guol were omitted. A warrant of commitment directed 
 the gaoler to receive the defendant and imprison him for three months, unless 
 the said severnl sums and the costs of conveying him to gaol shonld be sooner 
 paid. Upon a motion to quash the convictions and warrant : Held, that the mode 
 adopted for bringing the defendant before the Justices was not a ground for 
 quashing the conviction and temble^ also, that it was not improper to arrest him 
 instead of merely summoning him : Held also, that the fact that the defendant 
 was remanded by only one Justice could not affect the conviction. 
 
 Held also, that if the Justices were bound to issue a distress warrant, the 
 insertion of the words relating to the admission of the defendant that he had 
 no goods, was proper ; and if they bad no power to issue a distress warrant, 
 these words were mere surplusage and did not vitiate the conviction : 
 
 Held also, that if the Justices had no power to require the costs of conveying 
 him to gaol to be paid by the defendant, the conviction was amendable, as and 
 when it was amended ; for the amendment was not of the adjudication : 
 
 Held, lastly, fbat having regard to see. 105 of the B. 8. 0., 0. 194, and to the 
 evidence before the Justices, the conviction and warrant should not be quashed : 
 B. V. Menary, 19 0. B., 691 ; see 68 Yic, c. 66, s. 7, ss. 1, cited above. 
 
 " Hard labor." " Imprisonment in a penitentiary, in the Central Prison for 
 Ontario, in the Andrew Mercer Ontario Beformatory for females, and in any 
 reformatory for females in the Province of Quebec, is with hard labor, whether 
 so directed in the sentence or not : B. S. C, c. 181, s. 28 (4). Imprisonment 
 in a common gaol or a public prison, other than those last mentioned, (a) may 
 be with or witiiont hard labor in the discretion of the Oonrt or person passing 
 sentence, if the offender is convicted on indictment under ' The Speedy Trials 
 Act,' or before a Judge of the Supreme Court of the North -West Territories ; 
 {b) may, in other cases, be vith harl labor, if hard labor is part of the punish- 
 ment for the offence of which such ciffendor is convicted. And if such impris- 
 onment is to be with hard labor the sentence must so direct : " Burbidge's 
 Dig., 16, 17 ; see also Stephen's Dig., Art. 6 ; B. S. 0., 0. 181, s. 28 (6), as 
 enacted in 61 Yic, c. 47, s. 1, (D). 
 
 It was formerly held that the Provincial Legislature had no power to impose 
 hard labor as a penalty : see B. z;. Black, 48 U. 0. B., 180 ; B. v. Hodge, 36 
 U. G. B., 141 ; B. V. Frawley, 46 U. 0. B., 168; B. v. Allbright, 9 P. B., 25; 
 B. V. Pipe, 1 0. B., 48. But the question was decided in Hodge v. The Queen, 
 9 App. Gas., 117, in which it was held that No. 16 of sec. 92 of the B. N. A. Act 
 of 1867, confers the power upon the Provincial Legislature of imposing *' hard 
 labor "as a penalt7, and that the word "imprisonment" in that Act means 
 imprisonment wi^ or without hard labor. See als') B. v. Boardman, 30 
 U. G. B., 663 ; B. v. McMillan, 2 Pugs. N. B., 110. 
 
 (0) "In the discretion of the convicting magistrate." See note (d) sec. 19, 
 p. 48. 
 
 (9) " The terms of imprisonment under sooh warrants shall be consecutive and 
 not concurrent." 
 
 In case a person is oonvioted of more than one offenoo under the Aet, whether 
 for selling liquor without Uoenie or for any other violation of thii Aot, and 
 
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 to arrest him 
 bhe defendant 
 
 warrant, the 
 that he had 
 resB warrant, 
 on: 
 
 I of conveying 
 idable, as and 
 jation : 
 94, and to the 
 t be quashed : 
 ibove. 
 
 ral Prison for 
 , and in any 
 abor, whether 
 [mpriRonment 
 Dned, (a) may 
 erson passing 
 Speedy Trials 
 Territories ; 
 >f the punish- 
 snch impris- 
 " Burbidge's 
 s. 28 (6), as 
 
 ntfi' to impose 
 Hodge, 36 
 
 9 P. B.,26; 
 
 . The Queen, 
 e B.N. A. Act 
 posing "hard 
 lat Aot means 
 loardman, 30 
 
 7».] 
 
 THE LIQUOR LICENSE ACT. 
 
 165 
 
 91 • [(i) Offences (r) against sub-section i of section ^""o^^f' 
 54 {s) of this Af't shall be punishable (/) on summary con- J'*^^^" 
 viction as follows («) : — ■«"• ^ (^)- 
 
 Aet, whether 
 Ma Aot, and 
 
 whether the different warrants of commitment are issued in default of payment 
 of a penalty oi c! distress for same, or in carrring out the penalty for a esoond 
 or subsequent offence under this lection or otherwise, the terms of imprison- 
 ment are to follow each other and are not to be contemporaneous. 
 
 For warrant of commitment see Sch. J. 
 
 (r) " Offences." See note («) to sec. 68. 
 
 («) Sub-sec. 1 of sec. 64 prohibits the sale or disposal of intoxicating liquors, 
 in places where such liquors are or may be sold, during the hours between 
 seven o'clock on Saturday night and six o'clock on Monday morning, or during 
 the time such places are to be dosed under any Statute in force in the Province, 
 or by any by-law of the Municipality, and also prohibits the drinking of liquors 
 on any such premises during such time. See notes to that section. 
 
 (t) " Shall be punishable." See notes to seo. 70. 
 
 (u) Whenever it is stated that an offender is liable, " on summary conviction," 
 to any punishment, the mc: 'ng is that he is so liable on summary conviction 
 before one or any greater number of Justices of the Peace, or before any person 
 having the authority of two or more Justices of the Peace : B. S. C, c. 174, 
 s. 2 (b) : c. 178, s. 6. Hatton's case, 2 Salk. 477 ; Dalt., 0. 6, s. 8 ; B. v. Weale, 
 5 0. & P., 186 ; cited in Burbidge's Dig., 1. According to this definition 
 offences against sub-sec. 1 of seo. 64, may therefore be tried before one or any 
 greater number of Justices of the Peace, or before any Stipendiary, or Police 
 Magistrate, within the limits of their jurisdiction. But by seo. 96, all prosecu- 
 tions for the punishment of any offence against the provisions of sec. 64, &o., 
 may take place before any two or more Justices of the Peace having jurisdiction 
 in the county or district in which the offence is committed. See notes to sec. 96. 
 
 The offences punishable under sub-section 1 of section 71, apply only to 
 places where liquors are or may be sold by wholesale or retail. 
 
 The punishment for the first offence is a fine of not less than 920 and not 
 more than 940, besides costs, and the Justices shall order that the same and 
 any sums also awarded for costs may be recoverable by distress and side of the 
 goods and chattels of the defendant, and that in default of sufficient distress 
 the offender may be imprisoned in the County gaol of the Gountyin which the con- 
 viction is made for a period not exceeding fifteen days. See sub-sec. 2 of this 
 sec. See also notes to sec. 70. 
 
 For a second offence the penalty is a fine of not less than $40 nor more than 
 $80, besides costs, or in the alternative twenty d^ys iiiiprisonment. 
 
 A conviction imposing both fine and imprisonment would be bad. It will be 
 noted, however, that when imprisonment is awarded, it is to be imprisonment 
 with hard labor. Magistrates have no discretion in this matter as in the case 
 of a conviction under seo. 70. The Magistrate shall also adjudge that the 
 penalty and oosts may be recoverable by distress, etc., as in the oase of a fiiit 
 offence, and that in default of sufficient distress the offender be imprisoned for 
 twenty daya. See sub-sec. 2. See tlao notee to seo. 70. 
 
 In the oase of a second offence in was held that a conviction imposing a fine 
 of 940, and in default of sufficient distress, imprisonment for ten days at hard 
 labor, was bad : B. v. Black, 48 U. 0. B., 180 ; and it would still be bad as the 
 penalty imposed was not authorised. See notes to seo. 70. 
 
 For the third offence the penalty is not less than $80 and not more than 
 HOC, besides costs, or fifty dm imprisonment with hard labor. As in the oase 
 of 8 conviction for a leoond ofienoe, the Magiatimtei oannot award two penalties 
 
 h,;V;f,,;V^ 
 
 ':H-: 
 
 mi 
 
ff T'. 
 
 V 
 
 W 
 if 
 
 liii-'i 
 
 J 'B, II. ■! ; I 
 
 M'' 
 
 Wii 
 
 Hi 
 
 I : 
 
 ;"j 
 
 
 • » 
 
 'k 
 
 ml- 
 
 'M 
 
 1 66 
 
 First 
 offence. 
 
 Second 
 oiTenoe. 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 71 
 
 Third 
 offence. 
 
 (a) For the first ofTence, by the imposition of a pen 
 alty of not less thun $20, and not more than 
 $40, besides costs. 
 
 (d) For the second offence by the imposition of a 
 penalty of not less than $40 and not more than 
 $80, besides costs, or twenty days' imprisonment 
 with hard labor. 
 
 (c) For the third offence by the imposition of a 
 penalty of not less than $80 and not more than 
 $100 besides co^ts, or fifty days' imprisonment 
 with hard labor (v), and such conviction for a 
 third offence shall in addition to any other 
 punishment by law provided, ipso facto (w), 
 operate as a forfeiture (x) of the license held 
 by the person so convicted {y), and disqualify 
 (z) him from obtaining a license for two years 
 thereafter (a). 
 
 under this olause. They may adjudge that the defendant pay the peonniary 
 penalty, which muBt not exceed 9100, or they may adjudge that be be 
 imprisoned for fifty days with h"-^ labor, but they have no power to order the 
 infliction of both penalties. Buw if the peonniary penalty is awarded, then they 
 shall also adjudge, as in the case of a first and second ofenee, that the same 
 and any sums also awarded for costs may be reeoverrhle by distress, etc. See 
 sub-sec. 2. 
 
 See also notes to sec. 70. 
 
 And ic addition to any other punishment, the oonviotion for a third offence, 
 of itself, and without any further adjudication or proceeding being taken, worka 
 (1) a forfeiture of the license by the person convicted, and (2) his disqualification 
 for holding or obtaining a license for two years. 
 
 Convictions imposing increased penalties for second and third offences are 
 bad, unless proceedings have been taken for the first offence : B. v. Bodwell, 6 
 O. B., 186. See also sec. 101, ss. 4. 
 
 (v) As to imprisonment and the infliction of " hard labor " as a penalty. See 
 note (0) to sec. 70. 
 
 As to conviction, see note [j) to sec. 70. 
 
 (to) "Ip$o faeto" means "by the very act itself "—originally a censure of 
 excommunication in the Ecclesiastical Gourt, immediately incurred for divers 
 offences after lawful trial : see Wharton, 889. 
 
 («) '< Forfeiture." See note (0) to sec. 11, p. 28 and note (m) sec. 87, p. 80. 
 
 (y) "License held by the person so convicted," applies to any license over 
 which the Legislature has control. It could not apply to licenses issued by the 
 Dominion Government. See notes on pages 1 and IS, note (t() p. 72 and notes 
 to sec 61. 
 
 (2) " Disqualify." See notes to sees. 68 and 69. 
 
 (a) Two years thereafter, means two years from the date of conviction. See 
 note (g) p. 11 and note (r) p. 24. 
 
 ii-t 
 
Is. 7« 
 
 if a pen 
 ore than 
 
 ion of a 
 ore than 
 sonment 
 
 ion of a 
 lore than 
 isonment 
 ion for a 
 iny other 
 facto (w), 
 ense held 
 disqualify 
 two years 
 
 ,e peonmary 
 thkt be be 
 to order the 
 d, then they 
 it the same 
 , etc. See 
 
 rd offence, 
 taken, works 
 [qaali&cation 
 
 oflonoes are 
 Bodwell, 5 
 
 enalty. See 
 
 71J 
 
 THE LIQUOR LICENSE ACT. 
 
 167 
 
 B. 87, p. 80. 
 • license over 
 tflsaed by the 
 T72 and notes 
 
 Iviotion. See 
 
 In the eeotion aa originally enaotod, it wai provided that in oaae of oonviotion, 
 the penalty " Bhall be reooTerable from and leyiable against the goods and 
 chattels of the person or persons who are the proprietors in oocapancy, or 
 tenants or agents in oooapanoy of the said place or places, who shall be found 
 by himself, herself, or themseWea, or his, her, or their servants or agents, to 
 1 ave contravened the enactment in the preceding section," Ao , and it was held 
 that the clause aimed wholly against licensed places and that the proprietors, 
 tenants and agents in occupancy were the persons to be proceeded against. 
 That the proprietor, merely as such, was not liable. He should be also the 
 proprietor in occupancy. The license to sell is granted to the person in occu- 
 pancy and not to the mere owner of the property. The «H9cupant who is 
 licsnsed is amenable to certain penalties for acts done, or omitted to be done, 
 on the premises in the cenduct of the business. The owner of the house or 
 land has no suoL liabilities merely from his being such owner. Therefore, 
 where it was stated in a conviction, " that one O. P. of, Ac, Innkeeper, after the 
 hour of seven in the evening and before the hour of twelve of the night of 
 Saturday," i&o., " in and at his tavern at, Ac, being a place where intoxicating 
 Uquors are allowed to bo sold by retail, did unlawftUly sell and otherwise dispose 
 of, and permit and allow to be drunk, Ac, one glassful of beer," &o., it was held 
 that the conviction was bad, as not necessarily bringing the defendant within 
 the class of persons against whom this section was aimed, for the word 
 " Innkeeper " only amounts to a mere description and not to an averment of his 
 filling such a character ; and the words " in and at his tavern," would not 
 necessarily mean the proprietor in occupancy, (fee, to whom the license is 
 granted, and who alone is liable, but would also include the owner or proprietor, 
 even if he were not the occupant : B. v. Parlee, 23 0. P., 869. But the section 
 bs amended, and as it now stands, simply provides that " offences against sub- 
 section 1 of sec. 64, shall be punishable on summary conviction, as follows :" 
 
 In other words, sub-section 1 of sec. 64 describes the offence, and sub-section 
 1 of this section merely prescribes the penalty. 
 
 See notes to sees. 49, 64 and 70, and see especially remarks in notes to 
 sec. 73 as to the liability of master, servant, and manager. 
 
 An information stating that defendant, " a licensed hotel-keeper in the town 
 of P., did, on Sunday, the 2nd July, 1876, at the hotel occupied by him in the 
 said town, dispose of intoxicating liquor to a person who had not a certificate 
 therefor," etc., and the conviction thereunder stated that the defendant was 
 convicted "upon the information and complaint of J. B., the above-named 
 complainant, and another, before the nndersigned," etc., " for that the defend- 
 ant," etc., in the words of the information. Held that the person to whom the 
 liquor was sold should have bmn named and described, but as such an objec- 
 tion, under 32, 83 Vic, c. 29, seo. 32, D. (now B. 8. 0., c 174, s. 143), which 
 applies to informations, was only tenable on motion to quash the information 
 when before the Magistrate. Qiutre, whether 82, 33 Vic, c. 31, sec. 6, D. (now 
 B. S. C, 0. 178, B. 28, ss. 1), which enacts that no objection to any informa- 
 tion for any defect in substance or form therein shidl be allowed, would not 
 be a sufficient answer to the objection. Held also that it sufficiently appeared 
 that the hotel was a licensed hotel at which liquor was allowed to be sold ; that 
 a sale "at" the hotel was equivalent to a sale " therein, or on the premises 
 thereof ; " and that it sufficiently appeared that the defendant was the proprie- 
 tor in occupancy, or tenant or agent in occupancy." Held also that the words 
 " and another " could be treated as surplusage, it appearing that J. B. was the 
 only oomphunant : B. v. Gavanagh, 27 0. P., 637. 
 
 Where in a conviction it was not shown that defendant had a license or that 
 the place where the liquor was sold was one where intoxicating liquors were or 
 might be sold by wholesale or retaU, it was held the oonviotion was bad : R. v. 
 Bodwell, 6 0. B., ISd ; see also see. 101. ss. 4. 
 
 m 
 
 «-f?r'"^ 
 
r 
 
 1 68 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 71. 
 
 tr I ■ 
 
 IW 
 
 
 Reoovery 
 of penal- 
 ties by 
 distreu. 
 
 Zanalty 
 for oon- 
 traven- 
 
 tlOQOf 
 860. 06, 
 SB. 1. 
 
 (2) Where in any such conviction (d) a penalty in money 
 (c) is imposed under the preceding sub-section, the Justices 
 shall order or adjudge that the same (d) and any sums also 
 awarded for costs may be recoverable by distress and sale 
 of the goods and chattels of the defendant, and that in 
 default of sufficient distress, the offender be imprisoned in 
 the county gaol of the county in which the conviction is 
 made, for a period not exceeding fifteen days in the case of 
 a first offence, twenty days in the case of a second offence, 
 and fifty days in the case of a third offence, in each such 
 case with hard labor, unless in each such case the penalty 
 and costs by the conviction adjudged to be paid, and all 
 costs and charges of the distress and also the costs and 
 charges of the commitment and conveying of the defendant 
 to prison, (the amount thereof being ascertained and stated 
 in the warrant of commitment) are sooner paid (e). 
 
 (3) Every person convicted of an offence against sub- 
 section I of section 58 of this Act shall be liable to a pen- 
 alty for each offence of not more than $10 and not less 
 than $2, besides costs (/). 53 V. c. 56, s. 6.] 
 
 (b) This sab-aeo. applies only to oonviotions for ofFenees against the pro- 
 Tiaione of sab-aeo. 1 of aec. 64. See that olaase in the Aot and the notes 
 thereto, alao note (e) infra. 
 
 (e) '■ ▲ penalty in mon^." For a first offenoe the penalty is a peouniary 
 one, but aabaeqaent cfFenoes are punishable either by fine or imprisonment. 
 See note (e) to see. 80, note (n) seo. 46 and note (it) lupra. 
 
 (d) " The same," <. «., the fine. 
 
 («) This sab-seotion was evidently introdaoed in conseqoenoe of the deoisiona 
 in B. V. Menary, 19 O. B.. 691, and other oases cited in notes to seo. 70, main- 
 taining the inability of the Justices to adjudge that the fine and coats be 
 recoverable by distress, etc., or that the imprisonment be dependent upon 
 payment of the fine, etc., and it completely alters the law respecting theie 
 questions. Now, in case a money penalty is imposed for a violation of sub-eeo. 
 1 of aec. 54, the Justice is not only empowered, but he is required to order or 
 adjudge that such money penalty and any sums awarded for coats, may be 
 recoverable by distress, etc., and in default of sufficient distreaa, that the 
 defendant be imprisoned for a period not exceeding fifteen days for a first 
 off'-uce, twenty dayR for a second offenoe, and fifty days for a third offenoe, in 
 each case with hard labor, and that the imprisonment is to be dependent upon 
 payment of the penalty and costs awarded by the conviction with all coats and 
 chargea of the diatress and the costs of the commitment and conveying of the 
 defendant to prison, all of which were declared by the Courts to be beyond the 
 jurisdiction of the convicting Justices, previous to the amendment of the 
 section. 
 
 It must be noted, however, that this sub-section does not apply to sees. 49 
 and 70. It^ is only applicable to sees. 71 and 64, bb. 1. 
 (/) See notes to see. 68, bs. 1. 1 
 
 Besides oosts. See note {k) to sec. 70. 
 
s. 72.J 
 
 THE LIQUOR LICENSE ACT. 
 
 169 
 
 [\ money 
 Justices 
 ums also 
 and sale 
 i that in 
 soned in 
 jriction is 
 le case of 
 1 offence, 
 ;ach such 
 ,e penalty 
 d, and all 
 costs and 
 defendant 
 and stated 
 
 0- 
 
 rainst sul)- 
 
 e to a pen- 
 
 d not less 
 
 the deoisionB 
 BO. 70, main- 
 tnd oostB be 
 endent apon 
 leoting these 
 >n ol Buh-seo. 
 I to order or 
 soBts, may be 
 )BB, that the 
 jB for a first 
 rd oflenoe, in 
 indent upon 
 all ooBts and 
 roying of the 
 je beyond the 
 ment of the 
 
 HfB, Every tavern keeper {g) failing or refusing (^), ^•°'^/^,. 
 either personally or through any one acting on his behalf, |°g i^- 
 except for some valid reason (i), to supply lodging (/), 
 
 (g) " Every tavern keeper." At common law Aoommon inn-keeper is one who 
 mt&eB it hia baiineaB to entertain traveller* and pasaengers and provide lodg- 
 ings and neoeaaariea for them, their horaea and attendanta : Add. on Con., 298. 
 By the Statate, B. 8. 0., 0. 154, a. 1, an " inn " ia made to inolnde an hotel, 
 inn, tavern, pablio hoaae, or other place of refreahmenta, the keeper of which 
 is now by law tMponaible for the gooda and property of hia gaeata, and an 
 •< inn keeper iaTJefined aa the keeper of any anoh place. ** Tavern " inoladea 
 •' hotel : " Oity of St. Loaia v. Siegriat, 46 Mo., 694, cited Browne on the Inter- 
 pretation of Worda, etc., 460. '* Tavern," " hotel," and pnblio houae are, in 
 this ooontry, aaed aynonymoaaly, and while they entertain the travelling public, 
 and keep gueata, and receive compenaation therefor, they do not loae tbeir 
 character, though they may or may not have the privilege of aelling liquors. 
 The diatinction, aa reapects inn and tavern-keepers, obaerved in England under 
 the common law, does not exist with ua, and different names are applied to 
 them, though " hotel " and " house " are usually and ocmmonly used to denote 
 a higher order of public houae than the ordinary tavern, or inn. The Legiala- 
 tore, in making use of the word "tavern," undoubtedly and manifestly 
 intended to apply it to the whole class, and make it comprehend all hotels and 
 houses that entertain and accommodate the public for compensation: per 
 Wagner, J., in St. Louis v. Siegriiit, supra. See notea to sec. 2, ss. 2, and note 
 (a), p. 19. Aa to meaning of " evei7," see note (t) to sec. 68, p. 185. 
 
 (h) " Failing or refuaing." The ierm " failing or refuaing " is, it is thought, 
 synonymous with " neglecting or refusing." Ffdlure implies the state or con- 
 dition of being wanting ; a falling abort ; deficiency or lack ; defect ; want ; 
 absence; default; defeat: Anderson'^ Diet., 445. A tavern is required by 
 sec. 2R to be a well appointed and suffioieLt eating-house with the appliances 
 requisite for daily serving meals to travellers, and these requirements are 
 applicable to all tavema or houaea of entertainment without any exception 
 whatever. It ia quite clear, therefore, that it is intended, that the simple 
 omission to comply with the requirementa of the Statute in thia respect should 
 be an offence. The phrase used in relation to the same offence at common 
 law is " neglects or refuses." 
 
 The inn-keeper is liable also, if anoh omiaaion or refusal is his own or his 
 agent's. See notes to sec. 78. 
 
 (t) "Except for some valid reason." The only reasons which would relieve 
 a tavern-keeper of his liability are set forth in the judgment of Ooleridge, J., in 
 B. V. Ivens, 7 C. & P., 219, in which it was stated that " an indictment lies 
 against an inn-keeper who refuses to receive a guest, he having at the time 
 room in his house, and either the price of the guest's entertainment being 
 tendered to him or such circumstances occurring as will dispense with that 
 tender." " He has no right to say to one, you shall come into my inn, and to 
 another you shall not, aa every one coming and conducting himself in a proper 
 manner has a right to be received." But, " if a person came to an inn drunk, 
 or behaved in an indecent or improper manner, I am of opinion that the inn- 
 keeper is not bonnd to receive him." Goming to the inn at a late hour of the 
 night was held to be no excuse, nor was the refusal of the guest to disclose his 
 name and abode. Neither was the fact that the guest was travelling on Sunday 
 sufficient excuse, and the use of the expression " and be damned to yen " by 
 the guest, was no sufficient reason for keeping a man out of his bed who had 
 been travelling till midnight (see also Fell v. Knight, 8 M. <6 W., 276), nor can 
 the inn-keeper discharge himself of the duty imposed on him by the common 
 law by express notice to his guest: Morgan v. Bavey,' 6 H. tfe N., 265 ; nor 
 
 a 
 
 I: * I 
 
 rii 
 
 
h:;.:l 
 
 -* 
 
 •■ 1 
 
 l! 1 i' 
 
 
 
 ¥■ 
 
 h\r 
 
 ■ 
 
 
 r 
 
 7 ■ 
 
 
 
 'f^ 
 
 '■11' !■■ 
 
 ■ji 
 
 
 r 
 
 ';% »-^ 
 
 
 
 h. 
 
 pi;':' ! 
 
 
 "■( 
 
 iiM !'■: ! 
 
 '-i- 
 
 ',1 
 
 ■^- :,' !! i 
 
 I 
 
 
 
 ^i': I.,,!': 
 
 170 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 72. 
 
 meals (k), or accommodation to travellers (/), shall for each 
 offence (w), be liable, on conviction to forfeit and pay any 
 sum not exceeding $20 (»). 47 V. c. 34, s. 36. 
 
 under pret«no« of sioknaM or abMDoe from horn*, but an infant who keeps an 
 inn can claim the privilege of infanoj, which takes precedence over custom : 
 Cross V. Andrews, Uoll. Abr., 2. But a guest who has been received loses the 
 right to be entertained, if he refuses to pay a reasonable demand: Doyle v. 
 Walker, 26 U. 0. B. S02. The inn-keeper has sole right to select the guest's 
 apartment, and if he finds it expedient to change it and aBsi||| ^in> another, 
 he cannot be treated as a trespasser for entering to make ffie change : lb. 
 All the inn-keeper is required to do is to find reasonable and proper accommoda- 
 tion for b<s gnestsj and if a guest refuses such accommodation when tendered, 
 the inn .oeper may compel him to quit the inn and seek aooommodation 
 elsewhere : Fell v. Knight, 8 M. <fr W., 276. 
 
 (j) " Lodgings," in the sense which it is used here, usually has reference to 
 Bleeping accommodation, and may be defined as a temporary habitation or 
 place of rest for the night : Worcester, 861. The framer of the Act probably 
 did not sufficiently consider the difficulty which has always existed as to the 
 meaning of this expression, and that authorities differ materially as to the 
 meaning of the words "lodger" and " lodging." In the present state of the 
 decisions it is impossible t j frame a definition which will accurately distinguish 
 between a boarder, a guest and a lodger. But see note (w) to sec. 68, ante, p. 
 IBC, and notes, infira. 
 
 {k) " Meals." The word meal is defined to signify " a portion or quantity 
 of fciod taken at one time ; a repast : " Worcester, 890. . 
 
 (l) " Or accommodation to travellers." See notes to sees. 27, 28, 29. It 
 is thought that this expression is wide enough to cover any accommodation 
 which a guest may require and which it is the duty of the tavern-keeper to 
 supply. See notes, infra. 
 
 (m) " Shall for each offence." Every ease of neglect or refusal is punishable, 
 and a conviction may follow every such ease. 920 is the maximum fine and 
 no minimum is fixed. See note (ft), see. 88. 
 
 (ft) The existence of necessary accommodation for the purposes of this sec- 
 tion is a condition precedent to the granting of the license. Its continued 
 existence is also necessary to the oontinaance of the license. See sees. 27, 28, 
 fl9. 
 
 An inn -keeper is not bound to receive the goods of persotas who do not lodge 
 or go to his inn as guests, but only make it a place of deposit, nor is he bound 
 to receive horses from persons who merely intend using his stables, going 
 eliiewhere for lodging and entertainment : Add. on Oon., 298, cited Sinclair's 
 L. «. T., 122. 
 
 J and his wife took rooms in premises kept by defendant, called the 
 " Bhandon House," partly furnishing them and agreeing to pay 960 per month 
 for rooms and boturd. They left the place in debt and leaving a piano whiob 
 they had rented from the plidntifl. Held that the relation between the defendant 
 and J was not that of inn-keeper and guest, but of boarding-house keeper and 
 boarder, and that as the piuio was not the property of J and his wife, the 
 defenduit had no lien upon it for board and lodging under B. S. 0. c. 117. 
 Query, whether the house kept by the defendant was an inn : Newcombe v. 
 Anderson, 11 0. R., 666. 
 
 The plaintiff had been for some time a guest of the defendant, an inn-keeper, 
 and on leaving the inn after paying his bill, was allowed to leave a box 
 containing papers and books in the room of the inn nsed for storing luggage, 
 etc. , plaintiff intending to take it away the following day, but was prevented b; 
 
[/! 
 
 7^.] 
 
 THE LIQUOR LICENSE ACT. 
 
 171 
 
 iUnMi and did not oall for it for mtwaI w«eki, when he found it waa loit. 
 There wai no other evidence of negligence in the matter. The Court of Appeal 
 held that plaintiff could not reeoTor : Palin v. Beid, 10 App. B. , 68. 
 
 Of the Proteotion of the Ooeat from Bobberj and Theft. In addition to the 
 liabilitiee and dntiee which attach to all lodging-house keepers and leaaoiB of 
 Inrniehed apartments, which the keeper of an inn ihares in common with them, 
 there is added by law the duty of protecting the goods of a guest ftom robbery : 
 Morgan v. Ravey, 6 H. «fe n., 26S ; Add. on a>n., 399 ; (see also B. B. O. 
 0. IM.) 
 
 But he is not responsible for robbery by the guest's servant or companion : 
 Oalye's Case. Smith's L. 0. 946, nor where the guest has not exercised the care 
 which a prudent man might be expected to u3t» : Oppenheim v. White Lion 
 Hotel Go., L. B. 6 0. P. 616 ; see oases cited in Add. on Oon. pp. 800-802. 
 
 Limitation by Statute of the Liability of Inn-Keepers. By the Statute 
 B. S. O. c. 164, sec. 8, it is enacted that no inn-keeper shall be liable to make 
 good to any guest any loss or injury to goods or property brought to his inn 
 (not being a horno or other live animal or any gear appertaining thereto or any 
 carriage) to a greater amount than 940. except where such goods or property 
 have been stolen, lost or injured through the wilful act, default or neglect of 
 Bach inn-heepsr, or any servant in his employ or where such goods or property 
 have been deposited expressly for safe custody with such inn-keeper. 
 
 If an iun-keeper refuses to receive for safe custody any goods or property of 
 his guest or if such guest through any default of such inn-keeper is unable to 
 deposit such goods or propnrty as aforesaid, the inn-keeper shall not be entitled 
 to the benefit of this Aet in respect of such goods or property (sec. 4). 
 
 In case of a deposit for safe custody the inn-keeper may require, as a condi- 
 tion of his liability, that inch goods or property be deposited In a box or other 
 receptacle fastened or sealed by the person depositing the same (sec. 8). 
 
 Every inn-keeper shall cause to be conspicuously posted in the office and 
 pnblic rooms and in tverv bed-room in his inn a copy of sec. 8 of the Act 
 printed in plain type ; and he shall be entitled to the benefit of the said section 
 in respect of such goods or property only as are brought to his inn while such 
 copy is so posted. The copy to be posted should be a correct copy : see Spice 
 V. Bacon. L. B. 2 Ex. D. 468. 
 
 Losses occasioned by the misconduct of a guest. A guest who takes a 
 private room at an inn to exhibit goods for sale, and receives customers, and 
 invitefl the admission of strangers into the inn, upon whose ingress and egress 
 the inn-keeper has no check, cannot hold the landlord responsible for the safety 
 of goods in the room so used : Burgess v. Olements, 1 Stark. 261. 
 
 The rule of law resulting from all the authorities is, that the goods remain 
 nnder the charge of the inn-keeper and the protection 01 the inn so as to make 
 the inn-keeper liable for a breach of duty, unless the negligence of the guest 
 occasions the loss in such a way as that ue loss would not have happened if 
 Ijhe guest had used the ordinary care that a prudent man may be reasonably 
 expected to have taken under the circumstances : Add. on Oon. 808 ; see Oashill 
 V. Wright, 6 EIL A Bl. 900 ; see Walker v. Sharpe, 81 U. 0. B. 840. 
 
 Who are guests and travellers. A man does not become a guest at an inn 
 by merely delivering his goods to the landlord to keep. He must show he was 
 a traveller and a guest at the inn, and if he has been a guest but gives up his 
 room and quits the inn for a few days leaving his goods in charge of the land- 
 lord the latter is liable only as a bailee : see cases cited in Lynar v. Mosaop, 
 36 U. 0. B. 280 and in Palin v. Beid, 10 App. B. 68. 
 
 " A man may become a guest by leaving his horse as much as if he stayed 
 himself, beoauie the hone must be fed, by which the inn-keeper has gain. 
 
 
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 172 
 
 THE IIQUOR LICENSE ACT. 
 
 fs. 72. 
 
 Otherwise than if he had left a trank or a dead thing," Tork v. OrindBtone, 1 
 Salk. 888 : Day «. Bather, 2 H. (& 0. 14 : Walker v. Sharpe, 81 U. 0. B. 840. 
 
 " If an host iuvite one to sapper, and the night being far spent, invites him 
 to stay all night, if he is afterwards robbed, yet shall not the host be charged 
 (as inn-keeper) for this gaest was no traveller," Bao. Abr. Ins. (0.) 6 cited in 
 Add. on Oon. 308. 
 
 The duration of the guest's *tay at an inn does not alter his character or vary 
 the liability of the inn-keeper althongh the guest may not be said to be a 
 traveller, being at the end of his journey. 
 
 But if he takes apartments for a term, or resides in an inn under special 
 contract for his bed and board, he is not in contemplation of law sojourning 
 there as a traveller, but in the character of a lodger at a private boarding-house. 
 The landlo'^d is therefore not responsible as an inn-keeper if such a guest is 
 robbed : Add. on Con. 304. 
 
 Exemption of Quest's Property from Distress for Bent. By the Statute 
 B. S. 0. c. 148, s. 44, it is enacted that if a superior landlord shall levy or 
 <iuthorize to be levied a distress on any furniture, goods, or chattels of any 
 boarder or lodger for arrears of rent due to the superior lai:.J.'ord by his 
 immediate tenant the boarder or lodger may serve the superior landlord or the 
 baUiff or other person employed by him to levy the distress, with a declaration 
 in writing, made by the boarder or lodger setting forth that the immediate 
 tenant has no right of property or beneficial interest in the furniture, goods or 
 chattels ao distrained or threatened to be distrained upon, and that such 
 furniture, goods or chattels are the property or in lav.ib! possession of such 
 boarder or lodger ; and also setting forth whether any and what amount by 
 way of rent, board or otherwise is due from the boarder or lodger to the 
 immediate tenant ; and the boarder or lodger may pay to the superior landlord 
 or to the bailiff or other person employed by him as aforesaid the amount, if 
 any, so due as laut aforesaid, or so much thereof as shall be sufficient to dis- 
 charge the claim of the superior landlord ; and to such declaration he shall 
 annex a correct inventory, subscribed by the boarder or lodger, of the furniture, 
 goods or chattels referred to in the declaration. 
 
 Sec. 46 enacts that if a superior landlord or bailiff or other person employed 
 by him, after being served with the before mentioned declaration and inventory, 
 and after the boarder or lodger shall have paid or tendered to the superior 
 landlord, bailiff or oiher person the amount, if any, which by the last preceding 
 section the boarder or lodger is authorized to pay, shall levy or proceed with a 
 distress on the furniture, goods or chattels of the boarder or lodger, the superior 
 landlord, bailiff or other person shall be deemed guilty of an illegal distress, 
 and the boarder or lodger may replevy such furniture, goods or chattels in any 
 Court of competent jurisdiction and the superior landlord shall also be liable to 
 an action at the suit of the boarder or lodger, in which action the truth of the 
 declaration and inventory may likewise be enquired into. 
 
 Sec 46 enacts that any payment made by a boarder or lodger pursuant to 
 section 44 of the Act shall be deemed a valid payment on account of the amount 
 due from him to the immediate tenant mentioned in the said section. 
 
 The declaration hereinbefore referred to shall be made under and in accord- 
 ance with " The Act respecting Extra Judicial Oaths," (B. S. 0. 0. 141). 
 
 Inn-keepers, Lien. — By B. S. O. 1887, c. 164, s. 2. " Every inn-keeper, 
 boarding house keeper, and lodging house keeper shall have a lien on the bag- 
 gage and property of his guest, boarder or lodger for the value or price of any 
 food or accommodation furnished suoh guest, boarder or lodger, and iu addition 
 to all other remedies provided by law shall have the right in case the same 
 remains unpaid for three months to i^ell by public aaotion the baggage and 
 property of suoh guest, boarder or lodger, on giving one week's notice by adver- 
 
72.] 
 
 THE LIQUOR LICENSE ACT. 
 
 «73 
 
 SI; 
 
 tiBement in a newspaper pabliahed in the Monioipality in which the inn, 
 boarding hoase or lodging honse is situate, or in oase there is no newspaper 
 published in the Municipality, in a newspaper published nearest to such inn, 
 boarding house or lodging house of the intended sale, stating the name of the 
 guest, boarder or lodger, the amount of his indebtedness, a description of the 
 baggage or other property to be sold, the time and place of sale, and the name 
 of the auctioneer ; and after the sale the innkeeper, boarding house keeper or 
 lodging honse keeper, may apply the proceeds of the sale in payment of the 
 amount due to him and the costs of such advertising and sale, and shall pay 
 over the surplus, (if any), to the person entitled thereto on application being 
 made by him therefor." 
 
 By sub-section 2 it is enacted thai " where an innkeeper, bearding honse 
 keeper, lodging honse keeper, or livery stable keeper, has by law a lien upon a 
 horse or other animal for the price or value of any food or accommodation sup- 
 plied to such animal, or for care or labor bestowed thereon, he shall in addition 
 to all other remedies provided by law have the right in case any part of such 
 price or value remains unpaid for the space of two weeks, to sell by public 
 auction such horse or other animal on giving two weeks' notice by advertise- 
 ment in a newspaper pubUshed in the Municipality in which the inn, boarding 
 house, lodging house or liveiy stable is situate," etc. The provisions for the 
 advertisement, sale and application of the proceeds thereof bieing the same as 
 in sec. 1. 
 
 An inn-keeper has a hen under the common law upon goods beloniining to the 
 gnest end brought by him to the inn, for his charges for board :tnd lodging . 
 supplied to the guest, and it has been held that the lien attaches even to goods 
 which do not belong to the guest, if the inn-keeper receives them in the belief 
 that they do so belong ; and also when the goods are such as ihe inn-keeper was 
 not bound to receive ; Thompson v. Lacy, 8 B. <b A., 283 ; Threfall v. Borwick, 
 L. B., 7 Q. B., 711 ; and also to goods deposited with him by the guest : Mnl- 
 liner v. Florence, 8 Q. B. D., 484. 
 
 But he cannot detain the guest, or take o£f his clothing in order to obtain 
 payment of his bill : Sunbolf v. Alford, 8 M. <b W., 248. 
 
 The inn-keeper holds the chattels detained by him in the nature of a pledge, 
 80 that if he once allows his guests to take them away and so gives up the 
 pledge, he cannot afterwards retake them. 
 
 If after a debt has been ccntt-aoted by a guest, the inn-keeper allows the goods 
 or animals on which he has a lien for keeping them to be uken away, and they 
 are subsequently brought to the inn and a new debt contracted, the inn-keeper 
 can only detain them for the latter portion of the debt, and not for the former : 
 Add. on Con., 804. 
 
 If several animals are brought to an inn by a gnest, each is a pledge for its 
 own keep but not for the keep of the others ; so that if all but one are taken 
 away that one cannot be deti^ned for the cost of keeping the whole number : 
 Moss V. Townsend, 1 fiulstr., 207. 
 
 If the chattel is taken away without the hosteller's consent, the latter may 
 take it on a fresh pursuit as a distress rescued, if he follows promptly, but not 
 otherwise : Bosse v. Bramsteed, 2 Boll., 488. 
 
 The relative duties and obligations of inn-keeper and guest continue no matter 
 how long the latter's horses may be kept at an inn nntU some fresh contract or 
 arrangement is made ; Oalye's case. Smith's L. 0., 24 o ; see B. & J's. Dig. , 1790. 
 
 " Fire Escapes." The lessee of a hotel, under certain circumstances, may 
 erect fire escapes and have a right of action or set-off against the lessor for the 
 ooBt thereof ; 61 Vic, (0) o. 84, s. 2. 
 
 " Liability of lodging house keepers." Every lodging house keeper is bound 
 
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 174 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 73. 
 
 tor""llr? Sf^, If any person licensed {0) under this Act per- 
 mitting mits (^) drunkenness, (^) or any violent, quarrelsome, 
 
 to tttke the same care of hiB honse as every prndent hoaseholder might be 
 expected to take, and to be earefal in tbe ohoioe of his servants. 
 
 When articles belonging to his lo^^ers are actually placed in his hands, he 
 will bo responsible for the loss of them like any other bailee, bat not on the 
 ground of their having accompanied and been placed in his honse by a lodger. 
 The lodger mast taka care of his own goods in his lodgings : Holder v. Boolby, 
 8 G. B. N. S., 264 ; Dansey v. Bichardson, 8 Ell. & BL, 144. 
 
 Where goods were left with the inn-keeper merely for the accommodation of 
 a traveller, who intended to, bat did not spend the night at the inn, it was held 
 that the relation of landlord and gaest was not established so as to make the 
 inn-keeper responsible : Stranss v. Coanty Hotel Co., 12 Q. B. D., 27. 
 
 An inn-keeper who accepts seoarity from his gaest for the payment of hotel 
 charges does not waive his lien apon the goods of the gaest, unless there is 
 something in the nature of the security, or in the circumstances under which it 
 was taken, which is inconsistent with the existence or continuance of the lien, 
 and therefore destructive of it. 
 
 An inn-keeper retaining the goods of his guest by virtue of such lien is not 
 bound to use greater care as to their custody than he uses as to his own goods 
 of a similar description : Angus v. McLaohlan, 28 Ch. D., 880. 
 
 (0) "Any person." See notes to sec. 70. The section applies only to 
 the holders of a license under the Act. 
 
 (p) " Permits. " It was held in a clause of forfeiture on alienation that the 
 word " permits " means the same as " suffers :" per James, L. J., Ex parte 
 Eyston, 7 Ch. D., 146, and Oockbum, 0. J., in Bosley v. Davies, 1 Q. B. D., 
 84 at p. 87, says : " A man may be said to * suffer ' a tiling to be done if it is 
 done through his negligence," and it was held that where " words are used such 
 as those in this section, actual knowledge in the aense of seeing and hearing by 
 the party charged is not necessary." ^e oases cited in the notes below will 
 shew whav oonstmotion is pet upon this expression by the Oourts. See notes 
 to sec. 74, and see further Commonwealth v. Briant, 84 Alb..L. J., 439, 
 cited in notes to sec. 76. See also note (j), p. 114, ante. 
 
 iq) " Drunkenness." When a person is said to be '* drunk," it means that 
 he is drunk on intoxicating liquors, and not on opium, ether or laughing gas : 
 State V. Kelly, 47 Vt. , 294. A person who is in the habit of drinking intoxi- 
 cating liquors intemper;,tely is not necessarily in the habit of getting " drunk " 
 or "intoxicated." The word "intoxicate" means to become inebriated or 
 drunk, but intemperance does not necessarily imply drunkenness : Mullinix v. 
 People, 76 III., 211 ; cited Browne on the Judicial Interpretation of Words, 205. 
 A similar definition is given in Wharton's Lexicon, 265. To be drunk means 
 to be intoxicated with strong liquor; inebriated; tipsy; drunken. And 
 drunkenness is defined to be : (1) intoxication, ebriety, inebriety ; (8) Habitual 
 intoxication, sottiahness : Worcester, 451. A person cannot be punished for 
 being drunk on the public street at common law ; there must be some special 
 by-law or enactment making it a punishable offence: in re Livingstone, 
 6 P. B., 17. A person cannot be arrested in his own house for being drunk, 
 unless he is creating a disturbance of the peace : B. v. Blakeley, 6 P. B., 243. 
 
 A by-law prohibiting the sale of liquor to any person in a atate of intoxication, 
 Held good: Jn r« Greystook and The Municipality of Otonabee, 12 U. C. B., 
 468. But a by-law forbidding the sale of Uqaor to any habitual drunkard, 
 after being notified not to do bo by any relative or friend of snch drunkard, was 
 held to be unauthoriaed : Barclay r. The Municipality of Darlington, 12 
 U. C. B., 86. 
 
73-] 
 
 THE LIQUOR LICENSE ACT. 
 
 175 
 
 The olaase of the Englijh Licensing Aot, 85 and 86 Yio., 0. 94, s. 18, provides, 
 that, " if any licensed person permits drank unneqs or any violent, qaarrelsome, 
 or riotons conduct to take place on his pii:uni66, or seUs any intoxicating 
 liquor to any drunken person, he shall be liable to a penalty not exceeding for 
 the first offence ten pounds, and not exceeding for the second and any subse- 
 quent offence twenty pounds." It will be seen that the words of prohibition 
 are iden'.ical with those of our own Act, with the exception that in ours the 
 words " or delivers " are inserted after the word " sells." The English cases 
 are therefore applicable to our law. 
 
 It was held that the prohibition created by this enactment is absolute and 
 that knowledge of the condition of the person served with liquor was not 
 necessary to constitute the offence. Therefore, where a publican sold intoxica- 
 ting liquor u*) a drunken pert in, who had no indication of intoxication, and 
 without being aware that the persoa so served was drunk, it was held Vat he 
 was properly convicted and that the license holder could not set up the defence 
 that " he and his pot man considered the customer not to be drunk or at least 
 that it was very doubtful whether he was so," for the risk of discovering the 
 fact rests with the license holder : Gundy v. Le Cocq, 13 Q. B. D., 207. But 
 see Newman v. Jones, 17 Q. B. D., 182, cited in nc'^ (I) to sec. 63, p. 124, ante. 
 
 In the case of Bond v. Evans, 21 Q. B. !>., 249, Mr. Justice Manisty, at p. 
 261, quoting from the judgment of Stephen, J., in Gundy v, Le Cocq, says : " I 
 am of opinion that the words of the section amount to an absolute prohibition 
 of the sale of liquor to a drunken person, and that the existence of a bona fide 
 mistake as to the condition of the perBon served is not an answer to the charge, 
 but is a matter only for mitigation of the penalties that may be imposed. I 
 am led to that conclusion both by the general scope of the Aot which is for the 
 repression of drunkenness and from a comparison of the various sections under 
 the head of ' offences against public order.' " See also the cases cited below as 
 to permitting gaming, etc. ; see also Mullins v. Collins, L. B. 9, Q. B. 292. 
 
 The mere supply of liquor to a drunken person is not permitting drunkenness 
 " to take place : " Smith t;. Eldridge, 48 J. P. 26, cited in Stroud's Diet., 787. 
 
 The offence here is in terms confined to a licensed person who permits or 
 sells. Where the only evidence was that a person had been drinking in a 
 licensed house, and three-quarters of an hour later was found drunk in a ditch 
 about 100 yards distant, it was held that there was some evidence on which 
 the Justice might convict the keeper of the licensed house under this section : 
 expa'^te Ethelstane, 82 L. T. N. S., 839. But, at the same time, to permit 
 implies that there is power to prevent ; and if a customer becomes drunk, but 
 not from the effect of drink given in the house, the license holder cannot be 
 deemed to permit it. A licensed person cannot be convicted under this section 
 for being drunk on his own premises : Warden v. Tye, 2 0. P. D., 74. In a 
 conviction under this section it will not be necessary to state the names of the 
 pek'sons who were permitted to be drunk : Wray v. Toke, 12 Q. B., 492. 
 
 " Violent, quarrelsome, or riotons or disorderly conduct." Webster defines 
 violent in its primary sense as meaning " physical force," and it is also defined 
 as *■ highly excited feeling or action ; vehemence ; impetuosity ; wildness ; 
 paroxysm : " Worcester, 1681. 
 
 A " quarrel " is a dispute, contest : Wharton, 604 ; also " a brawl, petty 
 fight, souffle, affray, wrangle, altercation, broil, feud, a breach ri concord, an 
 angry dispute, a noisy contest ; it is a general term for an angry or hostile con- 
 test, however conducted, though it commonly means an angry contest or 
 altercation between two persons : " see Worcester, 1166 ; and the term " quar- 
 relsome" is defined as "a disposition to quarrel, contentious, disputatious, 
 initable, irascible, choleric, petulant." 
 
 " Disorderly houses." In addition to the enactments here provided against 
 
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 176 THE LIQUOR LICENSE ACT. [s. 73. 
 
 drnnken- riotous or disorderly conduct (r) to take place on his 
 
 disorderly taverns, the following claases respecting disorderly honses are given 
 in Borbidge'p Grim. Dig., pp. 178 and 174 : 
 
 " Every one vrho oommits any common noisanoe is guilty of a misdemeanor. 
 
 " Every one who keeps a disorderly hoase commits a common nuisance. 
 
 " Any person who appears, acts, or behaves as master or mistress, or as the 
 person having the cara, government or management of any disorder!}- hoase, 
 is to be deemed and taken to be the keeper thereof, and is liable to be prose- 
 cuted and punished as such, although, in fact, he is not the real owner or keeper 
 thereof : " 25 Geo. 2, c. 86, s. 8 ; 21 Geo. 8, c. 49, s. 2. 
 
 " But the owner of a house, conducted as a disorderly house by a person to 
 whom he lets it as a weekly tenant, is not the keeper of the house merely 
 because he knows the use to which it is put, and does not give the tenant 
 notice to quit : " see B. v. Barrett, L. & G., 268 ; B. v. Stannard, L. & G., 349, 
 where the whole house was let in parts to different women as weekly tenantH. 
 
 " The following are disorderly honses, that is to say : common bawdy houses ; 
 common gaming houses ; common betting houses ; disorderly places of enter- 
 tainment." " A common bawdy house is a house or room, or set of rooms, in 
 any house kept for the purposes of prostitution, and it is immaterial whether 
 indecent or disorderly conduct is or is not perceptible from the outside :" B. v. 
 Bice, L. B. 1, G. G. B. 21. 
 
 P was a licensed victualler, and during his absence elsewhere at work the 
 police noticed two prostitutes and two men enter the premises, where they 
 proceeded a little later to occupy a double-bedded room, and after three hours, 
 the police, having^ entered the room, found the two women concealed in bed 
 with F's wife, and the men in a house by themselves. No evidence of previous 
 misconduct against P was given, and his wife and servants gave no rebuttiiu?; 
 evidence in his favor. Held, there was ample evidence that P permitted the 
 premises to be a brothel, though he was absent, and no previous case of the 
 kind was proved : B. v. Holland, 46 J. P., 812. 
 
 (r) Disorderly places of entertainment. " Every house, room, or other place 
 opened or used for public entertainment or amubement, or for public debating 
 on any subject whatsoever, upon any part of the Lord's Day, called Sunday, 
 and to which persons are admitted by tiie payment of money or by tickets sold 
 for money," are disorderly places of public entertainment in Ontario, British 
 Columbia, Manitoba and the North West Territories, and the following are 
 deemed to be places to which persons are admitted by the payment of money, 
 although money is not taken in the name of, or for admittance, that is to say, 
 any house, room or place (1) at which persons are suppUed with tea, coffee, or 
 other refreshments of eating or drinking on the Lord's Day, at any greater price 
 than the common and usual prices at which the like refreshments are commonly 
 sold upon other days thereat, or at places where the same are usually sold ; 
 (2) any house, room or place opened or used for any of the purposes aforesaid, 
 at the expense of any number of subscribers or contributors to the carrying on 
 of any such entertainment or amusement or debate on the Lord's Day, and to 
 which persoiii are admitted by tickets to which subscribers or contributors are 
 entitled." See 21 Geo. 8, c. 49, sees. 1, 2 ; B. v. Barnes, 45 U. G. B., 276 ; 
 Burbidge's Grim. Dig., 180, 181. 
 
 " Biotons " means practising or pertaining to riot or loose festivity : Worces- 
 ter, 12il. The word " riot " comes from note, a brawling strife. See 4 Bl. 
 Gom., 146 ; Hawkin's Pleas of the Grown, 618. 
 
 " Disorderly conduct " is conduct which is " contrary to law and good order, 
 or deviating from established rules, intemperate, excessive, tumultuous, 
 turbulent :" Worcester, 419. Any conduct which is contrary to law : Anderson's 
 Diet., 864 ; State v. Jersey Gity, 26 N. J. L., 641 (1866). A •' disorderly" inn 
 
Is. 73- 
 
 on his 
 
 ure given 
 
 Bmeanor. 
 
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 or as the 
 y honse, 
 oe prose- 
 or keeper 
 
 jerson to 
 le merely 
 le tenant 
 & 0., 849, 
 J tenautH. 
 
 iyhouBes; 
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 rooms, in 
 iX whether 
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 t work the 
 vhere they 
 Lree hours, 
 led in bed 
 of previouB 
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 lase of the 
 
 other place 
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 ickets sold 
 rio, British 
 lowing are 
 of money, 
 ,t is to say, 
 coffee, or 
 reater price 
 commonly 
 lually sold ; 
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 jarrying on 
 )ay, and to 
 ibutors are 
 D. B., 276; 
 
 : Worces- 
 See 4 Bl. 
 
 ^ood order, 
 KunultuouB, 
 1 Anderson's 
 Vderly"inii 
 
 73] 
 
 THE LIQUOR LICENSE ACT. 
 
 177 
 
 premises, {$) or sells or delivers (/) intoxicating liquor to °®"' «**'• 
 any drunken person, or permits and suffers any drunken 
 person to consume («) any intoxicating liquor on his 
 premises, or permits and suffers persons of notoriously bad 
 character (») to assemble or meet on his premises, or suffers 
 
 is an inn kept in a disorderly manner and suffered to be resorted to by persons 
 of bad character for any improper purpose : Stephen's Grim,, 126 ; Bosooe's 
 Crim., 821 ; cited Stroud's Diet., 218. 
 
 A " disorderly person " is a person amenable to police regulation for mis- 
 conduct affecting the public : Bl. Gom., 169. 
 
 The term " misbehaTiour " is also used as denoting improper or unlawful 
 conduct. 
 
 {$) " On his premises." See note (d), p. 78, note (g), p. 45. 
 
 (t) " Bells or delivers." See note (/) to sec. 70, and notes on pages 6, 69, 
 and note (d), p. 143, ante. 
 
 Not only the sale, but the delivery of intoxicating liquor to a drunken person 
 is prohibited, and to permit or suffer any such liquor to be consumed on his 
 premises by a drunken person is also a separate offence. 
 
 (u) As to illegal consumption of liquor see secc 60, 61, 77, and notes thereto, 
 and as to proof of consumption see sec. 109. 
 
 Any servant, wife, or manager of the house will not be liable to be convicted 
 for doing the acts here prohibited ; but they may in some oases be convicted 
 under 11 and 12 Vic, o. 43, s. 6 (our Statutes B. S. G., o. 146, s. 8) as aiders 
 and abettors : Wilson v. Stuart, 3 6. & S., 913 ; and their acts will render the 
 licensed person liable, unless there is strong evidence that the latter gave 
 express orders to the contrary, and did what he could to enforce his orders. 
 
 The Courts will hold this to be one of the cases excepted from the general 
 rule, and that the master is responsible for the act of his servant or manager ; 
 if it be held otherwise, the Statute may be very easily ovaded. It may be rea- 
 sonably assumed * hat the law requires some rei'ponsible person to be always on 
 such premfaes, p.ud in charge of them, who represents the master in the con- 
 duct of t'ae house ; and though a master is not usually responsible for the 
 crimes of his servant, this may well be deemed an exception : Bosley v. Oavies, 
 1 Q. B. D., 84 ; Bedgate v. Haynes, 1 Q. B. D., 89 ; Somerset v. Hart, 12 
 Q. B. D., 360. There must be some one on licensed premises to conduct the 
 house, and the master must in that view be the person liable for acts done 
 knowingly by the servant or manager in contravention of these enactments. 
 See Barnes v. Akroyd, L. B. 7 Q. B. 474 ; Gox v. James, L. B. 7 Q. B. 136 ; 
 Searle v. Beynolds, 14 L. T. N. S., 618 ; B. v. Hanley, 9 L. T. N. S., 827. It 
 is absolutely necessary that there should be some evidence of knowledge on the 
 part of the master or servant : Harrison v. Leaper, 6 L. T. N. S., 640 ; see also 
 Paterson's L. A., 17-26. 
 
 In an action brought for the illegal arrest of a guest at an inn under a war- 
 rant issued on an information laid by one B., charging the person who kept the 
 inn with keeping a disorderly house, it was held that B., the informant, not 
 being in any way connected with the arrest of the plaintiff was not liable : Oleland 
 V. Robinson, 11 0. P., 416. 
 
 (v) " Persons of notoriously bad character." " Every one at common law ia 
 entitled to keep a public inn, but if he sells ale, wine, or spirits, he comes within 
 the licensing Statutes, and may be ipdicted and fined as guilty of a public 
 nuisance, if he usually harbour thieves, or suffer freqtfent disorders in his 
 house, or take exorbitant prices, or refuse to receive a traveller as a guest into 
 
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 178 
 
 THE LIQUOR LICENSE ACT. 
 
 Is. 73- 
 
 ■/. !: 
 
 ' ii'iii I 1 
 
 « 
 
 mi I t 
 
 his hoQse, or to find him in viotaalB apon the tender of a reasonable price :" 
 BoBooe's Grim., 771. 
 
 The remarks as to the offence of permitting dronkenness are applicable to 
 this offence and to all the offences nnder this section. It is not necessary to 
 prove knowledge on the part of the licensed ])erson or his servant. If persons 
 of notoriously bad character are permitted or suffered to assemble and meet 
 on his premises, he is liable. As in the caso of a dmnken person he mast take 
 the risk of discovering their character : see cases cited iupra. Where the servant 
 .'f a licensed person supplied liquor to a constable on duty, without the 
 authority of his superior officer, tiie licensee was held liable, although he had 
 no knowledge of the act of his servant : MuUins v. Collins, L. B. 9, Q. B. 292. 
 
 See note (x) to sec. 11, ante, p. 17, and note (y), p. 18, ante, as to " bad or 
 good character." 
 
 It has been held that prostitutes are entitled, like other people, to refreshment, 
 and that it cannot be reasonably implied from the fact of the licensed person 
 supplying them with refreshment, that he permits them to auemble in an 
 unlawful manner : see Grey v. Bendino, 87 L. J. M. 0., 291 ; Purkiss v. 
 Huxtable, 1 E. & E., 780; Whitfield v. Bain>;ndge, 80 J. P., 808 ; 4 Mew's 
 Dig., 1109; Parker v. Green, 2 B. & S., 299 ; Belasco v. Hannant, 8 B. & S., 
 18 ; Cole v. Coulton, 2 E. <& E., 695 ; cited Paterson's L. A., 20. 
 
 The question as to whether such characters are allowed to remain longer than 
 necbjsary for reasonable refreshment, is partly a matter of arithmetic, the 
 nature of the meal or refreshment being generally the best i_.iterial for showing 
 whether they remained longer than was necessary for its consumption: 
 Paterson's L. A., 19, 20. 
 
 It is not essential that prostitutes who " meet" should be the same persons. 
 It is enough that persons of their class frequently came to the house, and that 
 one is there though for the first time, if known as td character: lb. 
 
 The licensee allowed a meeting to be held at hi? house for the purpose of 
 getting up a subscription in aid of the wife and children of a man charged with 
 a orimintd offence, or for procuring means for hi a defence. At the meetini; 
 were several thieves, or reputed thieves. Held thit the licensee was guilty of 
 an offence within the meaning of the section : Siarshall v. Fox. Ti. B. 6, Q. B. 
 870. 
 
 The question as to what is an unlawful game under the English Gaming 
 Act, 8 and 9 Vic, c. 109, and the Betting Houses Act, 17 and 18 Vic, o. 38, 
 was disounsed in Jenks v. Turpin, 18 Q. B. D., 605, where the game of 
 baccarat, as played, was held to be more a game of chance than of skill, and 
 illegal. In B. v. Bogier, 1 B. & C, 272, the Court said if the gaming tended to 
 injure public morals it was illegal and indictable. And the keeping of a common 
 gaming house was said to be illegal at common law : B. v. Bice, L. B. 1, G. G. B. 
 21. But mere excessive gaming not in a common gaming house is not nnlawfal. 
 Hawkins, J., eaid *' that the result of the Statutes now is that some games are 
 expressly declared to be absolutely forbidden, and to the gaming at which a 
 penalty is attached. Such are ace of hearts, faro, basset and hazard, passage 
 and every other game with a die or dice, except backgammon and roulette, (rolj- 
 poly), and any other mere game of chance. The other games are unlawfoi 
 when played in common gaming bouses. Thus bowling, coyting, cloyst, oayles, 
 half bowl, tennis, dicing table, or carding were unlawful till 1845, after which 
 games of mere skill were said not to be illegal." Therefore, that the Betting 
 Houses Act, 17 and 18 Vic, c. 88, treats only of games of chance, or of games 
 of chance and skill combined, as illegal. 
 
 " To game " is to play at any game, whether of skill or chance, for money or 
 money's worth ; and the act is not less gaming because the game played is not 
 in itself unlawful : B. v. Ashton, 1 E. & B. , 286 ; Patten v. Bhymer, 3 
 
Is. 73- 
 
 s. 73J 
 
 THE LIQUOR LICENSE ACT. 
 
 179 
 
 )le price :" 
 
 iplioable to 
 eoesaary to 
 If peraons 
 J and meet 
 > maBt take 
 the Bervant 
 rithout the 
 ingh he had 
 , Q. B. 292. 
 
 to " bad or 
 
 refreahment, 
 naed person 
 temble in an 
 ; PorkiBB V. 
 ); 4 Mew'B 
 t, 8 B. & S., 
 
 I longer than 
 ithmetio, the 
 ,1 for BhowinR 
 onBumption : 
 
 lame persons. 
 )UBe, and that 
 b. 
 
 e purpose ot 
 charged with 
 , the meetinR 
 vtAB guilty of 
 T.. R. 6, Q. B. 
 
 igliah Gaming 
 Vio., 0. 38, 
 the game of 
 of akill, and 
 aing tended to 
 ff of a common 
 B.1,C.0.R. 
 _ not unlawful, 
 ome games are 
 ag at which a 
 azard, passage 
 roulette, (roly- 
 are unlawinl 
 oloyst, cayles, 
 45, after which 
 at the Betting 
 >e, or of games 
 
 , for money 01 
 
 i played ia not 
 
 V. Rhymer, 3 
 
 E. & E., 1 ; Parsons v. Alexander, 6 E. & B., 263 ; Bew v, Haraton, & 
 Q. B. D., 464 : Dyaon v. Mason, 22 Q. B. D., 861. But in view of the '* aerious 
 doubtB " expreaaed by Cookbam, 0. J., in Bew v. Harston, tupra, the clause in 
 the above definition expreaaed in the words " whether of akill or chance," can- 
 not be regarded as absolutely settled by authority: Stroud's Diet., 320. 
 
 The rule is, however, that no game however lawful in itself, if played for 
 money o- money's worth, can be permitted in licensed premises. Thus nine 
 pins or skittles played for beer are unlawful : Danfield v. Taylor. 20 L. T. N. S., 
 483 ; Luff V. Leaper, 86 J. P., 64 ; and an inn-keeper is guilty of " suffering any 
 gaming " if he permits even his private friends to play at cards or other games 
 of chance for money or money's worth, however small the stakes : Foot v. Baker, 
 5 M. <& G., 336 ; Patten v. Rhymer, 8 E. & E., 1. Games of skill, such as 
 '* skittles," *' skittle pool," (a game played on a billiard table), "puff and dart," 
 (a game the object of which is to hit a mark with a dart blown through a tube), 
 cannot be played for money or money's worth : Luff v. Leaper, 36 J. P., 64 ; 
 Dyson v. Mason, 22 Q. B. D., 861 ; Bew v. Harston, 3 Q. B. D., 464. Playing 
 for beer or for a dead rabbit were held in these cases to be playing for '* money 
 or money's worth." ' 
 
 The licensed keeper cannot set up any exemption from this enactment on the 
 ground that the persons playing at the game were his own private friends and 
 not customers: Patten v. Rhymer, 8 E. 3c E., 1 : Hare v. Osborne, 84 
 L. T. N.S., 294 ; Cooper v. Osborne. 85 L. T. N. 8., 8^^7. 
 
 There is no penalty imposed by this Act on persons who may be allowed to 
 game in the house. 
 
 It was held under the English Licensing Acts, that if the game ia played 
 without the knowbdge of the licensed person, no penalty is incurred by him : 
 Avards v. Dance, 26 J. P., 427. But if the conduct of the landlord was such 
 that he leaves the management of the house to a servant, and either he or such 
 serrant dose his eyes to what is going on, the landlord will be guilty of the 
 offence, his £ross negligence or the wilful shutting of his own or his manager's 
 eyes being equivalent to " suffering the gaming to be carried on " : Bosley v. 
 Davies, 1 Q. B. D., 84 ; Redgate v. Haynes, 1 Q. B. D., 89. So when the 
 manager goes to bed and leaves the house under the management of the 
 " boots " during late hours, and gaming goes on, the licensed person may be 
 rightly convicted: Orabtree v. Hole, 48 J. P., 862. But where all that was 
 proved was that the potman saw some gambling and did nothing to prevent it, 
 and the master was in another part of the building and knew nothing whatever 
 about the matter, the Justices refused to convict and the High Court held they 
 were right : Somerset v. Hart, 12 Q. B. D., 860. 
 
 Cards and dice are not in themselves unlawful : Allport v. Nutt, 1 0. B., 989 ; 
 nor dominoes : R. v. Ashton, 1 0. B., 286. Oockbum, 0. J., in Bew v. Harston, 
 3 Q. B. D., at p. 486, says : *' I am inclined to think ' gaming' implies some- 
 thing which in its nature depends on chance, or in which chance is an element." 
 Bat t'\e authorities are all against this view, and when billiards or any games 
 are played for money, or money's worth, as shown above, the play oomap under 
 the description of gaming. 
 
 In the United States "gambling" also includes playing billiards for beer, 
 oysters or cigars : State v. Bishel, 89 Iowa, 42. A horse race is a " gambling 
 device:" Joseph v. Miller, 1 New Mex., 621. The Court said: "The word 
 'gambling' is a word of very general application, and is not restricted to wager- 
 ing upon any particular game of chance. In the adjudicated oases on this 
 subject we find that Judges have often applied this word indiscriminately to 
 wagering of all kinds." But in England a trotting match at £25 sterling a side 
 along a turnpike road was not held an illegal race : Ghalland v. Bray, 1 Dowl., 
 N.8. 783. So was a steeplechase: Evans v, Pratt, 4 Scott, N. R. 378. A 
 horse race for |60 or npwwrdB, it acooiding to the Statute, is a legal race : 
 
 
 ■i V 
 
 
i8o 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 73- 
 
 Iteiit's:-'' I 
 
 
 Benti]iok(Lord)v.Connop,6Q.B.,698; eeealsoFnltonz'. JameB.S C.P., 182. Alot- 
 teryiB an illegal game: Glark v. Donnelly, T.T.,6and 6 Vio. ; Oronyn v. Widder, IG 
 U. 0. A., 866. A sale of land by lottery is illegal : Marshall v. Piatt, 8 0. P. , 
 189 ; Bee alBO Oronyn v. OriffiUiB, 18 U. 0. B., 896 ; Power v. Oanniff, 18 
 U. 0. B., 408 ; Loyd v. Olark, 11 0. P., 248; Mewbtim v. Street, 21 U. 0. B., 
 806, 498 ; Goodeve v. MannerB, 6 Orant, 114. A game of hazard Ib an unlaw- 
 ful game whether played in private or at a public gaming table : MoKinnell v. 
 BobiuBon, 8 M. <& W., 484. See Pearoe v. Brooks, L. B. 1, Ex. 218 ; Bagot v. 
 Amott, 2 Ir., 0. L. 1. A oook fight is an illegal game : Squires v. Whiskera, 
 8 Camp., 140. But see Martin v. Hewson, 10 Ex., 787. Billiards in itself ia 
 not an unlawful game : Parsons v. Alexander, 1 Jur., N. 8. 660. Sweepstakes 
 on a horse race is illegal : Qatty v. Field, 9 Q. B., 481. A lottery upon a horae 
 race, it is submitted, is also illegal : Allport v. Nntt, 1 0. B., 974. Any lottery 
 is illegal : Taylor v. Smetten, 11 Q. B. D., 209. A deed of land made in pur- 
 suance of a lottery is void : Fisher v. Bridges, 8 E. <b B., 642. A foot race ia, 
 nnder our law, legal and valid : Emery v. Biohards, 14 M. & W., 728. But it 
 is illegal in England, Diggle v. Higgs, 2 Ex. D., 422. 
 
 In Eennon v. King, 2 Montana, 487, it was ruled that it was a question for 
 the Court and not for the jury to deoide whether the game of cards called poker 
 is generally a game of chance. A horse race is a game of chance when the 
 betting on it is made through an instrument called a " Pari Mutnel : " Tollett 
 V. Thomas, L. B. 6, Q. B. 614. Back-gammon as usually played is not a game 
 of chance : Wemmer v. State, 66 Ala., 198. Playing billiards when the loaer 
 pays is a game of chance : State v. Book, 41 Iowa, 66, and other cases cited in 
 Browne, 146. Betting on a horse race is " gaming : " Oarson v. McGreggor, 
 67 m., 478. 
 
 Playing cards for amusement without any stakes or bets is not gaming : 
 Ansley v. State, 86 Ark., 67. Betting on an election was held in the U. S. not 
 gaming : State v. Henderson, 47 Ind., 127. 
 
 " Tb.1 word * gaming ' has been held to extend to physical contests, whether 
 of mau or beast, when practised for the purpose of deciding wagers, or for the 
 purpose of diversion, as well as to games of hazard or skill, by means of instra* 
 ments or devices :" Boughner v. lieyet, 6 Oolo., 71 ; and in Ansley v. State, 
 supra, the Court said " Bouvier defines gaming to be a contract between two 
 or more persons, by which they agree to play by certain rules at cards, dice, or 
 other contrivances, and that one shall be the loser and the other the winner." 
 Bishop says : " And even the word gaming, without the pre^x unlawful, seems 
 usually to imply something of an unlawful nature, by betting on the sport ; 
 being indeed ordinarily an ingredlment in its signification ; or a game of an evil 
 or immoral tendency." And bo in England the Court held that ** the proviaions 
 of the Licensing Acts were not infrinf^ed by allowing dominoes to be played 
 there. But if money or money's worth is staked upon the game the publican 
 may be lawfully convicted." 
 
 " Oaming " and " gambling " were held in the U. S. not to be synonymons 
 terms, and a charge of keeping a room for " gambling " alleges no offence under 
 a Statute against keeping a room for *' gaming :" State v. Bullion, 42 Tex., 77. 
 
 B. S. 0. 0. 169, prohibits the sale of " any lot, card or ticket, or other means 
 or device for sell^g or otherwise disposing of any property, real or personal, 
 by lots, tickets, or any mode of chance whatsoever." 
 
 The defendant placed in his shop window a globular glass jar, securely sealed,, 
 containing a number of buttons of different sizes. He offered to the person 
 who should guess the number nearest to the number of buttons in the jar, a 
 pony and cart, which he exhibited in his window, stipulating that the successfnl 
 one should buy a certain amount of goods : Held, that as the approximation of 
 the number of buttons depended upon the ezeroise of judgment, observation, 
 
S. 73.] THE LIQUOR LICENSE ACT. |ft| 
 
 any gambling or any unlawful game (w) to be carried on (x) 
 
 and mental effort, this was not a " mode 0! ohanoe for the disposal of property " 
 within the meaning of the Act: B. v. Jamieson, 7 0. B., 149; B. v, Dodds, 4 
 0. B., 890. ▲ similar case was decided in' the same way. But in another 
 case the complainant went to defendant's plaoe of hosiness, and being told 
 by defendant that in certain spaces on two shelves there were in cans of tea a 
 gold watch, a diamond ring, or 920 in money, he paid $1 and received a can 
 of tea which, containing an article of small valae, he handed the can back, paid 
 an additional 60 cents and received another can, which also contained an 
 article of small valno. He handed this can back and paid another 60 cents 
 and seoared another can, which also contained an article of small value. He 
 then refused to pay ly more money, and went away taking the third can and 
 the article in it with nim. On a complaint laid by him before the P. M., the 
 defendant was convicted in that he unlawfolly did sell certain packages of tea, 
 being the means of disposing of a gold watch, a diamond ring, 920 in money, 
 by mode of chance against the form of the Statute, etc. Held, that the con- 
 viction was right, and also that the " Summary Convictions Act " applied to 
 cure any defect in the form of conviction : B. v. Freeman, 18 0. B., 624. 
 
 The Ontario cases on the subject of illegal gaming or gambling will be found 
 at pages 1620-1624 and 4606 of B. & J's Digest; Ont. Digest, 1884, 808-310 ; 
 Ont. Digest, 1887, 296 ; and for a further reference to the English oases see 
 3 Mews Digest, 1921, 1946-1976. See also Sinclair's Oon. D. G. Act, 1888, 
 63-68. Stroud's Diet., 820. Browne on the Judicial Interpretation of Words, 
 etc., 142-149. 
 
 (to) " Unlawful gaming houses." ** A common gaming house is any house, 
 room or place kept or used for the purpose of unlawful gaming therein by any 
 considerable number of persons. 
 
 Gaming means playing at games either of ohanoe, or of mixed chance and skill. 
 
 Unlawful gaming means gaming carried on in cnoh a manner, or for such 
 a length of time, or for such stakes, (regard being had to the circumstances of 
 the players), that it is likely to be injurions to the morals of those who game. 
 
 All gaming is unlawful in which (1) a bank is kept by one or more of the 
 players, exclusively of the others ; or (2) in which any game is played, the 
 chances of which are not alike favorable to all the players including among the 
 players, the banker or other person by whom the game is managed, or against 
 whom the other players stake, play or bet :" Burbidge's Grim. Dig., 176. 
 
 The following circumstances are evidence (until the contrary is proved) that 
 a honee, room or place is a common gaming house, and that the persons found 
 therein were unlawfully playing therein : — 
 
 (1) Where any cards, dice, balls, counters, tables, or other instruments of 
 gaming used in playing any unlawful game are found in any house, room or 
 place suspected to be used as a common gaming house, and entered under 
 warrant or order issued under The Bevised Statutes, c. 168, or about the person 
 of any of those found therein. (2) Where any constable or officer, authorized 
 as aforesaid to enter any house, room or place, is wilfully prevented, or 
 obstructed, or delayed in entering the same or any part thereof, or where any 
 extArnal or internal door or means of access to any such house, room or place so 
 authorized to be entered is found to be fitted with any bolt, bar, chain, or any means 
 or contrivance for the purpose of ddaying, preventing, or obstructing the entry 
 into the same or any part thereof of any constable or officer authorized as 
 aforesaid, or for giving alarm in case of such entry ; or (8) if any such house, 
 room or place is found fitted or provided with any means or contrivance for 
 nnlawful gaming, or for concealing, removing or .destroying any instrument of 
 gaming : Burbidge's Grim. Dig., 174-176. B. S. 0. 0. 168, s. 4 ; 8 & 9 Vic. 0. 
 
 i 
 
l82 
 
 THE ;.IQUOR LICENSE ACT. 
 
 Iss. 73. 74- 
 
 iVi i 
 
 ^vfl.h 
 
 i m} 
 
 fm 
 
 ll'iff ' 
 
 'mZ' 
 
 Penalty 
 for inter- 
 nal oom- 
 
 on his premises, (y) he shall be liable (z) to a penalty of 
 not less than $io and not exceeding $50 (a). 47 V., c. 
 34. s. 28. 
 
 V 4kt Every person (^) who makes or uses, or allows to 
 be made or used, (c) any internal communication (d) 
 
 109, 8. 8 ; B. S. 0. 0. 158, B. 8 ; 17 «ft 18 Vio. 0. 28, ■. 3 ; games of ohanoe or of 
 chance and skill combined, are illegal. See Barbidge's Dig., 175, cited ante. 
 
 (x) " To be carried on." See note (w), p. 76. 
 
 (y) " On his premises." See notes, pp. 6, 24, 45, 78, ante. 
 
 it) •• Shall be liable." See notes to sec. 70. 
 
 (a) " Not less than 910 and not exceeding $20." The penalty is a minimnm 
 fine of 910 and a maximum fine of $20. As to the recovery of the penalty see 
 sec. 88 and notes thereto. 
 
 See also sec. 79 and notes thereto. 
 
 (b) " Every person." See note (t) to sec. 58, p. 185. 
 
 A penalty on " every person " concerned in an offence may be recovered for 
 the same offp^.ce against each person therein concerned : B. v. Dean, 12 
 M. & w., e:. 
 
 In this section '* every person " indadei the licensed person as well as the 
 nnlioensed person who makes or uses any internal commanioation, and both 
 are therefore liable to the penalty. See Paterson'a L. A., 18. 
 
 (c) " Allows to be made or ased." The word " allow " is defined thns : " To 
 snffer; to tolerate." The word "tolerate" is defined thus: "To allow so as 
 not to hinder ; to permit as something not wholly approved ; to snffer ; to 
 endure; to^ admit. Every definition of "suffer" and "permit" includes 
 knowledge of what is dotie nnder the sufferance and permission, and intention 
 that what is donr is to be done, and it was held that " knowledge" would not 
 strengthen the implication : Gregory v. U. S., 17, Blatchf. 828, cited in Browne's 
 Judicial Interpretation of Words, etc., 811. Sew note (p) and note (j), p. 114, 
 ante, to sec. 73 ; "permit." 
 
 In Doty V. Lawson, 14 F. B., 901 (1888), " allow," in its ordinary sense, was 
 defined as " to grant, admit, afford, or to yield, to grant license to, permit. It 
 implies a power to grant some privilege or permission." 
 
 (d) "Any internal communication " means any door or opening in the wall 
 in the interior of the licensed premises which will afford means of communica- 
 tion between one building and another, or between that part of a building 
 which is licensed and another. " Oommunication " is defined thus ; (1) " The 
 act of communicating or imparting ; (2) Oonference ; conversation ; intercourse ; 
 (3) Passage from one thing to another : " Worcester, 276. There, seems no 
 reason why the commune \tion should necessarily be large enough to allow 
 persons to pass through in order to constitute an offence. 
 
 (/) " Public entertainment." See note (b) to sec. 42a, p. 97. 
 
 The kind of place meant here may be one in which amusement and gratifica- 
 tion of some kind, as well as food and drink, is furnished. By the 28 Vic, c. 
 27, s 6 (Imp.), a refreshment house requiring a license is a building " kept open 
 for public refreshment, resort and entertainment." " Entertainment," as there 
 used means " not diversion or amusement, but the provision of food, drink, 
 and whatever else might be reasonably required for the personal comfort of 
 guests," e. g. , cigars, coffee, ginger beer, or lemonade, the provision of which 
 does not cease to be " entertainment " because no seats are provided for their 
 more comfortable consumption : see Taylor v. Oram, 1 H. & 0., 870 ; Muir v. 
 Keay, L. B. 10, Q. B. 694 ; Howes v. Inl. Bey., 1 Ex. D., 886. 
 
 i 
 
sense, vras 
 
 ss. 74, 7S-J 
 
 THE LIQUOR LICENSE ACT. 
 
 183 
 
 between any licensed premises and any unlicensed premises 
 which are used for public entertainments (/) or resort, or 
 as a refreshment house, [or between any licensed shop and 
 any store, shop, place or premises where groceries or other 
 merchandise are sold], (g) shall be liable (A) to a penalty 
 of not less than $10 and not exceeding $50 for every day 
 during which such communication remains open. (/) 
 47 v., c. 34, s. 29, amended by 52 Vic, c. 41, s. 6. 
 
 VAt Where the council (y) of any city, town, village 
 or township ('•) has by by-law (/) required licensed shop- 
 keepers to confine the business of their shops so licensed 
 solely and exclusively (m) to the keeping and selling of 
 
 manloa> 
 tioni with 
 unlloen- 
 ■ed pretu- 
 
 IMS. 
 
 Penalty 
 for aUow- 
 iDR inter- 
 nal com- 
 munioa- 
 tlou with 
 premises 
 
 In other oMes it was held thftt the word meant " amasement and gratification 
 of some sort other than food, meat and drink :" per Pollock, 0. B., Taylor v. 
 Oram, lupra ; Terrj v. Brighton Aqaarinm Go., L. B. 10, Q. B. 806 ; Warner 
 V. Brighton Aqaarinm Go., L. B. 10, Ex. 291. Bat a place of public worship, 
 where no masic bat sacred is performed or sang, where nothing dramatic is 
 introdaoed, where discoarses delivered are intended to be instraotive and contain 
 nothing hostile to religion, where the object of the promoters may be either to 
 advance their own views of religion or to make science the handmaid of religion, 
 is not used for pablio entertainment, etc.: Baxter v. Langley, L. B. 4, 0. P. 21. 
 See 8*>road's Diet., 248. 
 
 In England a hoase " kept open for pablic refreshment, resort and enter- 
 tainment, between 10 p. m. and 6 a. m., is required to be licensed : 24 & 26 
 Vic. c. 91, 8. 8 (Imp.), and each a hoase is called a " Befreshment house." 
 
 (g) The words in brackets were inserted by 52 Vic, 0. 41, s. 6. 
 
 See notes to sec. 82, ante p. 67, and notes to see. 83, ante, pp. 69-71. 
 
 " Shall be liable," i, e., on conviction. See note (p) to sec. il, p. 28, ante. 
 
 (h) The minimum penalty is 9^0, and the maximum 950, for every day dur- 
 ing which the communication remains open. The day begins as soon as the 
 olook strikes 12 p. m. of the preceding day : Williams v. Nash, 28 Beav., 93. 
 
 (») This section does not interfere with the natural right of any licensed 
 person to enlarge his premises by adding other premises, so long as both are 
 used as one house. 
 
 {j) •< The Oouncil." See Mun. Act, B. 8. 0. c. 184. 
 
 (k) " Oity, town, village or township." See note {j), see. 9, ss. 6. 
 
 (I) " Has by by-law." See sees. 20, 82 and 42 and notes thereto. 
 
 (m) " Solely and exclusively of keeping and selling of liquor," refers to the 
 power granted by sec. 82. & se notes to that sec. 
 
 " Any person." See note {g) <o sec. 11 , sa. 11, p. 28. Notethe distinction between 
 the words " any person " here and " every person " as used in the last section. 
 Where two were convicted under a Statute which enacts that if " any person " 
 shall trespass in the day time on land in search of game, " such person " shall 
 be liable to a penalty of two pounds, it was held that every offender is liable to 
 a separate penalty: ^layhew v. Wardley, 14 G. B. N. S., 550; Maxwell on 
 Stats., 176, 179. See note (6) to sec. 74. The language used in the first 
 part of this section is nearly the same in effect as that need in the last section 
 since its amendment. 
 
 
 
 * 
 

 I'! 
 
 : 
 
 ^ 
 
 I: 
 
 111 
 
 
 
 .■lis |i i 
 
 pp-:rtf 
 
 184 
 
 THE LIQUOR LICENSE ACl'. 
 
 [»• 75^ 
 
 liquor, any person who makes or uses or allows to be made |jj)^^'°^ 
 or used, any internal communication between any such J^j*""'" 
 licensed premises and any shop or premises in which other 
 goods are sold, shall be liable to a penalty upon conviction 
 for the first offence of not less than $20 and not exceeding 
 $50 for every day, or part of a day, upon which such com- 
 munication remains open, and in default of payment thereof, 
 shall be imprisoned (n) in the county gaol of the county in 
 which the offence was committed, for a period of not less 
 than one month, to be kept at hard labour in the discre- 
 tion of the convicting Justice, and for a second offence (o) 
 upon conviction thereof his license shall, ipsofacto^ become 
 forfeited and void (/>). 49 V. c. 39, s. 18. 
 
 There is a difference, however, in the penalty. By this aeotion a penalty of 
 not leBB than 920 and not more than 960 for every day or part of a day npon 
 which such oommonioation remains open, and in defaolt of payment imprison- 
 ment is imposed. And the additional paniihment of forfeiture of the lioense 
 ensnea upon conviotion for a second offence. 
 
 (n) "Imprisoned." As to imprisonment with or without hard labor, see 
 notes to sec. 70. 
 
 (0) " Not less than one month." The minimum period of imprisonment to 
 be imposed is one month. There is no maximum fixed, but in such case it 
 should not be for such a period as would be considered excessive. See B. v. 
 Smith, 16 O. It., 464, in which it was held that " not less than 950 " meant 
 $60 and no less, and *' not less than 9100 " was intended to mean 9100 and no 
 less. In that case the Statute provided that any person violating the Act should 
 be liable on conviction to a penalty of " not less than 960 for the first offence, 
 and not less than $100 for the second offence." Obief Justice Armour in 
 delivering the judgment of the Court said: "In putting a construction upon 
 them (t. «., ' not less than 950 ' and ' not less than 9100 ') we must bear steadily 
 in mind the nature of the offences that are to be tried ; that they are not maU 
 in te, but merely mala prohibita ; the judicial character and position of the 
 functionaries that are to try them, too often partisans appointed solely for the 
 purpose of enforcing this Act (The Canada Temperance Act) ; the fact that 
 certiorari is taken away, and that appeal islimitedtothecasewhere the conviotion 
 has been had before two Justices." Under these circumstances the Court 
 would not impute to the Legislature the intention of giving these functionaries 
 power to impose penalties to any amount, and it was held that $50 was the 
 maximum penalty which could be inflicted ^for a first offence, and 9100 the 
 maximum for a second offence. 
 
 As to second offence see notes to sec. 70. 
 
 (p) As to forfeiture of license see notes to sec. 71 ; and see also note (0), p. 
 28, and note (m), p. 80. 
 
 A by-law enacting that it should be unlawful to have any means of common 
 ieation between a room in which a billiard or bagatelle table was kept and any 
 place where liquors might be sold, held valid : Re Neilly and The Town of 
 Owen Sound, 87 U, C. B., 289. It was held that a by-law limiting the number 
 of shop licenses to one and directing the holder to confine the business solely 
 and exclusively to the keeping and selling of liquor, was bad as being in 
 effect prohibitory and creating a monoply on the authority of re Barclay and 
 
76.J 
 
 THE LIQUOR LICENSE ACT. 
 
 185 
 
 y H* Any licensed person (^) who allows {r) to he sup- J|,""^ii*!„. 
 [)lied (s) in his licensed premises (/), by purchase or other- }f « „ ^ 
 wise («)» any description whatever of liquor {v) to any ^fj'JiJi 
 person apparently under the age of [eighteen] years (7t/), of 
 
 The TownBhip of Darlingtou. 13 U. C. K, 86 ; Qreystook and The Munioipality 
 of Otonabee, 76., 468; and Terry v. The Monloipality of Haldimand, 15 
 U. 0. B.. 880. Bat a by-law providing that "every penon reoeiviuK a shop 
 license ahall confine the basineu of his ihop Bolely and exolasively to the keep- 
 iug and selling of liquor, is not ultra vire$ and in restraint of trade ; Croome 
 and the City of Brantford, 6 0. B. 188. 
 
 (g) " Any licensed person." See see. 88, notes (m) and (0), p. 71. 
 
 The section is restricted to persons licensed nnder this Act, the sale by any 
 other person would be in contravention of sec. 49. 
 
 (r) "Who allows." See note {p) to sec. 78 "permits," and note (0) to aeo. 
 74 " allows." 
 
 But see Commonwealth v. Briant, 84 Alb., L. J., 439. cited in note (d), infra. 
 
 («) <'To be snpplied." To "supply" means "to furnish, give, provide." 
 U is generally used in the sense of "to furnish," as "goods to be supplied." 
 See Hoad v. Grace, 7 H. d; N., 494, and also as to " provide, furnish, supply 
 goods, <&c. :" see Davies v. Harvey, L. B., 9 Q. B., 488. 
 
 (t) " In his licensed premises." See note (9) to sec. 64. The prohibition is 
 absolute ; the sale to minors is forbidden by this section "in his Uoensed 
 premises." and a sale elsewhere would be an offence against sec. 49 : B. v. Pal- 
 mer, 46 U. 0. B., 262. 
 
 (u) " By purchase or otherwise." As to the meaning of terms " purchase," 
 " Btde " and like expressions, see notes on pages 6, 29, 120, 126, and 139, and 
 as to effect of the term " otherwise," see Stroud's Diet., 648. 
 
 (v) " Any description whatever of liquor." It has been said that the term 
 " liquor " means " intoxicating liquor." See note (<) to sec. 61, p. 116, and by sec. 
 2, 8S. 1, " liquors " or " liquor " " shall include all spirituous and malt liquors and 
 all combinations of liquors and drinks, and drinkable liquids which are intoxi- 
 cating." We have also seen that " any " is a word which excludes limitation or 
 qualification : per Fry, L. >J., Duck v. Bates, 12 Q. B. D., 79, as cited in Stroud's 
 Diet., 39 ; and that its signification is "as wide as possible :" per Ohitty, J., 
 Beckett v. Sutton, 61 L. J., Oh., 488. A remarkable instance of this wide 
 generality is furnished in re Farquhar, 4 Notes of Ecc. Cases, 651, cited in 
 Williams on Executors, 119, 120, wnerein the words "any soldier" were con- 
 Btmed as including minors, so that soldiers and seamen, within s. 11, 1 Yic, 
 e. 26, can make Nuncupative Wills though nnder age : Stroud's Diet., 89. The 
 phrase " any description whatever " used here, is one which may be given as 
 extensive a meaning as possible, and although the generality of such terms may 
 be restricted by the subject matter, or the context : (see Ex parte Bagster, 24 
 Ch. D., 477 ; Irwell v. Eden, 18 Q. B. D., 688 ; Tobacco Pipe Makers v. Wood- 
 roffe, 7 B. d; C. 888 ; and other cases cited in Stroud's Diet., 89 ; see also 
 Maxwell on Stats., 65, 61, 66, 68, 71, 76, 106, 162, 160, 164, 176, 179J. Its 
 widest and most elastic signification should be allowed to prevail in a case of 
 this kind, and it should at least include all kinds of liquor which contain any 
 trace of alcohol. 
 
 (w) The expression, "to any person apparently under the age of eighteen 
 years," " leaves it to the discretion of the Justices to find that fact, and in 
 aniving at their conclusion they may be guided by the opinion of witnesses, as 
 veil as their own judgment, though their own view will be sufficient. But if 
 at the hearing it be proved that the person is above eighteen then the Justices 
 
 « ,n| 
 
 li 
 
 

 \'i 
 
 f f 
 
 I ■ 
 
 
 
 
 
 1, 
 
 >, 
 
 
 ■' i 1 , 
 
 1 
 
 ! t 
 
 1 
 
 j' 
 
 ' 
 
 
 
 i 
 
 
 1: 
 f 
 
 
 !;:# 1. i 
 
 Mil!*...,, 
 
 I 
 
 I'M. Mv 
 
 i *;; 
 
 ill'. ;^^ ' 
 
 lit 'ilk:; : r 
 
 1 86 
 
 / 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 76. 1 s. 76.] 
 
 either sex {x), not being resident on the premises or a dona J?p°^^t 
 fide guest or lodger (y), shall, as well as the person who Jjj^^ofig 
 actually gives or supplies the liquor (z), be liable to pay a pen- 
 alty of not less than $10 and not exceeding $20 for every 
 such offence. 47 V., c. 34, s. 30, amended by 53 V., c. 56, 
 s. 8. 
 
 [(2) Any licensed person who allows to be supplied in supply 
 his licensed premises (a), by sale or otherwise (d), any to^minors 
 description whatever of liquor to any person under the age Sottce. 
 of twenty-one years (c) (hereinafter called the minor) in 
 
 will not be justified in oonvioting, althoagh snoh a ground woald not be suffi 
 oient for quashing a oonviotion after it had been made on the best judgment 
 the JuBtioes oould arrive at for the time being : " Faterson's L. A., 11. 
 
 The words " eighteen years " were inserted by 63 Vic., c. 66, s. 8, in lieu 
 of *' sixteen years," the age specified in the clause as originally framed. 
 
 («) " Of either sex." The words *' any person " would be sufBcient to iucludej 
 both male and female, but the Legislature appears to have determined that 
 what is meant by this expression should not be left to implication. 
 
 (y) " Not being resident on the premises as a bona fide guest or lodger." As 
 to when a person may be considered a bona fide guest or lodger, see note (n) to 
 sec. 60, note (u) to sec. 68, and notes to sec. 72 ; and as to the meaning of 
 " resident," see note {k) to sec. 11, ss. 11, p. 29. 
 
 (t) " Shall," etc., refers to the person licensed. He is responsible, whether 
 the liquor he supplied by himself or his servant. The notes to sec. 73 
 apply to this section ; but the liability of the licensee is not left to implication 
 here. He, as well as the person who actually gives or supplies the liquor, 
 liable to tbe penalty imposed. The penalty in this case must not be under 110 
 and not more than 920. 
 
 (a) This sub-section is added by 63 Vic, 0. 66, s. 8. It applies, as in case oi 
 the last sub-section, to licensed perwns ozily. See note (g), supra. 
 
 {b) " By sale or otherwise." The words used on the last sub.seo. are "pur. 
 chase or otherwise." The terms are here used interchangeably. See note (*| 
 referred to in note (u), lupra. 
 
 (e) A person under the age of twenty-one years is an infant, whose contract^ 
 are void or voidable. In criminal matters, a person of the age of fourteen ma; 
 be capitally punished for any capital o£Fenoe, but under the age of seven lie 
 cannot. The period between seven and fourteen is subject to much unoertaintj | 
 . the rule applicable to it depends on the infant's capacity to discern good froi 
 evil ; if he could, then the maxim is, " malice supplies the want of age," anij 
 he may be convicted and executed. 
 
 A male at twelve yean of age may take fhe oath of allegiance, at fourteen I 
 is at years of discretion, so far at least that he may enter into a bindinj 
 marriage, or consent or disagree to one contracted before, and at twenty-onj 
 he is at his own disposal. At twelve years a female is at yenrs of maturitj 
 and may enter into a binding marriage, or consent or disagree .' ' ne contract 
 before, and at twenty-one may dispose of herself and M her property. Fal 
 age in male or female is twenty -one years, which age is completed on tbe dij 
 preceding the twenty-first anniversary of a person's burth : Wharton, 32. 
 
 respect 
 any su( 
 guardia 
 of such 
 or supp 
 resident 
 shall, as 
 
 id) See 
 notice in 
 
 The noi 
 and occuf 
 
 (2) His 
 
 (3) It si 
 given to s< 
 
 (4) The 
 
 (5) It n 
 master of 
 suggested 
 
 I. A. B., 
 the eate 
 ue) or C. I 
 an infant i 
 of year 
 the date o^ 
 sell or sup 
 the premis 
 therein, an 
 chap. 66, 
 
 Dated al 
 
 To E. P 
 
 licensed 
 Liquor Lii 
 ments thei 
 
 The not 
 |it must be 
 
 {«) " A 
 dation at l 
 Walling V. 
 patronizes 
 at an inn 
 choose to] 
 traveller 
 Jtownsmanl 
 Iwell as he \ 
 of Words, I 
 lor his bea^ 
 liiospitality 
 Itited in nc 
 Q. B. D., 
 
 ,i"'i H 
 
 P'fi ! i 
 
 
 iili '' 
 
 y 
 
y 
 
 ma 
 rho 
 en- 
 ery 
 56, 
 
 in 
 
 [s. 76- 
 
 person 
 apparent- 
 ly under 
 age of 18. 
 
 5. 76.] 
 
 THE LIQUOR LICENSE ACT. 
 
 any 
 
 age 
 
 in 
 
 Supply- 
 ing liqaor 
 to miuurii 
 after 
 notice. 
 
 respect of whom a notice in writing (d) has been given to 
 any such licensed person, signed by the father, mother, 
 guardian or master of such minor, correctly stating the age 
 of such minor, and forbidding such licensed person to sell 
 or supply such minor with liquor, the said minor not being 
 resident on the premises or a bona fide guest or lodger {e\ 
 siiall, as well as the person who actually gives or supplies 
 
 (d) See notes on pages 18 and 81 as to what is generally a anfficient 
 notice in writing. 
 
 The notice ander this section shonld contain (1) the name, place of residence 
 and occupation of the infant, for the purpose of identification. 
 
 (2) His correct age at the time of giving the notice ; and 
 
 (3) It shonld in the terms of the Act forbid the licensed person to whom it is 
 given to sell or supply such minor with liquor. 
 
 (4) The relation of the person giving the notice to such minor. 
 
 (5) It must be signed in person by the father or mother, or the guardian or 
 master of the infant (as tho case may be). The following form of notice is 
 suggested : 
 
 I, A. B., of the City of Hamilton, in the Oonnty of Wentworth, carpenter (or 
 > iht eme may be), the father (or mother or guardian or ma$ter, as the case may 
 ue) of G. D. (name in full), of the same place, laborer, (or at the ease may be) 
 an infant under the age of twenty-one years, and who is at this date of the age 
 of years, months, and days (or who was on the day of last — 
 the date of his last birthday— of the age of years) do hereby forbid you to 
 sell or supply the said 0. D. with liquor, the said 0. D. not being resident on 
 the premises in respect of which yon aro licensed, or a bona fide guest or lodger 
 therein, and this notice is given nnder and in pursuance of the Statute 63 Vic, 
 chap. 66, sec. 8, in that behalf. 
 Dated at Hamilton, the 1st day of May, 1891. 
 
 Yonrs, etc , 
 
 A. B. 
 To E. F. of the said City of Hamilton, a person ) 
 licensed to sell intoxicating liquors nnder the f 
 Liquor License Act, B. S. 0. c. 194, and amend- ( * 
 
 ments thereto. ) 
 
 The notice may be given to any number of licensed persons, bnt in each case 
 whose contract^ it must be signed by the person by whom it is given, personally. 
 
 (e) " A bona fide guest " is one who is away from home receiving accommo- 
 dation at an inn as a traveller, although he may be a townsman and neighbor : 
 Walling V. Potter, 36 Oonn., 183. The Court observed : " A guest is one who 
 
 not be snili- 
 best judgment 
 11. 
 
 3, 8. 8, in lieu 
 ramed. 
 
 cient to include 
 etermined that 
 )n. 
 
 n lodger." As 
 , see note (n) to 
 he meaning of 
 
 insible, whether 
 >tes to sec. 73 
 !t to implication 
 IS the liquor, is 
 lot be under 110 
 
 es, as in case oi 
 ■pra. 
 
 ib.sec. are ••?«• 
 ly. See note (t 
 
 se, at fourteen 
 
 id at twenty-oni 
 rears of maturil 
 ; • ne contracl 
 ir property. Fi 
 )leted on the di] 
 barton, 32. 
 
 of fourteen maj 
 
 age of seven be 
 
 uoh unoeitaintyi 
 
 LBoem good iron patronizes an inn as such. But it is said none but a traveller can be a guest 
 
 rant of age," an at an inn in a legal sense." " A public house of entertainment for all who 
 choose to visit it, is the true definition of an inn." " Webster defines a 
 traveller as one who travels in any way." Distance is not material. " A 
 
 '"intVa* bindi^ '^'^nsnian or neighbor may be a traveller, and therefore a guest at an inn, as 
 
 ' well as he who comes from a distance : " Browne on the Judicial Interpretation 
 
 nof Words, etc., 160. An inn-keeper's " guest " is a traveller, who, by himself 
 or his beast, has been, however temporarily, accepted to, and remains under, 
 hospitality within an inn or its curtilage (see Oalye's case, 1 Smith's L. C, 246, 
 tited in note (n) to sec. 72, at p. 171, ante): Strauss v. Oonnty Hotel Co., 12 
 1Q. B. D., 27 ; see also definition of a " traveller " in notes to see. 19, p. 49, ante. 
 
if 
 
 
 •f I 
 
 ft .1 
 
 
 .Will 
 
 V|ii . 
 
 188 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 76, 77. 
 
 Punish- 
 ment for 
 a'iowing 
 
 the liquor, be liable to pay a penalty of not less than $10 
 and not exceeding $20 besides costs for every such offence 
 (/)•] 53 V. c. 56, s. 8. 
 
 9 9* (i) If any person having a license to sell liquors 
 not to be drunk on the oremises (g), himself takes or carries, 
 
 (/) It mnat be noted that the penalty imposed by this section differs from 
 that imposed by snb-seo. 1, in providing for oosts in addition to the penalty. 
 In other respeots the penalty is the same, $10 being the minimum and 920 tho 
 maximam fine. 
 
 The notes to sub-sec. 1 are appUcable to this sub-sec. 
 
 At one time it was held that a Municipality could not by by-law impose such 
 restrictions as are in this section contained : Barclay and The Township of 
 Darlington, 12 U. 0. B., 86 ; Qreystock and The Municipality of Otonabee, lb., 
 468. But such provision was authorized by the Munioipal Act, 36 Vic, c. 48, 
 8. 379, 88. 31, and was held valid under that enactment iriependently of 37 
 Vic, 0. 32, 0., and that the power was not transferred to the License Com- 
 missioners : Brodie and The Town of Bowmanville, 88 U. 0. B., 680 ; Arkell 
 and The Town of St. Thomas, 16., 694. 
 
 In a case in the United States, the defendant was duly licensed to sell liquors 
 to be drunk on the premises, and was indicted for selling to a minor. It was 
 claimed that the sale was made by the bar-tender without defendant's authority. 
 Held, that there was evidence for the jury to consider, and which might warrant 
 it in finding that the sale was authorized by defendant, but that it was go^'nir 
 too far to hold that it raised a presumption of fact that such was the case 
 The fact that a man employs a servant to conduct a business expressly 
 authorized by Statute, &nd that the servant makes the unlawful sale in the 
 course of it, does not necessarily overcome the presumption of innocence, merely 
 because the business is hquor selling and may be carried beyond the Statute 
 limits : Commonwealth v. Briant, 34 Alb. L. J., 889. 
 
 (g) This section applies only to those persons who are licensed to sell liquors 
 not to be drunk on the premises. See nee. 2, ss. 8 ; sees. 60, 61 and 86, and 
 notes thereto. The intention is to ptuiibh any evasion of the Statute which 
 consists in allowing people to drink liquor on other premises, for the profit of 
 the seller when the license is for the sale of liquor " not to be drunk on the 
 premises." 
 
 This section is the exact counterpart of sec. 6 of the English Licensing Act, 
 1872, 86 and 36 'Vic, c 94. In commenting on that section it was said : " It 
 seems to prevent %e holder of a particular license doing substantially the vp.7 
 thing which his license forbids, for if his customers could drink the liquor iu 
 the immediate neighborhood, the house would be used practically in the same 
 way as if licensed for consumption on the p.^mises :" Paterson's L. A., 10. 
 But it appears to cover more than that. It is very evidently the intention of 
 the legislature to make it impossible for persons holding these limited licenses, 
 either to supply unlicensed places, which they might themselves own or have an 
 interest in, as well as to evade their part of the responsibility by allowing 
 intoxicating liquor, which may be legally sold to be consumed in any place, in 
 which the licensee may be interested, other than thtt to which the license 
 appUes. It does not apply only to neighboring places but to any place, and 
 would include any booth, tent, shed or other place erected or established for 
 the purpose of supplying refreshments at fairs and other public gatherings, at 
 which the illicit sale of liquor is often carried on to a considerable extent. And 
 although the actual settler would be liable in snoh a case, the really responsible 
 party— he who supplies the liquor and reaps the greater portion of the profit— 
 
77-] 
 
 THE LIQUOR LICENSE ACT. 
 
 Dr carries, 
 
 or employs or suffers any other person (A) to take or carry, "e uni^- 
 any liquor out of or from the premises of such licensed '^"y °o°- 
 person for the purpose of being sold on his account or for premises, 
 his benefit or profit, and of being drunk or consumed in 
 any other house, tent, shed or other building of any kind 
 whatever, belonging to such licensed person, or hired, used 
 or occupied by him, or on or in any place whether enclosed 
 or not, and whether or not a public thoroughfare, such 
 liciuor shall be deemed to hav" been consumed by the pur- 
 chaser thereof, on the premiseb of such licensed person, 
 with his privity and consent (i), and such licensed person 
 shall be punished accordingly, in manner provided by this 
 Act(». ..^ 
 
 (2) In any proceeding under this section it shall not be ^oof of 
 necessary to prove that the premises, or place, or places to sufflcient. 
 
 might not so easily be made aoooantable, being protected in some measure by 
 his license. 
 
 Speaking of the place of consnmptiop, Paterson's Lioensing Acts at p. 10, 
 say s : " These words would, prima faeie, include the whole world, and there must 
 of necessity be some implied restriction. The highway must obviously be 
 adjacent to the house or within view of the house, otherwise the sale or con- 
 sumption will be too remote. The 'enclosed place' cannot include the 
 pnrcbaser's own house, or tent, or shed, otherwise the liquor never could in 
 any conceivable place be legally consumed." It is, however, quite evident that 
 the places described in the section include every pltce in which liquor may be 
 consumed. But the foundation of the offence is that the liquor should be taken 
 or carried from the premises of such licensed person (that is, the premises to 
 which the license applies) either by the licensee himsdf or some other person 
 for the purpose of being $old on his account or for his benefit or profit, as well 
 as of being drunk or consumed in any of the places specified, and it is quite 
 within reason that such places shoild include even the whole world. The sale 
 of it without this section would be an offence against section 49, for which the 
 actual seller would be liable, and this section merely extends such liability to 
 the licensed person who supplies the liquor for that purpose under the circum- 
 stances set forth in the context. 
 
 It is no offence where the transaction is a bona fide sale of beer to be con- 
 sumed off the premises, if the purchaser drink it in his own premises adjoining 
 or on the highway or in any other place other than the premises of the licensee : 
 and it was so held in Bath v. White, 8 0. P. D., 175. But in that case Lindley, 
 J., said : " If the evidence had dearly shewn that the appellant was conniving 
 at the drinking on the highway near her premises, the conviction might have 
 been sustained. But there is nothing to shew that she knew what was to be 
 done with the beer." Tbe conviction in that case, however, wus under sec. 5 
 of the English Lioensing Act, 1872, which corresponds with sec. 78 of this Act. 
 
 " On the premises." See notes on pages 78 and 126. 
 
 (/() " Suffers any other person." 3ee note (r) to sec. 76. 
 
 (t) " Tith his privity and consent." " Privity " means participation in 
 interest or knowledge. Privies are those who are partakers, or have an interest 
 u any action or tiling, or any relation to another : Wharton, 888. 
 
1 ! 
 
 
 ■ 1 
 
 .'1 ' 
 
 4 ' i' 
 
 V 
 
 r\A 
 
 1 ■ 
 
 
 f 
 
 '1: 
 
 
 
 
 ,'i , , 
 
 190 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 77, 78. 
 
 Case of 
 purohas- 
 or drink- 
 ing liquor 
 on premi- 
 ses where 
 bcTight, 
 eto. 
 
 which such liquor is taken to be drunk belonged to or were 
 hired, used or occupied by the seller, if proof be given to 
 the satisfaction of the Court hearing the case, that such 
 liquor was taken to be consumed thereon or therein with 
 intent to evade the conditions of his license (^). 47 V. c. 
 34, s. 31. . 
 
 3f8, (i) If any purchaser (/) of any liquor from a 
 person who is not licensed to sell the same to be drunk on 
 the premises, (w) drinks, or causes or permits any other 
 person to drink iuch liquor on the premises where the same 
 is sold, («) the seller of such liquor shall, (o) if it appears (/) 
 
 ij) " Shall be paniehed aooordingly in manner provided by this Act " means 
 that the penalties inoarred are those provided for permitting liquor to be con- 
 samed on the premises. See sec. 78. 
 
 As to proof of oonsnmption, see seo. 109. 
 
 (k) Under this snb-seotion the only proof necessary to establish that tie 
 place or places to <vhich the liquor was taken to be drunk belonged to, or were 
 hired, used or occupied by the seller, is that the liquor was taken to be con- 
 sumed thereon or kherein with intent to evade the law, that is, that it was the 
 intention of the seller, as well as the person to whom it was furnished, that it 
 should be sold and consumed in the manner specified in sub-sec. 1. 
 
 "The intent must mean the intent of the seller, for the buyer may, in 
 defiance of the seller, drink it on the premises, and the seller could not be held 
 liable ; at least, if he had no reasonable expectation that this defiance of law 
 would be perpetrated there : " Paterson's L. A., 11. 
 
 As shewn in the notes of sub-sec. 1, the intention is the " head and front " 
 of the ofFence, and the intent muat be implied from the circumstances. It is 
 for the Court to find from the facts adluced whether there was an intention by 
 the licensee to evade the conditions of his license or not. 
 
 " The Court hearing the case " applies not only to the Justices before whom 
 the case may originally be brought, but to any Oourt having power to review 
 their decision. 
 
 " With intent to evade the conditions of his license." The words used here 
 are taken from the section of the English Licensing Act, 1872. 
 They do not seem entirely consistent with other parts of the Statute. 
 The h'cense itself, in fact, need not contain any conditions, the 
 conditions being contained in the Act. In England it used to be different, the 
 license itself containing the conditions on which it was issued. The conditions 
 referred to, however, are those in the Act. 
 
 (2) " Any purchaser." See note (i) to sec. 68, p. 189. 
 
 (m) " Of any liquor." See note (6) to seo. 2. 
 
 (n) " From a person who is not licensed tu sell," etc. See sec. 1 and notes 
 thereto. There is no doubt that this section is intended to apply only to that 
 class of persons wbo are authorized to sell liquor not to be drunk on the 
 premises, and its object is to make such persons, as well ad the purchasers of 
 liquors, liable for its cdnsumption contrary to the terms of the license. 
 It has been said that if this be the intention, the word " not " in the second 
 line is misplaced, and that it should be put before " to be drunk" in that line, 
 an a person " not licensed to sell liqaor to be drunk on the premises" may 
 mean either a person who has no lioense at all of any kind, or one who has a 
 
78.] 
 
 THE LIQUOR LICENSE ACT. 
 
 that such drinking was with his privity or consent, (^) be 
 subject to (r) the following penalties, that is to say : 
 
 For the first offence (s) he shall be liable to a penalty not F^st 
 
 ^ ' r / offence, 
 
 exceeding $20 ; 
 
 For a second and any subsequent offence he shall be f^^ °' 
 liable to a penalty of not less than $io and not exceeding ^fflSoe. 
 $50; - ' 
 
 For the purpose of this section (/) the expression "premi- tatkm." 
 
 licenee to sell liqnor which is "not to be drunk on the prenriBes." 
 This may be so, bat, althoagh the clause is not very scientifically framed, its 
 relation to the class of persona whose Uoense prohibits the consumption of 
 liquor -n the premises, it is submitted, is sufficiently clear. 
 
 At all events, if a conviction under this section shews : (1) That premises on 
 which the liquor was drunk were " not licensed to sell liqnor to be drunk on the 
 premises ; " (2) That the sale of liquor was made on such premises ; (3) That 
 such Uquor was drunk by the purchaser or some other person upon the prem- 
 ises upon which it was sold ; and (4) That it appeared that such drinking was 
 with the privity or consent of the seller, it will be a good conviction. 
 
 The expr6BL<ion " premises " is defined to include any premises adjoining or 
 sear the premises where the liquor sold if belonging to the seller or under his 
 control or used by his permission. There must be some " reasonable evidence " 
 that there was a sale of the liquor by the person charged with the offence " to 
 be drunk on the premises, or on premises with his privity or consent : " per 
 Lindley, J., Bath v. White, 8 G. P. D., at p. 179, cited more fully in note {g), 
 sec. 77. 
 
 No description of the offence is given in the schedule to the Act. 
 
 " Causes or permits." See note {j) ^o Bee. 50, ante p. 114, and also notes to 
 sees. 73 and 74, and note (x), infra. 
 
 (0) " The seller of such liquor shall." Ibis part of the section applies only 
 to the " seller." The person licensed is responsible for any such sale. See 
 note (u) to sec. 73 as to the responsibility of licensee for the acts of those in 
 charge of licensed premises. He is also liable to conviction under sees. 60, 70 
 and 77. As to meaning of the term " seller," see note (d), sec. 2, and notes on 
 pages 59, 120 and 143. 
 
 (p) " If it appears." See note (n) to sec. 68. 
 
 (q) *' With his privity or consent." See note (0 to sec. 77. 
 
 The consent or privity of the seller is to be implied from the circumstances. 
 If the drinking takes place upon the premises, it will be prima Jacie evidence 
 that it was done with the consent of the seller. But ii he was unable to control 
 or prevent the act, he could not be said to consent to it. See also note (x) 
 below. 
 
 (r) " Be subject to," is used here as a term synonymous with "be liable to.' 
 See notes to sec. 70. 
 
 {s) "First offence." See notes to sec. 70. The maximum penalty for a 
 first offence is $20, with no minimum fixed. 
 
 The second and any subsequent offence is punishable by a minimum fine of 
 110 and a maximum one of 960. See notes on pages 128, 129, and notes to sec. 
 70. 
 
 (0 " For the purposes of this section," means that in the accomplishment of 
 the intent, aim and object of the section, the expression used shall include, etc. 
 
 t ^ " " ' » 1 
 
I. - 
 
 Mf 
 
 } 
 
 •^;: 
 
 
 I 
 
 1 I 
 
 '$^' 
 
 192 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 78. 
 
 *' ses where the same is sold " shall include any premises 
 
 adjoining or near («) the premises where the liquor is sold, 
 if belonging to (v) the seller of the liquor, or under his 
 control, (w) or used by his permission! (x) 
 
 (u) "Adjoining or near the premises." Bee note (x) to see. 19. In one 
 case " adjoining" was said to mean not simply " near," bat " touching," " in 
 contact with :" Alters v. United N. J. By. Co., 48 N. J. L., 110 (1881). 
 
 But in popular use it seems to have no fixed meaning. Frequently expresses 
 nearness : Feverelly v. People, 3 Park. Gr. B., 69. 72 (1856). 
 
 In a penal Statute it means absolutely contiguous without anything between : 
 per Park, J., in B. v. Hodges, Moo. & M., 841. But in other Statutes the 
 meaning is not so strict : see London & S. W. By. Go. v. Blaokmore, L. B. 4, 
 H. L. 610 ; judgment of Manisty, J., Hobbs v. Midland By. Co., 20 Gh. D., 418 : 
 Oalemo and the Township of Boohester, 46 U. G. B., 279. 
 
 *' Near " may mean within a mile or one mile and a-quarter. At least that 
 was the construction given to the term under a Statute prohibiting giving away 
 or selling liquor on election days " near " an election ground. The Court said : 
 "a contrary holding would mi&e the law a dead letter on the Statute book, as 
 it would authorize parties to constantly violate it by removing to a distance of 
 one, two, or even more miles, and then to sell or give intoxicating liquors to 
 persons attending, or proposing to attend elections, who could and would by 
 joint contributions get up joint stock jug-groceries, thus keeping down a scanti- 
 ness in supply of the exhilarating as'weU as warlike fluid, and has been often 
 done in violation of the ' Camp Ground ' law :" Manis v. State, 8 Heisk. 315. 
 And two miles nnd a-half was held to be " near " in Barrett v. County Court, 
 44 Mo., 197 ; cited in Browne's Judicial Interpretation of Words, 278. 
 
 (t>) " If belonging to." The word "belonging" is defined by Worcester as 
 «< pertaining to ; attached to ;" and the primary meaning of " belong " is given 
 as " to be the property of; to be possessed by." 
 
 In Sturges Bourne's Act, (69 Geo., 3, 0. 12), s. 17, churchwardens and over- 
 seers are to hold as a body corporate all buildings, etc., " belonging " to the 
 Parish. Property, though applicable to general parochial purposes, is not 
 within this phrase if the legal estate therein be vested in known existing 
 trustees: St. Nicholas, Deptford, v. Sketchley, 8 Q. B., 394; overruling Bum- 
 ball V. Munt, 8 Q. B., 882. 
 
 (w) " Or under his control " implies " power of directing ; government ; 
 command : Worcester, 308. See also note {k) to sec. 53, p. 128, ante. 
 
 (x) " By his permission." See note {j) to sec. 60. 
 
 Permission may be implied from a person's neglect to prevent an 
 act from being done when he has the power to prevent it. It may 
 mean more than authority or leave to do a thing. Worcester's definition is 
 "the act of permitting; liberty or license granted; grant of authority to do 
 something ; leave ; license ; liberty ; toleration." And see the definition given 
 in notes to sec. 78 and 74. 
 
 Paterson says : " The consent or privity must refer to some premises as to 
 which the seller's consent would be matter of legal right, for he could not be 
 said to consent to something he cannot prevent or control. Hence, if, for 
 example, the field of a third person adjoins the house, and if the seller has no 
 interest in it, and the purchaser gets into the field and there drinks the liquor, 
 it will be difficult to hold that he did so with the privity or consent or permis- 
 sion of the seller, since the seller will not be able either to give or take away 
 the permission to go into another's field. Such a case as this seems to be 
 covered by this section. If the last paragraph of section 6 (sub-sec. 2 of sec. 
 
Is. 78. 
 
 J premises 
 
 lor is sold, 
 
 under his 
 
 19. In one 
 lohing," " in 
 181). 
 tly expreBSes 
 
 ing between : 
 
 Statutes the 
 
 lore, L. B. 4, 
 
 lOh. D.,418: 
 
 At least that 
 I giving away 
 e Court said : 
 itute book, as 
 a distance of 
 ing liquors to 
 and would by 
 lown a scanti- 
 las been often 
 8 Heisk. 315. 
 County Court, 
 27S. 
 
 Worcester aa 
 iDg " is given 
 
 ms and over- 
 ling" to the 
 poses, is not 
 lown existing 
 rruling Bum- 
 government ; 
 tnte. 
 
 prevent an 
 it. It may 
 definition is 
 thority to do 
 finition given 
 
 iremises as to 
 
 could not be 
 
 lenoe, if, for 
 
 I seller has no 
 
 Iks the liquor, 
 
 pnt or permis- 
 
 sr take away 
 
 seems to be 
 
 Iseo. 2 of sec. 
 
 SS. 
 
 78, 79] 
 
 THE LIQUOR LICENSE ACT. 
 
 (2) Any purchaser of liquors in a house or premises to 
 which a shop or wholesale license applies, who drinks or 
 causes any one to drink, or allows liquor to be drunk in the 
 shop or premises where the same has been purchased, shall 
 be liable to a penalty of not less than $10 and not exceed- 
 ing $20. {y) 47 v., c. 34, s. 32. 
 
 VOa The mayor {z) or Police Magistrate {a) of a town 
 or city, {b) or the reeve {c) of a township or village, with 
 
 193 
 
 Penalty 
 on pur- 
 otaaser in 
 certain 
 caaea. 
 
 Keepers 
 of disor- 
 derly inn 
 
 77 of our Aot> '* had been applicable to this section, this difficulty would have 
 been met." " Another difficulty may arise when the man who purchases the 
 liquor does not drink it himself, but hands it over to a third person, who drinks 
 it on the premises or near them ; the peu'lty seems not to apply to such a case. 
 The Justices may, however, in such a v .se, hold that the real purchaser was 
 the one who drank the liquor, and the other or nominal purchaser was his 
 agent, if the facts warrant bhe inference, for under see. 62 (sec. 109 of our Act) 
 the consumer is prima facie a purchaser." And the seller may be liable under 
 aec. 49 : Faterson's L. A., 8. 
 
 But these difficulties need not arise, for where there is no intention to evada 
 the law, it is submitted there can be no offence. 
 
 And in the case of the purchaser drinking the liquor, or causing or permitting 
 any one else to drink it, as in the case supposed, he is punishable under sub- 
 Beo. 2 if the act is done in a licensed place, and under sub-sec. 26 of sec. 68, if 
 in an unlicensed place. 
 
 See sec 109 and notes thereto. 
 
 (y) This sub-section applies to the purchaser of liquors at a place licensed as 
 a retail or wholesale shop, and if such purchaser dnnks the liquor which he 
 purchases in such shop, or if he gives it to any one else to drink, or allows any 
 one else to drink it in such shup or premises, he is liable to the penalty. 
 
 As to premises to which a shop or wholesale license applies see sees. 2, ss. 3, 
 31, 33 and 60, as to " shop licenses ; and sees. 2, ss. 4, 34, 35 and 61, as to 
 " wholesale licenses." 
 
 As to meaning of " allows " see notes, tuipra. 
 
 See B. V. Hartley, 20 0. B., 481 ; B. v. Bichardson, 20 O. B., 514, cited in 
 notes to sec. 105. 
 
 (s) The " Mayor " is the head of the Municipal Council in every city or town : 
 
 Municipal Act, B. S. O. c. 184, s. 243, and he is ex officio a Justice of the Peace 
 
 for the County in which the Municipality lies : Ib.,B. 416 : and he is entitled 
 
 to act as such where there is no Police Magistrate, or in the absence or illness, 
 
 I or at the request of the Police Magistrate : B. S. 0. 0. 72, sees. 6, 13, 20. It is 
 
 I the duty of the Mayor, where there is no Police Magistrate, to attend at the 
 
 I Municipal poUce office daily, or at such times or for such periods as may be 
 
 I necessary for the disposal of such business as may be brought before him as a 
 
 I Jantice of the Peace : 76., s. 432 ; but any Justice of the Peace having jurisdio- 
 
 I tion may, at the request of the Mayor, act in his stead at such police office : lb. 
 
 [a) Every city and every town having more than 6,000 inhabitants shall have 
 
 I a Police Magistrate : B. S. 0. c. 72, s. 2. Every other town may, if the 
 
 Lieutenant-Govemor-in-Oonnoil see fit to make such appointment, have a 
 
 Police Magistrate : Jb., sec. 3. Police Magistrates may also be appointed in 
 
 I counties tuid districts : 76., sees. 8-10. As to jurisdiction see note (d) below. 
 
 (6) " Town or city." See note (j) ?• 7, ante. 
 
 (c) The " Beeve " of a township or village is, like the ;Mayor of a city or 
 
 '<!» 
 
 l#'-iv':-i 
 
 
 
PFF 
 
 
 I I 
 
 It 
 
 ■i:i! 
 
 I 
 
 ■ f 
 
 t'' 
 
 « 
 
 <} 
 
 't:' 
 
 
 i: 
 
 ,| 
 
 I 
 
 1 
 
 r- 
 
 194 
 
 TtiE LIQUOR LICENSE ACT. 
 
 [9. 79. 
 
 oertota*" ^^V °"® Justice of the Pea'^e, (</) or any two Justices of t'^e 
 penalties. Peace (e) having jurisdiction (/) in the township or village, 
 upon information to them, or one of them (g) respectively, 
 that any keeper (A) of any inn, tavern, ale-house, beer-house 
 or other house of public entertainment, (1) situate within 
 their jurisdiction, (j) sanctions or allows (k) gambling or 
 
 town, the head of the Ooanoil, and «x officio a Jaatioe of the Peaoe for the 
 Oonnty in which the Manioipality is sitnated. The " Beeve " cannot act alone 
 under this section. He mnst be associated with one Justice of the Peace having 
 jurisdiction in such township or village. 
 
 (d) A " Justice of the Peace can only act within the limits of the locality 
 specified in his commission. His authority is in no case attached to the person 
 so as to be capable of being exercised elsewhere. He cannot intermeddle, or 
 take any recognizance or examination, or exercise any authority in any matter 
 in the County specified in his commission while he is making his abode in 
 another County ; neither can he cause one to be brought before him out of 
 the County where he is commissioned, for " being out of the County where he 
 is in commission, he ib but a private man." See Paley on Convictions, 6th ed., 
 18. Under the " Municipal Act," s. 418, " Every Justice of the Peace for a 
 County shall have jurisdiction in all cases arising under any by-law of a Munici- 
 pality in the County where there is no Police Magistrate." The power of a 
 Justice of the Peaoe cannot be exercised where there is a Police Magistrate, 
 except in the absence of such Police Magistrate or at his request. See B. y. 0. 
 c. 72, sees. 2, 6. 13. 
 
 («) " Any two Justices of the Peaoe." The power of two Justices of the 
 Peaoe under this section is equal to that of a Mayor or a Police Magistrate, or 
 of the Beeve and one Magistrate. 
 
 ( /) " Having jurisdiction." See note (d) iupra. '* 
 
 {g) " Upon information." Informations before a Justice of the Peace under 
 " The Summary Convictions Act " must be laid within six months, if no time 
 is specially limited for making any complaint or laying any information by the 
 Act or law relating to the particular case, except in ti^e N. W. Territories and 
 part of the County of Saguenay, where twelve months is the time limited : sec. 
 11. Under this Act, however, the time for laying all informations is limited to 
 thirty days after the commission of the offence or after the cause of action 
 arose, and cannot be laid afterwards. It must be in writing, and laid before 
 any Justice of the Peace for the County or district in which the offence is alleged 
 to have been committed ; and it may be made without any oath or affirmation 
 to the truth thereof. See sec. 109. 
 
 " To them, or one of them " The information may be laid before one 
 Justice of the Peace, but there must be two for the subsequent proceedings. 
 
 (A) " Any keeper." See note (d), p. 180, ante. 
 
 (t) " Any inn, tavern, ale house, beer house, or other house of public enter- 
 tainment." See sec. 2, ss. 8, and notes thereto. See also note (ft), p. 97, ante. 
 
 {j) " Within their jurisdiction " means within the jurisdiction of the Mayor, 
 Police Magistrate, Beeve, Justice or Justices. Bee note (d), $upra, 
 
 (ft) " Sanctions or allows." This phrase is used here in lien of the phrase 
 " permits or suffers," in sec. 73. To " sanction " means to give a sanction, 
 validity, or authority to ; to ratify, to legalize, to confirm, to countenance, to 
 support, to authorize, to warrant, to allow. As used here, it is submitted that 
 the term is nearly synonymous with that used in sec. 78. See notes to that 
 section. 
 
 ml; 
 
 f ;■. , 
 
 ■f 
 
 llll 
 
 
 it 
 
79-J 
 
 THE LIQUOR LICENSE ACT. 
 
 >95 
 
 riotous or disorderly conduct (/) in his tavern or house, may 
 summon the keeper of such inn, tavern, ale or beer-house 
 to answer the complaint, and may investigate (w) the same 
 summarily («), and either dismiss the complaint (o) with costs 
 to be paid by the complainant, (/) or Without costs, or convict 
 the keeper {//) of having an improper or a riotous or a dis- 
 orderly house, (r) as the case may be, and annul his license, 
 
 (I) " Oambling." See notes to see. 78. 
 
 ** Biotoas or disorderly oonduot." See notes to seo. 73. 
 
 It was held in England that an information for nsing an engine for the par- 
 pose of taking game against 1 and 2 Wm. 4, c. 8*i, a. 23, is a criminal prooeed- 
 ing, and oonseqaently the person oharged is an incompetent witness : Cattell v. 
 Ireson, E. B. dr E., 91 ; and so when the information under the English 
 Statute; 9 Oeo. 4, o. 61, charged an inn-keeper with having " unlawfully and 
 knowingly permitted and suffered persons of notoriously bad character to 
 assemble and meet together in the house and premises : " Parke v. Qreen, 2 
 B. & S., 299. The charge that an inn-keeper allowed " drunkenness and other 
 disorderly conduet" was held not to be too vague : Wray v. Toke, 12 Q. B., 
 492. See notes to seo. 78. 
 
 (m) '*May investigate "means may examine or enquire into. See note (o) 
 p. 8, ante. 
 
 An " investigation " was held to inelude an inquiry directed by the Legisla- 
 ture and conducted by any of its committees: People v. Sharp, 107 N. Y., 427, 
 
 (1887). 
 
 (n) ••Summarily.' 
 ooDTiciion." 
 
 See note (u) to sec. 71, p. 165, ante, title, " summary 
 
 (o) " Dismiss the complaint." 
 (p) As to costs see sec. 100. 
 
 See sees. 93-99 as to procedure. 
 
 Under this section the Justices may either 
 award that the cost be paid by the complaint or that xio costs shall be paid by 
 either party. 
 
 [q) " Or convict the keeper." It will be noted that t.he Justices may either 
 "dismiss the complaint" or "convict the keeper." The word "may" and 
 other like enabling phrases, such, for instance, as " is empowered," or " shall, 
 if he deems it advisable," or "it shall be lawful," have a compulsory force 
 unless there be special grounds for different construction : Maxwell on Stats., 
 219. Where a power is given for the futherance of justice, it is to be exercised 
 and is a command. Where a thing to be done is for the public benfit, or in 
 advancemeut of public justice, words which are otherwise only directory, per- 
 missive or enabling, become compulsory : In re Newport Bridge, 2 E. & E., 877 ; 
 B. V. Tithe Gommissionem, 14 Q. B. , 474. But see Julius v. Oxford, (Bishop 
 of), 6 App. Gas., 214 ; Aitohison v. Mann, 9 P. B., 478, and see note (o) to sec. 
 4, ante, and oases there cited. 
 
 " The keeper." See note (d) to sec. 56. 
 
 (r) " Improper, or a riotous, or a disorderly house, as the case may be." 
 These are three distinct offences. An improper house means an indecent house. 
 The permitting of prostitutes to assemble for the purposes of prostitution, 
 would appear not only to be " improper," but has been held •^^o be disorderly 
 conduct on the part of the inn-keeper : Belasco v. Hannant, b B. & S., 13 ; 
 Wilson V. Stewart, lb., 918 ; B. v. Biee, L. B. 1 0. 0. B., 21. A. d see cases 
 cited in notes to see. 78. 
 
 fVi 
 
ig6 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 79, 80. 
 
 ' m\»] 
 
 Provl- 
 Bionfl as to 
 barbonr- 
 ing oon- 
 Btablea 
 on duty. 
 
 (s) or suspend the same for not more than sixty days, witli 
 or without costs, as in his or their discretion may seem just ; 
 (/) and in case the keeper of any such inn, tavern, ale-house, 
 beer-house or place of public entertainment, is convicted 
 under this section, and his license annulled, he shall not be 
 eligible to obtain a license for the period of two years 
 thereafter and shall also be liable to the penalties by section 
 [85] prescribed. («) R. S. O. 1877, c. 181, s. 53 ; 44 V., 
 c. 27, s. 6, amended by 53 Vic, c. 56, s. 9. 
 
 80« Any person (v) licensed to sell wine, beer or 
 spirituous liquors, (w) or any keeper of the house, sho|), 
 room, or other place (x) for the sale of liquors, who know- 
 ingly harbours or entertains (y) any constable belonging to 
 
 it ■■ I 
 
 ■I. 
 
 tf ll:1 if 
 
 ,m>'' 
 
 rMii ■ 
 
 m ift 
 
 («) *' Annul his license." The penalty for ofTenoes under this seotion may 
 be: (1) the entire revocation of the lioenae, or (2) the suspension of the same 
 for not more than sixty days with or without costs, as to the Justice or Justices 
 may seem just, and in the event of his license being revoked, disqualification 
 for holding a license for two years following. 
 
 (t) " As in his or their discretion may seem just." See notes to sec. 19, p. 
 48 ante, for remarks as to discretionary powers, such as are here conferred. 
 
 (u) " Penalties by seotion 86 prescribed." The words "section 85" were 
 substituted by 68 Vie. c. 66, s. 9, for <* seotion 70 " in the original Act. 
 
 The penalties are cumulative, and the convicted keeper, in addition to those 
 penalties here prescribed, may be adjudged to pay a fine of not less than $20 nor 
 more than 960, besides costs for the first offence ; and not less than $40 nor 
 more than $60, besides costs, for the second offence ; and to be imprisoned for 
 the period of three months at hard labor for the third or any subsequent offence. 
 And if there be a conviction under this section on more than one occasion, tbe 
 license may be revoked by the Oounty •» edge, and the person licensed disqualified 
 from obtaining a license for two years thereafter. See sec. 91. 
 
 For Form of conviction see Schedule D, No. 18. 
 
 (v) " Any person." See note {g) to sec. 11, ss. 10. 
 
 The section applies as well to all persons holding licenses of any kind as to 
 the keeper of any place where liquors are sold ; this includes druggists and all 
 others authorized to sell liquors either by wholesale or retail. 
 
 (to) As to the meaning of " wine, beer, or spirituous liquors," see note (b) to 
 see. 2, and for meaning of *< wine and beer license " see sec. 78. 
 
 {x) As to the " keeper of any house, shop, room, or other place for the sale 
 of liquors," see note (d) to see. 66. 
 
 (y) " Knowingly harbors or entertains." Guilty knowledge is the essence of 
 the offence. It is an offence knowingly to harbour or entertain any constables 
 belonging to any police force. But see note (e), p. 48, and note (]/), p. 59, 
 and also oases cited below. 
 
 The word "harbour" is defined by Dr. Johnson and other lexicographers 
 " to entertain," " to permit to reside," *' to shelter," " to secure ; " and Dr. 
 Webster adds, " to secrete." It has various shades of meaning not defined by 
 any synonym. " Receiving and entertaining a person clandestinely and for 
 the purpose of concealment " may well be called " harbonring," as the word is 
 
is. 79, 80. 
 
 lays, with 
 jeem just ; 
 ale-house, 
 convicted 
 lall not l)c 
 two years 
 by section 
 
 }3 ; 44 v., 
 
 ;, beer or 
 ouse, shop, 
 who kncw- 
 elonging to 
 
 BMtion may 
 
 of the same 
 
 loe or JasticeB 
 
 gqualifioation 
 
 10 860. 19, p. 
 Bonferred. 
 
 on 85" were 
 
 Aot. 
 
 ition to those 
 than $20 not 
 than $40 nor 
 
 mprisoned for 
 
 iquent offence. 
 oooasion, tbe 
 
 Bd disqnalified 
 
 ny kind as to 
 iggistB and all 
 
 jee note (b) to 
 
 for the sale 
 
 ihe essenoe of 
 buy constables 
 >te iy), p. 59. 
 
 Tiexioographers 
 re ; " and Dr. 
 jiot defined by 
 Enely and for 
 the vrord is 
 
 s. 80.] 
 
 THE LIQUOR LICENSE ACT. 
 
 '97 
 
 any police force, (z) or suffers (a) such person (d) to abide 
 or remain in his shop, {c) room or other place during any 
 
 sometimes nsed. Tet one may harbour without oonoealing. He may afford 
 entertainment, lodging and shelter to vagabonds, gamblers and thieves, withont 
 a purpose or attempt at oonoealment, and yet it may be correctly affirmed of 
 iiim that he " harbours " them. Neither in legal use nor in common parlance 
 JH tlie word " harbour " precisely defined by the words " entertain " or " shel- 
 ter " given by Dr. Johnson as two of its meanings. It implies impropriety in 
 tbe conduct of the person giving the entertainment or shelter. " An inn-keeper 
 is snid to * entertain ' travellers and strangers, not to < harbour ' them ; but 
 may be accused of 'harbouring' vagabonds, deserters, fugitives or thieves, 
 persons whom he ought not to ' entertain : ' " per Oreer, J., Van Metre v. 
 Mitchell, 2 Wall. Jr., 817. But it is made an offence here either to " harbour " 
 or to " entertain " a constable. To " harbour " thieves means to give persons 
 sbelter or to permit them to congregate, even though it be only to take part in 
 a " friendly lead " for the purpose of raising a legitimate subscription : Marsiiall 
 V. Fox., L. B. 6, Q. B. 870. 
 
 (z) A constable is an officer to whom our law commits the duty of maintaining 
 tbe peace, and bringing to justice those by whom it is infringed : Wharton, 
 1G9. The office of constable is one of great antiquity. It comes from the 
 Latin itabuli — in the Eastern Empire, a superintendent of stables, or master 
 of borse, who at length obtained the command of an army. A constable is the 
 proper officer to a Justice of the Peace, and so is bound to execute warrants : 
 Bao. Abr. " constable." The Oouncil of every town not having a Police Board 
 shall, and the Oouncil of every incorporated village may appoint a chief con- 
 stable, and one or more constables for the Municipality, and the persons so 
 appointed shall hold office during the pleasure of the Council : Mnn. Aot, sec. 
 446. See Harrison's Mun. Man., 881. 
 
 And in cities and towns having a Police Board, the force shall consist of a 
 obief constable and as many constables and other officers and assistants as the 
 Connoil may deem necessary. But in cities the number shall not be less than 
 the Board reports to be absolutely required : Mun. Act, s. 440. 
 
 Tbe constables belonging to this latter force are the persons to whom this 
 section applies, and it appUes to the chief constable as well as to every member 
 of tbe force. It has been said that a police officer may not neoessarily be a 
 constable, and that there may be a wide difference between the offices of 
 " constable " and " police officer." But it is specially declared by the Municipal 
 Aot (sec. 443) that the constables appointed by the Board shall have generally 
 all tbe powers which belong by law to constables duly appointed. For duties 
 and obligations of police officers and constables generally see Dillon on Mun. 
 Cor., 3rd. ed., seo. 210; Harrison's Mnn. Man., 6th. ed., pp. 827-334. 
 
 It seems to be an offence to " harbour or entertain " any such constable, 
 whether he is on duty or not, but, subject to the regulations of the Board of 
 Police Commissioners, the members of the force should have as much right to 
 receive entertainment at an inn as any other person, so long as they are not on 
 
 duty. 
 
 (a) " Or suffers." See notes to seo. 73. 
 
 {b) " Such person," i. e., such constable. 
 
 (c) "To abide or remain." The words '* abide" and "remain,' 'though 
 perhaps not exactly synonymous, have very nearly the same meaning. As 
 defined by Worcester, " abide " may either mean : (1) " To stay in a place tem- 
 porarily; to sojourn:" (2) "To dwell; to reside:" (3) "To remain; to 
 continue:" (4) *' To endure withont offence ; to bear." 
 
 And the definition of " to remain " ia : " To abide ; to oontinae ; to endure ; 
 
 %L 
 
 ,:. ; i< 
 
 In l"' 
 
 i^^HM:i.Si 
 
1 
 ' i 
 
 ,i i 1 
 
 1 
 
 1 
 
 1 
 
 i: . 
 
 
 
 in 
 
 1 
 
 
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 r ■ 
 
 ■ .' I ■ 
 
 ', . ij 
 
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 ■f'l ■ 
 
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 ! 
 
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 1 
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 ■1 
 
 fflro 
 
 lEi^i 
 
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 ■■■] 
 1 1 
 
 198 
 
 THE LIQUCr LICENSE ACT. 
 
 [ss. 80, 81, 
 
 Penalty 
 in oaie 
 any per- 
 son com- 
 
 part of the time appointed for his being on duty, unless for 
 the purpose of quelling riny disturbance, or restoring order, 
 or otherwise in the execution of his duty, (d) shall, for any 
 of the offences aforesaid, be deprived of his license (c). 
 R. S. O. 1877, c. 181, s. 54. 
 
 SI. Any person who, having violated any of the pro 
 visions of this Act, (/) compromises, compounds or 
 
 to stay ; to tarrj." The ge«tion of the English Statate oorresponding with this 
 is differently worded and more oompreheniive. 
 
 It is aa follow* : 
 
 " If any lioensed person — 
 
 (1) Knowingly harbonrs or knowingly suffers to remain on his premiseh, 
 
 any constable daring any part of the time appointed for snob con- 
 stable being on duty, unless for the keeping or restoring of order, or 
 in exeoation of his duty ; or 
 
 (2) Supplies any liquor or refreshment, whether by way of gift or sale, 
 
 to any constable on duty, unless by authority of some superior 
 officer ; or bribes or attempts to bribe any constable, 
 he shall be liable to a penalty not exceeding for the first offence £10, and not 
 exceeding for the second or any subsequent offence £20. " 86 and 86 Vie, c. U, 
 s. 16. 
 
 Under this section it was held that if a servant or manager of the premises 
 knowingly serve a constable on duty, the master may be convicted though 
 personally having nothing to do with the matter : Mullins v. Collins, L. K. 9 
 Q. B., 202. But in all oases either the master or servant must know that tlie 
 person is a constable on duty, and his being in uniform, and not being asked if 
 he was on duty, etc., is good prima facie evidence of such knowledge : Pater- 
 son's L. A., 26. 
 
 The section in our Act is taken from a much earlier English Statute, viz : 
 2 and 8 Vic, 0. 98, s. 16 ; 10 and 11 Yio., 0. 89, s. 84. 
 
 It will be noted that the fact of the constable being in uniform and not being 
 asked if he was on duty, etc., is sufficient to shew knowledge on the part of 
 the offender that the offence was committed " during any part of the time 
 appointed for his being on duty." 
 
 (d) The last part of this section is more ambiguous than the first. If the 
 constable was on duty, and entered the house " for the purpose of quelling anv 
 disturbance or restoring order," the licensed person could not be enid to 
 " harbour or entertain" him, or to suffer him to " abide and remain " in the 
 place. 
 
 " Or otherwise in the execution of his duty." It is part of the duty of every 
 policeman or constable to assist in enforcing the license law. See sees. 129, 
 184, and while in discharge of any such duty he comes within the exception. 
 
 (e) " Be deprived of hia license." Loss of the license is the only penalty for 
 the contravention of this section. 
 
 For form of conviction, see Seh. D, No. 14. 
 
 (/) This section applies only to a person who has (1) violated any of the 
 provisions of the Act ; and (2) compromises, compounds, or settles, or (8) offers 
 or attempts to do so. The first requisite is to prove that the person charged 
 with the offence has " violated some piovision of the Statute." It is also 
 necessary to shew then that the defendant bos (1) oompromised or eomponnded 
 
8i.J 
 
 THE LIQUOR LICENSE ACT. 
 
 199 
 
 t Statute, viz: 
 
 settles, {g) or offers or attempts to compromise, compound JJ^***"' 
 or settle (A) the offence with any person or persons, with P^"°j{y' 
 the view of preventing any complaint being made in respect •o"«> 
 thereof, (1) or if a complaint has been made with the view 
 
 or settled the oflenoe, or (3) hM offered or attempted to do to with the view 
 {a) of preventing any complaint being made or (b| of getting rid of auoh com* 
 plaint if it has been made, or (e) of stopping ■nob oomplaint, or (d) of having 
 8Uob oomplaint diamiesed for want of proseoation. 
 
 It will be seen that there are several offences covered by this section, and ?t 
 oouviotion for more than one upon the same information woald be bad. Bei' 
 oaues cited below. , 
 
 1(7) " compromises, compounds or settles." To "compromise " is defined as 
 " an adjustment of claims in a dispute by mutual concession ; also, a mutual 
 promise of two or more parties at difference to refer the ending of their contro- 
 versy to arbitration : Wharton, 160. It imports a yielding of something by 
 enoh of two parties : Bellows 7'. Sowles, 86 Vt., 899 (1883). This is shewn by 
 its derivation ; the Latin word is com-promittere, to mutually promise, to arbi- 
 trate. To " compound " means " to arrange ; to come to terms : " Wharton. 
 To "compound" a debt is to abate part of it on receiving the residue. 
 Demands are compounded when adjusted by payment of part in satisfaction 
 of tliv whole : per Kent, 0. J., Haskins v. Mewoombe, 2 Johns, 408, as cited in 
 Anderson's Diet., 218. 
 
 Compounding a penal action is a misdemeanor, whether any offence has, in 
 faot, been committed or not : Burbidge's Dig., 160. 
 
 To " settle " means " to adjust ; to liquidate ; to balance as an account ; or 
 to pay aH a debt : " Worcester, 1317. " Settle " implies the mutual a'^jnntment 
 of accounts and an agreement upon the balance : Baxter v. State, 9 Wis. 44, 
 acd other cases cited in Anderson's Diet., 944. 
 
 A criminal offence cannot be referred to arbitration, nor can a compromise 
 contrary to the terms of this section, and it was held that a prosecution tor 
 selling without a license cannot be referred: in re Fraser and Esoott, 1 
 L. J. N. 8., 824. 
 
 (/{) " Offers or attempts." " An ' offer ' is a proposal to be accepted or 
 rejected ;" also an " effort, endeavour or attempt :" Worcester, 987. But a 
 mere offer to give security on property, if it can be effectually done, is not an 
 " attempt " to anticipate or incumber the property within a clause of forfeiture : 
 Graham v. Lee., 28 Beav., 888. " An attempt " is an endeavor to commit a 
 crime or unlawful act : Wharton, 66. An attempt to commit a crime may be 
 committed in oases in which the actual offender voluntarily desists from the 
 actual commission of the crime itself: see B. v. Gheeseman, L. <& C, 140; 
 Stroud's Diet., 63. The word "offer" may be convertible with "attempt;" 
 Commonwealth v. Harris, 1 Pa. Leg. Gaz.B., 457. See Anderson's Diet., 726. 
 An " attempt " conveys the idea of physical effort to do an act or to accomplish 
 an end : State v. Marshall, 14 Ala., 414, 416. 
 
 ({) " Any person or persons." See note [g) to sec. 11, ss. 10. 
 
 " With the view," means with the intention, design, purpose. See Worcester's 
 Diet.; Anderson's Diet. With a view of rehearing means for the purpose of a 
 rehearing : Biohards v. Burden, 69 Iowa, 766. 
 
 " Getting rid of such oomplaint," i. «., for the purpose of being freed or 
 cleared from the charge. 
 
 " Stopping," t. «., hindering the proceedings or thwarting the prosecution. 
 
 " Having the same dismissed for want of prosecution." An action is said 
 to be dismissed for want of prosecution when the default is made by the person 
 
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 200 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 8l, 82. 
 
 of getting rid of such complaint, or of stopping or having 
 the same dismissed for want of prosecution or otherwise, (/) 
 shall be guilty of an offence under this Act, and on convic- 
 tion thereof shall be imprisoned at hard labour in the 
 common gaol of the county in which the offence was com- 
 mitted for the period of three months. R. S. O. 1877, c. 
 181, s. 55. 
 for'being 39 • Every person (k) who is concerned in, or is a 
 oerned in party to, the Compromise, composition or settlement (/) 
 oom!"° mentioned in the* next preceding section, shall be guilty of 
 prom se, ^^^ offence under this Act, and on conviction thereof (///) 
 
 who is plaintiff, complainant, or proseontor, and charged with the prosecution 
 of the action. 
 
 Under the " Summary Oonviction Act," sec. 69, the information or compl!>.int 
 may be dismissed with costs against the prosecutor or complainant, and by sec. 
 70 such costs may be levied by distress, and in default of payment the prose- 
 cutor or complainant may be imprisoned for not more than one month. 
 
 See also sees. 82 and 84 tmd notes thereto. 
 
 (j) " Or otherwise." See Stroud's Diet., 548. 
 
 A conviction to the effect that the defendant did unlawfully attempt and 
 offer to compound and settle with one B., a certain offence with a view of 
 stopping or having the said charge dismissed for want of prosecution, is bad 
 (1) for not shewing that the defendant was a person who had violamd any of 
 the provisions of the Act ; (2) for stating the charge in the alternative with a 
 view of stopping or having (these being two separate offences) ; and (3) for 
 adjudging the defendant to pay a sum for costs without saying to whom : B. v. 
 Mabey, 87 U. G. B., 248. 
 
 It was held that the provisions of t^.iB section were within the legislative 
 authority of the Ontario Legislature: B. v. Boardmen, 80 U. G. B., 653, and 
 that the Magistrates had power to impose imprisonment at hard labour : B. v, 
 AUbright, 9 P. B., 26, aud other cases cited in note (a), sec. 1. 
 
 The penalty imposed is imprisonment at hard labour in the common gaol of 
 the County in which the offence was committed for the period of three months. 
 
 The conviction must follow the Statute ; ^be imposition of any greater or less 
 penalty would render it invalid, and no pecuniary fine can be imposed. 
 
 For form of conviction, see Sch. E, No. 15. 
 
 {k) " Every person." Bee sec. 48, note (j). 
 
 Sec. 81 applies to the person who has himself violated any provisions of tbi 
 Statute ; this section is applicable to all who are in any way concerned in the 
 compromises mentioned in sec. 81. 
 
 The meaning of the term " concerned in " is disoussed in note (k) to sec. 66. 
 
 A " party to," the compromise is one who is concerned in it or has taken any 
 part or action, or engaged in any way in the transaction : Worcester, 1039. 
 
 (I) The same proof is necessary for a conviction under this as would be 
 required under sec. 81. See notes to that section. 
 
 (m) " On conviction thereof." See note [j) to sec. 70. 
 
ss. 82, 83.J 
 
 THE LIQ70R LICENSE ACT. 
 
 201 
 
 tie proaeoutioQ 
 
 Person 
 violating 
 law may 
 bedia- 
 
 ?tuali&ed 
 rem 
 holding 
 license. 
 
 shall be imprisoned in the common gaol of the county in 
 which the offence was committed for the period of three 
 calendar months («). R. S. O. 1877, c. 181, s. 56. 
 
 S3* Any holder {0) of a beer and wine license who 
 has been convicted of selling liquor without the license 
 therefor required by law, or contrary to the terms of his 
 license, or of this Act, (/) shall, in addition to any other 
 penalty provided, {g) if the Police Magistrate or other 
 Justice or Justices before whom the prosecution was 
 heard, (r) certify {s) that the offence (/) was in his or their 
 opinion, a wilful one, («) be disqualified, {v) from having 
 
 (n) The penalty imposed by this section is imprisonment for three months. 
 Hard labor is not imposed in this case. 
 
 See sec. D., No. 16 for form of conviction. 
 
 (0) " Any holder." See notes to sec. 24. 
 
 Tbia section applies to any person having a license to sell beer and \nne 
 under sees. 22, 23, 24. Such a license only authorizes the sale by retail of 
 lager beer, ale, beer and porter, and native and light foreign wines which con- 
 tain not more than 15 per cent, of alcohol, bat not including port, sherry or 
 madeira. As to all other liquors the holder of this license is deemed to be 
 nnlioensed and sec. 132 applies. See sec. 24 and notes thereto. 
 
 (p) " Contrary to the terms of his license " refers to the sale of liquors not 
 autiiorized by the license, and, " or of the Act," applies to any other provision 
 of the Act. The license is held upon the terms and subject to all the 
 conditions and penalties that apply to a tavern license, so that the owner, if 
 he sell liquor which he is not authorized to sell, is liable to be convicted for 
 Belling liquor without a license, (sees. 49, 70,) and is liable also to all the pen- 
 alties provided for infractions of the law by the holder of a tavern license, 
 (see. 24). 
 
 (q) " In addition to any other penalty." Besides the other penalties men- 
 tioned above, the holder of the license is subject to that provided for in this 
 section. As to meaning of " penalty," see note («), p. 64, and note (n), p. 104. 
 
 (r) " If," here creates a condition precedent, which is, that the Police Magis- 
 trate, or justice, or Justices before whom the prosecution is heard shall certify 
 that the offence was, in his or their opinion, a wilful one. If this is not done the 
 penalty here provided will not attach to the offence. But should such a 
 certificate be granted the penalty must follow, " shall " here being in the nature 
 of an imperative command. See note (I), p. 8, and note (a), p. 68. 
 
 " Before whom the prosecution was heard," means before whom the case was 
 heard and finally disposed of. See note (e), p. 27. 
 
 The defendant, on an application for a certificate under this section, would be 
 entitled to be heard. See Dwar., 671-672. 
 
 («) " Certify." See note («), p. 119. 
 
 The certificate can, of course, only be made after conviction. 
 
 (t) " That the offence," i. c, the offence of which the holder of the license 
 has been convicted. The section does not make any provision as to the time 
 for issuing the certificate. 
 
 (u) " In their opinion," means aooording to their jadgD>ent. 
 
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 202 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 83, 84. 
 
 Penalty 
 for tam- 
 per' "-^ 
 
 or holding a liquor license for, (w) and during the then 
 next succeeding license year, (x) and any license granted to 
 or obtained by any such person during such period shall be 
 void (y). 49 Vic. c. 39, s. 16. 
 
 84L* Any person who, on any prosecution under this 
 Act (z), tampers with a witness (a), either before or after he 
 
 "In the opinion of the Court or Jadge," b. 57, Jad. Act., 1873, means 
 according to the judgment of the Court or Judge, which judgment is subject to 
 appeal: Ormerod v. Todmorden Co., 8 Q. B. D., 664; re Martin, 20 Gh. D„ 
 866. 
 
 The '* opinion " of a Bishop that proceedings should not be taken under the 
 Public Worship Regulation Act, 1874 (37 & 38 Vic. c. 85), has to be stated 
 " with reason of his opinion " (s. 9) ; this does not give him an absolute dis- 
 cretion ; his reasons may be examined on appUcation for a mandamus : B. v. 
 Bishop of London, 24 Q. B. D, 213 ; Buston v. Tobin, 10 Ch. D., 558; Julius 
 V. Bishop of Oxford, 6 App. Gas., 214 ; Golding v. Wharton Co., 1 Q. B. D., 
 874. See note on " discretion," sec. 19, p. 48, ante. 
 
 " Wilful " is a word of familiar use in every branch of law, and although in 
 some branches it may have a special meaning, it generally,|aB used in Courts of 
 Law, implies nothing blameable, but merely that the person of whose 
 action or default the expression is used is a free agent, and that what has been 
 done arises from the spontaneous action of his will. " It amounts to nothing 
 more than this, that he knows what he is doing and intends to do what he ig 
 doing, and is a free agent :" per Bowen, L. J., Toung and Harston, 31 Gb. D., 
 174. See also Squire v. Wheeler, 16 L. T. N. S., 93 ; Carpenter v. Mason, 12 
 A. & E., 629. But it has been said that the word "wilfully" is sometimes 
 used as denoting evil intention ; in fact, that such is the common use of the 
 word in the English language, and it was therefore held that a surveyor was 
 not guilty of the offence " of wilfully receiving " a higher fee than be was 
 entitled to when acting under an honest mistake : B. v. Badger, G E. & B,, 
 137 ; Smith v. Barnham. 1 Ex. D., 419 ; Miles v. Boe, 10 P. B., 218. 
 
 (v) " Be disqualified." See note (z), p. 166. See also Lewis v. Garr, 1 Ex. 
 D., 484 ; Fletcher v. Hudson, 7. Q. B. D., 611. 
 
 (w) " From having or holding." This disqualification includes the obtaining 
 of a liquor license as well as the holding of one which has been obtained. It 
 simply means that the License Commisftioners cannot grant, and the person 
 convicted cannot hold, a license during the p-^nod of disqualification. 
 
 (x) " During the next succeeding license year " means from 1st May of the 
 year following that in which the conviction was secured to 30th April in the 
 next year. Thus if the conviction was obtained on Ist July, 1891, the person 
 convicted would be disqualified from the Ist May, 1892 to 30th April, 1693, 
 But the license for the year 1891-2 would be good until it expires. 
 
 (y) " Shall be void." See note (y), p. 42, and note (m), p. 80. 
 
 This means that any license granted or obtained for the year next snooeedisg 
 the conviction is void. But there is no forfeiture of the license held at the 
 time of the conviction. This may not be what the Legislature intended, but it 
 is what the section means. 
 
 (z) " Any prosecution under this Act " is applicable to every proceeding taken 
 and offence charged against any person, as a licensee or otherwise, under any 
 of the provisions of the Acs. 
 
 (a) " Tampers with a witness." " Every one who conspires with any otiier 
 person to accuse any person falsely of any crime, or do anything to obstmot, 
 
[ss. 83, 84. I ss. 84, 85.] 
 
 THE LIQUOR LICENSE ACT. 
 
 203 
 
 ig the then 
 e granted to 
 riod shall be 
 
 1 under this 
 re or after he 
 
 , 1878, means 
 at is sabjeot to 
 :tm, 20 Ch. D., 
 
 baken under the 
 las to be stated 
 n absolute dis- 
 andamus : B. v. 
 D., 658; Julius 
 )o., 1 Q. B. D., 
 
 and although in 
 [Bed in Courts of 
 jrson of whose 
 \\, what has been 
 onnte to nothing 
 to do what he is 
 raton, 81 Ch. D,, 
 iter V. Mason, 12 
 ^'* is sometimes 
 mmon use of the 
 t a surveyor was 
 fee than he was 
 dger, E. & B., 
 
 218. 
 riB V. Carr, 1 Ex. 
 
 des the obtaining 
 een obtained. It 
 
 and the person 
 oation. 
 
 1st May of the 
 0th April in the 
 1891, the person 
 JOth AprU, 1893, 
 
 es. 
 80. 
 
 ,r next succeeding 
 ense held at the 
 re intended, but it 
 
 > proceeding taken 
 erwise, under «nj 
 
 ■es with any othei 
 thing to obstruct, 
 
 m 
 
 is summoned or appears as such witness on any trial or "^^ * 
 proceeding under this Act, or by the offer of money, or by 
 threats, or in any other way, either directly or indirectly, 
 induces or attempts to induce any such person to absent 
 himself, or to swear falsely, shall be liable to a penalty of 
 $50 for each offence. R. S. O. 1877, c. 181, s. 57. 
 
 9 A* Any person who violates any other provision of Penalty 
 this Act, ib) in respect of which violation no other punish- tions in 
 
 oases not 
 
 ment is prescribed, shall for the first offence, (c) on '>therwiBo 
 
 provided 
 
 conviction thereof, {d) forfeit and pay a penalty of not less for. 
 than $20 besides costs, and not more than $50 besides 
 costs ; [and in default of payment thereof, he shall be im- 
 
 perrert, or defeat the course of justice ; or in order to obstruct the due course 
 of justice, dissuades, hinders, or prevents any person lawfully bound to appear 
 and give evidence as a witness from so appearing and giving evidence, or 
 endeavors to do so ; or obstructs, or in any way interferes with, or knowingly 
 prevents, the exesntion of any legal process, civil or criminal," is guilty of a 
 misdemeanor: Burbidge's Dig., 189; B. v. Lawley, 2 Stra., 9C4; Bussell on 
 Crimes, 6th. ed., 668-661 ; B. v. Higgins, 2 East, 6, 18. 
 
 It was held that this section was ultra viret of 'he Local Legislature, for the 
 Acts therein declared to be offences were criminal offences at common law, and 
 within the exclusive jurisdiction of the Dominion Legislature, and were not 
 brought within the Local Legislature by sub-sec. 16 of sec. 92 of the B. N. A. 
 Act, either as coming under Municipal institutions, or as being enactments to 
 enforce the law as to shop, saloon, etc., licenses, in order to raise a revenue for 
 Provincial, Local or Municipal purposes. A conviction under it for inducing a 
 witness to absent himself was quashed : B. v. Lawrence. 48 U. 0. B., 164. 
 
 Where it appeared that the defendant had attempted to tamper with the 
 informant, the Court strongly condemned his conduct, and refused him the 
 ooBts of quashing a conviction under The Canada Temperance Act : B. v. Byan, 
 100. B., 26^ 
 
 (h) " Any person." See note (g) to sec. 11, ss. 10. 
 
 This applies to any person, whether the holder of a licence or cot, who is 
 
 (Oiilty of any offence for which a penalty is not otherwise specially provided by 
 
 the Act. 
 
 " To violate," means to break or do violence to ; to infringe ; to transgress. 
 
 It was held that a bequest to found ^n icstitution will generally be valid if 
 
 I it be added " so %b not to violate the Mortmain Acts :" Biscoe v. Jackson, 36 
 
 I Ch. D., 460. 
 
 (c) "Any other provisions of this Act." The ejuidem generis principle 
 I it seems, does not apply in general to the interpretation of Statutes conferring 
 
 powers ou the judiciary or other public functionaries, or in the construction of 
 wills, and the word " other " may, and it is evidently intended here to, include all 
 
 I provisions of the Act without limitation, for which no penalty is expressly 
 
 I prescribed. 
 
 " First offence." See notes to see. 70. 
 
 (d) *' On conviction thereof." See note ( j) to sec. 70. 
 
 " Not less than 930 besides oosts, and not more than 950 besides costs." 
 Bee note (k) to see. 70. 
 
 
 if f" 
 
 ^ivn^ 
 
. ii'h' 
 
 204 
 
 THE LIQUOR LICENSE ACT. 
 
 ("ss. 85, 86. 
 
 I j; 
 
 ft ! I: 
 
 !r»l 
 
 Impriaon- 
 meut 
 under 
 different 
 
 prisoned in the county gaol of the county in which the 
 offence was committed, for a period not exceeding one 
 month, and to be kept at hard labor in the discretion of the 
 convicting Magistrate] ; (e) and for the second offence, (/) 
 on conviction thereof, such person shall forfeit and pay a 
 penalty of not less than $40, besides costs, (g) and not 
 more than $60, besides costs, and in default of payment (/i) 
 thereof he shall be imprisoned (1) in the county gaol of 
 the county in which the offence was committed, for a period 
 not exceeding two months, (_/) and to be kept at hard labor, 
 (k) in the discretion of the convicting Magistrate ; (/) and 
 for the third or subsequent offence, (m) on conviction 
 thereof, such person shall be imprisoned in such gaol for 
 the period of three months, to be kept at hard labor, in the 
 discretion of the convicting Magistrate. («) 49 V., c. 39, 
 s. 5 ^art Amended by 52 Vic, c. 41, s. 7. 
 
 80« In the event (o) of the imprisonment of any 
 person (/) upon several warrants of commitment (g) under 
 
 (e) The olanse within br&oketa is inserted by 62 Vio., 0. 41, a. 7. 
 
 if) " Second offence." See note (m) to eeo. 70 ; see also sec. 101. 
 
 (g) " Besides costs." See note (k) to sec. 70. 
 
 (A) " In defaolt." See note {I) to sec. 70. 
 
 (i) "Imprisoned." See note (0) to sec. 70. 
 
 (j) " Not exceeding two months." See notes to see. 70. 
 
 (ft) •' At hard labor." See notes to sec. 70, p. 164. 
 
 {I) " In the discretion of the ooivncting Magistrate." See note (d) to see. 19, 
 p. 48. 
 
 (m) " Third or subsequent offence." See note (n), p. 162, and sec. 101. 
 (n) See sec. 101, ss. 6. 
 
 (0) "In the event " means " if it shall happen." " Event," that which shall 
 come to pass : Anderson's Diet., 418. 
 
 (p) " Of any person." See note {g) to sec. 11, ss. 10. " Any person " here means 
 any person convicted of offences against the provisions of the Act. 
 
 (9) "Upon several warrants." "Several" may mean: (1) "Different," 
 " Distinct from one another;" or (Si) "Divers," "sundry;" " consistiug of 
 more than two : " Worcester, 1818. in the sense in which it is used here it is 
 probably intended that the word should take its primary meaning, and that 
 " upon several wa/rants " should be read " upon more warrants than one." 
 
 The B. S. 0., 0. 181, s. 27, provides that " when an offender is convicted of 
 more offences than one, before the same Court or person at the same sitting, 
 or when any offender under sentence or undergoing punishment for one offence 
 is convicted of any other offence, the Oourt or person passing sentence may, on 
 the last conviction, direct that the sentenees passed upon the offender for his 
 several offences shall take efleot one after aaother." 
 
 .-'3? 
 
!V1 '• n 
 
 SS. 86, 87, 88.] THE LIQUOR LICENSE ACT. 205 
 
 different convictions in pursuance of this Act, whether Jj^^g"" 
 ssued in default of distress for a penalty or otherwise, the 
 terms of imprisonment under such warrants shall be con- 
 secutive and not concurrent, (r) 49 V., c. 39, s. 5, parf. 
 
 Penalties not to be remitted. 
 
 8 9f . No Police Magistrate or Justice or Justices of the 
 Peace, license commissioner or inspector, {s) or municipal 
 council or municipal officer, (/) shall have any power or 
 authority to remit, suspend or compromise any penalty or 
 punishment inflicted under this Act. R. S. O. 1877, c. 
 181, s. 58. 
 
 88« [(i) In all cases of convictions under The Liquor 
 License Act or of this Act, where the Justice or Justices are 
 authorized lo adjudge that a penalty in money, or a penalty 
 in money and costs, be paid by the defendant, and that in 
 default of payment thereof, the defendant be imprisoned 
 
 Penalties 
 orpuniBh- 
 mentanot 
 to be 
 remitted. 
 
 Costs of 
 cbmmit- 
 ment and 
 convey- 
 ing to 
 gaol. 
 
 ' warrants of oommitment," see see. 108, and Sob. I <fe J for forms of 
 See also notes to seo. 106. 
 
 As to 
 warrant. 
 
 (r) " Different convictions " may be either distinct convictions for infractions 
 of the same section or of any number of different sections. 
 
 " In default of distress for a penalty or otherwie. " The meaning here con* 
 veyed is that in all commitments to prison the terms of imprisonments mast 
 follow each other and not ran concorrently. 
 
 The power of imprisonment is either as the means of enforcing payment of a 
 pecuniary penalty or as the direct punishment for an offence committed against 
 the provisions of the Act. In either case the terms of imprisonment must be 
 consecutive. 
 
 («) " Police Magistrate." See notes to seo. 79. 
 
 "Justiceor Justices of the Peace." See notes to seo. 79. ' 
 
 " License Oommissioners." See sec. 8. 
 
 " Or Inspector." See sec. 2, ss. 8, and sees. 6, 7. 
 
 (t) " Or any Municipal Oouncil or Municipal Officer." See notes to seo. 69. 
 
 It has been said by a very high authority, that : " In the past Municipal 
 Cooncils and others have been too ready to remit penalties to those who are 
 likely to be useful at elections. This section is designed to prevent the contin- 
 uance of such a flagrant abuse of the law :" Harrison's Mun., Man., 944. 
 
 But it is very much to be questioned whether any such functionaries, or any 
 one else for that matter, ever possessed the authority to remit, suspend or 
 compromise the penalties prescribed by this Act. If they ever did possess the 
 power, however, the Statute declares in unmistakeable terms that it does not 
 now exist. 
 
 " Any penalty or punishment." The word " any " here excludes limitation, 
 and this expression is applicable to all penalties and punishments, whether 
 pecuniary or otherwise imposed for any violation of this Act. 
 
 
T 
 
 m: 
 
 206 THE LIQUOR LICENSE ACT. [ss. 88, 89 
 
 for any period, with or without hard labor, the Justice or 
 Justices may by the conviction adjudge that the defendant 
 be imprisoned, unless the sum or sums adjudged to be paid, 
 and also the costs and charges of the commitment and 
 conveying of the defendant to prison are sooner paid (u). 
 
 (2) The amount of the costs and charges of the commit- 
 ment and conveying of the defendant to prison are to be 
 ascertained and stated in the warrant of commitment.] 53 
 Vic. c. 56, s. 7. 
 
 Application of Penalties. 
 
 {See also tec. 45.) 
 
 oon of*" 80» The penalties in money {v) under this Act, or any 
 penalties, portion of them which may be recovered, {w) shall be paid 
 
 Seo. 88 of B. S. 0., 0. 194, was repealed by 68 Vic, c. 56, s. 10. The above 
 is seo. 7 of the last mentioned Aot. 
 
 (tt) This provision has been introdnoed in order to provide a means for the 
 release of an offender, even after commitment, by the payment of his fine and 
 costs. It was formerly held that the Justices were exceeding their jurisdiction 
 in making the imprisonment dependent on payment of the fine and the costs of 
 the commitment and conveying the defendant to prison. See oases cited in 
 notes to sec. 70. Bat under tJbis sub-section the Justices are empowered by 
 the conviction to adjudge "that the defendant be imprisoned, unless the sum 
 or sums adjudged to be paid and also the costs and charges of the commitment 
 aad conveying the defendant to prison are sooner paid." But the amount of 
 such costs and charges must be stated in the warrant of commitment. This 
 sub-section applies to commitments under sec. 70 and all other sections pro- 
 viding for a piecuniary penalty and costs, and imprisonment in default of 
 payment thereof. 
 
 The whole section applies to all prosecutions, and convictions made under 
 this Act, in which the Justice or Justices are authorized to award : (1) A 
 penalty in money ; or (2) a penalty in money and costs, and to order that in 
 default of payment thereof ue defendant be imprisoned. 
 
 These sections are 67, 70, sub-sections 1 and 2 of 71, 76 aud 86. 
 
 The sections to which these provisions do not apply are those which do not 
 provide for imprisonment in default of payment of the fine : These are 47, 48, 
 62, Hub-sec. 2, seo. 64, sub-sec. 8, sees. 66, 69, 66, 66, 69, 7I, sub-sec. 8, 72, 
 78, 76, 78 and 84. 
 
 {v) " The penalties in money." See note (n), sec. 46. 
 
 (to) " Or any portion thereof," etc. In the first instance the fine is payable 
 to the Magistrate or Magistrates who sign the conviction in the particular case 
 in which the money is recovered. It cannot be paid to any other Magistrate. 
 "In the case " means the case in which the penalty is awarded and recovered. 
 The Justice or Justices receiving it must pay it over to the Inspector in oases 
 in which he, or any officer appointed by the Lieutenant-Governor or License 
 Commissioners, is prosecutor or coinplainant, and in other cases to the 
 Treasurer of the Municipality. It is illegal for the Justice receiving the fine 
 to retidn money recovered in his possession and to pay it over when he sees 
 fit to do so. The money should be applied as the law directs immediately 
 upon its receipt. 
 
 ! km 
 
ss. 89, 90.] 
 
 THE LIQUOR LICENSE ACT. 
 
 207 
 
 to the convicting Justice, Justices, or police Magistrate in 
 the case, and shall by him, or them, in case the inspector (x) 
 or any officer appointed by the Lieutenant-Governor or by 
 the license commissioners, is the prosecutor or complainant, 
 (y) be paid to the inspector as provided in section 46, and 
 in case such inspector or officer is not the prosecutor or 
 complainant, then the same shall be paid to the treasurer of 
 the municipality wherein the offence was committed, (z) 
 R. S, O. 1877, c. 181, s. 60. 
 
 00« The council of every municipality (a) shall set ^"[tie'g 
 apart {l>) not less than one-third part of such fines or penal- *p^a 
 ties received by the said municipality for a fund to secure *^i'^- 
 the prosecutions for infractions of this Act, and of any by- 
 laws passed in pursuance thereof (c). R. S. O. 1877, c. 
 iSr, s. 61. 
 
 (x) " The Inspeotor " is bonnd to proseonte when information of any offence 
 against the provisionB of the Act is given to him. See see. 129. 
 
 (v) " Or any other officer appointed by the Lieatenant-Govemor." See see. 
 127. 
 " Or by the License Oommissioners." See sec. 128. 
 
 One of the officers mentioned may appear and prosecute although complaint 
 is laid by another person. In other oases he may lay the complaint and 
 employ another to appear at the hearing as proseoator. In either case the fine 
 recovered must be paid to such officer. See sec. 46. As to meaning of prose- 
 cutor, etc., see note (q) to sec. 46, p. 106. 
 
 (2) The duty imposed on the Magistrates as well as on the Inspector is 
 imperative, and all moneys received, as mentioned in the section, must be 
 paid by the Magistrate to the Inspector if he be prosecutor or complainant, 
 and by the Inspector be paid into the license fund. All such moneys go to 
 form the " License Fund." See sec. 46. 
 
 (a) " The Council of every Municipality " includes all Municipal Corpora- 
 tions, and provisional Corporations. See Mun. Act, B. B. 0. 0. 184, sees. 64-72. 
 
 (b) " Shall set apart." This provision is imperative, 'x^o " set apart " means 
 to " separate for a particular purpose or use ;" in this case for the purpose of 
 carrying out the provisions of the Act. The sum so set apart or any interest 
 received from its investment cannot be used for any other purpose. See re 
 Barber and the city of Ottawa, 39 U. 0. B., 406. 
 
 (c) The fund here created is composed of one-third part of all money penalties 
 received by the Municipality under the provisions of the last preceding section, 
 and it should be devoted exclusively to securing the prosecution of offenders 
 against the Act or any by-laws of the Municipality passed in pursuance of sees. 
 20, 32 and 42. The duty of the Municipality is here manifest. The general 
 scheme of the Act seems to be not only to make the License Oommissioners 
 and Inspectors responsible for its enforcement, but that that dutv should be 
 equally incumbent upon the Councils of all Municipalities and Municipal officers 
 charged with the preservation of the peace or the administration of the law 
 within the Municipality, including the Board of Police Commissioners, Chief of 
 Police, and all members of the Police force. See sec. 184. 
 
 iU 
 
 it' 
 
 if' \ 
 
 4 m"^ i t 
 
 li 
 
 
 M 
 
! I. 
 
 I 
 
 l».'Jl 
 
 
 til* 
 
 
 "*i»»* 
 •'••ii»» 
 
 2o8 
 
 Power of 
 County 
 Judge 
 where 
 license 
 improp- 
 erly ob- 
 tained or 
 licensee 
 convioted 
 
 THE LIQUOR LICENSE ACT. 
 
 Ls. 91. 
 
 REVOCATION OF LICENSES BY COUNTY JUDGE. 
 
 Ola Upon the complaint (d) of the inspector (e) or the 
 board of license commissioners (/) or the county attorney, 
 (g) that a license (A) has been issued contrary to any of the 
 provisions of this Act (/') or of any by-law in force in the 
 said municipality, (j) or that the license has been obtained 
 by any fraud, (k) or that the person licensed ha: been con- 
 
 id) "Upon the oomplaint." The word "apon" is in many oases used 
 elliptioally for " upon oondition of," as " upon payment of oosts ; " " npon 
 oonviotion : " Dwar. 692. Or it may mean when, or in case of ; where an act 
 is to be performed "upon" or " on " payment or tender of money, it meanu 
 " when : " Oourtright v. Deeds, 87 Iowa, 608 (1878). " Upon the death " of a 
 person, is equivalent to " in case of " his death : Oonrow v. Conrow, 14 W. N. C, 
 483 (1884). It may mean before the aot done to which it relates, or iimultane- 
 ouily with it, or after it is done, " aooording as reason and good sense require, 
 with reference to the context and subject-matter of the enactment : " per 
 Denman, G. J., B. v. Arkwright, 12 Q. B. 970, citing B. v. Humphery, 10 
 A. 16 E., 886, see Add. on Con., 191 ; Stroud's Diet., 84 ; Anderson's Diet., 
 1069. Where the expressions used are " npon admission to a public corporate 
 office," " upon the trial," "on notice being given," etc., it is generally meant 
 that the act to be done is within a reasonable time after these particular events : 
 see B. V. Humphery, 10 A. & E., 336 ; Folkard v. Metropolitan By. Go., L. B. 
 8G. P., 470; re Sampson and Wall, 26 Gh. D., 482; re Phillips, 34 Gh. D., 
 467 ; Bnokmaster v. Buckmaster, 36 Oh. D., 21 ; re Leigh, 40 Gh. D., 290. 
 But payment " on delivery " means both acts are to be done simultaneously : 
 Paynter v. James, L. B. 2, 0. P. 848. 
 
 The " complaint " may be in the form of a short petition to the Judge, the 
 form of which is suggested in sec. 92 ; but a more complete form will be found 
 in the appendix hereto. 
 
 (e) " The Inspector " here means the Inspector for the license district in 
 which the Ucense was issued, appointed under sec. 6. ; see seo. 2, ss. 8. 
 
 (/) "The Board of License Commissioners " means the License Oommis- 
 sioners for the district in which the license was issued. See seo. 8. 
 
 - (9) The " Gounty Attorney " means the County Grown Attorney for the 
 County in which the license was issued, appointed nnder B. S. 0., c. 79, s. 3. 
 He is required to attend to the prosecution of all oases committed to him by an 
 Inspector or officer appointed under this Aot. See sec. 129. 
 
 (A) " A license " means " the license which is attacked in the petition." See 
 Stroud's Diet., 1. 
 
 (t) " Contrary to any of the provisions of this Aot." See sees. 8, 9, 11. 12, 
 13, 14, 16, 16, 17, 18, 20, 22. 28, 27, 28, 29, 80, 31, 32, 33, 34, 36, 42, 64. The 
 License Commissioners and Inspector are liable for issuing any license contrary 
 to the provisions of the Aot. See sees. 66, 67. 
 
 (j) " Or any by-law in foroe in the Municipality." See sects. 20, 82, 42. 
 
 (ft) "Fraud "is something "dishonest and morally wrong:" per Wills, J., 
 ex parte Watson, 21 Q. B. D,, 301. " It means sometiiing more than mistake 
 or misconception. There must be some intention to commit fraud or otherwise 
 to deiive an nnfair benefit : re Avery, 86 Gh. D., 807. 
 
 " It does not mean deceit or ciroomvention ; it means an aneonsdentions use 
 of the power arising from the oircumstanoes and conditions :" per Selbome, 
 
 L'iv 
 
 ^ 
 
m 
 
 [s. 91. 
 
 )GE. 
 
 r (e) or the 
 
 attorney, 
 
 any of the 
 
 rce in the 
 
 n obtained 
 
 been con- 
 
 r oases Qsed 
 tn ;" '•npon 
 where an act 
 ,ey, it meanB 
 a death " of a 
 .UW.N.C, 
 or iimultane- 
 sense require, 
 stment : " per 
 lamphery, 10 
 erson'B Diet., 
 .blic corporate 
 aerally meant 
 tionlar events: 
 Ry. Co., L. R. 
 8, 84 Oh. D., 
 I Ch. D., 290. 
 moltaneouBly : 
 
 |the Judge, the 
 will be (ound 
 
 ise district in 
 
 88.8. 
 
 snse Goramis- 
 
 8. 
 tomey for the 
 
 0., c. 79, B. 3. 
 to him by an 
 
 Btition." Bee 
 
 BB. 8, 9. 11. 12. 
 fe,42, 64. The 
 loense oontrary 
 
 1 20, 82, 42. 
 per Wills, J., 
 I than mistake 
 ad or otherwise 
 
 InaoientionB use 
 per Selbome, 
 
 s. 91.] 
 
 THE LIQUOR LICENSE ACT. 
 
 209 
 
 victed (/) on more than one (m) occasion of any violation 2gainBt°* 
 of the provisions of section 79 of this Act, or has been ^*'*" 
 convicted on three several occasions («) of any violation of 
 any of the provisions of this Act, (0) whether the offences 
 in respect of which such convictions were made were the 
 same or different in their character, so long as such con- 
 victions were for offences committed on different days, (/) 
 
 L. 0., Aylesford v. Morris. 8 Gh., 484 ; Fry v. Lane, 40 Gh. D., 812 ; Stroud's 
 Diet., 806. 
 
 •' In the general aooeptation of the phrase there would seem to be no real 
 difference between ■ legal fraud ' and ' fraud :' " Derry v. Peek, 14 App. Gas., 
 337 ; Stroud's Diet., 480. 
 
 Wharton says, at p. 814 : "Fraud is deceit in defrauding or endeavoring to 
 defraud another of his right by artful device, contrary to the rule of honesty." 
 "It is impossible to lay down a definition completely comprehending fraud, 
 and no rule can, from the very nature of the subject, be invariable. Fraud is 
 infinite ; ' Creieit in orbe dolu$ :' and were the Courts to prescribe the limits 
 of their equitr.ble relief against fraud, or to define the species of evidence 
 receivable in support of it, their decrees would be continually eluded. To afford 
 complete protection, new principles must be created to meet new species of 
 fraud." 
 
 As to circumstances which will amount to fraud, see Evaus on Principal and 
 Agent, 662. 
 
 " It is a settled fact that, independant of duty, no acti jn will lie for a mis- 
 representation, unless the party making it knows it to • ^e untrue, or makes it 
 with a fraudulent intention to induce another to act on the faith of it :" Evans 
 on Principal and Agent, 892. "Fraud" means craft, cunning, cheating, 
 imposition, circumvention: Anderson's Diet., 474. An artifice to deceive or 
 injure : Byles on Bills, 9th. ed., 127. 
 
 ({) " Or has been cocvioted." See note (p), p. 28. 
 
 It was held that the Justices were not warranted in adjudicating a forfeiture 
 of the license without legal proof of former convictions. A mere reference to 
 the records of the petty sessions, where former convictions were entered will 
 not suffice : Gross v. Watts, 18 G. B. N. S., 289. 
 
 (m) " More than one." It seems that two or more convictions under sec. 
 79 will be sufficient ground for the cancellation of the license. 
 
 (n) " Three several occasions." The word " several " is sometimes used to 
 denote "any small number more than two :" Worcester, 1918. And in refer- 
 ence to this meaning of the word it was held that " seven is several." " The 
 Court said : ' several ' means more than two, but not very many, and includes 
 iieven:" Einstein v. Marshall, 68 Ala., 163; S. G. Am. Bep., 729; cited 
 Browne on Judiciul Interpretation of Oommon Words, etc., 418. 
 
 Bat as used in this section '* three several occasions " means three separate 
 and diitinot dates or times, though the word is, perhaps, not the best that 
 could have been found to express it. These occasions must be on different 
 days. 
 
 (0) " Any violation." Seenote(o) to see. 11, p. 29, for meaning of " any." The 
 expression is wide enough to include o£fences committed in different years. 
 The convictions need not be for the same offence, but may be for any offence 
 against any provision of the Act. 
 
 (p) " On different days." But although the convictions may be for the same 
 
 ^'Sji'Vitr- 
 
 111 
 
 "iV; 
 
 i'^, 
 
 i^^ '^ f it 
 

 1 
 
 I i 
 
 I 
 
 ml 
 
 m 
 
 ftii^!! 
 
 -r 
 
 iff 
 I pi 
 
 If 
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 •i'l' 
 
 2IO 
 
 «lllNi 
 
 "'*ll«* 
 
 •*ll>* 
 
 THE LIQUOR LICENSE ACT. 
 
 Ls. 91. 
 
 the Judge of the County Court of the county {q) in which 
 any municipaUty is situate in any part of which the license 
 granted is intended to take effect, (r) shall summon the 
 person to whom such license issued to appear, and shall 
 proceed to hear and determine the matter of the said com- 
 plaint in a summary manner, and may upon such hearing, (j) 
 or in default of appearance of the person summoned (/), 
 determine and adjudge that such license upon any of the 
 causes aforesaid, ought to be revoked, and thereupon shall 
 order and adjudge that the same be revoked and cancelled 
 
 or different oflenoea, thoy mast be for offences oommitted on different days. 
 See seo. 101, ss. 4, and notes thereto. 
 
 (g) " The Judge of the County Oourt." " Words directing or empowering 
 a public officer or functionary to do any act or thing, or otherwise applying to 
 him by his name or office, shall include his successors in office and Ids and 
 their lawful deputy :" B. S. 0., 0. I, s. 8, ss. 27. 
 
 The Junior Judge of the Oounty is giyen jurisdiction with reference to tho 
 business of any Gourts or to any other matter or thing over which the Senior 
 Judge of a Oounty Court has jurisdiction : B. S. 0., 0. 46, s. 12. By B. S. C, 
 c. 188, the expression "Judge" applied to a Judge of the County includes a 
 Junior Judge. 
 
 As to the jurisdiction of Judges of other Counties, see B. S. 0., 0. 46, sees. 
 14, 16. 
 
 (r) " Is intended to take effect." This might as well be expressed by saying 
 " the County in which the premises mentioned in such license are situated ; 
 see sees. 12, 17. 
 
 (<) " Shall summon." The Judge, it seems, hab no discretion ; he muat, 
 npon the petition or complaint, which, it appears, need not be verified in any 
 way, issue a summons calling upon the alleged offender to appear before him, 
 A form of summons is given in the appendix hereto. 
 
 " Shall proceed to hear and determine." The Judge must also proceed with 
 the hearing of the matter. When power is given to " hear and determine " an 
 offence, the condition is implied that the accused be first cited by summous 
 and have an opportunity of defence : Dwar. 671, 672. 
 
 To " hear " a cause or matter means to hear and determine it : re Oreen, 
 7 Q. B.^D., 278, or as Selbome, L. J., said in the same case : " hearing includes 
 not only its necessary antecedents, but also its necessary or proper oouse- 
 quenoes :" lb. nom., Green v. Penzance, 6 App. Cas., 657. See notes to sec. 101. 
 
 A provision that certain matters shall be " heard and finally determined " by 
 an inferior Court does not oust the supervision of the High Court : B. v. 
 Plowright, 8 Mod., 95, cited Maxwell, 106. But under this and the next 
 following section the decision of the County Judge is final. 
 
 " Upon such hearing " means in the event of the person summoned appearing 
 and of the trial proceeding in his presence. 
 
 (t) " In default of appearance." In the event of the person summoned failing 
 to obey the summons. When a party neglects to take the steps which are 
 required of him, judgment is given against him by default, and this may arise 
 whether the default is intentional or through mistake or neglect. His failure 
 is taken to be an implied confession of ti^e facts alleged against him in the 
 complaint. 
 
 1 1 
 
ss. 91, 92.J 
 
 THE LIQUOR LICENSE ACT. 
 
 211 
 
 Lned appearing 
 
 accordingly, («) and thereupon the license shall be and 
 become inoperative and of none efifect, and the person to 
 whom such license issued shall thereafter, during the full 
 period of two years, be disqualified from obtaining any 
 further or other license under this Act. R. S. O. 1877, 
 c. 181,8.62; 47 V. c. 34, s. 15. 
 
 09« The complaint in the preceding section mentioned, Prooed- 
 1^ f^ <=> ure under 
 
 may be by a short petition to the Judge entitled " In the preceding 
 
 County Court of the County of and " In the matter of 
 
 the license granted to {naming the defendant)" {v) praying 
 for the revocation of the said license, and upon hearing the ^ 
 
 evidence adduced, (w) or upon default of appearance of the 
 prosecutor or defendant, (x) the Judge may dismiss the 
 matter of the complaint or make such order as he deems 
 just, with or without costs to be paid by the prosecutor or 
 defendant, and the order on adjudication of the Judge shall 
 be final and conclusive, and shall not be the subject of 
 appeal or revision by any Court whatever, {y) R. S. O. 
 1877, c. 181, s. 64. 
 
 (u) "Determine and adjndge" mean nearly the same thing. The Jadge 
 may decide either (1) npon the evidence adduced, if the defendant appear, or (2) 
 upon the implied confeBsion, if he fails to appear, that the license should be 
 revoked ; and if he so find he " shall order and adjndge " that the same be 
 revoked and cancelled accordingly. A form of such order may be found in the 
 appendix. 
 
 The effect of the judgment and order is that the license not only is cancelled, 
 but that the person to whom it is issued is disqualified for two years from 
 obtaining any further or other license under the Act. 
 
 (v) The grounds on which the license will be revoked are: 1. that it 
 has been issued contrary to the provisions of this Act (note (i) sec. 91), or of 
 any by-law in force in the Municipality (note ( j), sec. 91) ; or, 2, that the 
 lioense has been obtained by fraud (note (ft), sec. 91) ; or, 8, that the holder of 
 the license has been convicted on more than one occasion of any violation of 
 seo. 79 of this Act (notes (m) and (n), sec. 91) ; or, 4, that such holder has been 
 convicted on three several occasions of any violation of any of the provisions of 
 this Act (note (0), sec. 91). 
 
 For form of petition see appendix. 
 
 The proceedings are entitled in the Ooanty Oourt of the Oounty in which the 
 licensed premises are situated. Subpoenas and other process required for the 
 purpose of enforcing the attendance of witnessess may be issued in the County 
 Court. See Harrison's Mun. Man., 946. 
 
 (10) <* And upon hearing the evidehoe adduced." See note («), sec. 91. 
 
 (x) " Or upon default of appearance." This appears to be merely a repetition 
 of the provision in sec. 91. See notes to that section. 
 
 (2^) The power given to the Judge is discretionary. He may either dismiss 
 the complidnt, or make saoh order as he deems just. 
 
 '1 'k'M 
 
 n. 
 
 iiii' 
 
 -UmH 
 
 I 
 
v: 
 
 «iir«S 
 
 ( < •'«iiK 
 
 
 
 If I i 
 
 1.^ ■■i ■ . [ 
 
 H/fM: 
 
 212 
 
 THE LIQUOR LICENSE ACT. 
 
 [S8. 93, 
 
 94. 
 
 PROSECUTIONS. 
 
 OS. Any person (z) may be prosecutor or complainant 
 
 (n) R.S. 0.1877, c. i8i, 
 
 Any per- 
 son may 
 
 be proM- in prosecutions under this Act 
 outor, etc. *^ 
 S. 66. 
 
 Informa- 
 tion. 
 
 04t All informations or complaints (d) for the prose- 
 
 As to the disorslion of a Jadge, see note (d) to see, 19. See also Maxwell 
 on Stats., 100-104, 825 ; R. v. Adamaon, 1 Q. B. D., 201 ; Wilson v. Ghuroh, 
 Gh. D., 562 and 558 ; L. B. Dig., 1885, 1418-1416 ; L. B. Dig., 18801 885, 
 508, 509 ; Sinolair's D. 0. Law, 1884, 12 ; Stroud's Diet., 216. 
 
 When a decision is " final and oonclurive " an appeal is taken away : Water- 
 honse v. Gilbert, 15 Q. B. D.. 669; Bryant v. Beading, 17 Q. B. D., 128; 
 Lyon V. Morris, 67 L. T. N. S., 824 ; Dodda v. Shepherd, 1 Ex. D., 76 ; 
 Stroud's Diet., 146, 282 ; so that the words (ollowing are mere surplusage. 
 
 The jnrisdiotion here conferred la atatntorr and limited to the particular 
 oaaea for which proviaion ia made, aee Maxwell, 265. The following remarks 
 will also apply to the power conferred upon the Judge under this section : 
 
 " The rule which requirea that penal and aome other atatutea shall be con- 
 strued strictly, seems to depend on the reasonable expectation that when ike 
 Legislature intends so grave a matter as the infliction of anffering, or an 
 encroachment on natural libert- or righta, or the grant of exceptional exemp- 
 tions, powers and privileges, ' U not leave its intention to be gathered by 
 mere doubtful inference, or cui. it in ' cloudy and dark words ' only, but will 
 express it in terms reasonably plam and explicit. It does not require or justify 
 that suspicious scrutiny of the words, or those hostile conclusions from their 
 ambiguity or from what is left unexpressed, which characterize the judicial 
 interpretation of affidavita in aupport of ex parte applications or of Magistrates' 
 convictions where the ambiguity goes to the jurisdiction. Nor doea it allow 
 the imposition of a reatricted meaning on the worda for the purpoae of with- 
 drawing from the operation of the Statute a case which falla both within its 
 scope and the fair senae of its language. Thia would be to defeat, not to pro- 
 mote, the object of the Legialature ; to miaread the Statute and miannderstand 
 its purpose; and no construction is admiaaible which would aanction an 
 evaaion of the Act. But it requires that the language ahall be ao construed 
 that no oases shall be held to fall within it which do not fall both within tlie 
 reasonable meaning of its terms and within the spirit and scope of the euaot- 
 ment. If the Legislature has not used words sufficiently comprehensive to 
 include within its prohibition all the cases which fall within the mischief 
 intended to be prevented, it is not competent to a court to extend them. It is 
 immaterial, for this purpose, whether the proceedings for the enforcement of 
 the penal law be criminal or civil : " Maxwell, 387-289. 
 (z) " Any person." See note (g), p. 28. 
 
 (a) A "prosecutor " is defined by Blaokstone as one who proaecutea another 
 for a crime in behalf of the Oovemment. A " complainant " ia said by Wharton 
 to mean " one who urges a auit or oommencea a proaecntion againat another." 
 The meaning of the two terma aeema to be aa nearly aa poasible the same, 
 except, perhaps, that the first ia often used in reference to criminal prosecutions 
 and the latter to civU prosecutions. 
 
 The term " informant " is used as denoting the person who begins a proseea- 
 tion or who lays the information upon which proceedings are instituted. See 
 notes (q) and (r), p. 105. 
 
 (b) " All informations or oomplaints." See note (a) to sec. 93. 
 
 " Informations are of a two-fold ohuaoter, one granted by the Queen's Bench 
 
 I! "fi .:^ 
 
94-J 
 
 THE LIQUOR LICENSE ACT. 
 
 213 
 
 ciition of any offence against any of the provisions of this 
 Act, shall be laid or made in writing (c) (within thirty days bl^*j^ia!** 
 after the commission of the offence, or afler the cause of 
 action arose, and not afterwards), (d) before any Justice of 
 
 at the reUtion of « private person, and the other laid by the Attomey-Oeneral, 
 ex propria tnotu, m to the officer of the Crown :" per Denman, J., R. v. Slator, 
 H Q. B. D., 267. But the information thus defined relates to an information in 
 the High Court. The information which is referred to in this section, and in 
 other places in the Act, usually means an information leading to a Justice's 
 gummons or warrant for an offence punishable upon summary conviction. 
 Stroud says that in this connection the term " information " is used as dis- 
 tiuguiBhed from *' complaint," which usually leads to an order for the payment 
 of money or otherwise : Stroud's Diet., 886. Laying the information is the 
 commencement of a prosecution before a Magistrate: B. v. Lennox, 84 
 U. C. B. , 28. The only practical distinction between an information and com- 
 plaint seems tc be that '* a conviction is the record of an affirmative adjudication 
 upon an information for an offence or act punishable either by penalty or 
 imprisonment, and that an order is a record of a like adjudication upon a 
 complaint for non-payment of a sum of money or for the doing of some other 
 thing ; a distinction which is of no very great moment, as both are issued in 
 the same way. The requirements of an information or complaint are : 
 
 (1) It should 1 ) in writing (see note (e), infra). 
 
 (2) It should be signed by the informant, but need not be sworn or affirmed 
 by him. 
 
 (3) It should state the day and year on which it is laid, in order that it may 
 appear that it was laid subsequently to the offence and ^thin the time limited 
 by the Act : B. v. Kent, 3 Ld. Baym., 1646 ; B. v. Fuller, lb. 610 ; B. v. Pioton, 
 2 East, 196; B. v. Chandler, 14 East, 273 ; but see note (d), infra. 
 
 (4) The name and style of the Justice before whom it is laid, and that he is 
 acting for his County or district, in order to shew his authority and jurisdiction. 
 
 (6) The name of the informant or complainant. 
 
 (6) The name or names in full of the defendant or defendants. 
 
 (7) The time of the commission of the offence, in order that it may appear 
 that the information was laid in due time, and made to protect tiie defendant 
 against another charge in respect of the same matter. The exact day, however, 
 need not be stated if the time is within the Statutable limits (see note (d) infra). 
 The place where the offence was committed must also be stated in the body of 
 the information, though it is not now so important to do this as it was formerly, 
 as it is capable of amendment if any variance appears between the information 
 and evidence, so long as the offence is committed within the jurisdiction of the 
 Magistrate. 
 
 (8) An exact and legal description of the offence with the same certainty aa 
 an indictment. For description of offences see schedale D. 
 
 (9| Where the question turns upon any particular sums they must be 
 particularized. 
 
 (10) It must only charge one offence, but if several offenders are engaged 
 jointly in the commission of one offence, they may be included in the one 
 information or separate informations may be laid against each offender. See 
 Saunders' Prac., 38-62. See also sec. 104 and notes thereto. 
 
 The form of information is given in Schedule C. 
 
 (c) " In writing." See note {d), p. 18. 
 
 \d) " Within thirty days " after an event means dear days : Williams v. 
 
 
 :'•(■ 
 
m 
 
 t 
 t 
 
 "I 
 
 M' 
 
 
 til'** 
 
 
 5;i ■ 
 
 i'! I I; 
 
 214 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 94. 
 
 finrgesB, 12 A. & E., 686 ; Bobinson v. Waddington, 13 Q. B., 763; Mitohellv. 
 Foster, 12 A. & E., 472; Freeman v. Beed, 8 L. T., 468 ; B. v. Shropahire, 
 
 8 A. & E., 173 ; Blunt v. Heslop, lb., 677. See notes on pages 20 and 24. 
 
 The expression ' ' after the oommission of the offence " asaally refers to violation s 
 puniuhable on summary conviction as crimes ; and the expression " after tiie 
 cause of action arose," to civil remedies. 
 
 An " offence," in general, implies something criminal, while a " cause of 
 action," is defined by Wharton as " a right to sue," and though impl^.dng a 
 wrong, does not usually comprehend anything criminal. The provisions of 
 this section apply, however, only to proceedings before Justices of the Peace 
 and not to civil oases in which remedies are provided, as might at first 
 appear. See sec. 122, et $eq. 
 
 A " cause of action " is the entire set of facts that give rise to an enforceable 
 claim ; the phrase comprises every fact which, if traversed, the plaintiff must 
 prove in order to obtain judgment: per Esher, M. B., Bead v. Brown, 22 
 Q. B. D., 128. The expression " cause of action " means in general " cause of 
 one action : " Orimbly v, Aykroyd, 1 Ex., 479; see Noxon v. Holmes, 24 0. P., 
 641, and the cases there referred to. There have been so many decisions on 
 the meaning of this expression that it would be impossible to find room for 
 them here. But the following cases may be referred to briefly : A " cause of 
 action " does not aris«) out of a damage-causing tort, or out of a tort not action- 
 able until damage done ; therefore, the Statute of Limitations does not begin 
 to run until damage happens, and each recurrence of a distinctly new damage 
 (as distinguished from a development of an old one), gives rise to a fresh cause 
 of action:' Fetter v. Beal, 1 Salk., 11. Bee Clarke v. Torke, 47 L. T. N. S., 
 881 ; Benomi v. Backhouse, B. B. A E., 622 ; 9 H. L. Gas., 608 ; Mitchell v. 
 Darley, Main, Colliery Co., 10 Q. B. D., 467 ; see Add. on Torts, 69, 60 ; Cowan 
 V. O'Connor, 20 Q. B. D., 640; Jackson v. Spittal, L. B. 6 C. P., 642; 
 Vaughan v. Weldon, L. B. 10, 0. P. 47 : Sinclair's D. 0. Act, 1879, 79, 84 tt 
 $eq ; see also notes to sec. 122. 
 
 In a case under a provision that " all prosecutions under this section shall 
 commence within twenty days after the commission of the offence, or after the 
 cause of action arose, and not afterwards ; " the information against defendant 
 was taken on the 80th Dec., 1872, laying the offence on 16th Dec. On 16th 
 January, 1878, a summons was issued on the information, and on 80th the 
 defendant was tried and convicted : Held, that <he prosecution was commenced 
 in time, and that laying the information is the commencement of the proceed- 
 ings. But when the delay in proceeding after laying the information is great, 
 and defendant is seriously prejudiced thereby, he might, perhaps, obtain rehef 
 from the Oourt : B. v. Lennox, 34 U. 0. B., 28. In B. v. Austin. 1 0. & K. ,621, 
 u was held that where the warrant of commitment was dated 11th Dec., 1814, 
 and the offence committed on 12th January, 1844, the prosecution was com- 
 menced within 12 calendar months after the commission of the offence. In B. 
 V. Wallace, 1 East, P. 0. 186, it was held that the information was the com- 
 mencement of the prosecution. But where it was necessary that the prosecution 
 should commence within three months and the prisoners were apprehended 
 within that time, but the indictment not prepared until afterwao^s, it was held 
 the prosecution was not in time : B. v. Phillips, B. <b B., 869 ; B. v. Brooks, 2 
 O. & E., 402. See Tunnicliffe v. Tedd, 6 C. B., 668 ; Yaughton v. Bradshaw, 
 
 9 0. B. N. S., 108, Paley on Con. ; B. v. Criro, 7 East, 889 ; B. v. Huggins, 3 
 0. & P., 414 ; B. V. Simpson, 10 Mod., 248 ; Saunders's Prao., 60. 
 
 It was held that the conviction need not shew that the prosecution was com- 
 menced within the time limited, as it is a matter of defence where the limitation 
 of time is in a clause subsequent to the penal section of this Act : B. v. Straohan, 
 20 0. P., 182 ; Wray v. Toke, 13 Q. B., 492 ; B. v. Woodcock, 7 East, 146. 
 
ss. 94, 9S-J 
 
 THE LIQUOR LICENSE ACT. 
 
 215 
 
 Form. 
 
 Lioenae 
 Commis- 
 sionera 
 or In- 
 spentors 
 who are 
 Juatices 
 prohibit- 
 ed from 
 trying 
 certain 
 00m- 
 plaiuts. 
 
 the Peace (e) for the county or district in which the offence 
 is alleged to have been committed, and may be made with- 
 out any oath or affirmation to the truth thereof, and the same 
 may be according to the form of Schedule C. to this Act or 
 to the like effect. R. S. O. 1877, c. 181, s. 65. 
 
 Oft. No license commissioner or inspector (/) who is 
 a Justice of the Peace, shall try or adjudicate upon any 
 complaint for an infraction of any of the provisions of this 
 Act committed within the limits of the license district for 
 which he is a license commissioner or inspector (g) ; but 
 this section shall not be construed to apply to a Judge, or 
 Junior Judge or Deputy Judge of a county. R. S. O. 1877, 
 c. 181, s. 67. 
 
 («) " Any Justice of the Peace," means one Justice of the Peace. See note 
 (d) to sec. 79, as to jurisdiction. 
 
 It seems the information may be laid before one Justice of the Peace, but in 
 gome cases the trial must take place before two or more. See sees. 96, 97, 99. 
 See B. V. Elemp, 10 0. B., 143. 
 
 W>ere the information was taken before a single Justice of the Peace, who 
 was abUng for the Police Magistrate in his absence and at his request, and upon 
 such information the defendant was brought before two Justices of the Peace 
 and remanded until the day on which he was convicted, and then convicted by 
 the Police Magistrate himself. Held, that the information was properly taken 
 under the provisions of sec. 6 of the " Summary Convictions Act," which is 
 made applicable both by B. S. 0., c. 194, s. 96, and B. S. 0., 0. 74, s. 1 : B, v. 
 Gordon, 16 0. B., 64. 
 
 (/) " No License Commissioner," &o. See sec. 3 and notes thereto. See 
 also notes to sec. 94. 
 
 (g) The Justice should be free from all bias. Strict impartiality should be 
 the first and most conspicuous attribute of the administration of justice, and no 
 man should adjudicate in a cause or matter in which he has any interest. See 
 Paley on Con., 6th Ed., 38, et teq. ; Saunders' Prac, 14. And where two Jus- 
 tices were licensed Auctioneers, and persisted in sitting on a case for breach of 
 a by-law respecting Auctioneers, they were held to be dUsquaUfied : B. v. Ohap- 
 man, 1 O. B., 582. See B. v. Justices of Great Yarmouth, 8 Q. B. D. 525 ; 
 B. V. Band, L. B. 1 Q. B., 220 : B. v. Justices of Surrey, 1 Jur. N. S., 1138 ; 
 B. V. Allen, 10 Jur. N. S., 796 ; B. v. Milledge, 4 Q. B. D., 382. It was held 
 that it was improper for the Justice to sit, the complainant being his daughter, 
 and that this was a good ground for quashing the conviction : B. v, Langford, 
 15 0. B.. 52. 
 
 "By the word tnt0r«it must be understood not merely pecuniary interest, 
 for indeed, the oases rarely arise in which any pecuniary benefit can directly 
 result, but that interest which a man may be supposed to have in a proceeding 
 which affects his property, relatives, servants, or connections :" Saunders' 
 Prac, 15. " If any one of the Justices is interestrd in the decision of the 
 question before them, he should abstain from taking part in the proceedings, 
 since his interference may not only give great dissatisfaction but have the effect 
 of rendering the judgment abortive :" See B. v, Cheltenham Commissioners, 
 1 Q. B., 467 ; B. v. Justices of Hertfordshire, 6. Q. B., 763 ; B. v. Becorder of 
 Cambridge, 8 El. & Bl., 637 ; B. v. Justices of Surrey, 16 J. P., 407 ; B. v. 
 
 
 
 ■*:■ 'H'-tt ',.■■■'■ 
 
cr 
 
 'i 
 
 1 1 
 
 I, 
 
 '/!■ 
 
 
 r !■• 
 
 !">' ■ li 
 
 !i 
 
 
 K-'.J 
 
 :f'i- 
 
 j- 
 
 
 M'f\\. ■ f 
 
 216 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 95- 
 
 Hammond, 9 L. T. N. S,, 428. A Magistrate who has snoh interest onght not 
 even to appear on the benoh, although the fact of his mere presence on the 
 bench daring part of the trial will not be sufficient ground for setting aside the 
 decision if he took no part in the hearing : B. v. Justices of London, 18 Q. B., 
 421. 
 
 Objection must be taken to the Magistrate at the hearing : Wakefield v. The 
 West Biding By. Go., 18 L. T. N. S., 590. The objection cannot be supported 
 if the Magistrate was not at the time aware of his interest : B. v. Justices of 
 Surrey, 16 J. P., 407 ; 1 Jur. N. S., 1188 ; 4 Mew's Dig., 1183. To make such 
 an objection available it must be shewn that at the time of the hearing the 
 party was in ignorance of the existence of interest in the Justice : B. v. Justices 
 of Bichmond. Surrey, 2 L. T. N. S., 878. The expression of an opinion on the 
 subject cannot affect the conviction founded upon it: B. v. Alcock, 37 
 L. T. N. S., 829; 4 Mew's Dig., 1188; B. v. Elemp, 10 0. B., 143. The 
 interest to disqualify must be of a personal and private description and not 
 such as arises from the performance of a public duty : B. v. Pettitmangin, 9 
 L. T. N. S., 87 ; 4 Mew's Dig., 1182 ; B. v. Justices of Huntingdon, 4 Q. B. 0. 
 522. But see B. v. Meyer, 1 Q. B. D., 178 ; B. v. Milledge, 4 Q. B .D., 332. 
 These cases and others are reviewed in B. v. Elemp, 10 0. B., 148. 
 
 The Court refused to quash a conviction under the 0. T. Act, on the ground 
 that one of the convicting Magistrates had not the necessary property qualifica- 
 tion, the defendant not having negatived the Magistrate's being a person within 
 the terms of the exception or proviso of sec. 7 of 0. 71, B. S. O., 1877. being 
 sec. 9 of 0. 71, B. S. 0. 1887 (" except where otherwise provided by law ") ; 
 B. V. Hodgins, 12 0. B., 869. But the possibility of bias is not sufficient to 
 disqualify; it must be re^ bias and a substantial interest when it is not 
 pecuniary : B. v. Handsley, 8 Q. B. D., 888 ; B. ». Meyer, 1 Q. B. D. , 173 : B. 
 V. Milledge. 4 Q. B. D., 882 ; B. v. Alcock, Ex. p. Ohilton, 87 L. T. N. S., 829; 
 B. V. Lee, 9 Q. B. D., 894 ; Gonmee v. G. P. B. Go., 16 O. B., 689. A Magistrate 
 who has been served with a subpoena to give evidence in a particular case is not 
 thereby disqualified from sitting as a Magistrate on the hearing and adjudication 
 of the case : B. v. Toke, 12 Q. B., 492 ; B. v. Sproule, 23 L. J. N. S., 163 ; B. 
 V. Farrant, 20 Q. B. D., 68. And where it was allege<l that the prosecutions 
 for offences against the Act were taken before the Magistrates because it " was 
 notorious that they were thorough going Scott Act men," and that they had 
 said that in no case of conviction would they inflict a less fine than 960, and it 
 was also alleged that one of them was a member of a local committee for 
 prosecuting offences against the Act, but it appeared he had resigned from the 
 committee before the Act came into force in the Gounty, it was held there vas 
 no disqualifying interest in the Magistrates nor any real substantial bias 
 attributable to them, uor any reason why they should not lawfully adjudicate 
 in the case : B. v. Elemp, 10 0. B., 148. 
 
 On the other hand, in a case under the " Scott Act " it appeared that tiie 
 defendant was Stewajrd of a social club. The members were elected by ballot, 
 and on paying an entrance fee of 91 and subscription of 926 per month were 
 entitled to use the dub-room and buy from the steward spirituous liquors. The 
 members were not responsible for goods ordered or for any general expenses, 
 An information was laid against defendant on 10th Sept., 1885, for an offence 
 against the second part of the 0. T. Act, 1878, and on 21st Sept. he was, abont 
 4 p. m., served with a summons to appear at 8.80 a. m. next day before two 
 Magistrates. On 22nd Sept. informations were, in two other cases, laid against 
 him for similar offences, and he was in each, at 8.16 a. m., served with a sum- 
 mons to appear before the Magistrates at 9 a. m. that day. When the 
 Magistrates' Gourt met the first case was partially gone into, and before it via 
 dosed the prosecution asked the Magistrates to take up the second and third 
 oases. The defendant stated that he had not understood what the summonsei 
 
 t)!; ;.,;,-. I 
 
s. 96.J 
 
 THE LIQTTOR LICENSE ACT. 
 
 217 
 
 Bt ought not 
 jenoe on tbe 
 ing aside the 
 m, 18 Q. B., 
 
 cefield V. The 
 be sapported 
 V. Justices o! 
 To make such 
 iie hearing the 
 ; B. V. Justices 
 opinion on the 
 V. Aloock, 37 
 Bm U8. The 
 iption and not 
 ?ettitmangin, 9 
 don, 4 Q. B. D. 
 I Q. B .D., 332. 
 43. 
 
 on the ground 
 jperty qualifioa- 
 a person within 
 . O., 1877, being 
 rided bylaw"); 
 not suflaoientto 
 T7hen it is not 
 ,.B.D..173: B. 
 ..T. N. S.,829; 
 9. A Magistrate 
 ioular case is not 
 and adjudication 
 ■t. N. S., 153 ; B. 
 the prosecutions 
 because it " was 
 id that they had 
 than $50, and it 
 \ committee foi 
 dsigned from the 
 W held there was 
 substantial bias 
 wittily adjudicate 
 
 00« (1) All prosecutions {h) for the punishment of p®^°. 
 any offence (/ ) against any of the provisions of sections 49, *^°°^ *** 
 
 meant, and by advice of Oonnsel refused to plead. The Magistrates entered a 
 plea in each case of not guilty, and went on with both oases. The evidence in 
 both shewed that the offences charged in each case occurred on dates different 
 from those laid in the informations. The Magistrates amended the dates in 
 the informations. The defendant and his Counsel were in Court all the time 
 awaiting completion of the evidence in the first, but refused in any way to plead 
 or take part in the second and third oases, or to ask adjournment thereof. 
 The Magistrates, after taking all the evidence therein, at the request of the 
 defendant, adjourned the first case, and in the second and third eases con- 
 victed the defendant of the offences charged in the informations. It was shewn 
 by affidavits that the Magistrates were willing in these oases, had defendant 
 pleaded, to adjourn after taking the evidence of the witnesses present. There 
 were also affidavits shewing that the Magistrates had been, before the *' Scott 
 Act,'' interested in promoting prohibition. It was held that the proceedings 
 were contrary to natural justice, as the summonses were served almost 
 immediately before the sittings of the Court which defendant was called to 
 attend. The convictions were therefore quashed with costs against the com- 
 plainant. Tbe learned Judge said : " Justices of the Peace who are opposed to 
 the principle of prohibition ought not on that account to decline to try cases 
 under the Act where in force any more than other cases for breach of the law 
 of the land. They are bound to administer the law of the land as it is, and in 
 its integrity. The law and the accused should have a fair and impartial 
 trial, for in the execution of the laws and the administration of justice neither 
 partisanship nor favoritism ought to influence a Judge, and Justices of the 
 Peace are Judges. On the other hand. Justices of the Peace who are in favor 
 of the principle of prohibition ought not to be too anxious and ready to travel 
 from their own neighborhood to distant places in the county where there are 
 resident Justices to try such cases. If they do so they may expect that their 
 motives will be, as they are in this case, impugned." " Any Justice of the 
 Peace who cannot, and does not, make up his mind to do even-handed justice, 
 give fair play, and administer the law in such cases, had better, for his own 
 sake and that of the Act, refrain from acting : " B. v. Eli, 10 0. B., 727. See 
 also R. V. Sproule, 23 L. J. N. 8., 163. It was held that the fact of one of the 
 convicting Justices being a chemist and druggist did not incapacitate him from 
 acting and adjudicating upon a prosecution for having liquor for sale without 
 license : B. v. Bichardson, 20 0. B., 614. 
 
 Attachment lies against Commissioners of Courts of Bequests who try oases 
 in wbioh they have an interest, though remote: B. v. Mclntyre, Tay., 22, cited 
 B. & J's. Dig., 1972. 
 
 By B. S. 0. 1887, c. 71, s. 15, a penalty of $100 is imposed on any Justice 
 who acts as such without having taken and subscribed the oath of qualification. 
 
 For other cases on the question of disqualifying interest in the Magistrate, 
 see R. & J's., 1972 ; 4 Mew's Dig., 1091, 1179-1185 ; L. B. Dig., 1865-1880, 
 2043-2046 ; L. B. Dig., 1881-1886, 731 ; L. B. Dig., 1886-1888, 277 ; Saunders' 
 Prac, 14-19, 82, 369 ; Faley on Con., 6th Bd., 38, et leq. 
 
 (/() "All prosecutions." See sec. 54, note (n). 
 
 (i) " Any offence." See note (0), p. 29. 
 
 This section appUes to these offences : Selling liquor without license, (sees. 
 1 49, 70) ; the use of any sign or inducement leading to the beUef that the person 
 is licensed when he is not, (sec. 49, ss. 2) ; keeping spirituous liquor for sale 
 I without license, or permitting liquors to be consumed on unlicensed premises, 
 |(e«o. 60); clubs or societies selling without hcense, (see. 53), selling liquor 
 I during prohibited hours, (sec. 54) ; selling liquors from ships in port, (sec. 59) ; 
 
 \ m 
 
 
 :-.^' 
 
\w 
 
 2l8 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 96. 
 
 bebflfore ^q^ ^^^ ^g^ go, 66, 70, and 79 of this Act, or any section 
 Soe?'°' for the contravention of which a penalty or punishment is 
 prescribed by [section 85], whether the prosecution is for the 
 recovery of a penalty or for punishment by imprisonment, 
 may take place before any two or more of Her Majesty's 
 Justices of the Peace (j) having jurisdiction in the county 
 or district in which the offence is committed (^). 
 
 .1 i 
 
 |. .1! 
 
 f 
 
 urn' 
 
 allowing liquors to be drank on the premises of any person having a shop 
 license, or on the premises of any chemist or druggist, (see. 60) ; the acceptance 
 of money by License Oommissioners or Inspectors, (sec. 66) ; keeping a disorderly 
 hoase or place of public entertainment, or allowing ({ambling, &o,, on the pre- 
 mises, (sec. 79) ; and offences for which no punishment is specially prescribed, 
 whether any such offences are for a pecuniary penalty or punishment by 
 imprisonment. The purchaser of wearing apparel, &c., or receiving goods in 
 pawn for liquor by any licensed person is an offence requiring the adjudication 
 of a Stipendiary or Police Magistrate, or two Justices of the Peace, (sec. 65). 
 
 Any prosecutions for these offences must be before two or moro Magistrates, 
 except in cases in which an appeal lies against the conviction to the County 
 Judge, and the offence is committed in a township, or an incorporated or police 
 village, or in an unorganized district, when the prosecution may take place and a 
 conviction be made before one or more Justices. See sec. 99, and notes thereto. 
 
 It was said that the Orown is not obliged under this section to prosecute 
 before two Magistrates, as a private individual would be, but may proceed in 
 the High Court by information : per Wilson, J., B. v. Taylor, 36 17. G. B., 183. 
 
 (j) " Two of Her Majesty's Justices of the Peace." See sec. 79, note (d), 
 and see also B. v. Bow, 14 C. P., 807, in which it was held that a conviction by 
 two Justices of the County of Middlesex, sitting in the City of London, Ont., 
 was bad, as they had no jurisdiction in the latter place. See also Hunt v, 
 McArthur, 24 U. 0. B., 254, in which it was held that where a Magistrate was 
 acting out of his jurisdiction an action for malicious arrest was misconoeived. 
 See B. V. Firmin, 33 U. G. B., 523 ; B. v. Lynch, 19 0. B., 664. 
 
 It was held that in a case under sec. 70 for selling liquor without a license, 
 a remand of the defendant by only one Justice could not affect the conviction : 
 B. V. Menary, 19 O. B., 691. 
 
 And an information can be laid before one Justice, ^though two must try 
 the case : B. v. Klemp, 10 O. B., 148 ; see also B. v. Bussell, 13 Q. B., 237. 
 
 " A Police Magistrate sitting at a Police Court, or other place appointed in 
 that behalf, shall have full power to do alone whatever is authorized by any 
 statute in force in the Province relating to matters within the leKislatire 
 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 : " 
 B. S. O., c. 72, s. 21. And a like provision is contained in the " Summary 
 Convictions Act," sec. 10. 
 
 (k) The words " being within the jurisdiction of such Justice" in sec. 13 of 
 the Summary Convictions Act, B. S. G. c. 178, were held to refer to the tim: 
 when the offence or act was committed, and not to the time when the informa- 
 tion was laid ; and an order niti to quash a conviction for an offence against 
 the second part of the C. T. Act on the ground that where the defendant vsi 
 not within the territorial jurisdiction of the convicting Magistrate at the time 
 the information was laid, having left it after the offence was committed, wu 
 
ss. 96, 97.] 
 
 THE LIQUOR LICENSE ACT. 
 
 219 
 
 (2) The Justice (/) shall in all cases reduce to writing the ^^1,^*°°® 
 
 evidence of the witnesses examined before them, and shall '^Hf? *" 
 
 ' writiiig. 
 
 read the same over to such witnesses, who shall sign the 
 same (;//). R. S. O. 1877, c. 181, s. 68. Amended 53 
 Vic. c. 56, s. II. 
 
 09* All prosecutions under this Act (n), other than All other 
 ■^ ^ " proaeou- 
 
 those mentioned in the preceding section whether for the pons may 
 
 , be before 
 
 recovery of a penalty or otherwise, may be brought and one or 
 heard before any one or more of Her Majesty's Justices of tioea. 
 the peace in and for the county where the forfeiture took 
 place, or the penalty was incurred, or the offence was com- > 
 
 mitted or wrong done. R. S. O. 1877, c. 181, s. 69. 
 
 refused. It was held that the Magistrate had jnrisdiotion : B. v. Bachelor, 15 
 0. R., 641. 
 
 See further notes, sees. 104, 105. 
 
 (I) " The Jastices " here referred to are those sitting at the hearing of any 
 proseontion nnder the Act. The evidence in all oases shonld be reduced to 
 wilting, and in doing this the Magistrates should use as nearly as possible the 
 exact language of the witnesses. 
 
 (m) Sec. 86 of "The Summary Convictions Act" provides that "every 
 witness at any hearing shall be examined upon oath or affirmation, and the 
 Justice before whom any witness appears for the purpose of being examined 
 shall have full power and authority to administer to every witness the usual 
 oath or affirmation." 
 
 In Acts of Parliament expressions referring to writing shall, unless the 
 contrary intention appears, be construed as including references to printing, 
 lithography, photography, and other modes of representing or reproducing 
 words in a visible form. See note (d) to sec. 8. 
 
 As to signature see note (s), sec. 34. 
 
 (n) This section appUes to all prosecutions under the Act other than those 
 mentioned in sec. 96. Among these may be included — neglect to expose license 
 (see. 47) ; failure to exhibit notice of being hcensed (sec. 48) ; giving a colorable 
 certificate by any medical practitioner or Justice of the Peace (sec. 52. ss. 2) ; 
 failure to keep the bar-room closed on Sunday (sec. 55) ; being found in a bar- 
 room daring prohibited hours (sec. 66) ; selling Uquor on poUing days (sec. 67) ; 
 obtaining hqnor at prohibited times (sec. 68, see. 71, ss. 3) ; purchasing liquor 
 from an unlicensed person (sec. 68, as. 2ft) ; allowing liquor to be consumed in 
 premises licensed to sell by wholesale (sec. 61) ; selling Uquor to unlicensed 
 persons (sec. 62) ; keeping more than one bar in any hcensed house (sec. 63) ; 
 not providing separate entrance to the bar (sec. 64) ; issuing Ucense contraiy 
 to the Act (sec. 67) ; refusing to furnish lodgings, meals, etc. (sec. 72) ; per- 
 mitting drunkenness, etc. (sec. 78) ; using internal oommnnioation between 
 licensed and unlicensed houses (sec. 74) ; allowing internal communication 
 with premises in which other goods are sold (sec. 76) ; supplying liquors to 
 minors (sec. 76) ; allowing hquor to be unlawfully consumed on premises (sec. 
 77) ; purchaser of liquor from an unhcensed person, drinking same on premises 
 where bought (sec. 78) ; purchaser drinking liquor in premises to wUch shop 
 or wholesale Ucense applies (sec. 78, ss. 2) ; harbouring constables on duty 
 (see. 80) ; compromising offences (sec. 81) ; being oonoemed in such compromise 
 (sec. 82) ; tampering with a witness (aeo. 84). 
 
 ii 
 
 \( 
 
 o 
 
 r I 
 
"•^ 
 
 EaF!' 
 
 ;i. !■ 1 i\ 
 
 fi- 
 
 I I 
 
 •>«iii 
 
 220 
 
 THE LIQUOR LICENSE ACT. 
 
 fs. 98. 
 
 Proseou- 
 tiona 
 under 
 resolu- 
 tions of 
 License 
 Gommia- 
 Bioners, 
 imposing 
 penalties. 
 
 Bev. Stat, 
 c. 184. 
 
 ©8. In all cases where the board of license commis- 
 sioners passes a resolution in pursuance of the powers 
 conferred upon them by sections 4 and 5 of this Act, {<>) 
 and in and by any such resolution, penalties are imposed 
 for the infraction thereof, such penalties may be recovered 
 and enforced by summary proceedings before any Justice 
 of the Peace having jurisdiction, in the manner and to the 
 extent that by-laws of municipal councils may be enforced 
 under the authority of The Municipal Act; (/) and the 
 convictions in such proceedings may be in the form set 
 forth in section 427 of the said last mentioned Act. R. S. 
 O. 2877, c. 181, s. 70; 47 v., c. 34, s. 17. 
 
 As to the right of appeal; see seo. 118 ; B. v. Firmin, 88 U. 0. B., 523. 
 See in re Brown and Wallace, 8 L. J. N. S., 81. 
 See also notes to seo. 96 and 99. 
 
 (0) Sees. 4 and 6 of this Act empower the Board of License Oommissioners 
 to pass resolutions for regulating and determining the following matters : (1) 
 Defining requisites for granting tavern and shop licenses; (2^ limiting the 
 number of licenses ; (3) exemption from having accommodation in certain 
 cases ; (4) regulating taverns ; (6) defining duties of Inspectors ; (6) imposing 
 penalties for the Infraction of such resolutions. See notes to those sections. 
 
 (p) This section practically incorporates those provisions of the Municipal 
 Act for the enforcement of the by-laws of Municipal Oouncils. Formerly the 
 power of regulating taverns and shops was vested in Municipal Councils, see 
 Smith V. The City of Toronto, 10 0. P.. 225 ; in re Bright v. The City of 
 Toronto, 12 C. P., 483. This power now belongs to and is to be exercised by 
 the Boards of License Commissioners, except where provision is made to the 
 contrary by the Act : per Harrison, C. J., Brodie and The Corporation of Bow- 
 manville, 38 U. C. B., 580, p. 685 ; «n re Arkell and The Town of St. 
 Thomas, 38 U. 0. B., 594. See also see. 64, note (v), and sees. 20, 32, 42, 
 and notes thereto. 
 
 Seo. 420 of the " Municipal Act " provides that " every fine and penalty 
 imposed by or under the authority of the Act may, unless other provision is 
 specially made therefor, be recovered and enforced with costs by summary con- 
 viction before any Justice of the Peace for the County or the Municipality in 
 which the offence was committed, and in default of payment the offender may 
 be committed to the common gaol, house of correction, or lock-up house of the 
 County or Municipality, there to be imprisoned for any time in the discretion 
 of the convicting Justice, not exceeding (unless where the provision is specially 
 made) thirty days, and with or without hard labour, unless such fine and penalty 
 and costs, including the costs of committal, are sooner paid." 
 
 A conviction ordering imprisonment in default of payment of the fine with- 
 out any provision for distress, under this section would be bad : B. v. Bleakley, 
 6 P. B., 244. 
 
 By sec. 421, the Justice cr other authority before whom a prosecution is had 
 for an offence against a Municipal by-law, may convict the offender on the oath 
 or affirmation of any credible witness, and shall award the whole or such part 
 of the penalty or punishment imposed by the by-law as ho thinks fit, with the 
 costs of prosecution, and may by warrant under the hand and seal of the Justice 
 or other authority, or in case two or more Justices act together therein, then 
 
s. 98.] 
 
 THE LIQUOR LICENSE ACT. 
 
 221 
 
 se commis- 
 the powers 
 tiis Act, (0) 
 \xe imposed 
 e recovered 
 any Justice 
 and to the 
 be enforced 
 (^) and the 
 he form set 
 Act. R. S. 
 
 B., 623. 
 
 CommiBsioners 
 ig matters : (1) 
 2) liiuiting the 
 tion in certain 
 a ; (6) imposing 
 tiose aeotions. 
 if the Manioipai 
 Formerly the 
 lal Coonoils, see 
 V. The City of 
 be exeroised b; 
 is made to the 
 loration of Bow- 
 Town of St. 
 aeoB. 20, 32, 42, 
 
 oseoation is had 
 ader on the oath 
 ole or Buchpait 
 inks fit, with the 
 Bal of the Justice 
 ler therein, then 
 
 nnder the band and aeal of them, caoBO any aaoh peoaniary penalty and ooBts, 
 or costa only, if not forthwith paid, to be levied by distresa and sale of the 
 gooda and chattels of the offender. 
 
 The word " credible witneaa " in thia aection ia equivalent to " competent 
 witneaa:" Hawea v. Humphrey, 9 Pick. Maaa., 860; Haven v. Hilliard, 23 
 Pick. Maaa., 10 ; Armoy v. Fellowa, 6 Maaa., 219 ; Sears v. Dillingham, 12 
 Maaa., 288 ; Jarmon on Willa, Srd. ed., 82 ; ao that such witneaaea only can be 
 properly examined as are competent witneaaea in a Court of Juatice. When 
 pecuniary intereat amounted to a diaqnalifioation, the informer, when entitled 
 to a part of the penalty, waa incompetent both on the ground of interest and on 
 the ground of being a party entered on the record : B. v. Tilly, 1 Str., 316 ; 
 B. V. Stone, 2 Ld. Baym., 1646 ; B. v. Blaney, Andr., 240; B. v. Piercy, lb., 
 18 ; B. V. Bobotham, 3 Burr., 1472 ; B. v. Shipley, cited in Gilb., 113 ; and 
 other oasea cited in Harriaon'a Mnn. Man., 312. But ao far aa thia Act is con- 
 cerned, it ia expreaaly provided that " the person giving or n.aking the 
 information or complaint shall be a competent witneaa :" aeo. 424, Mun. Act. 
 See alao B. S. 0. 0. 61, a. 9, which providea that " on the trial of any proceeding, 
 matter or queation, under any Act of the Legialature of Ontario, or the trial of 
 any proceeding or matter before any Juatice of the Peace, Mayor or Police 
 Magistrate, not being a crime, the party opposing or defending, or the wife or 
 hnsband of the peraon oppoaing or defending, ahall be competent and compel- 
 lable to give evidence therein." But peraona on trial for a criminal offence 
 cannot teatify for or againat themaelvea : aee Windaor v. B., 7 B. & S., 490 ; 
 Attorney-Oeneral v. Badloff, 10 Ex., 84 ; but aee notes to aeo. 116. If 
 imprisonment may, in the first inatance, follow the conviction, the proceeding 
 ia in general looked upon aa a criminal one : per Piatt, B., Attorney-General v. 
 Badloff, 10 Ex., 84. 
 
 There are many crimes, properly so called, which are liable to be punished on 
 summary conviction. But there are a vast number of acta, which in no senae are 
 crimes, which are puniahable ; auoh, for inatance, aa keeping open honae after 
 certain houra, and a variety of breaches of poUce regulations, which will readily 
 ooonr to the mind of any one : per Martin, B. , 10 Ex. 84, at p. 96. Where the pro- 
 ceeding ia for thepurpoae of obtaining redreaa for a violation of a private rightonly, 
 the proceeding ia a civil one ; but on the other hand, if the proceeding ia for the 
 punishment of an offence againat the general interest of the community and 
 for the puniahment of the infraction of aome public duty, it is a criminal pro- 
 ceeding : per Sir A. Cookburn, in arguing the same case, p. 86. It ia not an 
 easy matter to draw a line and ao be able to decide on which aide of the oaae it 
 should be placed. See Attorney-General z>. Bowman, 2 B. & P., 632 ; Attorney- 
 P leral z/. Siddam, 1 0. (& J., 220; Huntley v. Luaoombe, 2 B. & P., 630; 
 Baokham v. Bluck, 9 Q. B., 691 ; Cobbet v. Slowman, 9 Ex., 633 ; Ex parte 
 Eggington, 2 E. (fc B., 717; Sweeny v. Spooner, 3 6. & S., 329: Beeve v. 
 Wood, 6 B. (& S., 364 ; Attorney-General v. Sullivan, 32 L. J. Ex., 92 ; 
 Easton'a oaae, 12 A. d; E., 646 ; Oattel v. Ireaon, E. B. & E., 91 ; Morden v. 
 Porter, 7 0. B. N. S., 641 ; Heame v. Garton, 2 E. & E., 66 ; Parker v. Green, 
 2 B. & S., 299 ; In re Lucaa and MoQlaahan, 29 U. 0. B., 81 ; B. v. Boardman, 
 30 U. G. B., 668 ; B. v. Boddy, 41 U. 0. B., 291 ; Peek v. Shielda, 6 App. B., 
 639 ; B. V. Laokie, 7 O. B., 431, and other caaes cited in notea to aeo. 116. 
 
 The Juatice may impoae the whole or ntch part of the penalty aa he thinks Jit. 
 
 The warrant ia required to be under the " hand and seal " of the Justice and 
 must therefore be in writing : Hutchinaon v. Lowndea, 4 B. •& Ad., 118 ; see 
 also Wilson v. Wallani, 6 Ex. D., 166. 
 
 Sec. 422 providea that in caae of there being no diatreaa found, out of which 
 the penalty can be levided, the Juatice may commit the offender to the common 
 gaol, houae of correction, or neareat lo«k-up bouae, for the term or aame part 
 thereof specified in the by-law. 
 
 ■« vfl 
 
 m 
 
 > <? 
 
I!: 
 
 »! 
 
 i; 
 
 ^1 i 
 
 »'»» 
 iii>« 
 
 3 
 
 "■•'I 
 
 "■■till** 
 
 
 !;;t I ;•, 
 
 ■A 
 
 H " If f' 
 
 i 
 
 If 
 
 l^& 
 
 
 im 
 
 222 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 98. 
 
 The power of eommitment in here oontingent on there being no distreia 
 fonnd, oat of which the penalty can be levied. See notes to sees. 70, 88, 105, 
 and note (u), p. 166. 
 
 The commitment mast be in writing : Mavhew v, Locke, 3 Marsh, 877 ; 
 and it should be drawn op immediately after the commitment is ordered ; in 
 re Masters, 83 L. J., Q. B. 146. Detention of the party cannot be jastifled 
 farther than necessary to make oat the warrant : Hutchinson v. Lowndes, 4 
 B. & Ad., 118 ; but the detention of the party till the return of the warrant of 
 distress may, it seems, be by parole : Stile v. Walla, 7 East, 083. 
 
 For forms, see appendix. 
 
 By sec. 424, the person giving the information or complaint is made a com- 
 petent witness. 
 
 By sec. 425, ratepayers, members, offioers, etc., of the Corporation are also 
 made competent witnesses. 
 
 Sec. 426 provides that witnesses may be compelled to attend and give 
 evidence in the same manner and by the same process as they are compelled to 
 attend and give evidence on summary proceedings before Justices of the Peace 
 in oases tried summarily under the Statutes now in force, or which may be 
 hereafter enacted. Bee notes to sec. 116. 
 
 See. 427 provides that it shall not be neoessary in any conviction made under 
 any by-law of any Municipal Oonncil to set out me information, appearance, or 
 non-appearance of the defendant or the evidence or by-law under which the 
 conviction is made, but all such convictions may be in the form following : 
 
 PfioviHoa OF Ontabio, 1 fie it remembered that on the da; 
 
 CouNTZ OF r **' , A. D. 18 , at , 
 
 TO WIT : J in the Gonnty of 
 
 A. B. is convicted before the undersigned, one of Her Majesty's Justices of the 
 Peace in and for the said County, for that the said A. B. (stating the offence 
 and the time and plaee, and when and where eommitted), contrary to a certain 
 by-law of the Municipality of the of in the said County of 
 
 , passed on the day of , A. D. 18 , and 
 
 entituled (reciting the title of the by-law), and I adjudge the said A. B., for his 
 said offence, to forfeit and pay the sum of , to be paid and applied 
 
 according to law, and also to pay C. D., the complainant, the sum of 
 for his costs in this behalf. And if the said several sums are not paid forth- 
 with {or on or before the day of , a$ the eate may be), I 
 order that the same be levied by distress and sale of the goods and chattels of 
 the said A. B. ; and in default of sufficient distress I adjudge the said A. B. to 
 be imprisoned in the common gaol of the said County of {or, in the 
 lock-up at ), for the space of days, unless the said several 
 sums, and all costs and charges of conveying the said A. B. to such gaol (or 
 lock-up) are sooner paid. 
 
 Qiven under mv hiidid and seal, the day and year first above written, 
 at , in the said County. 
 
 [l. 8.] J. M., 
 
 J. P. 
 
 A form adapted from this for a oonvietion under sec. 98 of the License Act 
 wiU be found in the appendix. 
 
 The conviction should shew the by-law to have been passed by the Council 
 of the particular Municipality : B. v. Osier, 82 U. O. B., 824. The omission 
 of the date or title of the by-law would not be fatal to the conviction, if the by- 
 law be in other respects sufficiently referred to : lb. But some reference to the 
 by-law is necessary : In re Livingstone, 6 P. B., 17 
 
 s. 
 
[s. 98. 
 
 ling no distreis 
 MB. 70, 88, 105, 
 
 a Marsh, 877; 
 t is ordered ; in 
 not be jastified 
 n V. Lowndes, 4 
 [ the warrant of 
 iS. 
 
 I is made a oom- 
 
 oration are also 
 
 attend and give 
 are compelled to 
 lea of the Peaoe 
 ■ which may be 
 
 tion made nnder 
 I, appearance, or 
 nder which the 
 a following : 
 
 day 
 
 a Justices of the 
 ting the offence 
 kry to a certain 
 
 said County of 
 
 18 , and 
 
 id A. B., for his 
 
 lid and applied 
 
 nm of 
 
 not paid forth- 
 ease may be), I 
 
 and obattels of 
 he said A. B. to 
 {or, in the 
 ine said several 
 such gaol (or 
 
 above written, 
 
 J. M.. 
 J. P. 
 
 the License Act 
 
 by the Gonncil 
 The omission 
 stion, if the by- 
 reference to the 
 
 s. 99.] 
 
 THE LIQUOR LICENSE ACT. 
 
 223 
 
 OO. When by this Act (f) it is provided that any j°°f,Qg 
 prosecution may take place before two or more of Her """•y J»®" 
 Majesty's Justices of the Peace, (r) having jurisdiction in '?'f'^'^" 
 the county or district in which the offence is charged to ti«8' 
 have been committed, (s) then in case (/) an offence is 
 committed in a township, or in an incorporated, or police 
 village, or in an unorganized district, the prosecution may 
 take place before and a conviction or order may be made . 
 by, one or more of such Justices of the Peace, instead of 
 " two or more " of such Justices, whenever an appeal lies 
 against such conviction or order to the County Judge («). 
 
 The remarks upon the sections of the Municipal Act here quoted are taken 
 chiefly from Harrison's Mun. Man., pp. 811-817. Reference to this excellent 
 work is recommended. Full notes will be found at pages 811-817, 860-867 of 
 that work. Notes on similar subjects are to be found in other parts of this 
 work, as for instance, on the question of the competency of the parties to pro- 
 seoutions under the Act as witnesses. Beference to the index will enable the 
 reader to find these notes. 
 
 (g) " When by this Act," means when " in pursuance of this Act," or 
 " nnder and by virtue of this Act." In strictness anything not authorized by 
 a Statute cannot be in " pursuance " or " under and by virtue " of it, whilst if 
 authorized it would need no other protection. But if effect were given to such con- 
 struction, it would altogether do away with the protection intended to be given ; 
 accordingly it is held that if any pubUc or private body, or person charged with 
 the execution of an Act of Parliament, honestly intends to put the law in motion 
 and really, and not unreasonably, believes in the existence of facts, which, if 
 existent, would justify his acting and acts accordingly, his conduct would be 
 "in pursuance "or" under or by virtue " of the Statute under which he believes he 
 is acting, although he errs in such belief. The question whether there was in 
 fact reasonable ground for such belief, is a subordinate belief and one very 
 material to be pressed on the minds of the jury; but the presence or absence 
 of such reasonable ground can only be relied on for the purpose of determining 
 whether the belief was bona fide or not : Herman v. Seneschal. 18 0. B. N. S., 
 392 ; Roberts v. Orchard, 2 H. iS; 0., 769 ; Judge v. Selmes. L. B., 6 Q. B., 
 724 ; Chamberlain v. King, L. B. 6 C. P., 474 ; Midland B'y. Co. v Withington, 
 11 Q. B. D., 788 ; Hughes v. Buckland, 16 M. & W., 846 ; Lea v. Facey, 19 
 Q. B. D., 852 ; Sinden v. Brown, 17 App. B., 178; Bond v. Conmee, 16 App. B. 
 398 ; Maxwell, 278 ; Boscoe, N. P., 1078, 1088, 1095, 1099-1104 ; Stroud's 
 Diet., 639. 
 
 " When " usually creates a condition precedent : JoUey v. Hancock, 7 Ex., 820. 
 See note {t) below. 
 
 (r) "Two or more of Her Majesty's Justices of the Peace." See notes 
 to sec. 96 ; also sees. 65, 79 and notes thereto. 
 
 (() " Having jurisdiction," &o. See note (d) to see. 79. 
 
 (t) " Then in case," creates a condition precedent. See note {q), supra. 
 The phrases "if," "when," "provided," "incase," "so soon as," have been 
 said to be synonymous : Shrimpton v. Shrimpton, 81 Beav., 425. See sec. 88, 
 note («), p. 86. 
 
 " Is charged," means is " accused." To " charge " is defined by Wharton as 
 " to prefer an accusation against any one." See notes to sec. 70. 
 
 (u) This section applies to the prosecution of offences committed in a Town- 
 
 m- 
 
 i ■■ 
 
/ . 
 
 324 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 99, too. 
 
 >i 
 
 ' ; t 
 
 -■r^ 
 
 'i» I '■ 
 
 •••iiiii^ 
 
 Costa in 
 oonvio- 
 tions or 
 orders 
 under fn. 
 
 When such prosecution takes place before or a conviction 
 or order is made by one Justice instead of two or more, the 
 forms in the schedule to this Act may be altered and 
 adapted so as to meet the exigencies of the case. 49 V. c. 
 39, s. 20. 
 
 100* In all cases of conviction, or orders made 
 under and in pursuance of sections 65, 72, 73, 74, 76 and 
 78 of this Act (»), the Justice or Justices making the same 
 
 ship, incorporated village, polioe village, or in an unorganized distrlot, and in 
 which an appeal lies against a conviction of the Magistrate to the Ooonty 
 Judge. For cases coming within the latter condition see sec. 118. See also 
 sees. 97 and 99 and notes thereto. 
 
 " Township " includes " Townships, union of Townships, or united Town- 
 ships, as the case may be." Municipal Act, sec. 2, ss. 6. 
 
 An " incorporated village " is a village of 760 inhabitants or more, incorporated 
 under the Municipal Act, sees. 9-17. 
 
 An unincorporated village, as distinguished from an " incorporated village," 
 may be defined as a collection of houses merely without any incorporation. 
 The words " town" and " village " are used in this sense in English Acta of 
 Parliament : see B. v. Fisher, 8 O. & P., 612 ; Elliott v. C;ou<.h Devon By. Co., 
 2 Ex., 726 ; B. v. Oottle, 16 Q. B., 412; EUiott v. South Devon By. Co., 
 cited B. V. Oottle, 16 Q. C, 420 ; Milton- Next- Sittingbome v. Faversbam, 
 10 B. &. B., 648 ; London & 8. W. By. Co. v. Blackmore, L. B. 4 H. L., 610 ; 
 Blackmore v. London & 8. W. By. Co., 19 L. T. N. S.. 6 ; Bond v. Conmee, 
 16 App. B., 898. 
 
 In the United States a railw&y station house, a warehouse, a store, a black- 
 smith's shop, a post-office, and five or six dwelling houses were held to 
 constitute a village: Toledo, etc.. By. Co. v. Spangler, 71 111., 668. '< So it 
 seems that a lawyer and a church are not essential to a ' village ':" Browne on 
 the Judicial Interpretation of Words, etc., 603. Webster defines a village to 
 be " an assemblage of houses in tht country less than a town or city and 
 inhabited by farmers and other laboring people." See Truax v. Pool, 20 Iowa, 
 256 ; Browne on the Judicial Interpretation of Words, etc., 476. A " police 
 village " may be set apart by a County Council with such limits as are deemed 
 expedient (see. 639 Mun. Act). The members of the Executive and Legislative 
 body of a polioe village consist of three trustees (sec. 641 Mun. Act). They are 
 elected by the persons whose names appear by the assessment roll of the 
 Township to be entitled to vote in such police village (sec. 652 Mun. Act), and 
 the nomination for such trustees takes place annually on the last Monday in 
 December, the election on the first Monday in January (sec. 648 Mun. Act). 
 
 " Unorganized districts " are such as have not been erected into an organized 
 Municipality. See " The Unorganized Territory Act," B. 8. 0. 0. 91. 
 " One or more such Justices of the Peace." See sec. 79, note. (d). 
 •• Two or more such Justices." See sees. 94, 96, 97, and notes thereto. 
 
 (v) A " conviction " is the act of a legal tribunal adjudging a person guilty 
 of a criminal offence: Wharton, 180; and se« note (6), sec. 94. An "order" 
 is a mandate, precept, command ; particular orders are made to enforce pay- 
 ment of money, to enforce obedience to justice, and compel that which is 
 right to be performed : Wharton, 621. 
 
 A " conviction " is a record of an affirmative adjudication upon an informa- 
 tion for an offence or act punishable by a penalty or imprisonment ; and an 
 
<;S TOO, lOI.] THE LIQUOR LICENSE ACT. 
 
 225 
 
 united Towu- 
 
 '6, incorporated 
 
 may, in his or their discretion, award and order, in and by "• ^J^; 
 the conviction or order, that the defendant shall pay to the 
 prosecutor or complainant such costs as to the said Justice 
 or Justices seem reasonable in that behalf, and not incon- 
 sistent with the fees established by law to be taken on 
 proceedings had by and before Justices of the Peace (w). 
 48 V. c. 43, s. 7. 
 
 PROCEDURE IN CASES WHERE PREVIOUS CONVICTION 
 
 CHARGED. 
 
 lOl.* The proceedings (x) upon any information for Prooeed- 
 
 " order " is a like adjudioation apon a oomplaint for non-payment of a earn of 
 money, or for the doing of some other thing : Saunders' Prac, 28. 
 
 The Justice or Justices on oonviction should first make a minute or memor- 
 andum thereof, and the conviction or order is afterwards drawn up in proper 
 form : Saunders' Prac, 161. And the conviction must follow the adjudication : 
 B. V. Brady, 12 O. B., 858 ; B. v. Higgins, 18 0. B., 148 ; B. v. Cantillon, 10 
 0. B., 197. But see B. v. Hartley, 20 0. B., 481, cited in notes to sec. 106. 
 
 As to form of conviction, see sec. 102. 
 
 This section applies to convictions under the sections mentioned, and not to 
 any other. 
 
 (w) " Upon conviction." The Justice or Justices may either order the 
 defendant to pay the prosecutor or complainant his costs, or may not in his or 
 their discretion. The conviction must contain the order for payment of costs, 
 and must specify the amount : Bott v. Ackroyd, 6 Jur., N. S. 1068 ; B. v. Isle 
 of Ely, 6 E. <b B.. 489 ; Tarry v. Newman, 16 M. & W., 646 ; Wray v. Toke. 
 12 Q. B., 492, 609 ; B. v. Westmoreland, 1 D. & L., 178 ; Lock v. Sellwood, 
 1 Q. B., 736 ; ex parte Holloway, 1 Dowl., 26. 
 
 See B. V. Wright, 14 O. B., 668 ; B. v. Bowlin, 19 0. B., 199 ; B. v. Clarke, 
 19 0. B., 631 ; all of which will be found in this work. See case cited in notes 
 to Beos. 70 and 106. 
 
 Coats of the application to quash a conviction will be adjudged against a 
 private prosecutor where he lays an information without having reasonable 
 ground for believing that the charge will be sustained by proper evidence : B. 
 V. Kennedy, 10 0. B., 896. 
 
 " As may seem reasonable." See sec. 11, ss. 8, note (10), p. 26. 
 The costs awarded must not be inconsistent with the fees established by law 
 to be taken in proceedings by and before Justices of the Peace. 
 
 The fees of Justices of the Peace are fixed by B. S. O. c. 78, where no other 
 fees are expressly provided ; and by sec. 4 of that Act the witness fees to be 
 allowed in oases of assault, trespass or misdemeanor, are 60 cents per day for 
 every day's attendance, where the distance travelled in coming to and returning 
 from the adjudication does not exceed 10 miles, and 6 cents for every mile 
 above 10. 
 
 For table of fees allowed to Justices see Appendix. 
 
 The Magistrate ordered the defendant to pay 91 for the use of the hall for 
 trying the case and condemned the defendant in default of distress to imprison- 
 ment : Held, that in ordering payment of this sum there was a dear excess of 
 jurisdiction : B. v. Elliott, 12 0. B., 624. 
 
 See The Summary Cor notions Act, B. S. 0., c. 178, sees. 68-61. 
 
 (x) The " proceedings." " Proceeding " has been defined as meaning a step 
 
 i 
 
 Is*!'*'' 
 J||;ri 
 
f 
 
 l! 
 
 i^ 
 
 B!'''#. '■ i 
 
 I ! ^ 
 
 u 
 
 >■ 'i 
 
 I'M S.;| 
 
 j. j ! < i4*iii# ii 
 
 « ' '. 
 
 \ 
 
 
 Ii 
 
 ^'ff! 
 
 !f 
 I 
 
 2a6 
 
 InRi In 
 oaiei 
 where a 
 previous 
 oony lo- 
 tion 
 olwrgad. 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. lOI. 
 
 committing an ofTence against any of the provisions of this 
 Act, in case of a previous conviction or convictions being 
 charged, shall be as follows : 
 
 (i) The Justices or Police Magistrate (y) shall in the 
 first instance (z) inquire concerning such subsequent offence 
 only, and if the accused be found guilty thereof, he shall 
 then, and not before, be asked whether he was so previously 
 convicted, as alleged in the information, and if he answers 
 that he was so previously convicted, he may be sentenced 
 accordingly ; but if he denies {a) that he was so previously 
 convicted, or stands mute of malice, (^) or does not answer 
 
 in an action, i. «., a step *' towards " and not " after judgment :" Hoolston v. 
 Woodward, Law Note*, 1886, p. 16, oited Stroad's Diet.. 617. 
 
 An "action" or soit is also "proceeding:" Pryor v. Oity Offices Co., 10 
 Q. B. D., 604 ; Dodd v. Middleton, 68 Qa., 686. 
 
 It was said in the latter case that "the very origin of the term imports a 
 procession. I believe it is derived from a French word which means to follow ; 
 and in olden time the suitor was followed by his suit or those who backed, and 
 thus instituted the suit with the procession which followed him :" Browne on 
 the Judicial Interpretation of Words, etc., 339. The "proceedings" here 
 meant are the different steps to be taken in the prosecution. 
 
 The section applies to cases in which previous convictions have been obtained 
 and are charged in the information. See notes to sec. 70. 
 
 (y) " The Justices or Police Magistrate." See notes to sees. 97, 98, 99. 
 
 (f) " In the first instance " means in the first place, but it applies only to 
 the proceedings at the hearing. It is expected that the prosecutor and Lis 
 witnesses will, at all events, be present at the time and place appointed, and the 
 o£Fence of which the accused is then particularly charged and of which he has 
 not yet been convicted will be tried first. The object of this is manifest, for if 
 he is not convicted of the subsequent offence, the charge of being previously 
 convicted must ..Iso fail. Similar procedure is provided for in criminal oases 
 under the Criminal Procedure Act, B. S. 0, o. 174, s. 207. 
 
 In case the accused is found guilty of the last o£Fence charged, the Jasticea 
 or Magistrate should inform him that the information alleges that he has been 
 previously convicted, and shall ask him whether he has been previously con- 
 victed as alleged in the information, and proceed as the section directs. 
 
 As to proof of previous conviction, see sub-sec. 2. 
 
 (a) " If he denies," etc., i. «., pleads not guilty to the charge of being pre- 
 viously convicted. 
 
 {b) " Stands mute of malice " means that he decUnes to plead. The term it 
 used of one who abstains from pleading when he is able to do so. Formerly 
 when a prisoner on his trial for felony refused to plead he was subjected to a 
 process called "peine forte et dure" (the strong and hard pain). It consisted 
 in placing the prisoner in a low, dark chamber, and there laid on his back on 
 the bare floor naked, unless where decency forbade ; a weight of iron as great 
 he could bear was placed upon his body, and he was kept thus with very little 
 food until he died or consented to plead. " Mute of malice " is used to dis- 
 tinguish accused persons of this class from those who, being deaf and dumb, or 
 otherwise unable to plead, were said to be "mute by the visitation of Ood." 
 
:" HoalBton v. 
 Offloes Co., 10 
 
 e been obtained 
 
 s. lOI.J 
 
 THE LIQUOR LICENSE ACT. 
 
 227 
 
 directly to such question, the Justice or Police Magistrate 
 shall then inquire {c) concerning such previous conviction 
 or convictions. 
 
 (2) The number {d) of such previous convictions (f) shall ^Z"^^**' 
 he provable by the production of a certificate under the viouBoon- 
 liand of the convicting Justices or Police Magistrate, or of how 
 the Clerk of the Peace, without proof of his signature or 
 official character, or by other satisfactory evidence. (/) 
 
 Sen Bnaaell on Orimea, 6 (/) ; 4 Step. Com. ; 8 Bl. Oom., 827 ; 2 Beeves, 0. ix., 
 131, cited Wharton, 646. 
 
 Stands mote means, then, simply refusing to plead or answer to an indiot- 
 ment. The plea of not guilty is entered and the trial proceeds ; see oases 
 cited in Anderson's Diet., 693. 
 
 (e) An " inquiry '* is not limited to what a man can see with his own eyes ; 
 it signifies a jadioial inquiry w^th witnesses, and it is nsnai on an inquiry to 
 hear counsel and witnesses : Wenlook v. Biver Dee Co., 19 Q. B. D., 166. 
 
 In another ease it was held that a " due inquiry " means to give its subject 
 matter a fair hearing : AUbutt v. General Medical Oonuoil, 28 Q. B. D., 400. 
 
 " This means that he shall inquire by means of competent legal evidence, 
 that is, that he shall have before him legal evidence of the previous conviction 
 or convictions:" per O'Oonnor, J., B. v. Kennedy, 10 0. B., 896, at p. 402. 
 Bat see B. v. Kennedy, 17 O. B., 169, cited infra. 
 
 (d) " The number." The expression used here is in the singular, and in 
 this respect differs from the expression " conviction or convictions " at the end 
 of Bub-sec. 1. O'Oonnor, J., in B. v. Kennedy, 10 0. B., 896, says : " I think 
 the two expressions " (i. «., that at the end of the last sub-sec. and the one 
 here used) " are essentially different and are intentionally so formed to express 
 different things, as they appear in justa-position. The certificate is not evidence 
 of a previous conviction, but of the number of such previous convictions," and 
 therefore it was held that " where there is no other evidence of such previous 
 oonviction, a conviction for a second or third offence cannot stand." But this 
 decision was not followed in B. v. Kennedy, 17 0. B., 169, in which it was held 
 by Itose, J., (Oalt, 0. J., and MacMahon, J., concurring) that the certificate 
 referred to in the section " means a certificate shewing whether the conviction 
 therein referred to is a first, second, or third, and if the certificate contains a 
 sufficient statement of fact of the conviction, and if the identity of the defendant 
 with the person named in the certificate is established," it is sufficient. 
 
 («) A conviction for selling liquor on Sunday, "the same being the third 
 offence," etc., was held bad because the information did not charge the two 
 preTioua offences : B. v. French, 84 U. 0. B., 408. Oonvictiona impoaing the 
 increased penalties for second and third offences are bad unless proceedings 
 have been taken for the first offence : B. v. Bodwell, 6 0. B., 186. And where 
 the information did not shew what the nature of the previous conviction was, 
 or that it was one of a similar nature to the one charged, the conviction upon 
 it could not stand : B. v. Kennedy, 10 0. B., 396. 
 
 (/) It was held that the Justices are not warranted in adjudicating a forfei- 
 ture without Ugal proof oi a former conviction : Gross v. Watts, 13 0. B. N. S., 
 239 ; also that there muat be proof of the identity of the person convicted : B. 
 V. Crofts, 9 0. d! P., 219. On both these points, see jndigt. of O'Ooimor, J., 
 V. Kennedy, 10 0. B., 896, at p. 408. 
 
 I 
 
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 228 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. lOI. 
 
 oonvio"* ^3) ^ conviction may in any case be had as for a first 
 nofbe*"* offence notwithstanding that there may have been a prior 
 ohaiged. conviction or convictions for the same or any other 
 
 OffenooB 
 on same 
 day. 
 
 any 
 offence, (g) 
 
 (4) Convictions for several offences may be made under 
 this Act, although such offences may have been committed 
 on the same day ; (A) but the increased penalty or punish- 
 ment hereinbefore imposed shall only be recoverable in the 
 case of offences committed on different days, and after 
 information laid for a first offence. 
 
 The previoas ofFenoe need not be against the same lioense, bat may be 
 against a lioense for a previous year : B. v. Blaok, 48 U. 0. B., 180. 
 
 The adjodioation on a second ofFenoe for selling liqnor during prohibited 
 hours, without providing for distress, directed immediate imprisonment in 
 default of the payment of the fine and costa ; and the conviction drawn up 
 under it was in similar terms. After the issue of a writ of certiorari, but before 
 its return, an amended conviction was returned providing for distress being 
 first made : Held, that the adjudication and conviction made under it were 
 void for not providing distress ; and that the amended conviction could not be 
 supported because it did not follow the adjudication. Semble, that had the 
 amended conviction been in othjr respects good it would not have been void 
 for including the costs of conveying to gaol : B. v. Gantillon : 19 0. B., 197. 
 Bee B. v. Brady, 12 O. B., 868, at pp. 860-861 ; B. v. Higgins, 18 0. B., 148. 
 
 ** Satisfactory evidence." means that amount of proof which ordi>:'\rily sntis- 
 fies an unprejudiced mind beyond reasonable doubt : see Taylor on Evi., 2. 
 
 (g) This applies to all oases whether previous convictions are charged or not. 
 Even where previous convictions are charged, the Justices may convict as for a 
 first offence under this section. But where the increased penalty is imposed, 
 the provisions of the Statute as to arraigning the accused are material and 
 must not be neglected : B. v. Fox, 10 Oox, 0. 0. 602, The Court is not bound 
 to take notice of previous convictions unless they are both charged and proved : 
 B. V. Bummers, 1 L. B. 0. 0., 182 ; 11 Oox 0. 0., 248 ; 2 Mew's Dig., 2397 ; 
 B. V. WiUis. 26 L. T., 486 ; 2 Mew's Dig,, 2898. 
 
 "For the same or any other offence." Generally in such cases where 
 increased punishment is imposed for a subsequent offence, the first one should 
 be of the same character : see Attomey-Qen. of Hong Kong v. Ewok-a-Sing, 
 L. B. 6 P. 0., 179 ; Bee also B. v. Qarland, 11 Oox, 0. 0. 224. But see sec. 70 
 and notes thereto. 
 
 (h) The meaning of this sub-section is that although convictions may take 
 place for several offences committed on the same day, yet the increased penalty 
 or punishment inflicted for the repetition of offattoes shall only be imposed 
 when the previous offences charged have been committed on separate days. 
 
 See sec. 91 and notes thereto. 
 
 " And after information laid for a first offence." Bm B. v. Bodwell, 6 0. B., 
 186, cited in note («) $upra. '*It is not the conviction which subjects the 
 accused to the increased penalty, but the offences themselves. The whole 
 scope at the Statute is, that if a party after being convicted again ofibnds, thciu 
 there may be cumulative punishment, but where the last conviction was made 
 on 12th Fab. for an offence oommitted on 26th Jan., whilst a second conviction 
 was said to have been madt on the 6th Feb. fw »n offeaoe oommitted on 81st 
 
lOI.J 
 
 THE LIQUOR LICENSE ACT. 
 
 (5) In the event (i) of a conviction for any second or 
 subsequent offence becoming void or defective, after the 
 making thereof, by reason of any previous conviction being 
 set aside, quashed, or otherwise rendered void, (j) the 
 Justices or Police Magistrate by whom such second or sub- 
 sequent conviction (k) was made, may by warrant (/) under 
 his or their hand summon the person convicted to appear 
 at a time and place to be named in such warrant, and may 
 thereupon, upon proof of the due service of such warrant, (m) 
 if such person fails to appear, or on his appearance, amend 
 such second or subsequent conviction, («) and adjudge such 
 penalty or punishment as might have been adjudged had 
 
 229 
 
 In case of 
 a second 
 or subse- 
 quent 
 oonvio- 
 tion be- 
 oomine 
 irreRular 
 by quash- 
 ing of a 
 first or 
 previous 
 oonvio- 
 tion, 
 
 Justices 
 or Police 
 Magis- 
 trate may 
 amend; 
 
 Jan., so that the second oonTiction was for the last offence and the last oonvic- 
 tion for the second offence," (per Cameron, Q. 0., B. v. French, 34 U. G. B., 
 403, at p. 409) the conviction was held bad. See also B. v. Hoggard, 30 
 U. C. B., 152 ; B. v. White, 21 0. P., 864 ; B. v. Straohan, 20 0. P., 182. 
 
 (t) •* In the event." See sec. 99, note {t). 
 
 (j) This provision is intended to prevent the escape of an offender, charged 
 with a second or sabseqc ')nt offence, from the consequences of his infraction of 
 the law, in case the previous conviction charged is qaashed or rendered void by 
 reason of any defect. In order to oonvict of a second or subseqaent offence the 
 prior convictions must be valid and subsisting oonviotions. See B. v. Aokroyd, 
 1 G. & E., 168 ; B. v. StonneU. 1 Oox, 0. 0. 142. 
 
 See also notes to sub-seo. 4, supra. 
 
 " Set aside, quashed or otherwise rendered Toid." These three terms are 
 nearly synonymous. To " set aside," is " to annul, to make void :" Worcester, 
 1316. To " quash," is defined by Wharton as " to overthrow or annul ;" and 
 to render "void," means that the subject-matter is so " nugatory and ineffect- 
 ual that nothing can cure it :" Wharton, 768. 
 
 (ft) " Second or subsequent con ition." See notes to sec. 70. 
 
 (2) A '* warrant " is a precept (under hand and seal) to some ofi&oer to arrest 
 an offender to be dealt v^th according to due course of law. It may also mean 
 a citation or summons. The latter meaning is intended to be conveyed here. 
 Although it has been held that an offender under this Act may be arrested 
 under a warrant, and that it was not improper to arrest a defendant charged 
 with selling liquor without a license, instead of summoning him : B. v. Men- 
 ary, 19 0. B.. 691. 
 
 (m) "Upon proof of the due senrioe" means upon evidence of service 
 aooording to law. In a ease under the 0. T. Act, in which the expression used 
 is similar to this (sec. 7), it was held that a summons not served personally, 
 bat left at the defendant's place of abode, was not " duly " served upon him, 
 and a oonTiction made in Ms absence was quashed : B. v. Byan, 10 0. B., 254. 
 By B. S. 0., c. 178, sees. 14, 16, *' every summons shall be served by a constable 
 or other peace officer, or other person to whom it is delivered, upon the person 
 to whom it is directed, by delivering the same to such person personally, or by 
 leaving it with some person for him at his last or most usual place of abode. 
 And the service shall be proved by the oonstable, peace officer, or other person 
 attending before the Justice, to depose, if necessary, to the service thereof." 
 
 (tt) " Amend aaoh sabieqaent oonTiotion." See aeo. 108 and notes thereto. 
 
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 amended 
 convic- 
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 Second 
 o£fenoe ; 
 meaning 
 of. 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 
 
 lOI, 102. 
 
 Third 
 offence. 
 
 Descrip- 
 tion in 
 
 such previous conviction never existed, and such amended 
 conviction shall thereupon be held valid to all intents and 
 purposes, as if it had been made in the first instance, (o) 
 (6) In case any person who has been convicted of a contra- 
 vention of any provision of any of the sections of this Act, 
 numbered 49, 50, 51, 52 or 59, or any section for the con- 
 travention of which a penalty or punishment is prescribed 
 by section 70 or 85, is afterwards convicted of an offence 
 against any provision of any of the said sections, such con- 
 viction shall be deemed a conviction for a second offence, 
 within the meaning of section 70 [or 85], as the case may be, 
 and may be dealt with and punished accordingly, although 
 the two convictions may have been under different sections ; 
 and in case any such person is afterwards again convicted 
 of a contravention of any provision of any of the said 
 sections, whether similar or not to the previous offences, 
 such conviction shall in like manner be deemed a conviction 
 for a third offence, within the meaning of section 70 [or 85], 
 as the case may be, and may be dealt with and punished 
 accordingly. (/) R. S. O. 1877, c. 181, s. 73, amended 
 53 Vic, c. 56, s. 12. 
 
 FORM OF INFORMATIONS AND OTHER PROCEEDINGS — 
 AMENDMENTS. 
 
 1.09* In describing offences (g) respecting the sale 
 
 (0) The effect of this Bab-seotion is that in the event mentioned in note (j) , nupra, 
 the Magistrate or Jnstioes acting in the case and by whom the second convic- 
 tion was made, are empowered, after the first conviction has been set eside or 
 quashed, to summon the accused before him or them, and then, in his presence 
 if he appears, or in his absence if he has been duly served with a warrant and 
 fails to appear, draw up a new or amended conviction, imposing such penalty as 
 the law allows for a first offence, in lieu of the conviction for a second offence 
 which has been set aside, quashed or annulled. There is no time specified 
 within which this is to be done. See see. 94, as to time'of commenoement of 
 prosecutions. 
 
 (p) This sub-section applies only to prosecution for offences punishable under 
 those sections particularly mentioned. The notes to those sections will be 
 found to give the authorities relating to the offences covered. Its provisions 
 have been extended by 62 Vie. c. 41, s. 7, to those offences for which no other 
 penalty is prescribed, except by sec. 85. 
 
 See also cases referred to in the notes supra. 
 
 (9) In describing offences it was formerly neoessary that an exact and a legal 
 description should be given, and that an information and conviction shonld 
 contain the same certainty as an indictment. This section and those whiob 
 
5S. TOI, I02. 
 
 S. x02. 
 
 THE LIQUOR LICENSE ACT. 
 
 231 
 
 or other disposal of liquor, (r) or the keeping, or the con- ^J°?°*' 
 sumption of liquor (s) in any information, (/) summons, 
 conviction, («) warrant, or proceeding under this Act, it 
 shall be sufficient to state the sale, disposal, keeping, or 
 consumption of liquor simply, without stating the name or 
 kind of such liquor, or the price thereof, or any person to* 
 whom it was sold or disposed of, or by whom it was con- 
 sumed ; and it shall not be necessary to state the quantity 
 of liquor so sold, disposed of, kept, or consumed, except in 
 the case of offences where the quantity is essential, and then 
 it shall be sufficient to allege the sale or disposal of more 
 or less than such quantity. R. S. O. 1877, c. 181, s. 74. 
 
 m 
 
 H'i 
 
 
 :eedings — 
 
 immediately follow it are intended to simplify proceedings under the Act, in 
 order that there may be less danger of offenders escaping or evading the oon- 
 seqnences of their aots by reason of mere defects in form. Still, there are 
 certain rales to be followed, the observance of which is absolutely requisite to 
 the validity of the proceedings. Some of these will be found in the oases here- 
 after cited, but in a work such as this it is impossible that the whole subject 
 should be treated in detail. 
 
 This section applies only to prosecutions in which the illegal sale or disposal 
 of liquor, or the illegal keeping or the consumption of liquor, is charged. 
 
 (r) As to " sale or other disposal," see sec. 49 ; note {d), p. 6, note {j), p. 120, 
 Lote (0), p. 125 ; and as to evidence of salo, see sees. 108, 109. 
 
 (s) As to "keeping or consumption of liquor," see sees. 60, 61, 67 and notes 
 on pages 24, 62, 112, 118 and 180. As to evidence of, see sees. 50 and 108 and 
 notes thereto. 
 
 (t) " Any information." See note (b) to sec. 94. 
 
 In an information facts should be stated in a direct and positive manner ; 
 the description of the charge should include in express terms overy ingredient 
 required by the Statute to constitute the offence, nothing being left to inference, 
 intendment or argument. Where the gist of the offence is guilty knowledge , 
 as in sees. 16, 25, 64 (ss. 3), 67, 68, 69, &o., tuere should be a direct averment 
 of its existence ; and it should not state legal results of facts, but the facts 
 themselves. It is said that the rule is, that where a Statute does not fully 
 describe the offence, it should nevertheless be described fully. But it is now 
 only necessary to follow the words of the Act, or of any by-law, regulation, or 
 other document which creates the offence. The exact words of a Statute are not 
 necessary, however, provided those used are equivalent. See Saunders' Prac, 
 42-62, and oases there cited. But see also sees. 94 and 105, and notes thereto. 
 
 And the information may be amended at any time before judgment ; see 
 sec. 104 and notes thereto. 
 
 The form of information is given in Schedule ; see also sec. 103 and 
 notes thereto. 
 
 (u) " The conviction." See sec. 100, note {v). Forms of conviction are 
 prescribed by sec. 103. See that sec. and notes thereto. 
 
 A conviction that " the defendant was in the habit of selling liquor without 
 lioeuae," without charging any special offence or shewing time or place, or that 
 liquors were sold by retaU, and directing defendant to pay the costs of execution 
 
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 232 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 102. 
 
 without statiag the amount, was held bad : B. v. FergoBon, 8 0. B., 320. See 
 also B. V. Toong, 6 0. B., 184a. 
 
 It was held snffloient to describe the offenoe as selling "a certain spirituonB 
 liquor oalled whiskey," though the clause creating the offence saye " intoxicating 
 liquor of any kind," for intoxicating liquor and spiritnons liquor are used in 
 the Act as convertible terms : Beid v. McWhinnie, 27 U. 0. B., 289. 
 
 ▲ conviction for that one H, on, etc., " did keep his bar-room open and allow 
 parties to frequent and remain in the same, contrary to law :" Held, clearly 
 bad as shewing no offence : B. v. Hoggard, 80 U. 0. B. , 162. 
 
 It is not necessary to mention the Statute under which the conviction is 
 made, nor that the prosecution commenced within twenty days, nor to specify 
 that it is a first or second offence, nor to whom the liquor was sold : B. v. 
 Straohan, 20 0. P., 182. 
 
 A conviction that defendant sold spirituous liquors by retail without license, 
 stating time and place, held sufficient, and that it is not necessary to specify 
 kind and quantity: B. v. King, 20 0. P., 246. 
 
 Held, that a conviction against defendant " for that he did on Sunday, the 
 19th January, sell and receive pay for intoxicating liquor at his hotel," was bad 
 as it did not shew whether it was selling without a license, or having license, 
 for selling on Sunday : B. v. French, 84 U. 0. B., 403, See same case cited in 
 note (0) sec. 101. 
 
 A conviction that one G P of, etc., innkeeper, after the hour of seven in the 
 evening, in and at his tavern, etc., being a place where intoxicating liquors 
 are allowed to be sold by retail, did unlawfully sell, etc., one glass of beer, etc., 
 was held bad, as not su^ciently shewing that defendant was the occupier : B. 
 V. Farlee, 23 0. P., 359. 
 
 But the clause under which this conviction was made has been since amended. 
 See sec. 71, note (a), p. 167. 
 
 A conviction for unlawfully having spiritnons, «&o., liquors nthout being first 
 duly licensed thereto, need not negative the exceptions : B. v. Breen, 36 
 U. 0. B., 84. 
 
 A conviction of S. <fc D. for that they, trading under the name and firm of 
 S. <& D., in their house of public entertainment, did unlawfully keep liquor for 
 the purpose of sale, barter and traffic therein, without the license by law re- 
 quired : held bad, for that they could not be jointiy convicted nor one penalty 
 awarded against them jointly. Held, also that such conviction could not be 
 amended : B. v. Sutton, 42 U. 0. B., 220 ; see also B. v. Justices of 
 Middlesex, 2 Q. B. D., 620, as to power of amendment. A conviction against 
 a firm, " Kidd & Co.," was held to be invalid : B. v. Eidd, C. P. Div., reported 
 in Toronto Mail, 29th Nov., 1890. Query, per Qwynne, J., whether a convio- 
 tion imposing an unauthorized sentence could be amended on motion to quash : 
 B. V. Lawrence, 48 U. 0. B., 164. Held, that it could not : B. v. Allbright, 
 9 P. B., 26. 
 
 After a first conviction has been returned to the Glerk of the Peace, the Jus- 
 tices, if they think it defective, may make out and file a more formal conviction : 
 See B. V. Oavanagh, 27 0. P., 687, cited in note (a), sec. 71, p. 167 ; Wilson v. 
 Graybiel, 6 U. G. B., 227 ; B. v. Smith, 46 U. G. B., 442 ; B. v. Menary, 19 
 0. B. , 691 ; B. v. Hartley, 20 O. B., 481 ; B. v. Biohardson, 16., 614. See also 
 cases cited in sees. 104, 106. 
 
 The Gonrt refused to grant a mandamui to compel two Justices of the Peaoe 
 to issue execution upon a conviction for selling spirituous liquors without 
 license, there being some doubt as to the sufficiency or legality of the convio- 
 tion : B. v. McOonnell, 6 0. 8., 629. 
 
 The Gonrt refused to quash a conviction affirmed on appeal, on the ground 
 
I02.J 
 
 THE LIQUOR LICENSE ACT. 
 
 233 
 
 K 8., 220. See 
 
 I Binoe amended. 
 
 of the oonvio- 
 
 among others, that the general verdict of gnilty was inoonsiBtent with the 
 answers of the jury to speoifio questions : B. v. Grainger, 46 U. C. B., 382. 
 
 Where a oonviction purporting to be made by three Magistrates, but signed 
 by two only, was returned with a certiorari, it was held that if an objection at 
 ail it was a ground for sending back the writ that the third might sign, but not 
 a ground for quashing the conviction : B. v. Toung, 7 0. B., 88. 
 
 A conviction for carrying on a noxious and offensive trade contrary to B. S. 0., 
 0. 206, The Public Hesdth Act, imposed, in default of sufficient distress to sat- 
 isfy the fine and costs, imprisonment for 14 days, unless the fine and costs, 
 including the costs of commitment and conveying to gaol, were sooner paid. 
 Held, that the commitment and conveying to gaol were unauthorized, and that 
 sec. 1 of R. S. 0., c. 74, did not affect the question : B. v. Bowlin, 19 0. B., 
 199 : B. V. Wright, 14 0. B., 668. But see sec. 88 and notes thereto. 
 
 The defendant being present in court on a charge which was disposed c*, 
 was, without any summons having been issued, charged with another offence, 
 namely, of selling liquor without a license. The information was read over to 
 him, to which he pleaded not guilty, and evidence for the prosecution having 
 been given, he thereupon asked for and obtained an enlargement till the next 
 day, when, on his not appearing, he was convicted in his absence and fined 
 $50 and costs, and in default of payment forthwith, without any distress having 
 been directed, imprisonment was awarded : Held, that under the circumstances 
 issuing the summons was waived. Held, also, that the conviction in awarding 
 imprisonment in default of payment was properly drawn, for by sec. 70, under 
 wbioh the conviction was made, there was no power to direct distress : B. v. 
 Clarke, 19 0. B., 601 ; see B. v. Lynch, 12 0. B., 372 ; B. v. Higgins, 18 0. B., 
 US ; B. V. Menary, 19 O. B., 691 ; B. v. Brady, 12 O. B., 368 ; and cases cited 
 in notes to sec. 70. See also B. v. Hartley, 20 0. B., 481, cited in notes to 
 sec. 106. 
 
 Upon a motion to quash a conviction and warrant of commitment, it was held : 
 
 1, That the mode of bringing defendant before the Justices, by arrest instead 
 of by summons, was not improper. 
 
 2, That the fact that he was remanded by only one Justice could not affect 
 the conviction. 
 
 3, That sec. 70 gave no power to the Justices to issue a distress warrant or 
 to make the imprisonment imposed dependent on the payment of the fine and 
 costs ; but as this objection was not taken by the defendant, no effect was given 
 to it. (See B. v. Hartley, 20 0. B., 481). 
 
 4, That the Justices had the right to draw up and return an amended con- 
 viotion in a proper case. See notes to sec. 104. 
 
 6, That where it appeared by the admission of the defendant that he had no 
 goods whereon to levy the sums imposed by distress, the insertion in the 
 conviction of the words relating to the admission was proper, if the Justices 
 were bound to issue a distress warrant, and if they had no power to issue such 
 warrant, these words were mere surplusage and did not vitiate the conviction. 
 
 6, That if the Justice had no power to require the costs of conveying him to 
 gaol to be paid by the defendant, the conviction was amendable by the omission 
 of the parts relating to the distress, for the amendment was not of the adjudi- 
 cation of punishment. 
 
 7, That having regard to sec. 106 and to the eviacMce before the Justices, 
 the convictions and warrant could not be quashed : B. v. Menaty, 19 0. B., 
 691. 
 
 The cases cited in support of this judgment were B. v. Ferris, 18 0. B., 476 ; 
 U. V. Mead. 0. P. Div., 20th Nov.. 1890, (not yet reported) ; B. v. Grant, 18 
 0. B., 169 ; B. v. Higgins, 18 O. B., 148 ; B. v. Elliott, 12 O. JR., 624 ; B. 
 
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 234 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 102. 
 
 V. Lynch, 12 0. B., 872 ; B. v. Cantillon, 19 O. B., 19? : B. v. Flory, 17 0. B., 
 716 ; and as to the qaestion of amendment, MoLellan v. MoEinnon, 1 O. B., 
 219 ; B. V. Bennett, 3 0. B., 46 ; B. v. Sutton, 42 U. 0. B., 220 ; B. v. Elwell, 
 2 Ld. Baym., 1614. 
 
 Where defendant vas not served personally and oonviotion made in his absence 
 it was quashed: B. v. Byan, 10 0. B., 264. See B. S. 0., 0. 178, sees. 14, 16, 
 cited in note (m)>ec. 101, ss. 6. 
 
 The defendant was summoned and appeared at the hearing and pleaded not 
 guilty, when evidence was given for the prosecution justifying a conviction ; 
 but at defendant's request an adjournment was granted. At the adjourned 
 hearing neither the defendant nor his Counsel appeared, evidence was (^ven of 
 the service of the summons and the facts that transpired at the prior hearing, 
 and certificates of two prior convictions were put in, and the identity of the 
 defendant proved. The defendant was found guilty and convicted of a third 
 offence : Held, that having once had the opportunity to defend, defendant 
 could not by his failure to appear at the adjourned hearing, defeat the adminis- 
 tration of Justice : Held also that proof of the former convictions by certificate 
 was sufficient : B. v. Kennedy, 17 0. B., 169 ; B. v. Kennedy, 10 O. B., 806, 
 at p. 402, was not followed. See note (d) sec. 101. 
 
 A oonviotion which includes more than one offence is bad: Newman v. 
 Bendyshe, 10 A. & F,, 11; B. v. Young, 6 0. B., 184a ; B. v. Glennan, 8 P. B., 
 418 ; B. V. Salomons, 1 T. B., 261 ; B. v. Chandler, 14 East, 267 ; B. v. Mabey, 
 37 U. C. B., 248. 
 
 A conviction was made under The Temperance Act, 1864, simply for selling 
 liquors without a license, and a certiorari was refused on the ground that even 
 if it should have been made under The Temperance Act, 1864, and not under 
 The Liquor License Act, it was amendable : In re Watts and Emery, 6 P. li,, 
 267. 
 
 The Justices have powec to impose hard labor where it is authorized by the 
 Act: B. V. Hodge, B. v. Frawley, 7 App. B., 246; S. G., nom. Hodge v. 
 The Queen, 9 App. Gas., 117. 
 
 It is no objection to a conviction for selling liquor without a license that it 
 did not shew that the defendant was not licensed : B. v. Young, 7 O. B., 88 ; 
 see same case cited, note {g), sec. 70, p. 169. 
 
 It was held that an amended conviction cannot be put in after the return of 
 a writ of certiorari : B. v. MacKenzie, 6 0. B., 166. 
 
 But it was held that the Justices had a right to return an amended convic- 
 tion, and that such an ' amended conviction was not objectionable : B. «. 
 Hartley, 20 0. B., 481 ; B. v. Bichardson, 20 0. B., 614. 
 
 It was held that Justices were not obliged to fix the fine or punishment at 
 the instant of conviction, but may take time either for the purpose of inform- 
 inif; themselves as to the legal penalty or the amount proper to be imposed, or 
 taking advice as to the law applicable to the case : B. v. Hall, 23 L. J. N. S., 
 193 ; affirmed on appeal, lb. 217. 
 
 A conviction for selling liquor to Indians, made by an Indian agent, was held 
 bad, as it did not appear that the Indians to whom the liquor was sold were 
 Indians over whom the agent had jurisdiotion : B. v. McAuley, 14 0. B., 643, 
 
 Held that a conviction which was good on its face was a justification for 
 respondents (the convicting Justices) for anything done under it : Byrne v, 
 Arr.old, 22 L. J. N. S., 12 ; Gassela Dig. Sp. Ot„ 62. 
 
 ''Adhere a defendant submits to an examination before a Magistrate, it is too < 
 kte afterwards to object to its propriety : B. v. Bamsay, 22 L. J. N. S., 123 ; 
 
 11 0. B„ 210. 
 
 V 
 
mi 
 
 s. 103.] 
 
 THE LIQUOR LICENSE ACT. 
 
 23s 
 
 er the return of 
 
 108* The forms given in the schedules to this Act, (v) fo™*- 
 or any forms to the like effect, shall be sufficient in the 
 cases thereby respe ctively provided for, and where no forms 
 are prescribed by ihe schedules new ones may be framed 
 according to those appended to the Act of Canada entitled 
 An Act respecting Summary Proceedings before Justices of the ^•j^b^' 
 Peace^ or The Act respecting the Procedure on Appeals to the 
 fudge of the County Court from Summary Convictions, or Rev- Stat, 
 any Acts amending the same respectively — such forms being 
 made short and concise in the mode indicated in the 
 schedules to this Act which shall serve as guides so far as ' 
 the particular case will allow. R. S. O. 1877, c. 181, s. 75. 
 
 As to where ease was tried same day as the warrant served, see B. v. Eli, 10 
 0. B., 727, oited in note (9) seo. 96. 
 
 It was held that one of the Jastioes, who was a ohemist and draggist, and as 
 such a vendor of spirituous liquors, was not disqualified by reason of interest : 
 B. V. Biohardson, 20 0. B.i 614. 
 
 A conviction for having % communiotion between a liquor shop and another 
 shop was quashed on the ground that there was no evidence that the defendant 
 was freeholder of a shop license, that no locality was shewn by the evidence, 
 and on other grounds : B. v. Eidd, 0. P. Div., 29, Nov., 1890 (not yet reported). 
 
 A conviction was quashed on the ground that the evidence of the defendant 
 on his own behalf was rejected by the convicting Magistrates, such evidence 
 being made competent by sec. 9 of the Witnesses and Evidence Act and by 
 seoa. 114 and 120 of the Canada Temperance Act : B. v. Charlton, 0. P. Div., 
 2 Dec., 1890 (not yet reported). 
 
 A conviction under the " Scott Act " was made for " selling intoxicating 
 liquor and having hotel appliances in the bar-room and premises," while the 
 information was simply for selling liquor. Held that even if a double offence 
 had been charged in the information the Magistrate had power to drop one and 
 proceed with the other, but that in this case a second otfence under seo. 118 of 
 the 0. T. Act was not embraced in the words used '• B. v. Elemp, 10 0. B., 143. 
 
 Held that there was no variance because the information used the expression 
 " disposal " and the conviction *' sale," and if there had been, an amendment 
 would have been made : B. v. Hodgins, 12 0. B., 867. 
 
 Where imprisonment is directed on non-payment of a penalty, the award of 
 distress of the goods to levy it, and then imprisonment in case the distress 
 prove insufficient, is invalid in law and an excess of jurisdiction, and that in 
 such case the defect cannot be cured by sees. 2 and 3 of 49 Vic, c. 49 (D) : B. 
 V. Lynch, 12 0. B., 372 ; B. v. Brady, 16. 868. 
 
 The oases which relate to convictions for the different offences under this Act, 
 will generally be found in the notes to those sections in which penalties are 
 imposed for such offences. 
 
 See notes to seo. 108, for oases relating to the forms of conviction. 
 
 (v) Formerly forms of proceedings upon a prosecution before Justices of the 
 Peace, and especially convictions and orders, were subject to rules of construc- 
 tion and intcvpretation of so exact and critical a character as to make their 
 preparation a matter of extreme difficulty, and Justices were not infrequently 
 mulcted in damages as tl^e result of formal deteota whioh they had made. But 
 
 
 m.. 
 
 •\' I , I 
 
 
 im-M 
 

 
 
 >• 
 
 ; I. 
 
 
 1 1 ;• 
 
 
 
 
 236 
 
 THE LIQUOR LICENSE ACT. 
 
 fs. 103. 
 
 latterly all the forma of prooeedingB are so Bimplifled that the drawing np of a 
 oonviotion is no longer the diffloalt and hazardous task it onoe was, in fact, it 
 has become a matter of comparatively little trouble or risk. Still, as has been 
 shewn previonly (note (g), sec. 102), there are certain rules to be followed in 
 order that the oonviotion may not be rendered inoperative, and although pro- 
 tection is, in general, extended to Justioes and Magistrates acting in the bona 
 fide execution of a duty, care should be taken not only to follow the Statutoi^ 
 forms, but also in the preparation of the description of the offence, which is 
 invariably left blank. 
 
 " It might be supposed that when a Statute gives a form of conviction, that 
 form, when adopted, must necessarily be good ; but the Court has found itself 
 bound to impose some restrictions upon that general proposition ; for if an Act 
 contains a description of an offence, and the circumstances which are required 
 to constitute it ; and if the form given in the Statute does not contain all the 
 particulars which, by the provisions of the Statute, go to make out the offence, 
 it becomes impossible for the Oourt to say that the offence has been committed : " 
 per Denman, 0. J., B. v. Johnson, 8 Q. B., 102. 
 
 It was therefore held that where a Statute gives a form of conviction, not 
 fully describing the offence, the conviction, nevertheless, must fully describe it ; 
 but in the part which awards ' ao penalty it is sufficient to follow the Statute 
 form ; although the enacting part of the Statute gives part of the penalty to 
 the informer, and the form is not so drawn as to shew who he is. And in 
 Fletcher v. Oalthrop, 6 Q. B., 880, it was held that even a form given by an 
 Act of Parliament is no protection where it does not itself shew some ingredient 
 necessary to make up the offence. The statement that, ffenerally ipeaking, a 
 conviction which follows the words of the Act will be good (per Littledale, J., 
 B. V. Marsh, 2 B. <& 0., 717) is undoubtedly true, but imports Uiat inhere are cases 
 in which it would not be, 
 
 But although it is sometimes necessary, as these oases shew, to alter the form 
 so as to bring the description of the offence within tibe language of the Statute 
 creating it, yet it is usually a great deal safer to foUow the form given bj* 
 the Statute when applioable, than to attempt to make any improvement in it. 
 See B. V. Hazzell, 18 East, 189 ; B. v. Bidaway, 6 B. «fe Aid., 527 ; in re Turner, 
 9 Q. B. 80 ; Nixon v. Nanney, 1 Q. B., 747 ; B. v. Jones, 12 A. A E., 684 ; B. 
 V. Beoorder of King's Lynn, 8 D. A L., 726. 
 
 In drawing np a formal conviction, or in fact any other instrument required 
 on prosecutions under the Act, it is submitted that it would be well it the 
 Justices in all cases should refer particularly to clause in the Act upon which 
 such prosecutions are founded, as a thorough knowledge of the requirements 
 of the Statute upon the subject is uniformly the first essential to an intelligent 
 adjudication upon the case, as well as to the proper mode of setting out the 
 offence and the preparation of the information, oonviotion, warrants, and otbei 
 process. 
 
 For obvious reasons the Justioes will find it best in the majority of oases to 
 follow as nearly as possible the forms given in the Statute, whenever they 
 apply, but they are not compelled to do so. By Hoe Interpretation Act, 
 B. S. 0. 0. 1, 8. 8, ss. 85, it is provided that where forms are prescribed, slight 
 deviations therefrom, not affecting the substanoe or oaloulated to mislead, shall 
 not vitiate them. 
 
 In the following oases a similar prinoiple has been laid down. 
 
 Where there was a disorepaney, more in form than in substance, between the 
 Act and the form given in the schedule to it, the form was held to be sufficient: 
 tn re Wilson and The Quarter Sessions of Huron, 28 U. O. B., 801, and cases 
 cited therein. See Beid v. MoWhinnie, 27 U. 0. B. , 289, cited note (u), see. 
 102 ; Cornwall v. The Queen, 88 U. C. B., 106, in whioh it was held that it 
 
'm 
 
 S. I 
 
 04.] 
 
 THE LIQUOR LICENSE ACT. 
 
 237 
 
 1.04* At any time before judgment, (w) the Justice, f^.^^fo^. 
 Justices, or Police Magistrate may amend or alter any in- maWon- 
 formation, (x) and may substitute for the offence charged 
 
 was no objection that the jarladickion conferred by the Act was not thewn 
 when the record and judgment were in the form prescribed by the Act. 
 
 See also B. v. Hartley, 20 0. B., 481 ; B. v. Bichardson, 16., 614, in which it 
 was held that a conviction waa good, although it did not follow the minute of 
 adjudication ; also B. v. Inhabitants of Hickling, 7 Q. B., 880, at p. 880. 
 
 It was also held that forms, though literally prescribed by the Legislature, 
 may be varied according to reason and common sense, so long as the material 
 matters provided for are correctly given: Qemmell v. Oavland, 12 O. B., 
 at p. 142; Monntcashell v. O'Neill, 6 H. L., Oas. 937; ex parte 
 Stamford, in re Barber, 17 Q. B. D., 289. The same principle was laid down 
 bv Patterson, J. A , in Morthcote v. Brunker, 14 App. B., 864, at p. 878, in 
 which he said : " The case of Monntcashell v. O'Neill, 6 H. L., Gas. 937 ; 2 
 Jnr., N. S. 1080, cited by the Ohaneellor in Gemmell v. Garland, 12 0. B., 139, 
 is strong authority against holding a variance from a Statutory form fatal so 
 long as the document really conveys the proper information." " The Courts, 
 however, will always endeavour to uphold the proceedings of Justices where it 
 is obvious that they have been actuated by a desire to follow the directions of 
 the Legislature : " Saunders' Prac, 169. See also remarks by Pollock, 0. B., 
 re Allison, 10 Ex., 561, at p. 666 ; and of Parke, B., in the same case, who 
 said : " If Justices substantidly adopt the forms given they do all that is 
 required of them." 
 
 The necessity which formerly existed in oases where discretion was given to 
 the Justices as to the amount of the penalty or the person to whom it was to 
 be paid, that these facts should be specifically set out (see cases cited, Saunders' 
 Prac., 163,) does not now exist, or rather is obviated to a very great extent, and 
 it has been held that a conviction is sufficient although it did not in terms dis- 
 tribute the penalty nor name the informer or the person to whom it was to be 
 paid: B. v. Hyde. 21 L. J. M. O., 94, cited B. v. Oridland, 7 E. «& B., 853, at p. 
 860 ; re Allison, 10 Ex., 661, cited re Wilson and the Quarter Sessions of 
 Huron, 28 U. 0. B., 801. 
 
 The amount of costs should, in all cases, be ascertained by the Justices at 
 the time of the conviction, and the sum be inserted in that document : Selwood 
 V. Mount, 1 Q. B., 726 ; Look v. Selwood, 1 Q. B., 736 ; B. v. Clark, 6 Q. B., 
 887. See sec. 100 and notes thereto. See also Summary Oonvictions Act, 
 B. S. C, c. 178, s. 60, and B. S. 0., c. 74. 
 
 As to amendment, see sec. 104. 
 
 As to variance between infomation and conviction, and amendment, see sec. 
 106. 
 
 (w) "At any time before judgment." The powers given by this section ore 
 very extensive. At any time before eonviction, the Justice or Justices before 
 whom the case is being heard, if any objection be taken to tiie form of informa- 
 tion, or if it is found that the ofiFenee proved is not the same as that charged 
 in the information, or if for any other reason it is considered necessary, may 
 either amend the information, or substitute any other offence for the one 
 charged therein, and the only objection that can be made to such amendment, 
 alteration or substitution is, that tiie defendant is thereby prejudiced, and if it 
 appears that the objection is reasonable, the Justice or Justices may, in his or 
 their discretion, adjourn the Court in order that the defendant may prepare his 
 defence to the new charge brought against him. 
 
 See oases cited ittfira. 
 
 {x) Informations before Magistrates must be taken as nearly as possible in 
 
 ■^1 
 
 •^1 
 
 IP. 
 
 
<\:\ 
 
 i 
 
 
 !; 
 
 ^' 
 
 I ' 
 
 
 1 . 
 
 238 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 104, 
 
 therein any other offence against the provisions of this Act ; 
 but if it appears that the defendant has been prejudiced by 
 such amendment, the said Justice, Justices or Police Mag 
 istrate shall thereupon adjourn the hearing of the case to 
 some future day, unless the defendant waives such adjourn 
 ment. 41 V., c. 14, s. 9. 
 
 the language nsed by the party complaining : Cohen v. Morgan, 6 D. <ft R., 8 ; 
 MoNellis V. Gartshore, 2 0. P., 464, oited in Crawford v. Beattie, 39 U. C. B., 
 13, at p. 27. 
 
 The Jastioe, however, cannot EnmmonB a person on an information for one 
 offence requiring a particular punishment, and without a fresh information 
 convict him of a different offence, requiring a different punishment : Martin 7'. 
 Piidgeon, 1 E. dr E., 748 ; Soden v. Cray, 7 L. T. N. S., 324 : B. v. Brickliall, 
 10 L. T. N. S., 386, cited Crawford v. Seattle, mpra, at p. 28. Bee also The 
 Queen v. Hughes, 4 Q. B. D., 614, at p. 624. But, " it is competent for the 
 accused by his conduct to waive the necessity for the information, so as to 
 give jurisdiction to convict without the information being first laid :" per Har 
 rison, C. J., Stonesi v. Lake, 40 U. C. R., 820, at p. 828. See B. v. Clarke, 
 19 0. B.. 601. 
 
 An objection that a defendant had pleaded guilty to a defective information, 
 is not admissable : B. v. McCarthy, 11 0. B., 657. 
 
 It was held that when there was no variances between the information and 
 the evidence to warrant an amendment of the former, but that the evidence 
 disclosed a new offence, and the amendment made in the information by the 
 Justices amounted in fact to a new information, the defendant, by his presence 
 and by entering on his defence, had waived the service of a summons upon him : 
 B. V. Bennett, 8 0. B., 45. 
 
 The defendant, if he intends to take advantat^d of the information " for defect 
 of substance or of form," should urge the objection when before the Magistrate. 
 If he does so the information may be amended. Not having done so, the 
 objection cannot be successfully raised afterwards : Crawford v. Beattie, 39 
 U. C. B., 13, at pp. 29, 80, and cases cited therein. 
 
 See also Parkis v. Huxtable, 1 E. & E., 780, oited in notes to see. 118. 
 
 There can be no reason if the indictment in the highest criminal 
 X;0urt and for the gravest offences can be amended why the information before 
 a Magistrate on a charge of selling liquor during prohibited hours may not also 
 be amended : per Wilson, J., B. v. Cavanagh, 27 C. P., 587, at p. 540, and was 
 held in that case that the defendant should have taken the objection to the 
 information when he was before the Magistrate. Snoh objection should be 
 taken before the defendant has pleaded, or, at all events, at as early a stage is 
 the proceedings as possible : see B. v. Boe, 16 0. B., 1. 
 
 " Where a defendant appears and cross-examines witnesses on a charge over 
 which the Justice has inrisdiotion, whether there be an information or not for 
 the charge, and whether required in writing or not, he thereby waives the 
 information:" per Harrison, C. J., Stoness v. Lake, 40 U. C. B., 320, atp. 
 327 ; Turner v. Postmaster-General, 5 B. & S., 766 ; B. v. Shaw, 1L.& C, 
 579 ; 12 L. T. N. S., 478 ; B. v. Fletcher, L. B. 1 C. C, 820. " But where. 
 instead of doing so, he insists upon the want of an information, or defective 
 information, and does nothing to waive it, he is entitled to the benefit of the 
 objection : " Blake r. Beech, 1 Ex. D., 820, oited by Harrison, 0. J., in Stoness 
 V. Lake, iupra. 
 
 In a case in which a defendant was, in the summons, informed that he was 
 to appear before one Justioa only, whereas the Act required that he should be 
 
[s. 104, 
 
 IS of this Act ; 
 prejudiced by 
 Police Mag 
 f the case to 
 such adjourn 
 
 , 6 O. <ft B., 8; 
 B, 39 U. C. K., 
 
 rmation for one 
 9ih information 
 aent: Martin 71, 
 R. V. Briokliall, 
 . See also The 
 mpetent for the 
 mation, bo as to 
 laid:" per Har 
 « B. V. Clarke, 
 
 ive information, 
 
 information and 
 lat the evidence 
 ormation by the 
 I, by his presence 
 imons upon bim : 
 
 ktion " for defect 
 e the Magistrate, 
 ng done so, the 
 rd V. Beattie, 39 
 
 > seo. 118. 
 
 lighest criminal 
 formation before 
 OTB may not alao 
 
 p. 640, and was 
 objeotion to the 
 etion shoold be 
 
 early a stage in 
 
 on a charge over 
 nation or not for 
 reby waives the 
 0. B.,320, atp. 
 3haw, 1 L. (& C, 
 "But where, 
 ion, or defective 
 benefit of the 
 0. J., in Stonesi 
 
 med that he was 
 X he Bhonld ba 
 
 105] 
 
 THE LIQUOR LICENSE ACT. 
 
 239 
 
 104(a (1) No conviction (j) or warrant enforcing the fioS'not 
 same (z) or other process or proceeding under this Act o^'^Jj^!' 
 shall be held insufficient or invalid by reason of any defects, 
 variance between the information or conviction, or by reason 
 of any other defect in form or substance, provided it can 
 be understood from such conviction, warrant, process or 
 proceeding that the same was made for an oiTence against 
 some provision of this Act, within the jurisdiction of the 
 justice, Justices or Police Magistrate who made or signed 
 tlie same, and provided there is evidence to prove such 
 ofrence, and no greater penalty or punishment is imposed 
 
 charged befoie two Justices, it was held that his appearance waived the objeo- 
 tion to the summons per le as it was a mere irregularity : B. v. Collins, 14 
 0. B., 618. 
 
 (y) ' Vo conviction." Bee notes to sees. 70, 104, and see also particular 
 offences. 
 
 {z) " Warrant enforcing the same." The remarks as to the preparation of 
 the oonviotion apply with equal force to the warrant. The same care is required 
 and similar rules govern in the case of the warrant, as are applicable to the 
 conviction. The warrant of commitment must be the same as the oonviotion ; 
 and where the conviction imposed the punishment of *' imprisonment with 
 hard labor," and by the warrant the defendant was to be " imprisoned and 
 corrected," the commitment was held bad : Wood v. Fenwiok, 10 M. & W., 195. 
 The commitment and conviction must connect themselves together. '* A Mag- 
 istrate cannot jostify a commitment for one offence by a conviction for another 
 and different offence : Bogers v. Jones, 3 B. & C, 409, at p. 412; Saunders' 
 Frac, 171. 
 
 The warrant should state the exact time and manner of imprisonment, and 
 the conditions, if any, upon which the defendant may be discharged ; for " the 
 defendant ought to know for what he is in custody and how he may regain his 
 Uberty :" Faley on Oon., 286 ; Saunders' Prao. , 171, and cases there oited. 
 
 If the warrant is not made returnable at a certain time, it will remain in 
 force until executed, and it does not become void or inoperative on the c'jath 
 of the Justice who signed it or upon his ceasing to hold ofi&ce : Saunders' 
 Prao., 173 ; Paley on Con., 294. 
 
 Wherever it appears that the issuing of a warrant of distress would be ruinous 
 to the defendant or his family, or that he has no goods or chattels whereon to 
 lay such distress, then such Justice may issue a warrant of commitment for 
 the period allowed by Statute. See B. S. C. 0. 178, s. 64. 
 
 The warrant of commitment or distress cannot be executed on Sunday: 
 Saunders' Prac., 172 ; Paley on Con., 291. 
 
 A warrant can only be executed within the limits of the Justice's Commission, 
 but The Summary Oonvictions Act, B. S. C. 0. 178, s. 63, provides for the 
 backing of warrants of distress and commitment for execution out of the juris- 
 diction of the Justices granting them. On a fresh pursuit a warrant for the 
 arrest of an offender may be executed at any place in the adjoining County 
 within seven miles of the border without being backed. B. S. C. 0. 178, s. 20. 
 
 As to warrants of distress and commitment, see B. S. 0. 0. 178, sees. 62-70, 
 made applicable to proceedings before Justices under the Ontario Statutes by 
 B. S. 0. c. 74, s. 1. 
 
 ' '. \i ■ 
 
 l^. \' '[■ 
 
 
 
 , V -l ^ \ 
 
1 
 
 I, 
 
 ! ■' ; I. i 
 
 3 
 
 
 I t 
 
 I i 
 
 
 'A ■ 
 
 
 
 1 s 
 
 
 •i i' ■ ' 
 
 ;y|i.: 1 
 
 
 1 
 
 
 
 a40 
 
 THE LIQUOR LICENSE ACT. 
 
 Is. 105. 
 
 than is authorized by this Act (<i). R. S. O. 1877, c. 181, 
 s. 77 (i) ; 44 V. c. 27, s. 7. 
 
 {a) " The LegiBl«tare of Ontario have endMTonred to b« moat libttral in oon- 
 feiring powers of amendment on Coorta to whom appUcationa are made to 
 qnaah oonviotion under the Liquor Lioenae Act : " per Harriaon, 0. J., B. v. 
 Dlaok, 48 U. U. K., 180. 
 
 " We infer from reading the aeetion as a whole that the power to amend in 
 the case of a oonviotion moved againat ia to be ezeroised by tne Court only when 
 the Court ia able to understand from the oonviotion that the appropriate pen- 
 alty or punishment for the offence was intended thereby to be adjudged." 
 
 " Where there m«y be fine or imprisonment in the discretion of the conviot- 
 iug Justice, either is an appropriate r-^uishment, but the Court cannot decide 
 that either is the appropriate punisiiui '. Where, in the discretion of the 
 convicting Justice, the fine or the imprii .ament may be less or more witLiu 
 defined limits, we cannot decide that a fine or imprisonment adjudged by tlie 
 conviction without the limits is an appropriate punishment, nor can we dooide 
 that a given sum of money or given term of imprisonment within the prescribed 
 limit is the appropriate punishment." " Much in auch cases is left to tlie cou- 
 victing Justice, who, by reason of his local knowledge, must be more competent 
 to decide na to the * appropriate ' penalty than any Court seized of the case on 
 au application to quash the conviction for illegality. Besides, when that 
 discretion has been exercised and the result of it appears on the face of the 
 conviction, it is impossible for the Court to decide ' from such conviction ' that 
 any other punishment was intended. The presumption is that the Justice 
 intends the punishment which he imposes, and this must be assumed to be his 
 idea of the appropriate punishment ; and as we are not allowed to look outside 
 of the conviction for what he intended, we must, in the case of the exercise of 
 discretionary powers by a Justice, leave the oonviotion bad or good, as we find 
 it, and deal with it accordingly :" per Harrison, O. J., B. v. Black, 48 U. C. !{., 
 180, at p. 190. But in that case it was held that the Court would not 
 amend ^e conviction for selling liquor during prohibited hours where the 
 Justice imposed a fine, and in default of sufficient distress imprisonment at 
 hard labor, while the Act only authorised the alternative of fine or imprison- 
 ment as a substantive punishment for a second offence, but gave no power to 
 imprison at hard labor for non-payment of the fine. 
 
 In another case, a conviction of S. AD., for unlawfully keeping liquor for 
 sale, &o., was held bad for that the defendants could not be convioted jointly, 
 nor one penalty be awarded against them jointly, and that such conviction 
 could not be amended, the judgment of the Court being that the Police Magis- 
 trate in making the conviction did precisely what he intended to do — convict 
 the defendants jointly, and imposed a penalty upon them jointly — and that he 
 was clearly wrong in doing either : B. v. Sutton, 42 U. C. B., 220. In delivering 
 the judgment of the Court, Mr. Justice Armour said: " Our powers of amend- 
 ment are extremely wide, as pointed out in B. v. Lake, 7 P. B., 216, and wo 
 ought to amend if it is possible to do so, but I do not think that they are wide 
 enough to enable ua to amend this oonviotion." 
 
 In B. V. Lawrence, 43 U. 0. B., 164, Gwynne, J., aaid : " I should have great 
 difficulty in underttaneUng from the eonvietion itself, which awarded an illegal 
 sentence, that the appropriate penalty or punishment for the offence was what 
 was intended to be adjudged by the iUegal sentence :" See MoLellan v. McKin- 
 non, 1 0. B., 219 ; B. v. Dunning, 14 O. B., 02. 
 
 " It appears to me that the Legislature did not intend to impose upon a Judge 
 the duty, or to confer upon him the power to make any alteration in the 
 sentencing part of the oonviotion :" per Oder, J., B. v. Allbright, 9 P. B., 25, at 
 p. 28. 
 
Is. 105. 
 1877, c. i8i, 
 
 \ libAMl in oon- 
 !■ are made to 
 >ni 0. J>i B. V. 
 
 wn to amend in 
 Court only when 
 appropriate pen- 
 idjadged." 
 1 of the convict- 
 rt oannot decide 
 liBoretion of the 
 or more within 
 ftdjudged by the 
 or can we decide 
 in the prescribed 
 I left to the cou- 
 t more competent 
 1 of the case on 
 Bidea, when that 
 1 the face of the 
 conviction ' that 
 that the Justice 
 seamed to be his 
 d to look outside 
 f the exercise of 
 rood, as we lind 
 ack, 48 U. G. B., 
 Gonrt would not 
 hoars where the 
 mprisonment at 
 Ine or imprison- 
 ave no power to 
 
 jeping liqaor tot 
 lonvioted jointly, 
 
 each oonviction 
 le Police Magis- 
 to do — convict 
 
 y — and that he 
 0. In delivering 
 owers of amend- 
 
 i., ai6, and wo 
 
 t they are wide 
 
 ihoald have great 
 
 rarded an illegal 
 
 fence was what 
 
 lellan v. MoKin- 
 
 aponaJudge 
 alteration in the 
 t, 9 P. R., 26, at 
 
 S. 
 
 I05'] 
 
 THE LIQUOR LICENSE ACT. 
 
 341 
 
 Under this olaase no oonTiotion or other process or proceeding shall be held 
 to be insaffioient or invalid by reason of any variance or any other defect in 
 form or substance if it can be understood from the document itself. 
 
 (1) That the same was made for an offence against some provision of the Act ; 
 
 (2) That such offence was within the jurisdiction of the Magistrate or Justices 
 making the same ; and 
 
 (8) That no greater penalty is imposed than is authorized by the Act. 
 
 A Magistrate may amend his conviction at any time before the return of the 
 certiorari, and the Court refused to quash a conviction because of the previous 
 return of a bad oonviction, especially where the latter had not been tiled : B. v. 
 McCarthy, 11 O. B., 667. But where the conviction does impose a greater 
 penalty or punishment than the Legislature had power to authorize, it is 
 invalid : B. v. AUbright, 9 P. B., 26 ; B. v. Frawley, 46 U. 0. B., 227 ; and 
 oases cited $upra. 
 
 " Up to the time of the return and filing of a certiorari the Justices may 
 amend the conviction, but after the filing of the papers no amendment can be 
 made: " per Biohards, C. J., B. v. Smith, 86 U. C. B., 618 at p. 522 ; see also 
 B. V. Lennon, 44 U. 0. B., 466 at p. 461. It was therefore held that an 
 amended conviction cannot be put in after the return of a certiorari : B. v. 
 Mackenzie, 6 0. B., 166. In a conviction under sec. 70 for selling liquor 
 without a license, the minute of conviction stated that in default of payment of 
 the tine and costs iriiposed, the same was to be levied by distress, and in 
 default of distress, imprisonment, and a formal conviction was drawn up 
 following the minute : 
 
 Held, that under see. 70 distress was not authorized, but that the fact of the 
 minute containing such provision did not prevent a conviction omitting such 
 provision being drawn up and returned in compliance with a certiorari granted 
 [b. v. Brady, 14 0. B., 868 ; B. v. Higgins, 18 0. B.. 148 considered). Held 
 also, that the oonviction was good under see. 106. The minute of conviction 
 is required by sec. 68 of B. S. 0. 0. 178, which made imperative what had been 
 the practice of Justices prior to the passing of the Summary Convictions Act, 
 1848, in England. It was said that the provision of sec. 68 does not give any 
 greater force or validity to that minute or memorandum than it had before, and 
 that it does not occupy any higher position than the conviction drawn therefrom 
 and that it did not prevent the drawing up of a formal conviction, omitting the 
 provision of distress, which the Magistrate had no power to insert. And 
 besides this, the provision of sec. 106 prohibited the Court from holding a con- 
 viction insufficient or invalid by reason o! a defect in form or substance, and 
 the variation of the conviction from tbe mit'ute was a defect either of form or 
 substance : B. v. Hartley, 20 0. B., 481. 
 
 Where the defendant was convicted under sec. 60 for permitting spirituous 
 hquors to be drunk in his house, being a house of public entertainment, the 
 minute of conviction providing for distress in defaiUt of payment of the fine 
 and costs imposed; but the conviction drawn up and returned with the 
 certiorari omitted the provision for distress. Neither under sees. 60 nor 70 
 is distress authorized. Held, that the oonviction was vaUd, as being in accord 
 anoe with sec. 60, and that under the circumstances it need not follow the 
 minute : held also that the conviction would have been good under sec. 70, as 
 the giving and being paid for iemperanoe drinks was a mere subterfuge for 
 disposing and selling spirituous liquors ; and further, the conviction could be 
 supported under sec. 106. Held, aiso, that the fact of one of the Magistrates 
 being a chemist and druggist did not incapacitate him from acting and adjudi- 
 cating upon the case : B. v. Biohardson, 20 0. B., 614. 
 
 I.' ■ 
 
 
 
 r 
 
 ^0 
 
 HjjS" 
 
 A conviotion moat be under seal: 
 Bond V. Conmee, 16 App. B., 898. 
 
 In re Byer and Plows, 46 U. C. B., 206 ; 
 
1: 
 
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 X 
 
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 S 
 
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 242 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 105. 
 
 Held, that it was no objeotion to the oonviotioii that it was for keeping; and 
 selliiiR while the infonnation charged the keeping only : B. v. Bennett, 3 
 0. B.. 46. 
 
 Where a oonviotion did not shew on its faoe that the 0. T. Act, 1878, was in 
 force, the Oonrt on the merits allowed the retam to be amended so as to shew 
 jurisdiction, and for this purpose allowed a further return of the " Qazette " 
 produced as an exhibit, but not filed: B. v. Elliott, 12 0. B., 624. 
 
 Where the Justices thought the first conyiction drawn up and returned to 
 the Olerk of the Peace erroneous, they had the right, provided the facts before 
 them justified it, to draw up and return an amended one afterwards : B. v. 
 Clarke, 19 0. B., 601 ; B. v. Bennett, 8 0. B., 45. 
 
 Where a defendant was convicted of unlawfully selling packages of tea, being 
 the means of disposing of a gold watch, etc., by a mode of chance, the Court 
 said that the case being clearly within the Act prohibiting the sale of '* any lot, 
 card or ticket, or other means or device for selling or otherwise disposing of any 
 property, real or personal, by lots, tickets, or any mode of chance whatever," 
 any obieotion to the form of conviction was cured by sec. 87 of The Summary 
 Convictions Act, c. 178, B. 8. C; B. v. Freeman, 18 0. B., 624. 
 
 A defendant was summoned to appear before the Police Magistrate on April 
 14th for unlawfully selling liquor, and he instructed another person to go to the 
 Magistrate and try and arrange the matter by paying such sum as should be 
 demanded by the Magistrate. On April 18th the person went as instructed and 
 settled the case by paying the fine, at the same time without authority and 
 without the paper having been read to him, signed in the defendant's name, aa 
 his agent, an endorsement on the information, which stated that the informa- 
 tion had been read to the defendant, who pleaded guilty to the same. On April 
 14th the Magistrate, without holding any Court, or calling any witnesses in 
 support of the charge, and without defendant being present, convicted him of 
 the offence and fined him 960 and costs, drawing up a formal conviction which 
 was returned. Subsequently he returned another conviction for the same 
 offence, reciting that the conviction was made at the place where the defendant 
 lived, by defendant admitting the charge. Held, that the conviction could not 
 be supported and must be quashed : B. v. Edgar, 17 0. B. , 188. 
 
 A conviction purporting to be made by three Magistrates, but signed by only 
 two, was returned with a certiorari : Held, if an objection at all, a ground for 
 sending it back that the third Magistrate might sign it, but not a ground for 
 quashing it : B. v. Tonng, 7 O. B. , 88. 
 
 Where it did not appear by the information on which a conviction was 
 founded what the nature of the previous offence w&7. or \vhere it was com- 
 mitted, or that it was of a similar nature to the fresh offence rharged by the 
 information, it was held that the conviction could not stand : B. v. Kennedy, 
 10 0. B., 896 ; see B. v. Kennedy, 17 0. B., 169 ; cited ante, note (d), sec. 101, 
 
 Where the conviction is regular on its face and does not shew excess of juris- 
 diction, such an irregularity as the imposition of excessive costs can not be 
 inquired into on application for prisoner's release : R. v. Sanderson, 12 0. B., 
 178. 
 
 A summary conviction by the Police Magistrate qf the County of Brant for 
 selling intoxicating liquor to an Indian in the Township of Tuscarora, contrary 
 to B. S. C, c. 4S, stated that the offence was committed on the 29i;h Sept,, 
 1887, but the evidence disclosed that the offence was committed on 27th Sept., 
 1887 : Held, that the date was not under the circumstances material, there 
 being no suggestion that any wrong or injustice was caused by the mistake, 
 and that sec. 87 of B. S. C, 0. 48, operated to cure this irregularity, as also 
 certain other irregularities complained of, the offence having been clearly 
 proved, the PoUce Magistrate having express jurisdiction by sec. 96 of the Act, 
 
[s. 105. 
 
 I05-J 
 
 THE LIQUOR LICENSE ACT. 
 
 243 
 
 r keepiuft and 
 V. Bennett, 3 
 
 t, 1878, was in 
 
 so aa to shew 
 
 be " Gazette " 
 
 L. 
 
 id returned to 
 
 le facts before 
 
 arwards : R. v. 
 
 es of tea, being 
 inoe, the Court 
 tie of " any lot, 
 isposing of any 
 noe whatever," 
 The Summary 
 
 listrate on April 
 fion to go to the 
 m as should be 
 3 instructed and 
 it authority and 
 idant's name, as 
 at the informa- 
 lame. On April 
 ny witnesses in 
 lonvioted him of 
 onviction which 
 for the same 
 e the defendant 
 lotion could not 
 
 (2) Upon any application to quash such conviction, (d) 
 or warrant enforcing the same, or other process or pro- 
 ceeding whether in appeal (c) or upon habeas corpus^ (d) or 
 
 and the punishment imposed being within the power conferred upon him : B. 
 V. Green, 12 P. B., 373. 
 
 (b) " This part of the section is dependent, to a great extent, for its operation 
 upon the first part and flows from it. The duty is to dispose of the application 
 upon the merits, ' notwithstanding any such variance or defect as aforesaid.' 
 Where it appears that the merits have been tried and that the conviction is 
 valid under this section or otherwise, the Court is authorized to amend the 
 same if necessary. It is not easy to understand the necessity of amending a 
 vdid convi<>tion. What is meant is that the conviction may be made valid by 
 amendmeiit where on the facts there ought to be a valid conviction. The 
 power to amend, however, appears to be under the first part of the section and 
 subject to the limitatiord there provided : per Harrison, C. J., B. v. Black, 48 
 U. C. R., 180, at p. 190. 
 
 See also cases citPu in notes to sees. 70, 103, 101. 
 
 (e) " In appeal." See sec. 118 and notes thereto. 
 
 (d) A writ of habeas corpus ad subjiciendum may be awarded at any time by 
 a Judge of the High Court in the case of a person confined or restrained of his 
 liberty (except persons imprisoned for debt or by process in any action, or by 
 the judgment, conviction, or order of a Court of Record, Court of Oyer and 
 Terminer, or General Gaol Delivery, or Court of General Sessions of the Peace) 
 upon complaint made by or on behalf of the person so confined or restrained, 
 if it appears by affidavit (or affirmation where by law affirmation is allowed) 
 that there is probable and reasonable ground for the complaint, directed to the 
 person in whose custody or power the person so confined or restrained is, 
 returnable immediately before such Judge or before the Judge in Chambers for 
 the time being, or before a Divisional Court. And upon the return of buch 
 writ the Court may proceed to examine into ita uath of the facts set fortVi in 
 the return by affidavit or other evidence, and may order and determine tonoiiing 
 the discharging, bailing or remanding the party. B. S. 0. 0. 70, sees. 1, 2. 
 
 The affidavit upon which an order for a hadeas corpus is moved should be 
 entitled in one of the Superior Courts. As a general rule it should be made by 
 the prisoner himself, or some reason shewn for his not making it. It is d'.scre- 
 tionary virith the Judge to receive an affidavit of a different kind : In re Boss, 8 
 P. R., 801. 
 
 The writ should be returned with the warrant itself and not merely a copy of 
 it : In re Oarmichael, 10 L. J. U. C, 326. 
 
 When a person is restrained of liberty under a Statute, he should be dis- 
 charged, unless the Judge is satisfied by unequivocal words in the Statute that 
 the imprisonment is warranted : In re Slater and Wells, 9 L. J. U. C, 21. 
 
 Held, iliat in favor of liberty, it is the duty of the Judge on a habeas corpus, 
 when doubting the sufficiency of a warrant of commitment, to discharge the 
 prisoner : In re Beebe, 8 P. R., 270. 
 
 The Judges of the Superior Court are bound when a prisoner is brought before 
 them to examine the proceedings and evidence anterior to the warrant of com- 
 mitment, and to discharge him if there does not appear enfflcient cause for his 
 detention : R. v. Moeier, 4 P. R., 64. 
 
 A County Court Judges Criminal Court was held to be a Court of Record, and 
 that under the Act above cited there was therefore no right to the writ : R. v. 
 St. Denis, 8 P. R., 16. 
 
 See R. A J's Dig., 1616-1660. 
 
!f 
 
 TSi^ 
 
 . 1' .^ 
 
 1 I 
 
 3 
 
 
 
 244 THE LIQUOR LICENSE ACT. [s. I05. 
 
 by way of certiorari (e) or otherwise, the Courc or Judge 
 
 Held, that a discharge of the plaintiff from oastody on habeas corpus was not 
 a quashing of his conviction : Hunter v. Gilkison, 7 0. B., 786. 
 
 The course to be taken by the Court on return of a habeas corpus shewing 
 prisoner detained under a defective warrant, in execution of a conviction of a 
 Justice of the Peace, is discussed in Arscott v. Lilley, 11 0. U., 163. 
 
 See Ont. Dig.. 1882.1884, 214, 216 ; Ont. Dig., 1884-1887. 80> 301. 
 
 («) " Certiorari " means "to be more fully informed." It was formerly a 
 writ issuing out of the High Court of Justice addressed to the Judges or officers 
 of inferior Courts commanding them to certify or to return records of a caase 
 depending before them to the end that the party may have more sure and 
 speedy justice : Wharton, 121. 
 
 B. S. 0. , c. 70. s. 5, provides : In oases in which a writ of habeas corpus is 
 issued the Court or Judge may direct the issuing of a writ of certiorari directed 
 to the person by whom or by whose authority any person is confined ur 
 restrained of his liberty, or other person having custody or control thereof, 
 requiring him to certify and return to the Court or Judge as by the writ maj 
 be provided, all the evilence, depositions, convictions, and all proceedings had 
 or taken touching or concerning such confinement or restraint of liberty to tlie 
 end that the same may be viewed and considered by the Court or Judge, and 
 to the end that the sufficiency thereof to warrant such confinement or restraint 
 may be determined. 
 
 But the procedure on certiorari depends to a great extent on Bules of Court, 
 and by the Act above cited the Supreme Court and Court of Appeal are empow- 
 ered to make such rules of practice in reference to writs of habeas corpus as may 
 be necessary. 
 
 By Bule 1140 of the Con. Bules of Prao., no writ of certiorari shall issue in 
 any case, but an order may be made which shall have the same effect as the writ of 
 certiorari formerly had. 
 
 The proceedings for the removal of a conviction on certiorari are usual!; 
 begun by an application for a rule nt«t calling on the Magistrate or Justices to 
 shew cause why a certiorari should not issue. (For form of notice see appen- 
 dix.) The affidavit on which the application is based should be entitled in the 
 Court in which the motion for the nde is made, which is sufficient to indicate 
 into which Court the proceedings are to be removed, and where the rule Nvas 
 entitled " In, the matter of John Barrett," it was contended that it should have 
 been entitled " The Queen v. John Barrett," but it was held " that there was 
 no such cause as ' The Queen v. John Barrett ' in the Court, and until the rule 
 is ordered that the cause of that style in the Court below shall be transferred 
 into this Court, the proceedings are all properly intituled as they have b^o 
 here : " In re Barrett, 28 U. 0. B., 669. 
 
 For forms of proceedings, see appendix. 
 
 No writ of error lies on summary convictions, and therefore certiorari is the 
 only mode by which a revision of such proceedings by the Superior Court can 
 be obtained. 
 
 It requires no special law to authorize it, as it is a consequence of all inferior 
 Courts to have their proceedings removed for the purpose of being examined by 
 the superior Court, and the right to certiorari cannot be taken away except by 
 express words : Scott v. Bye, 2 Bing., 844 ; Paley on Con. , 4th ed.. '^78. 351. 
 
 When certiorsri is applied for to remove a conviction, it is either at the 
 instance of the Crown or of the defendant : Paley on Con., 4th ed., 368. In 
 the former case it may be issued on the application of the Attorney-General or 
 the private prosecutor, and it issues, of course, without assigning any grounds. 
 But although it is demandable of right by the proseontor, it is discretionary 
 
 ■i:.:<! 
 
s. ics-J 
 
 THE LIQUOR LICENSE ACT. 
 
 245 
 
 in the Ooart to grant or refnsA it on the applioation of the defendant. Some 
 ■ speoial ground mast be shewn by affidavit on a moving fo)r the rale : Paley on 
 corpuawasnot | Con. , 4th ed., 368. 
 
 But by this section it is provided that no oonviotion or warrant shall be 
 insufficient or invalid by reason of any variance between the information or 
 conviction, or by reason of any other defect in form or substance, if it can be 
 understood that it was made for an offence against this Act, within the 
 jurisdiction of the Magistrate, etc., and there is evidence to prove such 
 oSence, and if the penalty imposed is not in excess of that authorized. How 
 far this enaotmont may be urged in answer to objections against the form 
 and effect of co^ivictions, warrants and other process will appear by the 
 cases cited below. 
 
 There are similar provisions in The Summary Convictions Act, B. S. C. 0. 
 178, s. 28. 
 
 An application for writs of certiorari to remove convictions for selling liquors 
 in a Township where the Temperance Act, 1864, was in force, was refused on 
 the ground that if the convictions should have been under that Act and not 
 under the License Act, they were amendable : In re Watts and Emery, 5 P. B. , 
 267. 
 
 Where the Magistrate ordered the defendant to pay for the use of the hall for 
 trying the case ; held, that in ordering payment of this sum there was a clear 
 excess of jurisdiction, and in ordering distress, <S;o., there was a further excess 
 and that the matter was one of principle and not of form, and the conviction 
 was quashed : B. 7j. Elliott, 12 0. B., 524. 
 
 Although the Temperance Act, 1864, takes away the right of certiorari and 
 appeal, a certiorari may be had when there is an absence of jurisdiction in the 
 convicting Justice, or a conviction on its face defective in substance, but not 
 otherwise : In re Watts and Emery, 5 P. B., 267. See also B. v. ElUott, 12 
 0. B., 624 ; B. v. Dowling, 17 0. B., 698 ; B. v. Bamsay, 22 L. J. N. S., 125 ; 
 R. V. WaUace, 20 L. J. N. S., 18. 
 
 Where a 'conviction affirmed an appeal to the sessions contrary to a Statute 
 which enacts that no certiorari shaU issue, held, that the Court could not quash 
 the conviction, (the case being one in which the Magistrate had jurisdiction,) 
 though it was clearly bad, and no motion had been made to quash the certiorari : 
 R. V. Johnson, 30 U. G. B., 423. 
 
 And a oonviotion having been brought up by certiorari under the same Statute 
 it was held that it oould not be quashed, but the Court could only discharge the 
 defendant ; B. v. Leveoqne, 80 U. 0. B., 609. But see B. v. Wehlan, 46 
 U. C. B., 396, cited i>oit. 
 
 A defendant is not entitled to remove proceedings by certiorari to a Superior 
 Court from a Police Magistrate or a Justice of the Peace after conviction, or at 
 any time, for the purpose of moving for a new trial for the rejection of evidence, 
 or because the conviction is against evidence, the conviction not being before 
 the Court and no motion made to quash it : B, v. Bichardson, 8 0. B,, 651. 
 
 Held, that though not expressly so enacted, B. S. C. c. 178 is retrospective in 
 its operation, and applies to convictions whether made before or after the 
 passing of the Act, and under section 84, the right to certiorari is taken away 
 upon service of notice of appeal to the Sessions, that being the first proceeding 
 on an appeal from the conviction : B. v. Lynch, 12 0. B., 372. 
 
 Where the Magistrate has jurisdiction over the offence charged, and the 
 right to certiorari is taken away, the Court cannot examine the evidence to see 
 if the Magistrate had jurisdiction to convict, and the certiorari was refused : B. 
 V. Rcott, 10 P. B. , 617. 
 
 Held, that sii*oe the passing of 49 Vic, 0. 49, s. 8 (D.)— now B. S. G. 0. 178 
 
 
 Is 
 
 
 
 '':l'l 
 
t r 
 
 246 
 
 THE LIQUOR LICENSE ACT. 
 
 Ls. 105. 
 
 ^ ■ ^iU i^ i 
 
 1 • " ?!• 
 
 ■ 1% 
 
 
 
 ••»!|H« 
 
 ■ Ml!, 
 
 8. 91 — there is no longer any neoessity for a defendant on removal by certiorari 
 of s conviction against him, to enter into the reoognizanoes as to oosts formerly 
 required : B. v. Swalwell, 12 0. B., 891. 
 
 On the return of a writ of certiorari a reoognizanoe is onneoessary : B. v, 
 Nunn, 10 P. B., 896. See also B. v. Mackenzie, 6 0. B., 166 ; B. v. McCarthy 
 11 0. B., 657, cited aupra. 
 
 Where a defendant has been committed for trial, bnt afterwards admitted to 
 bail and discharged from custody, a Superior Oonirt of Law has still power to 
 remove the proceedings on certiorari, but in its discretion it will not do so 
 whore there is no reason to apprehend that he will not be fairly tried : B. v. 
 Adams, 8 P. B., 462. 
 
 A certiorari will not lie to remove a conviction under the Liquor License Act, 
 8. 67, which has been affirmed and amended on appeal to the Sessions for 
 issuing a license o.nt-ary to the Act, the proceduv? being regulated by 82 and 
 33 Vic, 0. 81, s. 71 (D.), as amended by 88 Vic, 0. 27, s. 2 (D.), now B. S. C, 
 c. 178, 8. 83, which prorldes that " no conviction or order affirmed, or affinned 
 and amended in appeal, shall be quashed for want of form or be removed by 
 certiorari into any Superior Court, and no warrant of commitment shall be held 
 void by reason of any defect therein, provided it is therein alleged that the 
 defendant has been convicted and there is a good and valid conviction to sus- 
 tain the same : " B. v. Orainger, 46 U. C. B., 196. On an application to qua„h 
 a conviction brought upon certiorari the Court will not notice any facts not 
 appearing in the conviction for the purpose of impeaching it on any ground 
 except want of jurisdiction ; nor has the Court any power to review the decision 
 of the Sessions in a matter within their jurisdiction, nor to grant & mandamus 
 to compel them to re-hear an appeal : S. 0. 46, U. 0. B., 882. 
 
 When the conviction is for breach of a by-law, the writ of certiorari is not 
 taken away : re Bates, 40 U. C. B., 284 ; B. v. Washington, 46 U. 0. B., 221. 
 
 The Divisional Oourt has power to quash a conviction for an illegal adjudi- 
 cation of a punishment, although it has been appealed against and affirmed in 
 respect to snoh adjudication ; and s. 71 of 32 and 88 Vic, 0. 81 (D.), now 
 B. S. C, 0. 178, s. 83, does not take away the certiorari in such a oase : per 
 Armour, J., MoLellan v. McEinnon, 1 O. B., 219. 
 
 A conviction once regularly brought into and put upon the files of the Court 
 is theru for all purposes, and a defendant may move to quash it, however or at 
 whosesoever instance it may have been brought there, and where, on an applica- 
 tion for a habeas corpus, under B. S. 0. c. 70, a certiorari had issueil, and in 
 obedience to it the conviction had been returned, the conviction was quashed 
 on motion though there had been no notice to the Magistrate or recognizance: 
 B. V. Leveoque, SO U. 0. B., 609, distinguished : B. v. Wehlan, 46 U. C. B., 
 396. 
 
 On a motion to quash a conviction by a Justice of the Peace which had been 
 appealed to the County Judge, an objection that the writ was improperly 
 directed to and returned by the Clerk of the Peace and County Attorney instead 
 of the County Judge or Magistrate, was overruled : B. v. Frawley, 46 U. 0. B., 
 227. 
 
 In shewing cause to a rule niii to quash a conviction, objection may be taken 
 to the regularity of the certiorari, and a separate application to supersede it 
 need not be made. Where, therefore, on an applicatien made aJter notice to 
 the convicting Justices for a rule for a certiorari, the rule was refused, and on 
 a subsequent ex parte application on the same material the rule was obtained, 
 it was held that the notice of the first application would not enure to the benefit 
 of the defendant on his second application, and that the certiorari was irregu- 
 larly obtained for want of notice to the convicting Justices, and a rule to quash 
 the conviction was therefore discharged : B. v. McAllan, 46 U. C. B., 402. 
 
 r If. 
 
 i'M 
 
jy, 46 U. 0. R., 
 
 s. 105.J 
 
 THE LIQUOR LICENSE . CT. 
 
 247 
 
 to which such appeal is made or to which such application 
 has been made upon habeas corpus or by way of certiorari 
 or otherwise, shall dispose of such appeal or application 
 upon the merits, notwithstanding any such variance or 
 defect as aforesaid, and in all cases where it appears that 
 the meiits have been tried, (/) and that the conviction, 
 warrant, process or proceeding is sufficient and valid under 
 this section or otherwise, such conviction, warrant, process 
 or proceeding shall be affirmed, or shall not be quashed 
 (as the case may be), and such Court or Judge may, in any 
 case, amend the same if necessary, and any conviction, ^ei^ed. 
 warrant, process or proceeding so affirmed or affirmed and 
 amended, shall be enforced in the same manner as convic- 
 tions affirmed on appeal, and the costs thereof shall be 
 recoverable , as if originally awarded. R. S. O. 1877, c. 
 181, s. 77 (2). 
 
 Where the reoognizanoe to proseoate a certiorari returned, after the allowance 
 of the latter, by the oonvioting Jastioes together with the oonviotion, is sub- 
 stantially and dearly bad, and the oonviotion may be possibly upheld, the 
 allowanoe of the certiorari may be quashed on the return of the rule nisi to 
 quash the oonviotion without a substantive motion for that purpose ; but other- 
 wise, when the objeotion is a trivial one, or the oonviotion is clearly defective 
 and must inevitably be quashed : B. v. Cluff, 46 U. C. B., 665. 
 
 On a oonviotion under B. S. 0. 0. 32, for selling liquors near public works, 
 the defendant was discharged upon a writ of habeas corpus, the Justices 
 having return 'jd to the certiorari issued in aid of the habeas corpus, a paper 
 purporting to be the oonviotion signed by them, but not under their seal. The 
 conviction was not quashed. Held, that after the return of the certiorari, a 
 new conviction could not be rntumed, and that the oonviotion returned was a 
 nullity and need not be quashed before an action was brought for malicious 
 prosecution: Bond v. Gonmee, 16 App. B., 398. See Chaney v. Payne, 1 
 Q. B., 712. 
 
 For authorities on certiorari, see Trotter on Appeals, etc., 64, 84, 135 ; Paley 
 on Con., 4th Ed.., 360 et seq. ; 1 Mew's Dig., 2-37 ; Sinclair's D. C. Act, 1879, 
 81-84 ; B. & J.'s Dig., 6S9-647 ; Ont. Dig. (18821884), 104-106 ; Ont. Dig. (1884- 
 1887), 73 ; Dickenson's Guide to Q. S., p. 1064 ; see also K. v Bichardson, 
 8 0. B., 661. 
 
 (/) " Upon the merits " means " upon the matter charged being an offence 
 within the Act, and the evidence to prove it : " per Wilson, G. J., B. v. Brady, 
 12 0. B., 368 at p. 365. " Under these provisions I am to dispose of the case 
 upon the merits. In what manner am I to do so ? Does the Act mean that I 
 am to try the caae upon the material returned before me 7 Or that I am to try 
 the case upon the merits aa would be done on an appeal to the General 
 Sessions 7 " "I think it means that the Court or Judge is to dispose of it. 
 That is what the Act says. It does not say try it ; and it is to be so disposed of 
 whether the case is brought by way of appeal, habea* corpus, certiorari or other- 
 wise. Now on habeas corpus or certiorari, the oase is not disposed of as it is on 
 an appeal. I think, therefore, I may dispose of the oase upon its merits, by 
 
 ' I. 
 
 m 
 
 ''^'■•-m 
 
 m 
 
 
 
 ^21 1>^ 
 
 ■".■^ 
 
 1 ■ 
 
248 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 106. 
 
 
 I I 
 
 EVIDENCE, ETC. 
 
 how°*°' 10©« In any prosecution or proceeding under this 
 proved. Act, ({;) in which proof is required respecting any license, (A) 
 a cert- ficate under the hand of the inspector of the Hcense 
 district (/) shall he/rima/ncie proof (j) of the existence of 
 a license, and of the person to whom the same was granted 
 or transferred ; (k) and the production of such certificate 
 
 trying and adjudioating it upon the prooeedings returned before me :" Wilson, 
 C. J.,R.v. Brady, lupra, at p. 366. 
 
 Where the prooeedings before a Magistrate are removed under 29 and 80 Yio., 
 0. 45, 8. 6, the Judge is not to sit as a Oourt of Appeal from the findings of 
 the Magistrate upon the evidence ; u. any faot found by the Magistrate is dis- 
 puted, and he would have no jurisdiction had he not found that fact, then the 
 evidence may be looked at to see whether there was anything to support hia 
 findings upon it ; but if the jurisdiction to try the offence charged does not come 
 in question as a part of the evidence, then the jurisdiciion having attached, his 
 finding is not reviewable, as a rule, except upon an appeal : B. v. Green, 12 
 P. B., 373. 
 
 {g) " In any prosecution or proceeding." See sec. 101, note («), also note 
 (w), sec. 109. The provisions of this section are applicable in the case not 
 only of any prosecution, but also of any other proceeding in which evidence 
 is required to be taken under the Act. " Any proceeding " includes civil as 
 well as criminal proceedings : Taylor on Evi., 1383. 
 
 (h) It is a rule of law that " where any oae is proceeded against for doing an 
 act which he is not permitted to do, unless he has some special license or 
 qualification in his favour, it is sufficient to charge this want of license or qual- 
 ification against the party, and it is for him to prove his license or qualification 
 affirmatively : " per Wilson, J., «'n re Barrett, 28 U. 0. B., 669 at p. 661. 
 
 By sec. 114 the burden of proof is on the defendant where the act or omission 
 complained of is one for which he would be liable to a penalty if he were not 
 duly lioeused, and a conviction need not shew that dofendant was not licensed : 
 B. V. Young, 7 0. B., 88. 
 
 In prosecutions for selling liquor on Sundays it must be shewn that the place 
 was one in which liquors were or might be sold by wholesale or retail, and thi 
 the defendant had a license : B. v. Budwell, 6 O. B., 186 ; see B. v. Walsh, 2 
 0. B., 206, cited pott under Canada Temperance Act. 
 
 (i) " A certificate under the hand," etc. The certificate required here must 
 be in writing and signed by the License Inspector of the district in which the 
 license, respecting which proof is required, was issued. See Wilson v. Wallani, 
 5 Ex. D., 156, as to effect of the term " under h's hand." Such certificate is 
 prima facie proof : (1) Of the license ; (2) of the person to whom such license 
 was granted or transferred ; (3) of all the facts stated in such certificate ; (4) 
 of the authority of the Inspector. And the mere production of such a oertiti- 
 oate is suiticient without any evidence of the appointment of the Inspector or 
 of his signature to the certificate. 
 
 Although this mode of proof is applicable to any proceeding, it doen not 
 exclude any other authorized mode, and if a certificate is produced which does 
 not comply with the Statute, or if there is no such certificate produced, theu 
 there must be other evidence to prove the existence of the license. See note 
 {d), sec. 101. 
 
 (j) " Prima facie." See sec. 62, note (j), p. 120. 
 
 {k) ''Granted or transferred," See sees. 8, 11, 12 and 37 and notes thereto. 
 
 
me :" Wilson, 
 
 notes thereto. 
 
 SS. Io6, 107.J THE LIQUOR LICENSE ACT. 249 
 
 / 
 
 shall be sufficient prima facie evidence of the facts therein 
 stated and of the authority of the inspector, without any 
 proof of his appointment or signature. R. S. O. 1877, 
 c. 181, s, 78. , - 
 
 1.0 V* Any resolution (/) of the board of license com- how each 
 
 regulK- 
 missioners passed under sections 4 and 5 of this Act, shall tionau- 
 
 bc sufficiently authenticated (m) by being signed («) by the ed, etc. 
 
 chairman of the board which passes the same ; (o) and a 
 
 copy of any such resolution written or printed, and certified 
 
 to be a true copy by any member of such board, shall be 
 
 deemed authentic, and be received in evidence in any Court 
 
 ({) " Any resolation." See note (p), see. 4, and note (x), p. 55. 
 
 (m) " Shall be saffloiently aathentioated " means that the authority of the 
 resolution shall be sufficiently established, eto. 
 
 An authentication is an attestation made by a proper ofScer by which he 
 certifies that a record is in due form of law, and that the person who certifies 
 it is the officer appointed to do so : Wharton, 70. The authentication is made 
 under this section : (1) In the case of the original resolution, by being signed 
 by the Chairman of the Board which passed the same ; and 
 
 (2) In the case of a copy of such resolution, by being certified to be a true 
 copy by any member of such Board. 
 
 (n) " Signed." As to what is necessary with regard to signature, see notes 
 on pages 27 and 78. 
 
 (0) " By the chairman of the Board which passed the same." The License 
 Commissioners cease to be such on 81st Deo. in each year, but they may be re- 
 appointed (sec. 4). The resolution must be signed by the Chairman of the 
 Board which passed the same, and although the Board which existed at the 
 time of the passing of the resolution may have ceased to exist, and the Chair- 
 man of such Board may be dead or absent from the country, it will not meet 
 the requirements of this section if signed by the Chairman of the Board for the 
 time being, or by any other than he who was the Chairman at the time of the 
 passing of the resolution. The proper course seems to be that the resolutions 
 should be printed or written in a book, and each one signed by the Chairman 
 of the Board at the time of the passing of the resolution. A " copy " of the 
 resolution, so signed, certified to be a true copy by any member of sucft Board, 
 shall be deemed authentic and received as evidence, eto. What is probably 
 intended by this section is, that a certified copy of such resolution, in the 
 absence of the original, shall be received in evidence instead of the original. 
 The section is not framed, however, to give this construction literally, though 
 the Courts might so interpret it. 
 
 Where the original record can be received in evidence, a copy of any official 
 or public doeument, purporting to be certified under tiie hand of the proper 
 otiicer, or person in whose custody such official or public document is placed, 
 or a copy of a document, by-law, rule, regulation or proceeding, or a copy of 
 any entry in any register or other book of any Corporation created by charter or 
 Statute in this Province, purporting to be under the seal of the Corporation 
 ami the hatfd of the presiding officer or secretary thereof, shall be receivable in 
 evidence without proof of the seal of said Corporation, or of the signature or of 
 the official character of the person or persons appearing to have signed the 
 same and without further proof thereof. B. S. 0. 0. 61, s. 23. 
 
 1 ■ /'' 
 
 
 
 
 Ml/-, 
 
 
i 
 
 t 
 
 "i'H ' 
 
 
 
 250 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 107, 108. 
 
 Flfvoes in 
 which the 
 sale of 
 liquorB ia 
 
 '< !I 
 
 of Justice without proof of any such signature, (/) unless 
 it is specially pleaded or alleged that the signature to any 
 such original resolution has been forged. (^) R. S. O. 
 1877, c. 181, s. 7g. 
 
 1 08. Any house, shop, room or other place (r) in 
 which are proved to exist a bar, counter, beer pumps, kegs, 
 preBumed jars, decanters, tumblers, glasses or any other appliances or 
 preparations similar to those usually found in taverns and 
 shops where spirituous or fermented liquors are accustomed 
 to be sold or trafficked in shall be deemed to be a place in 
 which spirituous, fermented or other manufactured liquors 
 are kept or had for the purpose of being sold, bartered or 
 traded in, under section 50 of this Act,, unless the contrary 
 is proved by the defendant in any prosecution ; (s) and the 
 
 (p) "In any Court of Justice," is a very comprehensive term, and includes 
 every description of Court for the trial of causes, civil and criminal. For list 
 of the several species of Courts of Justice, see Wharton, 195. 
 
 (9) The only objection which can be taken to the admission in evidence of 
 the certified copy here provided for is that the original resolution signed as 
 above, of which such certified copy purports to be a copy, is forKcd, and this 
 objection must be specially pleaded or alleged. The copy is to be received in 
 evidence without proof of signature. 
 
 In prosecutions under the regulations of the License Commissioners, the 
 existence of the resolution must be proved. The same rules apply as in the 
 case of prosecutions under by-laws of a Municipality. See sec. 98, note (p). 
 
 (r) " Any house, shop, room, or other place," is a sufficiently wide term to 
 include every place conceivable, at least one would think so, but it was con- 
 tended — although the contention was not upheld by the Court — that inclosed 
 grounds into which persons were admitted on payment of a fee, and where a 
 pigeon shooting match and other sporting events were carried on, was not a 
 " place " because it was not covered by a roof. The Court did not take that 
 view, however, and held that it was not only a place, but that it was *' kept " 
 for betting purposes : Eastwood v. Miller, L. B. 9 Q. B., 440. 
 
 It was held in another case that a table under a tree in Hyde Park could not 
 be a place used for the purposes of betting : Doggett v. Catterns, 1*J C. 6. N. S , 
 765. But A betting stand or enclosure at a race-course was held to be a " place " 
 for those purposes : Shaw v. Morley, L. B. 3 Ex., 137, and an inclosed ground 
 for cricket, foot races, etc., was also held to be such a place : Haigh v. Town 
 Council of Sheffield, L. B. 10 Q. B., 102 ; and it seems that although the Court 
 held that an umbrella seven or eight feet high and supported by a staff stuck 
 into the ground, and kept up, rain or dry, was a "place," one of tbe Judges 
 thought that a prize ring or a wagon with an awning would not be a place, and 
 that an umbrella was, properly speaking, an open tent : Bows v. Fenwick, 
 L. B. 9 C. P., 339. A. movable wooden box was held to be a "place": 
 Gallaway v. Maries, 8 Q. B. D., 276; see also note {k) to sec. 11, ss. 6, ante. 
 
 {») In order as far as possible to guard against the evasion of the law and to 
 prevent the illicit sale of intoxicating liquors, extraordinary means have been 
 provided for the conviction of offenders, and this eeotion is one of those enacted 
 with that end in view. The mere fact of a bar, counter, beer pumps, kegs, 
 
mm 
 
 ■1 i 
 
 [SS. 107, 108. I gg ,q8 jQg •] ^Uj. LIQUOR LICENSE ACT. 
 
 ^51 
 
 re, (/>) unless 
 [nature to any 
 (^) R. S. O. 
 
 r place (r) in 
 r pumps, kegs, 
 r appliances or 
 n taverns and 
 ire accustomed 
 I be a place in 
 ictured liquors 
 Id, bartered or 
 >s the coiitrary 
 tn ; (s) and the 
 
 irm, and includes 
 riminal. For list 
 
 ion in evidenoe of 
 olution signed as 
 8 fotKed, and this 
 to be received in 
 
 mmissioners, the 
 B apply as in the 
 . 98, note (p). 
 
 itly wide term to 
 >, bat it was cou- 
 rt— that inclosed 
 fee, and where a 
 ed on, was not a 
 id not take that 
 ,t it was " kept " 
 
 e Park could not 
 8, 19C.B.N.S, 
 to be a '* place " 
 inclosed ground 
 
 Haigh V. Town 
 bough the Court 
 
 by a staff stuck 
 e of the Judges 
 t be a place, and 
 ws V. Fenwick, 
 
 Je a " place " ; 
 1, SB. 6, ante. 
 
 the law and to 
 leans have been 
 of those enacted 
 er pumps, kegs, 
 
 occupant of such house, shop, room or other place shall be tlon"^"^^" 
 taken conclusively to be the person who has, or keeps occupant, 
 therein, such liquors tor sale, barter or traffick therein. (/) 
 R. S. O. 1877, c. I81, s. 80. 
 
 lOOa In proving the sale or disposal, gratuitous or Eviden<se 
 otherwise, (u) or consumption of liquor for the purpose of etc., of 
 any proceeding relative to any offence under this Act, {z>) 
 it shall not be necessary to shew that any money actually 
 passed, (w) or any liquor was actually consumed, if the 
 
 jars, decanters, tnmbleri, glaases, or any other appliances or preparations sach 
 as are usaally found in a bar-room being in existence in a house or place, is to 
 be deemed evidence that spirltuoas, fermented, or other manufactured liquors 
 are kept or had for the purpose of sale, unless the contrary is proved by the 
 defendant. In other words, if the existence of the appliances mentioned is 
 proved and the defendant does not adduce evidence to satisfactorily account for 
 them and rebut the presumption raised under the section, he may be convicted. 
 The aoonsed must prove himself to be innocent in order to get rid of the pre- 
 sumption implied from his having such appliances in his possession, which is a 
 reversal of the rule which presumes every man to be innocent until proved 
 guilty. 
 
 It) The existence of certain appliances implies a violation of the Statute, 
 unless the defendant proves the contrary ; and the occupant shall be taken 
 conelutively to be the person guilty of the violation mentioned. When anything 
 is described as *' eoneltuive " evidence of a fact, it is absolute evidence of such 
 fact, in criminal as well as civil actions, and applies to all purposes for which 
 I it is so made evidence : B. v. Levi, L. & G., 697 ; B. v. Bobinson, 16 L. T.N. S., 
 606 ; Stroud's Diet., 146. The word " conclusive " has also been defined as 
 "determinative," decisive ; not to be questioned, controverted, or contradicted, 
 nor requiring support : Anderson's Diet. , 221. So that it would seem that the 
 existence of such appliances is to be taken as incontrovertible evidence that the 
 occupant is the person^who keeps such liquors for sale. See notes to sec. 112. 
 See sec. 60 and notes thereto. 
 
 See also B. v. Doyle, 12 0. B., 347 ; B. v. Brady, 12 O. B., b'8, cited in 
 notes to sec. 131, and also B. v. Hartley, 20 0. B., 481. 
 
 (u) "Gratuitous or otherwise." The term "disposal" would probably 
 include a gratuitous disposal ; but the wording of this section leaves no room 
 for doubt. See notes on pages 120, 126, ante. 
 
 {v) " Any proceeding," etc. The term " proceeding," as used here, includes 
 the term " prosecution or proceeding " as used in sec. 106. " Proceedings," in 
 its more general sense, means all the steps or measures adopted in the prose- 
 cution or defence of an action. In ordinary acceptation, when unqualified, it 
 includes the whole of the subject. " Proceedings " in a suit embrace all 
 matters that occur in its progress judicially ; and " proceedings " on a trial, all 
 that occur in that part of the litigation : see Morewood v. HoUister, 6 N. Y., 
 319-320 ; Gordon v. State, 4 Kan., 601 ; cited Anderson's Diet., 816. See also 
 note {g), sec. 106. 
 
 The provisions of the section apply to all sections relating to the sale And 
 oonsnmption of liquor. The section is taken from the English Licensing Act, 
 1872, 36 and 36 Vic, c. 94, s. 62. 
 
 (w) A sale will be presumed although no money actually passed from the 
 purchaser to the seller, and although the evidence does not shew that the liquor 
 
 mm 
 
 '%■■. 
 
 ,1 iu 
 
ii, 
 
 !' 
 H 
 
 :i 
 
 
 I Mi- 
 ll !i^ 
 
 
 ; 
 
 
 ; 1 
 
 
 :i! 
 
 53 B! 
 
 
 
 252 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 109, I 10. 
 
 Light in 
 barprima 
 faoM evi- 
 dence of 
 sale. 
 
 Justices, Police Magistrate or Court hearing the case is or 
 are satisfied that a transaction (x) in the nature of a sale or 
 other disposal actually took place, or that any consumption 
 of liquor was about to take place ; and proof of consumption 
 or intended consumption of liquor (y) on premises under 
 license or in respect to which a license is required under 
 this Act, by some person other than the occupier of said 
 premises, shall be evidence that such liquor was sold to the 
 person consuming or being about to consume or carrying 
 away the same, as against the holder of the license or the 
 occupant of the said premises. R. S. O. 1877, c 181, s. 81. 
 HO* In cities, towns and incorporated villages (:) 
 in all cases where gas or other light is seen burning in tlic 
 bar-room of such tavern or saloon where liquor is trafficked 
 in, at any time during which the sale or other disposal of 
 liquors is prohibited by any provision of this Act, any such 
 fact when proved, shall be deemed and taken as prima fade 
 evidence (a) that a sale or other disposal of liquor by the 
 
 was aotaally oonsamed, if the facts addnoed at the hearing are BQoh as would 
 ordinarly satisfy an nnprejadioed mind beyond reasonable doabt that a trans- 
 action in the nature of a sale actually took place, or that any consumption of 
 liquor was about to take place. Bee note (p) seo. 62 ; title, " eatiifaetory 
 evidence." 
 
 (s) A " transaction " has been defined as, "whatever may be done by one 
 person which affects another's rights, and out of which a cause of action may 
 arise :" Anderson's Diet., 1047. As used in this section it implies any act 
 which may take place or be performed: See Worcester, 1680; Stroud's D<jt., 
 164 : Sinclair's D. 0. Act, 1879, 240. * 
 
 (y} " Proof of consumption or intended consumption," is made evidence against 
 the holder of the license or the occupant of ih» premises. As to illegal 
 consumption of hquor, see sees. 60, 68, 60 and 61, ante. 
 
 An " intent implies purpose only ; refers to the quality of the mind with 
 which an act is done :" Anderson's Diet., 660. 
 
 To " intend " means to design ; to purpose : See Worcester, 766. 
 
 Proof of such consumption, or intended consumption, by some person other 
 than the occupier of the premises, must be given and such proof will be suffi- 
 cient to guide the Justice in determining whether there has been a sale or 
 disposal of liquor. This evidence, however, will only be prima facie, not 
 conclusive evidence, and it will be open for the defendant to rebut it. 
 
 For oases under this seetion, see the notes to those sections regarding the sale 
 of liquor to which it applies. See also Seager v. White, 61 L. T. N. S., 261, 
 cited, ante. 
 
 (s) As to " cities, towns and incorporated villages," see note (j), p. 7. 
 
 This section applies only to infraotions of the law requiring the dosing of 
 places where liquors are sold at particular i'mes, see sees. 64, 66, 66, 67, 68, 
 and notes thereto. It does not apply to townships and other rural districts. 
 
 (a) '* Prima facie evidence. " See Mo. 62, note ij). 
 
 
[ss. 109, no. ■ ss. no, III.] 
 
 THE LIQUOR LICENSE ACT. 
 
 253 
 
 the mind with 
 
 keeper of such tavern or other place has taken place con- 
 trary to the provisions of sub-section i of section 54, and 
 such keeper may thereupon be convicted of an offence 
 against said section, and shall, upon such conviction, be 
 subject to the punishment prescribed by sections 85 and 86 
 of this Act. 49 V. c. 39, s. 10. 
 
 Ill* The fact of any person, not being a licensed j^SiVbe 
 person, keeping up any sign, writing, painting or other eyfJ^Soo 
 mark, in or near to his house or premises, or having such "ui'saie^ 
 house fitted up with a bar or other place containing bottles 
 or casks displayed so as to induce a reasonable belief that 
 such house or premises is or are licensed for the sale of any 
 liquor, or that liquor is sold or served therein, or that there 
 is on such premises more liquor than is reasonably required 
 for the persons residing therein, shall be deemed prima 
 fade evidence (b) of the unlawful sale of liquor by such 
 person (c). 47 V. c. 34, s. 33. 
 
 The provisions of the SMtion are jwrfeotly plain. The mere fact of a light 
 other than the natoral light of day being seen homing in a bar-room is saffi- 
 oient to oonviot, unless it is rebutted by evidence showing satisfactory reasons 
 (or Buoh light being there, and that no violation of the law had taken place. 
 
 Also see notes to sections 85, 86 and 108. 
 
 (6) As to the meaning of prima faeU evidence, see sec. 62, note {j). 
 
 (e) This section applies only to persons who are not licensed to sell liquors of 
 any kind. Under it a person accused of the unlawful sale of liquor may be 
 oonvioted if it be shewn : (1) That he is not a licensed person ; (2) that (a) he 
 keeps up any sign, writing, painting, or other mark in or near his house or 
 premises, or (b) has sneh house fitted up with a bar or other place containing 
 bottles or casks displayed so as to induce a reasonable belief that such house or 
 premises is or are licensed for the sale of liquor, or (e) that such liquor is sold 
 or served therein, or (d) that there is on such premises more liquor than is 
 reasonably required for the persons residing therein. 
 
 The person accused may, however, rebut such presumption by satisfactorily 
 aoooanting for the existence of the facts from which the unlawful sale is implied, 
 or by evidence proving satisfactorily that no such unlawful sale has taken place. 
 
 *' Sold or served." As to evidence of sale, see notes to sections prescribing 
 penalties for illegal sale. The term " served " is probably synonymous with 
 " supplied," as used in sec. 76. 
 
 The question whether " more liqaor than is reasonably required " is found 
 on the premises is one for the Justices to determine upon the evidence before 
 them. " In cases not covered by authority, the verdict of the jury (or the 
 decision of a Judge sitting as a jury) usually determines what is reasonable in 
 each particular ease ; " but frequently reasonableness " belongeth to the 
 knowledge of the law, and therefore to be decided by the Justices : " Go. Litt. 
 66b, cited Stroud's Diet., 658. " What is reasonable is a question of fact, not 
 law : " Wharton, 617. The same principle will apply to the question of 
 'reasonable belief." See also notes on pages 26 and 106. 
 
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 Liability 
 of ooou- 
 panta. 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 112. 
 
 t <' 
 
 1.1. 9* (i) The occupant of any house, (d) shop, room 
 or other place in which any sale, barter or traffic of 
 spirituous, fermented or manufactured liquors, or any 
 matter, act or thing in contravention of any of the pro- 
 visions of this \ct, has taken place, shall be personally 
 liable to the penalty and punishments prescribed in sections 
 70 and 7 1 of this Act, as the case may be, notwithstanding 
 such sale, baiter or traffic be made by some other person, 
 who cannot be proved to have so acted 'inder or by the 
 directions of such occupant, and proof of the fact of such 
 sale, barter or traffic, or other act, matter or thing, by any 
 person in the employ of such occupant, or who is suffered 
 to be or remain in or upon the premises of such occupant, or to 
 act in any way for such occupant, shall be conclusive 
 evidence that such sale, barter or traffic, (e) or other act, 
 matter or thing, took place with the authority and by the 
 direction of such occupant (/). R. S. O. 1877, c. 181, 
 s. 83. 
 
 I 
 
 r^^ 
 
 (d) The *' ooonpant," is the person who has the aotaal use or possession of a 
 thing : Anderson's Diot., 726. See also note (i) to sec. 60, and note (g), see. 
 16. See also B. v. Howard, 46 U. O. R., 846 ; B. v. Williams. 43 D. 0. B., 462, 
 eited ante, p. 167, and in note (/), infra. 
 
 («) " Sale, barter or traffiok." See note (d), p. 6. 
 
 (/) This section applies to all proseetitions for the contravention of the pro- 
 visions of the Act ; nnder it, the oocnpant is liable for any nnlawfal act, matter 
 or thing done on the premises by any agent, clerk, servant or assistant. (See 
 sees, relating to particular offences, and notes thereto. ) It is not necessary to 
 prove that in the commission of saoh onlawfcl act, tne person who actually 
 committed the offence was anthorized to do so by snch occupant. 
 
 It was held that the owner of a shop is criminally liable for any nnlawfal aot 
 done titierein, in his absence, by a clerk or assistant, as, for instance, in this oaee, 
 for the sale of liquor without license by a female attendant : B. v. King, 80 
 0. P., 246. 
 
 In commenting on the first part of this section, Ifr. Justice Owynne said: 
 " Now if this section had not been passed, the general rule of law applicable, if 
 the owner of the house where the Uquor was sold was the person proseonted 
 for the offence, would be, that although no one can be made criminally respon- 
 sible for the acts of third persons, yet, the employment of an agent in the 
 defendants usual course of business is sufficient evidence in such cases, vhenoe 
 the Magistrate might, if he thinks fit, presume that such agent was authorized 
 to do the prohibited act with which it is sought to charge the principal : See 
 Paley on Oon., 6th Ed., 72, and cases ibi." And so, if the Magistrate wm 
 satisfied that the wife or servant of the defendant, in selling liquor contrary to 
 the provisions of the Act, was acting in the discharge of the defendants osnil 
 course of business, the defendant would be liable to conviction therelor, "bnt 
 if the evidence should fall short of satisMng the Magistrate's mind upon that 
 point, the wife or the servant who actually sidd, would be liable to eonviotion 
 
[s. 112. 
 
 {d) sHop, room 
 r or tratific of 
 iquors, or any 
 ly of the pro- 
 be personally 
 ibed in sections 
 lotwithstanding 
 e other person, 
 inder or by the 
 he fact of such 
 )r thing, by any 
 who is suffered 
 ;h occupant, or to 
 . be conclusive 
 [e) or other act, 
 arity and by the 
 ). 1877, c. 181, 
 
 I or posseBBion of a 
 snd note (g), see. 
 IB.431J. O.B.,462, 
 
 rantion of the pro- 
 inlavfol aet, matter 
 or asBiatant. (See 
 B not neeeBsary to 
 raon vho aetaall; 
 >ant. 
 
 any nnlawfol act 
 Btanoe,inthi8oa8e, 
 t : B. V. King, 20 
 
 tioe Owynne said: 
 f law applioable, if 
 peraon proaeonted 
 oriminaUy respon- 
 f an agent in the 
 Buoh caaea, whenoe 
 mt vaa authorized 
 the prinoipal: See 
 le Magiatrate vaa 
 liquor contrary to 
 I defendanta nsiul 
 on therefor, "bnt 
 'a mind upon thit 
 iaUe to eonviotioB 
 
 1 1 2.1 
 
 THE LIQUOR LICENSE ACT. 
 
 255 
 
 (2) {g) The person actually selling, or otherwise contra- ^^^ ^ 
 vening any of the provisions of this Art, as in this section ,y*" *f 
 mentioned, is for the purj jses hereof styled "the actual f^" 
 offender," {h) whether act ng on behalf of himself or of li^We. 
 another or others, and the actual offender, as well as the 
 
 for the act of aale contrary to law." And that the effect of thia aection was 
 merely to make eoneluHve evidence, that which would have been tvffieient 
 evidence without thia aection, if it satiafied the Magiatrate's mind that the aale 
 took place in the uanal courae of the defendant's buaineaa, with thia addition, 
 " that the occupant ahall be condnaively bound by the acta, not only of all per- 
 sona in hia omployment, but even by the wrongful acta of persona upon hia 
 premiaea whom he auffera to be or remain there :" B. v. Williams, 42 U. G. B., 
 46S), at p. 464. See alao remarka by Cameron, J., B. v. Howard, 46 U. 0. B., 
 346, at pp. 847, 848, where it waa held that a aervart of the keeper of an unlicensed 
 tavern was properly convicted, the case being urdistingnishable from B. v. 
 WiUiams, tiupra. 
 
 In another caae it appeared from the evidence that the wife of the aocuaed 
 was the Iesse<) of the premises, but that the liquor was sold by her husband in 
 her absence. Held that she was liable for selling liquor without a license ; 
 that she, as lessee, must be presumed to be cognizant of her husband's conduct 
 and was therefore punishable for the offence under sec. 83 of B. S. 0. (1877), 
 0. 181 — the origiiial of sub-sec. 1 of this sectio;.. (112) : B. v. Campbell, 8 P. B., 
 66. See also Austin v. Davis, 7 App. B., 47'''< : Newman v. Jones, 17 Q. B. D., 
 182 ; Hugill V. Merrifiald, 12 0. P., 269 ; Gooluy on Torts, 243 ; Bayley v. Man- 
 olieater, S. & L. By. Co., L. B. 7 0. P., 420 ; The Queen v. Stephens, L. B. 1 
 Q. B. 702, and other cases cited in notes to sees. 49 and 70. See &lso cases 
 referred to in notes to sections applicable to the various offences under ^he Act. 
 
 The provisions of this section do not admifbf any evidence shewing that the 
 unlawful act done by any person in the employ of the occupant was done with- 
 out his authority. The mere fact that the saJe, barter, trafiBic or other act, matter 
 or thing waa done by a person in his employ, or by a person who was suffered 
 to be or remain in or upon the premises, or to act in any way for the occupant, 
 is conduaive proof that the sale was by hia authority. It ia the duty of the 
 oooupant to keep aome one who ia reaponaible upon the premises, and whether 
 he does so or not he is liable for any infraction of the law which may take 
 place in his absence. 
 
 " Conduaive, or aa they are elaewhere termed imperative or abaolute pre- 
 preaumptiona of law, are rulea determining the quantity of evidence requiaite 
 for the support of any particular averment, which is not permitted to be over- 
 come by any proof that the fact is otherwise : " Taylor on Evi., 90. See also 
 uote (t), sec. 108. 
 
 (g) This sub section provides for the punishment of the person unlawfully 
 lelUng liquor or otherwise contravening the provisions of the Act as well as the 
 occupant of the premiBea in which the unlawful sale or contravention of the Act 
 takes place, but both cannot be convicted of tho same offence, and although 
 they may be prosecuted jointly or separately, the conviction of one ia a bar to 
 the conviction of the other. 
 
 (h) The " actual offender " ia he who waa preaent and really acted in the 
 oommiaaion of the offence. See Anderaon'a Diet., 28. But aee alao nots {f) 
 to sec. 89, ante. The term is used simply in order to distinguish between the 
 red and apparent offender. The real offender in this osdC is the person who 
 commits the offence, and the oonstnictive offender ia the roBponaible occupant 
 of the premises. 
 
aS6 
 
 THE LIQUOR LICENSE ACT. 
 
 Is. 
 
 112. 
 
 ) I 
 
 occupant, shall be personally liable to the penalties and 
 punishments prescribed by sections 70 and 71 of this Act, 
 and at the prosecutor's option the actual offender may be 
 prosecuted jointly with, or separately from, the occupant, 
 but both of them shall not be convicted of the same offence, 
 and the conviction of one of them shall be a bar to the 
 conviction of the other of theiu therefor. 44 V. c. 27, s. 8. 
 
 [(3) For the purposes of this section, any person being 
 an owner or lessee in actual occupation and possession of 
 the premises, or anyone who, being in actual occupation 
 and possession, leases or sub-lets any part thereof in which 
 liquors are kept for sale, barter or trading therein, or in 
 which they are sold or consumed, shall be deemed to be 
 an occupant, unless such leasing or sub-letting shall have 
 received tht ; lent in writing of the boa.d of license 
 commissioners. (1)] 53 V. c. 56, s. 13. 
 
 (t) This sab-8eetion in added to the Aet by S8 Vie., e. 56, n. 18. 
 
 It is intended to prevent the evMion of the law by the fraodolent oc aarrep- 
 titiouB transfer of premises from one person to another in order to shift the 
 responsibility and render detection difficnlt. In future no transfer can be rec- 
 ognized whioh is made without the consent in writing of the Board of License 
 Commissioners. This only applies to places in which liquors are kept for aale 
 or in which they are sold or cebsumed. The sale, barter, or trading, or the 
 sale or consumption of such liquors must be shewn, otherwise there will be no 
 ground for conviction. 
 
 The clause appUes (1) to an owner or lessee in actual occupation and 
 possession, or (2) to anyone in actual occupation aad possession of premises in 
 which liquors are kept for sale, barter or trading, or in which they are sold or 
 consumed. It applies to all places in which liquors are sold, or kept for sale, 
 whether licensed or not, but more particularly to unlicensed places. Beo. a7 
 provides for the forfeiture of the licenses upon a transfer of the licensed prem- 
 i8<w without the consent of the Oommissioners. 
 
 An " owner in actual possoiision " has been held to mean an occupation and 
 possession in fact, as distinguished from an occupation and possession in law; 
 see Murray v. Thomiley, S 0. B., 217 ; Hayden v. Tiverton, 4 0. B., 1 ; Webster 
 V. Ashton-under-Lyne ; Orme's Ease, L. B. 8 0. P., 281. See further Heelii 
 V. Blain, 18 0. B. N. N., 90 ; Webster v. Ashton-under-Lyne ; Hadfield's Case, 
 L. B. 8 U. P., 806 ; Hogg v. Jones, 82 Beav., 46 ; Druitt v. Ghristchnrch, IS 
 Q. B. D., 866. 
 
 The term " occupation " is thus defined by Wharton, " possession ; act of 
 taking possession," and " possession " is defined as " the state of owning or having 
 a thing in one's own hands or power." It is either actual, where a person enters 
 into l«nds or tenements descended or convqred to him ; apparent, which is a 
 species of presumptive title where land descended to the neir of an abator, 
 intrudor or disseisor, who died seised ; in law, when lands, etc., have descended 
 to a man and he has not actually entered into tiiem ; or naked, that is, mere 
 possession without colour of right. See Wharton, 666 ; Stroud's Diet., 14, 
 624, 600. Stripped of all technical terms, the "owner or lessee in aotoal 
 
[S. 112. 
 
 penalties and 
 71 of this Act, 
 Fender may be 
 
 the occupant, 
 B same offence, 
 e a bar to the 
 \ V. c. 27, s. 8. 
 ly person being 
 i possession of 
 ual occupation 
 lereof in which 
 ; therein, or in 
 
 deemed to be 
 ting shall have 
 )a.d of license 
 
 S.18. 
 
 kadalent ok sonep- 
 order to ehif t the 
 ansfer oan be leo- 
 e Board of License 
 • are kept for sale 
 , or trading, or the 
 M there will be no 
 
 oooapation and 
 ionot premises in 
 h they are sold or 
 or kept for sale, 
 places. Beo. al 
 the lioensed prem- 
 
 oooapation and 
 
 poBseasioninlaw: 
 0. B., 1 ; WebBtei 
 e farther Heelii 
 Hadfteld's Case, 
 GhriBtcharob, IS 
 
 niOiaeision ; act of 
 ^f owning or having 
 "te a person enters 
 arent, which is t 
 Eeir of an abator, 
 ko., have descended 
 Lfc<d. that is. mere 
 itioad*s Diet., U, 
 in aottul 
 
 s. I 
 
 13.] 
 
 THE LIQUOR LICENSE ACT. 
 
 1 IS* In any prosecution (J) under this Act for the 
 sale or other disposal of liquor (k) without the license 
 required by law, it shall not be necessary that any witness 
 should depose directly to the precise description of the 
 liquor sold or bartered (/) or the precise consideration 
 therefor, or to the fact of the sale or other disposal having 
 taken place with his participation or to his own personal 
 and certain knowledge, but the Justices or Police Magistrate 
 trying the case, so soon as it appears to them 01 iiim that 
 the circumstances in evidence sufficiently establish (m) the 
 
 257 
 
 In prose- 
 
 outlons 
 
 for sale 
 
 withoat 
 
 license 
 
 certain 
 
 presomp- 
 
 tions 
 
 soffloient 
 
 to put de- 
 
 fenduit 
 
 on hla 
 
 defence, 
 
 uaA oon- 
 
 yicthim 
 
 in default 
 
 of rebat- 
 
 tal. 
 
 oocapation and posseasion " is he who, as either owner or tenant, is in the nse 
 and enjoyment of the premises. See Bedfield v. Utica, etc., By. Oo., 26 Barb., 
 K (1861) ; City of Bangor v. Bowe, 67 Me., 489 (1869) ; Lawrence v. Fnlton, 
 19 Cal., 690 (1862); Fleming v. Maddox, 80 Iowa, 242 (1870); MoKenzie v. 
 Brandon, 71 Oal.. 211 (1886), and other cases cited in Anderson's Diet., 726. 
 
 " Kept for sale," etc. Bee notes on pages 69, 112, 180. 
 
 The intention of the danse, evidently, is that the person in possession of the 
 premises, and who is the apparent owner of the bnsiness, shaJl be " deemed " 
 to be the person responsible. 
 
 " When by an enactment certain acts are ' deemed ' to be a crime of a par- 
 ticular nataro, they constitute saoh crime, and are not a semblance or a fanoifal 
 approximation of it : Commonwealth v. Pratt, 182 Mass., 247 (1882), and it has 
 also been held that the phrase ' deemed ' and * adjadged ' in a penal Btatate 
 have the same meaning: " Blaufas v. People, 69 N. T., Ill ; State v. Price, 11 
 N. J. L., 218 ; see also De Beaavoir v. Welch, 7 B. & 0., 278. 
 
 (j) " In any prosecation." Bee note [g), sec. 106, and note (to), sec. 109. 
 
 This section applies to all prosecutions in which the sale or disposal of liquor 
 withoat a license is charged. Bee sees. 49, 70 and 108. 
 
 It does away with the necessity of proving in such cases, (1) the nature or 
 kind of liquor sold ; (2) the consideration pafd therefor ; and (8) the fact that 
 the transaction took place with the knowledge of the defendant. And provides 
 that the defendant uiall be put upon his defence by simply shewing, to the 
 satisfaction of the Magistrate or Magistrates, that the infraction of the law 
 charged has taken place, and if the presumption thus established be not 
 rbbutted he shall be convicted. 
 
 (He) As to the " sale or other disposal of liquor," see notes on pages 120, 125. 
 
 (I) It is a question for the Magistrate to decide whether the liquor sold is 
 laoh as to require a license. The more fact of a bar and intoxicating liquors 
 boing found, and the usual appliaubes for the sale of such liquors, is some 
 evidence independently of the Act (sec. Ill) upon which the Magistrate could 
 act in forming his opinion of flie truth of the charge that the defendant 
 keeps intoxieating liquor for sale. Where the liquor sold was spoken of as 
 whiskey in which some herbs were found, it was held to be a fact upon which 
 the Magistrate had to find, and that the Court had no control of his opinion 
 on a mere matter of tut. There are numerous cases which shew that the 
 decision of the Maigistrate upon a matter of fact is final and will not be 
 reviewed : per Wilson, 0. J., B. v. Brady, 12 0. B., 868 at p. 860. 
 
 (m) " Sufficiently esteblish." See note (p), sec. 62. 
 
 " Sufficient evidence." What is meant here is evidence sufficient to make 
 
^ 
 
 «58 
 
 i; I ; . 
 
 tsi$l 
 
 Proof of 
 being 
 llAensed 
 to rest on 
 the de- 
 fendant. 
 
 Evidence 
 of license. 
 
 THE LIQUOR LICENSE ACT. [sS. II3, II4, II5. 
 
 infraction of law complained of, shall put the defendant on 
 his defence, and in default of his rebuttal of such evidence 
 (n), shall convict him accordingly. R. S. O. 1877, c. 181, 
 s. 84. 
 
 1.1. 4* (i) In any prosecution under this ^ct (o), 
 whenever it appears that the defendant has done an)' act or 
 been guilty of any omission in respect of whicli, were he 
 not duly licensed, he would be liable to some penalty under 
 this Act, it shall be incumbent upon the defendant to prove 
 that he is duly licensed, and that he did the said Act law- 
 fully. 
 
 (3) The production of a license which on its face pur- 
 ports to be duly issued, and which, were it duly issued, 
 would be a Inwful authority to the defendant for such act 
 or omission, shall be prima facie evidence that the defend- 
 ant is so entitled, and in all cases the signature to and upon 
 any instrument purporting to be a valid license shall /rma 
 facie be taken to be genuine (/). R. S. O. 1877, c. 181, 
 
 s. 85. 
 
 Witnesses. 
 
 Witness- 11.41^, In any prosecution under this Act {q) the 
 
 oat apr{ma/aet«oaBe, and then to pnt the defendant on his defence. The 
 failure of the defendant to rebut soon evidence makes it oonolnsive. 
 
 (n) "In default of his rebuttal." The term rebuttal i> used as a briefer 
 expression than " rebutting evidence," and means the same thing. It oomes 
 from a French word, " B*h<mt«r," to repell : " see Stroud's Diet. , 668. Rebut- 
 ting evidence is that which is given by one party in a cause— to explain, repel, 
 counteract, or disprove evidence produced by the other party : Wharton, 616. 
 The failure of the accused to bring forward such eridence leaves the Justice or 
 Justices no option but to convict. 
 
 (0) This section applies to all prosecutions for the sale of liquor, or tor the 
 keeping of liquor witiiout having the license required by law therefor. 
 
 Under its provisions the onus of proving that he is licensed lies upon the 
 defendant, and it is therefore not necessary to shew in a conviction that the 
 defendant was not licensed : B. «. Tonng, 7 O. B., 88. See also notes to sees. 
 49 and 70. 
 
 (p) Hare the production of a license is made frima ftusie evidence that the 
 defendant is licensed. Under sec. 106 a certificate of the License Inspector ii 
 made prima faeie evidence of the existence of a license. 
 
 When validity :» given to anything " purporting " to be done in pursuance of 
 a power, a thing done under it may have validity, though done at a time when 
 the power would not be really exercisable : Dioker «. Angerstein, 8 Oh. D., 600. 
 
 See notes to see. 106. 
 
 (9) This section applies to all proseontions under the Act. 
 
iiSj 
 
 THE LIQUOR LICENSE ACT. 
 
 aS9 
 
 is Act (q) the 
 
 Justice, Justices, or Police Magistrate trying the case may ^^^" 
 summon any person represented to him or them as a o«<>not 
 material witness in relation thereto ; (r) and if such person |J>8. "ay 
 refuses or neglects to attend pursuant to such summons, brought 
 the Justice, Justices, or Police Magistrate may issue his or warrant 
 their warrant for the arrest of such person ; and he shall 
 thereupon be brought before the Justice, Justices, or Police 
 
 (r) The informer ii « oompetent witness : B. v. Straohan, 20 0. P., 182. 
 
 It was held that an information for selling liquor on Sunday was so far a 
 charge of a oriminal character that the defendant oonld not be compelled to 
 give evidence against himself. A conviction for such offence on the defendant's 
 evidence was therefore qoashed : B. v. Boddy, 41 U. 0. B., 291. And under 
 The Canada Temperance Act, 1878, it was held that although the accused is 
 made a competent and compellable witness, he is not bound to criminate 
 himself: Bt Oonnolly, i 0. L. T., 801 ; B. v. Halpin, B. v. Daly, 12 O. B., 
 380. But in a case under the same Act, an order was made by the Honorable 
 Mr. Justice Ferguson, quashing the conviction, on the ground that the defendant 
 had been oompelled to give evidence ''i his own criminality. The Judge 
 quashed the oonvietion, following the Cua ..j of B. v. Halpin and R« Oonnol^, 
 iupra, but was not satisfied that he should have followed those decisions, if 
 his decision was final, and en application to the Divisional Oourt of tiie 
 Chancery Division, the order quashing the conviction was reversed, the Oourt 
 holding that it had jurisdiction to re-hear motions to quash convictions, and 
 that the cases cited should not be followed . B. v. Fee, 18 0. B., 690. See also 
 note (u), sec. 64, p. 127. The Summary Convictions Act, B. B. C, c. 178, sees. 
 29 ana 80, contained provisions for summoning witnesses similar to those 
 oontained in this section, but those sections have been repealed by 61 Vic, o. 
 46, sec. 1, and new provisions substituted therefor. 
 
 A conviction under a by-law of the City of Brantford was quashed on the 
 ground of the refusal of the defendant's e^dence contrary to the provisions of 
 860. 424, B. S. 0. c. 184 : B. v. Grant. 18 O. B., 169. 
 
 By B. S. 0. 0. 61, witnesses are not to be incapacitated from giving evidence 
 by reason of crime or interest, and on the trial of any action, issue, matter or 
 proceeding in any Oourt in this Province, or before any person having by law 
 or by tihe oonsent of the parties, authority to hear, receive and examine evidence, 
 the parties to the proceedings and the persons in whose behalf the action or 
 other proceeding is brought or instituted or opposed or defended shall, except 
 as hereinafter mentioned, be competent and compellable witnesses, etc. 
 
 The exceptions are, (1) persons accused of crime are n)t compellable to 
 answer any questions tendinig to criminate themselves, or to subject themselves 
 to prosecution for any penalty. 
 
 (2) Communications by a husband to his wife, or the wife to her husband. 
 And it is also enacted that on the trial of any proceeding, matter, or question 
 before any Jnstioe of the Peace, Mayor, or Police Magistrate in any matter 
 cognizable by such Justice, Mayor, or Police Magistrate, not being a crime, 
 the party opposing or defending, or the wife or husband of the person opposing 
 or defending, shall be oompetent and compellable to give evidence tiierein 
 (sec. 9). 
 
 A witness is not bound to answer any questions which mav tend to criminate 
 himself or subject him to a oriminal charge, penrHy or forfeiture : see Taylor 
 onBvi.,124S-]968. 
 

 a6o 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 115, 116. 
 
 I ' 'H 
 
 I :': 
 
 t; :^!) 
 
 i I 
 
 Prodno- 
 
 tionof 
 
 books, 
 
 •to., may 
 
 b« 
 
 ordered. 
 
 i II 
 
 Magistrate, (s) and if he refuses to be sworn or to affirm, (/) 
 or to answer any question touching the case, he may be 
 committed to the common gaol of the county, there to 
 remain until he consents to be sworn or to a5irm and to 
 answer («). R. S. O. 1877, c. 181, s. 86. 
 
 HO* Any person summoned as a party to, or as a 
 witness in any proceeding under this Act, (v) may, by the 
 summons, be required to produce, at the time and place 
 appointed for his attendance, all books and papers, accounts, 
 deeds and other documents in his possession, custody or 
 control, relating to any matter connected with the said pro- 
 ceeding, saving all just exceptions to such production ; (w) 
 
 (•) The witness most be sammoned in the first instuice, and then, if he 
 nl^ases or neglects to attend npon snoh summons, a warrant may be issued for 
 the arrest ci suoh person. Upon his being arrested and brought before the 
 Jnsfcloe, Justioea or Magistrate, if he refunes to be sworn or to i^rm or to give 
 his evidenoe, he may be committed to gaol until he consteits to do so. A 
 commitment under tiiis provision must follow the words of the Statute in pre- 
 scribing the term of imprisonment, namely, "until he consenta to be sworn or 
 to affirm and to answer : " see «• partt Besset, 6 Q. B. , 481 ; <ii rw Anderson, 11 
 0. P., 1. 
 
 As to competency of witnesses under the English Licensing Act, 1872, which 
 makes the defendant and his wife competent to give evidence, see Seager v. 
 White, 61 L. T. N. S. . 261, in which it was held that being competent witnesBea 
 Ibev are also compellable witnesses, and are i the same footing as other mar- 
 ried witnesses ; and that where the wife is the licensed person, and is summoned, 
 ■he as well as her husband may both give evidenbe. Bee also Oattell v. Ireson, 
 B., B. ft B. 91 ; Parker v. Green, S B. ft 8., 299; B. v, Hawkh- rst, 26 J. P., 
 772. 
 See sec. 98 and notes thereto. 
 
 (t) •< Sworn or aflkm." By B. 8. O., c. 61, s. 12, 18, Quakers, Menonites, 
 Tunkers, eto., or any person who refuses or is unwilling from alleged consoiea- 
 tious motives to be sworn may make a solemn affirmation or declaration ; and 
 1^ sec. 14 a similar provision is made respecting persons who object or are 
 incompetent to take an oath. 
 
 («) The service of the summons on the witness should be proved before the 
 issue of a warrant, and this may be done by taking the depositions of the oon- 
 steble or other person who effected such service. If the witness is within the 
 Magistrate's jurisdiction he may be arrested and brought before the Magistrate; 
 if he be out of the jurisdiction, the warrant may be backed by a Justice having 
 juriadiction in the place where the witneu is found. See xioto (m), sec. 101, p. 
 229. 
 
 (v) This section applies to fhe parties to the prosecution as well as witnesges. 
 Bither tihe prosecutor, defendant, or a witness may be required to produce snoh 
 books, ftc, as there may be in his possession, custody, or control. The snin- 
 mons must be in the form of a du««« t««um and require the person to whom it 
 is directed to bring with him and produce at the time and place appointed all 
 books and papers, accounts, deeds and other documente in his possesBion, 
 custody, or control, relating to any matter connected with the said proceeding. 
 
 (to) " Saving all just exceptions." " Upon principles of nmob and equity. 
 
 a 
 
[ss. 115, 1 16. I ss. 116, 117.J 
 
 THE LIQUOR LICENSE ACT. 
 
 a6i 
 
 and shall be liable to the same penalties for non-production 
 of such books, papers or documents, as he would incur by 
 refusal or neglect to attend, pursuant to such summons, or 
 to be sworn or to answer any question touching the case (x). 
 R. S. O. 1877, c. 181, s. 87. 
 
 1.1 y« (i) In any prosecution under this Act, or Tl^e tS?Sn- 
 Temperance Act 0/1864, OJ" the second part of The Canada X^^^ 
 Temperance Act (y\ if the inspector attends the Court as |^°Jt^ 
 prosecutor or witness and travels to attend such Court a JSSrt* 
 distance of more than three miles from his place of resi- j8fii.g.o. 
 dence, it shall be lawful for the Justice or Justices trying «• *<*• 
 the case to tax against the defendant, in cases of conviction, 
 as costs in the cause to cover railway fare or hire of con- 
 veyance of the inspector in attending the said prosecution 
 as follows (2) : 
 
 Jnd'^es will refaae to oompel either a witneaa or • pariy to a oanse to prodaoe 
 either his title deedi, or any doomnent, the prodaotion of whioh may tend to 
 eliminate him, or any document whieh he holdf as mortgagee or pledgee. Bnt 
 a witness will not be allowed to resist a sabpoona deeiw tecum on ue ground of 
 •ny lien he mav have on the doonment callea for as evidenoe, unless the party 
 requiring the production, be himself the person against whom the claim of lien 
 is made. If the witness be a Solicitor, though he will be iMrmitted, he certainly 
 will not be fonti, except in some cases for the purpose of identification, to pro- 
 daoe any instrument which he holds confidentially for his client, and whidi his 
 dient has a right to keep back ; but in this case, as has iust been noticed, it by 
 no means necessarily follows that, in the event of the client himself not being 
 gammoned, secondary evidence will be admissable :" Taylor on Evi., 419, 420. 
 A witness cannot be excused from producing a document merely because its 
 production may expose him to a civil action, or be otherwise prejudioial to his 
 peooniary interests. Neither a witness nor a party in the cause is bound to 
 produce documents which may render him liable to puniohment, or expose him 
 to penalty or forfeiture, unless they be of a public nature such as the Statute 
 dixects to be kept and produced : R. 1252. 
 
 See B. V. Boddy, 41 U. 0. B., 291 and other oases dted in notes to see. IIS. 
 
 As to privileges in case of official documeuts, see B. S. O., e. 61, s. 24. 
 
 (x) The notes to sec. 116 are applicable to the latter part of this section. 
 
 (y) This section applies to all prosecutions under this Act, The Temperance 
 Act, 1864, and the second part of The Canada Temperance Act, in which the 
 Lioense Inspector is required to attend either as the prosecutor or as a witness. 
 
 By sec. 129 the Inspector is required to prosecute on receiving information 
 leacUng to the suspicion that persons are violating the law, and by sec. 184, it 
 is declared to be his duty to prosecute all offenders. Neglect to do so subjects 
 him to a penalty of 910 for eitch case of neglect. 
 
 (c) In a prosecution under the 0. T. Act, it was contended that the Magistrate 
 had no power to order payment of a sum for two days' attendance of the 
 Inspector and his mileage, but the Oourt did not consider the question as the 
 oonviction was quashed on other grounds. Befisrence was made to this section 
 and to B. 8. 0. 0. 178, sees. 68-61, and B. S. O. e. 78 : B. v. Tucker, 16 0. B., 
 
a69 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 117, 118. 
 
 I ill ™, 
 
 Rallwfty 
 oritag« 
 fare. 
 
 Hired 
 
 oonvey- 
 
 ance. 
 
 Hliown 
 eonvey- 
 
 Otber ex- 
 penses. 
 
 Adjonm- 
 ments. 
 
 Expenses 
 
 Tenfled 
 
 byoatta. 
 
 Inspeetor 
 to make 
 quarterly 
 returns. 
 
 Oonvlo- 
 Uonof 
 Jnstloes 
 final ex- 
 cept as 
 
 1. In case he travels by railway or stage the fares actually 
 required to be paid by him ; 
 
 2. If by a hired conveyance, the sums actually required 
 to be paid for a horse, conveyance, and tolls ; 
 
 3. If in his own conveyance, ten cents per mile one way ; 
 
 4. And to cover all other expenses, $1 per day ; 
 
 5. In cases of adjournment at the instance of the defend- 
 ant, similar additional allowances to be made, when the 
 inspector is actually in attendance. 
 
 (2) The mileage or other expenses shall be verified by 
 the oath of the inspector. 
 
 (3) The inspector shall make quarterly returns in detail 
 under oath to the department of the Provincial Secretary, 
 of all sums received by him for mileage, and other ex- 
 penses, in this section provided for. 47 V. c. 34, s. 20. 
 
 APPEALS. 
 
 1.E8* (i) In all cases of prosecution (a) for any 
 offence (d) against any provisions of this Act for which any 
 penalty or punishment is prescribed, {c) a conviction or 
 
 1 i' ' '' 
 
 tit. I i-i 
 
 127. See also note (to), see. 100, p. 136, and lehedaleof fees reoeivable by Jastiee 
 of the Peace in appendix. In B. v. Blliott, 13 0. B. , 634, at p. 680, Mr. Jastiee 
 Bose in delivering jadgment says : '* 0. 77, B. S. O."— now 0. 78, B. 8. 0. 
 (1887)—" provides a table of costs which the Jostices are aothorized to direot 
 payment of, and payment of' no other costs can be ordered," and therefore a 
 eharge of |1 for the nse of the hall in whieh the case was tried was held to be 
 an excess of the Magistrate's jnrisdiction. From these eases it appears that 
 some doubt exists as to the Magistrate's power to award eny other eosts than 
 those provided for in B. 8. 0. 0. 78. 
 
 (a) Under this section as it is now framed, the decision of the Jostieeg or 
 Police Magistrate in final and condosive in all eases except those in which the 
 offence charged is sJleged to be committed by a licensee, or is oommitted upon 
 or in respect of licensed premises. There is no appeal in eases against niJi- 
 oensed offenders, unless the offence is alleged to have been committed on or in 
 respect of licensed premises. 8ee B. v. Oordon, cited below. 
 
 Formerly an appeal was allowed against a conviction for selling liqnon 
 without a license : B. v. Firmin, 88 U. 0. B., 638. 8ee B. v. Lake, 7 P. B., 
 316. 
 
 But by 68 Vic. 0. 66, a. 14, the right of appeal, exoept as above, is taken 
 
 (b) '* Any offence." 8ee note (0), p. 39. 
 
 (e) " Penalty or punishment." See see. 46, note (n). 
 
nil 
 
 [ss. 117, 118. 
 ie fares actually 
 
 tually required 
 
 I • 
 
 ■ mile one way ; 
 
 er day ; 
 
 ; of the defend- 
 lade, when the 
 
 be verified by 
 
 eturns in detail 
 ncial Secretary, 
 and other ex- 
 c. 34, s. 20. 
 
 to (a) for any 
 t for which any 
 I conviction or 
 
 Mivable by Jastiee 
 680, Mr. JuBtiee 
 0. 78, B. 8. 0. 
 ihorized to direct 
 ' and therefore a 
 
 d WM held to be 
 it appear! thit 
 other eoita than 
 
 of the Joitioes or 
 loae in whioh the 
 oommitted upon 
 againat luli- 
 tnunittod on or in 
 
 >r selling Uqnors 
 V. Lake, 7 P. B., 
 
 I above, is taken 
 
 118.J 
 
 THE LIQUOR LICENSE ACT. 
 
 263 
 
 order (</) of the said Justices or Police Magistrate, as the Sj^^d^S? 
 case may be, except as hereinafter mentioned, shall be final 
 and conclusive, and except as hereinafter mentioned, against 
 such conviction or order there shall be no appeal, (e) 
 
 [(3) Subject to the provisions contained in the following Prooed- 
 sub-sections hereof, an appeal shall lie to the Judge of the Bpp«ai>> 
 County Court of the County in which the conviction is 
 made, sitting in chambers without a jury in all cases where 
 the person convicted is a licensee, or the conviction is for 
 any offence committed on or with respect to premises 
 licensed under this Act, provided a notice of such appeal 
 is given to the prosecutor or the complainant within five 
 days after the date of the said conviction.] (/) 53 Vic, 
 c. 56, s. 14. 
 
 (d) " Oonviotion or order." See leo. 100, note («). 
 
 («) When a deoiaion ia " final and ooneioaive," an appeal ia taken away : 
 Waterhonae v. Gilbert, 16 Q. B. D., 669 ; Bryant v. Beading, 17 Q. B. D., 128 ; 
 Lyon V. Morria, 19 Q. B. D., 189. 
 
 Where an appeal ia not taken away and tiie matter ia capable of being 
 amended on appeal, a eertiorari ahonld not iaai.e : per Qwynne, J., in re Watta 
 and Emery, 6 P. B., 267, at p. 269. See alao B. v. Straohan, 20 C. P., 182, at 
 p. 191. 
 
 A mandanau to the aeaaiona to try an appeal agaiiat a oonviotion waa refaaed 
 on the ground, amongat othera, uiat the Act conaiitnted the Gonnty Jndge 
 sitting bi Ohambera without a jory a Oonrt of Appeal in anoh oaaea : B. v. 
 Olarke, 44 U. 0. B., 886. 
 
 0. P. Diviaion— The Divialonal Oonrt. Before Boae, J., MaoMahon, J. B. 
 V. Gordon. — The defendant appealed from an order of Gait, 0. J., 
 in Ohambera, refoaing to oonaider the validity of a anmmary conviction 
 made by the Polioe Ifagiatrate for the city of Toronto, apon a oaae atated by 
 the Magiatrate under 68 Vio., 0. 87, aeo. 28 (Oht.), on the ground that the 
 Magistrate had no power to atate a 9aae with regard to thia particular convic- 
 tion, which waa under the Liquor Liceiiae Act for aelling without a licenae, and 
 not, aa the Chief Jnatioe held, within the proviaiona of the Summary Gonvio- 
 tiona Act. Appeal diamiaaed on the ground that a case cannot be atated with 
 respect to a conviction auoh aa thia, which cannot be appealed to the Seaaiona. 
 No oosta (not reported). 
 
 It waa held that it waa irrciular for the Judge who triea the oaae to call a 
 jury, or to receive depoaitiona of witneaaea aa evidence, but that thia ia not a 
 ground for prohibition : In r« Brown and Wallace, 6 P. B., 1. 
 
 if) Thia aub-aeo. haa been aubatituted by 68 Vie, 0. 66, a. 14, for anb-aec. 2 
 of sec. 118 of B. S. 0., 0. 194. By it the Judge of the Oounty Oonrt of the 
 County in which the convicMon ia made, aitting in Ohambera without a jury ia 
 oonstituted a Oonrt of Appeal : see B. v. Olarke, 44 U. 0. B., 886 ; <n re Brown 
 and Wallace, 6 P. B., 1, cited above. 
 
 The " Notice " ia a condition precedent to the right to appeal, aee B. v. The 
 Jnsticea of Oheahire, 11 A. AB., 189. The notice mnat oomply with the provia- 
 iona of the Act : eiciNirteOurtia, 8Q. B. D., 1". Bee alao B. v. Juatioea of 
 
 M 
 
 
i ■ 
 
 T 
 
 a64 
 
 THB LIQUOR LICENSE ACT. 
 
 [l. II 8. 
 
 i I.. 
 
 App«IUuil 
 to«nt«r 
 Into a 
 rMognls< 
 
 (3) The person convicted, in case he is in custody, shall 
 either remain in custody until the hearing of such appeal 
 before the said Judge, or (where the penalty of imprison- 
 ment with or without hard labor is adjudged) shall enter 
 into a recognizance with two sufficient sureties, in the sum 
 of $aoo each, before the convicting Justices or Police Mag- 
 istrate, conditioned personally to appear before the said 
 Judge, and to try such appeal and abide his judgment 
 thereupon, and to pay such costs as he may order, and in 
 umoant ' case the appeal is against a conviction whereby only a 
 iuiSiMiitik penalty or sum of money is adjudged to be paid, the appell- 
 ant may (although the order directs imprisonment in default 
 of payment) mstead of remaining in custody as aforesaid, 
 give such recognizance as aforesaid, or may deposit, with 
 the said Justices or Police Magistrate convicting, the amount 
 of the penalty and costs, and a further sum of $25 to 
 answer the respondent's cost of appeal, (g) 
 
 Badfordihir*, 11 A. A B., 184 ; B. v. Eiitm L. B. 6 Ex., 7S ; B. v. Ooodall, 
 L. B. 9 Q. B., SS7 ; B. v. Joitioas of Berkshire 4 Q. B. D., 469. 
 
 (g) The proTisioiu of this olaaie apply, 
 
 let, To o«Mi where the defendant is in eoilody, or is adjadged to nndergo 
 the penalty of imprisonment with or without hard labor ; and 
 
 Snd, To eases where the penalty adjadged is merely a sum of money end 
 imprisonment in defaalt of payment. In the first . oaae the defendant moat 
 either remain in onstody ontil the appeal is tried, or enter into • reeognizenee 
 in the terms of the Aet with two soffleient soreties in the smn of $200. In the 
 second ease, he may either remain in onstody or enter into recognisance aa in 
 the first case, or he miw deposit with the Magistrate or Jostioes the amoont of 
 the fine and costs and |95 to provide for the respondent's costs of appeal. Aa 
 to such costs, see sec. 190. 
 
 " Two sufficient screties." Bee note («), see. 80. 
 
 " Oonditioned personally." The defendant most appear personally befon 
 the Judge. The condiktous of the recognizance must comply with all the con- 
 ditions imposed by the Statute, and where thie was not done the appeal was 
 dismiaaed : Kent v. Olds, 7 L. J., 21. See Jackson v. Kassel, 96 U. 0. B.,S41. 
 
 But where in the form of recognizance to try an appeal given in the Schedule 
 to the Statute the ocmdition differed from that provided by the enactment, it 
 was held that the form waa anffldent, aa the Act giving it would be a anare to 
 entrap peraona if it were held that to follow it waa to act contrary to the enaet- 
 ment, and ao to lose the appeal : per Draper, 0. J., r« Wilyon and the Quarter 
 Seaaiona of Huron, 28 U. 0. B., 801, and thia principle haa been followed in 
 numerona caaea : aee Beid v. MoWhinnie, 27 U. 0. B., 989 ; Oomwall v. The 
 Queen, 88 U. 0. B., 106 ; Oemmill v. Qarland. 12 0. B., 149; Northeotev. 
 Bmnker, 14 App. B., 878. 
 
 A reeognizance conditioned to appeal to the " Oeneral Quarter Seaaiona or 
 General Seaaiona " when it ahonld have been to the ** Court of Oeneral Seaaiona 
 of the Peace," waa held a auffleient compliance with the Statute: B. 9. Baaerj, 
 & (ft J. Dig., 8486. 
 
s. 1 1 8. J 
 
 THE LIQUOR LICENSE ACT. 
 
 165 
 
 i ; B. V. Goodall, 
 
 lg«d to undergo 
 
 (4) Upon such recognizance being given or deposit 
 made, the said Justices or Police Magistrate shall liberate 
 such person, if in custody, and shall forthwith deliver or 
 transmit by registered letter post-paid, the depositions and 
 papers in the case, with the recognizance or deposit, as the 
 case may be, to the clerk of the County Court of the county 
 wherein such conviction was had. (A) 
 
 (5) The appellant shall pay to the clerk of the County 
 Court, for his attendance and services in connection with 
 such appeal, the sum of $1, and the same may be taxed as 
 costs in the cause. It) 
 
 (6) The practice and procedure upon such appeal, and 
 all the proceedings thereon, shall thenceforth (/) be gov- 
 
 JnttlOM 
 
 totran*- 
 
 mit<U> 
 
 potltloM 
 
 to Clark 
 
 of County 
 
 Gourk 
 
 Otork'i 
 
 Rev. 8Ut. 
 
 o.7S.to 
 
 apply. 
 
 A reoognizaoM whioh omitted the words "to owe" wm held invftlid, and 
 that »n Mtion would not lie upon it as a reoognizanoe : B. v. Hoodlesa, 46 
 U. G. B., S66. 
 
 A reoognizanoe ia not neoeasary on the remoral by eertiorari of a oonviotion : 
 R. V. Nann, 10 P. B., 896 ; B. v. Bwalv.'ell, 12 O. B., 891. 
 
 (h) The Jastioea or Police Magiatrate mwi oomply with the reqairementa of 
 this tab-aeotion, and anoh oompUance may be enforced by the Oonrts. It ia 
 the duty of JuBtioea to carry oat the pro^aiona of the Aot, and they cannot 
 properly refnae to do ao. Upon aaoh refaaal the High Ooort would probably 
 iBBue a mandamtM or grant a mle to compel them to comply: see Paley on 
 Con., tit. mandamiM. 
 
 " Forthwith," where the aot to be done ia judicial, it la aynonymoua with 
 •■ immediatelv.'' The worda " forthwith " and " immediately " have the same 
 meaning. They are atronger than the expreaaion " within a reasonable time," 
 and imply prompt, yigorona action without any delay, and whether there has 
 been such action ia a queation of fact, having regard to the ciroumatanoea of 
 the particular ease :" Oockbnm, 0. J., in B. v. Justices of Berkshire, 1 Q. B. D., 
 469, at p. 471 ; and " where an aot ia required to be done ' forthwith ' can be 
 done without deUy, it ought to be so done:" Jessel, M. B., S* parte Lamb, <n 
 re Sontham, 19 Oh. D. 169, at p. 178. 
 
 But in earlier oaaea it haa been held that the worda "forthwith" and 
 " immediately " mean within a reaaonable time : B. v. Juatioes of Worcester, 7 
 DowL, 789 ; Toms v. Wilson, 4 B. ft S., 466 ; Oostar v. Hetherington, 1 
 E. <& E., 802 ; B. v. Price, 8 Moore P. 0., 308 ; Boberts v. Brett. 6 0. B. N. 8., 
 p. 631 ; in re Lake and the Oor. of Prince Edward, 26 0. P., 178 ; Thomaa v. 
 Nokes, L. B. 7 Eq., 621. 
 
 The words " forthwith " and " immediate " occurring in a Statute are not 
 construed in their atricteat aeoae, " on the instant," but mean with a reasona- 
 ble promptneas, having regard to all the oironmatances of the particular caae : 
 Paley on Oon., 4th Ed., 46 ; Massey v. Bladen, L. B. 4 Ex., 18. 
 
 (t) The anm to be paid ia a diabnrsement in the cause, and may be taxed as 
 Buoh against the respondent if the appellant succeeds in the apped. 
 
 U) " Shall from thenceforth" refera to the delivery or transmission of the 
 papers to the Olerk of the Gounty Gourt. After that the practice and procedure 
 will be governed by the Act mentioned, which ia to be found at page 802 of the 
 
 R. 8. 0., 1887. 
 
Ir ' 
 
 M ( 
 
 *' i 
 
 t*:'i' 
 
 Sl^ 
 
 266 
 
 Appeal to 
 Court of 
 Appeal. 
 
 THE LIQUOR LICENSE ACT. [SS. 1 1 8, 1 1 9. 
 
 erned by The Act respecting the Procedure on Appeals to the 
 Judge of a County Court from Nummary Convictions^ so far 
 as the same is not inconsistent with this Act. {k) 47 V., 
 c. 34, s. 18. 
 
 \ 1.0« An appeal by the inspector, or other prosecutor, 
 shall lie to the Court of Appeal from the decision, judgment, 
 or order of any Judge of a County Court upon an appeal 
 from any conviction or order made in a case arising out of 
 or under this Act in which a conviction or order has been 
 quashed, or set aside, upon the ground, directly or indirectly, 
 of the invalidity of any Act or Acts of the Legislature of 
 this Province, or of any part thereof, or from the decision, 
 judgment or oider of the Judge of a County Court in any 
 other case arising out of or under this Act in which the 
 Attorney-General of the Province shall certify that he is of 
 opinion that the matters in dispute are of sufficient import- 
 ance to justify an appeal ; such appeal shall be had upon 
 notice thereof to be given to the opposite party of the 
 intention to appeal within eight days, or where the certificate 
 of the Attorney-General is necessary and is obtained, .vithin 
 fifteen days after such judgment, decision or order shall 
 have been made, and, in the case of such appeal, the clerk 
 of the County Court shall certify the judgment, conviction, 
 orders and all other proceedings, to the registrar of the 
 Court of Appeal, Toronto, for use upon the appeal. The 
 said Court shall thereupon hear and determine the said 
 appeal, and shall make such order for carrying into effect 
 the judgment of the Court as the Court shall think fit (/). 
 47 V. c. 54, s. 19. 
 
 (k) On an appeal no effeot will be given to an objeotion to the evidence 
 whioh WM not taken on the hearing before the oonvieting Jastioes. Where 
 appellart was oonvieted of knowingly permitting persons of bad character to 
 assemble in his public house, and the only objeotion taken at the hearing was 
 that such persons assembled only for the purposes of refreshment, and the 
 Justices being of the opinion that there was no evidence to that effect, con- 
 victed him. On appe^ii it was contended that there was no evidence on the 
 facts stated, that appelhmt " \twming\M " permitted the said persons to assem- 
 ble : Held, that this objeotion not havmg been raised before ttie Justices, could 
 not be raised on appeal : Purkis v. Huztable, 1 B. <b E., 780. 
 
 As to appeals from Summary Oonvictions Me B. S. O., c. 75 ; B. S. 0., c. 
 178, s. 76, amended by 51 Vic, 0. 46, sees. 7, 8, 9 (D.), whioh has been further 
 amended by 58 Vic, c. 87, sees. 24-28 (D.). 
 
 (I) An appeal to the Oonrt of Appeal from the Oonnty Court Judge's decision 
 
 " ' «.' 'i'? J ' ' 1 
 
 ■■^^- 
 
s. 1 20.] 
 
 THE LIQUOR LICENSE ACT. 
 
 267 
 
 iidge'B deoiBion 
 
 1.90* On an appeal (m) to the County Judge or ^"■*JJjJ*° 
 
 General Sessions from a conviction or order under this Act 5S°J? "°°' 
 
 ylotlon. 
 
 or under TAe Temperance Act of 1864, or The Canada ?g-?^Y- °- 
 Temperance Act, when costs are directed to be paid by «• '^^ 
 either party, no greater costs shall be taxable by or against 
 either party as between party and party than the sum of 
 $10, and the actual and necessary disbursements in pro- 
 curing the attendance of witnesses and the fees to which 
 the clerk of the peace shall be lawfully entitled ; the fees 
 chargeable by the clerk of the peace upon any appeal under 
 this Act, shall not exceed the sum of $2 («). 41 V. c. 14, s. 8 ; 
 44 V. c. 27, s. 12 ; 50 V. c. 33, s. 6. 
 
 lies : (1) In oases in which a eonviotion or order has been qnashed or set aside 
 on the ground of the invalidity of any Act or Acts of the Legislatore of Ontario, 
 or any part thereof ; (8) in all oases in which the Attorney-General of the Pro- 
 vince ehfdl certify that he is of the opinion that the matters in dispnte are of 
 sufficient importance to jastity an appeal. 
 
 The appeal lies only at the instance of the Inspector or prosecator. No 
 provision is made for an appeal in any case by the defendant. 
 
 See B. V. Hodge, 7 App. B., 246 ; B. v. Bloan, 27th May, 1891, (not reporteJ.^ 
 cited in notes to see. 180. 
 
 See sec. 121 as to appeal from the High Conrt. See also 58 Vic, 0. 18, in 
 which provision is made for the reference, by the Lientenant-Oovernor-in 
 Conncil, to the High Court or a Divisional Coart, or to the Conrt of Appeal, 
 for hsaiing or consideration of any matter which he thinks fit to refer ; and 
 also the Act of 54 Vie., given in notes to sec. 42a, p. 94. 
 
 (m) "On an appeal," means after the appeal — contemporaneous with or 
 immediatey after. See Stroud's Diet., 629 ; Anderson's Diet., 788. The whole 
 clause may be read as : when in the case of any appeal to the Judge, &c., costs are 
 directed to be paid by either party, no greater sum than 910 in addition to the 
 actual and necessary disbursements to witnesses and the fees of the Clerk 
 of the P^ace, shall be taxed in favor of or against either party, and the fees of 
 the Clerk of the PeiMie in any such ease sLau not exceed $2. 
 
 (n) This section applies to appeals under this Act, The Temperance Act, 
 1864, and The Canada Temperance Act, 1868. 
 
 Where an exdse officer appealed on behalf of Her Majesty to the Quarter 
 Sessions, and the Sessions tusmissed his appeal with cvtsts, the Court quashed 
 the order of the Sessions on the ground that the officer represented the 
 Sovereign and that there was no jurisdiction to award costs against the Crown : 
 B. V. Beadle, 7 B. <fr B., 492. 
 
 On an appeal against a oonvietion under the Alehouse Licensing Act, 9 Qeo. 
 4, c. 61, the Sessions affirmed the conviction and ordered that the appellant 
 should /or(ftto<tA pay to the reipondrnt Justices their costs, and in default 
 should be imprisoned until weh mm $hould be paid : Held, tl at the order w«.«t 
 bad since the Statute enacted that if an appeu against " such conviction or 
 order " as is there mentioned, the Sessions shall award costs, their order shall 
 direct the ooets to be paid " to th* OUrk of th« Peace," to be by lilm paid over 
 to the party entitled, and shiJl state within what time payment shall oe made, 
 and that on non-payment within that time and in default of di$tre$$ the party 
 may be committed for any time not exceeding three month*, unleu the cof («, etc., 
 be tooner paid : R. v. HelliMr, 17 Q. B., 229. 
 
/ 
 
 268 
 
 THE LIQUOR LICENSE ACT. 
 
 . r 
 
 !- il 
 
 v\ 
 
 [SS. 121, 122. 
 
 admred H^ I* An appeal to the Court of Appeal shall lie from 
 oaw*"**" ^"y judgment or decision of the High Court or a Judge 
 thereof, upon any application to quash a conviction made 
 under this Act, or to discharge a prisoner who is held in 
 custody under any such conviction, whether such conviction 
 is quashed or the prisoner discharged, or the application is 
 refused ; but no such appeal shall lie from the judgment of 
 a single Judge, or from the judgment of the Court, if the 
 Court is unanimous, unless in either case the Attorney- 
 General for Ontario shall certify that he is of opinion that 
 the point in dispute is of sufficient importance to justify the 
 case being appealed ; upon such certificate being produced 
 to the clerk of the Court in which the judgment or decision 
 proposed to be appealed from has been given, the said clerk 
 shall certify, under the seal of the Court the proceedings 
 returned to or had before or in the said Court, unto the 
 Court of Appeal, and the said Court shall thereupon hear 
 and determine the said appeal, without any formal pleadings, 
 and shall give such order for carrying into effect the judg- 
 ment of the said Court as the circumstances of the case 
 may require (o). 44 V. c. 27, s. 17. 
 
 . ! -t: 
 
 CIVIL REMEDIES AGAINST TAVERN KEEPERS, ETC. 
 
 Liabiuty 1.99* Where in any inn, tavern, or other house or 
 of inn- ^ » » 
 
 keepers place of pul lie entertainment (/) wherein refreshments are 
 
 Under this Aot the oosts of appeal are proyided for in see. 118, so that no 
 order for the defendant's imprisonment for default in payment of sneh costs 
 oan be made. The maiimnm eosta allowable in any ease is 910 in addition to 
 witness fees and the fees of the Clerk of lihe Peace, and by sec. 118 the defend- 
 ant is required either to give Beonrit;^ or to deposit $26 with the Magistrate to 
 answer the respondent's costs of appeal 
 
 (0) Provision is made here for an appeal from the High Oonrt or a Jadge 
 thereof, npon applications to quash a eonviotion, or to discharge a prisoner 
 held in custody under any such eonviotion. Sueh appeal lies at the instance of 
 either prosecutor or defendant. But if the judgment or decision is that of a 
 single Judge, or if the Court is unanimous, ttie certificate of the Attorney- 
 tleneral, that he is of the opinion that the point in dispute is of sufficient 
 importance to justify such appeal, must be obtained and be produced and filed 
 as required by this section. See notes to see. 119. 
 
 No formal pleadings are neoessary, the prooeedings in the Gourt below being 
 certified to the Oonrt of Appeal in uie manner provided. 
 
 Applications to quash convietions, or for the discharge of a prisoner are made 
 upon hahea$ eorptu or by way of certiorari. See see. 106 and notes thereto, 
 (p) ** Where in any inn," eto. Bee see. 9, note {g). 
 
iort below being 
 
 s. 
 
 122.] 
 
 THE LIQUOR LICENSE ACT. 
 
 269 
 
 mons 
 
 sold, or in any place wherein intoxicating liquor of any kind "J. 
 is sold, whether legally or illegally, any person has drunk ™,*^®*' 
 to excess (^) of intoxicating liquor of any kind, (r) therein «*«•• ^no 
 
 J?c 
 
 ive 
 
 furnished to him, (s) and while in a state of intoxication Kquor to 
 ' ^ ' personB 
 
 from such drinking has come to his death by suicide, (t) or who 
 
 Tbis section applies not only to licensed places, but to places wbere refresh- 
 ments are sold, and where intoxicating liquor of any kind is sold legally or 
 illegally. 
 
 (9) " Drunk to excess." A person has been said to be drunk when he is 
 " 80 far under the influence of intoxicating liquor of any kind that the passions 
 are visibly affected or the judgment impaired :" State v. Pierce, 66 Iowa, 86 
 (1886). A person may therefore be said to have drunk to v3xce8s if he be in the 
 condition here described. 
 
 The offence of selling intoxicants to a " d .tink'>n person " is committed by a 
 sale to a person who is drunk, although he show no indication of insobriety, 
 and neither the license holder nor his servant notice that he is drunk : Onndy 
 V, Le Gocq, 18 Q. B. D., 207, cited note (9) sec. 78, p. 176. 
 
 (r) " Intoxicating liquors of any kind " are defined as " liquors which will 
 intoxicate and which are commonly used as beverages for such purpose; also ' 
 any mixture of such liquors, as retaining their intoxioi»iing qualities, it may 
 fairly be presumed may be used as a beverage and become a substitute for the 
 ordinary intoxicating drinks : Anderson's Diet., 666, citing intoxicating liquor 
 cases, 25 Ean., 767 : State v. McGinnis, 80 Minn., 62 ; see also note (6), see. 2. 
 
 («) " Therein furnished to him." The Statute says, where, in any inn, etc. 
 Therefore, the liquor must, 1st, be drunk in the inn ; 2nd, it must be drunk to 
 excels ; 8rd, it must be furnished to him therein, and 4th, that while in a state 
 of such intoxication from such drinking has come to his death, etc. The fur- 
 nishing and giving to a person in the inn is not the same as the person having 
 drunJi; in the inn to exeeu of intoxicating liquor. § 
 
 " It is quite plain that the Act requires not only that the liquor shall be fur- 
 niihed in the inn, but that it shall ne drunk in the inn, and drunk there to 
 exceit, to constitute responsibility in the inn-keeper. It is the drinking to 
 exee$i in the inn that is the culpable act of the inn-keepei ; an act which, it is 
 presumed, he sees and knows of, and against which he may and ought to guard, 
 while he cannot prevent the excessive drinking beyond his own precincts." 
 Therefore, a declaration " that the defendant by his servant wrongfully and in 
 violation of the Temperance Act of 1864, in the Township of A., then and there 
 being fully in force, furnished and gave one W., while in the defendant's inn, 
 intoxicating liquors whereby he became and was intoxicated, and while so 
 intoxicated did," etc.. was held to be defective in not showing that W. drank to 
 excess in the inn ; as, " for anything that appears, W. may have been furnished 
 in the inn with the liquor on one day, and nave drank it to excess 60 miles off 
 on another day,' or, " for anything to the contrary, the defendant may have 
 sold to W. five gallons of liquor at one time, who may have taken it wholly 
 away to his own hortse, and have there become intoxieaited, for which the 
 defendant would not lie answerable under the Statute : " per Wilson, J., 
 McCardy v. Swift, 17 C. P., 127-186. 
 
 (t) " Suicide " does not necessarily involve the idea of felonious self-destruc- 
 tion. To "commit suicide" is for a person voluntarily to do an act (or, as it 
 is submitted, refrain from taking bodily sustenance), for the purpose of destroy 
 ing his own life, being conscious of that probable consequence, and having, at 
 the time, snffioient mind to will the destruction of life : Glift v. Schwabe, 8 
 C. B. , 487. In that ease the meaning of the word is elaborately discussed, and 
 its history is very learnedly treated by Pollock, 0. B., who, however, was in the 
 
 
 ; 
 
270 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 122. 
 
 li. 
 
 h n. : 
 
 !:^'i 
 
 ^1^* drowning, («) or perishing from cold or other accident 
 oated. caused by such intoxication^ (v) the keeper of such inn, 
 
 minority of the Ex. Oham. in upholding the direction of Greawell, J., at the 
 trial that " saioide " meant the volantary self-deatraction of a man who at the 
 time was " able to distingaish between right and wrong, and to appreciate the 
 nature and quality of the act that he was doing, bo a« to be a responBible moral 
 agent." The opposite view, and the one which received the sanction of a 
 majority of the Court is thus expreeaed by Patteaon, J. : " Now the words 
 themaelvea are large enough to embrace all aelf-deatrxiotion as well as aelf- 
 murder ; not, indeed aa was admitted in Borrodaile v. Hunter (6 M. <fe O., 639), 
 to embrace oases of mere accident or of insanity extending to nnconsoiouEness 
 of the act done, or of its physical consequences ; because such oases, although 
 comprehended in the very words themselves, cannot be considered to have 
 been in contemplation of the contracting parties, but clearly embracing an act 
 of self destruction committed by a person who was aware of the probable con- 
 sequence of the act and intended that consequence to follow : " Stroud's Diet., 
 776. In American oases it has also been held that " suicide " does not neces- 
 sarily imply criminal self-murder, and a condition in an insurance policy 
 providing for forfeiture in ease of suicide will not be conctrued to apply to an 
 act of self-destruction not involving evil will. Death by one's own huid in the 
 ease of a person non eompoi is the result of disease. To provide for death by 
 disease is the very object of life insurance: Hancock Mut. Life Ins. Go. v. 
 Moore, 84 Mich., 46 (1876). Death by accident or mistake, as from drinking a 
 mixture not known to be poison, is, literally, self-killing, but not suicide ; nor 
 is death caused by an insane person. Death which is the result of insanity is 
 death by disease : Eastabrook v. Union Mut. Life Ins. Co., 64 Me., 227, refer. 
 ence being made particularly to the English case of Clift v. Schwabe, lupra. 
 See also Bigelow v. Berkshire Life Ins. Co., 93 U. S., 286 ; Oonneoticut Mat. 
 Life Ins. Co. v. Oroom, 86 Pa., 97 (1878) oases; Manhattan Life Ins. Co. 
 V. Broughton, 109 U. S., 121, 127, 182 (1888) cases ; Aoddent Ins. Co. v. Cran- 
 del, 120 U. S., 680 (1887) (teases ; Travellers' Ins. Go. v. MeOonkey, 127 U. S., 
 661 (1888). 
 
 (u) " r owning." In a case in which it was shewn that deoeased, who was 
 in Dad health, was last seen going towards the shore at Brighton, saying he was 
 going to bathe, and his olothes were found by the beach but he was not seen by 
 any one alive again. A naked body washed ashore some weeks after was partly 
 identified as his. The Court held that the evidence was that he had died whilst 
 bathing. But this decision was reversed in error, and the Court held, that 
 there was evidence to go to the jury that he came to his death by drowning. 
 Gockbum, 0. J., said: "If they found that he died in the water, they might 
 reasonably presume that he died from drowning. It is true that death ooonrs 
 in the water in some instances from natural causes, as apc^lexy or cramp in 
 the heart, but such cases are rare and bear a small proportion to the number 
 of deaths which take place from the action of the water : Trew v. The By. 
 Passengers' Ass. Co., 6 H. A N., 211 ; B. 0. 6 H. <!fc N., 889. 
 
 (v) " Or other accident caused by saoh intoxication." Where the deceased, 
 being intoxicated, fell off a bench in tiie bar-room and was placed upon the 
 floor in a small room adjoining with nothing under his head, and while there 
 died from apoplexy or congestion of the brain, brought on, as the plaintiff 
 alleged, by placing him in an improper position while intoxicated, it was held 
 not a case of deati^ by " accident " within the Statute, but of death from natural 
 causes induced by intoxication. The Honorable Mr. Justice Hagarty, in deliv- 
 ering the judgment of the Court said : " The death in tiiis ease did not result 
 from suicide, drowning, or perishing from cold. We have, tiierefore, to enquire 
 vhether it was from any " other aeeident eauud by intoxication,'* '* The doubt 
 at onoe miggestad whether it was in any sense an aooident, or an aooidental 
 
 tivi'^iiflH - 
 
/ 
 
 132.] 
 
 THE LIQUOR LICENSE ACT. 
 
 371 
 
 ther accident 
 of such inn, 
 
 iBwell, J., at the 
 man who at the 
 
 appreciate the 
 Bsponsible moral 
 le sanotion of a 
 Now the words 
 as well as self- 
 (6 M. <b G., 639), 
 nnoonsoioaEneaa 
 
 1 oases, although 
 isidered to have 
 nbraoing an act 
 he probable oon- 
 ' Strand's Diet., 
 
 does not neoes- 
 [nsnranee poUoy 
 1 to apply to an 
 own huid in the 
 [de for death by 
 Life Ins. Go. v. 
 I from drinking a 
 not snioide ; nor 
 lit of insanity is 
 t Me., 227, refer. 
 . Sohwabe, tvipta, 
 ponneetient Mat. 
 tn Life Ins. Co. 
 Ins. Co. V. Cran- 
 
 nkey, 127 U. S., 
 
 Mseased, who was 
 )n, saying he was 
 I was not seen by 
 I after was partly 
 e had died whilst 
 Oonrt held, that 
 tth by drowning, 
 rater, they might 
 lat death occurs 
 lexy or cramp in 
 to the number 
 rew V. The By. 
 
 the deceased, 
 )laoe(' npon the 
 and while there 
 as the plaintiff 
 ted, it was held 
 ath from natural 
 agarty, in deliv- 
 did not result 
 efore, to enquire 
 <« The doubt 
 It an Moidental 
 
 tavern, or other house or place of public entertainment, or 
 wherein refreshments are sold, or of such place wherein 
 intoxicating liquor is sold, and also any other person or 
 persons who for him or in his employ delivered to such 
 person the liquor whereby such intoxication was caused, 
 shall be jointly and severally liable to an action as for per- 
 sonal wrong, (if brought within three month' thereafter, but 
 not otherwise,) by the legal representatives of the deceased 
 person, (w) and such legal representatives may bring either 
 
 death, and not merely a death from natural causes induced by constant and 
 excessive drinking. The action is not given in a case of death arising from the 
 want of judicious or skilful treatment, or for not attending to a person in a 
 state in which attention may be requisite ; it is only for an accident oaused by 
 intoxication." " Had our Statute declared that if the person shall die from 
 excessive drinking, the person furnishing the liquor so drank shall be responsi- 
 ble, in this action the case would be wholly different. We must be careful not 
 to extend the words used, creating as they do certain new Uabilities, beyond 
 their natural sense. If the deceased, having previously been drinking to excess, 
 took in hill tavern a tumbler of brandy and dnnk it off at a draught, and there- 
 by produced an immediate apoplectic seizure or asphyxia, and fell back insensi- 
 ble and died at once or in a few hours, could we hold that to be death from 
 accident caused by intoxication ? We think not — ^that it would be death from 
 natural causes produced by the intoxicating liquor, just as sun-stroke might 
 strike hun down, as in the case cited :" Bobier v. Olay, 27 U. C- B., 438-448. 
 
 One definition of "death by accident," is: "Death from any unexpected 
 eveik!' which happens as by chance, or which does not take place according to 
 the Ubual course of things :" North Am. Life Ins. Go. v. Burroughs, 68 Pa., 61 ; 
 approved. Bacon v. Accident Association, 44 Hun., 607. And it has been held 
 that "within the mles of a beneficial society an 'accident' has its usual 
 signification of an event that takes place without one's fonsight or expectation :" 
 Supreme Gouncil of Ghosen Friends v. Churrigus, 104 Ind., 140. 
 
 ** An effect is said to bu accidental when the act by which it is caused is not 
 done with the intention of causing It, and when its occurrence as a consequence 
 of such act is not so probable that a person of ordinary prudence ought, under 
 the circumstances in which it is done, to take reasonable precautions against 
 it:" Stephen's Orim., 148, cited Stroud's Diet., 6. 
 
 Death by drowning, even if the deceased were drowned in shallow water whilst 
 in a state of insensibility, is an accident within a policy against accidents : 
 Trew V. Boyal Ins. Go., 6 H. d; N., 8.H9 ; Reynolds v. Accidental Ins. Co., 22 
 L. T., 820. But sun-stroke is not : Sinclair v, Maritime Ins. Co., 3 E. & E. 
 478. 
 
 (to) The legal roprosentative is exprossly authorized to sue, and may bring 
 either a joint and several action against the keeper of such inn, etc., and also 
 any other person or persons who for him or in his employ delivered the liquor 
 whereby such intoxication was caused, or a separate action against either or 
 any of them. 
 
 This section gives the repnsentative the right of action when death has been 
 caused by suicide, eto. , the 128rd sec. when Ufe has been taken by another. 
 See notes to that section. As to meaning of " keeper of such inn," see note 
 (d) to sec. 66. 
 
 The action must be brought within three months (see notes on pages 14, 20, 
 
372 
 
 THE TIQUOR LICENSE ACT. [SS. 123, 1 23. 
 
 a joint and several action against them or a separate action 
 against either or any of them, and by such actioi: or actions, 
 may recover such sum not less than $ioo nor more than 
 $1,000, in the aggregate, of any such actions, as may therein 
 bi assessed by the Court or jury as damages, (x) R. S. 0. 
 1877, c. 181, s. 88. 
 
 ^'■|' 
 
 
 i !' 
 
 M 
 
 m 
 
 RESTRICTION ON SALE TO INEBRIATES. 
 
 ^h"?"' ilJI ll« If a person in a state of intoxication (y) assaults 
 niah the (2) any person, or injures any property (a), the person who 
 
 24, 28, 86, as to oompatation of time) after the happening of the event, 
 and no farther time will be allowed. If the right of action is given by the 
 Statute, then the remedy can only be obtained by complying with its provisions : 
 Tomer v. Corporation of Brantford, 18 0. P., 109. 
 
 Where by the Monicipal Act it was provided that an action mast be brought 
 "within three months after the damages have been sastained," it was held 
 that the Statute began to run from the occurrence of ihe accident, not from the 
 death : Miller v. Corporation of Fredericksburgh, 26 U. 0. B., 31. 
 
 (x) The amount of damages which may be recovered is limited by the Statute, 
 the maximum being 91000 and the minimum $100. It was held that under 
 the Statute no prooi of actual damage is necessary to the maintenance of ;he 
 action: Gleason v. Williams, 27 0. P., 98. See also Bobier v. Glay, 27 
 U. 0. B.. 488. 
 
 (y) "In a state of intoxication." A person "intoxicated" is drunk from 
 the use of spirituous liquor ; whenever any other idea is intended, <>ther words 
 are used, as in saying that a person is intoxicated or drunk with o](ium, ether, 
 etc.: State v. Kelly, 47 Yt.. 296 (1876), cited Anderson's Diet., 666. See also 
 note (9), sec. 122. 
 
 See Gundy v. Le Oocq, 18 Q. B. D., 207, cited note (g) to sec. 132, and note 
 (q), sec. 78. 
 
 « An assault is described in Termes de la Ley, 66, to be a riolent kind of 
 injury offered to a man's person of a more large extent than battery, for it may 
 be committed by offering a blow." 
 
 In re Thompson, 6 H. «fe N., 198, Pollock, 0. B., said : " An assault may be 
 accompanied by violence from which death ensues, and then the offence woald 
 ba either murder or manslaughter ; or the assault may be accompanied with 
 the violation of the person of a woman against her will, in which case it would 
 be rape ; or though the purpose was not effected, the circumstances might be 
 such as to leave no doubt of an assault, with intent to commit rape. Therefore 
 an assault may amount to a capital felony, or a felony, or a misdemeanor, 
 according to the circumstances with which it is accompanied :" quoted by 
 Wilson, J., McOnrdy v. Swift, 17 0. P., 126, at p. 189. 
 
 (s) "An assault is, (a) an attempt unlawfully to apply any the least actual 
 force to the person of another, directly or indirectly ; (ft) the act of using a 
 gesture towards another, giving him reasoi^ble grounds to believe that the 
 person using that gesture meant to apply such actual force to his person as 
 aforesaid ; (e) the act of depriving another of his liberty ; in either case without 
 the consent of the person assaulted, or with such consent it it is obtained by 
 fraud:" Stephen's Orim., 177; Stroud's Diet., 64. 
 
 per 
 
 (a) " Injury to property," means " a substantial physical injury to property :" 
 r Fry, J., Goodhsnd v. Ayscough, 10 Q. B. D., 71. 
 
 1; !■ / 
 
s. 123.] 
 
 THE LIQUOR LICENSE ACT. 
 
 273 
 
 " is drunk from 
 
 eo. 122, and note 
 
 a misdemeanor, 
 ied :" quoted by 
 
 furnished him with the liquor which occasioned his intoxi- "2b?efor 
 cation {d) — if such furnishing was in violation of this Act, JJ^^y;. 
 or otherwise in violation of law (c) — shall be jointly and ^^^ • 
 severally liable (d) to the same action (e) by the party injured 
 
 person 
 thereby 
 
 ury to property :" 
 
 " An ' injury ' is the wrongful act or tort which oauses harm or injury to 
 another." Damages are allowed as an indemnity to the person who suffers 
 loss or harm from injury. ' Injury ' denotes the illegal aot, ' damages ' the sum 
 reooverable for the w. mg :" per Elliott, J., North Vernon v. Voegler, 108 Ind., 
 319 (1886) ; ii6 Am. Law Beg., 101, 112-116 (1886). 
 
 There are two classes of wrongs for wHoh a remedy is provided by this sec- 
 tion. Ist. Personal wrongs which are, generally speaking, of a wilful and 
 wanton character ; and 2nd, wrongs to property which may be done wilfully or 
 may be the result of accident or negligence : see Pollock on Con., 7, 9, 12, 16. 
 
 (b) " The person who furnished him with the liquor which occasioned his 
 intouoation " is equally liable with the person who actually commits the wrong. 
 <' The Legislature must have considered, as many persons do, that the person 
 who intoxicates, or suffers or encourages another to become intoxicated when 
 it is the interest of such person to make as large a sale of liquor as the other 
 will or can be made to buy, is far luore to blame than the unfortunate inebriate, 
 and shoidd therefore be answerable for the acts aud conduct of the person who 
 has been deprived of his senses and rendered really a dangerous being." A 
 person who makes and turns out a drunken man may be thought t > be quite 
 as bad as the person who lets loose a dangerous animal or exposes a dangerous 
 substance or machine : per Wilson, J., BfoUurdy v. Swift, 17 0. P., 138. It 
 was held in that case that the section gives the civil remedy, at any rate against 
 the inn-keeper, notwithstanding a felony may have been committed which has 
 not been prosecuted for, although it does not, like the Imperial Act, contain 
 any express provision to that offect. 
 
 (c) " If such furnishing was in violation of this Act, or otherwise in viola- 
 tion of law." The facts must be shewn from which it could be ascertained 
 that the furnishing of liquor was in violation of the Act or in violation of law, 
 and where the plaintiff did not shew a state of intoxication brought about by a 
 violation of the Act, it was held that his declaration was defective, " The 
 words that the defendant did what it is said he did wrongfully and in violaiion 
 of the Temperance Act mean nothing without shewing how and in what 
 manner it was wrongful and in violation of the Act to do so : " McCurdy v. 
 Swift, supra. The violation of sec. 40 of the Temperance Act, 1864, was 
 intended to be charged in that case, and the action was brought under sec. 41 
 of that Aot. These sections are the same as sees. 122 and 123 of this Aot. 
 See notes to see. 122. 
 
 (d) " Shall be jointly and severally liable," means that the person who 
 actually commits the wrong, and he who furnishes the liquor shall be held 
 liable, either collectively vr as individuals. It is expressly provided by this sec- 
 tion that either a joint and several action against both, or a separate action 
 against either of tl em may be brought. 
 
 (e) " To the 2«ue action," means the same kind of action. It was objected 
 ihat only such an action as the person injured could have brought against the 
 person intoxicated, the legal representative might also bring against the inn- 
 keeper, aud although the legal representatives may sue, yet, they must bring 
 one of the same kind of actions the deceased could have brought if he had been 
 living ; and that they could not sue for damages for tiie death of the deceased, 
 because this is not Uie kind of action the deceased manifestly enough cotUd 
 have brought. But it was held that " as the legal representative is expressly 
 authorized to sue for an assault committed upon the deceased, he or she may 
 
 u 
 
"17^ 
 
 min^^p 
 
 ' y 
 
 ,' 
 
 ftsai. 
 
 aU 
 
 intozlov 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 123, 124. 
 
 Power of 
 
 JUltiOM 
 
 to forbid 
 
 as the person intoxicated may be liable to ; and such party 
 injured, or his legal representatives, may bring either a 
 joint and several action against the person intoxicated and 
 the person or persons who furnished such liquor, or a 
 separate action against either or any of them (/) R. S. 0. 
 1877, c. 181, s. 89. 
 
 1. 9 4* ( I ) When it shall be made to appear (g) in open 
 Court {A) sitting in the county in which he resides, (1) that 
 
 do so ondar the oonstmotion of this Btalnto, althongh that assault has resalted 
 in death :" MoOordy v. Swift, aupra. 
 
 (/) There is no limitation to the amount of damages under this seotion. 
 Damages mast result from the wrongful aot oomplained of, otherwise no action 
 will he. "It is the aot or omission of tne party that is wrongfal, 
 and is always so described without regard to the result or oonsequenoeB 
 which flow or may flow from it. ThesA results or oonsequences may or may 
 not result in a liability to suit ; that depends whether damage or injury hag 
 ensued ; but although there oan be no reeovery and there is no damage in fact, 
 there may nevertheless be the wrongful aot ; for instance, in Wylie v. Birob, 4 
 Q. B., 666, the plaintiff was held not to be entitled to recover for a false return 
 to afi.fa., it was shewn that he had sustained no damage by it : Williams v. 
 Mastyn, 4 M. <ft W.. 146 ; And in Oodefroy v. Jay, 9 Bing., 40B, it is laid 
 down that an attorney would not be liable for allowing a judgment to go by 
 default against his client if he could shew the client had sustained no damage 
 by it ; and in Boulton v. Webster, 11 L. T. N. S., 698, where it was held that 
 in a suit under Lord Campbell's Act no action lies if the damages be only nom- 
 inal :" per Wilson, X, MoOnrdy v. Swift, 17 0. P., 126 at p. 188. 
 
 It was held that although voluntary drunkenness cannot excuse crime, yet 
 where as upon a charge of murder, the question is whether an act is premeditated 
 or not, or done only bon sudden heat or impulse, the fact of the party being 
 intoxicated was a c;rcamstanoe proper to be taken into consideration : per 
 Holroyd, J., B. v, Orindl«y, 1 Buss. Ori., 6th ed., 114. But this is not law: 
 por Park and Littledale, J. J., B. v. Carroll, 7 C. ft P., 146. 
 
 It would seem that where the very essence of the crime is the intention with 
 which the act is done, it may be left to the jury to say whether the prisoner was 
 so drunk as not to be capable of forming any intention whatever, and if so they 
 may acquit him of the intent : B. v. Cinse, 8 C. <b P., 641 ; B. v. Monkhonse, 
 4 Oox, C. 0. 66, and other cases cited in Boscoe's Crim. Bvi., 786. 
 
 A contract made by a man too drunk to know what he is about is not void, 
 but voidable only and may be ratified when he becomes sober : Matthews v, 
 Baxter, L. B. 8 Ex., 182. 
 
 See also oases cited in notes to sMs. 122, 124 and 126. 
 
 (g) " When it shall be made to appear." " When," like " if," is ordinarily a 
 word of condition, or of conditional limitation: Anderson's Diet., 1113. See 
 also note (•), sec. 88. " When," standing unqualified, is equivalent to " if ": 
 16. 
 
 The manner in which the necessary fattts are to be " made to appear " is not 
 disclosed in this seotion, but there should be evidence to satisfy the Police 
 Magistrate or Justices. 
 
 (h) *' In open Gourt." See note (g), p. ST. 
 
 (i) " In the Oounty in which he resides," itlers to the person against whom 
 the charge is made. As to " residence " see note (k), pp. 28, 29. 
 
S. 124-J 
 
 THE LIQUOR LICENSE ACT. 
 
 875 
 
 Molt hat resalted 
 
 any person, summoned before such Court, {j ) by excessive KjJo'J'to 
 drinking of liquor, ijt) mis-spends, wastes or lessens, (/) his §~*||!*' 
 estate, or greatly injures his health, or endangers or inter- *"r^'- 
 rupts the peace and happiness of his family, the Police 
 Magistrate or Justices holding such Court, shall, by writing 
 under the hand of such Police Magistrate, or under the 
 liands of two of such Justices, forbid any licensed person 
 to sell to him any liquor for the space of one year, and such 
 Police Magistrate, Justices, or any other two Justices, of 
 the county in which the said person resides, may, at the 
 same or any other time, (ni) in ;.ke manner, forbid the sell- 
 
 ( j) " Summoned before luoh (Tonrt." The prooeedingB nnder this seotion 
 will be oommenoed by aummons in the nitul manner. 
 
 (A) " EzoeBBiTe drbiUng," eto., aee notea to aeo. 195. 
 
 (/) Misapeni::, aignifl'ja " to apend or diapoae of ill ; to waate ; to aqnander ; 
 to laviah :*' Woroeater'a Diet. 
 
 " Waatea " impliea any aqoandering or miaapplioation of property (>; funda. 
 It baa a very wide meaning and inolndea any apoilation of honaea, landa, or 
 other property. Bee Anderaon'a Diet., 1107 ; Wharton, 769 ; Stroad'a Diot., 
 872. 
 
 *■ Leaaen" meana '* to diminiah, deoreaae, or abate :" Woroeater'a Diot. 
 
 (m) " Hia eatate." The term '* eatate " haa a variety of meaninga. It may 
 mean atanding, condition, poaition. rank in life, degree, eto. Wharton'a defini- 
 tion ia, " The oondition and circnmetance in which an owner atanda with 
 regard to hia property," and " it la naed in two aenaea ; (1) technically aa the 
 quantity of intereat in reality owned by a peraon ; and (3) popolarly, aa the 
 reality itaelf." 
 
 Evidence ahonld be given to ahew that the peraon either (1) waatea, mia- 
 Bpenda, or leaaena hia eatate ; or (3) injarea hia health ; or (8) endangera or 
 mterrapta the peace and happineaa of lua family. 
 
 <■ The Police Magiatrate or Jaatioea." See notea to aeea. 96, 97. Jnriadiction 
 is given to one Police Magiatrate or two Jnatioea of the Peace. 
 
 If BQoh Magiatrate or Jaatioea are aatiafled that the peraon amnmoned ia one 
 who cornea within the terma of the leotion, he or they thaW forbid any Uoenaed 
 person to aell him any liqaor for the apace of one year. 
 
 The ezpreaaion "by writing nnder the handa." etc., denotea that the inatm- 
 ment or document conveying aueh prohibition muat be in writing and be aigned 
 by the Magiatrate or Joatioe. Aa to " writing," aee note (a), aec. 13, p. 40, and 
 note (d), p. 18. 
 
 The Magiatrate or Juftioea are given juriadictiou in thia particular oaae out- 
 Bide of the uaual aeope of their commiaaiona, and may extend their prohibition 
 to any other dty, town or diatrict to which the peraon to whom the prohibition 
 refera reaorta, or may be likely to reaort, for the purpoae of drinking to exoeaa. 
 
 " At the aame or any other time." The inhibition to other plaoea need not 
 be given at the aame time aa that to the holdera of licenaea in the county in 
 which the peraon Uvea. If it ia found that he reaorta to other places steps may 
 be taken at any time to prevent the aale of liquor to him at auoh placea. But 
 the whole pwiod of proUbition ia limited to, and cannot extend beyond, one 
 year from the date of the original finding of Uie Magistrate or Juaticea. Aa the 
 
 !i1 
 
:,i- 1 
 
 ■fli 
 
 - < ;■ ■. I 
 
 ^^^ 
 
 mmm^ m 
 
 L • 
 
 CSSDH 
 
 
 
 
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 14 
 
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 11 
 
 
 ^1 i.kJ] 
 
 ji' 
 
 
 376 
 
 TH£ LIQUOR LXENSE ACT. 
 
 [s. 124. 
 
 ESeot of 
 ■nob pro- 
 blUtlon. 
 
 Penaltv 
 
 forvlout- 
 
 tionof 
 
 thilMO- 
 
 Uon. 
 
 Applloa- 
 tion to set 
 astdepro- 
 hibition 
 ornotioe. 
 
 ing of any such liquor to the said person by any licensed 
 person of any other city, tcwn or district, to which he 
 resorts or may be likely to resort for the samo. 
 
 (2) Whenever the sale of liquor to any such drunkard 
 shall have been so prohibited, if any other person, with a 
 knowledge of such prohibition, gives, sells, purchases or 
 procures for or on behalf of such prohibited person, or for 
 his or her use, any liquor, such other person shall, upon 
 conviction, incur for every such offence, a penalty of not 
 less than $10 and not exceeding $20. (n) 
 
 (3) Any person so prohibited or notified, his servants cr 
 agents, who shall violate this section, shall for a first 
 offence be liable to a penalty not exceeding $20, and for a 
 second, and any subsequent offence, shall be liable to a 
 penalty of not less than $20 and not exceeding $50. {0) 
 
 (4) The person in respect of whom any such notice shall 
 be given, mf-y, at any time while the same is in force, apply 
 to the Judge of the County Court, of the county in which 
 he resides, after having given seven days' notice of his in- 
 tentioiv so to do to the Police Magistrate or Justices who 
 signed the said prohibition, or notice, and the County 
 Crown Attorney for the county in which such person resides, 
 to set aside such prohibition or notice. The Judge may, 
 upon hearing the said party and any witnesses, either viva 
 voce or upon affidavit, set aside the said prohibition or 
 notice, or dismiss the said application, as in his discretion 
 may seem best : Provided, nevertheless, that before any 
 such prohibition or notice shrU be set aside by the Judge, 
 it shall be made to appear that the wife or husband (if 
 married and residing with such wife or husband), as the 
 
 powers conferred are of an eztraordinarv oharaeter, oare shoold be taken not to 
 ezoeed the joriadiotion given. 
 
 (n) ThiB seotion makes it an o£fence for any other person to sniqply the person 
 prombited with liqnor, bat knowledge of the prohibition is a oondiiion precedent 
 to the offenee and most be proved. See note (I), see. 103, p. 28 1 . The conTiotion 
 most shew, (1) the prohibition ; (2) knowledge of snoh prohibition ; (8) the gift, 
 sale, pnrdhJuM or procuring of liquor for or on behalf of such person prohibited, 
 eto. Bach of these latter are separate offences. 
 
 (0) This elaose applies to the parson prohibited from obtaining liqaor, as 
 well as to the persons prohibited nom seluag it to him. 
 
 Jadge 
 may set 
 Mia« pro- 
 bibition 
 or notice, 
 ordiamlu 
 applloar 
 tion. 
 
 -.f 
 
ss. 124, 125.] 
 
 \ 
 
 THE LIQUOR LICEN&E ACT. 
 
 277 
 
 d be taken not to 
 
 •ining liqaori u 
 
 case may be, of the person applying, has knowledge of such 
 application and consents thereto. (/) 47 V., c. 34, s. 21. 
 
 M-fBd, The husband, wife, parent, child of twenty-one Hatband, 
 years or upwards, brother, sister, master, guardian or em- may' no." 
 ployer, of any person who has the habit of drinking intoxi- len of 
 eating liquor to excess {g) — or the parent, brother or sister, to nmdi^ 
 
 (p) This anb-Motion confera power apon the Oonnty Jadge to remove the 
 prohibition with the conaent of the wife or hnaband of the peraon to whom it 
 appliea, if aoch peraon be married and living with each wife or hnaband. 
 
 (a) A " hnaband " ia a man legally bonnd in wedlook to a wife : see Wharton, 
 366 . Strond'a Diet., 862 ; Anderaon'a Diet., 017. And a " wife " ia one who ia 
 legaUy bonnd in wedlook to a " hnabMid." 
 
 The "parent " ia the lawful father or mother of another peraoi. It aignifiea 
 the relation exiating between father or mother and oflapring. 
 
 " Ohild " ia generally need to deaignate a peraon of tender yeara ; a yonng 
 peraon or yon^. When it ia need to denote a aon or daughter, it meana a 
 legitimate deaoendant in the flrat degree. " The word ' child,' in an Act of 
 Parliament alwaya appliea ezolnaively to a legitimate child :" per Pollock, 0. B., 
 Dickinaon v. North Eaatem By. Co., 88 L. J. Ex., 91, cited Strond'c Diet., 126. 
 gee alao B. v. Mande, 2 Dowl. N. B.. 68 ; B. v. Hodnett, 1 T. B., 96 ; North- 
 wick V. St. Panoraa, 22 Q. B. D., 164. And " brother " and " aiater " meana 
 the legitimate ohildren of a eommon parent. 
 
 A " maater " " ia a peraon authorized to eontrol another or othertf in some 
 relation:" Anderaon'a Diet., 644. 
 
 " Maater and aervant," the relation whereby a peraon calla in the aaaiatanoe 
 of othera, where hia own akill and labor are not auffioient to carry out hia own 
 bnaineaa or pnnpoi* : Wharton, 468. There are aeveral descriptiona of aervanta, 
 aa, menlala or domeatiea, apprentioea, laborera, atewarda, faotora, bailifia, d;o. 
 See Smith on Maater and Servant, Blaekatone Ed., 1886, p. 1. 
 
 The maater ia liable for refnaal by ner/ant to receive a gueat : aee B. v. Ivena, 
 10.& P., 218 ; Fell v. Knight, 8 M. <s W., 269. See alao notea on pagea 76, 
 148, 169. 
 
 A " Guardian" ia the temporary parent of an infant under 21 yeara ol age 
 and unmarried. In England there are aix kinda of " guardians " : (1) te$tamen' 
 tary— appointed by will ; (2) maternal — the mother who on the death of the 
 father becomes guardian ; (8) euitomary — this guardianship is entirely lociJ, 
 and dependa altogether upon the law of the partioular place where it eziata. 
 It ia found in copyhold manora, ancient oorporationa, and gavelkind lands ; 
 (4) ad Utcm— appointed by the Court for the purpose of protecting an infant'a 
 interesta in any proceedinga inatitnted to which the infant ia a party ; (6) by 
 the appointment of OAatuwry— appointed by the Oourt to protect the interest of 
 an infant ward where there ia no guardian already *, (6) guardian in tort or by 
 intrueion {tutor aUenui) — an indirect guardianship, arising from a person in- 
 truding into an infant's property ; if he receive the profits belonging to the 
 infant he must account for them, being regarded as the infant's tmstee: 
 Wharton, 385. 
 
 (Generally, a " guardian " is one that Icjally has the oare and management of 
 the person or estate, or both, during minority of a child whose father has died : 
 Baaa v. Cook, 4 Port., Ala., 892. See Anderson's Diet., 498. 
 
 "Employer" is not a term res'>rioted to any partioular employment or 
 Bervice. It applies to one who ** erigages or uses another as an agent or sub- 
 stitnte in tnasaoting bosineas or Uie performance of some service, it may be 
 
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 378 
 
 THE LIQUOR LICENSE ACT. 
 
 Is. 125. 
 
 ■killad labor or the mttIm of Iho Mtaitlit or proftMloiuU man m wall m Mrrlle 
 or nntkillcd manoftl labor:" Oamty v. AUaintle, ato., Rj. Oo., 88 N. T., 871 
 (1874) ; KrauMT v. Baakal, 17 Han., 465 (1879). dtad Andaraon'i Diet., 400. 
 A eontraet " to amploj " doaa not ganarally maan to find actaal amploymant ; 
 it rathar maana to ratain and paj a paraon, whathar amplojad or not, bat if 
 amplo^ad, than to ba amplojad only in tha work in raapaot of whioh tha eon- 
 traet ia mada. Madieal adTitora may ba amplojad, at a salary, to ba ready in 
 ease of illnaaa ; mambara of tbaatriaal aatablianmanta in oaM thalr labora ahoald 
 ba naadad t hoaaahold aanranta in parformanaa of thair daty whan thair masters 
 wish ; in theae and other eases the raqairement of aetaal sarrioe ia distinot from 
 the employment 1^ the party amployug :" per Parke, B., Blderton v. Emmens, 
 17 L. J. 0. P., 809, affirmed, 4 H. L. Oaa., 624 ; see Whittle v. Frankland, 3 
 B. A B., 40 ; Btroad'a Diet., 848. 
 
 " Tha habit of drioUns intoiioating liqaora to exeess." There are serreral 
 phrases in use to eonrey tne same naMiing. The terma " habitaal dmnkard, and 
 parson of intemperate habits," are aorroUUTa, and the phrase " excessive drinking 
 of liqaor," is nsed to oonvay a like meaning in the laat aeotion. Habitis defined 
 to be " fixed or established eostom ; ordinarr ooorsa of oondaot:" Webster's 
 Diet. Also, aa " oastomary state of tha mind ; disposition or manners resalt- 
 ing from the frequent repetition of the same aets ; aptitoda or faoility aoqnirad 
 by doing frequently the same thing ; habitaal praetioa ; habitoiie ; asage ; 
 onstom :" Woroester's Diet. The term " habitaal drankard," is defined in the 
 Habitaal Crnnkard's Act, 1879, 49 and 48 Via., 0. 19. (Imp.,) as a " paraon, 
 who, not being amenable to any jariadietion in lonaqy, is, notwithstandugig, by 
 reason of habitaal intemperate drinking of intoxicating liqaor, at times danger- 
 00s to himself, or herself, or others, or ineapabla of managing himsdf, or 
 herself, or his or her affdra : Wharton. 888. '* Drankanness ' is defined as 
 " intoxication with strong liqaor ; habitaal inebriety :" Wharton, 966. 
 
 What is meant by "intemperate habits " is diacassad in Tatam v. State, 63 
 Ala., 147. The Ooart said : " It need not be the oniform or anvarying rale, 
 bat to ba a habit it most ba tha ordinary coaraa of condact, the general rale or 
 aastom. It may have exoeptionis. Exceptions do not destroy the rale. Bat 
 aniess, when occasion offers, there ia a disposition or probable inclination to 
 drink to excess, intemperate habita cannot ba predicated. If sobriety ba the 
 rale, and ocoaaional intoxication tha exception, then the case is not broaght 
 within the Statata. On tha other hand, if tha role or habit ia to drink to 
 intoxication when occasion offers, and sobriety or abstinence is the exception, 
 then tha charge of intemperate habita ia established. Now, to make oat this 
 charge it is not necessary that thia aastom shall be an every day rale. There 
 are peraons whose custom is to remain sober while at home, and who, when in 
 company, or visiting tha town or village, generally drink to excess, although 
 occasionally they abstain and remain aobar. In this case drunkenness is the 
 rale or ordmaiy conrae of conduct ; and to sell or give to such person, knowing 
 him to ba such, spirituous, vinous, or malt liquors is a violation of tha Statute." 
 
 In another case it waa held that if there ba a " fixed habit of drinking to 
 excess to such a denee aa to dlsquality a person from attending to business 
 during the principal portion of the time usually devoted to business, it Is habit- 
 ual intemperance : " wheeler v. Wheeler, 68 Iowa, 611 ; see also Mahone v. 
 Mahone, 19 Oal., 697. 
 
 The words " sober and temperate " do not imply total abstinence from intoxica- 
 ting liquors. The moderate use of intoxicafSng liquors is consistent with 
 sobriety. But if a man use spirituoas liquora to such an extent aa to produce 
 frequent intoxication, he is not sober and temperate within the meaning of his 
 contract of inanranca : Brockaway v. Mutual Benefit Life Ins. Co., 9 Fed. Sep., 
 949. 
 
 An ocoaaional axoaas doaa not eonatitota • habit, but if a haUt has been 
 
^ffp^ 
 
 s. las-J 
 
 THE LIQUOR LICENSE ACT. 
 
 379 
 
 habit hM been 
 
 of the husband or wife of such person — or the guardian of ^^^iJo"^ 
 any child or children of such person — may give notice in JjJ^rtni?. 
 writing, signed by him or her (r), or may require the '°K' 
 
 formed »nd ia indulged in of beooming intozioftted, whether dtily and oontinu- 
 oaily, or periodloally with sober intervals o( greater or less length, the person 
 addioted to sneh habit cannot be said to be of temperate habits. " The habit 
 of nring intoxicating liqaors to excess is the result of indulging a natural or 
 acquired appetite bj continual use until it becomes a customary praotioe. This 
 habit may manifest itself in practice by daily or periodical intoxication or 
 drunkenness : " Union Mut. Life Ins. Go. v. Beif , 86 Ohio, 896. 
 
 Those who acquire a constant appetite for the use of intoxicating liquors, and 
 a regular habit of using them, so that the whole system is kept under the 
 immediate influence of alcoholic stimulants, are known as habitutd drunkardt. 
 Another ciaas acquire a constitutionally nervous appetite for alcoholic liquors. 
 "It really amounts to a disease. A case is easily recognized by all who Know 
 the person. Thqr may remain sober for a month, three or six months or even 
 a year at a time, and refuse to taste any intoxicating drinks (they must 
 refuse if they would not get drunk) and then so upon what is called a " spree " 
 of great intensity and lasting for a longer or shorter period, usually until pros- 
 tration and sickness, and often delirium, compel a cessation and terminate the 
 " spree." And there are two varieties of " sprees." The one boisterous and 
 talkative ; the other conscious of his disgrace, seeks to hide himself and to 
 oonoeal his habit and condition : Mutual Benefit Life Ins. Co. v. Holterhofl, 2 
 Cin., 879. 
 
 " When we speak of the habits of a person, we refer to his customary conduct, 
 to pursue which he has acquired a tendency from frequent repetitions of the 
 same acts :" Knickerbocker Life Ins. Oo. v. Foley, U. 8. Sup. Ot. Oct., 1881. 
 See also Van Valkenburg «. American Popular Life Ins. Oo., 70 N. Y., 606; 
 Mowry v. Home Life Ins. Co., 9 R. I., 816 ; Button v. Waterloo Life Ins. Co., 
 1 F. A F., 785 ; Browne on the Judicial Interpretation of Words, etc., 197-208. 
 
 A precise definition of the expression " habitual drunkard " applicable to 
 every case cannot well be given, but where a person indulges in the pactice of 
 becoming intoxicated whenever the temptation is presented and the opportunity 
 afforded him, it may safely be said that he is an habitual drunkard ; Ludwiok 
 V. Commonwealth, 18 Penn. St., 172 ; State v. Pratt, 84 Vt., 228, and other 
 oases cited 88 Alb. L. J., 846. It is not necessary that he should be constantly 
 under the influence of intoxicating liquor ; he may be an habitual drunkard, 
 though there be intervals when he entirely refrains from its use ; but before 
 be can be regarded as such, it must appear that he drinks to excess so frequent- 
 ly as to become a fixed practice or habit with him : Walton v. Walton, 84 Kan., 
 196 ; 84 Alb. L. J., lOS. 
 
 When a person for a period of two years was frequently and customarily or 
 habitually given to the excessive use of intoxicating drink, and had during that 
 period or more lost the power or the will, by frequent indulgence, to control his 
 appetite for it, then he was guilty of habitual drunkenness: Richards v. 
 Richards, 19 Bradw., 466; 86 Alb. L. J., 66. 
 
 The words "who has the habit of drinking intoxicating liquors to excess," 
 are the foundation of an action under the provisions of the section, and must 
 be set out in tiie notice : Austin v. Davis, 7 App. B., 478, infra. Any notice 
 under this section should give the reason of its existence : Hagarty, C. J. O., 
 Northoote v. Brunker, 14 App. B., 864. 
 
 (r) The notice must be signed by the person giving it. Where there was no , 
 evidenoe to shew that she, in faot, signed the notice, but merely signed a notice ' 
 a copy ot which was served, it was held insufficient and the plaintiff non-suited : 
 GleasoB v. Williams, 27 0. P., 98. 
 
28o 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 125. 
 
 inspector to give notice (s) to any person licensed to sell, 
 or who sells or is reputed to sell, intoxicating liquor of any 
 kind (/), not to deliver intoxicating liquor to the person 
 
 i»» 
 
 In an aotion by a married woman against an inn-keeper for having supplied 
 liquor to her husband as follows : "I hereby forbid you, or any one in your 
 house, giving my husband, William Northoote, any liquor of any kind from 
 this day." * * « The jury found that the husband was an habitual 
 drunkard, and that intozioating liquor had been furnished to him after such 
 notice by the defendant, who knew the husband well, as also the reason for 
 giving the notice, and rendered a verdict in favor of the plaintiff for $20. It 
 was held that the notice was insufficient in omitting to state that the plaintiff's 
 husband was in the habit of drinking to excess : Burton, J. A., and Patterson, 
 J. A., being of opinion that it was sufficient, and Hagarty, 0. J. O., and Osier, 
 J. A., that it was insufficient. It was also held that it was not necessary to 
 forbid the supplying of '* intoxicating liquor," the words used '* liquor of any 
 kind " being sufficient : Northoote v. Bmnker, 14 App. B., 864 ; see also 
 Thomley v. Beilly, 17 App. B. , 204, infra. 
 
 («) " Or may require the Inspector to give notice." On an appeal by the 
 defendant from the judgment of the Oonnty Court of Tork, reported 26 
 L. J. N. S., 26, it appeared that the plaintiff, a married woman, brought the 
 action to recover from the defendant, an hotel-keeper, damages because of the 
 sale by him to her husband of intoxicating liquor, after notice not to sell. The 
 notice was signed by the plaintiff and served by her agent. On the trial of the 
 action before the County Judge and a jury, the damages were assessed at 9100. 
 The defendant contended that notice signed and served as aforesaid were in- 
 sufficient, and that notice by the Inspector was necessary. The learned Judge 
 decided against this contention and judgment was entered for the plaintiff. 
 
 The Judges of the Court of Appeal were evenly divided in opinion, and the 
 appeal was dismissed with costs, Hagarty, C. J. 0., and Burton, J. A., being 
 of opinion that the right of action for damages depends on the notice being 
 given by the person filling the public position of Inspector, though the 
 liability as far as the penalties are concerned will be incurred upon notice 
 being given by a private individual, while Osier and Maolennan, J. J. A., 
 thought the whole scope and effect of the section must be looked at and a 
 liberal construction given to it. The notice must in all cases be signed by the 
 private individual and whether served by the Inspector or not, the private indi- 
 vidual gives the notice, so that the words may fairly be construed to mean " a 
 person requiring to give the notice," and there is a rit^ht of aotion, whether the 
 notice is served one way or the other : Thomley ;>. Beilly, 17 App. B., 204. 
 This latter opinion has been followed in another case in which it was held, 
 overruling the opinion of Street, J., at the trial, that the notice given by the 
 wife was sufficient : per Armour, C. J., and Falconbridge, J., Blackburn v. 
 Garland, Q. B. Div., 4th Dec, 1890 (not reported). 
 
 The Legislature has also given effect to this decision by the introduction of 
 an amendment empowering the person " giving or requiring " the notice to 
 bring the action. 68 Vic. c. 66, s. 16. See note (d), infra. 
 
 (t) " To any licensed person to sell," etc. The provisions of this section 
 apply *.:> all persons (1) licensed to sell ; (2) who sell ; and (8) who are reputed 
 to sell intoxicating liquors. 
 
 This, at all events, covers every place in which liquors are <;old, whether 
 Jicensed or not. Sec. 122 is made applicable to all places where liquors are 
 sold, whether legally or illegally. " Clearly the person to be notified is the 
 master or owner of the business, and not the mere clerk or servant employed :" 
 Austin V. Davis, 7 App. B. , 478, at p. 484. 
 
[s. 125. 
 
 tensed to sell, 
 : liquor of any 
 to the person 
 
 haviDg sapplied 
 ny one in yonr 
 
 any kind from 
 ras an habitaal 
 
 him after saoh 
 
 the reason for 
 tiff for $20. It 
 lat the plaintifi'a 
 ., and Patterson, 
 . 0., and Osier, 
 lot necessary to 
 
 "liquor of any 
 >., 864 ; see also 
 
 n appeal by the 
 irk, reported 26 
 lan, brought the 
 I because of the 
 aot to sell. The 
 1 the trial of the 
 ssessed at 9100. 
 foresaid were in- 
 lie learned Judge 
 the plaintiff. 
 
 opinion, and the 
 |ton, J. A., being 
 he notice being 
 tor, though the 
 red upon notice 
 nnan, J. J. A., 
 looked at and a 
 be signed by the 
 the private indi- 
 ued to mean " a 
 ion, whether the 
 17 App. B., 204. 
 lich it was held, 
 oe given by the 
 , Blackburn v, 
 
 introduction of 
 " the notice to 
 
 of this section 
 who are reputed 
 
 re sold, whether 
 
 rhere liquors are 
 
 notified is the 
 
 ant employed :" 
 
 s. I2S-J 
 
 THE LIQUOR LICENSE ACT. 
 
 281 
 
 having such habit {u) ; and if the person so notified, at any 
 time within twelve months after such notice («;), either him- 
 self, or by his clerk, servant or agent (w), otherwise than in 
 terms of a special requisition for medicinal purposes {x\ 
 signed by a licensed medical practitioner {y\ delivers (*), or 
 in or from anjibuilding, booth or plr .ce occupied by him (a), 
 
 (u) " The person having such habit." Befer particularly to Austin v. Davis, 
 7 App. B., 478 ; Northcote v. Bmnker, 14 App. B., 864, cited in notes <upra. 
 
 (v) " At any time within twelve months." The cause of action must arise 
 within twelve months from the date of giving the notice. 
 
 Where an Act provided that an action should be brought within six weeks 
 after the fact was committed, it was held that in computing the time in which 
 the action must be brought, the day on which the fact was committed must be 
 excluded, so that an action commenced on fith June for an act committed on 
 5th Dec. was in time : Hanns v. Johnston, 8 0. B., 100. 
 
 (w) " Either himself, or by his clerk, servant or agent." See notes on pages 
 76, 148. 169. 
 
 The question of whether liquor was sold or not u one for the Judge or Jury 
 to find, and "that finding is conclusive so long as it is not moved against, and 
 the mere fact that the plaintiff moves against the verdict upon other grounds 
 does not authorize the defendant to dispute the correctness of the finding : ' ' 
 per Wilson, C. J., Austin v. Davis, 7 App. B., 478 at p. 480. 
 
 The sale by the bar-keeper of the defendant, made against the express order 
 of the dc '-ndant, is an act for which the defendant is liable : 16. Hngill v. 
 Merrifielu, 12 0. P., 269, cited ante, was overruled in this case. 
 
 << The mere forbidding of the clerk, agent or servant, by the master, does not 
 lessen the master's responsibility for the act so long as that subordinate is in 
 the service of the master, and the act is one which is done in the service and 
 for ttie purposes and benefit of the master : " per Wilson, 0. J., lb. at p. 481. 
 
 See notes to sec. 112 ; see also Oommonwealth v. Briant, Mass. Sup. Jud. 
 Ot., Nov. 27, reported, 23 L. J. N. S., 196 ; Cundy, v. Le Oocq, 13 Q. B. D., 
 207, cited ante, 
 
 («) '■ Special requisition for medicinal purposes," means a requisition for one 
 particular purpose. See Wharton, 691 ; Stroud's Diet., 7C\ ; see iJso B. v. 
 Powell, L. B. 8 Q. B., 408 ; Band v. Green, 9 0. B. N. S., 470 ; Ss".ith v. Deigh- 
 ton, 8 Moore, P.O., 179. 
 
 {y) " Signed by a licensed medical examiner." See notes to sec. 54. 
 
 The requisition mast comply with the requirements of the Statute, and must 
 be signed, <bo.., by the person giving it. 
 
 (z) "Delivers." To "deliver," means to give or transfer anything to 
 anoljier person : Anderson's Diet. See also note (t), sec. 62. 
 
 A law against " selling or delivering intoxicating liquor to a minor " was held 
 not to include a delivery to a minor for his father : State v. MoMahon, 63 Gonn., 
 416 (1886) ; Oommonwealth v. Latinville, 120 Masc. 886 (1876). 
 
 (a) "In or from any building, booth or place occupied by him." See notes 
 on pages 78, 126. 
 
 The restriction is confined to the place where the liquor seller carries on 
 his usual business, and " wherein or wherefrom such Uqaor is sold." 
 
 In an aetion under the section it should be shewn that the liquor was 
 
 4 
 
 hi 
 
 in 
 
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 n "V 
 
k\\\l' 
 
 i I 
 
 i t 
 
 ;■ j , 
 
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 ir: 
 
 1 ';;^i8|»| 
 
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 ^ 
 
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 W 
 
 
 
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 fi'll' i'-^' 
 
 
 ■ 
 
 Kiyifla;ti4;,i;i 
 
 282 
 
 THE LIQUOR LICENSE ACT. 
 
 Ls. 125. 
 
 Married 
 woman 
 may 
 bring 
 
 and wherein or wherefrom any such liquor is sold, suffers to 
 be delivered (d), any such liquor to the person having such 
 habit, he shall incur upon conviction (c) a penalty not 
 exceeding $50, and the person [giving] or requiring the 
 notice to be given may (</), in action as for jjersonal wrong 
 (e) (if brought within six months thereafter, but not other- 
 wise) (/) recover from the person notified such sum, not 
 hss than $20 nor more than $500, as may be assessed by 
 the Court or jury as damages (g) ; and any married woman 
 may bring such action in her own name, without authoriza- 
 dun^ea.' tion by her husband ; and all damages recovered by her 
 shall in that case go to her separate use ; and in case of the 
 death of either party, the action and right of action given 
 by this section shall survive to or against his legil repre- 
 sentatives, but the defendant shall not be liable for both 
 penalties for the same offence. 47 V. c. 34, s. 22. Amended 
 by 53 V. c. 56, s. 15. 
 
 delivered or saffered to be delivered " in and from the building, etc., oooapied 
 by him," following the exact words of the Statute. 
 
 (b) " Suffers to be delivered." See note {j), seo. 60, and also notes on pages 
 72, 114, 174, 182. 
 
 " The defendant does infer the liquor to be delivered by his bar-keeper just 
 as much as he suffers him to deliver it. He is put in a plaoe, position and 
 office for the express purpose of selling such liquor, and that in my opinion is 
 a suffering by the defendant of his bar-keeper to sell." It is said " we suffer 
 and tolerate what we object to, but do not think proper to prevent. We suffer 
 things for want of ability to remove them :" Wilson, 0. J., Austin v. Davis, 7 
 App. B.,483. 
 
 (c) " Shall incur upon conviction." By tids provision the delivery of liquor 
 after notice is made an offence against the Act, which is punishable by a penalty 
 of not more than 950, besides incurring the liabily to an action by the person 
 giving or requiring the notice to be given. 
 
 (d) "And the person [giving or] requiring," etc. The words "giving or" 
 are inserted by 63 Vic. c. 66, s. 16, and are intended to remove the doubt 
 previously existing as to the rig at of the person requiring the notice to be given 
 to bring the action. See note (s), $upra. As the section reads now the person 
 giving or the person requiring the notice to be given may, etc. This it seems 
 will give the right of action to the Inspector, if the notice is given by him, as 
 well as to the person requiring the notice to be given. 
 
 (e) " As for a personal wrong." See notes to seo. 122. 
 
 (/) " If brought within six months." The cause of action is limited to 
 offences committed within twelve months from the giving of the notice, and 
 the time for bringing the action to within six months after the commission of 
 the offence. See note (v), lupra. 
 
 (g) " Such ram not less than 920," etc. No evidence of pecuniary damage 
 is necessary to the maintenance of the action, But it is discretionary with the 
 Court or jury to assess the damages anywhere within the limit ; see note {x), 
 
S. I 
 
 26.] 
 
 THE LIQUOR LICENSE ACT. 
 
 283 
 
 PAYMENT FOR LIQUOR ILLEGALLY SOLD NOT 
 RECOVERABLE. 
 
 1J?'0« Any payment or compensation {A) for liquor Money 
 
 to Beo. 122. Where the action was tried hy a Jadge without a jury who ordered 
 judgment to be entered for the defendant on the ground that the defendant was 
 not liable for the act of his bar-keeper, the Court of Appeal set aside the judg- 
 ment and directed a verdict to be entered for the plaintiff, but referred it back 
 to the Judge of the Oou .ty Oourt to assess the damages, Wilson, 0. J., said : 
 " The learned Judge below has not assessed the damages to the plaintiff under 
 the Statute, which are to be not less than $20 nor more tL^m 9500, and the 
 case must be remitted to him for that purpose. I have no doubt he may still 
 assess them. In many cases damages omitted to be assessed by one jury may 
 be assessed by another jury. In some oases if e jury omit to assess damages 
 another jury cannot assess them. Here the Juu^^ is the person vho gave the 
 verdict. I do not feel disposed to follow the cast* of Denny v. The Montreal 
 Telegraph Co., 3 App. R., 628. 
 
 The damages are discretionary, and this Oonrt cannot exercise the discretion 
 which the Judge who tried the action is alone to exercise. As well might the 
 Court upon the removal of a conviction by a Magistrate impose a discretionary 
 fine which the Magistrate alone can determine. I do not know what discretion 
 the learned Judge may exercise, and our discretion may not be his discretion. 
 We cannot, therefore, govern him :" Austin v. Davis, 7 App. B., 478 at pp. 488 
 and 488. 
 
 It was held that where no loss was proved the sum to be recovered will be 
 the minimum : Sauvage v. Tromllet, M. L. B. 8 S. 0., 276. 
 
 It was held that the License Oommissioners had ni power to pass a resoln- 
 tiou tbat no intoxicating liquors shall under any pretense be sold in any tavern, 
 etc., to any person who has the habit of drinking intoxicating liquors to excess, 
 or the wife, etc., of such person, or any person concerning whom notice had 
 been given to the landlord by the husband, etc., of such person, or any Justice 
 of the Peace or Inspector that such person is in the habit of drinking to excess, 
 etc., and therefore that such resolution was no defence to an action against the 
 Inspector for falsely and maliciously publishing a circular that certain persons 
 were in the habit of drinking intoxicating liquors to excess, etc. : Boberts v. 
 Climie, Murphy v. Glimie, 46 U. 0. B., 264. 
 
 (h) " ' Payment ' is not a technical word ', it has been imported into law pro- 
 ceedings from the Exchange and not from las? treatises. It does not neoessuily 
 mean payment in satisfaction and discharge, but may be used in a popular 
 sense : " Dwar, 676, citing Maillard v. Argyle, 8 M. & G., 40. A payment may 
 be made by the mere transfer of figuras in an account without any money 
 passing ; or by payment to a third person, or by acceptance of goods ; or by 
 bill or note ; or by sending a cheque by post in compliance with a request for a 
 c'c<iqne : Stroud's Diet., 674, and nases there cited. " It may ce made in some- 
 thing else than money : " Huffmans v. Walker, 26 Gratt., 316 (1876), cited 
 Anderson's Diet., 769. "If a commodity, like wood, is accepted upon a note 
 for money, in pursuance of a subsequent agreement, the transaction constitutes 
 accord and satisfaction : " Ulsch v. MuUer, 148 Mass., 379 (1887), per Field, J. 
 
 "Compensation" has been defined as: *°That return which is given for 
 something else — a consideration — as, the compensation for an office : " Searcy 
 V. Grow, 16 Oal., 128, cited Anderson's Diet,, 21<^. The definition given by 
 Wharton is, " making things equivalent, satisfying or making amends, a reward 
 for the apprehension of oriminids ; also that equivalent in money which is paid 
 to the owners and occupiers of lands taken or injuriously affected." It also 
 m^ans satisfaction, and to '* make satisfaction " to a creditor is to pay his debt : 
 Eitching v. Croft, 73 A. <& E., 686. The term " payment or compensation " is 
 
 
 *tj, 
 

 ^^ 
 
 , I 
 
 '\h'> 
 
 ■f ' 
 
 mm I 
 
 ,'i * 
 
 If '<} 
 
 284 
 
 E aid (or 
 auor 
 Bold con- 
 trary to 
 this Act 
 may not 
 bore- 
 covered. 
 
 / 
 
 THE LIQUOR LICENSE ACT. 
 
 fs. 126. 
 
 furnished in contravention of this Act, (/) or otherwise in 
 violation of* law, (j) whether made in money or securities 
 for money, or in labour or property of any kind, shall be 
 held to have been received without any consideration, (k) 
 and against justice and good conscience (/) — and the amount 
 
 here defined to inolade payment in money, or seoorities for money, or in labor 
 or property of any kind. 
 
 (i) "In oontravention of this Act," means in opposition to or in conflict 
 with the provisions of the Act. See Anderson's Diet. See note (k), sec. 52. 
 <' Or otherwise in violation of law." See note (A), sec. 62. The section applies 
 to any illegal sale of liqnor. 
 
 {j) "Shall be held," means, shall be decided, adjudged decreed. See note 
 page 267, " dec:iied." 
 
 (Ji;) " Without any consideration." The consideration is the very life of a 
 simple contract or parole agreement, and the law not only requires a considera- 
 tion in case of a simple contract (under which term is included all contracts not 
 under seal, whether written or oral) but that it should be valuable, i. e., legal 
 consideration emanating from some injury or inconvenience to one party, or 
 from some benefit to the other party : Wharton, 166. 
 
 ({) " And against justice and good conscience." The general rule is estab- 
 lished that a contract which is contrary to morality, positive law or public 
 policy, will not be enforced by the Courts. See Add. on Con. n., 714, 
 et teq. 
 
 " When a contract which the plaintiff seeks to enforce, be it express or im- 
 plied, is expressly or by implication forbidden by the common or Statute law, 
 no Gonrt will lend its assistance to give it effect. Tt is equally dear that a 
 contract is void if prohibited by a Statute, though the Statute inflicts a penalty 
 only, because such a peniJty implies a prohibition :" See Pollock on Oon., 280. 
 Therefore no debt could be created for the sale of liquors drunk anywhere, 
 without there being a license to sell : Bitchie v. Smith, 6 G. B., 462 ; and it 
 has been laid down that a man cannot recover the price of that which he is by 
 law prohibited from selling, because the consideration would be illegtd: 
 McGlinchy v. Winohell, 68 Maine, 81. See Pollock on Oon., 277 et »eq; 
 Hamilton v. Grainger, 6 H. <& N., 40; Benjamin on Sales, 621; Sinclair's 
 D. 0. Act, 1879, 49, 266 ; Sinclair's Oon. D. 0. Act, 1888, 69. 
 
 Leases of premises to be used in contravention of the excise laws or Licensing 
 Acts are illegal and void if the lessors knew that the premises were to be used 
 for the forbidden purpose ; and whenever a license is required for the exercise 
 of a trade on grounds of public policy, any agreement made with the view of 
 enabling a party to trade wiuont the license is null and void: Add. on 
 Oon. n., 728. 
 
 Every person who sells wines, spirits, etc., without being duly licensed so to 
 do has no remedy for the recovery of the price thereof. But it was held that a 
 brewer who sells beer to be consumed in a public house is not bound to ascer- 
 tain whethor the party who orders the beer is duly licensed before he supplies 
 tha article : Brooker v. Wood, 5 B. & Ad., 1062 ; mere knowledge, moreover, 
 on the part of the vendor that the buyer will make an illegal use of the goods 
 sold to him has been held not suflicient to deprive the vendor of his right to 
 payment of the price, but that it was necessary that the vendor should be a 
 sharer in the illegal transaction, and should render some aid beyond that of 
 mere selling the goods : Hodgson v. Temple, 5 Taunt., 181 ; Add. on Oon. |I., 
 768. 
 
 It was held that the sale of an excisable article was not avoided by an omis- 
 
 1 M 
 
 I 
 
[s. 126. 
 
 ss. 126, 1 27. J 
 
 THE LIQUOR LICENSE ACT. 
 
 285 
 
 ir otherwise in 
 !y or securities 
 kind, shall be 
 isideration, (k) 
 ind the amount 
 
 loney, or in labor 
 
 to or in conflict 
 note (fe), see. 62. 
 he section applies 
 
 3oreed. See note 
 
 the very life of a 
 aires a eonsidera- 
 i all contracts not 
 Jnable, i. e., legal 
 I to one party, or 
 
 leral role is estab- 
 We law or pnblio 
 1 Gon. n., 714, 
 
 it express or im. 
 n or Statute law, 
 aally dear that a 
 I inflicts a penalty 
 ook on Gon., 280. 
 dmnk anywhere, 
 !. B., 462 ; and it 
 at which he is bj 
 roold be illeffal: 
 3on., 277 et seq; 
 B, 621; Sinolair'8 
 
 laws or Licensing 
 B were to be need 
 I for the exercise 
 with the view of 
 d void: Add. on 
 
 oly licensed so to 
 it was held that n 
 bound to aecer- 
 efore he supplies 
 rledge, moreover, 
 use of the goods 
 >r of his right to 
 idor should be a 
 beyond that of 
 Add. on Gon. JJ., 
 
 >ided by an omis- 
 
 or value thereof (m) may be recovered from the receiver by 
 the party who made the same («) ; and all sales, transfers, 
 conveyances, liens and securities of every kind, in whole or 
 part, made, granted or given, for or on account of liquor so 
 furnished in contravention of this Act, or otherwise in viola- §1,^., 
 tion of law, shall be wholly null and void, (p) save only as ^en "to 
 regards subsequent purchasers or assignees for value, without •'* '°*^* 
 notice ; and no action of any kind shall be maintained, 
 either in whole or in part, for or on account of any liquor 
 so furnished in contravention of this Act, or otherwise in 
 violation of law. R. S. O. 1877, c. i8i> . 91. 
 
 OFFICERS TO E?fFoAcE THE LAW, THEIR DUTIES AND 
 
 POWERS. 
 
 199* (i) The Lieutenant-Governor (/>) may appoint ^"^'^^q, 
 (g) one or more Provincial officers (/•), whose duty it shall 
 
 gion of the seller to paint his name on the licensed premises as required by 
 Statute: Smith v. Mawhood. 14 M. & W., 462. See also Smith v. Benton, 
 20 0. B.. 844, and other cases cited ante p. 110. 
 
 (m) " And the amount or value thereof," etc. This refers to the payment or 
 compensation. If paid in money, the amount will be recoverable ; ii in securi- 
 ties for money, labor or property of any kind, the value will be recoverable. 
 This is a remedy created by the Statute and would not exist if not expressly 
 provided. 
 
 The prohibition here created is on a line with that under section 66. See 
 notes to that section. 
 
 (n) " By the party who made the same." The action will be maintainable 
 only by the person who made the payment against the person who received tiie 
 same. 
 
 (0) " Null and void." See note (in), sec. 87, ante p. 80. 
 
 "Subsequent purchasers or assignees for value without notice." For 
 " value " means for valuable consideration : Stroud's Diet., 867. " A purchaser 
 for a valuable consideration is one who pays a fair value or something approach' 
 ing a fair value :" Glark v. Troy, 20 Oal., 228 (1862). 
 
 A " purchaser " includes " a lessee or mortgagee, or an intending purchaser, 
 lessee or mortgagee, or other person who for valuable consideration, takes or 
 deals for property : Stroud's Diet. , 687. 
 
 By the Division Oourt Act, K. 8. 0. c. 61, s. 69. ss. 2, the Division Courts 
 are declared not to have jurisdiction for spirituous or malt liquors drunk in a 
 tavern or alehouse. See Sinclair's Con. D. G. Act, 1888, 88. 
 
 (p) The Lieutenant-Governor. See note (i), sec. 19. 
 
 (9) " May appoint." See note (0), sec. 4. 
 
 (r) " Provincial officers," as used here, is evidently intended to mv^an officers 
 whose jurisdiction and authority shall be Provincial. All of the officers 
 appointed under this Act are in one sense " Provincial officers," as they hold 
 their positions under and subject to the control of the Provincial Qovemment. 
 
 fc'^ 
 
 M ^ 
 
I I •'.,i:^ ■: 
 
 111 .L-1 
 
 ! r, ! 
 
 i t I 
 
 i^m 
 
 ? I 
 
 if 
 
 1.1 ' 
 
 • 
 
 
 t 
 
 ■ 
 
 Wk 
 
 1 
 
 ■■j '■ ' 
 
 
 1 
 
 ■'1 
 
 :yf 
 
 1 
 i 
 
 f 
 
 ii 
 
 1' 
 
 M :;c 
 
 'iWl 
 
 } 
 
 il 
 
 
 ; 
 
 286 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 127. 
 
 may ap- 
 point 
 offloen to 
 enforce 
 tbliAot. 
 
 Provin- 
 cial In- 
 ■peotor 
 maybe 
 appointed 
 
 be to enforce the provisions of this Act, and especially those 
 for the prevention of traffic in liquor by unlicensed houses 
 (s). R. S. O. 1877, c. 181, s. 92. 
 
 (2) Two of such officers may be designated " Provincial 
 Inspectors," and it shall be their duty (/) — 
 
 (a) To make a personal inspection of each license 
 district ; 
 
 (^) To see that the books of each inspector of licenses 
 are properly kept, and that all entries are prop- 
 erly made ; and to examine into his accounts 
 and into his mode of inspection, and to ascer- 
 tain that the duties of the office are faithfully 
 and efficiently performed ; 
 
 {c) To hold investigations into the conduct of inspec- 
 tors of licenses and license commissioners when 
 required so to do by the head of the Depart- 
 ment; 
 
 {d) To report upon all such matters as expeditiously 
 as may be to the Lieutenant-Governor for his 
 information and decision ; 
 
 (e) When either of («) the said provincial inspectors 
 shall inquire or cause an inquiry to be made 
 into the conduct of any inspector of licenses, 
 or into the manner in which the law is enforced 
 by the inspector of licenses, or into the accounts 
 of the inspector of licenses, it shall be lawful 
 
 («) " For the prevention of traffic in liqaor," eto. See notes to aeo. 128. 
 
 In a case in the United States it was held to be a oonspiraoy for two or more 
 parties to act in concert in nnlawfal measures to enforce the Liqaor Law, as by 
 inducing a tavern keeper to famish beer on Sanday, by artifice or persnasion : 
 Oommonwealth ex rel. Shea v. Leeds, 8 L. J. N. 8., 216. 
 
 ^twaa orged that the parties were engaged in a lawful object, to wit, the 
 enforcement of the Sanday Liqao*-- Law. The Ck>nrt said : " If this was in 
 trath their object, it was certainly a lawfal one, and worthy of all commenda- 
 tion. Assanung sach to have been their purpose, did they resort to any nn- 
 lawfal means to accomplish it ? If they did, and if they acted in concert in the 
 parsaance of a common design, there was a conspiracy. It was never intended 
 that a man should violate the law in order to vindicate the law." 
 
 (t) This sub-section as it now reads was substituted in lieu of the former 
 one, which read as follows : " One of such officers may be designated " Provin- 
 oial Inspeotor," and it shall be his duty : — " 
 
 (u) " Bither of." Inserted by 58 Vic. c. S6, s. 16. 
 
ss. 127, 128.] 
 
 THE LIQUOR LICENSE ACT. 
 
 287 
 
 ted "Provincial 
 
 of each license 
 
 for him to require that the evidence shall be 
 given under oath, which oath he is hereby em- 
 powered to administer. He shall also have 
 power to summon witnesses, and to enforce 
 their attendance and to compel the production 
 of books and documents, in the same manner 
 and to the same extent as the inspector of 
 Division Courts. 49 V. c. 39, s. 6. Amended 
 by 53 Vic. c. 56, s. 16. 
 
 IIS 8. The license commissioners, (v) with the sanction Appoint- 
 ment of 
 of the Lieutenant-Governor m Council, (w) may appoint offloers 
 
 one or more officers to enforce the provisions of this Act, liloense 
 
 and especially those for the prevention of ' .*ffic in liquor sionen. 
 
 by unlicensed houses (x), and shall fix the security {j>) to be 
 
 given by such officers for the efficient discharge of the 
 
 duties of their office, and every such officer shall, within 
 
 the license district for which he is appointed, possess and 
 
 discharge all the powers and duties of Provincial officers 
 
 ai)pointed under the next preceding section other than 
 
 those of the Provincial Inspector (z). R. S. O. 1877, c. 
 
 181, s. 93. 
 
 {v) " The Lioenae OommisBioners." See seo. 4. 
 
 (w) " With the sanotioa of the Lieat<iQant-Govenior-m-Coanoil." Any ap- 
 pointment by the Oommissionera under thia aeotion would be inoperative nnleas 
 ratified by the Government. The Lieutenant-Govemor-in-Goanoil aignifiea 
 the Lientenant-Oovemor or peraon adminiatering the Government, acting by 
 and with the advice of the Executive Council. See B. S. 0.. c. 1, a. 8, aa. 7. 
 
 (x) " May appoint." Thia ia, of oonrae, merely permiaaive. See note (0), 
 sec. 4. 
 
 (y) The chief aim of thia section eeema to be to enable the Oommiaaionera to 
 make better proviaion for enforcing the law againat unlicenaed huuaea. In 
 large oitiea, where the number of unlicensed groggeriea ia conaiderable, and 
 the ordinary meana provided for their auppreaaion are inadequate, thia provi- 
 sion may be found uaeful. 
 
 Under aeotiona 129 and 134 all Gonatablea and Inapectora are alao charged 
 with the duty of aeeing that the law ia obaerved. 
 
 See aec. 89 as to the payment of penaltiea to officera appointed under thia 
 section. 
 
 " Security." The aecurity to be given by the ordinary Tiicenae Inapectora 
 appointed by the Government ia fixed by the Act, aee aec. 6 ; that to be given 
 by officera appointed under thia aection will be fixed by the License Oom- 
 missionera. 
 
 (z) " Provincial Inspector." Though sec. 127 haa been amended, thia section 
 remaina the aame aa it waa before. See note (r), aec. 127. 
 
,i :' 1? 
 
 388 
 
 OiQoen 
 within 
 thia Act. 
 
 THE LIQUOR LICENSE ACT. 
 
 Is. 129. 
 
 1.90a Every officer so appointed under this Act, (a) 
 every policeman, or constable, or inspector, shall be deemed 
 to be within the provisions of this Act (6) ; and when any 
 information is given (c) to any such officer, policeman, con- 
 
 r 
 
 P i ' 
 
 ests 
 
 
 (a) •• Every offioer." See note (t). sec. 68. 
 
 The offioera " ao appointed under thia Act " are those who receive their appoint- 
 ment from the Government under sec. 127 and those who are appointed by the 
 License Commissioners under sec. 128. 
 
 An " officer " is defined to be " one invested by a superior authority, par- 
 ticularly by Oovemment, with the duty of transacting afftdrs of a certain class ; 
 an incumbent of an office ; a person designated to execute some function of 
 Government:" Anderson's Diet. He who receives no certificate of 
 appointment, takes no oath of office, has no term or tenure of office, discharges 
 no duties, and exercises no powers, dependent directly on the authority of tlie 
 law, but simply performs such duties as are required of him, and whose respon- 
 sibility is limited to them, is not an " officer. " Office implies authority to exer- 
 cise some portion of the Sovereign power of the State : Olmstead v. Mayor of 
 Mew Tork, 42 N. Y. Super., 487-488 (1887). 
 
 (6) " Shall be deemed," etc. See note on page 267. 
 
 The officers so appointed, as well as the other officers designated, are clothed 
 with all the authority, are subject to all ^e requirements and to the perform- 
 ance of the duties imposed by the Act, and are entitled to receive all the 
 protection afforded by its proviafons. They are liable also to the penalties 
 prescribed for any dereliction of duty. 
 
 See sec. 184 and notes thereto. 
 
 It was held that an offioer of police, appointed under 2 & 8 Vic. 0. 93, s. 8— 
 "Oounty and District Constables Act" — who is sued for anything done in 
 intended pursuance of the duties imposed and powers conferred upon him by 
 the OontiHgious Diseases Act, 1878, s. 60, is not entitled to notice of action and 
 to have the action tried in the County where the alleged grievance has been 
 committed : Bryson v. BusseU, 14 Q. B. D., 720. But see fi. S. 0., c. 73, cited 
 ante, in which protection is provided in respect of any officer or persons fulfil- 
 ling any public duty. See note (b), sec. 19, and note (g), infra. 
 
 (e) " Information is given." " Information " is knowledge imparted or ob- 
 tained : Anderson's Diet., 642 ; and " communicated knowledge " is Wharton's 
 definition of the word. 
 
 In a Stiitute intended to prevent physicians from disclosing " information " 
 acquired I'rom patients, it comprehends knowledge acquired in any way while 
 attending t. (ient, whether by the physician's own insight, or by verbal 
 statement from the patient, from members of his household, or from nurses or 
 strangers, given to aid the physician in the performance of his duty. " Enow- 
 ledge, however communicated, is information :" Edington v. Mut. Life ]bis. 
 Co., 6 Hun., 8 (1876) 2 N. T. B. S., 406. 
 
 Under the Act of Congress prohibiting the mailing of obscene matter, the 
 defendant was indicted for depositing in tiie Post Office a letter giving " infor- 
 mation " where, how, and of whom to procure an article to prevent conception. 
 The letter was in answer to a decoy letter of a detective written in an assumed 
 and fictitious name. It was held tiiat the sealed letter written by the defendant 
 addressed to a person who had no existence, and which on its face, gave no in- 
 formation of the prohibited character, and which is brought within the Statute 
 only by the fictitious letter of inquiry written by the detective, was not the 
 giving of information within the meaning of the Statute : United States v. 
 Whittier. 6 DiU., 42 (1878). 
 
 ;H 
 
129] 
 
 THE LIQUOR LICENSE ACT. 
 
 289 
 
 Datiea of 
 offloera 
 and 
 County 
 Attorneys 
 on receiv- 
 ing infor- 
 mation 
 of in- 
 fringe- 
 ment of 
 thitAot 
 
 Stable or inspector that there is cause to suspect {d) that 
 i'ome person is violating any of the provisions of this Act, 
 it shall be his duty (e) to make diligent inquiry (/) into the 
 truth of such information, and enter complaint of such 
 violation before the proper Court, without communicating 
 the name of the person giving such information ; and it 
 shall be the duty of the Crown Attorney (g) within the 
 
 (d) " Oaase " means " motive ; resBon : " Wharton. 
 
 " Saspioion " is defined as " the aot of snspeoting, or the state of being 
 auspeoted ; imagination of something ill ; distrust, mistrust, doubt : " per 
 Spear, J., MoOalla v. State, 66 Ga., 848 (1881). 
 
 The term " suspioions " is " frequently applied to an aot, thing, or ooour- 
 renoe, which, from its nature, or from some oiroumstanoe attending it, may 
 well put a man of ordinary oantion on his guard against deception : " Ander- 
 son's Diet., 1000. Very slight oiroumstances would, in some cases, be sufficient 
 ground for suspicion. The phrase is a vague one, and it would not be reason- 
 able to expect a definition of it. What might be considered good ground for 
 suspicion in the mind of one person might produce no effect upon that of 
 another. Indeed, under this section it is not necessary that there should be 
 any substantial ground for suspicion. Bee Howard v. Olarke, 20 Q. B. D., 668. 
 
 (e) "When the law casts a duty upon a person he is generally answerable 
 for any damage consequent upon its non-performance : " See Broom's Com. 
 Law, 109. " Laws designed to enforce moral and social duties stand on the 
 best and broadest basis, though it is not every such duty the neglect of which 
 ia the ground for an action; for there are what are called in the civil law 
 duties of * imperfect obligation,' for the enforcement of which no action lies : " 
 per Kenyon, 0. J., Pasley v. Freeman, 8 T. B. , 61, at p. 63. Under this section it is 
 not the duty of the officer, in the first instance, to aot upon the information by 
 entering a prosecution against the person suspected, but " to make diligent 
 enquiry into the truth of such information." See note (y), sec. 64. 
 
 ( n <• Diligence " implies care. " of which there are infinite shades, from the 
 slightest momentary thought to the most vigilant anxiety, bnt the law only 
 recognizes three degrees of diligence : (1) common or ordinary, which men in 
 general exert in respect of their own concerns; the standard is necessarily 
 variable with respect to the facts, although it may be uniform with respect to 
 the principle ; (2) high or great, which is extraordinary diligence, or that which 
 very prudent persons take of their own concerns : (3) low or slight, which is 
 that which persons of less than common prudence or indeed of no prudence at 
 all, t^e of their own ooncems :" Wharton, 236. An *< inquiry " in an action is 
 not limited to that which a man can see with his own eyes ; it signifies a 
 judicial inquiry with witnesses : Wenlock v. River Dee Co., 19 Q. B. D., 166 : 
 see also Leeson v. Gen. Medical Goimcil, Times, 23 Dec., 1889. 
 
 In the oath of grand jurors " diligently inquire " means diligently inquire 
 into the circumstances of the charges, the credibility of the witnesaes, and from 
 the whole judge whether the accused ought to be put upon trial : Bespublica v. 
 Shaffer, 1 DaU., 287 (1788). 
 
 (g) "It shall be the duty of the Crown Attorney." See note (e), supra. 
 '* Where the prescriptions of an Act relate to the performance of a public duty, 
 they are merely instructions for the guidance and government of those on whom 
 the duty is imposed. The neglect of them may be punishable, but it does not 
 aii'eot the validity of the act done in disregard of them. To give them that 
 effect would often lead to serious inconvenience anJ absurdity : Mf xwell, 337. 
 See note (w), see. 66. 
 
 
 
Ill 
 
 I'i 
 
 U l>^ 
 
 I i 
 
 CC8> 
 
 •m* 
 
 SSw^ 
 
 If ;!i 
 
 
 
 
 p; 
 
 (='■ w 
 
 ft 
 
 |d:i 
 
 11 
 
 W0 
 
 nn 
 
 timl ^!il 
 
 390 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 199, 130. 
 
 RiRbt of 
 
 MMTOb. 
 
 county in which the offence is committed, to attend to the 
 prosecution of all cases committed to him by an inspector 
 or officer appointed under this Act by the Lieutenant- 
 Governor (^). R. S. O. 1877, c. 181, s. 94. 
 
 MSOa (i) Any officer (1), policeman, constable, or 
 inspector may, for the purpose of preventing or detecting 
 the violation of any of the provisions of this Act which it is 
 his duty to enforce ( ;), at any time (k) enter into any and 
 every part of any inn, tavern, or other house or place of 
 public entertainment, shop, warehouse or other place (/) 
 wherein refreshments (m) or liquors are sold, or reputed to 
 
 {h) "Inspeotor or offloer," aee seoa. 6, 127, and notes thereto. The officers 
 and Inspectors referred to here are those appointed by the Lieatenant.Qovernor 
 under sees. 6 and 127, and not those appomted by the License Oommissionera 
 under sec. 128. Nor is there any obligation on the part of the County Attorney to 
 attend on the prosecution of any case brought by a private informer nor by any 
 other persons than the Oovemment officers and Inspectors referred to. 
 
 When cases are prosecuted by an Inspector, the fines resulting from sncli 
 prosecution are paid to him and are contributed towards the license fund of the 
 district ; but where such officer or Inspector is not the prosecutor, the fines are 
 paid to the Treasurer of the Municipality. Bee sees. 46 and 89, also sec. 134 
 and notes thereto. 
 
 (») " Any officer," etc. See note (a), sec. 129, and note (m), sec. 76, p. 183. 
 
 This section covers all officers appointed under the Act, including the In- 
 spectors appointed by the Qovemment under sees. 6 and 127, and those appointed 
 by the License Commissioners under sec. 128, as well as all policemen and cod- 
 stables (see sec. 184 and notes thereto). 
 
 ij) " For the purpose of preventing," etc. The object of the provision is not 
 only to detect violations of the law when they actually occur, but to prevent 
 such violations. It is the duty of every such officer to enforce all of the pro- 
 visions of the Act. See sec. 134. 
 
 {k) "At any time." As to meaning of " any," see nots (0), sec. 11, p. 29. Any 
 is a word which excludes limitation or qualification, and, therefore, " at any 
 time " would include " any" day as well as " any " hour, either at night or in 
 the da. light, Sunday as well as every other day. See also nqte (%), p. 76. 
 
 The officers and Inspectors are here empowered to enter at any time, into 
 any and every part of any inn, tavern or other house or place of public enter- 
 tainment, shop, warehouse or otiber place wherein refreshments or liquors are 
 told or reputed to be sold, whether under license or not, and to make searches 
 in every part thereof, and of the premises connected tiierewith as they may 
 think necessary. The power of entry and search could scarcely be more ample, 
 and it may be exercised without any warrant or other authority than that conferred 
 upon the officials under this Act, and particularly by this section. No force 
 can be used in effecting an entrance, but if admittance is denied the person so 
 refusing is liable to the penalties under sec. 70. But see cases cited infra. 
 
 (l) " Inn, tavern, or other house or place," etc. See note (g), sec. 2. 
 
 (m) "Befreshments." See note (/), pages 182, 188. A house of "public 
 entertainment " was defined by MoMahon, J., in B. v. Bichardson, 20 0. R., 
 614, as a place " where people called to be refreshed, and where temperance 
 
 i\,\^ 
 
* 
 
 « 
 
 
 s. 130. J 
 
 THE LIQUOR LICENSE ACT. 
 
 291 
 
 he sold (»), whether under license or not, and may make 
 searches in every part thereof, and of the premises connected 
 therewith, as he may think necessary {0) for the purpose 
 aforesaid (/) 
 
 (2) Every person being therein, or having charge thereof, Penalty 
 who refuses or fails to admit such officer, policeman, or 1^ to 
 constable, or inspector demanding to enter in pursuance of oflioer, 
 this section in the execution of his duty, or who obstructs 
 or attempts to obstruct the entry of such officer, policeman, 
 constable, or inspector, or any such searches as aforesaid, 
 shall be liable to the penalties and punishments prescribed 
 by section 70 of this Act {q). R. S. O. 1877, c. 181, s. 95. 
 
 drinks were for sale, and the tieoessary provision was m'\de for their disposal 
 when called for." 
 
 (n) " Bepated " means " oommonly reported ; generally believed :" Anderson's 
 Diet., 886 ; as the " repated owner " is one who has, to all appearances, the 
 right and actual possession of property. " Reputation is common opinion 
 where there is not truth, and oommon opinion is of two kinds ; to wit, common 
 reputation arising among grave and sensible men and which has the appearance 
 of truth ; and mere opinion arising among foolish and ignorant men without 
 any appearance of truth :" Wharton, 686. 
 
 (0) " Think necessary." Bee see. 19, note (d). 
 
 (p) A. was licensed to sell beer to be consumed in his dwelling house and in 
 the premises thereunto belonging. Next to his house was a yard, and at one 
 aide of the yard adjoining to, but not under the same roof, was an outhouse 
 used as a cellar. He refused to admit a constable into this outhouse when 
 required so to do. Held, that an offence had been committed : B. v. Tott, 4 
 L. T. N. 8., 806; 4 Mews' Dig., 1121. 
 
 See sec. 70 and notes thereto. 
 
 (9) Under the English Lieenshig Act, 1874, 87 & 88 Vic. 0. 49, s. 16, from 
 which this is taken, but which only applies to Ucensed premises, it has been 
 said that although the constable seems not bound to give special reasons to the 
 licensed person before entering a licensed house, yet in case of dispute as to 
 the right of entry, he will not be justified without behig able to shew some 
 reasonable ground for thinking that the Statute was about to be or had been 
 violated, and on proving the offence in sub-sec. 2, the constable must e^ew 
 Bome reasonable ground for entering. If, however, the constable says he wants 
 to see if there was anything wrong in the house, as he was going a round of 
 visiting all the licensed houses, this will be deemed a sufficient reason for 
 demanding entry : B. v. Dobbins, 48 J. P., 182. The English Act authorizes 
 the constable " at all times " to enter, etc., and it has been laid that there is 
 no limit as to the hour of demanding admission, but Justices will always con- 
 sider whether the time was reasonable : Paterson's L. A., 141. 
 
 This question has been raised in the Court of Appeal, before Hagarty, 
 0. J. 0., Burton, Osier, Maclennan.JJ. A., B. v. Sloan. The Grown appealed 
 under sec. 119 of the Liquor License Act, B. S. 0., c. 194, from the decision 
 of the County Judge of Frontenac, quashing the conviction of the defendant 
 by the Police Magistrate for Ehigston under sec. 180, sub-sec. 2 of the Act for 
 refusing to admit the License Inspector to his premises, where he carried 
 on business as a Ucensed hotelkeeper. The question raised is whether under 
 
 h -li!'. 
 
 H 
 
 
 
 %l 
 
 S? VtX* 
 
u. 
 
 f 1 
 I I 
 
 
 J I i 
 
 1 ■ 
 
 fcr 
 
 ' 
 
 
 li 
 
 
 39a 
 
 BAuroh 
 warrant 
 may b« 
 gran tad. 
 
 THE LIQUOR LICENSE ACT. 
 
 [»• >3' 
 
 1ft !• Any Justice of the Peacr> (r) upon information 
 (j) by any such officer, policeman, constable or inspector, 
 that there is reasonable ground for belief (/) that any spirit 
 uous or fermented liquor (») is being kept for sale, or 
 disposal (v) contrary to the provisions of this Act in any 
 
 aeo. 180 the Inspector hM the right to enter lloenaed premiiei without itating 
 Bome reason for wishing to enter. Reserved. 
 
 (r) " Any Justice of the Peace." This applies to any Justice of the Peace 
 having jurisdiction in the locality in which the premises affected are situated. 
 See note (d), sec. 79 ; notes to sec. 96, ante, p. S18. 
 
 (c) " Upon information," it is submitted, means upon information in the 
 nature of a formal complaint or charge that there is reasonable ground for 
 believing, &o. In this respect the worung of the section differs from that of 
 the corresponding sections of the 0. T. Act and the English Licensing Acts, 
 although much the same in some other reepeots. In the 0. T. Act the proviB- 
 ion is " that in case a credible witness proves upon oath before a Police Magis- 
 trate," &e. In the English Licensing Act, 87 and 88 Vic, c. 49, s. 17, it is 
 that " any Justice of the Peace, if satisfied by information on oath," die. In 
 this section it is simply provided that " any Justice of the Peace upon informa- 
 tion," &c. The information on a charge under this Act need not be on oatli : 
 see sec. 94. As in the case of a search warrant for the recovery of stolen goods, 
 it might be said that the provision is made " for the discovery of offenders who 
 unlawfully keep intoxioatmg liquor for sale, and for obtaining evidence against 
 such offenders." '* But the offence of unlawfnllv keeping intoxicating liquor for 
 sale contrary to the Act, is not a felony, and it aoes not help any person to his 
 property as in the case of stolen goods. There is not, therefore, a similarity 
 between the warrants which are granted in these two cases." And so, under 
 the 0. T. Act, it was held that a search warrant, issued without any charge 
 being laid, was illegal : B. v. Doyle, 12 0. B., 847. " In the administration of 
 justice, at all events, above and outside of the province of the detective, there 
 should be no resort to experimental expedients or subterfuges. Every proceed- 
 ing should be had honesUv and openly and with the sole end and aim of 
 administering the law faiufnlly and justly, and of bringing offenders against 
 the law, by legitimate and proper evidence, within the penalties awarded for 
 their offence ;" per Cameron, 0. J., B. v. Walker, 18 O. B., 88, at p. 94, and it 
 was there held wat the provision in the 0. T. Act was intended to provide process 
 tn rem for the confiscation and destruction of liquor, in respect of which a use 
 prohibited by the Statute was being made, and not to provide a means of obtain- 
 ing evidanoe on which to found a prosecution or support one already began. 
 The aame may be said in respect of this section, for although there is a marlied 
 difference in the wording of the provisions of the two enactments, yet the 
 intention of the Legislature is probably the same in both cases, via. : to provide 
 means for the confiscation and destmotion of liquor kept for illegal purposes, 
 and that the prooess provided for should not be issued except upon proper infor- 
 mation in the terms of the section. In another case under the 0. T. Act, it was 
 held that before a search warrant can issue, some offence against the provisions 
 of the Act must be shewn to have been committed : B. v. Heffeman, 18 0. B., 
 616. 
 
 (t) " Beasonable ground for belief." See notes on page 14S. 
 
 (u) " Spirituous or fermented liquor." See note (b), sec. 2. 
 
 («) " For sale or disposal." See notes on pages 120, 126, anU, also notes on 
 pages 148, 167, antt, title, •• Ml* or barter." 
 
 fell 
 
s. 131.J 
 
 THE LIQUOR LICENSE ACT. 
 
 293 
 
 witboat itttiug 
 
 U, alBO notes on 
 
 unlicensed house or place (w) within the jurisdiction 
 of such justice, (x) may grant (y) a warrant (2) under his 
 hand, by virtue whereof it shall be lawful (n) for the person 
 named in such warrant at any time or times (/>) within ten 
 (lays {c) from the date thereof to enter, (</) and, if need be, 
 by force, the place named in the warrant, and every part 
 thereof, or of the premises connected therewith (e), and 
 examine the same and search for liquor therein (/) ; and 
 for this purpose may, with such assistance as he deems 
 expedient, break open any door, lock, or fastening of such 
 premises, or any part thereof, or of any closet, cupboard, 
 
 (w) " In any nnlioonaed honae or plaoe." See notes to sees. 49 and 70. 
 (z) " Jorisdiotion of snob Jnstioe." See note (d), seo. 79. 
 (y) " May grant." See note {g), sec. 12, ante, p. 41. 
 
 (1) " A. warrant." Tbe warrant to be issued under tbis section is a searcb 
 warrant, bearing some similarity in form to tbat issued in tbe case of stolen 
 goods, altbongb tb** object of tbe searcb is different. '* A searcb warrant wbiob 
 is granted in tbe case of stolen goods is founded upon a complaint under oatb 
 that tbe complainant bas reason to suspect or believe tbat certain goods bave been 
 stolen and tbat sncb goods are raspected to be in tbe bouse or upon tbe 
 premises of snob a person, and tbat tbey are concealed tbere, and tbat tbe 
 oomplainant suspects so for certain causes wbieb be must set out in tbe com- 
 plaint: Blsee V. Bmitb, 1 D. d; B., 97. Tbat warrant is not only for tbe 
 discovery of felons and tbe obtaining of evidence against tbem, but also for 
 "the belping of persons robbed to tbeir goods : 2 Hale P. 0., 149." But the 
 offence of unla^^lly keeping intoxicating Uquor for sale contrary to tbe Act 
 is not a felony, and it does not belp any person to bis property as in tbe case 
 of stolen goods. Tbere is not, therefore, a similarity between tbe two warrants : 
 per Wilson, 0. J.. B. v. Doyle, 12 0. B., 847. See note (<) supra. See also B. 
 V. Walker, 18 0. B., 88 ; B. v. Heffeman, 18 0. B., 616, cited lupra. 
 
 For form of warrant see appendix. 
 
 (a) " It shall be lawful." See note (9) sec. 426. 
 
 (b) " At any time or times." See note (k), sec. 180, also note (k), seo. 130. 
 
 (c) " Witbin ten days " means ten dear days excluding tbn day of tbe date of 
 the warrant : Williams v. Burgess, 12 A. & B., 686 ; Bobinson v. Waddington, 
 18 Q. B., 768 ; Mitchell v. Foster, 12 A. & E., 472 ; B. v. Sbropsbbre, 8 
 A. (& E., 178, and other oases cited in notes on pages 14, 20, 24, 28 and 86. 
 
 (d) " To enter." Tbe right of entry given here authorizes force if need be. 
 The person to whom tbe warrant is directed is empowered to take snob assist- 
 ance as be deems expedient, and to break open any door, lock or fastening of 
 the place named in the warrant, or of any closet, cupboard, box or other article 
 likely to contain intoxicating liquor. Xt is tbe duty of tbe person executing a 
 search warrant to demand admittance, and to disclose bis authority and tbe 
 object of his visit before resorting to force : Saunders' Prao., 198. 
 
 (c) " Premises connected therewith." See B. v. Tott, i L. T. N. S., 306, 
 cited in note (p), sec. 180. 
 
 (/) " Examine tbe same and search for liquors therein." A "searcb" is 
 " a oarefol examination ; and examination or inspection authorized by law : " 
 Anderson's Diet., 928. 
 
 m 
 
! , I 
 
 ■1 ^;i 
 
 li: 
 
 Mi 
 
 M.I i t 
 
 c;S 
 
 
 'ti 
 
 294 
 
 Unlawful 
 keeping 
 of liquor 
 to be evi- 
 dence of 
 illesal 
 dealings 
 therein. 
 
 Seiimreof 
 
 liquor 
 
 found 
 
 onun- 
 
 lioensed 
 
 premiseB. 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 131, 132. 
 
 box or other article likely to contain any such liquor ; and 
 in the event of any liquor being so found unlawfully kept 
 on the said premises (g), the occupant (A) thereof shall, 
 until the contrary is proved (/), be deemed to have kept 
 such liquor for the purpose of sale contrary to the provisions 
 of section 50 of this Act (j). R. S. O. 1877, c. 181, s. 96 ; 
 49 V. c. 39, s. 7. 
 
 ISSi* When any inspector, policeman, constable or 
 officer in making or attempting to make any search under 
 or in pursuauce of the authority conferred by the preceding 
 two sections of this Act or under the warrant mentioned in 
 the last preceding section, finds in an unlicensed house or 
 place any spirituous or fermented liquor which in his opinion 
 is unlawfully kept for sale or disposal contrary to this Act, (k) 
 
 (g) " Unlawfully kept on the said premises." See seo. 108 and notes thereto. 
 
 The existence of the nsnal appliances of a bar-room or preparations similar 
 to those found in taverns or shops where liquors are kept is prima facie 
 evidence that liquors are kept or had for the purpose of being sold or bartered 
 or traded in under seo. 50 of this Act. Bee also sec. Ill, in which further 
 provision is made as to evidence of the unlawful keeping of liquor. Although 
 the search warrant was illegally issued, the evidence obtained under it was hold 
 admissible against the defendant : B. r. Doyle, 13 0. B., 347 ; B. v. Hnghes, 
 4 Q. fi. D., 614 ; B. v. Heffeman, 18 O. B,, 616, and cases cited therein. 
 
 Where evidence was given of the finding of certain appliances mentioned in 
 sec. 119 of the 0. T. Act, held that apart Arom the presumption created by that 
 section upon the finding of such appliances, such finding was evidence of a 
 keeping for sale, of the weight of which the Magistrate was the proper judge : 
 B. V. Brady, 12 0. B., 868. The finding of such intoxicating liquor will be 
 prima facie evidence of the keeping of such Uqnor for rale, not that the defend- 
 ant had sold such intoxicating liquor : see B. v. Walker, 18 0. B., 83 at p. 96; 
 B. V. Heffeman, 18 0. B., 616. 
 
 {h) " The occupant." See note (i), bee. 60 ; and note (d), sec. 112. 
 
 (i) " Until the contrary ic proved." The finding of liquor as in this section 
 provided is only jwi'ma faeie evidence that such liquor is kept for sale. See 
 note (g), tupre ; see also notes to sec. 111. 
 
 ( j) The keeping of intoxicating liquor without a lioeniK! is a violation of seo. 
 60 ; see notes to that section. 
 
 {k) The last preceding section provides for the search for liquors unlawfully 
 kept for sale, while this one makes provision for the seisnre, removal and 
 destruction of any such liquor found. The forfeiture, of the liquor can only 
 take place on the conviction of the owner or occupier of the premises in which 
 it was '!)nnd. 
 
 Under the English Act it was held that the Justices could not order the 
 liquors to be confiscated without giving the person upon whose premises it was 
 found an opportunity of being heard, and of shewing that the seizure was 
 wrong : Qill v. Bright, 26 L. T. N. 8. 691 ; 4 Mews' Dig., 1126. 
 
 The proceedings under this section are dependent upon thoM under the two 
 ast preoeding seetiora, and the notes thereto will apply to this Motion. 
 
 L'-^y 
 
i3*-J 
 
 THE LIQUOR LICENSE ACT. 
 
 295 
 
 8 and noteB thereto. 
 
 is a violation of see, 
 
 Officer 
 may de- 
 maud 
 names 
 and ad- 
 dresses 
 of Ire- 
 qaenters 
 of unli- 
 censed 
 premises. 
 
 he may forthwith seize and remove the same, and the vessels 
 in which the same is kept, and upon the conviction of the 
 occupant of such house or place, or of any other person, 
 for keeping spirituous or fermented liquor for sale in such 
 house or place without license, the Justices making such 
 conviction, may in and by the said conviction, (/) or by a 
 separate or subsequent order, declare the said liquor and 
 vessels, or any part thereof, to be forfeited to Her Majesty, 
 and may order and direct that the said inspector, policeman, 
 constable, or officer shall destroy the same or any part 
 thereof, and the inspector or other person as aforesaid shall 
 thereupon forthwith destroy the same or part thereof as 
 directed by such conviction or order. 44 V. c. 27, s. 9. 
 
 [(2) Any inspector, policeman, constable, or officer having 
 in pursuance of the two preceding sections or either of them 
 entered any unlicensed premises in which he seizes or from 
 which he removes any such liquor as aforesaid, may demand 
 the name atid addresss of any person found in such premises, 
 and if such person refuses to give his name and address, or 
 if the inspector, policeman, constable or officer, has reason- 
 able ground to suppose that the name or address given is 
 false, may examine such person further as to the correctness 
 of such name or address, and may if such person fail upon 
 such demand to give his name or address or to answer 
 satisfactorily the questions put to him by the inspector. 
 
 Where the information , in the first instanoe, was for selling liquor contrary 
 to the provisions of Vae 0. T. Act, instead of for keeping snoh liquor for sale, 
 and was afterwards amended to the lattei charge, it was contended on behalf 
 of the defendant that the liquor ordered to be forfeited and destroyed was not 
 the liquor mentioned in or covered by the search warrant, in respect of which 
 the offence charged in the first information was committed ; but it was held 
 that the objection was not well founded, as the information as amended 
 must be read as if it were the original information laid, and as if the offence 
 <itated in the information for a search was for " keeping for sale " instead of 
 foi- "selling;" in fact, the original information ceased to exist when the 
 amended, information was substituted for it : B. v. Heffeman, 18 0. B., 616 at 
 p. 62A. 
 
 (I) ..>3 English Lioenaing Act provides that " the Court may, if it think 
 expedie.it to do so, declare all intoxicating liquor found, Ao., to be forfeited." 
 It was h'.>ld that ttie forfeiture of the liquor was discretionary in the Justices 
 under that provision, and that the Justices need not decide anything : Pater- 
 son's L. A., 4. 
 
 The order for the destruction of the liquor may be included in the conviction 
 or may be made in a separate order. For form of declaration of forfeiture and 
 order to destroy the liquor seized, see Soh. E. 
 
 
m 
 
 ^ 
 
 
 
 296 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 132. 
 
 Penalty 
 for giving 
 false in- 
 forma- 
 tion. 
 
 policeman, constable or officer, apprehend him without 
 warrant and carry him, as soon as practicable, before a 
 Justice of the Peace. 
 
 Any person found on the premises as aforesaid who in 
 answer to the inspector, policeman, constable or officer, 
 refuses to give his name and address or gives a false name 
 or address, or gives false information with respect to such 
 name 01 ^ Idress, or fails to answer satisfactorily the questions 
 ' put to him by the inspector, policeman, constable or officer, 
 shall be liable to a penalty of not less than $10 nor more 
 than $20 besides costs, and in default of payment shall be 
 imprisoned for a period of not less than twenty and not 
 more than forty days.] (m) 
 
 (m) This Bub-seotion is added by 58 Yio., 0. 66, s. 17, and is taken from The 
 English Licensing Act, 1874, 87 and 88 Vie., 0. 49, s. 17. and The English 
 Licensing Act, 1872, 86 and 36 Vic, 0. 94, s. 26, which ia a re-enactment in 
 different language of the repealed sections of the English Acts, 82 and 83 Yio., 
 0. 27, s. 16, and 33 and 84 Vic, 0. 29, s. 6. 
 
 A person found on the premises upon which liquors are seized or from which 
 they are removed is bound to give his correct name and address on being 
 requested to do so, to an Inspector, Policeman, Gonstable or Officer, enteriuK 
 such premises under sec. 130, or acting on a warrant issued in pursuance of 
 sec. 131, but he is not bound to give it to any other person. 
 
 On a person being brought before a Justice of the Peace, he may be con- 
 victed if it be proved (1) That he was found upbn unlicensed premises in which 
 intoxicating liquors have been seized, or from which such liquors have been 
 removed under the authority of sub-section 1 ; (2) That his name and address 
 were demanded by the proper officer ; (3) That he either refused to give his 
 name or address, or he gave a false one, or gave false information with respect 
 to such name or address, or failed to satisfactorily answer the questions put to 
 him with respect thereto. 
 
 Statutes which encroach on the rights of the subject, whether as regards 
 person or property, receive strict construction : Maxwell, 267, and in a case of 
 doubt the construction most beneficial to the subject is to be adopted : 16. 259, 
 and although such enactments as these are not to be construed so as to furnish 
 means of evasion, yet it would be well for the officer acting m t)nr8uance of the 
 power here conferred to act strictly within such power. 
 
 In discussing similar powers under the English Licensing Act, it has been 
 said: "The person found cannot be expected to do more than assert his 
 correct name and residence ; at the same time, if the name and address given 
 turns out to be false, the constable, acting at his peril, will be able to justify 
 the apprehension if made. The more prudent course for the constable will be 
 to proceed against the visitor if the name and address be refused or is false, and 
 not to apprehend on the last ground, namely, 'giving false evidence with 
 respect to such name or address,' which must be a very vague and uncertain 
 ground to proceed upon, and will require great judgment to work out within 
 the limits of the law." " No power is given to the constable to turn out the 
 visitor found on the premises, or detain him until enquiries are made ; and 
 though he may, in the circumstances stated, apprehend the visitor, and carry 
 him before a Justice, thiu will be at the risk of the coostable : " Paterson's 
 L. A., 84. 
 
SS. 133, 1 34. J THE LIQUOR LICENSE ACT. 
 
 297 
 
 Bev. Stat. 
 0.73. 
 
 Duty at 
 oonsta- 
 bles ard 
 others to 
 proseoute 
 ofCenders. 
 
 1.3S* If the occupant or other person («) as aforesaid J^°^ 
 be not convicted of keeping the said liquor or any part **o° 
 thereof for sale as aforesaid, the inspector or other person '^^^ ^ 
 so seizing the liquor as aforesaid, shall return the same to 
 the place where such seizure was made ; the inspector, or 
 other person acting with him, or by or under his directions, 
 and the policeman, constable or other officer acting under 
 this Act shall be a public officer within the meaning of TAe 
 Act to protect Justices of the Peace and others from vexatious 
 actions^ for the purposes of this Act (<?). 44 V. c. 27, s. id. 
 
 1S4« (i) It shall be the duty {p) of every officer, 
 policeman, constable or inspector in each municipality, {q) 
 to see that the several provisions of this Act are duly 
 observed, (r) and to proceed by information and otherwise 
 prosecute for the punishment of any offence against the 
 provisions of this Act ; {s) and in case of wilful neglect or 
 
 (n) " If the oooapant or other person." See note (A), seo. 131. 
 
 " Other person " refers to any person charged with keeping intoxicating 
 li(luor for the purposes of sale contrary to the provisions of section 60. The 
 latter sec. providea that " no •penan shall keep or have in any honse," etc., 
 " any spirituoas, fermented, or manufactured liquors," etc. But the presump- 
 tion arising from the existence of appliances for dealing in liquor, as in sec. 
 108, and the finding of liquor, as in seo. 182, is evidence agai ast the occupant 
 only. If the person charged is not the occupant, then there must be some 
 evidence of sale as provided in sees. 109, 111, 118, in order to convict. 
 
 (0) This section provides for the return of the liquor in case a conviction is 
 not made, and for the protection in such case of the officers seizing the liquor. 
 
 The direction as to the return is peremptory and will be enforced by the 
 High Court. Failure on the part of the proper officer to make such return 
 would subject him to an action for conversion. 
 
 The provision for the protection of the officers acting in such case is governed 
 by " The Act to protect Justices of the Peace and others ftom vexatious 
 actions." B. 8. O. 0. 78. See also B. &, J's. Dig., 1993-2001 ; Ont. Dig., 1882- 
 1884, 404 ; Ont. Dig., 1884-1887, 889 ; 4 Mews' Dig., 1284-1293 ; Bond v, 
 Oonmee, 16 App. B., 898, cited ante ; Meohiam v. Home, 20 0. B., 267 ; cited 
 po(t. See also oases cited in note (ft), seo. 129. 
 
 (p) "It shall be the duty." This section makes it the imperative duty of 
 every officer, policeman, constable or Inspector in each Municipality, not only 
 to see that the several provisions of this Act are obsorved, but to proseoute all 
 offences against the Act. See notes to see. 129. 
 
 (9) "Officer" probably refers to the officers appointed under sec. 128, 
 althongh from the context it may be construed as having reference to officers 
 of each Municipality. The officers of a Municipality are enumerated in notes 
 on page 166. 
 
 (r) " Duly observed," means that they are observed in compliance with the 
 requirements of the law : See Anderson's Diet., 386. 
 
 (() " And to prooeed by information," etc. See note ( j>) «upra, and note («), 
 860. 181. 
 
 
 ^t:\^ 
 
'W^WPpPl'filffWPPiPPPIff'iP^ 
 
 , M 
 
 1 , I 
 
 298 
 
 Penalty 
 
 for 
 
 negleot 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 134, 135. 
 
 Commis- 
 sioners of 
 police 
 and chief 
 of police 
 to enforce 
 this sec- 
 tion. 
 
 default (/) in so doing in any case, such officer, policeman, 
 constable or inspector shall incur a penalty of $10 for each 
 and every such neglect and default. R. S. O. 1877, c. 181, 
 s. 97. 
 
 (2) It shall be the duty of the board of commissioners of 
 police, and of the chief of police, to e iforce the provisions 
 of this section, and any officer or policeman convicted of 
 violating the provisions thereof may be summarily dismissed. 
 
 44 V. c. 
 
 27, s. 
 
 25- 
 
 UNORGANIZED DISTRICTS. 
 
 This Act 139* Subject to the provisions hereinafter con- 
 to apply 
 totheter- tained, («) the preceding provisions of this Act shall apply 
 
 (t) "Wilful negleot or defaalt." The word " wilful*' does not, as is often 
 supposed, imply anything blameable. As used here it simply means that the 
 person whose duty it is to do a thing which he is able to do, if willing, fails to 
 do it. " It amounts to nothing more than this., that he knows what he is 
 doing and intends to do what he is doing, and is a free agent." See note (d), 
 seo. 47, and note (u), see. 83. 
 
 To " wilfully negleot " to do a thing i.. intenMonally to omit to do it, aad it 
 was held, therefore, that to pray instead of sending for a doctor i^ to " wii^fully 
 neglect " to provide medical aid as required by the Statute : B. v. Downes, 1 
 Q. B. D., 26 ; B. v. Morby, 8 Q. 6. D., 671. 
 
 In our own Gourt a similar construction has been given : see Miles v. Boe, 
 10 P. B., 218, in which it was held that " wilful delay" is the not doing of a 
 thing within a reasonable time to do it. See also re Toung and Harston, 31 
 Gh. D., 174 ; in re Biley to Streatfield, 34 Gh. D., 886. 
 
 WUfnl default of the person in oharge of a ship was held to mean simply 
 " by the default " of such person whether intentional or negligent : Grill v. 
 Qeneral Screw Collier Go., L. B. 1 O. P., 600. The English authorities give 
 this oonstmotion where the phrase "wilful negleot" or "wilful default" is 
 used. But the word " wilfully " has been held in some cases to denote evil 
 intention, and when a person is acting under an honest mistake in doing what 
 he did, the act was held not to be done wilfully : Smith v. Bamham, 1 Ex. D., 
 419. 
 
 In the United States it has been held that in an act forhid4en by law the act 
 must be done knowingly and intentionally — that with knowledge the will con- 
 sented to, designed and directed the act : Woodhouse v. Bio Grande By. Co., 
 67 Texas, 419 ; Highway Commissioners v. Ely, 64 Mich., 180-181. 
 
 Any officer or policeman named in the section who knows of an offence 
 against the provisions of the Act and fails to prosecute, it is submitted, is 
 guilty of a violation of the section and liable (1) to a penalty of 910 " for every 
 such negleot and default," and (2) to be dismissed on conviction for the offence ; 
 and the Board of Police Oommissioners and the Ohief of Police are empowered 
 and directed to enforce this provision. 
 
 (u) " Suujeot to the provisions hereinafter contained," refers to the provisions 
 in sees. 136-140. 
 
 The effect of this section is to extend the Act to judicial, territorial and unor- 
 ganized districts ; to give Stipendiary Magistrates in such districts the powers 
 of Police Magistrates and other Justices of the Peace under the Act ; to consti- 
 
SS. 135, 136, 137.] THE LIQUOR LICENSE ACT. 
 
 299 
 
 rilfal default " is 
 
 I to the provisions 
 
 to all portions of Judicial, Territorial and other Unorganized an^uno,. 
 Districts of this Province ; and in any prosecution or pro- §?5j.i®i 
 ceeding thereunder the Stipendiary Magistrate in any such 
 district shall possess and exercise all the powers and juris- 
 dictions of the Police Magistrate, or other convicting Justice 
 or Justices of the Peace, under this Act ; and the lock-up 
 of such district shall be deemed to be a gaol for the purpose 
 of imprisonment under this Act ; and any money penalty 
 imposed and recovered shall, where the inspector is not the 
 prosecutor, or the offence was not committed within any 
 municipality, be paid to the Treasurer of Ontario ; and the 
 provisions of this Act applicable to township municipalities 
 shall apply to all municipalities organized under TAe Act 
 respecting the Establishment of Municipal Institutions in the 
 Districts of Algoma^ Muskoka, Parry Sound, Nipissing, ^Yse?*''*' 
 Thunder Bay and Rainy River. R. S. O. 1877, c. 181, 
 s. 98. 
 
 ISO. The Lieutenant-Governor in Council {v) may 
 declare {zv) any portion of a Judicial or Territorial District (jjc) 
 which is not within the jurisdiction of a municipal county, 
 a license district, for the purposes of this Act, and the 
 Lieutenant-Governor may appoint therefor a board of license 
 commissioners and one or more inspectors. R. S. O. 1877, 
 c. 181, s. 99. 
 
 199* In any license district so formed an appeal 
 shall lie from any decision of the Stipendiary Magistrate in 
 any prosecution or proceeding under this Act, to the Judge 
 of such district, or to any County Judge to whom an appeal 
 
 License 
 dlBtrlota 
 in Judi- 
 cial or 
 Terri- 
 torial 
 Districts. 
 
 Appeal 
 from 
 Stipen- 
 diary 
 Olagis- 
 trates. 
 
 tnte the look up of saoh district a gaol for the pnrpoBes of the Aot ; and to 
 provide for the applioation of penalties recovered. 
 
 Algoma and the other districts named are sabjeot to the same provisions of 
 the Act as the Township Mnnioipalities of organized Gotinties. 
 
 (v) " The Lieatenant-Govemor-in-CotmoiL" See see. 19, note (t). 
 
 (w) "May declare." Bee notes on pages 8, 41, 75, 90. 
 
 (x) "jQdidal or Territorial District." See "The Unorganized Territory 
 Act," B. S. O. a 91, s. 1. 
 
 The e£fect of this is to practically extend the provisions of sections 46 and 
 46, to Jtidieial and Territorial Districts not within the jurisdiction of a Mnuid- 
 pal Ooonty. See notes to those sections. 
 
 ii 
 
 mi. 
 
^^■^" 
 
 1 1 
 
 ■ . i ■ 
 
 ! I 
 
 i! 
 
 i !' (' 
 
 300 
 
 Appoint- 
 ment of 
 Oommis- 
 Bioners, 
 etc., in 
 dlstriotB 
 not with- 
 in the 
 jurisdic- 
 tion of 
 munioi- 
 pal ooua- 
 oils or a 
 license 
 district. 
 
 Dnties 
 payable. 
 
 Issae of 
 
 licenses 
 
 for places 
 
 not 
 
 within 
 
 license 
 
 district. 
 
 THE LIQUOR LICENSE ACT. [ss. 1 3 7, 1 38, 1 39. 
 
 lies in other matters in such district (y). R. S. O. 1877, 
 c. 181, s. 100. 
 
 1.88* (i)In such portions of Judicial or Territorial 
 Districts as are not within the jurisdiction of any municipal 
 county, and have not been included in any license district, 
 under the provisions of section 136, the Lieutenant-Governor 
 may appoint one or more persons as license commissioners 
 and inspectors respectively for the granting of such number 
 of tavern and shop licenses to such persons, for such places 
 and periods, and upon such conditions as may be pre- 
 scribed by Order in Council, such licenses to take effect 
 from the ist day of June in each year (z). 
 
 (2) For any such tavern or shop license, the duty payable 
 shall be the suir. of $60 (a). R. S. O., 1877, c. 181, s, loi. 
 
 ISO* The licenses to be issued for the sale of 
 spirituous, fermented or other manufactured liquors, in any 
 place not within a license district, may be issued on such 
 conditions and under such regulations as the Lieutenant- 
 Governor in Council from time to time directs, subject to 
 the provisions of this Act ; and any bond which the Lieu- 
 tenant-Governor in Council may direct to be taken from 
 any person obtaining a license under this Act for any such 
 place, conditioned for the observance of the law and of all 
 regulations to be made under this section, shall be valid, 
 and may be enforced according to its tenor (^). R. S. 0. 
 1877, c. 181, s. 102. 
 
 1: '. ■: 
 
 t>i 
 
 ^y'i% 
 
 fillip 
 
 (y) This seotion gives the right of »ppeal in all oases from the Stipendiary 
 Magistrate to the Gonnty or Distriot Jadge. See seo. 118 and notes thereto. 
 
 . («) This applies to portions of Jadidal and Territorial Districts in which no 
 license distriot has beisn formed and no License Gommissioners or Inspector 
 appointed by the Lieatenant-Qovemor-in-Ooonoil nnder seo. 186. In snob 
 plaoes the Lieatenant-Oovemor (see seo. 19, note (i) ) is empowered to appoint 
 one or more persons as License Gommissioners and Inspector, respeotiTely, with 
 power to grant licenses npon conditions to be prescribed by Order-in-Gounoil, 
 These licenses are to take effect from 1st Jane in each year. See seo. 8 et $eq. 
 
 (a) See sec. 41 and notes thereto. 
 
 {b) The Lieatenant-Gk>vemor-in-Goancil is hereby empowered to make con- 
 ditions and regulations (see seo. 4, note (p)) from time to time, respecting 
 the issue of Uoenses in places not within a license district, and also to issne 
 directions as to the bond to be taken from a licensee in such places. See see. 
 80 and notes thereto. 
 
ss. 
 
 140, 141, 142.J THE LIQUOR LICENS^ ACT. 
 
 301 
 
 1 40« Any municipal corporation within any Judicial ^°^®".°' 
 or Territorial District shall have the like authority in respect S^J^^o^g 
 of taverns and shops therein, and the licenses therefor, as 
 the like corporations in municipal counties possess under 
 the provisions of this Act {c). R. S. O. 1877, c. 181, s. 103. 
 
 ''!/] 
 
 w 
 
 e duty payable 
 
 27-8 V. 0. 
 18, and 
 B. S. C. 0. 
 100, not 
 affected 
 by this 
 Act 
 
 MUNICIPALITIES UNDER THE TEMPERANCE ACTS. 
 
 l.<fl:l.a Nothing in the foregoing provisions of this Act 
 shall be construed to affect or impair (d) any of the 
 provisions of The Temperance Act of 1864 of the late 
 Province of Canada, or the second part of The Canada 
 Temperance Act, and no tavern or shop license shall be 
 issued or take effect within any county, city, town, incor- 
 porated village, or township in Ontario within which any 
 by-law for prohibiting the sale of liquor under the said Act 
 is in force {e). R. S. O. 1877, c. 181, s. 104 ; 44 V. c. 27, 
 s. 13. 
 
 \Ml9» [The Lieutenant-Governor in Council may, not- 
 withstanding that any such by-law affects the whole or part 
 of any county, or that the second part of The Canada 
 Temperance Act is in force in the whole or part of any 
 county, nominate a board of license commissioners of the 
 number and for the period mentioned in section 3 of this 
 Act, and also an inspector ; and the said board and inspec- 
 tor shall have, discharge and exercise all such powers and 
 duties respectively for preventing the sale, traffic or dis- 
 
 (e) The proviaionB of seos. 20, 82 and 42 are extended to Munioipal Corpora - 
 tions with£i any Jadieial or Territorial distriot. See notes to those sections. 
 See also see. 64, note (v). 
 
 (d) " To afleot or impair." '* Shall not affect," means '* shall not validate or 
 mvalidate :" 1 Jarm. 41, citing Sharp v. St. Sauvear, 7 Gh., 843. To '* iiupair " 
 ia to make worse ; to diminish in quantity, yalae, excellence, strength ; to 
 lessen in power ; to deteriorate; to relax, weaken, injare:" Anderson's Diet., 
 623. 
 
 («) " No tavern or shop license shall issue," etc. The Ontario Legislature 
 jannot make the sale of liquor contrary to the Temperance Act, 1864, an 
 offence against the provisions of this Act so as to subject the offender to 
 penalties imposed by the License Act instead of those prescribed by the Tem- 
 perance Act. It was therefore held that the only oonviqtion that could be valid 
 (or keeping liquors for sale in a hotel in a Municipanty where the latter Act 
 was in force, was under sec. 12 of the Temperance Act of 1864, which forbade 
 its being kept, and while that Act was in force no license to keep liquors in a 
 hotel could issue : R. v. Prittie, 42 U. 0. R., 612. See also tn n Watts and 
 tare Bmery, 6 P. B., 267 ; B. v. Lake, 48 U. 0. R., 616. 
 
 Commis- 
 Bioners 
 andin- 
 gpeotors 
 maybe 
 appoint- 
 ed where 
 Temper- 
 ance Acta 
 in force. 
 
 f 
 11 
 
i 
 
 l 
 
 i 1 
 
 1 ■ 
 
 . 
 
 ■ 1 ,j 
 
 y.li 
 
 ii 
 
 
 1 
 
 ^ 
 
 n 
 
 I.I 
 
 ?l 
 
 K 
 
 Mn 
 
 302 
 
 THE LIQUOR LICENSE ACT. 
 
 [ss. 142, 143. 
 
 Duties 
 in Buob 
 case. 
 
 27-8 V. 0. 
 18; R. 8.0. 
 0. 106. 
 
 posal of liquor contrary to the said Acts or this Act as they 
 respectively have or should perform under this Act] (/). 
 51 V. c. 30, s. I. 
 
 1 4iS« The board of license commissioners and the 
 inspector so appointed under this Act >.all exercise and 
 discharge all their respective powers and duties for the 
 enforcement of the provisions of TAe Temperance Act of 
 1864, and the second part of The Canada Temperance Aci 
 {g), as well as of this Act, so far as the same apply, within 
 the limits of any county, city, incorporated village or towii- 
 
 (/) This and the following aeotions provide ways and means for the enforce- 
 ment o( The Canada Temperance Aot by the application of looal fands raised 
 by looal taxation or otherwise in the Oounty. " As stated by Sir Montague E. 
 Smith, in Bassell v. The Qaeen, 7 App. Gas., at p. 636, the effect of theOanada 
 Temperance Act, when bronght into force in any Oonnty, is to prohibit the sale 
 of intoxicating Uqaor except in wholesale qaantitiea or for certain specific 
 
 Eorposes, to regulate the traffic in the excepted cases, and to make sales of 
 qnor in violation of the prohibitions and regolations contained in the Act 
 criminal offences punishable by fine, and for third or subsequent offences by 
 imprisonment. Now the Act is brooght into force in any Municipality by a 
 majority of the votes of the therein qualified electors, and when so introduced 
 it becomes a part of the Mnnicipal law, relating to public order, safety and 
 good government in that locality. The general law as to prohibition respecting 
 all Canada, which can only be enacted by the Dominion, being localized by 
 Mnnicipal suffrages, its enforcement becomes also a matter of local importance 
 within the meaning of the British North America Act, sec. 92, item 16." 
 
 "The enforcement of the Aot in the adopting Municipalities involves 
 questions of local police regulations. For the purpose of ensuring uniformity 
 and efficiency of action, the prosecution of offenders may be properly relegated 
 to the hands of Provincial officers for the appointment and payment and 
 governance of w! ,om laws may be made under The British North America Aot, 
 sec. 92, item 4. The expense of carrying the Aot into effect within the adopt- 
 ing Oounty is a burden to be borne by we ratepaprers of that locality, so that 
 the legislation now questioned may also fall withm the scope of the B. N. A. 
 Act, sec 92, item 8, as pertaining to Mnnicipal institutions of the Province. 
 This body of Ontario legislation is not in conflict with the provisions of the 
 ijeneral law enacted by tiie Dominion, but in furtherance of, it as to its local 
 application and details." ■ 
 
 *' My conclusion then in brief is, that the general prohibitory law, being 
 localized by Mnnicipal option, may be enforced tiirongh the medium of Provin- 
 cial officers, to be appointed and paid for according to Provincial legislation 
 (Bichardson v. Bansom, 10 O. B. at p. 887) : " per Boyd, 0., License Oom. of 
 Frontenao v. Co. of Frontenac, 14 0. B., 741 at p. 746, et uq. 
 
 See sec. 8 and notes thereto. 
 
 {g) " The Temperance Act." See digest of oases under the Canada Temper- 
 ance Act, po$t. The ^nada Temperance Act may be enforced through the 
 medium of Provincial omoers, to be appointed and paid for according to Pro- 
 vinciid legislation: see License Com. of Frontenac v. Co. of Frontenac, 14 
 O. B., 741, cited $upra. See also the judgment of Armour, J., in License 
 Com. North Biding of Norfolk v. Co. of Norfolk (Nov. 1, 1887), quoted 14 
 0. B.. p. 749. 
 
SS. 144, 145, 146.] THE LIQUOR LICENSE ACT. 
 
 ship in which any by-law under the said Acts is in force. 
 R. S. O. 1877, c. i8j, s. 106; 44 V. c. 27, s. 13. 
 
 IJtJL* A wholesale license (A), to be obtained under 
 and subject to the provisions of this Act, shall be necessary, 
 in order to authorize or make lawful any sale of liquor in 
 the quantities allowed under the provisions of TAe Temper- 
 ance Act of 1864^ and the second part of Tht Canada 
 Temperance Act, R. S. O. 1877, c. 181, s. 107 ; 44 V. c. 
 27, s. 13. 
 
 144^* All the provisions of sections 127, 128, 141, 
 142, 143 and 144 of this Act shall be applicable to munici- 
 palities in which the second part of The Canada Temper- 
 ance Act is in force (/). 44 V. c. 27, s. 13 ; 47 V. c. 34, 
 s- 34- 
 
 l^O. (i) The council of any county, city, town, 
 township, or village {j) in which the second part of The 
 Canada Temperance Act is in force, may, from time to time, 
 set apart any sum or sums of money for the purpose of 
 paying any officer or officers, person or persons, for enforc- 
 ing, or assisting, to enforce The Canada Temperance Act 
 within their respective jurisdictions, and for the payment of 
 any costs or expenses incurred in and about enforcing, or 
 attempting to enforce the same; and such councils are 
 hereby authorized and empowered to appoint one or more 
 officers or persons to enforce, or assist in enforcing, the 
 provisions of the said Act, and to pass by-laws for the 
 government and control of such officers or persons, and 
 defining their duties and mode and amount of payment. 
 44 V. c. 27, s. 14. 
 
 303 
 
 Whole- 
 
 ■ale 
 
 Uoensea. 
 
 27 8 V. c. 
 
 18;B.8.0. 
 
 0.IO6. 
 
 Applioa- 
 tion of 81. 
 127, 128, 
 and 
 141-144. 
 
 Munioi- 
 pal coun- 
 oilB may 
 aid in 
 enforcing 
 the 
 
 Canada 
 Tempt r- 
 anoe t ot. 
 
 (A) " A wholesale lieense." See sab-seo. 4 of eeo. 2 and notes thereto. 
 
 (t) The general law as to prohibition respecting all Canada, whioh oan only 
 be enacted by the Dominion, being localized by Mnnicipal soffrages, its enforce- 
 ment becomes a matter of local .importance in the Province, within the meaning 
 of the B. N. A. Act, sec. 92, item 16, and may also fall within the scope of the 
 B. N. A. Act, sec. 92, item 8, as pertaining to Municipal institntions in the 
 Province. This body of Ontiu;io legislation is not in conflict or competition 
 with the provisions of the general law enacted by the Dominion, bat in farther- 
 ance of it as to its local application and details : License Gom. of Frontenao v. 
 Co. of Frontenac, 14 O. B., 741 at pp. 747, 748, cited ant«, p. 802. 
 
 ( j) " The Ooanoil of any coanty, city, town, township, or village," see note 
 (j)> P> 7 anU. Bee also notes to sees. 42, 42b, 48 and 44. 
 

 ;■ 1 ■ 
 ) 
 
 
 fe:/ 
 
 ' i"* 
 
 >Q|i; 
 
 
 :S 
 
 
 304 
 
 state- 
 ments of 
 receipt! 
 and ex- 
 pense!. 
 
 Frosecu- 
 tions 
 where 
 Temper- 
 anoe Acts 
 in force. 
 
 Expense 
 of enforc- 
 ing 
 
 Liquor 
 License 
 Act in 
 munici- 
 palities 
 under the 
 Temper- 
 ance Acts. 
 
 Propor- 
 tion p:;ya- 
 ble by the 
 Provinoe 
 or Muni- 
 cipality, 
 bow and 
 
 THE LIQUOR LICENSE ACT. [sS. I46, I47, 148. 
 
 (2) Where the second part of TAe Canada Temperance 
 Act is in force, and when the council t^^s been called upon 
 to pay a proportion of the expenses of its enforcement, the 
 inspector shall, at the close of each year, send to the council 
 a statement in detail of the receipts and expenses of the 
 year. 50 V. c. 33, s. 7. 
 
 1.4 v. The sale of liquor without license in any muni- 
 cipality where The lemperance Act 0/1864, is in force shall 
 nevertheless be a contravention of sections 49 and 50 of 
 this Act, and the several provisions of this Act shall have 
 full force and effect in every such municipality except in so 
 far as such provisions relate to granting licenses for the sale 
 of liquor by retail {k). R. S. O. 1877, c. 181, s. 108. 
 
 1.4 9. [(i) (/) The expenses {m) of carrying into effect 
 such of the provisions of this Act, or of the Acts or by-law 
 hereinafter mentioned, as may be in force in municipalities 
 where a by-law prohibiting the sale of intoxicating liquors 
 under The Temperance Act of 1864, or where the second 
 part of The Canada Temperance Act is in force, 6xcept as is 
 hereinafter by this Act provided, shall be borne and paid 
 by the county within which any by-law for prohibiting the 
 sale of liquor under The Temperance Act 0/1864, or within 
 which the second part of The Canada Temperance Act is in 
 force ; and where the by-law is that of a minor municipality, 
 such expenses shall be paid by the minor municipality. 
 
 (2) («) The expenses payable under this section by a 
 county, or by a minor municipality, shall be by them paid 
 into the bank in which the license fund is kept to the credit 
 of the license fund account for the license district, and shall 
 
 (i) It was held that the Legialatare had no power to make the sale of intoxi- 
 oating Uqoor contrary to the provisions of the Temperance Act, 1864, an offence 
 against the License Acts : see B. v. Prittie, 43 U. 0. B., 612, and other oases, 
 cited ante, p. 109. 
 
 (I) Section 148 in the B. S. O. 0. 194, was repealed and the present section 
 snbstitated by 61 Yic. 0. 30. 
 
 (m) <' The expenses." It was held that the Board of License Oommissionera 
 was entitled to recover from the defendants the expenses of carrying ont the 
 provisions of the Canada Temperance Act in the license district of Frontenae, 
 formed oat of part of the Oonnty of Frontenae : License Com. of Frontenae v. 
 Co. of Frontenae, 14 0. B., 741. 
 
 (n) See sec. 46 and notes thereto. 
 
 •'♦ 
 
s. 
 
 148.] 
 
 THE LIQUOR LICENSE ACT. 
 
 30s 
 
 present seotion 
 
 become due and payable within one month (o) after an ^^"^^^ 
 estimate of the amount of the expenses for the current 
 license year shall be made by the board of license com- 
 missioners for the license district, and approved by the 
 Provincial Secretary (/) (which approval shall be final and 
 conclusive (f) ) and after a copy or duplicate of such esti- 
 mate and approval, together with a notice in writing by the 
 board of license commissioners requesting payment of the 
 amount payable by the municipality, shall be served upon 
 the clerk of the county, or minor municipality, or on such 
 days and times as by the said request or notice are named 
 for that purpose j and should any estimate prove insufficient 
 for the payment of the expenses of the license year any 
 deficiency may be provided for in the estimate for the suc- 
 ceeding year ; and should any sums remain unexpended 
 in any year, the same may be applied on account of the 
 expenses of the succeeding year (r). 
 (3) Payment may be enforced against any county, or Payment 
 
 minor municipality, by the board of license commissioners tiop, how 
 ^ ,. ....... , , enlorced. 
 
 in any Court of competent jurisdiction in the name and by 
 
 the title of '* The Board of License Commissioners for the 
 
 License District of ," and it shall not be necessary 
 
 (0) " Within one month." See note (r), p. 24. 
 
 (j>) "Approved by the Provinoial Seoretary." It was contended that the 
 estimatea were not approved of by the proper officer but only by his deputy, 
 but the estimates bore the signatore of the Provincial Secretary, and of Mr. 
 Totten acting for the Provincial Treasurer. " The approval or audit of the 
 estimates was regarded as an administrative act that might be delegated : per 
 Spragge, 0., License Gom. of Prince Edward v. Go. of Prince Edward, 26 
 Qrant, at p. 467, and if so, there is no doubt the sanction of the deputy was 
 snffioient (see Interpretation Act, B. S. 0. c. 4, s. 8, ss. 26, p. 8). But without 
 this tiiere is the proper signature of the Provinoial Secretary, which concludes 
 the matter, and there is no evidence to contradict its finality :" per Boyd, 0., 
 License Gom. of Frontenao v. Co. of Frontenac, 14 0. B., 741. 
 
 iq) " Final and conclusive." See note {g), p. 84. 
 
 (r) " Any sums remain unexpended in any year," eto. In the case of License 
 Com. of Frontenao v. Go. of Frontenao, $upra, there was an argument as to the 
 arrears brought forward from the former year as " a deficiency." It appeared 
 that it was the whole sum estimated for tihat year, and that it was not dimin- 
 ished by any receipts for any sum, so as to reduce it to a deficit in the usual 
 sense. It was held that after all it was but a matter of form, as it could be sued 
 for as a substantive debt upon the estimates of the former year. The provision 
 hero made is intended to cUspose of any question of that kind for the future by 
 malting provision for the parent of any deficiency in one year in the estimates 
 of ^e Hueoeeding year, and by providing further that any sums unexpended in 
 one year may be applied on aoeonnt of Uie expenses of the next year. 
 
 •1 )ii,i;ji 
 
 ' 'IB If 
 
 
 
: I 
 
 306 
 
 THE LIQUOR LICENSE ACT. 
 
 [s. 148. 
 
 ■i ,' !■; I 
 
 
 
 if 
 
 Minor 
 
 Munlol- 
 
 pality, 
 
 meaning 
 
 of. 
 
 EzpenMS 
 of enforc- 
 ing 0. T. 
 Act in 
 oitiei. 
 
 to mention or include the names of the license commis- 
 sioners in the proceedings (s); and the said action or 
 proceedings may be carried on in the name of such board 
 as fully and effectually as though such board - re incor- 
 porated under the aforesaid name or title. In the event of 
 the death or resignation of any of the license commissioners, 
 or of the expiry of their commission and of the re-appoint 
 ment of the same, or of the appointment of other license 
 commissioners, the proceedings, or action, shall not cease, 
 abate or determine, but shall proceed as though no change 
 h,id been made in the commission or license commissioners, 
 and in the event of said board being condemned in costs, 
 the same may be payable out of the license fund (/). 
 
 (4) The words " Minor Municipality " in this section 
 shall be held to mean any municipality, other than a county 
 or union of oounties. 
 
 (5) In cities, which are separate license districts in which 
 the second part of The Canada Temperance Act is in force, 
 the expenses of enforcing or r Tying into effect the pro- 
 visions of the said Act shall b -ne by the city, as in the 
 case of counties ir\ which the said second part of the said Act 
 is in force, and such expenses of the city shall be estimated 
 and ascertained, and become due and payable, and pay- 
 ment may be enforced against the city in the same manner 
 or under like circumstances as are provided in the case of 
 county municipalities, and all of the provisions of this Act 
 having reference to the said expenses and the mode of 
 ascertaining, fixing and collecting the same, which are 
 applicable to counties in which the said second part of 
 The Canada Temperance Act is in force shall also apply to 
 cities in which the same is in force (»).] 
 
 (•) This proTision plaoei the Board of LieeuM OommisBionerB on the same 
 footing in reepeet of eaitB bronght by them against any monioipality for the 
 reooveiy of their share of the expenses of enforcing the Aet, as if snoh Board 
 were incorporated under the name and title of " The Board of License OommiB- 
 sioners for tiie License District of • ." But there is no proTision 
 
 made as to the snits brooj^t against such Board. The mle wonld probably 
 work both ways, however. 
 
 As to the re-appointment of Oommissioners, see sec. 8 and notes thereto. 
 
 (t) As to payment of costs out of license fond, see sec. 45. 
 
 («) The provisions in respect to the enforcement of the 0. T. Act in other 
 
SS. 149, 1 50. J TIfR LIQUOR LICENSE ACT. 
 
 IJiO* [In any license district in which the second 
 part of Th" Canada Temperance Act is in force and the 
 license district, in addition tu other portions of the county, 
 embraces a city or town withdrawn from the county for 
 municipal purposes wherein the said Act is not in force, the 
 license fund of such city or town withdrawn from the 
 county for municipal purposes, shall be kept as a separate 
 license fund for such city or town ; and i^uch city or town 
 shall pay a just share of the expenses of such license district ; 
 and the same shall be determined by the board of license 
 commissioners ; and shall after approval by the Provincial 
 Secretary be paid out of the license fund for such city or 
 town ; and in determining such share of expenses the board 
 shall take into account with other circumstances, as far as 
 may be, the proportion of the expenses incurred in said city 
 or town (t^)]. 51 Vic. c. 30, s. i. 
 
 1.40« The following license duties for licenses issued 
 under and in pursuance of su)' sections 4 and 8, of section 
 99, of The Canada Temperance Act shall hereafter be 
 payable : (w) 
 
 For each druggist's or shop license in cities 
 
 towns 
 other munici 
 palities - 
 For each wholesale license in cities 
 " " " towns 
 
 " " " other municipalities. 
 
 49 V. c. 39, s. 8. 
 
 307 
 
 Payment 
 ofex- 
 
 f>«DBai of 
 loenie 
 dlitriot 
 where 0. 
 T. Aot is 
 in force 
 in part 
 only of 
 dUtiriot. 
 
 (( 
 
 (i 
 
 i< 
 
 II 
 
 $ 75 00 
 50 00 
 
 30 00 
 150 00 
 100 00 
 
 60 00 
 
 Duties 
 
 oenses 
 issued 
 under 
 see. 99, 
 snb-ss. 4 
 A8,of B. 
 B. 0. 0. 
 106. 
 
 ■ jiS «■■;.■>■■ 
 
 r. Aot in other 
 
 Mnnioipalities are by this olanse extended to oities in whioh the aeoond part of 
 that Aot is in foroe. See atib-aeo. 2. 
 
 (v) This is a new aeotion snbstitQted by 51 Yio., 0. 80, 8. 1, in liea of B.S. 0., 
 e. 194, 8. 149, by whioh it is intended to make provision for the payment of the 
 expenses in ease there happens to be a eity or town in whioh the 0. T. Aot is 
 not in foroe within the bonndAries of^a lioense distriot in whioh it is in foroe. 
 The lioense distriot nnder the Liquor Lioense Aot may embraoe saoh oity or 
 town, bat at the same time it may not be sabjeot to the provisions 
 of the 0. T. Aot, as a oity or town withdrawn from the oonnty for ManiOipal 
 purposes would not be affeoted by the by-law bringing the 0. T. Aot into 
 force in the oonnty. And so while one part of the lioense distriot is sabjeot 
 to the 0. T. Aot, another portion of it may be under the Lioense Aot. 
 
 (w) See leos. 41, 42 and 44, and notes thereto. See also seo. 12, as. 2. 
 
 
3o8 
 
 THE LIQUOR LICENSE ACT. [ss. 1 5 1, 1 5 2. 
 
 riN 
 
 ! ■ \ii I IHi 
 
 " * I " 
 
 f*' fti 
 
 
 AppUoa- 
 
 tionof 
 
 duties for 
 
 lioensiB 
 
 undttr 
 
 preceding 
 
 aeotiona. 
 
 lAl* [All sums received from duties on druggists' or 
 shop licenses and for wholesale licenses, issued in munici- 
 palities in which the second part of Tke Canada Temperance 
 Act is in force, and any sum paid by a municipality for or 
 on account of such expenses, as aforesaid, or by the Prov- 
 ince, shall form the license fund of the city, county or 
 license district respectively in which the said second part 
 of The Canada Temperance Act shall be in force, and shall 
 be applied, under regulations of the Lieutenant-Governor 
 in Council, towards payment of the salary and expenses of 
 the inspector, and for the expenses of the office of the 
 board of license commissioners and of officers, and other- 
 wise in carrying the provisions of the second part of The 
 Canada Temperance Act into effect, and the residue (if any) 
 on the 30th day of June in each year, and at such other 
 times as may be prescribed by the regulations of the 
 Lieutenant-Governor in Council, may be applied on 
 account of the expenses of the succeeding year, {x)^ 
 
 141^9. (i) In order to remove doubts it is hereby 
 declared that the share of the expenses of any license dis- 
 trict to be paid by any county council, and heretofore 
 estimated by the boards of license commissioners, and 
 which have been approved by the Provincial Treasurer or 
 Secretary, after deducting any sum payable by any city or 
 separated town, as hereinafter provided, shall be due and 
 payable by the county council, notwithstanding the use of 
 the words " whereby a by-law prohibiting the sale of intoxi- 
 cating liquors is in force " under The Canada Temperance 
 Act, or words of similar purport or meaning in any section 
 of this Act, are made to apply to the said Canada Temper- 
 ance Act, and as fully as though the same had read in lieu 
 thereof in each and every case " where the second part of 
 7 he Canada Temperance Act is in force," and it shall not be 
 necessary to make or approve another estimate or serve a 
 new copy or duplicate or demand, and the appointment of 
 commissioners and inspectors by the Lieutenant-Governor 
 
 (x) ThiB BMtion was rabstitated by 61 Vio., 0. 80, in lien of B. 8. 0., 0. 194, 
 a. 161, which wm (hereby repealed. 
 See aeo. 45 and notes thereto. 
 
 Proviaion 
 for pay- 
 ment by 
 munioi- 
 paUtiea of 
 expenaes 
 of Ilcenae 
 dlatriot in 
 wbioh 
 B. S. C. 0. 
 106 is in 
 force. 
 
S. 1S2.J 
 
 THE LIQUOR LICENSE ACT. 
 
 309 
 
 Of B. 8. 0., e. 194, 
 
 or t;he Lieutenant-Governor in Council heretofore made in 
 or for any county or district in which the said second part 
 of The Canada Temperance Act was at the time in force, 
 shall be as valid and effectual as though the statutes in 
 this section mentioned or referred to had read as herein 
 is provided. 50 V. c. 33, s. i. 
 
 (2) Where a city in which the second part of The Canada fj^ij^g 
 Temperance Act is in force and which is not a separate ^gjjjjf" 
 license district but forms part of a license district in which jjSli^or 
 the said second part of The Canada Temperance Act is also *o^ in 
 in force as to the whole or part of the said license district, ^S\ 
 
 11. o C 0. 
 
 and where a town is separated from the county and forms joeisin 
 part of a district in which the said second part of The 
 Canada Temperance Act is in force, as to the whole or part 
 thereof, the council of said city and of said town, respec- 
 tively, shall pay a just share of the expenses of the license 
 district of which it forms a part and such share shall be 
 separately estimated and determined by the board of 
 license commissioners, and shall, after approval by the Pro- 
 vincial Secretary, be paid into the license fund of the 
 license district of which said city or town forms part ; and 
 in determining such share of expenses the commissioners 
 shall take into account with other circumstances as far as 
 may be the proportion of the expenses of the district 
 incurred in said city or town. 50 V. c. 33, s. 4. 
 
 [ (3) When a license district is formed of part of a 
 county in which the second part of The Canada Temperance 
 Act is in force, or of part of two counties in which the 
 second part of the said Act is in force, or of part of a 
 county in which the same is in force and of a county or 
 part of a county in which it is not in force, the commis- 
 sioners for the district shall estimate the amount of the 
 expenses for the license year required for any such district 
 or portion of district in which the second part of the said Act 
 is in force as aforesaid, and after approval thereof by the Pro- 
 vincial Secretary and the service of a copy or a duplicate 
 thereof and of a notice in writing requesting payment of 
 the same, upon the clerk of the municipality, the an.ount 
 so estimated and approved sliall become due and payable 
 
■li j/: 
 
 
 I ;•! 
 
 »■■ w- i 
 
 f|1^ I 
 
 
 310 
 
 Payment 
 of portion 
 of ex- 
 pentM 
 oat of 
 con- 
 
 Mdidatad 
 revenne. 
 
 THE LIQUOR LICENSE ACT. 
 
 Is. 152. 
 
 into the license fund by the county at the time or times and 
 in the same manner as is provided for payment of the 
 amount of the estimates in other cases, and the same may 
 be recovered by the board of commissioners for the license 
 district as in other cases. 
 
 (4) Where a county has not paid an estimate made before 
 the passing of this Act in respect of any part of a county 
 which forms part of a license district, and which estimate 
 has been approved and where a duplicate or copy thereof 
 has been served as in this section mentioned, the board of 
 commissioners for the license district of which said part of 
 a county forms part may recover the amount of such esti- 
 mate from the county as in other cases.] 51 V. c. 30, s. 2. 
 
 [8. (i) Should the fines and penalties imposed under 
 or by virtue of the said Temperance Act of 1864^ or the 
 by-law bringing the same into force, or the said Canada 
 Temperance Act, and which shall be collected or recovered be 
 insufficient to meet the expenses aforesaid after the payment 
 of the salary and travelling expenses of any Police Magistrate 
 appointed under the Act passed in the 48th year of Her 
 Majesty's Reign, chapter 1 7, and the Act passed in the 50th 
 year of Her Majesty's Reign, chapter 11, or either of them 
 or under chapter 72 of the Revised Statutes of Ontario, 
 1887, the Treasurer of the Province may pay into the license 
 fund, out of the consolidated revenue, a sum not exceeding 
 one-^hird of the amount which the municipality shall be 
 required to pay for or on account of such expenses, as 
 aforesaid, over and above the fines collected or recovered. 
 
 (2) The treasurer of the County or other municipality 
 to which the fines are payable shall keep a Separate account 
 of the fines received, and also, of the amount paid or contrib- 
 uted by the municipality towards the expenses of enforcing 
 the Act, and the payment of the salary and expenses of any 
 Police Magistrate appointed under and by virtue of ar;y of 
 the Acts in this section hereinbefore mentioned ; and the 
 province shall not be called upon to pay any proportion of 
 the expenses so long as there is a balance at the credit of 
 the said account ] 51 V. c. 30, s. 3. 
 
[s. 152. 
 
 ne or times and 
 
 ayment of the 
 
 the same may 
 
 for the license 
 
 ite made before 
 rt of a county 
 which estimate 
 »r copy thereof 
 1, the board of 
 ich said part of 
 it of such esti- 
 I V. c. 30, s. 2. 
 
 imposed under 
 
 / 1864, or the 
 
 e said Canada 
 
 or recovered be 
 
 :er the payment 
 
 olice Magistrate 
 
 th year of Her 
 
 ssed in the 50th 
 
 either of them 
 
 utes of Ontario, 
 
 into the license 
 
 not exceeding 
 
 ipality shall be 
 
 expenses, as 
 
 or recovered. 
 
 er municipality 
 
 eparate account 
 
 laid or contrib- 
 
 ses of enforcing 
 
 jxpenses of any 
 
 irirtue of ariy of 
 
 ioned ; and the 
 
 y proportion of 
 
 at the credit of 
 
 ss. 152, I S3. J 
 
 THE LIQUOR LICENSE ACT. 
 
 3" 
 
 Pending 
 prooefl£ 
 mnnot 
 aifeoted. 
 
 Lioense 
 
 dlBtriot 
 
 inplaoes 
 
 where 
 
 theB.B. 
 
 0.100 
 
 iBin 
 foroe. 
 
 [4« Nothing in this Act contained shall invalidate any 
 estimate, approval thereof, or demand of payment, which 
 shall have been made before the passing hereof, but the 
 amount demanded shall be paid over by the municipality, 
 and payment thereof may be enforced as though this Act 
 had not passed ; nor shall anything in this Act contained 
 affect any action or suit or other legal proceedings now 
 pending but the same may proceed as though this Act had 
 not been passed.] (a) 51 V. c. 30, s. 4. 
 
 IAS* And it is further declared that the Lieutenant- 
 Governor in Council shall have the same power and 
 authority to create license districts when and where the 
 second part of The Canada Temperance Act is in force, as 
 under this Act, and where license districts are not or have 
 not heretofore been created or provided by the Lieutenant- 
 Governor in Council after the coming into force in any 
 county or city of the second part of the said Canada Tem- 
 perance Act, the license districts have been since the Act 
 passed in the forty-fourth year of Her Majesty's reign, 
 chapter 27, and are and shall be the same as under this 
 Act, immediately prior to the coming into force of the said 
 second part of The Canada Temperance Act, unless, or 
 where the same have been, or shall have been, or shall be 
 altered or changed by order in council or otherwise, and 
 then as they have been so altered or changed, and until 
 further order in that behalf. 50 V. c. 33, s. 2. 
 
 (a) These olatues nnmbered 8 and 4 are new provisiont introdnoed by 61 Vie. 
 c. 30, seoB. 8 and 4. 
 
 
312 
 
 THE CANADA TEMPERANCE ACT. 
 
 ■if'm 
 
 THE CANADA TEMPEBANGE ACT, 1878, AND AMENDMENTS 
 
 THERETO. 
 
 B. S. 0.. 0. 106, amended by 51 Vic, c. 34 (D.) ; 53 Vic, c 27 (D). 
 
 BUBHISBION OF ACT TO EIiECIORS. 
 
 !;) 
 
 J"*' 
 
 ''•■i 
 
 •■'■ 5'. 
 
 :m 
 
 Generally. 
 
 Held that the word " Gonnty " as aeed in the Aot meana County for Municipal 
 purposes and not for eleotoral purposes : B. v. Shavelear, 11 0. B., 727. 
 
 Where a part of the County consisted of Indian lands : Held that as it did 
 not appear that the votes of the eleotors on suoh lands were taken upon the 
 petition for the Aot, or that proper means were taken to enable them to exercise 
 their franchise, or that they were permitted to exercise it, the present pro- 
 oeedinKS did not properly bring the matter before the Court : Ih. 
 
 The adoption of the Aot is on the polling day : B. v. Daly, 12 0. B., 330. 
 
 Held, that Indian eleotors resident in the Township of Tusoarora, in the 
 County of Brant, being an Indian reserve, had no right to vote upon the question 
 of the repeal of the Aot in that County. 
 
 Semble, that as B. S. O., o. 6, s. 1, is to be interpreted as meaning that the 
 Townships named shall be Townships for Municipal purposes when it becomes 
 possible to make them such, as e. g.,\n suoh a case as the present, when Indians 
 become enfranchised. 
 
 The C. T. Act can have no operation where the Indian Act is in force. 
 
 B. S. C, e. 106, s. 12 refers to white men but not to Indians: re Metcalfe, 
 17 O. B., 867. 
 
 Held that the notice and petition required by sec. 6 of the C. T. Act, 1878, 
 must be deposited for public examination, as required by the Act, in the office 
 of the sheriff or registrar of deeds of or in the County, and that where there 
 are two registry offices in the County, it must be deposited either in the sheriff's 
 office or in both registry offices : in re Can. Tern. Act, 1878, and Co. Perth, 20 
 L. J. N. 8., 375 ; Sup. Ct. Dig., 61. 
 
 It was held that signatories to a notioe and petition bringing into force the 
 second part of the Aot had not, under the circumstances set forth, the right to 
 withdraw their acknowledged and deliberate signatures, or to have the same 
 withdrawn from the said petition : in re Can. Tem. Aot, 1878, and the Co. of 
 Kent, Sup. Ct. Dig., 62. 
 
 Serutiny of Vote*. 
 
 The County Judge, on a scrutiny, has only to determine the majority of votes 
 cast, on the one side or the other, by the inspection of the bdlots, and has no 
 power to inquire into offences against the Act, and allow or reject ballots as a 
 result of such inquiry, (Henry, J., dubitante) : Chapman v. Buid, 11 S. C. B., 
 812. 
 
 A County Court Judge will not be compelled by mandamut to inquire, on « 
 ■omtiny, as to personation, bribery, the status on the Voters' List of persons 
 voting: Re Canada Temperance Aot, 9 O. B., 164 ; S. C. 12 App. B., 677. 
 
 Informatioru and Convietioni. 
 
 An information which includes the three distinct offences, of keeping for 
 sale, selling and bartering intoxioating liquors which are prohibited by see. 99 
 
THE CANADA TEMPERANCE ACT. 
 
 313 
 
 [ENDMSNTS 
 
 of The 0. T. Aot, oontraveneB 88-88 Vio., 0. 81, b. 25, whioh provides that every 
 information shall be for one offence only ; bat snoh information may be 
 amended by striking oat all of the oflenoes ezoept one, and each amend- 
 ment may be made after the case is dosed and reserved for deoision : B. v. 
 Bennett, 1 0. B., 446 ; followed in B. v. Lee, 15 0. B. , 863 ; see B. v. Biohardson, 
 8 O. B., )51. 
 
 Where *.he defendant swore that he did not sell any intoxicating liqaor on 
 the day ohcrged, bat the recipient of some liqaor on that day named it in his 
 evidence for the defence, bat there was no evideace that it was an intoxicating 
 drink, the evidence for the Grown only shewing that it resembled intoxicating 
 liqaor: Heic'. that there was no reasonable evidence on whioh to foand a 
 conviction for selling intoxicating liqaor: lb. 
 
 The defendant was convicted of selling intoxicating liqaor contrary to the 
 G. T. Act apon an information charging him with keeping, selling, bartering 
 and otherwise anlawfally disposing of liqaor. He was adjadged to pay a fine 
 of 960 and 96.20 costs, and in defaalt of payment and of saffioient distress he 
 was adjadged to be imprisoned in the common gaol at hard labor. 
 
 A second record of the conviction, bearing the same date as the first, was 
 filed, differing in some minor points from the first, and omitting the adjadication 
 as to hard labor, and adjadging the payment of $6.27 costs. The proceedings 
 having been removed on etrtiorari : Held that the first conviction was bad for 
 want of jarisdiotion to impose hard labour, which was not authorized by the , 
 Act, and that the second was bad in not following the actaal adjudication as to ' 
 costB, which were, as shewn by the Magistrate's minute, 96.20 and not 96.27. 
 Held also that the conviction was bad for not shewing that the Aot was in force 
 and not proved otherwise, and, therefore, as the jurisdiction of the Magistrate 
 did not appear, the writ of certiorari was not taken away by sec. Ill of the 
 Act. But see B. v. Ambrose, 16 0. B., 261 po$t, p. 818. 
 
 Quare, whether the conviction was not also open to objection on the ground 
 that the information embraced more than one offence, and whether the Magis- 
 trate, having in this respect disregarded the express directions of the Act, 32-88 
 Vic, 0. 81, 8. 25, made applicable by the 0. T. Act, he might not be said to 
 have acted without jurisdiction : B. v. Walsh, 2 0. B., 206. 
 
 An information was laid against defendant on 28th Dec., for having, on 26th 
 Deo. sold intoxicating liqaor in violation of the 0. T. Act. Intoxicating liquors 
 were found on a search being made on 1st January in the bar of the hotel. On 
 this evidence the information was amended at the hearing on 6th January, so 
 as to charge the keeping and not the selling. The defendant was present at 
 the amendment and objected to it, bat waived an adjournment and entered 
 npon his defence. He was found guilty, and a conviction was drawn up for keep • 
 ing intoxicating liquor and returned to the Olerk of the Peace and filed on 17tii 
 January. On 27th January a second conviction was drawn up, the same in aU 
 respeots as the first, except that it was for keeping for sale intoxicating liquor. 
 This was also retunied and filed : Held that the Magistrate had power to draw 
 ap and return the second conviction, which was warranted by the evidence set 
 oat in the report of the case : Held also that there was no variance between the 
 evidence and the information to warrant an amendment, but that the evidence 
 discloaed a new offence, and the amended information became, in fact, a new 
 one, and the defendant, by his presence and by entering on his defence, waived 
 the service of a summons upon him : Held also that it was no objection to the 
 oonviotion that it was for keeping and selling, while the information charged 
 the keeping only : B. v. Bennett, 8 O. B., 46. 
 
 Held, Gameron, J., dissenting, that sec. Ill of The 0. T. Act, taking away the 
 right to certiorari, applies to convictions for all offences against the preceding 
 BwticiiB of the Act: B. v. Wallace, 4 0. B., 127. See B. z>. Walker, 18 0. B., 
 88, cited poit, p. 816. 
 
 Per Hagarty, 0. J. and Armour, J., an erroneous finding on the evidence, by 
 
 *}. 
 
 f 
 
 I ' 
 
 '11 
 
 
m 
 
 11 
 
 3'4 
 
 THE CANADA TEMPERANCE ACT. 
 
 :i.-( 
 
 k .? 'l 
 
 f' f *li I 
 
 th« MagiitMto, wbioh wm all that mw fditwa Imm, !■ not soeh a want of 
 jariidietion aa wanrants the isaae ot m eerUamri : Jb. 
 
 Per Cameron, J., where there was on the fketi let out no evidenoe of the 
 oommiBsion of the offenoe charged, the MaRiatrate aeted without joriadiotion 
 and a certiorari would lie : lb. 
 
 Per Armour, J., the omiaaion of the Magiatrate to aak aeonaed whether he 
 had been previoualy eonvieted did not deprive him of juriadietion to reeeive 
 proof of the prior oonviotion : Ih. 
 
 The allegation in. the oonviotion that the offenoe waa committed between 80th 
 June and Slat July, waa auffioienti; certain ai to time : lb. 
 
 If a double offence ia charged in aa information, the Magiatrate baa power to 
 drop one and proceed with tiie other. But where the information waa " for 
 aeUing liquor," and the conviction for " aelling intoxicating liquor and having 
 hotel appliancea in the bar-room and fKremiaea :" Held that a aecond offence 
 under aeotion 118 ot The 0. T. Act, waa not embraced in the worda need : B. v. 
 Klemp, 10 0. B., 148. 
 
 An information under the "Scott Act" can be laid before one Juatice, 
 although two muat try the caae : lb. But aee next caae. 
 
 It ia imperative under aee. lOS, that an information thereunder be laid before 
 two Juatioea, and that they both ba named in the anmmona. Where, therefore, 
 a anmmona atated that an information had been laid only before the Justice 
 Vho aigned it, and yet called upon the defendant to appear before another 
 named Juatice aa w^ : Held, that the Juaticea had no jiuriadiction, and that 
 the defendanta appearing before them did not confer it. The conviction was 
 therefore quaahed : B. v. Bamaay, 11 0. B., 210, followed in B. v. Johnson, 
 18 0. B., 1. But not followed in B. v. Damion» 14 a. B., 672, in which it was 
 held that the name of th» Juatice who waa not a party to the aummona need 
 not be inserted in it. 
 
 Whore the expression used is the information waa " disposal," and in the 
 conviction " aala," there waa held to b» no variance between them, and if there 
 had been, an amendment of the iaformatioa would have been made under sees. 
 116, 117, 118 of the 0. T. Act, 1878 : B. v. Hodgiaa, 12 0. B., 867. 
 
 Held that sec. 122, aa. 2, of the C. T. Act, 1878, doea not diapenae with 
 atriot proof by production of Aa original record or othaiwiae of previous eon- 
 vietiona where it ia aonght to impoae tha increaaad penalty under 
 sec. 100, and that the. certificate mentioned in the section can only be admitted 
 aa proof of the number of such eonviotiona. 
 
 The defendaol waa charged witii aelling liquor oonteaiy to the proviaions of 
 the 0. T. Act, 1878 ; the iafcMrmalion charged a previooa conviction for an 
 offenoe under the aaid Aot, aa follows: "Tha informant aaya that the said 
 James Kennedy waa previonaly convicted of an offence againat the aaid Aot." 
 A certificate by the convicting Magiatrate of a prior conviction waa put in at 
 the trial under seo. 122, as. 2, for the purpose of proving sAoh previous con- 
 viction. Held that the proof tha faal set oat in the report oonatituted no 
 evidence of any offence, and that the Police Magiatrate had therefore no jaris- 
 diction, and the right of cmtiofari waa not taJcen away : B. v. Kennedy, 10 
 O. B., 896. But aee next caae. 
 
 The defendant having been aummoned for selling liquor contrary to the 
 second part of the 0. T. Act, appeared with hia counsel at the hearing and 
 pleaded not guilty, when evidence waa given for the proaecution jnatifying a 
 conviction ; but at the defendant's request an adjournment was granted. At 
 the adjourned hearing, at which neither detmdant nor hia counsel appeared, 
 evidence was given of the service of the summona and of the facts that trans- 
 pired at the prior hearing, and certificates of two prior oonvictions were put in 
 and the identity of the defendant proved. The d^endaat waa found guilty and 
 convicted of a third- offenca againal tha.AiOt : Held, that the defendant, having 
 
THE CANADA TEMPi£RANCE ACT. 
 
 315 
 
 sneh a want of 
 
 itted between 30th 
 
 lore one Jastice, 
 
 onoe IumL the opportonity to defend, could not by hie failate to appear at the 
 adjonmed hearing defeat the adminietration of jostioe, and therefore he waa 
 properly found gvdlty in hie abaenoe. 
 
 Held, also, that proof of the former oonTiotions by the oertifloatee was enffi- 
 eient, and npon thia qoeatioo the laat oaae waa not followed : B. v. Kennedy, 
 17 0. B., 169. 
 
 Held that under aeo. 138 of the 0. T. Aot, 1878, by whioh the aoouaed ia 
 made a competent and oompellable witneaa, he ia not bound to criminate 
 himself : B. v. Halpin, B. v. Daly, 19 O. B., 880. But aee oaaes following : 
 
 Held, that under sec. 138 of the 0. T. Act, 1878, a defendant is compellable, 
 when called as a witness, to answer qnestionB, even though tending to criminate 
 himself. Where an order qnaahing a conviction ia made upon default of any 
 one appearing to anpport it, the effect of quashing it, not only involving the 
 leatoration of the fine paid by the defendant, but ezpoaing the convicting 
 Magiatrate to an action, there ia inherent jurisdiction in the Oourt to open up 
 sac^ order so made. 
 
 The jurisdiction of the Oourt to rehear motions to quash convictions has not 
 been taken away by the Judicature Act, bat still exists in the Divisional Courts : 
 B. V. Halpin, 13 O. B., 880, not followed : B. o. Fee, 18 O. B., fi90. 
 
 The defendant was convicted before the Police Magistrate of the town of S, 
 for unlawfully keeping for sale intoxicating liquor, etc., at the said town con- 
 trary to the C. T. Act, 1878. The depositions were to the effect that the liquor 
 was found upon the premises of the defendant in the said town : Held, that the 
 local jurisdiction of the Police Magistrate sufficiently appeared : B. v. Doyle, 
 13 0. B., 847. 
 
 Held, that a search warrant ia a proceeding to sustain a charge made for an 
 offence committed against the Ast, and not a proceeding taken upon which to 
 found a charge to be made in ease liquor is found on the premises (but see next 
 ease). Held, however, that atthoogh the search warrant was illegally iaaued, 
 the evidence obtained under it waa admiaaible against the defenduit : lb. 
 
 An information charging defendant with having sold intoxicating liquor was 
 laid before two Justices of the Peace, and immediately afterwards a further 
 information to obtain a seaoh warrant was sworn by the same complainant 
 before the same two Justioea. Thereupon a warrant to search the premises of 
 the defendant was issued under the hand and seal of one only of the two 
 Jastioes. Upon search being made, three bottles were found, each containing 
 intoxicating liquor, and it was shewn that there were also found in defendant's 
 house other bottles, some decanters and glasses, and a bar and counter. 
 
 On the day following the search the complainant laid a new information 
 before the same two Justices of the Peace, chMging the defendant with keeping 
 intoxicating liq,a>rior sale. Upon the hearing, the constables who executed 
 the search warrant were the only witnesses examined, and on their evidence the 
 defendant was convicted. 
 
 Upon motion to quash the search warrant and conviction : 
 
 Held, that sections 108 and 100 of the Act, were intended to provide process 
 in rem, for the confiscation and destruction of liquor, in respect of which a use 
 prohibited by the Statute was behig made and not to provide a means of 
 obtaining evidenoe on whieh to found a prosecution or support one already begun. 
 
 Held, also, that the warrant in this case was illegal because issued by one 
 Justice only. 
 
 Held, also, that the operation of sec. Ill of the Act, in taking away the right 
 to ctrHorari, is eonfined to the ease of convictions made by the special officials 
 named in the section. 
 
 Held, alao, that the presumption of keeping liquor for sale created by sec. 
 119 of the Act arises od^ wheN the applianoae for the sale of liquor, mentioned 
 
 
 1 
 
 m 
 
 i. 
 
 'A' 
 
iff]} ^TWMIliil 
 
 
 n 
 
 316 
 
 THE CANADA TEMPERANCE ACT. 
 
 , ll 
 
 
 
 twM 
 
 t 1 
 
 1 ' 
 
 ?fffi 
 
 in the Motion, together with the liqaor, are foand in Manieipalities in which a 
 prohibitory by-law pMied under the proviaioni of the 0. T. Aot is in furoe. 
 
 As it appeared that in this ease the seareh warrant had been issued and the 
 defendant's premises searched for the mere purpose of possibly seouring evidence 
 upon which to bring a proseoution, the Justices of the Peace and the informant 
 were ordered to pay the defendant's costs : B. v. talker, 18 O. B., 8B. 
 
 Held that before a search warrant can issue under sec. 108 of the Act, some 
 offence against the provisions of the Act must be shewn to have been committed 
 and that the information for a search warrant and the evidence in this ease 
 shewed such a previous offence to have taken place. 
 
 Held also that the finding of a barrel of beer connected with a beer pump 
 and all the usual appliances for sale of liquor on defendant's premises was 
 evidence of a keeping for sale, without reference to the special provisions of 
 sec. 119 of the Aot (see next ease). The fact that the search warrant was 
 executed by the informer, who was idso chief constable, was held not to be a 
 ground for quashing the conviction: B. v. Hefleman, 18 0. B., 616. 
 
 The defendant was charged with the offence of keeping liquor for sale con- 
 trary to the provisions of the second part of the 0. T. Aot. Evidence was 
 given of the finding of certain appliances mentioned in see. 119. 
 
 Helv, that apart from the presumption created by that section upon the 
 finding of snoh appliances, such finding was evidence of a keeping for sale, of 
 the weight of which the Magistrate was the proper judge. 
 
 The Magistrate at the close of the case made a minute of adjudication, in 
 which he stated that he found the defendant guilty and imposed a fine of 950 
 and costs, to be paid by a date named, and awarded imprisonment for' 80 days 
 in default of payment. Afterwvrds when drawing up the formal conviction, 
 the Magistrate adopted the form 1 1 in the Schedule to the Summary Gonvio- 
 tions Act, directing that in default of payment by the day named the penalty 
 should be levied by distress and sale, and awarding imprisonment for 80 days 
 in default of suffident distress. 
 
 Held (1) that the oonviction in the form 1 1, was the proper conviction to be 
 made under the combined provisions of sec. 107 of the 0. T. Act and sees. 42 
 and 67 of the Summary Convictions Aot, and not form I 2, to which form the 
 minute of adjudication apparently pointed. (3) That the conviction was open 
 to the objection that it did not correspond to the minute of actual adjudication, 
 and therefore could not be supported for want of jurisdiction in the Magistrate 
 to make it. See B. v. Higgins, 18 0. B. 148, poit p. 819. (8) That under sees 
 117, 118, the Ooort, upon motion to quash might dispose of uxe case upon the 
 merits, upon the material returned with the eerHorari, and that in this case the 
 oonviction, being warranted by the evidenoe, ought to be affirmed and the 
 minute of adjudication aucendeid so as to conform to it : B. v. Brady, 13 0. B., 
 868. 
 
 The fact that the second part of the 0. T. Aot is in force in any Oounty must 
 be proved like any other fact necessary to give jurisdiction : B. v. Elliott, 12 
 O. B., 634. But see B. v. Ambrose, 16 O. B., 361, po$t p. 836. 
 
 Held, that it was not necessary, in case of oonviction, to serve the defendant 
 with a minute of the conviction, as sec. 63 of 81 and 83 Vic, 0. 81, (D), only 
 requires such services in case of an order, and that defendant must take notice 
 of tibe conviction at her peril : B. v. Sanderson, 13 0. B., 178. 
 
 Where it was alleged that too large a sum had been charged for costs, it was 
 held that the oonviction being regular on its face, and not shewing any excess 
 of jurisdiction, such an irregularity (even if it existed), could not be enquired 
 into on an application for prisoner's release : lb. 
 
 The Gourt refused to quash a oonviction on the ground that one of the con- 
 victing Magistrates had not the neoassaiy property qualification, the defendant 
 
THE CANADA TEMPERANCE ACT. 
 
 317 
 
 not having negatived the Magistrate's being a person within the terms of the 
 exoeption or proviso of seo.)7, 0. 71, B. S. 0. : B. v. Hodgins, 12 0. B., 867. 
 
 A buyer of liqaor oannot in respeot of a sale thereof made to him, be regarded 
 as an aider, abettor, oounsellor, or prooarer, so as to oome within see. 15 of 
 32-38 Yio , 0. 81, (D), and render that section applicable to an offenee under 
 the 0. T. Act : B. v. Heath, 18 0. B., 471. 
 
 The omission of the names of the Justices from the summons was held to be 
 no objection where the complaint was tried before the Justices before whom the 
 information was laid : B. v. Bamsay, 11 0. B., 210, distinguished ; B. v. 
 Sproule, 14 0. B., 876. 
 
 The Justices properly refused U Jlow the disclosure of the source of infor- 
 mation on which the comprint w is founded, but by their refusal to allow a 
 Magistrate sitting on the case, who was called as a witness to be sworn, and to 
 allow the cross examination of the Inspector, in reference to his communication 
 with one of the Magistrates (who was said to be a member of a '* Scott Act " 
 Association) and oti^er members of the Association, the defendant was deprived 
 of the right of making a full defence as authorized by sec. 80 of 82-88 Vic, 
 0. 81, (D), and the conviction therefore must be quashed : lb. But this decis- 
 ion was not followed in B. v. Brown, 16 0. B., 41, cited p. 820, put. 
 
 Where the information was laid before two Justices and the summons issued 
 by one of them : Held, that the defendant, by appearing upon the summons, 
 waived the irregularity : Held, also, that an objection that the conviction did 
 not shew upon its face the absence of either of the Justices before whom the 
 information was laid, nor the assent of the other that another Justice should 
 sot or take part in the prosecution, was one of form merely, against which sees. 
 117, 118 sufficiently provided ; and even without the aid of such sections it 
 was doubtful whether the objection could prevail : B. v. Collins ; B. v. Qoulais, 
 14 0. B., 618. 
 
 A summons recited the information which was taken before two Justices, to 
 have been " laid before the undersigned," who was one of tiie Justices only, 
 and required the defendant to appear before him, or before the Justices who 
 ghoiUd be a* the time and place named to hear the complaint : Held, that the 
 name of the Justice who was not a party to the summons need not be stated in 
 it (R. V. Bamsay, 11 0. B., 210 ante, p. 814, not followed on this point), and 
 that although the summons did not conform to the facts, yet as the two Jus- 
 tices who took the information were both present at the hearing, and the 
 defendant was convicted on the merits, the objection to the summons was not 
 entitled to prevail under B. S. C, 0. 178, s. 28 : B. v. Dumion, 14 0. B., 672. 
 
 The defendant was convicted of having sold intoxicating liquor contrary to 
 the provisions of the 0. T. Act, the conviction stating that he was formerly 
 convicted of a first and secood offence and that this was the third offence. The 
 certificate produced to prove the prior convictions, simply stated that Elias Olark 
 was convicted as for a first and second offence against ue Oanada Temperance 
 Act, 1878, setting forth the dates of the convictions, but not stating tiie nature 
 of the offences, or whether against the first or second part of the Act : Held, 
 that there was no power to punish as for a third offence unless there have been 
 two prior convictions for offences of the same nature, and as neither the record 
 of conviction nqr the evidence shewed this, the conviction must be quashed. 
 
 Senible, that if the conviction wete well drawn, the similarity of name of the 
 person mentioned in the certificate and the defendant would afford proof of 
 identity : B. v. Clark, 16 0. B., 49. 
 
 The language of sec. 116 requiring that the Magistrate " shall in the first 
 instance enquire concerning such subsequent offence only, and if the accused 
 is found guilty thereof he shall then, and not before, be asked whether he was 
 80 previously convicted," is peremptory ; and to give a Magistrate jarisdiction 
 thereunder to enquire as to a previous conviction he must first find the accused 
 
 II* 
 
 
 ■■'f V 
 
" 
 
 3i8 
 
 THE CANADA TEMPERANCE ACT. 
 
 \. 
 
 goilty of th« allaged rabsequMit offeoM. Whui thii wm not don* the eonvio- 
 tion WM qoMhM : 
 
 Suan, wbather » oartifloatoof a pnvioai oonviotion ii raffloiaDt prima faeie 
 •noe of idiotity of the Moased wilh the person of the MMne name lo pre- 
 Tioaely oonTioted. 
 
 Informatione and oonviciiona should be drawn with care ao as to epeeify that 
 the offence is against the $eeoHd part of the Statute : B. v. Edgar, 15 0. B., 
 142. But see next case. 
 
 It was held that the fees to be paid witnesses in prosecutions such as this 
 are not established by any law, and such are allowed, under seo. 06 of the Sum- 
 mtiry Oonviotions Act, as to the Justice seems reasonable ; and that the 
 Magistrate did not exceed his jurisdiction by ordering the defendant to pay $3 
 as bis))eotor's fee, and 12 for an interpreter (as an interpreter may properly be 
 treated, as a witness), and 11 Justice's costs. In any case, however, the award 
 of costs was within the jurisdiction of the Magistrate, and etrtiorari would not, 
 therefore, lie; and the erroneous allowance of certain items of costs would not 
 warrant Uie quashing of the oonviotion. 
 
 Held, also, that the provisions of sec. 116 are directory only, and when the 
 information specifically charged that the defendant had been previously con- 
 victed under the Act, and the affidavit filed by the defendant did not deny the 
 fact, but only the evidence of it, it was held that the question whether the 
 defendant haid been previousW convicted or not was a matter within the jnria- 
 diction of the Magistrate, and his finding as to it was conclusive : B. v. Brown, 
 16 0. B., 41. 
 
 Under the G. T. Act there is no power to order imprisonment at hard labor ; 
 and, 
 
 Quare, whether there was power to order defendant to pay a sum for two 
 days* attendance of the Inspector and his mileage : B. v. Tucker, 16 0. B., 127. 
 
 Held that a conviction was bad and must be quashed, because in the award 
 of punishment it was direrted that each of the defendants should pay hi^ the 
 fine and costs and that in default of distress the defendants should be im- 
 prisoned, and under such award oiie of the defendants, having paid his half of 
 the fine and costs, might be imprisoned for the other's default ; and this defeat 
 was not cured by sees. 67 and 68 of the Summary Convictions Act : B. v. 
 Ambrose, 16 0. B., 261. 
 
 Where the defendant did not appear on the day appointed in the summons, 
 but the day before sent another person to the Magistrate to try and arrange the 
 matter, and the latter pleaded gidlty to the information without authority, upon 
 which the Magistrate oonvisted ue defendant in his absence, and without 
 holding any Court or calling any witnesses, the conviction was quashed : B. v. 
 Bdgar, 17 O. B., 188, cited fully in note (a) to sec. 242, ante,.p. 106. 
 
 A summons was served by leaving it with defendant's wife at his hotel 
 The defendant did not appear, but on the constable proving on oath the manner 
 in which the summons nad been served, the P. M. proceeded e* parte to hear 
 and determine the case, and convicted the defendant and imposed a fine. The 
 defendant at the time of the service of the summons, was in the States as a 
 witness at a trial there, and there was no evidence that his wife was informed 
 by the constable of the purport of the summons, while the defendant stated 
 that he knew nothing of the matter until four or five days after the conviction 
 had been made, when he received a letter from his vdfe stating that some 
 Magistrate's papers had been left for him at the hotel. 
 
 Held, that under sec. 89 of the Summary Convictions Act, there must in saoh 
 cases be evidence before the Magistrate, that a reasonable time has elapsed 
 between the service of the summons and the day appointed for the hearing, and 
 there being no such evidenoo here, the Magistrate acted without jurisdiction 
 
 m.0 
 
THE CANADA TEMPERANCE ACT. 
 
 3»9 
 
 doo« th« eontio- 
 
 nl At hwd Ubor ; 
 
 and th* oonTioMon mxui b* qiiMh«d t B. v. Bjtn, 10 0. B., 954, ormrralad ; 
 B. V. MabM, 17 0. B., 194. 
 
 It ii not DMMMuty to oiurg* thftt th« offenes wm oommittad through the 
 initrainantallty of a elork, Mrvant, or agmt, m the defendant !■ guilty onder 
 860. 100 end liable to the penaltiei impomd if the oflenoe is committed by him> 
 aelf or anyone within the clasi of penona mentioned. 
 
 At the trial a lease from defendant to one J. was put in, and the execution 
 proved by a witness, of two rooms in defendant's hotel being where the bar was 
 kept and liquor sold, but neither defendant nor J. appeared as a witness at the 
 trial and there was no evidence as to its bona ftdet. Held, that this was a 
 matter for the Magistrate, and as he found against it the Oourt could not 
 interfere : B. v, Alexander, 17 O. B., 468. 
 
 Where the adjudication and minute of conviction did not award distress, but 
 provided that in default of payment forthwith of fine and costs, imprisonment, 
 while the conviction ordered in default of pa[rment forthwith, distress, and in 
 default of sufficient distress, imprisonment : Held, following B. v. Brady, 12 0. B., 
 868, 860, 861, that the conviction was bad : B. v. Higgins, 18 0. B., 148. 
 
 Held that there was no power under the Act to include the costs of commit- 
 ment and conveying to gaol, and a conviction imposing a fine of 9100 and 
 directing distress on non-payment of the fine, and in default of sufficient 
 distress imprisonment for two months unless the fine and costs including the 
 costs of commitment, Ac, were sooner paid was quashed : B. v. Tucker, 16 0. B., 
 127 ; and B. v. Good, 17 0. R., 726, followed ; B. v. Ferris. 18 0. B., 476. 
 
 A prosecution under the Act was commenced by two Justices of the Peace 
 and a summons issued. On the return of the summons, on the application of 
 the defendant, the two Justices were served with a subpoena to give evidence 
 for the defendant on the hearing ; whereupon two other Justices (the respond- 
 ents), at the request of the Justices who began the proceedings, under the 
 provisions of sec. 105 of the Act, heard the case and convicted the appellant. 
 The first Justices, though present in the Gourt-room as witnesses, took no part 
 in the proceedings, but they issued a warrant of commitment under which the 
 appelant waa impriaoned : Held, that as the conviction waa good on ita face, 
 nntU aet aaide, it waa a juatificaiion for the Justices for anything done under 
 it. Held, also, that upon the facta diacloaed the two Justices who issued the 
 ■nmmons were " absent " within the meaning of sec. 106 of the Act : Byrne v. 
 Arnold, Sup. Ot. Dig., 58. 
 
 ^iiMiuIm«ttt. 
 
 An amended oonvietion cannot be put in after the return of the writ of 
 eertiorari : B. v. Maokenaie, 6 O. B., 166. 
 
 Where a conviction did not on its face shew that the Act was in force, the 
 Court, on the merits, allowed the return to be amended so as to shew jurisdic- 
 tion, and for this purpose allowed a further return of the " Qazette " produced 
 as an exhibit but not filed : B. v. ISlliott, 12 0. B., 624. 
 
 An amendment of the original information by changing the date of the 
 offence from the 10th to the 28rd of February, where the parties agreed that 
 the evidence taken should stand for the purposes of the amended charge, 
 instead of having a needless repetition of it, was held to be unobjectionable, 
 and the defendant's application was refused with costs : B. v. Hall, 12 P. B., 
 142. 
 
 DUquaUfi/ing Interest in Magistrate. 
 
 See R. V. Klemp, 10 O. B., 148, dted in note {g) to see. 95 ; followed in B. 
 z/.EU, IOO.B.,727. 
 
 The calling of a Magistrate sitting on a case as a witness, does not itself dis- 
 qualify him from further acting in the ease : B. v. Spronle, 14 0. B., 875. 
 But see next caae. 
 
 It 
 
 '1 ., ! 
 
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 3*0 
 
 THE CANADA TEMPERANCE ACT. 
 
 
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 H-h> 
 
 1. It WM oontMidtd that th« Magittrato htd • diiqa»lifTing intorMt. beomie be 
 had employed and paid agente to secnre oonTiotioni under the Act, and beoause 
 he was a etrocg temperance advocate with an alleged biai in favor of the 
 proMcation in oaeei under the Act. It was not shewn that he was interested 
 or engaged in promoting or directing the proiecution of this offence, or defraying 
 the expeniei of it, or paying agents for evidence to be given npon it : Held, 
 that the statements were of too loose and vague a character to support a finding 
 that the Magistrate was disqualified from sitting. 
 
 2. At the hearing the defendant attempted to shew by witnesses that the 
 Magistrate had a disqualifying interest in the case, but the Magistrate refuBed 
 to admit such evidence : Held, that the evidence was inadmissible, and even if 
 admissible, the rejection of it would not afford ground for quashing the convic- 
 tion : R. V. Sproule, 14 0. R., 876, not followed ; R. v. Brown, 16 O. R., 41. 
 
 Ptnalty and PunUhnunt. 
 
 Notwithstanding Fitzgerald v. MoEinlay, 21 L. J. N. 8 , 299, the informer 
 may be entitled to half of the fine : R. v. Elemp, 10 0. R., 148. 
 
 Sees. 67 and 62 of the Summary Oonvictions Act, which form part of the G. 
 T. Act, authorize imprisonment not exceeding three months in default of 
 sufBcient distress : R. v. Doyle, 12 0. R., 847. 
 
 Quart, whether for a third offence under the 0. T. Aot, a fine of flOO cannot 
 also be imposed in addition to imprisonment : 16. 
 
 The Magistrate ordered the defendant to pay $1 for the use of the hall for 
 trying the case, and also condemned him, in default of distress, to imprisonment : 
 Held, that in ordering payment of this sum Uiere was a dear excess of jurisdic- 
 tion, and that ordering distress, etc., was a further excess, and that the matter 
 was one of principle and not of form, and the conviction was quashed : R. v. 
 Wallaoe, 4 0. R., 127, and R. v. Walsh, 2 O. R., 206, commented on ; R. v. 
 Elliott, 12 0. R.. 624. 
 
 Under the 0. T. Aot, sec. 100, convicting Justices may inflict a reasonable 
 penalty in excess of $50. Remarks as to their discretion in so doing. A 
 penalty of t60 allowed to stand : R. v. Oameron, 16 O. R., 116. But see next 
 case. 
 
 The words " not less than 960 " and " not less than 9100," in sec. 100, 
 should be construed as " 960 and no less " and " 9100 and no less," aud s 
 summary conviction by a P. M. for a first offence against the Act was quashed 
 because the penalty imposed (976) was beyond the jurisdiction of the Magistrate 
 (Falconbridge. J., dissenting) : R. v. Gameron, tupra, not followed ; Simpson 
 qui tarn v. Pond, 2 Ourtis, 602, referred to and approved : R. v. Smith, 16 0. R., 
 464. 
 
 The effect of sec 107 of the 0. T. Act was to incorporate into it the present 
 sees. 62 and 66 of R. S. 0., c. 178 : R. v. Doyle, 12 O. R., 847. The present 
 sees. 64 and 67 must also be treated as incorporated ic*o it. The result is to 
 enable the Magistrate to order the levy by distress of the penalty and costs, 
 to dispense with such levy, where he thinks it would be useless or ruinous, and 
 to order the defendant to be imprisoned for a term not exceeding three months, 
 unless the penalty and costs, and also the costs and charges of tiie commitment 
 and conveying the defendant to prison, are sooner paid : Mechiam v. Home, 20 
 0. R., 267. 
 
 Jurisdiction and Authority of Police Magiitrate. 
 
 A Police Magistrate appointed for a County, as constituted for the purposes of 
 representation in the Ontario Legislature, is not a Police Magistrate for a town 
 situated wholly within such county, (Armour, J., dissenting) : R. v. Toung, 
 18 O. R., 198 : followed in R. v. Bradford, 18 0. R.. 785 ; not followed in R. v. 
 Roe, 16 0. R., 1, cited pott, pp. 821, 822. 
 
 A Police Magistrate had a commission for the Oonnty of Halton, and an 
 
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THE CANADA TEMPERANCE ACT. 
 
 3!»I 
 
 ae of flOO oannot 
 
 Halton, and an 
 
 indtpandMit and rabaaqoMit oommlMion for tho town of Okkrillo ; h« took the 
 infonnfttion, and part of tho aTidnifle at Ooorgatown, and then adjoarned to 
 OakTilie, and rabMqa«ntly baok to Oitorgetown, where he adiodloatea npon the 
 eWdenoe and made the eonviotion : Held, following R. v. Riley, 19 P. »., 98, 
 that the Magiitrate had joriedietion to eit in Oakville under hie oommiMion as 
 Polioe Magiitrate for the coonty, and he ooneeqaenkly had jnriidietion to 
 adjoom ae he did : B. v. Olark. 15 O. B.. 49. 
 
 K'l oommiiaion was iiraed on 12th January and appointed him P. M. in and 
 for the Oounty of Oxford. It wae contended that W. and I., two towns in the 
 County, etch nad a pop. of more than 0,000 inhabitants, so as to have, by law, 
 eaoh a P. M., which, it must be presumed, was the case ; and, therefore, K. 
 could not be P. M. for the oounty which included these towns, as there could 
 not be more than one P. M. for the same Oounty : Held, that there was no 
 judicial knowledge of the fact of such towns containing such population, 
 and no knowledge of it by atfldavit or otherwise ; that even if there was 
 more than one P. M. the other might have been appointed subsequently to E., 
 and the appointment of such other and not K. woiud be void : B. v, Atkinson, 
 10 O. B., 110. 
 
 Defendant was, in the village of Parry Sound, convicted by the Stipendiary 
 Magistrate for the district of Parry Sound for a sale in the Township of Hum- 
 phry of intoxicating liquor contrary to the 0. T. Act, 1878 : Held, that the 
 Township of Humphrey was within the territorial limits of the Oounty of 
 Simcoe, and that the Act being in force in tLat Oounty was in force in the 
 Township of Humphrey. 
 
 Judgment of Armour, J., in B. v. Shavelear, 11 0. B., 727, qualified : Held, 
 also, that the Township of Humphrey formed also part of the district of Parry 
 Sound for certain judicial purposes, and the Stipendiary Magistrate for the 
 district had jurisdiction to try offences against the 0. T. Act in that Township : 
 B. V. Monteith, 10 0. B., 290. 
 
 On 17th Not., 1886, G. was appointed P. M. for the Oounty of Brant, exdu- 
 sive of the Oity of Brantford, during pleasure : Held, by Bobertson, J., that he 
 bad authority to hear and determine a complaint charging an offence in the 
 Township of South Dumfries, in the Oo. of Brant, at the city of Brantford. 
 Held, also, that the commission was properly issued during pleasure, and that 
 it was not necessary under sub>sec. (b), sec. 108, that the town of Paris should 
 be excluded from the operation of the commission ; but qutere, whether the 
 F. M. could try an offence arising within such town. Held, also, that the P. 
 M. was not required to exercise the functions of his office at a Police Oourt set 
 apart and appointed by law therefor, and under 48 Vic, c. 17, s. 4 (0.), he 
 had the right to occupy the Oourt room. 
 
 Quare, whether it was intended that he should hear the complaint, or whether 
 there was power to give altematiTe jurisdiction to do so ; but this was not a 
 ground for prohibition. 
 
 Held, also, that the appointment of the P. M. is not ultra vire$ of the Legis- 
 lature of Out : B. V. Bennett, 1 0. B., 440, followed ; on appeal to the Divisional 
 Oourt the judgment wai affirmed : B. v. Lee, 10 0. B., 808. 
 
 The words " being within the jurisdiction of such Justice " in sec. 18 of the 
 Summary Gonvictions Act refer to the time when the offence was committed, 
 and not to the time when the information was laid : B. v. Bachelor, 10 0. B., 
 641. See notes on pages 194 and 218, antt. 
 
 A person having a commission as a P. M. for the County of H., such com- 
 mission not excluding the town of W., and also having a separate commission 
 (or the towns of W., 0., G. and S., respectively, all being in the Oounty of H., 
 convicted the defendant at W. of an offence against the Act committed at W., 
 but upon an information taken before him at C: Held, having regard to the 
 provisions of see. 103b of the 0. T. Act, B. 8. 0. c. 106, and of B. S. 0. c. 72, 
 8. 11, that the Magistrate had jurisdiction by virtue of his commission for the 
 
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 322 
 
 THE CANADA TEMPERANCE ACT. 
 
 Oonnty over the offence eommitted at W., and had also jariadiction by Tirtae 
 thereof to take the information and isaae the aammons at 0., and the faot that 
 he deaoribed himaelf in the information and anmmona aa PoUoe Magiatrate for 
 the town of W. did not deprive him of the jariadiotion which he had aa P. M. 
 for the Ooanty : B. v. Yoang, 18 0. B., 198, not followed. 
 
 Qumre, whether the defendant coald object to the regularity of the informa- 
 tion and aummona, he having appeared in obedience to the anmmona, and 
 pleaded not guilty : B. v. Boe, 16 0. B., 1. 
 
 The defendant waa convicted by two Jasticea of the Peace of the diatriot of 
 M., for aelling liqaor at the village of B., in the Diatrict of M. The Act waa in 
 force in the village of B. only by reaaon of ita being for monicipal pnrpoaea 
 within the Ooanty of Y., within which Ooanty the Act waa in force, and there 
 waa no evidence to shew that the Act waa in force in the diatrict of M., within 
 which B. waa aitoated : Held, that the Jnatioe of the Peace of M. diatrict had 
 no jariadiotion to convict the defendant, for he coald only be convicted by 
 Jaaticea of the Peace whoae commiaaion ran with Y. ooanty : B. v. Higgina, 18 
 O. B., 148. 
 
 The defendant waa the aalaried Police Magiatrate for the Ooanty of 0. in 
 which the Act waa in force prior to llth May, 1889, when it waa revoked. 
 
 On llth January, 1889, the plaintiff waa convicted of a aecond offence and 
 adjudged to pay a fine of $100 and 912.06 ooata. 
 
 On the 20th March, 1889, the defendant iaaued a warrant of commitment 
 reciting plaintiff 'a conviction before him and the impoaitiqu of the fine tni costs, 
 declaring that the plaintiff had no cha^tela, and directing her committal to gaol 
 for 60 daya " unleaa the aaid aeveral anas and all the coata and chargea of the 
 aaid diatreaa and of the commitment and conveying the aaid N. M. to the aaid 
 eommon gaol, amounting to the further aum of 76 centa and ahall be 
 
 sooner paid unto you." 
 
 At the trial of an action for the arreat and impriaonment of the plainti£f 
 under thia commitment, a conviction of the plaintiff was pat in dated llth 
 January, 1889. but which waa not drawn ap tUl February, IbC^. The convic- 
 tion adjudged that the plaintiff should pay the penalty and coata according to 
 the adjudication, and if these auma were not paid fortiiwith, then, inasmuch 
 aa it had been made to appear that the plaintiff had no gooda or chattels 
 whereon to levy by diatreaa, that she ahonld be imprisoned for 60 daya, unless 
 theae auma and the coata and chargea of conveying to gaol ahould be aooner 
 paid. 
 
 The conviction had not been quaahed. 
 
 It appeared by the examination of the defendant that the 76 centa in the 
 warrant waa charged for the warrant, and that the blank waa left for the con- 
 stable to fill in the costs of conveying to gaol. The constable, however, did 
 not fill in the coata, but indoraed a memorandum of them on the back of the 
 warrant, making them $18.40. 
 
 Held, that the Magiatrate could order the levy by diatreaa of the penalty and 
 coats, and diapenae werewilh where he thought it would be uaeleaa or ruinous, 
 and order the peraon convicted to be impriaoned for not more than three months, 
 nnleaa the fine and coata and alao coata of the commitment and conveying to 
 gaol were sooner pcid. 
 
 2. That the warrant of commitment went beyond the conviction by directing 
 a detention for the ooata of commitment, aa well aa of the conveying to gaol, 
 but aa the only aum for which the gaolor could have lawfully detained the 
 phuntiff waa the aum of 7f> cent? mentioned in the warrant, and tie coats of 
 conveying to gaol greatly exceeded that aum, there waa no exoeaa in th<> warrant. 
 
 8. That the only evidence given at the trial with regard to defendant's appoint- 
 ment was quite consistent with his being in office at a salary under an 
 
THE CANADA TEMPERANCE ACT. 
 
 323 
 
 liotioQ by Tirtne 
 rad the ftot that 
 • Magistrate for 
 he had as P. M. 
 
 of the informa- 
 BummonB, and 
 
 )f the dietriot of 
 The Aot was in 
 nioipal porpoaes 
 force, and there 
 ot of M., within 
 [ M. district had 
 be convicted by 
 R. V. Higgins, 18 
 
 Doonty of 0. in 
 M revoked. 
 
 lond offence and 
 
 of oornvnitment 
 he fine ^nd costs, 
 wmmittal to gaol 
 id charges of the 
 N. M. to the said 
 shall be 
 
 of the plaintiff 
 i in dated 11th 
 ZX The oonvic- 
 sts according to 
 , then, inasmnoh 
 xkls or chattels 
 
 60 days, nnless 
 should be sooner 
 
 76 cents in the 
 
 left for the con- 
 
 ble, however, did 
 
 the back of the 
 
 f the penalty and 
 leless or rainoaa, 
 an three months, 
 tnd conveying to 
 
 ition by directing 
 nveying to gaol, 
 Uy detained the 
 and tie costs of 
 ss in th« warrant. 
 
 endant'sappoint- 
 salary under an 
 
 appointment which did not expire with the 0. T. Act, it could nol be said that 
 the oonviotion drawn np in Febmary, 1890, was a nollity. 
 
 4. That if the plaintiff was detained on account of the charges of the con- 
 stable indorsed on the warrant, it was not the act of the defendant, for he 
 never gave any authority to the constable to reqt^e the gaoler to detain the 
 plaintiff for a'ay sum not inserted in the warrant. 
 
 6. That as the oonviotion stated that it had been made to appear to the 
 Magistrate that there was no sufficient distress, and the conviction had not 
 been quashed, evidence would not have been admissible to shew that there was 
 sufficient distress. 
 
 6. That the commitment having been authorized by a lawful conviction, 
 which had not been quashed, the plaintiff was properly non-suited. 
 
 7. That at all events the defendant was entitled to tiie protection of B. 8. 0., 
 0. 78 : Mechiam v. Home, 20 0. B., 267. 
 
 CoiU of Application to Quath. 
 
 Costs of the application to quash a conviction were adjudged against a private 
 prosecutor where he laid the information without having reasonable grounds 
 for believing the charge would be sustained by proper evidence : B. v, Eeimedy, 
 10 0. B., 896 ; B. v. Beard, 18 0. B., 608. 
 
 Where personal service of the summons was not effected, the defendant did 
 not appear, and the Magistrate proceeded ex ■parte and convicted him, the 
 conviction was quashed, but as it appeared that the defendant had attempted 
 to tamper with the informant, without costs : B. v. Byan, 10 O. B., 264 ; 
 overruled in B. o. Mabee, 17 O. B., 194, cited ante, p. 818. 
 
 Appeal from Otdvr qwaahing Conviction. 
 
 The defendant, who was convicted by two Justices under the 0. T. Aot, 
 removed the conviction by certiorari, and the same was quashed. On appeal 
 to the Court of Appeal : Held, that there was no jurisdiction in this Court to 
 hear the iqipeal, and the same was therefore quashed, with costs to be paid by 
 the informant: B. «. Eli, 18 App. B., 626. 
 
 !t was held that there was no appeal from an order of the Court of Q. B. for 
 Manitoba, quashing a oonviotion: B. v. Kevins, Sup. Gt. Dig.. 246. 
 
 ApplicaHofn of Firut. 
 
 The 0. T. Act oame into force in the unit -^ counties of L. Se G. on 1st May, 
 1886. On 2nd June, 1886, the Parliament x Canada passed the Aot, 49 Vic, 
 0. 48, 1. 2, which provided that the Govemor-in-Council might, from time to 
 time, direct that any fine, etc., which would otherwise belong to the Crown for 
 the public uses of Canada, should be paid " to any provincial, municipal or local 
 authority which, wholly or in part, bore the expenses of administering the law 
 tinder which suoh fine, etc., was enforced, or that the same should be applied 
 in any other manner deemed best adapted to attain the objects of suoh law, 
 and to seoure itfa due administration." 
 
 On 29th Sept., 1886, an order-in-council was passed, directing that all fines, 
 etc , reeovwed or enforoed under the Act, which would otherwise belong to the 
 Crown for the public uses of Canada, should be paid to the Treasurer of the 
 City or County, as the case might be, for the purposes of the Aot. 
 
 On 16th Nov., 1686, a seoond order-in-council was passed, directing that the 
 first should be oanoelled, and that $XL fines, etc., recovered or enforced under 
 the Act within any City or County, or any incorporated Town teparated for 
 munidpoi purpoteefrom the County, should be paid to the Treasurer of the 
 Oitj, jineorporated Town, or County, as the ease might be, for the purposes of 
 theAol. 
 
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 324 
 
 THE CANADA TEMPERANCE ACT. 
 
 The TowA of B. wai, at the *ime the Aot was bronght into foroe, an incor- 
 porated Town, separated from the Oonnties of L. and G. for mnnioipal pnrposeB ; 
 and between the dates of the two orders-in-eooneil, the Poliee Magistrate of 
 the town paid to the Treasurer of the Oonnties 1760, the amonnt of fines re- 
 covered and enforced by him for violations of the C. T. Act within the Town : 
 
 Held, (Street, J., dissenting), that in the absence of any application by the 
 Treasarer of the Oonnties of we money so paid to him, the Town of B. was 
 entitled' to recover it from the Oonnties. The passing of the second order-in 
 council was a complete revocation of the first, and the second was retroactive, 
 in the sense that it provided for the application of all fines, etc., theretofore 
 recovered or enforced. Per Street, J.; the first order-in-connoil operated a^ i 
 gift from the Grown to the Monioipality, with an intimation added as to tiie 
 purpose to which it was expected the gift would be applied, but carrying with 
 it no legal obligation that it should be applied in any particular manner. It 
 was a complete gift ; the money was fini^y at home, so far as the Grown was 
 concerned, when the Municipauty received it, and the revocation of the order 
 could not revoke a completed transaction, nor retract that which had been 
 actually done under it : United Oonnties of Leeds and Grenville v. Town of 
 Brookville, 17 O. B., 261. 
 
 See Fitzgerald v. MoKinlay, Sup. Ot. Dig., 62. 
 
 ifci/ourmiMtit. 
 
 Where an adjournment of the proceedings before the Magistrate for more 
 than a week had been made at the request of the defendant, who afterwards 
 attended on the resumed proceedings, taking his chances of securing a dismissal 
 of the prosecution, and urging that on the evidence it ought to be dismissed, 
 defendant had estopped himsdf from objecting afterwards that such proceedings 
 on the prosecution were on this ground illegal : 
 
 Semble, that the provisions of sec. 46 of 82, 83 Vic, c. 81 (D,), that no such 
 adjournment shall be " for more than one week " are directory merely : B. v. 
 Heffeman, 13 0. B., 616. 
 
 It was held, in a case decided previous to the case of B. v. Helfeman, lupra, 
 that where a Magistrate adjourned a case for more than a week, contrary to 
 82, 83 Yic, 0. 81, s. 46 (D.), the oonviotion was bad and that the consent of 
 the defendsjat to the adjournment, if proved, would not have given jurisdiction. 
 The conviction was therefore quashed : B. v. French, B. v. Bobertson, 18 0. B., 
 80. But this does not appear to be in accord with the noajority of decisions 
 upon the question, and was not followed by Bobertson, J., in B. v. Heffeman, 
 iupra, nor by Boyd, C, in B. v. Hall, 18 P. B., 142. See also B. v. Hughes, 4 
 Q. B. D., 618, at pp. 628, 688 ; B. v. Shaw, 10 Oox. 0. 0., 66 ; Queen v. 
 Smith, L. B. 2 0. 0., 110 ; Queen v. Widdop, L. B. 1 0. 0.. 8 ; B. «. Stone, 
 1 East, 689, 648 ; Blake v. Beech, 1 Ex. O., 820 ; 12 L. T. N. S., 470. 
 
 Sec. 46 provides that the hearing may be adjourned to a certain time and 
 place, but no such adjournment shsll be for more than a week : Held, that the 
 week must be computed as seven days, exclusive of the day of adjournment : 
 B. V. Gollins, B. v. Ooulais, 14 O. B., 61S. 
 
 Where at the conclusion of the evidence, the Magistrate reserves his judgment 
 for the purpose of reaching a decision or of considering the amount of the 
 penalty, he is not restricted to one week mentioned in see. 48, B. S. G., c. 
 178 : B. V. Alexander, 17 0. B., 468. 
 
 In another case it was held that 82, 88 Vic. c. 81, s. 46, (D), which is to be 
 read into the O. T. Aot by virtue of sec. 107, applies only to an adjournment of 
 the heudng or the further hearing of the information or complaint, which is 
 quite a distinct thing from the adjudication or determination of the charge after 
 the hearing is completed. Justioea are not obliged to fix the fine or punish- 
 ment at the instant of conviction, but may take time either for the purpose of 
 informing themselves as to the legal penalty, or the amonnt proper to be 
 
THE CANADA TEMPERANCE ACT. 
 
 325 
 
 imposed, or of taking adviee as to the law applioable to the ease. An adjourn* 
 ment after the oase had oloaed for fourteen days in order to consider and give 
 judgment was held to be regular : B. v. Hall, 12 P. B., 142. 
 
 Certiorari. 
 
 : Held, that the eonviotion not having been made by a Stipendiary Magistrate, 
 eto., under see. Ill, was appealable or removable by certiorari : B. v. Elemp, 
 10 0. B., 148. 
 
 In oases where the Magistrate has jurisdiction certiorari is absolutely taken 
 away, hv* an appeal to the sessions still exists, which, however, is itself taken 
 away by ac. Ill when the conviction is before a Stipendiary Magistrate : B. v. 
 Ramsay. 11 0. B., 210. 
 
 A prisoner having been convicted of an offence, an application for her release 
 was made under habeas eorpue, and a writ of certiorari also issued : Held, that 
 the writ of certiorari must be superseded, and following B. v. Wallace, 4 0. B., 
 127, that such writ cannot issue merely for the purpose of examining and 
 weighing the evidence taken before the Magistrate, though it no doubt lies 
 where the Magistrate is proceeding without any joriBdietion : B. v. Sanderson, 
 12 0. B., 178. 
 
 Held that the operation of sec. Ill of the Act in taking away the right to 
 certiorari is confined to the case of convictions made by tiie special officials 
 named in the sec. : B. v. Walker, 18 O. B., 83. 
 
 Where there is no evidence that any beverage of an intoxicating character 
 has been sold and therefore no evidence to support a conviction, the Magistrates 
 have no jurisdiction, and the conviction was therefore quashed with costs 
 against the prosecutor : B. v. Beard, 18 O. B., 608. 
 
 Held, (Cameron, J., dissenting) that sea 111 taking away the right to 
 certiorari applies to convictions for all offences against the preceding sees, of 
 the Act : B. v. Wallace, 4 0. B., 127. 
 
 Held, that the defendants were not entitled to certiorari to remove the con- 
 viction on the ground that the Act was not proved to be in force, because on 
 their application for the certiorari they did not shew affirmatively that the Act 
 was not in force then : B. v. Ambrose, 16 0. B., 261. See also cases cited in 
 notes on pages 242-247 and in appendix of forms, pott. 
 
 Revition of Dominion Statutet. 
 
 Where the information and conviction were drawn up for an offence against 
 the C. T. Act, 1878, while the Bevised Statutes of Canada were in force before 
 and at the time of the information and proceedings had thereon, an offence was 
 proved to have been eommitted both before and after the Bevised Statutes came 
 into force : Held, that the charge as laid and proved must be treated as if under 
 the original Act, which by the Act respecting the Bevised BtatutAS of Canada, 
 49 Vic. 0. 4, s. 7 (D. ), was not absolutely repealed so as to affect any penalty, etc. , 
 incurred before the time of such repeal : B. o. Dumion, 14 0. B., 672. 
 
 The effect of the revision of the Statutes brought into force by Boyal 
 Proclamation, March Ist, 1887, though in form repealing the Acts consolidated 
 is really to preserve them in unbroken continuity, and the adoption of the C. 
 T. Act by Municipalities prior to that revision has not been changed or 
 bterfered with by it. The alterations made in the phraseology of the Act by 
 the revision are not vital and do not materiaUy change its character or effect : 
 License Com. of Prince Edward v. Co. of Prince Edward, 26 Qr., 462 ; License 
 Oom. of M. B. of Norfolk v. Go. of Norfolk ; License Com. of Frontenac v. Co. 
 of Frontenao, 14 0. B., 741. 
 
 l!.*^. 
 
 ^1 
 
 ■ ■!» -I 
 
 :. ■!■' 
 

 326 THE CANADA TEMPERANCE ACT. 
 
 TEMPEBANOE ACT, 1864. 
 
 BT-LAW8. 
 
 Publication of. — Held, that pnblioation of by-law on 12th January, appoint- 
 ing 7th Febrnary for the poll, was not a oomplianee with the provision reqoiring 
 fodr weeks pnblioation : In re Coe and The Cor. of Piokering, 24 U. 0. B., 
 489. 
 
 Nor was a notice published on 2nd, 9th, 16th and 28rd for a meeting of 
 electors to be held on 4th Not. at 2 p. m., as the Statute requires the meeting 
 to be at 10 a. m., and to be held within the next week next after the fourth 
 week of publication : In re Miles and The Oor. of Richmond: 28 U. C. B., 333. 
 
 An omission to publish the requisition, as well as the by-law, as required by 
 the Act, was held a ground for quashing the by-law : Day and The Oor. of 
 Storrington, 88 U. 0. B., 628. 
 
 Where an application to quash a by-law did not allege an irregularity in the 
 publication which prejudiced the voting, the application was refused : Wyoott 
 and The Gor. of Emestown, 38 U. 0. B., 688. The notice of taking the poll 
 need not state the number of days the poll will be kept open : Hamilton and 
 The County of Brant, 41 U. 0. B., 268 ; Malone and The County of Grey, 41 
 U. G. B., 169. 
 
 Where the notice was not put up in several Municipalities in time, and was 
 not put up in four public places, and it appeared but for these irrcHE^ularities 
 the result might have been different, the by-law was quashed : Mace and The 
 County of Frontenae, 42 U. C. B., 70. 
 
 It was held that the withdrawal of a by-law after it had been pablished onee 
 did not prevent its being published again and voted open, where there was no 
 charge of bad faith, and it was not shewn that the result was affected, or that 
 the ratepayers were misled : Lake and The County of Prince Edward, 26 C. P., 
 178. 
 
 A by-law was quashed on the ground that the requisition was not pabliahed 
 for four consecutive weeks, although there was no reason to suppose that any 
 one had been prejudiced by the omission and three-fourths of the eleetors had 
 voted ; a misnomer of the Corporation in the rule was held immaterial : 
 Brcphy and The Cor. of Oananoqne, 26 0. P., 290. 
 
 Taking the PoK.— Held, that the provision of see. 8, sub-seo. 8, was impera- 
 tive, and in the absence of the proper person appointed to preside no poll 
 could be taken : Hartley and The Cor. of Emily, 26 U. 0. B., 12. 
 
 Where the poll was opened and dosed by the proper person, and the a£Bidavit8 
 on which the application was made to quash the by-law were oontradiotoiy 
 as to the length of and reason for his absence in the meantime, an application 
 to quash a by-law was refused : McLean and The Oor. of Bmoe, S6 U. C. B., 
 619. 
 
 See also Miles and the Oor. of Biohmond, 28 U. 0. B., 888 ; Malone and the 
 County of Orey, 41 U. 0. B., 169. 
 
 Votert^ LitU. — Held that an irregularity in the verifloation of the Assessment 
 Bolls was not a ground for quashing the by-law. neither the correctness of the 
 Boll nor the right of any person to vote being impugned : Lake and the County 
 of Prince Edward, 26 O. P., 178. The by-law may be paraed and vote taken 
 as prescribed in the Act. The machinery provided in the Municipal Act, 1873, 
 sec. 231, need not be resorted to : Lake and the County of Prinoe Edward, 26 
 0. P., 178. 
 
 As to question of the use of Assessment Boils instead of Voters' Lists and 
 the use of the roUs of 1877 instead of those of 1876, see Benbottom and the 
 United Counties of Northumberland and Durham, 42 U. 0. B., 866. 
 
THE CANADA TEMPERANCE ACT. 
 
 3*7 
 
 ICftlone and the 
 
 Held alBo thtt an applicant to quash a by-law is oonflned to the speoifio 
 illegality pointed ont in the role : lb. 
 
 Time of Polling, — See Johnson and the Oonnty of Lambton, 40 U. 0. B., 
 297 ; Malone and the Goanty of Grey, 41 U. 0. B , 169; Hamilton and the 
 Ooanty of Brant, 41 U. G. B., 358 ; Lake and the Coonty of Piinoe Edward, 
 26 G. P., 178. 
 
 Other Ca««f.— Where a defeot in a by-law was one of <* prooedore or form " 
 only, the Court refused to quash the by-law : Boon and the County of Halton, 
 24U. 0. B.,861. 
 
 The Court would not quash a by-law although no one appeared in support of 
 it, without seeing that the objections wre fatal : Hartley and the Cor. of 
 EmUy, 26 U. C. B., 12. 
 
 Semble, that any of the electors might be heard to support a by>law if the 
 Council diould fail to appear : Mace and the Gor. of Frontenac, 42 U. C. B., 
 70. Where there was no seal to the by-law, it was held that there being no 
 by law it could not be quashed, but the rule to quash it was discharged without 
 costs: Mottashed and the County of Prince Edward, 80 U. C. B., 74. 
 
 A by.Iaw which proviJed that it should come into force on a day different 
 from that on which the Statute declares it is to come into force, was held 
 illegal. It should contain only the simple declaration of prohibition : O'Neil 
 snd the County of Oxford, 41 U. C. B., 170. 
 
 As to description of the Corporation and certificate of returning officer, see 
 Lake and the County of Prince Edward, 26 C. P. 178. 
 
 Illegal Sale of Liquor. — As to application of penalties where the Collector of 
 Inland Bevenue prosecutes under the Temperance Act, 1864, see re McCall, 2 
 L. J. N. 8., 16. The conviction must adjudge that the penalty shall be paid 
 to the party entitled according to one of the provisions of the Act to receive 
 it: 16. 
 
 This Act, and -aS Vic, o. 22, for the punishment of persons selling liquor 
 without license are intended to stand together. The first is limited to Munici- 
 palities where a temperance by-law is in force and suspends the second there 
 daring the continuance of such by-law, leaving it to apply elsewhere in Upper 
 Canada. Where the Act gives jurisdictions only to two Justices and a convic- 
 tion was made by one sitting alone, the latter was liable in trespass, but that 
 tiie conviction, though void, must be qu&shed before such action would lie : 
 Held, also, that where the plaintiff was committed to prison to be kept at hard 
 labor, the evidence of the turnkey that he '* did no hard work in the gaol," was 
 not sufficient to negative that he was put to some compulsory work so as to 
 protect the Magistrate : Oraham v. Mc Arthur, 26. U. C. B., 478. 
 
 See also in re Watts and in fe Emery, 6 P. B., 267, cited ane«, p. 245 ; B. v. 
 Prittie, 42 U. C. B., 612 ; B. v. Lake, 48 U. G. B., 616 ; 7 P. B., 216, cited in 
 note («), sec. 141, anie. 
 
 LiotiKty of Inn-li;e«p«r«.— Bee McGnrdy v. Swift, 17 C. P., 126 ; Bobier v. 
 Clay, 27 U. 0. B., 488 ; Qleason v. Williams, 27 C. P., 93, cited in notes to 
 sees. 128-126. 
 
 See also B. o. Bay, 44 U. 0. B., 17, in which the Court refused a mandamui 
 to a Magistrate to issue a distress warrant on a conviction made by him where 
 the by-law and conviction were open to grave objections which had been taken 
 on the trial before Mm. 
 
 The-tssners of licenses under 87 Vic, c. 82 (O.), were held to supersede the 
 Collector of Inland Bevenue under The Temperance Act, 1864 ; and under that 
 Act and 89 Vic, c 26 (0.), it was held unnecessary to deliver a copy of a by- 
 law to the Oolleotor of Inland Bevenue: JR« Lake and Blakeley, 40 U. 0. B., 
 102. 
 
 I 
 
 I ^'r' 
 
 '!^ 1 
 
 51* ' .^1 
 
 W 
 
 m 
 
iv ■ 
 
 It . 
 
 llWi ' »iw|.- 
 
 / 
 
 3*8 
 
 THE CANADA TEMPERANCE ACT. 
 
 8m aIm flMM died in Motioiui applioable to partionUr oflenoe nndnr the 
 Liquor Lioenie Act. 
 
 The Qnebeo Lloensa Act and its amendments were held to be intra vire$ of 
 the ProTinoial Tjegislatore, and a oonviction of a drayman employed by a firm 
 of lioensed brewers for having sold beer outside the business premises of the 
 firm in oontravention of the License Act, was sustained on the ground that the 
 Court of Speeial Sessions of the Peaoe at Montreal, having jurisdiction to tiy 
 the alleged offence and being the proper tribunal to decide the question of facta 
 and of law involved, a writ of prohibition would not lie : per Taschereau and 
 Owynne, J. J., that the ease was one which it was proper for the Superior 
 Court to deal with by proceedings on prohibition. 
 
 Per Owynne, J., The Quebec License Act of 1878, imposes no obligation 
 upon brewers to take out a Provincial License to enable them to sell their beer, 
 and therefore the Oourt of Special Sessions of the Peace had no jurisdiction and 
 prohibition should issue absolutely : Molson v. Lambe, 16 S. 0. B., 31S8. 
 
 ,M : 
 
 
FORMS. 
 
 3*9 
 
 FORMS. 
 
 SCHEDULE A. 
 
 {Section 30.) 
 
 FoBU OF Bond bt Applicant fob ▲ Tatxbn LioBitsa. 
 
 Enow all men by these preaenta, that we T. U., , V. IT., 
 
 of and X. T., of , are held and firmly bonnd nnto 
 
 Her Majesty Qaeen Victoria, Her Heirs and Snooessora, in the penal sum of 
 9400 of good and lawful money of Oanada — that is to say, the said T. U., in 
 the flam of $200, the said V. W., in the snm of $100, and the said X. Y., in the 
 sum of 9100 of like good and lawfal money, for payment of whioh well and 
 truly to be made, we bind oorselves and eaoh of us, our heirs, exeoators and 
 administrators, firmly by these presents. 
 
 Whereas the above bonnden T. V. is aboat to obtain a lioense to keep a 
 tavern or house of entertainment in the of ; the condition 
 
 of this obligation is such, that if the said T. V., pays all fines and penalties 
 whioh he may be condemned to pay for any offence against any statute or other 
 provision having the force of law, now or hereafter to be in force, relative to 
 any tavern or house of public entertainment, and does, performs and observes 
 all the requirements thereof, and conforms to all rules and regulations that are 
 or may be established by competent authority in such b.^half ; then this obliga- 
 tion shall be null and void, otiierwise to remain in full force, virtue and effect. 
 
 In witness whereof, we have signed these presents with our hands, and 
 sealed them with our seals, this day of , A. D. 18 . 
 
 Signed, sealed and delivered ) 
 in the presence of us. S 
 
 T. U. [L. S.] 
 F. W. [L. 8.] 
 X. Y. [L. B.] 
 
 B. S. 0. 1877, c. 181, Sehed. A. 
 
 SCHEDULE B. 
 
 {Section SI.) 
 
 FoBH OF Bond by Appuoani fob a Shop Liobrbb. 
 
 Enow all men by these presents, that we, T. U., of V. W. of 
 
 and X. Y., of , are held and firmly bound unto Her 
 
 Majesty Queen Victoria, Her Heirs and Successors, in the penal sum of 9400 
 of good and lawful money of Canada — that is to say, the said T. V. in the sum 
 of $200, the said V. W. in the sum of $100, and the said X. Y. in the sum of 
 $1U0 of like good and lawful money, for payment of which well and truly to be 
 made, we bind ourselves and each of us, our heirs, executors and administrators, 
 firmly by these presents. 
 
 Whereas the above bounden T. U. is about to obtain a license to keep a 
 shop wherein liquor may be sold by retail in the of ; the 
 
 condition of this obligation is such, that if the said T. U. pays all fines and 
 penalties which he may be condemned to pay for any offence against any 
 statute or other provision having tiie force of law, now or hereinafter to be in 
 force, relative to any shop wherein liquor may be sold by retail, and does, 
 performi and observes all the requirements thereof, and conforms to all rules 
 
mm^ 
 
 
 i<^^p 
 
 i'< 
 
 330 
 
 FORMS. 
 
 and ngnktioiia that are or may be flatabliahsd by eompetent authority in saoh 
 behalf ; then this obligation shall be null and void, otherwiee to remain in full 
 foroe, yirtae and efleot. 
 
 In witness whereof, we have signed these presents with onr hands, and 
 sealed them with oar seals, this day of , A. D. 18 . 
 
 T. V. [L. S.] 
 V. W. [L, S.] 
 X. Y. [L. S.] 
 Signed, sealed and delivered 1 
 in the presence of as. / 
 
 B. 8. 0. 1877. 0. 181, Sehtd. B. 
 
 I"' 
 
 
 SCHEDULE 0. 
 {Seetiont 94 and 103.) 
 
 GeNBBAL FoBM of iHrOBMATIOH. 
 
 Omtabio, 1 Thb Infobmation of A. B. of the Township of York, in 
 County of York, y the Oonntyof York, License Inspector laid before me C. A, 
 
 To Wit : J Police Magistrate, in and *m the Oity of Toronto [or one of 
 Her Majesty's Jaatices of the Peace, in and for the Ooanty of York], tibe 
 day of A. D. 18 . 
 
 The said informant says, he is informed and believes that X. Y. on the 
 day of A. D. 18 , at the Township of York, in the 
 
 Ooanty of York, anlawfally did sell iiqaor without the license therefor by law 
 required [or as the case may be — see forms in Schedule D.I 
 
 A.B. 
 Laid and signed before me the\ 
 day and year, and at the place 
 first above mentioned. 
 C. D. 
 P.M. or J. P. 
 
 B. S. 0. 1877, c. 181> Sched. 0. 
 
 SCHEDULE D. 
 
 {Section loj.) 
 
 Forms fob Dbsobibimo Offbmoeb. 
 
 1. Nef^ting to keep license exposed. (Section 47.) 
 
 " That X. Y. having a license by wholesale [or a shop, or a tavern, or s 
 vessel license] on at anlawfally and wilfaUy (or negligently) 
 
 omitted to expose the said license in his warehouse [or shop, or in the bar- 
 room of his tavern, or in the bar-saloon, or bar-cabin of his vessel," tu the case 
 may be.'] 
 
 2. Neglecting to exhibit notice of license. (Section 48.) 
 
 " That X. Yt being the keeper of a tavern [or inn or house or place of public 
 entertainment] in respect of which a tavern license has duly issued and is in 
 force, on at unlawfully did not exhibit over the door of 
 
 such tavern [or inn, etc.,] in large letters the words, ' Licensed to sell wine, 
 beer, and other spirituous or fermented liquora,' aa required by The Liquor 
 License Act." 
 
 8. 8aU withoM lieenie. 
 ••ThatX r., on the 
 
 (Section 49.) 
 day of 
 
 A. D. 18 
 
 at 
 
FORMS. 
 
 331 
 
 181, Sehtd. B. 
 
 181> ScAed. G. 
 
 in the Ooantj of nnlawfally did aell liqnor wiihoat the 
 
 lioeaM therefor by law required." 
 
 4. Keeping liquor without lieerue. (Section 50.) 
 
 " That X. Y., on at nnlawfally did keep liqnor for 
 
 the pnrpoM of sale, barter and traffio therein, without the license therefor by 
 law required." 
 
 6. Sale of liquor on lieenied premiiee during prohibited hours. (Sections 5i 
 and 71.) 
 
 '* That X. Y., on at in his premises [or on, or out 
 
 of, or from, his premises] beinR a place where liquor may be sold, unlawfully 
 did sell [or dispose ofl liquor during the time prohibited by The Liquor Lieenie 
 Act (or by by-law of the Municipal Council of or of the License 
 
 Commissioners for the District of or at the ease may be), for th<t 
 
 sale of the same, without any requisition for medical purposes as required by 
 said Act being produced by the vendee or his agent." 
 
 6. Allowing liquor to be drunk on lieeneed premieet during prohibited hours, 
 (Sections 54 and 71.) 
 
 •* That X. Y., on at in his premises, being a place 
 
 where liqnor may be [or is] sold, by retail [or wholesale] unlawfully did allow 
 [or permit] liqnor to be drunk in such place during the time prohibited by The 
 Liquor License Act for the sale of the same, by a person other than the occu- 
 pant, or acme member of his family, or a lodger in his house." 
 
 7. Sale of less than three half-pints under shop license. (Section 2 (8).) 
 
 •' That X. Y., having a shop license on at nnlawfally 
 
 did sell liquor in less quantity than three half -pints." 
 
 8. Sale under wholesale license in less than wholesale quantities. (Sections 
 2 (4), and 61.) 
 
 " That X. Y., having a license to sell by wholesale on at 
 
 unlawfully did sell liquor in less quantity than five gallons [or, than one dozen 
 bottles of three half -pints each, or than two dozen bottles of three-fourths of a 
 pint each]." 
 
 9. Allowing liquor to be consumed in shop. (Section 60.) 
 
 " That X. y., having a shop license on at unlawfully 
 
 did allow liquor sold by him {or in his possession), and for the sale of which a 
 license is required, to be consumed within his shop [or within the building of 
 which his shop forms part, or, within a building which communicates by an 
 entrance with nis shop], by a purchaser of such liquor [or, by a person not 
 nsually resident within the building of which such shop forms a part.] " 
 
 10. Allowing liquor to be consumed on premises under wholesale license. (Sec- 
 tion 61.) 
 
 " That X. v., having a license by wholesale, on at 
 
 nnlawfally did allow liquor sold by him [or in his possession for sale] and 
 for the UM of which anch license is required, to be consumed within his ware- 
 house [or shop, or within a bailding which forms part of, (or is appurtenant to 
 or whiJ^ communicates by an entrance with a warehouse or shop, or premises) 
 wherein an article to be sold [or disposed of) under such license, is sold 
 by retail (or wherebi there is kept a broken package of an article for sale under 
 Bueh license)]." 
 
 11. Illegal sale iy druggists. (Section 62.) 
 
 " That X. v., being a chemist [or druggist] on at 
 
 did nnlawfally sell liqnor for other than strictly medicinal purposes [or sell 
 liqnor in padkages of more than six ounces at one time without a certificate from 
 any registered medical practitioner, or sell liquor without recording the same], 
 as reqaixad by TJU Ligmr Liceme Act. 
 
 i ' i: 
 
imf, 
 
 3T 
 
 33a 
 
 FORMS. 
 
 •«o«i|' 
 
 1 rsS 
 
 
 
 P 
 
 '' ;' 
 
 r . ':■;■ '■' '■ 
 
 ^::f ii 
 
 ■ ■:,■}' ' 
 
 11 -^-^ 
 
 
 Hp 
 
 ! 
 
 1 
 
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 m 
 
 
 ■ 
 
 
 
 12. IlUgal idle undtr vtutl lictme. (Saotion 69.) 
 
 " That X. Y., being aathorized io aell liqnor on a vmmI called the Spartan, 
 on at unlawfully did eell [er diepoie of] liqnor to be 
 
 eonramed bv a person other than a paaaenger on aaeh Teiiel while in port [or 
 nnlawfnlly did allow liquor to be oonsumed on raeh veaeel during the time pro- 
 hibited by The Liquor Littnse Act for the sale of the same, without any requiBition 
 for medioal purposes, as required by said Aot]." 
 
 18. Keeping a disorderly house. (Seotion 79.) 
 
 " That X. Y., being the keeper of a tavern \or ale-house, or beer-house, or 
 house of public entertainment], situate in the Oity {or Town, or Village, or 
 Township], of in the County of on in hia 
 
 said tavern [or house] unlawfully did sanction \pr allow] gambling, [or riotons, 
 or disorderly conduct] in his said tavern [or house]. 
 
 14. Harbouring constables on duty. (Section 80.) 
 
 " That X. v., being licensed to sell liquor at on 
 
 unlawfully and knowingly did harbour [or entertain or suffer to abide and 
 remain on his premises] 0. P.,% constable belonging to a police force, during 
 a part of the time appointed for his being on duty, and not for the purpose of 
 quelling a disturbance or restoring order, or executing his duty." 
 
 16. Compromising or compounding a prosecution. (Section 81.) 
 
 " That X. K, having violated a provision of The Liquor License Act, on 
 at unlawfully did compromise [or compound, or settle, 
 
 or offer, or attempt to compromise, compound or settle], the offence with A. B., 
 with the view of preventing any complaint being made in respect thereof [or 
 with the view of getting rid of or of stopping, or of having the complaint made 
 in respect thereof dismissed, as the case may bey* 
 
 16. Being concerned in compromising a prozecution. (Section 82.) 
 
 " That X. Y., on at nnlawfnlly was concerned in 
 
 [or a party to] a compromise [or a composition, or a settlement] of an offence 
 committed by O. P., against a provision of The Liquor License Act." 
 
 17. Tampering with a witness. (Seotion 84.) 
 
 '*ThatX K,ona certain prosecution under The Liquor License Act, on 
 at unlawfully did tamper with O. P., a witness in 
 
 such prosecution before [or after] he was summoned [or appeared] as snob 
 witness on a trial [or proceeding] under the said Aot, [or unlawfully did induce, 
 or attempt to induce O. P., a ^tness in such prosecution, to absent himself, 
 or to swear falsely].'* 
 
 18. Refusing to admit policeman. (Section 180.) 
 
 " That X. Y.t on the at being in {or having charge 
 
 of) the premises of O. P., being a place where liquor is sold [or reputed to be 
 ■old], unlawfully did refuse [or fail] to admit [or did obstmet or attempt to 
 obstruct] E. F.,Ka officer demanding to enter in the execution of his duty [or 
 did obstruct or attempt to obstruct E. F., an officer making searches in said 
 premises, and in the premises connected with such place]." . , 
 
 19. Officer refusing to prosecute. (Sections 129 and 184.) 
 
 " That X. Y. , bbing a police officer [or constable, or Inspector of LicenseB] 
 in and for the Township of Tork, in the County of Tork, knowing that 0. P. 
 had on at committed an offence against a provision 
 
 of The Liquor License Act, unlawfully and wilfully did and still does neglect to 
 proMonta the said O. P.^ for his said offence." 
 
 B. S. 0. 1877, e. 181, Sthtd. D. 
 
FORMS. 
 
 333 
 
 SOHEDULB B. 
 
 (Stction toj.) 
 
 FoRu OF Infobuatioh tob Sboord, Third, or Fourth OrFiMOB. 
 
 Ontario, \ Thb Imvorhatiom of A. B., of eto., License Inspector, laid 
 Oonnty of York, V before me C, D., PoUoe Magistrate in and for the City of 
 
 To Wit : J Toronto [or one of Her Majesty's Jastioes of the Peace in 
 and for the Oounty of York], the day of , A. D. 18 . 
 
 The said Informant says he is informed and believes that X. Y. on 
 at [descril't last offence]. 
 
 And further that the said X. Y. was previously, to wit : on the 16th day of 
 December, A. D. 1886, at the Oity of Toronto, before C. D., Police Magistrate 
 in and for the Oity of Toronto, [or at the Township of York, in the Oounty of 
 York, before E. F. and G. H,, two of Her Majesty's Justices of the Peace for 
 the Oounty of Yoirk], duly convicted of having on the 80th day of November, 
 1886, at the Village of Aurora in the Oounty of York, unlawfully sold liquor 
 without the license therefor required by law [or as the cast may be\ . 
 
 And further that the said X. Y. was previously, to wit : on the 28th day of 
 November, A. D. 1886, at the Township of Yaughan, in the Oounty of York, 
 before, etc., [as in preceding paragraph], again dudy convicted of having on the 
 10th day of Novem><ir, A. V. 1886, at the Township of Btobiooke, in the 
 Oounty of York, having a shop license, unlawfully allowed liquor to be oon- 
 Bumed within a building which communicates by an entrance with his shop, 
 by a person not usually resident within the building of which such shop forms 
 a part [or cu the case vtay be\. 
 
 And further, that the said X. Y. was previously, to wit : on the 30th day of 
 October, A. D. 1886, at the Town of Newmarket, in the Oounty of York, before, 
 etc. {see above,) again duly convicted of having, on the 26th day of September, 
 A. D. 1886, at the Village of Aurora, in the Oounty of York (behig in charge of 
 the premises of C7. /*., a place where liquor was reputed to be sold), unlawfully 
 failed to admit E. F.,Ka officer deinanding to enter in the execution of his 
 duty. 
 
 And the Informant says the offence hereinbefore firstly charged against the 
 said X. Y. is his fourth offence against The Liquor License Act. 
 
 A.B. 
 Laid and signed before me the day 
 
 and year, and at the place first 
 above mentioned, 
 
 0. D., 
 
 
 R. S. 0. 1877, 0. 181, Sched. E. 
 
 . 181, Stktd, D. 
 
 SOHEDULB F. 
 (Section loj.) 
 
 ScuHOMS TO Witness. 
 
 Ontabio, ) 
 
 Oounty of York, \ To /. A^., of the Oity of Toronto, in the Oounty of 
 
 To Wit : ) tork. 
 
 Whereas, information has been laid before me, C. D., one of Her Majesty's 
 Justices of the Peace in and for the Oounty of York {or Police Magistrate for 
 the City of Toronto), that X. K, being a druggist, on the 10th day of January, 
 A. D. 18 , at the Township of Vaughan, in the County of York, unlawfully 
 did sell liquor for other than strictly medicinal purposes, and it has been made 
 to appear to me that yon are likely to give material evidence on behalf of the 
 proseontor in this behalf. 
 
 % \.. 
 
w 
 
 334 
 
 FORMS. 
 
 i!; i 
 
 wh^mmI 
 
 S' 
 
 m 
 
 &: 
 
 TheM tn to reqoira yon, ondar pain of impriMomMit in the Oommon Oaol, 
 p«raoiullT to be and appear on ToetdMr, the 16th day of Janaary, A. D. 18 , 
 at ten o'olook in the forenoon, at the Town Hall, in the Village of Riohmond 
 Hill, before me or Noeh Jaitioe or Jaitioei of the Peaee ai may then be there, 
 to testify what yoa ahall know in the premiaes [and aleo to bring with yon and 
 there and then to prodnoe all <\nd every inTOioea, oaah hooka, day books, or 
 ledgera and reoeipta, promiaaory notea, or other aeonrity relating to the pur- 
 ohaae or aale of liqnor by the aald X. K, and all other hooka and papers, 
 aeeonnta, deeda, and other doonmenta in yonr posaeeaion, cnatody or eontrol, 
 relating to any matter eonneoted with the laid proaeoation]. 
 
 Oiven nnder my hand and aeal thia ISth day of Janaary, A. D. 18 , at the 
 Village of Biohmond Hill, in the County of York. 
 
 0. D., 
 
 /./». (L.S.) 
 B. 8. 0. .. . 0. 181, ScAed. F. 
 
 SOHBDULB O. 
 (Section 103 ) 
 
 FOBM or OOMTIOTIOM FOB FiBST OlTBNOl. 
 
 Ontabio, 1 Ba it bxhuibibbd that on the 6th day of January, 
 County of York, \k. D. 18 , at the Oity of Toronto, in the aaid County of 
 
 To Wit : J York, X. Y. la oonvloted before me, C. D., Polioe MaRis- 
 trate in and for the Oity of Toronto (or before ua, S. F. and G. H., two of Her 
 Majeaty'a Juaticea of the Peaee, in and for the aaid County), for that he, the 
 aaid X. F., on the 9nd day of Janaary, A. D. 18 , at the Townahip of York, 
 in the aaid County, in hia premiaee, being a plaee where liquor may be aold, 
 unlawfully did aell liquor during the time prohibited by The Liquor License 
 Act for the aale of the aame, wlthoat any requiaition for medioinal pnrpoaefi 
 aa required by aaid Aot, being prodnoed by the vendee or hia agent (or as the 
 case may 6t),j4. B. being the informant, and I (or we) adjudge ue aaid X. K., 
 for hia aaid offenoe, to forfeit and pay the sum of tSO, to be paid and applied 
 aooording to law, and alao to pay to the aaid A. B. the aum of 96 for hia oosta 
 in thia behalf, and if the aaid aoTeral auma be not paid forthwith, then* I (or 
 we) order the aaid auma to be levied by diatreaa and aale of the gooda and 
 ohattela of the aaid X, K., and in default of aufBeient diatreaa in that behalf* 
 \ot where the issuing of a distress warrant would be ruinous to the defendant and 
 his family, or it appears that he has no goods whereon to levy a distress, then 
 instead of the words between the asterisks** say *' inaimuch ai it has now been 
 made to appear to me (or ua) that the iaaubig of a warrant of diatreaa in thia 
 behalf would be ruinoni to the aaid X. Y. and hia family," or " that the aaid 
 X. Y. haa no gooda or oh'attela whereon to levy the aaid aeveral auma by dig- 
 treaa "] , I (or we) adjudge the aaid X. K. to be imprlaoned without hard labour 
 [or with hard labour as the case may be] in the Oommon Oaol for the County 
 of York, at Toronto, in the aaid County, and there to be kept for the apaoe of 
 fijteen days, unleaa tiie said auma and the oosta and charges of conyqring the 
 said X. Y. to the said Common Oaol shall be sooner paid. 
 
 Oiven nnder my hand and seal [or our hands and aeala] the day and year 
 first above mentioned, at the City of Toronto, in the County aforeaaid. 
 
 c^ D,, (L. 8.) 
 
 Police Magistrate, 
 or £, F; 
 
 J. P. (L. 8.) 
 
 G, H,, 
 • J. P. (L,S.) 
 
 B. 8. 0. 1677, 0. 181, SelUi. O ; 44 V. e. 37. a. S6. 
 
FORMS. 
 
 335 
 
 i. D. 18 , at the 
 
 SOHBDULB H. 
 
 {SteHfiH /oj.) 
 
 FoBx or OoMyionoN fob a Thibd Omnca. 
 
 Omtabio, I Ba it RiimifBVRiD tli»t on th« 33ncl dw of JaavMtj, A. D, 
 Ooanty of York, [ 1887, in the City of Toronto, in th« add Ooanty, X. Y. \% 
 To wit : 1 oonvlotad bafor* th« ondanrigned C, Z7., Polio* Msgiitrate 
 in Mid for th« Oity of Toronto, in th« Mid Ooanty \or C. D. and E. F., two of 
 H«r Majesty's Jastiees of the Peace in and for the said Ooanty] , for that he, 
 the said X. Y. , on the 80th day of Deoember, A. D. 1886, at the Oity of Toronto 
 [or Township of Hoarboro] , in said Ooanty (as the case may be), having violated 
 a provision of The Liquor License ^f/^onlawfally did attempt to settle the 
 offenoe with A. B., with the view of having the eompUint made in respeot 
 thereof dismissed. And it appearing to me [or ni] that the said X. Y. was 
 previoasly, to wit : on the 16th day of Deoember, A. D. 1886, at the Oity of 
 Toi'onio, before, eto., daly oonvioted of having, on the 80th day of November, 
 A. L. 1886, at the Village of Anrora, anlawfally sold liqaor without the license 
 therefor by law reqnired. And it also appearing to me [or us] that the said 
 X. Y. was previoasly, to wit : on the 98th day of November, A. D. 1886, at 
 the Township of Vaughan, before, etc., {see above) again duly oonvioted of 
 having, on the 2nd day of November, A. D. 1886, at the Village of Markham, 
 being the keeper of a tavern sitnate in the said village of Markham, unlawfully 
 allowed gambling in his said tavern (or as the case may be). 
 
 I {or we], adjudged the ofienoe of said X. Y., hereinbefore firstly mentioned, 
 to be his third offence against The Liquor License Act, (A. B. being the 
 informant) and I [or we], adjudged the said X. Y. for his said third offence to 
 be imprisoned in the Oommon Qaol of the said County of York, at Toronto, in 
 the Bidd Ooanty of York, there to be kept without hard labour [or with hard 
 iabonr, as the case may be] for the space of three calendar months (as the case 
 may be.) 
 
 Oiven under my hand and seal [or our hands and seals] the day and year 
 first above mentioned, at Toronto, in the Ooanty of York. 
 
 CD. {L. 9.) 
 or 
 
 CD. (L.S.) 
 E. L. (L. S.) 
 
 B. S. 0. 1877. e. 181, Sched. H ; 44 V. o. 27, s. 26. 
 
 BGHEDULB I. 
 
 (Section loj.) 
 
 Wabrart or OomoTMBiiT ros Fntsx OwwiAca witabb a Pbkalt's is 
 
 Ihpobbd. 
 
 Omtabio, 1 To all or any of the Oonst&bles or other Peaoe Officers in 
 
 County of York, j- the said Ooanty of York, and to the Keeper of the Oommon 
 
 To wit : J Gaol of the said Ooanty at Toronto, in ue Oounty of York. 
 
 Whereas, X. Y., late of the City of Toronto, in the said Oounty, was on this 
 day oonvioted before the nndersigned, C D., Police Magistrate in and for the 
 City of Toronto [or C. D. and E. F., two of Her Majesty's Justices of the 
 Peace in and for the Oity of Toronto or Ooanty of York, (cu the case may be) for 
 that he, the said X. Y.. on at anlawfally did Bell liquor 
 
 witiiont tiie license tiierefor by law required (state offence as ir. the conviction), 
 (A. B. being the informant), and it was thereby adjudged that the said X. Y., 
 for his said oflenoe, diould forfeit and pay the sum of (as in conviction), 
 
 and should pay to the said A. B. the sum of for his costs in that 
 
 behalf. 
 
1 
 
 ^ 
 
 -TP' 
 
 336 
 
 FORMS. 
 
 ■x 
 
 I. 
 
 f 
 
 ■4 
 
 
 g- 
 
 And it was thereby farther adjadged that if the said several snius should not 
 be paid forthwith, the said X. Y. shonld be imprisoned in the Common Oaol 
 of the said County at Toronto, in the said Connty of Tork, there to be kept at 
 hard labour (or vrithont hard labour as the case may be) for the space of , 
 
 nnlesB the said several snms and the costs and charges of conveying the said 
 X. y, to the said Common Gaol should be sooner paid. 
 
 And whereas the said X. Y. has not paid the said several snms, or any part 
 thereof, although the time for payment thereof has elapsed. 
 
 \Ifa distress warrant issued and was returned no goods, or not sufficient goods, 
 say, " And whereas, afterwards on the 16th day of January, A. D. 1887, I, the 
 said Police Magistrate {or we, the said Justices), issued a warrant to the said 
 Gonstables or Peace Officers, or any of them, to levy the said several sums of 
 and by distress and sale of the goods and chattels of the 
 
 said X. Yr. 
 
 " And whereas it appears to me {or us) as well, by the return of the said 
 warrant of distress by the Constable who had the execution of. the same as 
 otherwise, that the said Constable has made diligent search for the goods and 
 chattels of the said X. Y., but that no sufficient distress whereon to levy the 
 said sums could be found."] 
 
 [Or where the issuing of a distress warrant would he ruinous to the defendant 
 and his family, or if it appears that he has no goods whereon to levy a distress, 
 then, instend of the foregoing recitals of the issue and return of the distress warrant, 
 etc., say : 
 
 " And whereas it has been made to appear to me {or us), that the issuing of 
 a warrant by distress in this behalf would be ruinous to the said X. Y. and his 
 family," or " that the said X. Y. has no goods or chattels whereon tu levy the 
 caid sums by distress " as the case may bel. 
 
 These are therefore to command you, the said Constables or Peace Officers, 
 or any one of yon, to take the said X. Y., and him safely convey to the Com- 
 mon Oaol aforesaid, at Toronto, in the County of York, and there dehver him 
 to the said Keeper thereof, together with this precept. 
 
 And I {or we) do hereby command you the said Keeper of the said Common 
 Gaol to receive the said X. Y, into your custody in the said Common Gaol, 
 there to imprison him and keep him for the space of (without hard 
 
 labor or with hard labor as the case may be), unless the said several sums and all 
 the costs and charges of the said distress, amounting to the sum of 
 
 , and of the commitment and conveying of the said X. Y. to the 
 said Oommon Gaol, amounting to the further sum of shall 
 
 be sooner paid unto you the said Keeper, and for so doing this shall be your 
 sufficient warrant. 
 
 Given under my hand and seal {or our hands and seals) this day 
 
 of A. D. 18 , at Toronto, in the said County of Tork. 
 
 C. D. (L.S ) 
 
 or C. D. (L.S.) 
 
 E. F. (L.S.) 
 
 R. S, 0. 1877, Sched. I ; 44 V. 0. 27, s. 26. 
 
'i 'I I U.I W,', 
 
 A sams shoold not 
 the Oommou Gaol 
 lere to be kept at 
 e Bpaoe of , 
 
 lonveyiag the said 
 
 Boms, or any part 
 
 not sufficient goods, 
 A. D. 1887, i, the 
 arrant to the said 
 d several sums of 
 id chattels of the 
 
 starn of the said 
 >n of. the same as 
 for the goods and 
 tereon to levy the 
 
 s to the defendant 
 to levy a distress, 
 te distress warrant, 
 
 tat the issuing of 
 kid X. Y. and his 
 eieon to levy the 
 
 » Peace Officers, 
 tvey to the Goin- 
 there deliver him 
 
 ihe said Common 
 d Common Gaol, 
 (without hard 
 reral sums and aU 
 iim of 
 
 aid X. V. to the 
 
 shall 
 
 bis shall be your 
 
 s 
 >rk. 
 
 D. (L.S) 
 D. (L.S.) 
 F. (L.S.) 
 
 V. 0. 27, s. 
 
 day 
 
 FORMS. 337 
 
 SCHEDULE J. 
 
 (Section loj.) 
 
 Wabo&mx of Commitmxmt roB Second {or Thibd) Offence, wbbbe 
 
 PUNIBQMBNT IS BY IMPBISONUENX OMLT. 
 
 Omiabio, 
 
 County of York. 
 
 To Wit 
 
 ITo 
 J 9 
 
 ALL or any of the Constables and other Peace Officers 
 in the said County of York, and to the Keeper of the 
 Common Gaol of the said County, at Toronto, in the 
 County of York. 
 
 Whereas X. ¥., late of the of in the said Oonnty, vas 
 
 on this day convicted before the undersigned C. £>., etc., {or C. D. and E. F., 
 etc., as in preceding form ; for that he, the said X. Y. on 
 at (state o fence ivith previous convictions as set forth in the conviction 
 
 for the second or third offence, or as the case may be, and then proceed thus) : 
 " And it was thereby adjud;^ed that the offence of the said X. Y. , hereinbefore 
 firstly mentioned, was his second {or third) offence against The Liquor License 
 Act, {A. B., being the informant). And it was thereby further adjudged that 
 the said X. Y. , for his said second (or third) offence should be imprisoned in 
 the Common Gaol of the said Count', of York, at Toronto, in the said County 
 of York, and there to be kept without hard labor (or with hard labor as the case 
 may be) for the space of three calendar months. 
 
 These are therefore to command you the said Constables, or any one of you, 
 to take the said X. Y. and him safely convey to the said Common Gaol at 
 Toronto, aforesaid, and there deliver him to the Keeper thereof, with this 
 precept. And I (or we) do hereby command you, the said Keeper of the aaid 
 Common Gaol, to receive the said X. Y. into your custody in the said Common 
 Gaol, there to imprison him and to keep him without hard labor (or with hard 
 labor as the case may be), for the space of three calendar months. 
 
 Given under my hand and seal, (or our hands and seals), this 
 day of A. D. 188 , at Toronto, in the said County of York. 
 
 C. D. (L.S,) 
 
 or 
 
 C. D. (L.S.) 
 E. F. (L.S.) 
 B. 8. 0. 1877, c. 181, Sched. J ; 44 V. o. 27, s. 26. 
 
 SCHEDULE K. 
 (Section 132.) 
 
 FOBH OF DeOLABATIOM OF FoBFEIXOBB AMD OF ObDEB TO DXBTBOY LiQCOB 
 
 Seized. 
 
 If in conviction, after adjudging penalty or imprisonment, as in Schedule G, 
 proceed thus : 
 
 " And I lor we] declare the said liquor and vessels in wl^ch the same is kept, 
 to wit : two barrels containing beer, three jars containing whiskey, two bottles 
 containing gin, four kegs containing lager beer, and five bottles containing 
 native wine [or as the case may be], to be forfeited to Her Majesty, and I [or we] 
 do hereby order and direct that T. D. , License Inspector of the City of Toronto, 
 \or J. P. W., License Inspector of the East Riding of the County of York\, do 
 forthwith destroy the said liquor and vessels." 
 
 Given under my hand and seal the day and year first above mentioned, at, 
 
 eto. 
 
 Ifi 
 
 i \ : 
 1 1> 
 
 \\ 
 
it I. 
 
 1 1 ;i I 
 
 m, ; i 
 
 338 FORMS. 
 
 Jfiy separate or subsequent Order : 
 
 "OouMTY OF ToBK, \We, E. F. and G. H., two of Her Majesty's Jastioes of 
 To Wit : J the Peace for the Gonnty of York [or C. D., Police 
 
 Magistrate of the City of Toronto], having on the 15th day of March, 1887, at 
 the Township of Soarboro' in said County, daly convicted X. Y. of having 
 unlawfully kept liquor for sale without license, do hereby declare the said liquor 
 and vessels in which the same is kept, to wit : — [describe the same as above], to 
 be forfeited to Her Majesty, and we [or I] do hereby order and direct that 
 /. P. W., License Inspector of the East itiding of the said County, do forthwith 
 destroy the said liquor and vessels." 
 
 Oiven under our [or my] hands and seals, this 17th day of March, A. D. 18 , 
 at the Township of Soarboro' in the said County. 
 
 E. F. [L.S.] 
 
 or 
 
 G. 
 C. 
 
 H. 
 D. 
 
 [L.S.] 
 [L.S.] 
 
 44 V. 0. 27, Sched. K. 
 
 SCHEDULE L. 
 {Sections 2j and 24.) 
 
 FOBU FOB DEBCaiBINO OFFBMOBS FOB SEUilNG, OIVINO, Ob KGBPINa OTHER 
 LIQU3BS BT HOLDER OF BbEB AMD WlMB LlOE «BB. 
 
 " That X. V. being the holder of a Beer and Wine Licenf<e, on at 
 
 did unlawfully sell [or give, or keep for sale] other liquor thau k 
 authorized by his license, in the house and upon the premises for which such 
 license has been granted." 
 
 44 V. 0. 27, Sc/ied. L. 
 
 SCHEDULE M. 
 
 (Section j/.) 
 
 Fbotibiomal consent to tbansfeb of License by the Inbfectob, pending 
 the decision of the boabd of couhissionebs. 
 
 In pursuance of section 87, sub-section 2, of chapter 194 of the Revised 
 Statutes of Ontario, I hereby consent that the Licensee named in the annexed 
 license, his assigns or legal representatives, may provisionally transfer the here- 
 unto annexed lioense, and all his and their interests therein to 
 to be held by hun subject to all of the provisions of the laid Bevised Statute : 
 the written consent to such transfer by the Board of OommissionerH, to be 
 hereafter obtained within the time prescribed by law. 
 
 Dated this * day of A. D. 188 . 
 
 Inspector. 
 N. B. — This provisional consent shall remain in force for 
 days from the d«te thereof, and no longer. 
 
 Countersigned, 
 
 Commissioners. 
 44 V. 0. 27, Sched. M. 
 
jesty's JaBtioes of 
 [or C. D., Police 
 f March, 1887, at 
 X. V- of having 
 lare the said liquor 
 same as above], to 
 ler and direct that 
 tunty, do forthvith 
 
 March, A. D. 18 , 
 
 F. [L.S.] 
 
 D. 
 
 [L.S.] 
 [L.S.] 
 
 27, Sched. K. 
 
 EEBFINO OTHER 
 
 ee, on at 
 
 iher liquor thau is 
 ises for which such 
 
 1. 0. 27, Sched. L. 
 
 Imbpectob, pending 
 
 (XBS. 
 
 194 of the Revised 
 aed in the annexed 
 ly transfer the here- 
 \ to 
 
 id Revised Statute : 
 ommissionerB, to be 
 
 Inspector. 
 
 Cominissiomn. 
 V. 0. 27, Sched. M. 
 
 FORMS. 
 
 SOHEDULE N. 
 
 339 
 
 To the Board of License GommiBsionerB of the License District of 
 
 We the undersigned electors of polling sub-division number of the 
 
 .wherein are situate the premises in respect of which X. K is 
 applying for a license for the ensuing license year, do hereby certify 
 
 that X. F., the applicant for the said license, is a fit and proper person to be 
 licensed to sell liquors and to keep a , and that the premises in which 
 
 the said X. Y. proposes to carry on the business for which he seeks a license, 
 are in our opinion suitable therefor, and that the same are situate in a place 
 where the carrying on of the said business will not be an annoyance to the 
 public generally. And we have hereto appended our names and the distances 
 approximately at which we res; ctively reside or own property, from the said 
 premises for which license is sought. 
 
 Signatures. 
 53 \io. e. 66. 
 
 } 
 
 Distance of premises from premises 
 sought to be licensed. 
 
 ^1' 
 It it' 
 
TW^ 
 
 340 
 
 OTHER FORMS. 
 
 OTHER FORMS. 
 
 Ri'^ 
 
 *« ! 
 
 APPLICATION FOR LICENSE. 
 (See sec. ii, ss. i, p. 17 ) 
 To the Board of License Gommissionerci for the of 
 
 Gentlemen— I wish to obtain a TAVERN License for the Honse and premises 
 situate at which House and premises contain four separate and 
 
 distinct bed-rooms at least, and possesses all other accommodations required 
 by law, including the appliances requisite for daily serving meals to travellurs, 
 and for constituting tha saiu Pramises a well appointed and sufficient eating 
 house. The sureties I tender for the proper observance of all requirements of 
 the Law as a Licensed Tavem-Eeeper, are of and 
 
 of 
 
 In the event of my application being granted, I will pay into the License 
 Fund Account, in the Bank, all duty imposed for such License, and will present 
 the Bank's receipt therefor when applying to the Inspector for the issue of my 
 License. 
 
 Dated at this day of 18 
 
 A form of application for transfer of licenses may be adapted from this. 
 
 BOND OF INSPECTOR. 
 
 The bond to be given by the Inspector of every license district may be framed 
 from the form to be given by the applicant for a tavern license (see p. 329 ante). 
 It should be conditioned for the due performance of his duties and for payment 
 over of all sums of money received by him according to the provisions of The 
 Liquor License Act. The security to be given is to be approved of by the Pro- 
 vincial Secretary, who will furnish the required form together with affidavits of 
 justification if required. See page 12, ante. 
 
 OBJECTIONS TO THE GRANTING OF A LICENSE. 
 {See sec, 11, ss, 7,/. 22, ante, and sec, 11, ss. 14, pages ji-j^y ante,) 
 To_^ the Bo<ird of License Commissioners for the License District of 
 
 The petition of the undersigned, being duly qualified electors of polling sub- 
 division No. of the of in the Electoral District 
 of in the Province of Ontario, 
 
 Shews : 
 
 1. That one A. B, of in the said License District of has 
 applied for a license to keep a tavern or house of entertainment [or to keep a 
 shop wherein liquor may be sold by retail, as the case may be"] in respect of 
 premises occupied by him in the said of being (here describe 
 the premises as set out in the nntice of application) within the said polling sub- 
 division of which we are electors. 
 
 2. That the issue of such license to the said within the said polliDg 
 sub-division is objectionable, and we, the said electors thereof, do hereby object 
 thereto on the following grounds, namely : 
 
 (a) That the said A. B. (the applicant) is of bad fame and character [or is of 
 drunken habits, or has previously forfeited a license, or has been convicted of 
 selling liquor without a license T,!thin a period of one year, or has kept within 
 
base and premises 
 our separate and 
 lodations required 
 leals to travellers, 
 d Buffioient eating 
 ili requirements of 
 and 
 
 ' into the License 
 le, and will present 
 [or the issue of my 
 
 ted from this. 
 
 ;riot may be framed 
 ise (see p. 829 ante). 
 ies and for payment 
 I provisions of T/ic 
 oved of by the Pro- 
 9r with affidavits of 
 
 CENSE. 
 ji-jS, ante.) 
 strict of 
 
 tors of polling sub- 
 ) Electoral District 
 
 ict of has 
 
 ament \pr to keep a 
 ay he] in respect of 
 being {here describe 
 le said polling snb- 
 
 thin the said polling 
 lof, do hereby object 
 
 I character [or is of 
 s been convicted of 
 or has kept within 
 
 OTHER FORMS. 
 
 .MI 
 
 a i>eriod of two years a place in which the illicit sale of liquors was frequent 
 and notorious, as the case may be ; the particular objection or objections taken 
 being stated clearly and definitely in the language of the Statute and not generally^ 
 
 {f)) That the premises in question, and in respect of which such license is 
 applied for, are out of repair \pr have not the accommodation required by law, 
 or have not reasonable accommodation, if the premises he not subject to the said 
 requirements]. 
 
 (c) That the licensing thereof is not required in the neighborhood \pr that 
 the premises are in the immediate vicinity of a place of public worship, or of a 
 hospital, or of a school, or that the quiet of the place in which such premises 
 are situate will be disturbed if a ^ioense is granted]. [All, or any of the above 
 grounds may be stated in the petition, but such grounds as are dlleged must he 
 stated specifically and not generally]. 
 
 We therefore respectfully ask that the application of the said A. B. for such 
 license be not granted or allowed. 
 
 Here folloxv the signatures of the petitioners. 
 
 FORM OF WARRANT OF RESTITUTION. 
 
 .I* 
 
 (Under Sec:ion 68. See pages 14^-1^0.) ^ 
 
 Ontario, \ Be it bemembebed that on the day of 
 
 County of j-A. D. 18 , in the of in the said 
 
 To Wit : J County, complaint was made before the undersigned [Jiere 
 fill in the particulars of complaint as in the luarrant oj distress below), and now 
 at this day, to wit, on the day of the parties aforesaid 
 
 appear before mc, the said Police Magistrate \pr Stipendiiry Magistrate, or 
 before us the said Justices of the Peace \as the case may he) or the said 
 \the complainant) appears before me, the said Police Magistrate {or as the case 
 tnay be), but the said E. F. (the offender), although duly called, does not appear 
 by himself, his counsel or attorney], and it is now sufficiently proved on oath 
 before me that the said E. F. was duly served with the summons in this behalf 
 which required him to be and appear here on this day bafore me (or before us) 
 to answer the said complaint, and to be further dealt with according to law, 
 and that he, the said E. ^■, is, and was at the date of the said offence com- 
 plained of, the holder of :* license under The Liquor License Act of Ontario, 
 and that he did on the said date in the said complaint mentioned at 
 in the of purchase from the said G. H. certain wear- 
 
 ing apparel (or other property, as the case may be) to wit : (here describe the 
 property purchased), the consideration for which, in whole or in part, was 
 intoxicating hquor, or the price thereof \pr if the goods were taken in pawn, 
 receive from G. H., of etc., certain goods in pawn, to wit : (describe the goods) 
 of the value of 9 ], contrary to the said Statute in that behalf, and 
 
 that the value of the said wearing apparel (or other property) is the sum 
 of . I (or we) do therefore order and adjudge the said E. F. 
 
 to make restitution of the said wearing apparel (or other property) to the said 
 G. H. forthwith, and also to pay to 'tha said G, H. the sum of for 
 
 his costs in this behalf ; and if the wearing apparel (or other goods) are not 
 restored and the said sum paid forthwith, then I (or we) hereby order that the 
 value of the said wearing apparel (or other property) together with the said sum 
 of be levied by distress and sale of the goods and chattels of the 
 
 said E. F. 
 
 Given under my hand and seal this day of in the 
 
 year at the in the County of aforesaid. 
 
 A. B., (L. S.) 
 
 Police Magistrate. 
 If the order is made before two Justices of the Peace it should be under the 
 hands and seals of both of them. 
 
 f'V'i 
 
 
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 34a 
 
 OTHER FORMS. 
 
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 WABBANT OP DISTBESS UPON AN ORDEB FOB EESTITUTION. 
 
 ( Under set. fj. See pages 147-1^0.) 
 
 ] 
 
 To all or an: of the Constables or other Peace Officers of 
 the said County of 
 
 Ontabio, 
 County of 
 To Wit: 
 
 Whereas on the day of last past, complaint was 
 
 made before the undersigned A. B., Police Magistrate [or Stipendiary Magis- 
 trate, or A. B. and C. Z>., two of Her Majesty's Justices of the Peace] in and 
 for the said County of that E. F., of the of 
 
 in the County of , (hotel keeper), a person holding a license under 
 
 The Liquor License Act of Ontario, did, on the day of 
 
 at in the County of pnrch9 je from one G. H., of the 
 
 of in the County of certain wearing 
 
 apparel {or tools, or implements of trade or husbandry, or fishing gear, or 
 household goods, or provisions], (as the case may be), to wit : (here insert a par- 
 ticular description of the property purchased,) of the value of $ the 
 consideration for which, in whole or in part, was intoxicating liquor, or the 
 price thereof. 
 
 [Or if the goods were taken in pawn, did receive from G. H., of, Ac, certain 
 goods in pawn, to wit : (describing the property received), of the value of 
 $ ] and afterwards on the day of the said 
 
 parties appeared before me (or us) and thereupon sufficient proof on oath being 
 made before me of the facts, and it appearing that the said E. F, is and was on 
 the day of the holder of a license under the said Act, 
 
 and that he did at the of aforesaid, on the said last 
 
 mentioned day, purchase from the said G, H., the said wearing apparel (or 
 other goods), and that the consideration therefor in whole or in put was intoxi- 
 cating liquor or the price thereof [or did receive the said goods in pawn] , and 
 that the value of such wearing apparel (or other goods) is the sum of 
 as in the said complaint was f^leged, contrary to the provisions of the said 
 Statute in that behalf, it was adjudged that the said E. F. should forthwith 
 make restitution of the said wearing apparel (or other goods) to the said G. H., 
 and that he should pay to the taid G. H. the sum of for his costs 
 
 in that behalf. 
 
 And whereas it was further ordered and adjudged that if the said wearing 
 apparel (or other goods) should not be returned and restored and the said sum 
 be paid forthwith [or within days] the value of the said wearing apparel 
 
 (or other goods) being the said sum of % together with the said sum of 
 
 for costs should be levied by distress and sale of the goods and chattels 
 of the said E. F. * 
 
 And whereas the time in and by the said order appointed for the restitution 
 of the said goods and the payment of the said costs has elapsed, but the said 
 E. F. has not restored the said goods and has not paid the said sum or any part 
 thereof, but therein has made default : These are therefore to command you in 
 Her Majesty's name forthwith to make distress of the goods and chattelB of 
 the said E. F., and if within the space of days after the making of such 
 
 distress restitution of the said wearing apparel be not made, or the said last 
 mentioned sura , being the value of the said wearing apparel [or 
 
 other goods), and the said costs, together with the reasonable charges of taking 
 and keeping the said distress, are not paid, then to sell the said goods and 
 chattels so by you distrained, and to pay the money arising from such sole unto 
 me \pr unto us] that I [or ffe] may pay and apply the same as by law directed, 
 and may render the overplus, if any, on demand to the said E, F.\ and if no 
 
/• 
 
 OTHER FORMS. 
 
 343 
 
 USTITUTION. 
 
 ?eaoe Officers of 
 
 aaoh distress can be found, then to certify the same nnto me [tfrns], to the end 
 that proceedings may be had therein as to law appertain. 
 
 Given under my hand and seal this day of in the year 
 
 in the County of aforesaid. 
 
 A. B. [L. S.] 
 If made by two Justices of the Peace, the warrant should be under the hands 
 and seals of both. 
 
 PETITION FOR THE REVOCATION OF A LICENSE. 
 
 {Under sees, gi^ gs. See pages 208-211.) 
 
 In the County Court of the County of 
 
 In the matter of the License granted to (tiaming the defcmiant.) 
 
 To His Honor the Judge of the County Court of the County of {the County 
 in which the license granted is intended to take effect). 
 
 The Petition otA.B. of the of 
 
 in the County of Inspector of Licenses for the 
 
 License District of 
 
 (or) [of the Board of License Gommiasioners for the 
 License District of ] 
 
 {or) [of A. B., of, etc., the County Attorney for the 
 County of in the License District of ] 
 
 Sheweth as follows : 
 
 1. A license to keep a tavern or house of entertainment [or to keep a shop 
 wherein liquor might be sold by r<^tail] {as the case may be\ was granted under 
 the provisions of The Liquor License Act to the above named 
 
 for the license year 1891-1892 in respect of certain premises therein mentioned, 
 situate in the of in the said County of and in 
 
 the License District of being {here describe the premises licensed) which 
 
 said Ucense is now in full force and effect. 
 
 2. That the said license has been issued contrary to a certain provision of 
 The Liquor License Act [or contrary to the provisions of a certain by-law in 
 force in the said Municipality of within which the license granted 
 is ■'■ /uded to take effect], that is to say : {here set out specifically the provision 
 or provisions of the Act, or of the by-law, in contravention of which tlie license was 
 issued). 
 
 Or, 
 
 That the said license has been obtained by fraud {setting out the facts or 
 circumstances of the alleged fraud). 
 
 Or, 
 
 That the said the person so licensed as aforesaid, has been 
 
 convicted on more than one occasion of the violation of the provisions of sec- 
 tion 79 of The Liquor License Act, that is to say : On the day of 
 A. D. 18 , at the of in the said County of 
 before C. D. and E. P., two of Her Majesty's Justices of the Peace {or as the 
 lasc may be) tor th« said County of the said was duly 
 convicted of {here set out the offence as in the conviction). And further, on the 
 day of , etc. {giving the particulars of each conviction 
 alltged to have been made under the provisions ^ sec. 79. 
 
 Or, 
 
 That the said the person so licensed as aforesaid, has been con- 
 
 victed on three several occasions of the violation of certain provisions of The 
 
 il 
 
 (.liiif'.'-ii 
 
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 1 ■ 
 
 i 
 
 3 
 
 If 
 
 344 
 
 OTHER FORMS. 
 
 Liquor License Act, that is to say : {here insert pariiculars of the several convic- 
 tions alleged to have been made). 
 
 8. For the reason aforesaid the said license should be revoked under the 
 provisions of sections 91 and 92 of The Liquor License Act. 
 
 Your petitioner therefore prays : 
 
 (1) That the said may be snmmoned to appear before your 
 
 Honor ; 
 
 (2) That your Honor may be pleased to hear and determine the matters 
 
 alleged in this petition in a summary manner ; 
 
 (3) That the said license may be revoked ; 
 
 (4) That the said may be ordered to pay the costs of this 
 
 petition and the proceedings had thereupon ; and 
 
 (5) That such farther and other order may be made as your Honor may 
 
 deem just. 
 
 A. B. {signature of petitioner.) 
 
 CONVIGTION FOB INFRACTIONS OF THE BESOLUTIONS OF 
 A BOABD OF LICENSE COMMISSIONERS. 
 
 (See sec. gS, ante, pages aao-aaj.) 
 
 Province of Ontario, '\ Be it remembered that on the day of 
 
 County of V A. D. 18 , at in the County of 
 
 To wit : ) A. B. is convicted before the undersigned, one of Her 
 
 Majesty's Justices of the Peace (or as the ccue may be) in and for the said County 
 of for that the said A. B. {stating the offence and the time and place, 
 
 and when attd where committed), contrary to a certain resolution of the Board of 
 License Commissioners for the License District of , passed on the 
 
 - day of , A. D. 18 , (reciting pariiculars of the resolution) 
 
 and I adjudge the said A. B. for his said offence to forfeit and pay the sum of 
 , to be paid and applied according to law, and also to pay C. D., 
 the complainant, the sum of for his costs in this behalf. And if the 
 
 said sums are not paid forthwith \pr on or before the day of 
 
 as the case may be\ I order that the same be levied by distress and sale of the 
 goods and chattels of the said A. B.. and in default of sufficient distress I 
 adjudge the said ^. ^. to be imprisoned in the Common Gaol of the said 
 County of [or in the look-up at ] for the space ef 
 
 days, unless the said several sums, and all costs and charges of conveying the 
 said A. B. to such goal [or lock-up] are sooner paid. 
 Given under my hand and seal, the day and year first above written, at 
 in the County of 
 
 J. M., 
 
 f.P. [L.S] 
 
 ^b 
 
 PBOCEEDINGS ON MOTION FOB WBIT OP CEBTIOBABI 
 (See sec. lOJ, pp. 244-247.) 
 ^OTicB OF Motion. 
 Esquire, Police Magistrate in and for the 
 
 of 
 
 Of the case 
 
 [or Justice of the Peace for the County of 
 may be] . 
 Whereas, you did, on the day of 
 
 Lord, 18 , at the of in the County 
 
 convict (name of person convicted], for that he did (here describe the 
 
 offence as set out in the conviction). 
 
 in the year of our 
 
 a 
 
ITIOBABI. 
 
 a the year of our 
 
 y 61 
 
 i {Aere describe the 
 
 OTHER FORMS. 
 
 345 
 
 And, whereaa [here set out the grounds on which certiorari is asked, as, for 
 instance), the ptmishment imposed ia in exoesB of that allowed by law ; that 
 the aaid Polioe MaRlatrate [or Jaatioe or Jaatioes] had no joriBdiotion over the 
 Raid offenoe, and therefore, ai well as on other grounds, the said oonviotion ia 
 irregolar and illegal. 
 
 Wherefore, the aforeaaid {person convicted) being reaolved to 
 
 seek a remedy for the injury he haa reoeived and aaatained by means of said 
 eonviotion, we [or I] do, on behalf of the aforesaid (person convicted), 
 
 give yon notioe that motion will be made before the presiding Judge in Oham- 
 bera in the Queen's Beneh and Oommon Pleaa Diviaiona of the High Court of 
 Justice at Osgoode Hall, Toronto, on the day of 
 
 A. D. 18 , at the hour of o'olook in the forenoon, or so soon there- 
 
 after as the motion can be made for a writ of certiorari, to issue out of the 
 Oommon Fleas Division of the High Court of Juatice, to be directed to you, 
 the said (Polioe Magistrate or Justice) for the removal of the record 
 
 of such conviction to the said Division of the ntid Court. 
 
 Dated 
 
 Tours, etc., 
 
 A., B. (fe C, Qf the 
 of in the County of 
 
 Solicitors for 
 the said 
 
 BEOGGNIZANGE. 
 
 County of 
 To Wit 
 
 w 
 
 Be it behehbbbed that on the day of 
 
 the year of our Lord one thousand eight hundred and 
 the year of the reign of our Sovereign Lady Victoria 
 
 by the Grace of God of the United Kingdom of Great Britain and Ireland, 
 Queen, Defender of the Faitii, {person convicted) of the 
 
 of in the County of and of the 
 
 of in the Oounty of and of the 
 
 of in the County of came before me, one of Her 
 
 Majesty's Justices of the Peace in and for the said Oounty of 
 (or Police Magistrate), in and for the of {as the case 
 
 may be), and acknowledged to owe to our Sovereign Lady the Queen the sum of 
 of lawful money of Canada to be levied upon their goods and 
 chattels, lands and tenements, to Her Majesty's use, upon condition that if 
 the said should prosecute with effect, without any wilful or affected 
 
 delay at his own proper costs and charges, a writ of certiorari issued out of tl^e 
 High Court of Justice of Ontario, Oommon Pleas Division, to remove into thb 
 aaid Court all and singular the record of a conviction of the said 
 dated on or about the day of A. D. 189 , whereby 
 
 the said was convicted by the said {naming the P. M. 
 
 or Justice or Justices, as the case may be) of {here state the offence as set out in the 
 conviction), and shall pay to the prosecutor, within one month next after the 
 said record of conviction shall be confirmed in the said Oourt, all bib said full 
 costs and charges, to be taxed according to the course of the said Court, then 
 this recognizance to be void, otherwise to remain in full force. 
 
 Taken and acknowledged the day' 
 and year aforesaid at the said 
 
 of 
 before me 
 
 Justice of the Peace in and for the County 
 of {or as the case may be). 
 
 NoTg.— The patty prociecuting the certiorari must himself enter into the recog- 
 nizance with two sureties in addition. 
 
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 Th« NMgnlzano*! an ntanisd by the JnitlMi along with the tertioruri to 
 tho Grown offloer, and fllad. It ii the duty of the Megietrste to return all 
 prooeedinge, not only preyioaa to date of the writ, bat alio after the date. 
 
 The reeognizanoe ahoold be aooompanied by affldavitB of jaatifioation of the 
 ■oretieB in the nsaal form. 
 
 In the following ease objeotion was taken to the writ of certiorari being filed, 
 ai no recognizance had been entered into, and Paley on Oon., 6th ed., 441, wag 
 oited in rapport of it ; bat the objection waa OTerroled, and it wae held that on 
 the retam of the writ a recognizance is nnnecMeary : per Boae, J., B. v. Nann, 
 10 P. B., 895 : aee also caaea cited atUe, p. 246. 
 
 } 
 
 WRIT. 
 
 Ortabxo, 
 In the High Ooort of Jnatioe, 
 
 Oommon Fleaa Diviaion. 
 
 In the matter of (name .of person convicted). 
 
 Victoria, by the Oraee of God, of the United Kingdom of Great Britain and 
 Ireland, Qaeen, Defender of the Faith. 
 
 To (convicting P. Af., Justice or Justices, as the case may be) Police Magiatrate 
 for the of and Jaatice of the Peace for the Ooanty of 
 
 (or as the case may de), Hnd to the Olerk of the Peace for the Ooanty of 
 Greeting : 
 
 We, being willing for certain caaaea, to be certified of certain conviction and 
 proceedinga had before yon the aaid aa each Police Magiatrate {of 
 
 such Justice or Justices of the Peace, tu the case may 6e) in and for the aaid of 
 
 agamat (person convicted) whereby the aaid 
 
 (person convicted) waa on the day of 18 , convicted and 
 
 adjadged to pay a fine of 9 and ooata for (here insert the offence as stated 
 
 in the conviction), command yon that yon aend to aa in oar High Court of 
 Jaatice, Oommon Pleas Division, at Toronto, forthwith on the receipt hereof, 
 all and singular, the information, depositions, evidence, conviction, orders and 
 proceedings aforesaid, with all things toaching the same as fnlly and entirely 
 aa they remain in the caatody or keeping of yon or either of yoa by whatsoever 
 namea the papera may be called therein, together with thia writ, that we may 
 farther caaae to be done therefrom what of right and according to law we shall 
 aee fit to be done. 
 
 Witnesa the Honorable John Alexander Boyd, Preaident of onr aaid Ooart at 
 Toronto, thia day of in tiie year of onr Lord one thousand 
 
 eight hundred and 
 
 " Wm. B. Howard." 
 
 ISBued from the office of the Begistrar of the Oommon Pleas Division of 
 the High Oourt of Justice, in the Oonnty of Tork, under and parsuant to the 
 order of the Honorable Mr. Justice and bearing date, the day of 
 
 18 . 
 
 "M.B. Jackson." 
 
 OBDEB NI8I. 
 
 In the High Oourt of Justice, Common Fleas Division, Michaelmas Sitting, 
 66 Yictoriaa (or as the case may be). 
 Monday, the day of June, 1891 (or as the case may be). 
 
 The Queen 
 aga&ist 
 CD. 
 Upon reading the writ of certiorari herein and the return thereto, and the 
 
•i 
 
 OTHER FORMS. 
 
 341 
 
 Great Britain and 
 
 papers therewith filed, the reoogniaanoe entered into by the defendant and hie 
 Baretiea, and the affidavite o( filed the day of 
 
 1891. 
 
 It ii ordered that Police Magistrate in and for the 
 
 of {or other convicting Justice or Justices, as the case may be) and 
 
 of the of In the Oonnty of {the complainant 
 
 or prosecutor) upon the first day of next sittings, do shew oanse 
 
 why a certain oonTiction now on file in this Court, whereby the above named 
 
 {person convicted) is oonvioted before the said {Police 
 
 Magistrate or Justice or Justices, as the ease may be) on the complaint of the said 
 
 lor that the said {person convicted) did {liere describe 
 
 the offence as stated in the conviction) should not be quashed on the following, 
 among other grounds : 
 
 (Here set out the grounds on which the application is based, as for instanee) : 
 
 1. That the said (naming the Police Magistaate, or 
 Justice or Justices, as the case may be), had no jurisdiction to try the offence set 
 out in the said conviction. 
 
 2. That the evidence on which the said conviction is based does not establish 
 any offence to support the conviction, but on the contrary negatives the offence 
 in the conviction set out. 
 
 8. That the said (naming the P. Af., Justice or 
 
 Justices), exceeded any jdrisdiction, he {or they) had to try the offence set out 
 in said convietion. 
 
 4. That the conviction was alleged to be for a third offence, and the punish- 
 ment awwded was the same as for a second offence, and no punishment was 
 provided by the Statute for a third offence. 
 
 6. That the conviction was alleged to be for a second offence and the penalty 
 or punishment awarded was for a second offence, and that the said conviction 
 was illegal, inasmuch as it appeared from the evidence and conviction that the 
 ■aid had not been convicted of a prior offence before he 
 
 committed the alleged offenoe of which, by the said conviction, he was adjudged 
 to be guilty. 
 
 6. That no information was laid authorizing the said 
 
 (P M., orjmtice or Justices, as the case may be), to deal with the matter of the 
 aaid eompluitt as a second or subsequent offence. 
 
 7. That the said (P.M., or Justice or Justices, as 
 the case may be), had no power to award costs of the commitment and convey- 
 ance to gaol of the said (person convicted). 
 
 8. That the said conviction states numerous offences, and it does not appear 
 thereby of what particular offenoe therein mentioned the said 
 
 (person convicted) was convicted. 
 
 9. That the offence proved, as appears by the evidence, is not within the 
 provisions of the said Act. 
 
 10. That the convietion does not follow the minute of adjudication made by 
 the said (Magistrate, or Justice or Justices, as the case may be), when the defen- 
 dant was before him. 
 
 On motion of Mr. 
 
 of Oounsel for the said 
 By the Court, 
 
 M. B. Jackson. 
 
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 AFFIDAVITS. 
 
 The affidavits upon which the application for certiorari is based shonld be 
 entitled in the Oonrt into which the proceedings are to be removed as A.^'lows : 
 
 " In the High Court of Jaotice, Common Pleas Division. 
 
 In the matter of John Barrett (see in re Barrett, 28 U. 0. B., 669, cited ante 
 p. 244). 
 
 The affidavits required are : ' 
 
 1. Affidavit of service of duplicate of the notice of motion for certiorari. Jix 
 days' notice is required, and the affidavit of service should identify the 
 Magistrate served as the convicting Magistrate. But an affidavit was amended 
 in one case. 
 
 2. Affidavit of service of the original writ of certiorari. The original writ 
 must be served on the Magistrate. It is not necesst^ry to serve a copy of it on 
 the complainant. 
 
 8. Affidavits setting out the proceedings hi.^ before the convicting P. M., 
 Justice or Justices, the objections taken at the hearing, the objections to the 
 conviction, and the facts and circumstances bearing upon the case. 
 
 It is discretionary in the Court either to grant or refuse the prayer of the 
 defendant. 
 
 Some special ground must be laid before the Court by affidavit on moving 
 for the rule, for where it was moved for on the ground of the jurisdiction 
 not appearing on the conviction, and there was no affidavit shewing the want of 
 jurisdiction, the application for the etrtiorari was refused. 
 
 A slight ground, however, will be sufficient for applying for the writ, bnt 
 there must be some. Where the application for a writ ol etrtiorari rests on the 
 grounds of defective jurisdiction, matters in which the defect depends may be 
 apparent on the face of the proceedings, or may be broi^{ht before the Superior 
 Court by affid^t'f It, but they must be extrinsic to the jurisdiction impeached. 
 
 Objections of this kind may be founded on the ohuracter and constitution of 
 the inferior Court, the nature of the subject-matter of the inquiry, or the 
 absence of some preliminary proceeding, whidi was necessary to give jurisdic- 
 tion to the inferior Court. 
 
 Even express words taking away the eerHorari are inapplicable where there 
 in u want of excess of jurisdiction, which may be shewn by affidavit. Certiorari 
 must be moved for in six months after conviction. It must be duly proved on 
 oath that six days' notice thereof, in writing, was given to the Justices. 
 
 Affidavits may be used to shew a want of jurisdiction, although th^y contra- 
 dict, for this purpose, the finding of the Justices : B. v. Bolton, 1 Q. B., 66. 
 
 The Magistrate may set forth grounds of decision and facts bearing on the 
 question by affidavit. See Palqr on Con., 422-462. 
 
 The Court must be satisfied on affidavits that there is sufficient ground for 
 issuing the writ, and it must, in every case, be a question for the Court to 
 decide whether, in fact, sufficient grounds do exist ; and it seems doubtfol 
 whether the applicant shonld not produce a copy of the proceedings before the 
 Justice, or account for not doing so, and their inbstance should in all cases be 
 before the Court : Clarke's Crim. Law, 466. 
 
 Certiorari may be granted to remove proceedings which are void. It can 
 only be taken away by eKpress words, and even when expressly taken away by 
 Statute, the writ may be granted (B. v, Hoggard, 80 U. C. B., 166) where there 
 is ground for the belief that the conviction was had without proof : ex parte 
 Morrison, 18 L. C. J., 296 : ex parte Church, L. C. B., 818 ; ex forte Lalonde, 
 16 L. C. J., 261, and generally where there is a plain excess of jurisdiction : 
 Hespeler and Shaw, 16 U. 0. B., 104 ; tx forte Matthews, 1 Q. L. B., 861. So 
 it lies where the conviction on iti iMe ii oafeotive la labstaaoe, •■ omitting to 
 

 OTHER FORMS. 
 
 349 
 
 . B., 669, cited ante 
 
 state the ressonB oa whioh it is based. And tk prima facie OMe shewing want 
 or excess of jarisdiotion, or that the Oonrt was illegaUy convened or illegaly 
 constitated will be sufficient to obtain the writ. 
 
 Where jadgment has been prononnced in open Court and afterwards changed 
 in such a manner as to increase the amount whioh the defendant was ordered 
 to pay, the judgment will be set aside on certiorari. 
 
 After the return of a certiorari, affidavits may be used to shew W8r<t of juris- 
 diction in the Justice, when the fact does not appear in the return. 
 
 But affidavits on which the writ is obtained cannot be used to contradict the 
 return : Clarke's Crim. Law, 466-46B. See also cases cited ante, pages 289-247. 
 
 03STS. 
 
 As to eosts of the application to quash a conviction, see B. v. Kennedy, 10 
 0. B., 896 ; B. v. Bamsay, 11 0. B., 210 ; B. v. Elliott, 12 0. B, 627 ; B. v. 
 Wallace, 4 0. B., 188 ; B. v. Newton, 11 P. B., 98 ; B. v. Wallace, 13 0. B., 88 ; 
 B. V. Young, 18 0. B., 198 ; B. v. Beard, 18 0. B., 618 ; B. v. Bradford, 13 
 0. B., 786 ; B. r. Boe, 16 0. B., 1 ; B. v. Ambrose, 16 0. B., 261 ; B. v. Brady, 
 12 0. B., 868 ; Oraham v. McArthur, 26 U. 0. B., 478 ; B. v. Dowling, 17 0. B., 
 698 ; B. V. Bowlin, 19 0. B., 199. Bee also oases cited ante, pages 226, 328. 
 
 TABLE OF FEES TO BE TAKEN BT JUflTIOES OF THE PEACE, 
 
 OB THEIB CLEBKS. 
 
 {Seepage aas ante ; R. S. 0., c. 78.) 
 
 1. For an Information and Warrant for apprehension, or for an Inform- 
 
 ation and Summons for assault, trespass, or other misdemeanor.. $0 60 
 
 2. For each copy of Summons to be served on defendant or defendants . 10 
 
 8. For every Subposne., {only one Subpana on each side to be charged for 
 
 in each case, which may contain any number of names.) 10 
 
 (If the Justice oft'u case requires it, additional Subpcenas shall be issued 
 without charge.) B. S. 0. 1877, c. 77, Sohed. A, items 1-8 ; Sched. 
 B, items 1-8. 
 
 4. For every Beoognizanoe (only one to be charged in each case) 26 
 
 5. For Information and Warrant for surety of the peace for good 
 
 ^it!lM!no\a,{to be pttid by Complainant) 60 
 
 6. For Warrant of Commitment for default of surety to keep peace or 
 
 good behaviour (to be paid by Complainant) 60 
 
 B. S. O. 1877, c. 77, Schedule A. 
 
 7. For hearing and determining the case. 41 Y. c. 4, s. 6 60 
 
 8. Where one Justice alone cannot lawfully hear and determine the 
 
 case, an additional fee for h^<uring and determining to be allowed 
 
 to the associate Justice « 60 
 
 In ease more Justices hear the case, the Justice by whom the infor- 
 mation was taken, if he hear i the case, shall be entitled to one 
 fee of fifty cents for hearing and determining, and the Justice 
 who sat at his request shall be er.titled as associate to the said 
 additional fee, when o*ie is chargeable ; if a case occurs whioh is 
 not covered by this provision, the Justices shall be entitled to the 
 fees according to i;heir seniority as Justices. 48 V. c. 18, s. 84. 
 
 9. For Warrant to levy penalty 26 
 
 10. F(<r making up e^ery Becoid o! Conviction where the same is ordered 
 
 to be returned to the Sessions, or on certiorari 1 00 
 
11' 
 
 1 ;■ ■ i 
 
 rf;,li. 
 
 350 OTHER FORMS. 
 
 11. Bat in all omsb whioh admit of a Bnmmary proeeeding before a 
 
 single Jnatioe of the Peaee, and wherein no higher penalty than 
 920 can be imposed, there only shall be charged for the oonviotion 
 
 not more than 60 
 
 And for the Warrant to levy the penalty 26 
 
 12. For eopy>of any other paper connected with any trial, and the 
 
 minutes of the same if demanded — per folio of one hundred words 10 
 
 18. For evciry Bill of Ooiita, {when demandtdto be made out in detail) 10 
 
 {Items I a and 13 to be only chargeable vthen there has been a conviction,'^ 
 
 B. S. 0. 1877, 0. 77, Sched. B, items 6-9. 
 Provision is made for security for Costs in certain actions against 
 Justices of the Peace by 68 V. c. 28 (0). 
 
 m^ 
 
 LIST OF lilOENBE DISTRICTS IN THE PROVINCE OF 
 
 ONTABIO. 
 
 1 , 't I 
 
 'M 
 
 I'i ■. I .■ ■ 
 
 * 1 ;•. * 
 
 ■';i 
 
 Addington, 
 Algoma, 
 Brant, North, 
 Brant, South, 
 Brantford, City, 
 Brookrille and Leeds, 
 Bruce, Centre, 
 Bruce, North, 
 Bruce, South, ' 
 Oardwell, 
 Carleton, 
 Oomwall, 
 Du£Ferin, 
 Dundas, 
 Durham, East, 
 Durham, West, 
 Elgin, East, 
 Elgin, West, 
 Essex, North, 
 Essex, South, 
 Frontenac, 
 Olengarry, 
 Grenville, 
 Q/tvy, Centre, 
 Orey, North, 
 Orey, South, 
 Haldimand, 
 Haliburton, 
 Halton, 
 Hamilton, 
 Hastings, East, 
 Hastings, North, 
 
 Hastings, Wes^, 
 Huron, East, 
 Huron, Soutii, 
 Huron, West, 
 Kent, Bast, 
 Kent, West, 
 Kingston, 
 Lambton, East, 
 Lambton, West, 
 Lanark, North, 
 Lanark, South, 
 Lennox, 
 Lincoln, 
 London, 
 Manitoulin, 
 Middlesex, East, 
 Middlesex, North, 
 Middlesex, West, 
 Monok, 
 Muskoka, 
 Nipissing, 
 Norfolk, North, 
 Norfolk, South, 
 Northumberland, East, 
 Northumberland, West, 
 Ontario, North, 
 Ontario, South, 
 Ottawa, 
 Oxford, Norih, 
 Oxford, South, 
 Pany Bound, 
 Petl. 
 
 Perth, North, 
 Perth, South, 
 Peterborough, East, 
 Peterborough, West, 
 Prescptt, 
 Prince Edward, 
 Bainy Biver, 
 Benfrew, North, 
 Benfrew, South, 
 Bussell, 
 St. Oatharines, 
 Simooe, Centre, 
 Simcoe, East, 
 Simeoe, West, 
 Stormont, 
 Thunder Bay, 
 Toronto, 
 Victoria, East, 
 Victoria, West, 
 Waterloo, North, 
 Waterloo, South, 
 Welland, 
 
 Wellington, East. 
 Wellington, South, 
 Wellington, West, 
 Wentworth, North, 
 Wentworth, South, 
 Tork, East, 
 Tork, North, 
 Tork, West. 
 
INDEX. 
 
 351 
 
 INDEX. 
 
 AOOmENT. 
 
 Lia' "Ity of innkeeper in oertaLn oases of, 268. 
 
 Aathorities respecting, 270. 
 AOOOMMODATION. 
 
 Defined, 26 (&). 
 
 Oommissioners may exempt oertain taverns from having, 11, 62. 
 
 Beqoired by every tavern or inn, 61. 
 
 Every tavern mast be an eating hov.8e, 63. 
 
 Gonnoil of oity or town may prescribe requirements, 68. 
 
 Penalty for refusing acoommodation to travellers. 169. 
 
 ACT BESPEOTINQ LOCAL OPTION BY-LAWS.— 94. / 
 
 ACTION. 
 
 Notice of, 11. 
 
 Against officers, 288. 
 
 ACTUAL OFFENDERS. 
 LiabiUty of, 266. 
 
 ADDBESB. 
 
 Person foond in onlioensed place mast give, 295. 
 Penalty for refusing or giving false information, 296. 
 
 ADJOURNMENT. 
 
 Of meeting of Board, 80, 87. 
 
 Of proceedings before Justices, 824, • 
 
 AGENT (see Masteb and Sebvant). 
 
 May appear for objector, 27. 
 
 Defined. 81. 
 AGRICULTURAL EXHIBITIONS (see Fair Grounds). 
 
 No license to issue on days of, etc., 41. 
 
 ALEHOUSE (see Bbbb and Wins). 
 
 Defined, 6 («). 
 AGBBEMENT (see Oontbaot). 
 
 To enable unlicensed persons to sell liquor unlawful, 147. 
 AMENDMENTS (see Ihtobkation, Conviction, bto.) 
 
 Of information, 280-236, 287-289. 
 
 Of conviction, 240-248. 247. 
 
 Li case of subsequent conviction quashed, 229. 
 
 APPAREL (see Wsabino Appabel). 
 
 APPEALS. 
 
 Convictions of Justices final, except as otherwise provided, 269. 
 
 Proceedings on, 268. 
 
 Appellant to enter into recognizance or deposit penalty and costs, 264. 
 
 Justices to transmit papers to Clerk of County Gonit, 266. 
 
 Clerk's fees thereon, 266. 
 
 Practice and procedure thereon, 265. 
 
 To the Court of Appeal, 266. 
 
 
 ' 
 
 11 
 
fwm 
 
 1 
 
 1 
 
 > ■ 1 ■ . ' 1 
 
 i 7 ! 
 
 ii 
 
 in' 
 
 ■ I I 
 
 
 
 ::i;- 
 
 
 
 3S» 
 
 1ND7-X. 
 
 APPEALS— Continued. 
 
 From Jostioes, 263. 
 
 From County Ooort or Jncle«, 266. , 
 
 Costs in Appe«I from oonvlotion, 267. 
 
 Authorities m to, 26S-il68. 
 
 Appeals from a Eigh.Oonrt or Judge thereof, etc., to the Court of 
 
 Appeal, 268. 
 From Stipendiary Magistrates, 299. 
 From order quadiing oonviotlon, 828. 
 
 APPLICATION OF PENALTIES (see PEHiLinis).— 206-208. 
 
 Under the C. T. Aot, 828. 
 APPLICATIONS (see PaimoM). 
 
 For tavern and shop lioenses, 17. 
 
 Conditions to be complied irith on, 18 (y). 
 
 Must be accompanied by report of Inspector, 17 
 
 Must be made by true owner of business, 19. 
 
 Notice of to be given by Inspector, 21. 
 
 List of to be kept. 21. 
 
 Objections to, 22-87. 
 
 Notice of objection, 28, 80, 81. 
 
 Be-hearing of application, 81. 
 
 For new license must be accompanied with certificate of a majority of 
 electors, 81. 
 
 Decision of the Board as to, final, 80. 
 
 List of to be posted up by Lispector, 86. 
 
 " Application " and " petition " defined, 86. 
 
 Applicant to be heard, 86. 
 
 must be true owner of business, 88. 
 
 must comply with requirements of Statute, etc., 39. 
 
 Commissioners may grant or refuse at their discretion, 89. 
 
 For shop licenses, 66. 
 
 For wholesale license, 72. 
 
 APPLUNOES. 
 
 Existence of prinui fdeie evidence, 260. 
 APPBOYAL OF BT-LAWS (see Bt-law). 
 ASSAULT. 
 
 By intoxicated person, liability of person furnishing the liquor, 272. 
 ASOIONEE. 
 
 In insolvency, sale by, 108. 
 ASSOCIATIONS (see Clubs).— 132. 
 AUTHOBITT (see Lxoiblativb Authoutt). '' 
 
 Things done under authority of Statute, 47. 
 
 AUTHOBITIES. 
 
 As to convictions for selling without license, 108-111, 167-164. 
 
 B 
 
 BANE. 
 
 License duty to be paid into, 40. 
 
 BAB-BOOM. 
 
 Beireshment bar, not an inn, 6. 
 
 To be kept closed on Saturday night and Sundi^, 126-188. 
 
 One only to be kept, 147. 
 
 Existence of to be evidenee, ete. , 250. 
 
 BEEB AND WINE LICENSE. 
 Issue of, 66. 
 
mmt 
 
 )., to the Court ot 
 
 ite of a majority of 
 
 the Uqaor, 272. 
 
 INDEX. 353 
 
 BEEB AND WINE LICENSE— Continued. 
 Definition of, 67. 
 
 Holder of, rabjeot to conditions of tavern Uoenee, 68. 
 Not to sell or keep spirits, 69. 
 May be cancelled by Gommissioners, 60. 
 May be revoked by County Judge, 60. 
 Not to sell madeira, port or sherry, 60. 
 Inspector may test liquors kept by licensee, 61. 
 Duties payable on, 89, 101. 
 Licensee may be disqualified from holding, 201. 
 
 BOAi^D OF LICENSE OOMMISSIONEBB (see Gohuissiombbs). 
 BOND (see Seoubitt). 
 
 Of Inspector, 12. 
 
 Of tavern licensee, 64. 
 
 Conditions of, 66. ' 
 
 Form of. 829. 
 
 Of shop licensee, 66. ■ 
 
 BOOKS (see Pboduotiom of Dooomemtb). 
 BBEWEBS. 
 
 Provincial Legislature cannot tax and regulate trade of, 72 (U). 
 
 Sees. 49 and 60 not to apply to, ll/li. 
 
 Definition of, 116 (p). 
 
 BUSINESS (see Intbbfbbtatiom). 
 What is, 146, 146. 
 
 BY-LAWS. 
 
 Power of License Commissioners to make, 9 (j>) 126. 
 
 Bequisites of, 10. 
 
 Limiting number of tavern licenses, 61. 
 
 Authorities on, 61, 64, 126. 
 
 As to tavern accommodation, 63. 
 
 Copy of to be sent to Commissioners, 68. 
 
 Of Municipality imposing duties, 90. 
 
 Befusal to quash on account of dday in moving, 90. 
 
 As to repeal of, 91. 
 
 Approval of, 91. 
 
 Electors entitled to vote on, 91. 
 
 Authorities as to, 62, 92-96. 
 
 Prohibiting sale of liquor in Mnnioipalities, 92. 
 
 Act respecting local option by-laws, 94 
 
 Authorities as to, 92-97. 
 
 Power to pass, pending repeal of C. T. Act, 97. 
 
 When duties exceed statutory figure they are not affected until altered 
 
 by, 99. 
 Amount of duty imposed by, may include Oovernmsnt duty, 101. 
 Prohibiting sale of liquor on Saturday night and Sunday, 126. 
 
 c 
 
 CANADA TEMPEBANCE ACT. 
 Meaning of expression, 7. 
 
 Isiue of licenses where C. T. Act has been in force and repealed, 15. 
 Power of Municipalities to pass by-laws pending repeal of, 97. 
 Not i^ected by the Liquor License Act, 801. 
 Commissioners and Inspectors may be appointed where in force, 301. 
 Duties in such case, 302. 
 Wholesale licenses under, 308. 
 Sections as to duties of officers under Liquor License Act to apply, 803. 
 
■V 'I 
 
 354 
 
 INDEX. 
 
 1 >: 
 
 'u. 'i' 
 
 1 ■; 
 
 ■ 
 
 1 ■ : 
 
 > ■! r 
 
 
 
 ■; ;! ' i ^ 
 
 1 
 
 II 
 
 
 ^ j; 1 ■ ' ■ 
 
 « 
 
 ft . 
 
 ■'!■ ; 
 
 
 
 
 
 j.' " '^ ; 
 
 II 
 
 
 , 'J-, 1 
 
 ,1 f.,^ . 
 
 Pji "> 
 
 . ''^'- '■ 
 
 \ i \ '. 
 
 ff''i!2 
 
 n. 
 
 ' ' ' 
 
 '■;'-, 
 
 S'-B! 
 
 r .■ 
 
 ■ ' 1 
 
 '!'■ . i' ; ' ' 
 
 %^-W 
 
 ■;.h 
 
 , .1 -> ,- r 
 
 -". ... -, . ^ . ■ 
 
 II>«> 
 
 ti 
 
 ' !'. ■ -'. 
 
 
 ^ y'^ 
 
 V:' 
 
 
 . . . . , i ' * - ' 
 
 1 
 
 if 
 f ■ 
 
 
 Si'.!-' . ■■' ^ ■ 
 
 1 
 
 'T^:-'- 
 K ' 
 
 ip 
 
 
 E 
 
 Pll 
 
 ii 
 
 1 
 
 
 m 
 
 AftHfiU 'n|' T 
 
 OANADA TBMPEBANOE AOT-Continued. 
 
 Maniolpal Ooanoils may aid in enforoing, 808. 
 
 to ftumiuh statomenta of receipts and expenses, 804. 
 Proaeoutions ander, 804. 
 
 Expense of enforoinR the Liqaor license Act in Monioipalities under, 804. 
 Proportion pay.Able by the Province or Municipality, how and when to be 
 
 paid, 804, 805. 
 Payment of proportion, how enforced, 805. 
 Expenaea of enforcing in citiea, 806. 
 Payment of expenses of license district where 0. T. Act in force in part 
 
 only of district, 807. 
 Duties for licenses issued under, 807. 
 Application of duties, 808. 
 
 Payment of expenses of license district when in foroe, 808. 
 Share of expenses of district to be paid by dty or town where in 
 
 force, 809. 
 Payiuent of portion of expenses out of consolidated revenue, 810. 
 Pending proceedings not affected, 811. 
 
 Lieutenant-Qovemor may create license diatrict where in force, 811. 
 Deciaiona and authorities respecting, 812. 
 OABBYING ON BUSINESS (see Imtebpbeiation). 
 defined 146, 146. 
 
 CENSUS. 
 
 Number of population to be determined by, 48, 101. 
 
 Manner of taking new censua, 60. 
 
 Meaning of <* laat preceding census," 48. 
 
 How population determined for purposes of sec. 44, 101, 
 
 OHABAOTEB. 
 
 Report of Inspector as to, 17. 
 
 Meaning of good character and repute, 18 {y). 
 
 Objections to, 28. 
 
 notice must be given of, 28, 29. 
 
 form of notice, 840. 
 Penalty for allrwlng persons of bad charaotar to assemble, 177. 
 Definition of '- notoriously bad character," 177. 
 
 CERTIFICATE. 
 
 Of good character, 18 (^). 
 
 Of majority of electors required with application for new license, 81. 
 
 Required in unorganized districts, 84 
 
 Form of certificate, 36. 
 
 Time for presenting, 86. 
 , , Time for filing, 86. 
 
 List of, to be posted by Inspector, 85. 
 
 Of payment of license duty, 40. 
 
 In contravention of the Act void, 42 {g). 
 
 Of Inspector /n'ma facie proof of license, 248. 
 CERTIORARI. 
 
 To quash a conviction, 244. 
 
 Authorities respecting, 244-247, 825. s, 
 
 Forms and proceedings thereon, 844. ' ' 
 
 CHEMISTS. 
 
 Exceptions in favor of, 118. 
 
 Duties of. with respect to sale of liquor, 119. 
 
 CHEQUES. 
 
 , Upon license fund account, 104. 
 
 OBIEV INSPECTOR (see Inspiotob). 
 
INDEX. 
 
 355 
 
 ot in foiroe in part 
 
 lew lieense, 81. 
 
 CHIEF OF POLIOE (aee Polioi). 
 
 T>) enforoa provisions as to dnty of oonstables, 'i99. 
 
 OITIBS. 
 
 Definition of, 7. 
 
 Namber of tavern licenses to be issued in, 46. 
 
 CIVIL REMEDIES AGAINST INN-KEEPERS. 
 
 Liability of inn-keepers or persons in their employ who give liquor to 
 
 persons who beoomo intoxicated, 268. 
 Bestriotions on sale to inebriates. 272. 
 
 CLEBE OR SERVANT (see Mastbb and Sbbvamt). 
 Liability of principal for acts of, 224. 
 
 CLERK OP COUNTY COURT. 
 Fees to, in appeal casef* 265. 
 
 CLERK OF MUNICIPALITY. 
 
 To certify in case ot dispute as to qualification of electors, 83. 
 Mnst send copy of by-law to License Oommissioners, 68. 
 
 CLOSING LICENSED PREMISES. 
 
 On Saturday nighb and Sunday, 126, 
 
 When persons other than keeper of house guilty, 188. 
 
 CLUBS. 
 
 Not to sell liquor, 122. 
 
 Keeping of liquor by, a violation of sec. 60, 123. 
 
 Consumption of liquor by, evidence of sale, 124. 
 
 COMMISSIONERS, LICENSE. 
 Appointment of, 7. 
 Powers of Legislature as to, 7 (h). 
 Powers of, 8, 126. 
 
 May define conditions and qualifications for tavern licenses, 9. 
 May limit number of tavern and shop licenses, 10. 
 May exempt certain taverns from having required accommodation, 11. 
 May regulate taverns and shops to be licensed, 11. 
 May regulate duties of Inspector, 11. 
 
 Not intended to have concurrent powers with Municipal Councils, 10, 126. 
 Entitled to notice of action, 11. 
 To be re-appointed each year, 11. 
 
 May, by regulations, create offences and impose penalties, 12. 
 Mandamui will not be granted to compel issue of license, 18. 
 May notice matters not mentioned by objectors, 29. 
 Notice to applicant in such cases, 80. 
 Decision of Board final, 80. 
 May adjourn meeting, 80. 
 
 May examine witnesses on oath at hearing of objections, 86. 
 May sit with closed doors while considering decision, 8(>. 
 May adjourn meeting, 87. 
 
 To oonduct proceedings in same manner as Justices of the Peace, 86. 
 Must observe conditions of the Statute, 88. 
 May, at their option, grant or refuse application, 89. 
 Remedy if Oommissioners act corruptly, 40. 
 Two members of Board must sign certificate, 40. 
 No license to issue for benefit of, 42. 
 Nor for premises of which they are owners, 48. 
 But this provision not to apply to Joint Stock Co., 44. 
 Not to vote if mortgagee or agent for collection of rent, 44. 
 Discretionary powers of, discussed, 48 (d). 
 May grant extension of license, 64. 
 May grant additional licenses in places of summer reaort, 66. 
 
lifr 
 
 ;''. ii 
 
 1 I 
 
 ■^^1 
 
 i::l 
 
 ■ui 
 
 •i 
 
 356 
 
 INDEX. 
 
 OOMmSSIONBRS, LIOBNSB— ContiniMd. 
 M»7 «»noel beer and wine Umdm, 60. 
 Conient of must be obtained to transfer of license, 80. 
 Cheques to be drawn by Inspector and oonntersigned by Ohairman of 
 
 Board, 104. 
 Powers as to olosing lioensed places on Saturday night and Sunday, 186. 
 Not to take money for licenses, certificates, etc., 161. 
 Liability for issuing license contrary to Act, 168. 
 May apply for revocatton of license, 208. 
 
 Who are Justices of the Peace, dis()ualifled to try certain eases, 316. 
 Prosecutions under resolutions of, 320. 
 May appoint officers to enforce the law, 387. 
 In unorganized districts, 299-801. 
 Appointment under the 0. '£. Act, 801. 
 Duties of in such case, 802. 
 
 COMMISSIONERS. POLICE (see Poliob). 
 
 To enforce provision as to duties' of constables, etc., 398. 
 COMMITMENT. 
 
 Costs of, etc., 306. 
 
 COMMUNICATION. 
 
 Penalty for allowing, with unlicensed premises, 183. 
 premises where other goods sold, 188. 
 
 COMPLAINTS. 
 
 Penalty for compounding or settling, 198. 
 
 How and when laid, 313-317. ' 
 
 COMPROMISING. 
 
 Offences, penalty for, 198. 
 
 Penalty for being concerned in, 200. 
 
 COMPULSORY. 
 
 ^ When Statutory provisions are, 68. 
 
 COMPUTATION OF TIME (see Tihb). 
 
 CONDITIONS. 
 
 To be complied with by applicant, 18. 
 Must be observed by Commissioners, 88. 
 
 CONFISCATION. 
 
 Of liquor found on search, 294. 
 
 Authorities as to, 294, 296. 
 
 If no conviction liquor to be returned, 397. 
 
 CONSENT. 
 
 Of Commissioners to transfer of license, 81. 
 Provisional consent, 88. 
 Effect of, 86. 
 
 CONSOLIDATED REVENUE. 
 
 Certain duties to form put of, 100. 
 
 CONSUMPTION. \ 
 
 Of liquor by clubs evidence of sale, 134. 
 Of liquor in premises of chemists, etc., not allowed, 142. 
 Shop license not to authorize liquor sold to be consumed on premises, 142. 
 Nor in premises of persons holding wholesale license, 143. 
 Penalty for allowing, by drunken person, 177. 
 Unlavdnl, on licensed premises, 188. 
 What proof of offence sufficient, 189. 
 
 Of liquor by purchaser on premises where same is bought, 190. 
 To be proof of sale, 360. 
 
INDEX. 
 
 357 
 
 aincMes, 318. 
 
 CONSTABLES. 
 
 PenkltT (or harboring, 196. 
 
 To make enquiry on receiving information as to violation of law, 988. 
 
 Bight of, to enter and make learoh, 290. 
 
 Bight of entry and aearoh under warrant, 392. 
 
 May aeize liquor found, 291. 
 
 May demand namea and addreans of perauna found in nnlioenaed 
 
 plaoe, 395. 
 Muat proaeoate offendera, 397. 
 
 OOMTBACTS. 
 
 For liquor iUegially Bold not enforceable, 388. 
 Money paid for, may be recovered, 384. 
 Againat justice and good conscience, 384. 
 
 OONVIOTIONS (see Fo&hs). 
 
 Indemnity of Inspector where conviction not obtained. 106. 
 For sale of liquor without lieenae, 108-111, 167-168. 
 For selling liquor during prohibited hours, 137. 
 * Inspector's duty where prior conviction had, 138. 
 
 Oases on conviction for second offence, 139, 336-380. • 
 
 Charge in must be certain, 169. 
 What conviction should contain, 169-161. 
 Should correspond with adjudication, 160, 336. 
 ^ Need not negative exceptions, 160. 
 Imposing fine and Impriaonment, 166. 
 For second and subsequent ofenoes, 166, 338. 
 For violation of Sunday dosing provisions, 167, 328. 
 Imprisonment under separate, consecutive, 304. 
 Costs of commitment and conveying to gaol in case of, 306. 
 Under resolutions of License Commissioners, 330-333. 
 Form of, 333, 844. 
 
 What constitutes a "conviction " as distinguished from an " order," 334. 
 Procedure in oases where previous conviction charged. 336. 
 Authorities respecting, 336-380, 381.386, 340-348, 813-819. 
 Minute of, 160. 336. 
 
 M.ist contain order for payment of costs, etc., 336. 
 Coiits of quashing, 336, 838. 
 For previous offences, how proved, 337. 
 
 Amendment of subsequent conviction where first conviction quashed, 339. 
 Description of offenoen, 380-335, 330-883. 
 Not void for certain defects, 389. 
 Amendment of, 340-348. 
 Certiorari to quash, 344-348, 844-848. 
 Appeals from, 363. 
 
 proceeding on, 368. 
 Costs in appeal bom, 367. 
 Appeal to Court of Appeal, 366. 
 And informations under the C. T. Act, 813. 
 
 COSTS. 
 
 Where not recovered, 106. 
 
 Authorities as to imposition of, 161, 306, 335, 828. 
 
 Of commitment and conveying to gaol, 305. 
 
 to be stated in warrant of commitment, 206. 
 
 To be stated in conviction, 336. 
 
 Of quashing conviction, 336, 838. 
 
 In appeal from conviction, 867. 
 OOUNCIL (see Mcnioifal Council). 
 OOUMCILLOBS (see MuNiaPiL Counoils). 
 
r 
 
 ?^' 
 
 ! ii I 
 
 !» 
 
 1 1 , 
 
 35« 
 
 INDEX. 
 
 COUNTY JUDGE (m« Powirb or Oountt Jnoai). 
 
 BavoMtion of Umdm* by, 908-311. 
 
 Jariidiotion of, 310. 
 
 AppMl from jadgment of, in raipflot of oonTiotioni, eto., 966. 
 COUNTY ATTORNEY. 
 
 May apply for ravo«ation of lioanaa, 908. 
 
 Mail attand all proaaoationa oommikkad to him by laipactor or offlear, 
 389. 
 
 Bamarka aa to daty of, 989, 990. 
 
 D 
 
 DAMAGES. 
 
 In eaaa of daath, etc., of inabriate, 968. 
 
 In eaaa of aiaaalt or injury to property by paraon drunk, 979. 
 
 In eaaa of aale to inabnatea after notioe, 989, 988. 
 
 DECISION. 
 
 Of Lioanae Gommiaaionara final, 80. 
 DEFAULT. 
 
 Of payment of fine, ate., 169. 
 DEFENDANT. 
 
 Onna of pro?ing lioenaa to be on, 988. 
 DESORIPTION OF PBElflSES TO BE 0EBTAIN.-91, 99. 
 DEFINITIONS (aee Imtupbitatioii). 
 DBSOBIPTION. 
 
 Of oflenoea, 980, 880. 
 
 DESTBUCTION OF LIQUOBS. 
 
 Fonnd on aeareh of onlioenaed honae, 994. 
 If no oonviotion liquor to be returned, 997. 
 
 DISOBETIONABY POWEBS.— 8 {«). 
 
 Of Oommiaaionera and othera empowered by Statute 48. 
 
 DISOBDEBLY HOUSE. 
 
 Enaotmenta againat, 176, 176. 
 
 Keeper of, aubject to oertain penaltiea, 198. 
 
 DISOBDEBLY CONDUCT. 
 
 Penalty tor permitting, 174. 
 Defined, 176. 
 
 DISPUTE. 
 
 Aa to oertifieate required with application for new lioenae, 88. 
 DISQUALIFICATION. 
 
 Of lioenaee to be Municipal Conndllor, 19 (a). 
 
 From holding lioenae. 901. 
 
 Of Joatioe of the Peaoe to try caaea, 915. 
 DISTANCE. 
 
 Mode of meaaoring, 41. 
 
 DISTILLEBS. 
 
 Seoa. 49 and 60 not to apply to, 114, 116. \ 
 
 Definition of, 116 (;). 
 
 Dominion Lioenae to, 116. 
 
 Powera of Dominion Government with reapeot to 116. 
 
 DISTRICTS (aee LiomaB Distbiot). 
 
 DIBTBESS (aee Contiotiors). 
 
 Beoovery of penaltiea by, 168. 
 
 In oaae of eonviotion under reaolationa of Lioenae Oommiaaionera, 321. 
 DOOTOBS (aee Mbdioui Pbactitiorbb). 
 
INUEX. 
 
 359 
 
 SommiHioners, 221. 
 
 DOCUMENTS (■•• Propdotiom). 
 
 DOMINION LIOBNBES (lee Lioimmb). 
 
 Aathoritj of Oominion PorUament, 115-117. 
 DBOWNINQ. 
 
 LUkbiUty of inn-keeper in oms of, 208. 
 
 Aatboritiea m to, 270. 
 
 DBUOOISTS (M* OHiMinB). 
 
 Eioeptions in favor of, 118. 
 Definition of, 118. 
 
 DRUNKENNESS {u— Inebriates). 
 
 Penalty for permitting, 174. 
 
 Penalty for aelling liquor to drnnken person, etc., 177. 
 
 Oivil remedies respeoting, 268. 
 
 Authorities as to. 174, 177, 268, 272, 278, 270. 
 
 Gontraots made by person drunk, 274. 
 
 Power of Justices to forbid sale to habitual drunkard, 274. 
 
 Notice forbidding sale to persons of intemperate habits, 277. 
 DUTIES OF OFFIOERS (see Pabtioular Thlib). 
 
 Of Provinoial offloers, 28S. 
 
 DUTIES, LICENSE. 
 How paid, 40. 
 
 Must be paid before issue of lioense, 40, 99 (g). 
 What duties payable, 89, 100. » 
 
 Municipal Council may impose, 90. 
 
 When uey exceed statutory figure they are not affected, 09. 
 In case license lapses, 88. 
 Payable for use of Qovenlunent, 100. 
 Mimicipal Council may impose duties wholly for use ol Municipality, 
 
 101. 
 Duties, fines, and penalties to form lioense fund, 101. 
 How to be applied, 102, 108. 
 In unorganized districts, 800. 
 Payable for wholesale licenses where C. T. Act in force, 804. 
 
 E 
 
 EATING-HOUSE (see Tatbbm-Ebspib). 
 Every tavern to be, 63. 
 
 EJV8DAN GENERIS. 
 
 Principle not applicable in certain cases, 203. 
 
 ELECTOBS. 
 
 May object to license, 22. 
 
 Majority of, must sign certificate in case of application for new license, 82. 
 
 Dispute as to qualification of, 88. 
 
 Entitled to vote, 82, 91. 
 
 ELECTIONS. 
 
 Sale of liquor on polling days prohibited, 184. 
 
 Obtaining liquor at prohibited time an offence, 186. 
 
 Authorities as to selling liquor at, 134. 
 
 Provisions of election law as to, 134. 
 
 ENABLINQ WORDS.— 8 (o). 
 
 ENACTMENTS BELATING TO LICENSES.— 1. 
 
 ENFORCEMENT OF THE ACT (see Inbpkotobs, Pbovimoul Imbfeotobb, 
 OmoBBs). 
 
 Officers to enforce the law, their duties and powers, 285. 
 What may be illegal, 286. 
 

 m 
 
 ?: 
 
 Ill 
 
 360 
 
 rNDEX. 
 
 BNFOBGEMENT OF THE ACT— Continued. 
 Notes as to 288, 289. 291. 
 Where 0. T. Aot in force, 804. 
 
 ENTBANGES. 
 
 TsTom not to oommnnioate by any entrance with grocery, etc., 62, 
 
 To hotel to be separate from bar, 147. 
 EMTBT. 
 
 Bights of officers as to, 290-292. 
 
 Bights of officers nnder search warrant, 292-294. 
 
 EVIDENCE (see Witnesses, Pboof, etc.). 
 As to sale of liquor in Glabs, 124, 
 Generally, 248. 
 
 Satisfactory, definsd, 144, 160. 
 Saffioieut, 267. 
 Proof made upon oath, 160. 
 What is meant by " sufficient proof," 160. 
 Of unlawful consumption of liquor, 189. 
 Gases in which person charged incompetent to give, 196, 221. 
 To be taken in writing, 219. 
 Who are competent witnesses, 196, 221. 
 Of previous convictions, 227. 
 License, how proved, 248, 268, 
 How regulations authenticated, etc., 249. 
 Plaoe#in which sale of liquors presumed, 250. 
 Presumption as to occupant, 261. 
 Evidence as to sale, etc., of liquor, 261. 
 Lights in bar, 9F/i. 
 
 What shall be deemed evidence of unlawful sale, 258. 
 Liability of occupants, 264. 
 Person selling as well as occupant to be liable, 266. 
 Gerta'n presumptions to be conclusive unless rebutted, 267. 
 Proof of being licensed to rest oc defendant, 258. 
 Production of license to be evidence of, 258. 
 
 Finding of liquor to be evidence that it is unlawfully kept for sale, 294. 
 Obtained on making such search, admissibility of, 294. 
 
 EXOEPTIONS. 
 
 Methylated alcohol and oil of whiskey, 121. 
 Li favor of brewers and distillers, 116. 
 
 chemists and druggists, 118. 
 For medicinal purposes on Saturday night, etc., 127. 
 
 EXHIBITION. 
 
 Grounds not to be licensed at certain times, 41. 
 EXPENSES. 
 
 Of Inspector on examination of premises, 86, 86, 90. 
 
 Of Inspector attending prosecution, 261. 
 
 EXPOSUBE OF LICENSE.— 106. 
 EXTENSION. 
 
 Of licenses in cases where they cannot be renewed, 64. 
 
 F 
 
 FAIB GBOUNDS. 
 
 No license to issue for at certain times or places, 41. 
 
 FALLS OF NIAGABA. 
 
 Number of licenses to be issued in, 47. 
 
 FEES (see Miliaob). 
 
 Allowed to Justices of the Peace, 226. 
 
INDEX. 
 
 361 
 
 >oery, etc., 62, 
 
 FEES— Continued, ' 
 
 Table of, 849. 
 
 To Inspector attending proseoation, 261. 
 
 To Clerk of Ooontf Court in appeal oases, 265. 
 FEBBT BOATS. 
 
 No lioense to issae to, 41. 
 FINES (see PaNALTiBs). 
 
 To form part of lioense fond, 101. 
 
 How paid, 102. 
 
 Of not less than 960, what is meant by, 168. 
 
 For first offence, 161. 
 
 When default in payment oooors, 162. 
 
 Application of, 206-208, 328. 
 
 FIBST OFFENCE (see Pxnaltibs) 
 Penalties for, 161, 166. 
 
 FOBMS. 
 
 Of information and other proceedings, 230. 
 
 Of certificate with application for new lioense, 85. 
 
 Of bond of Inspector, 12, 340. 
 
 Of warrant of restitution, 150, 841. 
 
 Of notice forbidding sale of liquor to minors, 187. 
 
 Of convictions under resolutions of Lioense Gommissioners, 222, 844. 
 
 Provisions of Statutes as to, 236. 
 
 Of bond by appUoant for a tavern license, 829. 
 
 The same in case of shop lioense, 829. 
 
 Of information (general), 880. 
 
 Describing offences, 380. 
 
 Of information for second, Mird or fourth offence, 838. 
 
 Of summons to witness, 888. 
 
 Of conviction for first offence, 884. 
 
 Of conviction for a third offence, 386. 
 
 Warrant of commitment for first offence where a penalty is imposed, 336. 
 
 Warrant of commitment for second, or third offence, where punishment 
 
 is by imprisonment only, 887. 
 Declaration of forfeiture and of order to destroy liquor seized, 837. 
 Description of offences for selling, giving or keeping other Uqnors by 
 
 holder of beer and wine lioenfle, 388. 
 Provisional consent to transfer of lioense, 838. 
 Certificate of eleotors with application for new lioense, 339. 
 Application for license, 340. 
 Bond of Inspector, 340. 
 Objections to the granting of a lioense, 840. 
 Warrant of distress upon an order for restitution of property, 842. 
 Pf'tition for revocation of license, 343. 
 Piooeedings on etrtiofrari, 344. 
 
 Notice of motion, 844. 
 
 Becognizance, 346. 
 
 Writ of cvrtimati^ 846. 
 
 Order nwt, 846. 
 
 Affidavits, 848. 
 
 Costs, 849. 
 Table of :ees to Jnstices of the Peace, 849. 
 List of lioense districts, 360. 
 
 FOBFEITUBE. 
 
 Of lioensA iu case of death, assignment, etc., 79. 
 
 How new license may be issued on, 87. 
 
 Of office by Municipal officer if convicted, 166. 
 
 

 36a 
 
 INDEX. 
 
 f'!i^ 
 
 1 ,1 ,,1 
 
 ^'4 
 
 |r 'Sa- 
 
 ! J 
 
 il ■ ■ : 
 
 
 [fr-:- :}[ 
 
 
 -', I 
 
 FOBFEITUBE —Continued. 
 
 Of office by member of Manioipal Ooanoil if oonvioted, 166. 
 
 Of beer and wine lieense, 201. 
 
 And revooation of lioenae on application to County Judge, 208. 
 
 What evidence required, 209, 227 (/). 
 FRAUD. 
 
 License obtained by, 18 (y). 
 may be revoked, 209. 
 
 FFEQUENTER8. 
 
 In bars on Saturday nights, 132, 188. 
 
 FRONT ENTRANCES. 
 
 To be separate from bar, 147. 
 FUND LICENSE (see Lioxmsb Fond). 
 
 G 
 
 GAMBLING. 
 
 Power of Municipal Council to pass by-laws as to, 126. 
 
 Penalty for allowing on licensed premises, 174. 
 
 Authorities as to, 176-182. 
 GAME. 
 
 Permitting unlawful, 174-182. ' ^ 
 
 GAMING. 
 
 Unlawful houses, 181. 
 
 •' GOOD CHARACTER AND REPUTE."— 17. 
 
 GUESTS AND TRAVELLERS. 
 Who are, 171. 
 Authorities ta to, 171-178. 
 Bights and liabilities of, lb. 
 Who is a bonajide guest, 187. 
 
 H 
 
 HABEAS CORPUS. 
 
 Writ of, and proceedings thereon, 248. 
 HABITUAL DRUNKARDS (see Imkbbutbs). 
 
 What is meant by, 278. 
 
 HARBOURING. 
 
 Constables on duty, 196. 
 
 HEARING (see Objections). 
 
 Of objections to license, 27. 
 
 Meaning of " to hear,'' 27 («). 
 
 And determining objections, 86. 
 
 " To hear," " hear and determine," defined 36. 
 
 HUSBAND AND WIFE. 
 
 Wife of occupant liable to conviction, 167. 
 Married woman liable where »ale took place in her absence, 169. 
 Principle that married wompA exempt from liability does not apply, 160. 
 Admission of evidence by, 269. 
 
 May notify sellers not to furnish liquor to peraonri addicted to drinking, 
 277. 
 
 I 
 
 ILLEGAL MEASUBES. 
 
 To enforce the law, 286. 
 
 ILLEGAL SALE (see Salk, Sbluho). 
 
 Payment for liquor ilLigally sold, 288. 
 Securities for, void, '286. 
 
INDEX. 
 
 \ 
 
 363 
 
 IMPERIAL MEASURE.-?. 
 IMPRISONMENT (see PBNAi,Tng). 
 
 What the panishment oonsiatti of, 163. 
 
 Aathorities as to, 163-166. 
 
 At hai-d labor, 164. 
 
 Term^'. .>', to be oonseontive, 164, 206. 
 
 Under difterent oonviotions, 204. 
 INCORPORATED OLUBS, ETC.— 122. 
 INDIAN ELECTORS. 
 
 Right to vote on C. T. Aet, 812. 
 
 INEBRIATES (see Dbumkennesb). 
 
 Restriotion of sale to, 272. 
 
 Liability of person in caaeB of assanlt or injury to property by, 272. 
 
 Power of Jnstioes to forbid sale to, 274. 
 
 Effect of saeh prohibition, 276. 
 
 Applioation to set aside prohibition or notice, 276. 
 
 Penalty for violation of prohibiti'^^, 276. 
 
 Oonnty Judge may set aside prohibition or notice, 276. 
 
 What is meant by " intemperate habits " discussed, 278. 
 INFORMATION. 
 
 For violation of Saturday night and Sunday closing provisions, 167. 
 
 W>>-ntobelaid, 194, 212. 
 
 Manner in which information or complaints laid, 212. 
 
 Deseription of offences in, 230, 236, 380-382. 
 
 Amendment of, 287-239. 
 
 Upon receiving, every officer, policeman, constable or inspector, to 
 enquire into, 288. 
 
 And conviction under the 0. T. Act, 812. 
 
 Forms of (general), 880. 
 
 for second, third or fourth offence, 888. 
 
 INJURY TO PROPERTY. 
 
 By intoxicated person, liability of person furnishing him with liquor, 272. 
 
 INN. 
 
 Defined, 6. 
 
 INN-KEEPERS (see TAVBBH-EnPBBg). 
 
 Person may be, though license taken out in another's name, 19. 
 Refusing lodgings, meals, etc., 169. 
 Authorities as to rights and liabilities, l''0-178. 
 Lien of, 172. 
 ^liiability for death or accident in case of person becoming drunk on 
 prenuses, 268.. 
 Liability in case' of notice not to furnish liquor to persons addicted to 
 drinking, 281. 
 INQUIRY. 
 
 Into conduct, etc., of Inspector, 286-287, 
 
 By officers, policemau, inspectors, etc., on information as to violation 
 of law, 889. 
 
 INSPECTOR (see Pbovimoul Ihbpboiob). 
 Defined, 7. 
 
 Duties of, may be fixed, etc., by Commissioners, 11. 
 Appointment ci, 12. 
 Security to be e^ven by, i2. 
 Chief Inspector may be appointed, 13. 
 Salary of Inspector, 18. 
 Lieutenant- Gfovemor to fix salary, 13. . 
 DtttiM and poiran of ehief Inspector, 18. 
 
/ 
 
 
 364 
 
 INDEX. 
 
 2 
 
 ni \ 
 
 -';! 
 
 li* 
 
 .^ I 
 
 h 
 
 INSPEOTOB— Continued. 
 
 Beport of, on applioation for Uvem and shop lioenMS, 17. 
 not to be oonoloaive, 19. 
 may be dispensed with, 30. 
 Mast pablish date of meeting of License CommisionerB, 20. 
 Mast give notiee of applications, 21. 
 Petitions against license to be filed with, 35. 
 Mast keep lists of petitions, etc., posted in his office, 86. 
 Office of, 87. 
 
 Most see that daty paid before issne of license, 40, 41. 
 No license to issue for benefit of, 42. 
 Not to issue for premises owned by, 48. 
 Beport in case of shop license, 67. 
 New report necessary on transfer, 88. 
 Provisional consent may be granted on transfer, 88. 
 Beport may be dispensed with, 84. 
 
 Mileage to, on removals and transfers of licenses, 86, 86, 90. 
 Payment of salary and expenses, 108. 
 Penalties where Lispector is proseoator, 106. 
 Indemnity of where conviction not obtdned, 106. 
 Duty of, to prosecute for second or subsequent offence, 128. 
 Not to be convicted of alleged violation of law committed in detecting 
 
 offences, 140. 
 Not to take money for licenses, certificates, reports, etc., 161. 
 Liability for issuing license contrary to Act, 168. 
 May apply for revocation of license, 208. 
 Who is Justice of the Peace disqualified to try certain cases, 216. 
 Expenses of, on attending prosecution, 261. 
 May be required to give notice to sellers not to famish liquor to 
 
 persons drinking to excess, 277, 280. 
 Conduct of, to be subject to investigi^tion by Provincial Inspector, 286. 
 To make inquiry on receiving information as to violations of law, 289. 
 Bight of, to enter and make search, 290. 
 Aathorities as to such right, 290-292. 
 Bights of, under search wanant, 292'294. 
 May leiFe liquor found on search, 294. 
 May demand names and addresses of persons found in unlicensed 
 
 premises, 296. 
 Penalty for refusing or giving false information, 296. 
 Must prosecute offenders, 297. 
 Bemarks as to duty in this respect, 298. 
 In unorganized districts, 299-801. 
 Appointment of, where 0. T. Act in force, 801. ^ 
 Duties of, in such case, 802-808. ' 
 
 ISSUE OF LIOENSBS.— 18. 
 
 Where 0. T. Act has been in force, 16. 
 
 INTBBPBETATION OF WOBDS AND PHBABEB. 
 Abandons, 87. 
 
 Abide or remain, 197. . 
 
 Absconds, 87. ^ 
 
 Absolutely null and void, 80. 
 Accident, 270. 
 Accommodation, 26, 68. 
 Actual cost, 86. 
 Actual offender, 266. 
 Adjoining or near, 192. 
 Aerated water, 70. ^ 
 
 Affeet or impair, 801. 
 
INDEX. 
 
 365 
 
 and in nnlioensed 
 
 IMTEBPBETATION, ETO.^Continued. 
 Afleoted, 81. 
 
 Afleoting the granting, 46. 
 Agent, 81, 76. 
 
 Against jastioe and good oonsoienoe, 284. 
 AJehooae, 6. 
 AU, 103, 126. 
 All licenses, 106. 
 All the provisions, 71. 
 M places, 126. 
 
 All places where intoxicating liquors are or may be sold, 125. 
 All soms received, 102. 
 
 Allows, allows to be made or used, 182, 186, 194. 
 Allowed to be eonsnmed, 72. 
 An association, 122. 
 Any, 29, 37. 
 Any applicant, 78. 
 Any cause, 87. 
 
 Any description of liqaor whatever, 186. 
 Any house, shop, room or other plitoe, 260. 
 Any internal communication, 182. 
 Any licensed shop, 71. 
 Any member, 168. 
 Any money whatsoever, 152. 
 Any offence, 166. 
 Any one time, 119. 
 Any other commodity, 70, 71. 
 Any other provisions of this Act, 208. 
 Any person, 167, 188. 
 Any other person, 122. 
 Any person not entitled to sell liquor, 144. 
 Application, 86. 
 Appropriated otherwise, 102. 
 Approved, 91. 
 Assault, 272. 
 
 Auignee, Assigns, 70, 80. 
 As aforesaid, as before, etc., 92. 
 At any time, 76, 290. 
 At any time after, 98. 
 At any one time, 119. 
 At least four days, 86. 
 At least fourteen days, 20. 
 At least two issues, 20. 
 At least one of the petitioners, 81. 
 At least six horses, 62. 
 At the hotel, 167. 
 
 At the same or any other time, 276. 
 At the time of the purchase thereof, 189. 
 Attempts to buy or obtain, 187. 
 Authority, 140. 
 
 Bad fame and character, 28, 177. 
 Bar>room, 106, 181. 
 Bartering, 6, 167. 
 Beer, 2, 68. 
 
 Beer and wine license, 67. 
 BeUef, 146. 
 Belonging to, 192. 
 Between, 14. 
 
 \ 
 
BI 'J i 3 '''3 J !«( ',f3l iftfi: 
 
 Ht J ' ''. \ ' 
 
 366 
 
 INDEX. 
 
 I , .1 
 
 
 ■■r 
 
 
 II 
 
 fit 
 
 
 Ml 
 
 
 
 1,-la 
 
 INTEBPBETATION, ETO.-ConMniMd. 
 Beverage, 12.1 , 
 Bond, 64. 
 
 BoDvi or Beeority, 85. 
 Brewer, 116. 
 BnUding, 112, 118. 
 Bnyc or obtains, 187. 
 By liimseU, 148. 
 By bia permisaion, 192. 
 By-law. 62. 
 By rosolntion, 65. 
 By wbolesale, 78. 
 By writing under bis bead, 276. 
 By virtue of tbis Aot, 47. 
 Oanada Temperanoe Aet, 7. 
 Gancel, 60. 
 
 Oarriea on bneineaa, 76. 
 Carrying on boaineaa, 146. 
 Oanae, 87, 289. 
 Gaoaes or proonrea, 154. 
 Certain, certain time, 40. 
 Oertifioate, 82. 
 
 Certifioate under tbe band, 65, 248. 
 Oertifioate or reqoiaition, 120. 
 Certified oopy, 64. 
 Oertilly, 119. 
 
 Obaraoter and repate, 17. 
 Cbarged, to be obarged, 2^8. 
 Cbemiat and dmggiat, 118. 
 Obeqnea, 104, 
 Obild, 277. 
 Obief Inapeotor, 18. 
 
 City, town, jonnty, or nnion of eonntiea, 7. 
 Clerk, 76. 
 
 Clerk or aeivant, 76, 148. 
 Olnbi. 122. 
 
 Colorable certificate, 120. 
 Conuuodi .y, 71. 
 Complaint, 106. 
 Gompenaation, 888. 
 
 Compromiaea, oomponndi or settlea, 199. 
 Ooncemed in, 80, 168. 
 OonolaaiTe, 84. 
 
 ConoloaiTe eridenoe, 71, 108, 264. 
 Oonaent, 81. 
 Conaideration, 149. 
 Cdnatantlr and oonapiononaly, 106. 
 Conanmed npon tbe pramiaea, 114. 
 Gonramption of liquor, 124. 
 Conatable, 197. 
 Continue, 14, 61. 
 
 Oontrary to the proTidona of tbia Aet, 164. 
 Contrary to the terma of hia lioenae, 201. 
 ContraTention, 120. 
 Control, 128. 
 Convioted, 28, 169. 
 Oonvioted of felony, 28. 
 Oonvioting Jnatioe- 106. 
 
INDEX. 
 
 367 
 
 INTBBPBftTATICN, ETC.— Continued. 
 Oontifttion, on oouviotion, 169. 
 ConTltttion obtained, 129. 
 Oontlotion or order, 224. 
 Ooaatoreign, 84. 
 Ooottty Attorney, 208. 
 Oonti^ town, 47. 
 Ooonty gaol of the oonnty, 154. 
 Oredibto witness, 221. 
 Ooitomer, US. 
 Days, 98. 
 Deoiiion, 80. 
 Deemed, 267. 
 Default, 160. 
 
 Defaalt of appearance, 210. 
 Default of payment, 162. 
 Deliver ; eell or deliver, 148. 
 Demeanor of witneee, 188. 
 Determine and adjudge, 211, 
 
 Dies, Mill, or by operation of law or otherwise assigns, 79. 
 Different oonviotions, 205. 
 Different days, 207. 
 Diligenoe, 289. 
 
 Direotly or indirectly, 76, 148. 
 Disoretiofcary powers, 48. 
 Disorderly oondnct, 176. 
 Disorderly housi, 195. 
 Disorderly person, 177. 
 Disposal, 190» 
 Dispute, 8S. 
 Diatanoe, 41. 
 Distiller, 116. 
 Disturbed, 26. 
 Domestio ooeupation, 182. 
 Drowning, 270. 
 Druggist, 118. 
 Drunken' jess, 174. 
 Drunker: person, 269. 
 Drunk to excess, 269. 
 Drunken habits, 28. 
 Duly issued, 107> 
 Duly observed, 997> 
 Dnly licensed, 118. 
 
 During the next sucoeeding year, 202. 
 Duties (imposts). 89. 
 Duty (obligation), 119, 289. 
 Duty of Inspector, 189. 
 Eatmg-house, 118. 
 Eleetors, 22, 82, 91. 
 Employee, 116. 
 Empl<^, 277. 
 Endorse^ 64. 
 
 Entertainment, house or place of, 97. 
 Entrance, 6S. 
 Enumeration, 60. 
 
 Establishes to the satisfaction of, 144. 
 Event, in the, 804. 
 Every license, 46. 
 
'i'l, ■«-; 
 
 I ' HI 
 
 368 
 
 INDEX. 
 
 ■.«. 
 
 if 
 
 ■I «■; 
 
 Ns^i 
 
 INTBBPBETATION, ETC.— Oontimied. 
 Bvuy person, 107, 185, 183, 188. 
 Bt«7 person oonTioted, 28. 
 Bfery tarem keeper, 169. 
 Bzoept for some yalid reason, 169. 
 Exempt, 79. 
 Bieroise. 83. 
 Exhibit ; expose, 106. 
 Expose for sale, 70. 
 Failing or refusing, 169. 
 Family, 61 ; members of, 182. 
 Ferry boat, 42. 
 Final and oonolnsiTe, 84. 
 Final judgment obtained, 129. 
 Fine. 64. 
 
 Fishing gear, 148. 
 Forfeit, 80. 
 Forfeiture, 28, 156. 
 Form, 85. 
 
 For the purpose of enabling, 121. 
 . Forthwith. 81, 366. 
 Fourteen days, 80. 
 Frequent, 31. 
 Fraud, 308. 
 
 From a person who is not lieensed to sell, 190. 
 From henceforth, 91. 
 From the passing thereof, 91. 
 From time to time, 87, 61. 
 Furniture, 148. 
 Gallon, 5. 
 
 Gaming and Gambling, 180. 
 Gaming houses. 181. 
 Getting rid of suoh complaint, 199. 
 Give, 69. 
 
 Ck>od character and repute, 18. 
 Goods, wares and merchandise, 69. 
 Groceries ; grocery, 69. 
 Grown and produced. 78. 
 Guardian, 277. 
 Guest, 116, 171. 
 GuUty of, 162. 
 Has kept, 21. 
 Hard labor, 164. 
 Harbour ; Iiarbouring, 196. 
 Having knowingly committed, 166. 
 Having regard to the demeanor, 188. 
 Having regard to the particular circumstances, 56. 
 Hear, 27. 
 
 Hear and determine, 86, 210. 
 Hereinbefore imposed, 100. 
 Himself ; by himself, 148. \ 
 
 Holding a Ifoense, le7. 
 Hospital, 26. 
 
 House, etc., 118, 118, 360. 
 House of public entertainment, 97. 
 Household goods, 148. 
 Husband, 377. 
 If; when, eto., 86, 301. 
 
INDEX. 
 
 369 
 
 INTBBPBETATION, ETO.—Oontiniud. 
 If »n offloer, 166. 
 If belonging to, 192. 
 If he denies, 226. 
 If it shall be made to appear, 189. 
 nUoit Bale. 24. 
 Immediate, 26. 
 Immediately, 64. 
 Implements, 148. 
 Implements of trade, 148. 
 Implements of husbandry, 148. 
 Imprisonment, 168. 
 Imprisonment at hard labour, 164. 
 Improper house, 19S. 
 In order that the person affected, 80. 
 In the nature of a joint stook company, 44. 
 In pursuance of this Act, 47. i 
 
 In no other housi or place, 82. 
 In case for any cause, 87. 
 In lieu of, 89. 
 In the whole, 90. 
 In like manner, 92. 
 In all places, 126. 
 
 In addition to any other penalty, 166. 
 In bis licensed pi>>mise8, 186. 
 In the hotel, 167. 
 
 In the opinion of the Court, etc., 201. 
 In the event, 204. 
 In default of appearance, 210. 
 In the first instance, 226. 
 In any Court of Justice, 260. 
 In a state of intoxication, 272. 
 In contravention of this Act, 284. 
 In their opinion, 29. 
 Incorporated village, 47, 224. 
 Incorporation, 122. 
 Increase of population, 49. 
 Ineligible to be elected, 167. 
 Indecent house, 196. 
 Information, 288, 292. 
 Injury to property, 272. 
 Iim, 6. 
 
 Inn-keeper, 19, 169. 
 Ipsofaeto, 79, 166. 
 hispeotion, open to, 119. 
 Inspector, 7. 
 Inquiry, 227. 
 
 Insolvent circumstances, 87. 
 Instructions, 140. 
 Insured premises, 26. 
 
 Intent to evade the conditions of his license, 190, 262. 
 Intended consumption, 124. 
 Internal communication, 182. 
 Interest, 87. 
 
 Intemperate habits, 278. 
 bitoxicating liquor, 2, 69. 
 Intoxicating liquor of any kind, 269. 
 Investigate, investigation, 196. 
 
ii :'T 
 
 
 M •• I 
 
 W, I 
 
 11] ; 
 
 1-3 
 
 ■ / r 
 
 jr -, 
 "■ 1 ■ ' . 
 ■II. 
 
 i 
 
 :l 
 
 S70 
 
 INDEX. 
 
 INTBRPBBTATION, BTO.— ConMniMd. 
 !■ ehurgad, 9t8. 
 It •hall M kwfal, 97. 
 It shall uot b« lAwfal. 151. 
 Joint Htook OompMiy, 44. 
 Jointly and MTerally liable, 278. 
 Jodga of the Connty Court, 310. 
 Keep, 34, 62, 112, 118, 147, 260. 
 Keeper, 180. 
 Keep in the honie, 69. 
 Keep open, 147. 
 
 Keeping, having or mlllng, 118. 
 
 Knowingly, knowingly iMues, knowingly oommiti, 48, 69, 164. 
 Large inoreaee of popolatim, 49. 
 Largely resorted to, 66. 
 Last preceding assessment, 101. 
 Last preceding oensns, 48. 
 LawfoUy obtained, 79, 121. 
 Lessens (diminishes), 276. 
 Less than, 101. 
 Lioense, 6. 
 
 Licensed pren)ises, 6, 87, 191. 
 Lioense district, 7. 
 License obtained by fraad, 206. 
 Lien, 89. 
 
 Liqaor or liqaors, 2, 116. 
 Liqnors of any kind, 144. 
 Lientenant-Oovemor, 60. 
 Lieatenant-GoTemor-in-Ooonoil, 60. 
 Lodger, 186, 170. 
 Lodgings, 170. 
 Majority, 82. 
 Malt liqaorB« 2. 
 
 Manafaotarer of native wines, 78. ' 
 Master and servant, 277. \ 
 
 Matter or thing, 162. 
 May, 8. 
 
 May investigate, 196. 
 May issafc, 41. 
 May be issaed, 76. 
 May require, 90. 
 Meals. 170. 
 Measure, 6. 
 
 Medical practitioner, 119. 
 Meeting, 86. 
 Member, 122,168. 
 Members of his family, 61, 182. 
 Merchandise, 69. 
 Merchant, 107. 
 Merits, 247. 
 
 Methylated alcohol, 121. 
 Mineral watet, 70. 
 Minor, 186. 
 
 Minor municipality, 806. 
 Misbehaviour, 177. ^ c 
 
 Misspends, 276. 
 Money penalty, 104. 
 More liquor than is reasonably reiquired, 268. 
 
 , k /iyaainjoju 
 
INDEX. 
 
 371 
 
 INTERPRETATION. ElC^Oontinued. 
 Bf ortgM*. 44. 
 
 Mat* of maliM ; mate by the Tiiltotlon of aod', 936. 
 Native winea, V8. 
 New, 47, 193. 
 Near, or adjoining, 193. 
 Neareit, 84. 
 
 Neoeiiary domeatio ooonpation, 183. 
 Needed for the oonvenienee, 49. 
 Neighborhood, 36. 
 Negleot or refasal, 107. 
 Next, 93. 
 
 Next enooeeding year, 93. 
 No notioe given, 80. 
 Note, 168. 
 Notioe, 38, 113. 
 Not ahready lioenaed, 147. 
 Not exeeeding three months, 166. 
 Not exceeding ij^O, 160, 168. 
 Not leu than fonr bedrooms, 68. 
 Not loM than tlO, 69. 
 Not leu than |60, not leu than 9100, 184. 
 Not lesa than one gallon, 78. 
 Not leu than one month, 184. 
 Not leea than one week, 30. 
 Not more than aix onnoea, 119. 
 Not required, 86. 
 Notorionaly bad oharaoter, 177. 
 Notwithstanding anything in this Aot oontained, 39, 188. 
 Noll and void, 80. 
 Nnmber, 337. 
 Oath, 88, 150. 
 Obtain ; obtained. 131. 139. 
 Obtadna or bnya, 187. 
 Ooonpant, 118, 864, 866. 
 Oeeapied, 44. 
 OffeaoM, 166. 
 Offers, or attempts, 199. 
 Office, 88. 
 
 Office and Officer, 133, lol, 166. 
 Offlcera of Municipal Council. 166. 
 Of opinion, 39, 48. 
 Of their own motion, 89. 
 On an appeal. 367. 
 On conviction, 159. 
 On different daya, 909. 
 On anmmary conviction, 166. 
 One week, 80. 
 One year, 14. 
 On or upon, 88. 
 
 On the premiaea, 78, 136. « 
 
 Opinion. 308. 
 Open Court. 37. 
 Open to the public, 87. 
 Open to inspection, 119. 
 Operation, 188. 
 Oppreasion, 161. 
 Orally, 39. 
 
}i' ■> 
 
 S7« 
 
 INDEX. 
 
 tit 
 
 %r j 
 
 n 
 
 3 
 
 ^*' 
 
 'i f 
 
 M: 
 
 u% 
 
 m> 
 
 '1 
 
 
 M4v 
 
 !»?:i-^^:', ['-Ha 
 
 m 
 
 4m 
 
 INTERPRETATION, ETC.— OontitiiMd. 
 Order or oonvletion, 324. 
 Or other penon, 76, 158. 
 Original paokage, 70. 
 
 Other Moidente OMsed bj intozioktioo, 370. 
 Other lieeneee (in B. N. A. Aot), 78, 117. 
 Other Manioipalitiei, 89. 
 Other than, 70, 208. 
 
 Other than those mentioned in the lieenM, 69, 308. 
 Over and above, 100. 
 Over 30,000, 101. 
 Over the door, 108. 
 Owned, 44. 
 Owner, 188. 
 
 Owner in actual poiaeeaion, 386. 
 Package, 76. 
 Paaeenger, 141. 
 Pawn, or pledge, 149. 
 Parent, 277. 
 
 Partner, partnerahip, 76. 
 Party to, 168. 200. 
 Payment, 288. 
 Penalty, 64, 104. 
 Penalty in money, 104. 
 Permiieion, 198. 
 Permit ; lafler, allow, 114, 174. 
 Peraon, 38, 108. 
 
 Peraona affected by raoh deciilon, 81. 
 Peraoni of notorioasly bad character, 179. 
 Person who ia not licensed to sell, 190. 
 Personal service, 339. 
 Petition, 86. 
 Place, 31, 360. 
 Place of basiness, 39, 
 Place of pablic worship, 36. 
 Place of pablic entertainment, 97, 183. 
 Place of residence, 39. 
 Polling day, 184. 
 Polling sab-division, 7, 184. 
 Posted, 86. 
 Police ofBoer, 197. 
 Premises, 6, 34, 46, 191, 391. 
 Premises, not to be drank on, 78, 136. 
 Premises therein described, 46. 191. 
 Price thereof, 149. 
 Prima faeie, 130. 
 Privity or consent, 189. 
 Prodace, 88. 
 
 Proceedings. 188, 336, 361. 
 Prohibit, may prohibit. 96. 
 Proof of doe service, 239. « > 
 
 Proof upon oath, 160. 
 Prosecator, 106. 
 Prosecution, 188. 
 Provided. 97. 
 Provisional consent, 84. 
 Provisions (food). 148. 
 
INDEX. 
 
 373 
 
 INTBBPKETATION, ETC.— ConHntMu'. 
 Provinoiftl officer, 28S. 
 Pnblio, 87. 
 
 Pablio houM, tavern, eto., 6. 
 Pablio entertainment, pliioe of, 97, 182. 
 Pablio officer. 161. 
 Parchaaer, IRQ, 385. 
 Qaarreliome conduct, 176. 
 Qaart, 6. 
 
 Qniet of tbe place, 26. 
 Qaorum, 8. 
 Uatepayeri, 28. 
 BcMon to believe, etc., ).i5. 
 Reasonable accommodation, 26. 
 Beaaonable and probable cause, 106. 
 Beaaonably required, 268, 
 Rebuttal, 268. 
 Receive, 161. 
 
 Receives from any person goods in pawn, 149. 
 Record, 119. 
 Recover, 104, 
 Refreshments, 290. 
 Regulation, 10. 
 
 Regulating and determining, 9. 
 Relating to, 162. 
 Reputable business, 66. 
 Reputed, 291. 
 Require, 90. 
 Requisition, 78. 
 Resolution, 9, 66. 
 Resident ; residence, 20. 
 Resort, 122. 
 Restitution, 160. 
 Retail dealer, 6, 77. 
 Revocation, 98. 
 Revoke, 60. 
 Right, 22. 
 
 Right or privilege, 22. 
 Rights, 82. 
 
 Riotous or disorderly conduct, 176. 
 Sale (see seller ; selling), 6, 69, 120, 167. 
 Sale by sample, 117. 
 Sale or disposal, 120, 126. 
 Sale or barter, 148, 167. 
 Sale in or on the premises, 125. 
 Saloon, 118. 
 Same, 37, 146. 
 Same action, 278. 
 Same or any other offence, 228. 
 Sanctions or allows, 194. 
 Satisfactory evidence, 144, 160, 228. 
 Save as aforesaid, 71. 
 School, 26. 
 Search warrant, 298. 
 Security, 8, 
 
 Security or promise, 162. 
 Sell or deliver, 148. 
 Selling by retaU, 6. 
 
:|. 
 
 374 
 
 INDEX. 
 
 ii^ 
 
 3 
 
 
 ii'; 
 
 
 lis:. 
 
 
 iiB'Ji ,>!j .' ' . 
 
 Jl .. ; !■ 
 
 W- 
 
 1 i, , ^ ■ i: 
 
 ■l''.''-! 1 
 
 ^■!^^.|: 
 
 r^ 
 
 ll:i%^-^' 
 
 
 INTEBPBETATION, ETC.— Continued. 
 
 Selling by wholeaale, 6. 
 
 Seller, 6. 
 
 Servant, 148. 
 
 Berrioe of doonments, 28, 29. 
 
 Set aside, etc., 229. 
 
 Several oooasions, 209. 
 
 Shall, 8, 68. 
 
 Shall be binding, 69. 
 
 Shall be constantly and oonspiononsly exposed 
 
 Shall be deemed, 267. 
 
 Shall be exempt, 79. 
 
 Shall be held, 284. 
 
 ShaU be kept. 147. 
 
 Shall be lawful, 97. 
 
 Shall conform, 69. 
 
 Shall continne to contain, 61. 
 
 Shall hereafter, 41. 
 
 Shall remain valid, 46. 
 
 ShaU not, 42. 
 
 Shall not be convicted, 140. 
 
 Shall not be granted, 66. 
 
 Shall not be repealed, 66, 92. 
 
 Shall not be lawful, 161. 
 
 Shall not invalidate, 88. 
 
 Shareholder, 158. 
 
 Shop, 74, 118. 
 
 Shop license, 6. 
 
 Signature, 27, 78. 
 
 Signed by him, 78. 
 
 Sold by him or in his possession, 142. 
 
 Solely and exclusively, 67. 
 
 Special grounds, 14. 
 
 Specific period, 65. 
 
 Spiritnoas liquors, 2. 
 
 Stands mute of malice, 226. 
 
 Store, 74. 
 
 Strictly limited, 76. 
 
 Subject to the provisions of this Act, 46. 
 
 Succeeding year, 68. 
 
 Suicide, 269. 
 
 Suitable complement, 62. 
 
 Suffer ; permit ; allow, 114, 282. 
 
 Suffers to be delivered, 282. 
 
 Sufficient proof, 150, 257. 
 
 Sum recovered, 105. 
 
 Summary conviction, 165. 
 
 Supply ; supplied, 185. 
 
 Sureties, 8, 64. 
 
 Sufficient sureties, 66. 
 
 Suspicion ; suspicious, 269. 
 
 Tampers with a witness, 202. 
 
 Tavern, 6. 
 
 Tavem-kcc>per, 169. 
 
 Ten or more, 22. 
 
 Term or interest, 87. 
 
 The Board shall notify the applicant, 80. 
 
 The keeper, 180. 
 
 106. 
 
INDEX. 
 
 375 
 
 i-;V,' 
 
 INTEBPBETATION, ETC.— Continued. 
 The porohaser, 139. 
 Then in case. 228. 
 Therein furnished to him, 269. 
 Thereafter, 88. 
 Three half pints, 7. 
 Three days, 36. 
 Three hundred yards, 41. 
 Three several oooaiiions, 209. 
 Things, the subject of pawn, 149. 
 Time ta time, 37, 61. 
 To idl intents and purposes, 80. 
 
 To any person apparently uider the age of 18 years, 186. 
 To be supplied, 186. 
 To dispose of, 129. 
 To hear, 36. 
 To instruct, 140. 
 To or for the benefit of, 42. 
 To obtain, 121. 
 To record, 119. 
 To resort, 122. 
 To take place, 176. 
 "'ools, 148. 
 
 iownship, town, village, 224. 
 Total prohibition, 96. 
 
 Traffiioking, 6. . ' ! .;' 
 
 Transfer, 81. 
 Transaction, 262. 
 Traveller, 49. 
 
 True owner of the business, 19, 36, 89. 
 Two hundred dollars in the whole, 90. 
 Unanimous, 81. 
 Unbroken package, 76. 
 Under and by virtue of this Act, 47. 
 Under 18 years, 186. 
 Under his control, 192. --'- ,i> n 
 
 Under his htani, 40, 66, 248. 
 Unless ; unless and until, 80, 86. 
 Unlawfully, 146. , ■: 
 
 Until altered or repealed, 99. 
 Upon or on, 8.<), 208. 
 Upon conviction, 28, 169. 
 Upon information, 292. 
 Upon proof of due service, 229. 
 Upon several warrants, 204. 
 Upon the complaint, 208. 
 Upon the merits, 247. 
 Upon the premises, 78. 
 UsuaUy. 142. 
 
 Usual place of residence, 29. 
 Valid, 46. 
 
 Value; for value, 286. " '^ v-^" 
 
 Vicinity, 26. 
 
 Village, town, etc,, 224. • ' '^- ' - - 
 
 Violatinc, 208, 278. 
 
 Violent, quarrelsome, etc., conduct, 176. 
 Void, 42, 80. 
 Warehouse, 74, 112. 
 
 IL 
 
 
 Vjijln,^^' 
 
 . <f I, i ' .' 
 
 .1 V^f 
 
 .u. .■.■j^ir,^'-;.^ 
 
 iij 
 
 . lij 'iC-i f o ili - JlU-i 
 
 ;o 
 
 , . U. ■iO/ilti- 
 
 I' J 
 
 ■ t 'i'^f <jV'.it*ji 
 
 lU 
 
 -' ■:/iit^ aU c vi'i'.ii" 
 
 iO 
 
 'ii*ijfu',«j.'. •ji'lbi'i 
 
 iO 
 
 -r»iA^i.i »>;■ jU--r. UJ 
 
 n." . 
 
 ZiJi 
 
 U.Ul, 
 
 .-j.C.'j <-■ 
 

 / 
 
 376 
 
 INDEX. 
 
 ^i 
 
 : f 
 
 M 
 
 ■■■Jut 
 
 f;fl', I ■ 
 
 til! 
 
 
 1-; 
 
 INTEBPRETATTON, ETC.— Continued. 
 Warrant (prooess), 229, 293. 
 Wearing apparel, 148. 
 Whatsoever, 162. 
 When ; if, etc., 86. 
 When aware of the same, 129. 
 When by this Act, 223. 
 When it shall be made to appear, 274. 
 Wholly removed and nut to be drunk on the premises, -78. 
 Wholesale license, 6, 74 (see sale). 
 Wholesale only, 73. 
 Wife, 277. 
 
 Wilful ; wilfuUy, 107, 202. \ 
 
 Wilful neglect or default, 298. 
 
 Will not hold himself out or induce others to believe, 112. 
 With costs, 107. 
 
 With intent to evade the conditions of bis license, 190. 
 With the view, 199. 
 Within a period of two years, 24. 
 Within one woek, 20. 
 Within twelve mop^hs, 281. 
 Within six weeks, 281. 
 Within ten days, 293. 
 Within the Municipality, 74. 
 Without consideration, 284. 
 Without the license required by law, 159. 
 Writing or written, 13. , 
 Written consent, 81. ' 
 Year, 14, 24. 
 
 INTEMPERATE HABITS (see DrunkennebsJ. 
 
 INTERNAL COMMUNICATION (see Tavern anu Shoi> Licenueh). 
 
 Penalty for allowing with unlicensed premiseu, 182. 
 
 with premises in which other goods are sold, 183. 
 INVESTIGATIONS. 
 
 Into conduct, etc. , of Inspector, 285-287. 
 INTOXICATED PERSONS. 
 
 Liability of inn-keepers and others who give liquor to persons who 
 I become intoxicated, 268. 
 
 JOINT-STOCK COMPANY. 
 
 Defined, 44. 
 
 Commissioner holding shares iu Hotel Co. not to vote on applioatiou to 
 license hotel, 44. 
 JURISDICTION. 
 
 Of Inspector, 12. 
 
 Of Chief Inspector, 13. 
 
 Of Mayor of city or town, 193. 
 
 Of Reeve of township or village, 193. 
 
 Of Justice of the Peace, etc., 194. 
 
 Of Polios Magistrates, 218. 
 
 As to sale t*) habitual drunkards, 274. 
 
 JUSTICES OF THE PEACE (see Maoistrates). 
 Certificates by, 119. 
 Not to give colorable certificate, 120. 
 Penalty for, 121. 
 Joriadiotion of, 194, 218, 
 
INDEX. 
 
 377 
 
 es, -78, 
 
 e, 112. 
 L90. 
 
 } 
 
 v Licenses). 
 
 2. 
 
 I, 183. 
 
 quor to persons who 
 
 vote on applioatiou to 
 
 JUSTICES OF THE PEACE— Continued. 
 
 Duties of as to payment over of fines recovered, 207. 
 
 Shonld bA free from bias, 215. 
 
 Who are License Ccmmissioners or Inspectors prohibited from trying 
 
 certain complaints, 216. 
 Authorities as to disqualifying interest, 216-217. 
 Certain prosecutions to be before two or more, 217. 
 Other prosecutions may be before one or more, 219. 
 One Justice may hear case in rural municipalities, 223. 
 Minute of conviction by, 225. 
 Fees allowed to, 266. 
 tablr of, 349. 
 
 To transmit papers to Glerk of County Court in oases of appeal, 265. 
 Power of, to forbid sale of liquor to habitual drunkards, 274. 
 May issue search warrant, 292. 
 
 JUi ^MENT. 
 
 In the case of Dominion Liquor License Act, 1883, 15. 
 
 K- 
 
 KEEP. 
 
 No person to keep liquors for sale without license, 112. 
 
 Provisions as to keeping bar-room closed on Saturday night and Sunday, 
 
 125-133. 
 Definition of term keeper, 133. 
 
 KEEPER OF HOUSE (see Tavkrn-Erbpbb). 
 Liability of, 132. 
 Meaning of, 133. i 
 
 L 
 
 LAPSED LICENSE. 
 
 New license may be granted in case of, 87. 
 Terms upon which same to issue, 88. 
 
 LEGISLATIVE AUTHORITY (see Power). 
 
 Powers of Provincial Legislature in respect of licenses, 1, 15, 72. 
 
 Authorities respecting, 2, 7, 15, 72, 102, 116. 
 
 LICENSE COMMISSIONERS vsee Couhissionbbs). 
 
 LICENSED PREMISES. 
 Meaning of, 5. 
 Includes reasonable additions, 46 (g). 
 
 IIOENSES. 
 
 Origin of licensing system, 1. 
 
 Powers of Legislature as to, 1, 16. 
 
 Word "license " defined, 5. 
 
 Number of taverns may be limited by Commissioner, 10. 
 
 Issue of, 18. 
 
 Date of, 14. 
 
 When to be issued, 14. 
 
 Issue of on special grounds, 14. 
 
 How to be issued, 16. 
 
 Not to issue to vessels, 16, 17, 
 
 Obtained by fraud, 18. 
 
 Void for not complying with Statute, 18. 
 
 Application for, 17. 
 
 Conditions to be complied with by applicant for, 18. 
 
 Inspector's report on, 17, 18. 
 
 Improper issue of, 18. 
 
 Disqualification of person from holding, 18. 
 

 378 
 
 INDEX. 
 
 
 i't!*-^' 
 
 Nii^i 
 
 ■i'^.r 
 
 lAOESiSEB— Continued. 
 
 Diaoretion of License Oommissionera in respeot of. 19. 
 
 Mandamua will not be granted to compel issae of, 18. 
 
 When application or petition for to be preBentfid, 19. 
 
 Objections to license, 22-87. 
 
 Notice of objections to character, 28, 80, 81. 
 
 Decision of Board as to fiir^I, 30 
 
 Oertifioate required with application for new tavern license, 81. 
 
 mast be signed by majority o! electors, 82. 
 Transfer of to premises not licensed, 81. 
 
 application for must be accompanied by certificate of electors, 32. 
 
 from holder to another person for same premises, 33. 
 Dispute as to certificate to be referred to Olerk of Municipality, 83. 
 Certificate of electors required in unorganized districts, 84. 
 Form and requisites of certificate, 86. 
 Time for presenting oertifioate, 86. 
 Time for filing certificate, 36. 
 Posting lists of application, petition, etc., 35, 
 Petition against licenses must be filed four days before meetings, 35. 
 Applicant for must comply witH requirements, etc., 39. 
 Commissisners may grant or refuse at their option, 39. 
 Mode of issuing tavern and shop licenses, 88. 
 Duty must be paid into Bank before issue of, 40. 
 Not to issue on days of Agricultural Exhibitions, etc., 41. 
 Not to issue to ferry boats. 
 
 Not to be granted to License Commissioners cv Inspector, 42. 
 Certificate for granted in contravention of Act void, 42 (q). 
 Not to be issued for premises owned by Oommissioners or laapeotor, 43. 
 Include reasonable additions to premises, 46 {q). 
 Limited to person and place therein named, 45. 
 Limitation of tavern licenses, 46. 
 Manner of determining population with a view to, 47. 
 Council may limit number, 61. 
 
 May be extended where they cannot be renewed, etct, 64. 
 Beer and wine license may be issued, 66. 
 In places largely resorted to in summer by visitors, 66. 
 Place licensed as tavern not to cooamunicate with grocery, 62. 
 Every tavern licensed must be an eating-house, 63. 
 Licensee of tavern must give security, 64. 
 To shops, 66. 
 
 Council may limit, 67. 
 
 not to issue to places in which other goods are sold, 89. 
 
 void if other goods sold, 71. 
 
 provisons of tavern licenses to apply to, 71. 
 
 condition for obtaining, 72. 
 Wholesale, 72-78 (see wholesale licenses). 
 Transfer of, 79. 
 Become void on death or alienation of licensed premises unless consent 
 
 of Oommissioners to transfer obtained, 80. 
 Removal of, 84. 
 
 mileage of Inspector on, 85. 
 Lapse of, 87. 
 
 licenses may be issued for premises when license becomes void 
 for any cause, 87. 
 Duties payable for, 89, 100. 
 License fund, 101. 
 To be kept exposed, 106. 
 Notice of to b« exhibited, 107. 
 
«ip 
 
 INDEX. 
 
 379 
 
 19. 
 
 lioenae, 81. 
 
 .fioate of electors, 32. 
 liaes, 33. 
 lunioipolity, 83. 
 iots, 34. 
 
 tore meetings, 35. 
 39. 
 ,39. 
 
 to., 41. 
 
 ipeotor, 42. 
 
 mers or lui^peotor, 43. 
 
 47. 
 
 iCt, 64. 
 
 .66. 
 grocery, 62. 
 
 are sold, 89. 
 
 remises unless consent 
 
 I license becomes Toid 
 
 LICENSES— Continued. 
 
 Sale of liqnor without, 108, 157. « 
 
 Person not having a license not to hold himself out as a licensed person, 
 
 112. 
 ^-ii-iPersons not licensed not to keep liqnor for sale, IVt 
 To brewers, distillers, etc., 115-117. 
 Authorities respecting, 116. 
 To manufacture intoxicating liquors, etc., 116. 
 
 Licensees not to purchase certain articles or receive them in pledge. 147. 
 Commissioners or Inspectors not to take money for, 161. , 
 
 Penalty for, 153. 
 
 Issuing licenses contrary to Act, 163-155. 
 Irregularly issued protection against penal consequences, 169. 
 Penalty for selling Uquor without, 157. 
 May be suspended or annulled on conviction of keeping disorderly 
 
 house, 195. 
 Persons violating law may be disqualified from holding beer and wine 
 
 license, 201. 
 Revocation of by County Judge, 208-211. 
 How proved, 248. 
 Production of to be evidence, 258. 
 * In unorganized districts, 300. 
 Where C. T. Act in force, 304. 
 May be extended, 64. 
 Be-issne of lapsed, 87. 
 LICENSE DISTRICT. 
 Defined, 7. 
 Formation of, 7. 
 LICENSE FUND ACCOUNT. 
 
 Duty to be paid to credit of, 40. 
 
 Duties, fines and penalties to form part of, 101. 
 
 How applied, 102, 103, 104. 
 
 Cheques on how drawn, 104. 
 
 LIEUTENANT-GOVERNOR. 
 
 Defined, 12 (x). 
 
 May appoint Inspector, 12. 
 LIGHTS (pee Pbesumftioms.) 
 
 In bar-room evidence of sale, 252. 
 
 LIQUORS. 
 
 Defined, 2 (b). 
 
 Not to be sold by holder of beer and wine license, 57. 
 
 LISTS. 
 
 Of applications to be kept by Inspector, 21. 
 
 Of certificates and petitions to be posted ^n Inspector's office, 21. 
 
 Publication of, 21. 
 
 LOCAL OPTION. 
 
 By-laws may b« passed by Municipal Council, 92-97. 
 Authorities as to, lb. 
 Act respecting, 94. 
 
 LODGERS (see Gubbts). 
 
 Bights and liabilities of, 169-173. 
 
 LODGING. 
 
 Penalty for refusing, 169, 
 
 Rights and liabL'Hies of keeper of, 173. 
 
 LOTTERY (see Gambunq). 
 
I ' ! 
 J 
 
 380 
 
 INDEX. 
 
 
 U 
 
 '■ry.' 
 it: 
 
 3 
 
 ^ 
 
 ■i ! 
 
 • 1 h 
 
 *i| 
 
 'I . 
 
 ;l 
 
 I ,'i 
 
 ^J: 
 
 
 i 
 
 M 
 
 MANUFAOTUBEB. 
 
 Definition of, 78. 
 
 Of native wines exempt from duty, 78. 
 
 MALT LIQUORS. 
 
 Meaning of, 2. 
 MAQISTBATES (see Jttbtiois of tbb Pbaob and Poliob MAo'isTR&Tas). 
 
 Jorisdiotion of, 194. 
 
 Disqaalifioation of to try certain oases, 215-217. 
 MATOB. 
 
 Of city or town, jorisdiction of, 193. 
 MANDAMUS. 
 
 Will not be granted to compel issue of license, 18, 88. 
 
 Nor to compel Inspector to examine premises, 18. 
 
 To revoke certificate granted in contravention of a municipal by-law, 42. 
 
 MARRIED WOMAN (see Husband and Wife). 
 
 MA8TEB AND SERVANT (see Sebvant). 
 Belation of, 76, 148, 169. 
 
 MEANING (see Intbbpbbtation). 
 
 Of particular words in a Statute discussed, 49. 
 MEASUBE. 
 
 Standard of, 6, 7. 
 MEASUBEMENT. 
 
 Of distances, 41. 
 MEDICAL PBACTITIONEB (see Intebpbstation). 
 
 Certificate of, 119. * 
 
 May not give colorable certificates, 120. 
 
 Penalty for, 121. 
 
 MEALS. 
 
 Penalty for refusing, 169. 
 
 MEETINGS. 
 
 To consider applications, 20. 
 
 Publication of, 20. 
 
 Applications and objections to be heard at ^ meeting of the Board of 
 License Commissioners, 86. 
 
 To be open to the public, 86. 
 
 Commissioners may adjourn, 80, 87. 
 
 May consider decision with closed doors, 86. 
 
 Where meetings must be held, 87 (9). 
 MEMBEBS OF MUNICIPAL COUNCIL. 
 
 Forfeiture of oflice by, on conviction, 166. 
 
 Licensee not to be, 19 (a). 
 MILEAGE OF INSPEOTOB (see Inspkotob). 
 
 On transfer or removal, 86, 86, 90. 
 METHTLATED ALCOHOL. 
 
 Excepted, 121. «^ 
 
 lUNEBAL WATEBS. 
 
 Provisions as to sale of in shops, 70, 71. 
 
 MINOBS. 
 
 Penalty for allowing liquor to be supplied to, 186. 
 for supplying liquor to after notice, 186. 
 
 Who are, 186. 
 MINUTE. 
 
 Of conviction or adjudication, 226. 
 
INDEX. 
 
 381 
 
 E Maqibtr&tss). 
 
 J8. 
 
 munioipal by-law, 42. 
 
 leting of the Board of 
 
 MOBTGAOE. 
 
 Oommiasioner holding mortgage on hotel not to vote on application to 
 license it, 44. 
 
 MUNIOIPAL COUNCILS. 
 
 Not intended to have cononrrent powers with License Commissioners, 
 
 10(r). 188(/). 
 Licensee disqualified to be member of, 19 (a). 
 May authorize person to appear at hearing of objection, 17. 
 Empowered to take census, 61. 
 May limit number of tavern licenses, 61. 
 Powert f, to make by-laws, 62, 53, i)l, 92, 97, 9?, 100, 101. 
 Of cities and towns may prescribe tavern accommodation, 63. 
 May limit number of shop licenses, 67. 
 And restrict and regulate the sale in shops, 67. 
 May impose larger duties up to $200, but not more without consent of 
 
 electors, 91. 
 In village separated from township after its passing, 92. 
 By-laws prohibiting sale of liquor in Municipality, 92. 
 Power to pass by-laws pending repeal of 0. T. Act, 97. 
 by-laws of where duties exceed Statutory figure, 99. 
 
 may declare that Qovemment duty is inclusive of amount fixed 
 by by-law, 101. 
 May impose duty wholly for use of Municipality, 101. 
 Have power to compel removal of false notice of license, 112. 
 Powers as to closing licensed places on Saturday night and Sunday, 126. 
 Officers of, 166. 
 
 Liability of officers of for offences under the Act, 166. 
 Forfeiture and disqualification of such officers, 166. 
 LiabUity of members for offences under the Act, 166. 
 Forfeiture of office on conviction, 166. 
 Who are members of, 166. 
 Jurisdiction of Mayor of city or town, 193. 
 Jurisdiction of Reeve of township or village, 193. 
 Not to remit penalties, 206. 
 To set apart certain portion of penalties received for purpose of enforcing 
 
 the law, 207. 
 Powers of in unorganized districts, 801. 
 Powers and liabilities where 0. T. Act in force, 303 et seq. 
 
 MUNICIPALITY. 
 
 Maximum number of licenses to be issued in each, 46. 
 
 Authorized to take census, 61. 
 
 To set apart third part of penalties recovered, 207. 
 
 N 
 
 NAME. 
 
 Person found in unlicensed place must give, 295. 
 Penalty for refusing, 296. 
 
 NATIVE WINE. 
 
 License not necessary for sale of, 78. 
 Definition of, 78. 
 
 NEW APPLICANTS (see Applicants). 
 
 For tavern license must file certificate signed by majority of electors, 32. 
 Names of, to be published, 21. 
 
 NEW LICENSES (see Liobmskb). 
 
 Applicant for must file certificate signed by majority of electors, 82. 
 
 Electors may object to, 81-85. 
 
 May be issued in case of lapsed license, 87. 
 
1 
 I 
 
 / 
 
 382 
 
 INDEX. 
 
 III.!- 
 
 
 3 
 
 ■i 
 
 I'l 
 
 I '1.' 
 
 
 mm 
 
 NIAOABA FALLS. 
 
 Namber o( lioenses to be iasaed in town of, 47. 
 
 NOTICT' OP ACTION. 
 
 Lioense OommiflsioserB entitled to, 11. 
 In actions against officers, 368. 
 
 NOTICE. 
 
 Of meeting to consider applications, 20. 
 Of Inspector as to applications, 21. 
 Of objections to license, 28. 
 
 bow licrved, 28. 
 Where objection raised b;^ Gommissioneri, 80. 
 Of re-hearing of application, 81. 
 Of license to be exhibited, 107. 
 Not to be exhibited when person not licensed, 112. 
 Defined, 112 (u). 
 Forbidding sale of liqnor to minors, 186. 
 
 form of, 187. 
 In case of prohibition of sale to habitual drunkards, 274. 
 By husband or wife, etc. , to sellers not to furnish liqnor to person 
 addicted to drinking, 277. 
 
 NUMBEB. 
 
 Limitation of tavern licenses, 46. 
 
 How population to be determined, 47-61. 
 
 o 
 
 OATH. 
 
 Oommissionera may administer, 86. 
 
 OBJECTIONS TO PBOOEEDINQS. 
 Must be taken at hearing, 
 To information where previous conviction not charged, 162. 
 
 OBJECTIONS TO APPLICATION.— 21. 
 
 Nature of, 22. 
 
 As to character of applicant, 28. 
 
 As to hi* premises, 24. 
 
 As to neighborhood, 25. 
 
 Hearing of, 27. 
 
 As to character, 28. 
 
 Notice must be given of, 28. 
 
 Commissioners may raise objections, 29. 
 
 Notice to applicant in such cases, 80. 
 
 When to be filed, 85. 
 
 Hearing and determining, 86. 
 
 Proceedings at hearing, 86. 
 OBTAINING LIQUOB AT PBOHIBITED TIME (see Pkmaltxbb). 
 
 An offence, 185. 
 
 Penalty for, 168. 
 
 OCCUPANT. 
 
 Defined, 118, 266. 
 
 Not to permit liquors to be consumed on premises, 118. 
 
 Presumption as to, 251. 
 
 Liability of, 264. 
 
 Person selling as well as, to be liable, 255. 
 
 Statutory meaning of, 266. 
 
 OFFENCES. 
 
 May be created by regulations of the License Oommiasioners, 12. 
 Description of, 980. 
 
INDEX. 
 
 383 
 
 OFFBNOEB— Oontinutfd. 
 
 FormB for desoribing, 880. 
 Defined, 165. 
 
 OFFICERS (lee Insfxotob, Pbovinoial Inspector, etc.). 
 Payment of expenses to, 103. 
 
 Protection of from alleged violation of the Act when charged with detec- 
 tion of offences. 140. 
 Of Municipal Gooncils, 156. 
 Forfeiture of office on conviction, 156. 
 To enforce the law, their duties and powers, 286. 
 License Commissioners may appoint, 287. 
 Meaning of term " officer." 288. 
 To be deemed within the Act, 288. 
 Actions against, 288. 
 
 Must make inquiry on receiving information as to violation of law, 289. 
 Bight of to make search, 290. 
 Bights under authority of search warrant, 292-294. 
 May demand names and addresses of persons found in unlicensed 
 premises, 295. 
 
 OFFICE. 
 
 Of Inspector, 87. 
 
 OFFICIAL DOCUMENTS. 
 How proved, 249. 
 
 OIL OF WHISKEY. 
 Excepted, 121. 
 
 ORAL PBOOF.— 29. 
 
 OBEEBS (see Convictions). 
 
 Aj distinguished from convictions, 224. 
 
 ORIGIN OF LICENSING SYSTEM.— 1. 
 
 niBsioners, 12. 
 
 PAWN. 
 
 Licensee not to receive articles in, 148. 
 As to what is subject of, 149. 
 Procedure in such cases, 150. 
 
 PAYMENT. 
 
 When default in payment of fine occurs, 162. 
 
 Of money for liquor illegally sold and recovery of, 283. 
 
 PENALTIES (seeFwBs). 
 
 May be imposed by regulations of License Commissioners, 12. 
 
 And fines tp form part of license fond, 100. 
 
 How to be paid and appUed, 102. 
 
 In money, 104. 
 
 Where Inspector is prosecutor, 105. 
 
 Where the whole, and costs not recovered, 105. 
 
 Where costs are not reooArered, 105. 
 
 On " every person " concerned in an offence, 107. 
 
 " any person " concerned in an offence, 157. 
 For neglect to expose license, 106. 
 
 to exhibit notice of license, 108. 
 Fine of 950, etc., not excessive*, 117. 
 For giving colorable certificate, 121. 
 Witnesses may be exempt from, 138. 
 For selling liquor from ships in port, 141. 
 For allowing Uquor to be consumed in shops, 142. 
 Against licensee for purchashig or receiving goods in pawn, 150. 
 
3^4 
 
 INDEX. 
 
 3 
 
 ^' 
 
 ti ■ 
 
 i i- 
 i H 
 
 
 I 
 
 PENALTIES— Cotitfntted. 
 
 For taking money for license, eertifioftte, report, eto., ISl. 
 
 Of not leia than 960, what is meant by, 168 (see Interpretation). 
 
 For issning lioense contrary to the Act, 168. 
 
 On conviction of Municipal officer, 166. 
 
 On conviction of member of Municipal Council, 167. 
 
 For selling without license, 167. 
 
 For first offence, 161. 
 
 When default in payment occurs, 162. 
 
 Of imprisonment, authorities as to, 168, et »eq. 
 
 For selling liquor, etc., during prohibited hours, 166. 
 
 Recovery of, by distress, 168. 
 
 For obtaining liquor at prohibited time, 166. 
 
 For refusing lodging, meals, etc. , 169. 
 
 For permitting drunkenness, 174. 
 
 For permitting violent, quarrelsome or disorderly conduct, 176, 176. 
 
 For selling liquor to drunken person, 177. 
 
 For permitting consumption of liquor by drunken person, 177. 
 
 For permitting persons of bad character to assemble, 177. 
 
 For permitting gambling, etc., 181. 
 
 For internal communication with unlicensed premises, 182. 
 
 For internal communication with premises in which other goods sold, 183. 
 
 For allowing liquors to be supplied to minors, 186. 
 
 For supplying liquors to minors after notice, 186. 
 
 For nllowing liquors to be unlawfully consumed on premises, 188. 
 
 In case of purchaser drinking liquor on premises where same is bought, 
 
 190. 
 For keeping disorderly house, etc., 196. 
 For harboring constables on duty, 196. 
 For compromising or settling a case, 198. 
 For being concerned in such compromise, 200. 
 For tampering with witness, 202. 
 For violating cases not otherwise provided for, 203. 
 Of imprisonment under different convictions, 204. 
 Not to be remitted, 206. 
 In money, how recoverable, 206. 
 Application of, 206-208. 
 
 For violation of provision as to sale to habitual drunkards, 276. 
 For selling liquors to inebriates after notice, 282. 
 For refusing to admit officer, 291. 
 
 For refusing name or address, or for giving false information. 
 For neglect by officer to prosecute offenders, 298. 
 Application of under the G. T. Act, 323. 
 
 PETITIONS (see Appucation). 
 
 For tavern and shop licenses, 17. 
 
 Must be accompanied by Inspector's report, 17. 
 
 When to be filed, 19. 
 
 May be presented by electors objecting to license, 22. 
 
 What objections may be taken, 23. 
 
 Against License to be filed four days before meeting, 36. 
 
 Persons signing may be heard in support of, 27. 
 
 Council may authorize any person to appear for ratepayers, 27. 
 
 Notice of objection to character must be given, 28, 
 
 Board may take notice of objections, 29. 
 
 Decision of Board final, 30. 
 
 In case of application for new license, 31. 
 
 To be presented to Board by Inspector, 35. 
 
 " Petition " and " application " defined, 36. 
 
 ''3' 
 
^p 
 
 INDEX. 
 
 385 
 
 ndoot, 178, 176. 
 
 PETITIONS— Continued. 
 
 For rtTOoation of lioenie, to Oonnty Judge, 208. 
 
 Form of, 848. 
 POLICE (sM Oombtablib). 
 
 Harboring while on dnty, 196. 
 
 Gonstitation and appointment of, 197. 
 
 Moat make inquiry on receiving information of violations of law, 
 
 Bight of search by, 290. 
 
 under eearob warrant, 292-294. 
 
 May Mize liquor found on aearoh, 294. 
 
 May demand name, addreas, eto., of penons found, 295. 
 
 Mnat proaeoute offenders, 297. 
 
 Remarks as to dnty in this respeot, 298. 
 
 Commissioners of, eto., to see that this provision is enforced, 298. 
 
 POLICE MAOIBTBATES (see Jubtioeb of tbb Fiace). 
 To have powers of two Justices, 218. 
 
 I'OLLING SUB-DIVISION. 
 Defined, 7. 
 Eloctor of may object to license, 22. * 
 
 POPULATION. 
 
 Manner of determining with a view to the number of licenses, 47, 48, 49. 
 POBT ABTHUB. 
 
 Number of licenses to be issued in, 4'J. 
 
 POWERS (see Lkqislatiyb Authobitt). 
 
 Discretionary, diacuased, 8 (0), 48 (d), 102 (/) 
 
 Of Licenae Commiaaioners, 8, 86. 
 
 Of Provincial Legislature, 1, 7. 
 
 Delegation of, 102. 
 
 Of Dominion Government with reapect to brewera, diatillera, etc., 115-117. 
 
 POWEBS OF COUNTY JUDGE. 
 
 Aa to revocation of beer and wine license, 60. 
 As to revocation of other hcensea, 208-211. 
 
 POWEBS OF JUSTICES OF THE PEACE (aee Jcstiobb of thb Peace). 
 To forbid sale to habitual drunkards, 274. 
 
 PREMISES. 
 
 Meaning of, 6 (see Interpretation). 
 
 To be deaoribed in notice of application, 21. 
 
 Licenae limited to premises described, 45. 
 
 What is included in expression "premises where same is sold," 191. 
 
 PRESUMPTIONS (aee Evidence). 
 
 Conaumption of liquor by clubs, 124. 
 Unlawlul consumption of liquor, 188-190. 
 Places in which sale of Uquor is presumed, 250. 
 As to occupant, 251. 
 Light in bar, 252. 
 
 Keeping up sign, or having bar, etc., 253. 
 Certain, conclusive, unless rebutted, 257. 
 
 Finding of liquor on premises to be evidence of keeping sanar for sale, 
 294. 
 
 PREVENTION OF ILLEGAL TRAFFIC. 
 Officers may be appointed for, 287. 
 
 PREVIOUS CONVICTIONS. 
 
 Proceedings where charged, 226. 
 Need not be charged, 228. 
 Offences on same day^ 228. 
 
 
FT^Mr 
 
 386 
 
 INDEX. 
 
 3'i 
 
 ¥.W '- 
 
 PREVIOUS GONVIOTIONB— CoiKintMd. 
 
 In OMM of ft Moond or inbieqaent oooTiotion beoomiog irrMalw by 
 qoMbing of » flrit or previoai oonviotion, Jnitioei m»7 amena, 820. 
 PHOOBDURE. 
 
 At hearing of objeotioni, 86. 
 
 On appUoAtion to reToko lloenie, 911. 
 
 In 0M6I where prevloai oonviotion charged, 225. 
 
 Not Toid for certain defects, 289. 
 
 Amendment of, 240. 
 
 In appeal casee, 265. 
 
 On an inquiry by Provincial Inspectors, 286. 
 
 PBODUOTION OF DOCUMENTS. * 
 
 May be ordered, 260. 
 
 PROHIBITION. 
 
 By-UwB may be passed by Municipal Ooanoils, 02. 
 
 Aathoritiei ai to powers of legislature, 92-07. 
 
 Of sale to habitual drunkards, 274. 
 
 Effect of, 276. 
 
 Penalty for violating such provision, 276. * 
 
 Application to set aside, 276. 
 
 Of sale to inebriates after notice, 377. 
 
 PROOF (see Evidkmob). 
 Oral, 29. 
 On oath, 150. 
 
 Of being licensed rests with defendant, 160. 
 Production of license prima /aeie evidence, 169. 
 Of material allegations, 162. 
 Of unlawful consumption of liquor, 189. 
 Of previous convictions, 227. 
 Of license, 248. 
 Of regntetion, 240. 
 
 PROSECUTIONS. 
 
 Where Inspector prosecutor or complainant, 105, 106. 
 
 Penalty for causing ease to be dismissed for want of, 100. 
 
 Any person may be prosecutor, 212. 
 
 To be made within thirty days, 218. 
 
 Manner in which complaint to be laid, 212-217. 
 
 In certain cases to be before two or more Justices, 217. 
 
 Under resolutions of License Commissioners imposing penalties, 220. 
 
 Which may be heard before two or more Justices, 217. 
 before one or more Justices, 219. 
 
 In rural Municipalities aay be heard before one Justice, 228. 
 
 In cases where previous ci-nviotion charged, 226. 
 
 Fees to Inspector for attending, 261. 
 
 Where O. T. Act in force, 804. 
 
 Commissioners and Inspectors not to try complaints, 216. 
 PROTECTION. 
 
 Of officers appointed to enforce the Act, 140. 
 PROVINCIAL INSPECTORS. 
 
 Lieutenant-Qovemor may appoint, 286. 
 
 Their duties and powers, 285-287. 
 
 PROVINCIAL OFFIGERS. 
 
 Lieutenant-Oovemor may appoint, 286. 
 Their duties and powers, 285-287. 
 
 PUBLIC OFFICERS. 
 
 License Commissioners are, 11. 
 
INDEX. 
 
 387 
 
 Of. 144. 
 liqnor, liable, 147. 
 
 FUBLIO OFFI0BR8— ConNNiMd. 
 
 LUbiUtiM of, 151. 
 
 Dntiei of, 389. 
 PUBLIO. 
 
 ProoMdingi nt hearing to be, 80. 
 PUBLIOATION. 
 
 Of meeting for oonridering applioations, 20. 
 
 Of notice of applioation, 21. 
 
 Of names of new applioants, 21. 
 
 Of total number of lloensea, 21. 
 
 Of total number of applioationa, 21. 
 PURCHASE R (see Biw). 
 
 Obtaining liqnor at prohibited timea, 185. 
 
 Of liqnor for parpoaea tt re-selling, liabni'./ 
 
 Or pledgee of certain artidea in ezohan^ > io . 
 
 Oaae of purchaser drinking liquor on premiau* where aame ia bought, 190. 
 
 Liability of, for drinking or oauaing person to drink liquor where bought, 
 198. 
 
 Q 
 
 QUALIFIOATIOHS AND OONDITIONS FOR OBTAIMINO TAVERN 
 LI0BN8EB.— 9. 
 
 QUASmNG OONYIOTIONB. 
 
 Upon eertiorari, 244-348, 844-849. 
 QUARRELSOME OONDUOT. 
 
 Penalty for permitting, 174. 
 
 R 
 
 BATE PATERS. 
 
 May anthoriie peraon to rapear for them at License Oommissionera' 
 meeting, 28. 
 
 Who are, 38 {h). 
 
 REASONABLE AND PROBABLE OAUBB.— 106. 
 
 BEOOGNIZANCE. 
 
 On application for eertiorari, 246. 
 
 form of, 846. 
 In appeal oaaea, 266. 
 
 BEOOYBRT. 
 
 Of goods or property taken in pawn or exchange for liquor, etc. 
 Of money or aeouritiea given for liqnor illegally sold-, 288. 
 
 REEVE OF TOWNSHIP OR VILLAGE. 
 Juriadiotion of, 198. 
 
 REGULATIONS (aee Rbbolutiomb). 
 Definition of, 9 (p). 
 
 Powera of License Oommissionera to make, 9. 
 To rema^ in force nntil amended or repealed, 11. 
 Penalties may be imposed by, 12. 
 A^ to iaane of ahop licenaea, 88, 66. 
 Aa to iaane of wholesale licenses, 76. 
 And prohibitions, 106. 
 How enforced, 220. 
 How authenticated. 249. 
 Licenae to be kept expoaed, 106. 
 Notice of licenae to be exhibited, 107. 
 Liquors not to be sold without Ueenae, 108. 
 
H 
 
 r-^Kmrnmrn 
 
 388 
 
 INOEX. 
 
 Ir 
 
 ¥■': 
 
 ■I 
 
 mM^^' 
 
 E^!^, 
 
 '<i;/ 1 
 
 m -I 
 1 *■■.■;■ 
 
 i-t;^ 
 
 3 
 
 • ■^ 
 
 1 
 
 M 
 
 ;■■•.•'■ . 
 f; 
 
 'I. 
 
 
 
 11^ 
 
 BEOULATIONS— ConttntMd. 
 Nor kept for sale, 112. 
 
 Nor to be drnnk on premiseB, 113, 114, 142, 143. 
 Not to be sold on Saturday night, eto., 126. 
 Nor on eleotion days, 134. 
 
 BEHEABINO. 
 
 Of application, 81. 
 
 REMITTED. 
 
 Penalties not to be, 206. 
 BEMOVAL. 
 
 Inspector may consent to removal to another house, 84. 
 
 ESect of such consent, 86. 
 
 Mileage of Inspector in such cases, 85. 
 
 Duties payable on, 90. • 
 
 Bond or security to apply, 86. 
 
 Fees for to form part of license fund, 102. 
 BEPOBT. 
 
 Of Inspector on application for tavern and shop license, 17. 
 
 To be filed, 17. 
 
 To be open to inspection, 18. 
 
 Not to be conclusive, 19. 
 
 In case of shop licenses, 66. 
 
 New report necessary on transfer, 83. 
 
 May be dispensed with, 84. 
 
 BEQUIBITEQ. 
 
 For tavern license defined, 9, 18. 
 
 BE8TITUTI0N. 
 
 Of goods taken in exchange for liquor, 160. 
 Writ of, 160, 841. 
 
 BESTBIOTION OF SALE. 
 To inebriates, 272. 
 
 RESOLUTIONS (see Bbgqlationb). 
 
 Defined, 66. 
 
 Powers of Oommissionera to make, 9. 
 
 Limiting taverns and shops, 10. 
 
 Limiting saloons, 11. 
 
 Begnlating taverns and shops, 11. 
 
 Defining duties, etc., of Inspector, 11. . 
 
 Imposing penalties, 6. 
 
 Prosecutions under, 220. 
 
 How authenticated, 249. 
 BETAILEP OF SPIBITS. 
 
 Who is, 6 (e), 77 («). 
 
 REVISION OF STATUTES. 
 Effect of, 826. 
 
 RBVOOATION OF LICENSES. ' 
 
 By County Judge, 208. ^ t^ 
 
 Proceedings on, 211. 
 Of beer, etc., license, 60. 
 
 RIOTOUS CONDUCT. 
 
 Penalty for permitting, 174. 
 
 RURAL MUNICIPALITIES. 
 
 Cases in may be heard before one Justice, 223. 
 
INDEX. 
 
 389 
 
 s 
 
 84. 
 
 ise, 17. 
 
 SALARY AND EXPENSES. 
 
 Of Inspeotor and offioers, 103. 
 SALE (see SBLLiNa). 
 
 Meaning of, 5 (d). 
 
 Of less quantity than authorized by lioenae, 6 (c). 
 
 Of liquors by company, 6 (e). 
 
 Of liquors on vessels abolished, 16, 17. 
 
 Of liquor without license, 108. 
 
 Under legal process or by assignees in insolvency, 108. 
 
 Authorities as to, 108-111, 167164. 
 
 Of liquor by brewers and distillers, 116. 
 
 By chemists, etc., 118. 
 
 Of liquor during prohibited hours, 125. 
 
 Of liquor on polling days prohibited, 134. 
 
 Of liquor from ships in port prohibited, 141. 
 
 To unlicensed persons prohibited, 143. 
 
 Penalty for sale without license, 157. 
 
 Convictions for sale without license, 108-111, 157-164. 
 
 Places in which presumed, 250. < 
 
 Evidence as to, 251. 
 
 Light in bar, 262. 
 
 What shall be deemed evidence of unlawful, 253. 
 
 Liability of occupants, 254. 
 
 Person selling as well as occupant liable, 255. 
 
 dertain presumptions conclusive unless rebutted, 257. 
 
 Of liquor to persons becoming drunk, 268. 
 
 Bestrictiona of to inebriates, 272. 
 
 Justices may forbid, to habitual drunkards, 274. 
 
 Of liquor to habituakdrunkards after notice by husband, wife, etc., 277. 
 
 Money paid for liquor sold illegally may be recovered, 284. 
 
 Where 0. T. Act in force, 804. 
 
 SALOONS (see Tavebh Liobnssb). 
 Number of limited, 11. 
 
 Si^TISFAOTOBT EVIDENCE (see Evidbnob). 
 Defined, 144. 
 
 SATURDAY NIGHT AND SUNDAY. 
 AH places to be closed during, 126. 
 When keeper of house guilty of violations of provisions as to Sunday 
 
 dosing, 130-183. 
 When persons other than keeper of house guilty, 133. 
 Obtaining liquor at prohibited time, 136. 
 Penalties for contravention of provisions as to, 165. 
 
 SCHEDULES OF FORMS (see Fobhb) 329. 
 
 SEARCH. 
 
 Rights of officers, policeman, ooAstable or inspector to make, 290. 
 
 Warrant may be grantad authorizing, 292. 
 
 Rights of officers thereunder, 293. 
 
 Officers may seize liquor found on, 294. 
 
 Persons found in unlicensed place must give name and address, 295. 
 
 SECOND OFFENCES (see Convictions). 
 
 Duty of Inspector to prosecute for, 128. 
 Duty of Justice in respect of, 128 (x). 
 Authorities as to, 129, 166, 167, 168. 225, 280. 
 Punishment for, 162, 166. 
 Authoritiea as to, 162, 164, 228. 
 
 i 
 
390 
 
 INDEX. 
 
 i 
 
 3 
 
 ^' 
 
 .1 
 
 *i 
 
 ri 
 
 ■' ! f. I 
 
 i ^ 
 
 ■J i 
 
 mi'' 
 
 U.''i- ■■ 
 if: ■■!, 
 
 lit jfLl 
 
 :• ! 
 
 I' 
 
 
 If ■ 
 
 
 
 SECOND OFFENCES— ContJniMd. 
 
 Oonviotion for bad nnless proeeedingB taken for first ofFenoe, 166. 
 
 ProoeedingB where charged, 225, 230. 
 
 Meaning of, 230. 
 SECURITY. 
 
 Of Inspecitor, 12. 
 
 To be given by tavern licenses, 64. 
 
 To be given by officers appointed by License CommissionerB, 287. 
 
 SECURITIES. 
 
 Oiven for liqaor illegally sold may be recovered, 283. 
 And to be void, 286. 
 
 SEIZURE. 
 
 Of liqaor fonnd on unlicensed premises, 294. 
 If no conviction liqaor to be returned, 297. 
 
 SELLING (see Sale). 
 
 Lesd qnantity than license allows, 6 (e). 
 
 Without license, 108. 
 
 Convictions for selling without license, 108-111, 167-164. 
 
 From ships in port prohibited, 141. 
 
 To unlicensed persons prohibited, 148. 
 
 Penalty for selling without license, 167. 
 
 Oases as to selling and bartering, 167. 
 
 Liquor to drunken person, 177. 
 
 Description of ofiFences, 280, 880. 
 
 Proof of, 260-268. 
 
 Or giving liquor to ^wrsons becoming intoxicated, 268. 
 
 To person who assaults any person or injures property, 272. 
 
 To habitual drunkards may be forbidden, 274. 
 
 To habitual drunkard after notice by relatives, 277. 
 SERVANT (Bee Mastsb ahd Sibvant). 
 
 Of keeper of unlicensed tavern liable to be convicted, 159. 
 
 SERVICE (see Souhonb, Witribbbb, bto.). 
 Of notices, etc., 28, 29. 
 What constitutes, 229. 
 Proof of, lb. 
 Of summons on witneiB, 260. 
 
 SHIPS IN PORT (see Vbssbi.s). 
 
 Sale of liquor from prohibited when ia port, 141. 
 
 SHOP LICENSE (see Lioinses). 
 Definei 6. 
 
 Mode of procedure in obtaining, 88. 
 Optional with Commissioners to grant or refasa, 89. 
 To whom given, 66. 
 Requirements as to, 66. 
 License Commissioners may limit, 10. 
 Municipal CoundlB may umit,and restrict, and regulate the sale in 
 
 shops, 67. 
 Not to issue to places in which other goods are sold, 69. 
 Sale of mineral waters in shops, 70, 72. 
 Void, if other goods sold, 71. 
 Provisions of tavern licenses to apply to, 71. 
 Conditions for obtaining, 79. 
 Duties payable for, 89, 100. 
 
 Mot to authorise liquor sold to be consumed in house, 142. 
 Penalty for allowing communication between lieenBed and unlicensed 
 premises, 182. 
 
INDEX. 
 
 391 
 
 offence, 166. 
 
 lioQera, 287. 
 
 164. 
 
 8. 
 
 iy, 272. 
 
 169. 
 
 regulate the Bale in 
 ,69. 
 
 iBe, 142. 
 
 mMd and unlioenBed 
 
 SHOP hlGE^SE— Continued. 
 
 For allowing oommanioation with premises where other goods sold, 183. 
 
 Oase of porohaser drinking liquor on premises where same bought, 190. 
 SIGNATURE (see Intbbpbktatioh). 
 
 Bequiaites of, 27. 
 
 SIX MONTHS' LICENSE. 
 
 May be granted in certain cases, 64. 
 SOCIETIES (see 0:,ubs).— 122. 
 
 SPIBITUOUS LIQUORS. 
 Meaning of, 2. 
 
 STATUTORY AUTHORITY (see Authobity). 
 
 STATUTES. 
 
 Relating to licenses, 1. 
 
 Things done under authority of, 47. 
 
 When provisions of are comnolsory, 68 {a,]. 
 
 Oonstruction of, 139. 
 
 Effect of revision of, 826. 
 
 STIPENDIARY MAGISTRATE. 
 
 Power of, 149. 
 
 Appeal from, 299. 
 SUICIDE. 
 
 Liability of Inn-keeper for, 268. 
 
 Authorities respecting, 269. 
 
 SUMMONS. 
 
 When service of waived, 163, 238. 
 
 Service of, 229. 
 
 Irregularity in, 238. 
 
 To witness, 260. 
 SUNDAY (see Satubdat Night). 
 
 No sales to be made on, 126. 
 
 T 
 
 TAVERN-KEEPERS (see Inn-Esepebs). 
 
 Defined, 169. 
 
 Not to purchase, or receive goods in pawn, 147. 
 
 Refusing lodgings, meats, etc., 169. 
 
 Rights and liabilities of, 170-173. 
 
 Penalty for permitting drunkenness, violent, riotous, disorderly conduct, 
 or selling liquor to drunken person, or permitting such person to con- 
 sume liquor, or suffering persons of bad character to assemble, or 
 suffering gambling or any unlawful game, 174, 178. 
 
 To exhibit notice of lioenKe, 107. 
 
 Refusing lodgings, meals, etc., 169. 
 
 Liability of for giving hquor to persons becoming intoxicated, 268. 
 
 Civil remedies against, 268. 
 
 Liability of for assault or injury to property by inebriates, 272. 
 
 Liability for furnishing liquor to inebriates ^ter notice, 281. 
 
 TAVERN LICENSE (see Lioinsib). 
 Defined, 6. 
 Lioenae Commissioners may define cooditijns and qualifications 
 
 requisite for, 9. 
 May limit number, 10. 
 
 May exempt from having accommodation, 11. 
 May regulate, 11. 
 
 Mode of procedure in obtaining, 38. 
 Limitation of number, 46, 47. 
 Municipal Council may limit number, 61. 
 
392 
 
 INDEX. 
 
 ¥i\ 
 
 9im I 
 
 :i/l.; 
 
 ; s'i 
 
 ^1 
 
 W'- 
 
 
 lll 
 
 
 * i 
 
 I ;''■'! 
 
 
 
 
 TAVERN UOENSE-ContiniMd. 
 Aooommodation required, 62. 
 Place lioenaed not to oommanioate with grooeiy, 62. 
 
 mast be an eating hoase, 63. 
 Mnnieipal Oonnoil may presoribiB requirements as to aooommodation, 63, 
 Lioensee mast give seonrity, 64. 
 Provisions of to apply to shops, 71. 
 I/aties payable for, 89, 100. 
 Notice of to be exhibitied, 107. 
 Penalty for allowiug commmiication with unlicensed premises, 162. 
 
 with premises where other goods sold, 183. 
 
 TAMPERING WITH WITNESSES (see Witmessks).— 202. 
 TEMPEBANOE ACT (see Canada Tbmpxbanob Act). 
 
 Provisions as to, 801-811. 
 
 Cases onder, 312-328. 
 
 TEBBITOBIAL DISTBICTS (see Unoboanizbd Distbictb). 
 THIBD OB SUBSEQUENT OFFENCE. 
 
 For selling liquor without license, 162. 
 
 Procedure where charged, 226-280. 
 
 Meaning of, 230. 
 
 TIME. 
 
 Computation of, 14, 20, 24, 28, 85, 281, 293. 
 
 THBEE HALF-PINTS. 
 Defined, 7. 
 
 TOOLS. 
 
 Lioensee not permitted to purchase or take in pawn, 147. 
 Penalty for, 160. 
 
 TOBONTO. 
 
 Chief Inspector for, 12. 
 
 TOWNS. 
 
 Number of tavern license to be issued in, 46. 
 
 What constitutes a town, village, etc., 224. 
 
 Liability of for enforcing G. T. Act, 807. 
 
 May aid in enforcing, 803. 
 TBANSFEB. 
 
 To premises not licensed, 81. 
 
 Application for must be aooompanied by certificate of electors, 32. 
 
 But not to apply to transfer to another person of same premises, 33. 
 
 Of license, 79. 
 
 Consent of Commissioners must be obtained, 80. 
 in itself does not validate a transfer, 81 (/>). 
 
 Gases as to, 82. 
 
 New report necessary on, 83. 
 
 Provisional consent to, 83. 
 
 Beport may be dispensed with, 84. 
 
 Mileage to Inspector on, 86. 
 
 Duty payable on, 90. 
 
 Fees for to be paid to license fund account, 102. 
 TBAVELLEB. 
 
 Who is a, 49. 
 
 u 
 
 UNLAWFUL. 
 
 Game, penalty for permitting, 174-182. 
 Consumption of liquor, 188-198. 
 Purchaser liable for, 190. 
 
INDEX. 
 
 393 
 
 ooommodation, 68. 
 
 UNLICENSED PERSONS (see Salr, Sellino). 
 
 Sale to prohibited. 143. 
 
 An agreement enabling snob person to sell liqnor Illegal, 147. 
 UNLICENSED PLACE. 
 
 Persons found in mast give name, address, etc., 295. 
 UNOBOANIZBD DISTRICTS. 
 
 Certificate of electors required for new tavern license in, 84. 
 
 Act to apply to the judicial, territorial and other districts of the 
 Province, 298. 
 
 Stipendiary Magistrate to try oases, 299. 
 
 Lientenant-Govemor-in-Gouncil may appoint Board of Commissioners 
 and Inspectors in, 299-301. 
 
 Appeal from Stipendiary Magistrate, 299. 
 
 Duties payable in, 800. 
 
 Issue of licenses in, 300. 
 
 Municipal Corporations in, 301. 
 
 Disposition of fines in, 299. 
 
 VESSELS. 
 
 Lioenses to abolished, 16 (n). 
 
 No license to be issueid to, 17. 
 
 Sale of liquor from when in port prohibited, 141. 
 
 VIOLENT, RIOTOUS, OR DISOBDEBLT CONDUCT. 
 Penalty for permitting, 174. 
 
 w 
 
 WABBANT (see Penalties). 
 Of restitution, 160. 
 
 When defendant may be arrested on, 163, 229. 
 Of commitment, authorities as to, 162-165. 
 Several terms of imprisonment to be consecutive, 164-204. 
 Imprisonment upon several, 204. 
 
 Costs of commitment and conveying to gaol to be stated in, 206. 
 Enforcing con^- .ition not void for certain defects, 239. 
 Authorities a" .o, 289. 
 
 For arrest of witnesses failing to attend, 268. 
 To enter and search premises where liquor kept for sale, 292. 
 Powers of officers thereunder, 293, 294. 
 
 WEABING APPABEL. 
 
 Licensee not to purchase, 147-160. 
 
 WHOLESALE LICENSES. 
 
 Defined, 6, 74. 
 
 Issue of, 72. 
 
 Power of Legislature as to, 72. 
 
 To what premises applicable, 74. 
 
 Begulations as to issue of, 76. 
 
 Must be confined strictly to persons selling by wholesale, 76. 
 
 Becomes void if the holder carries on business of retail dealer in any 
 other goods, etc.. 76. 
 
 Liquors not to be consumed on premises, 142. 
 
 Duties payable on, 89. 
 
 Under (he 0. T. Act, 808. 
 
 Duties, payable for, 807. 
 WIFE (see Husband and Win). 
 
 Of ooenpant liable to be convicted, her husband being in gaol at the 
 time, 167. * 
 
394 
 
 INDEX. 
 
 ^ 
 
 3 
 
 
 !kr 
 
 
 
 #i- ! 
 
 f ■ ■■ ! 
 
 pi' j 
 111 k. I 
 
 1*1 ■! ■-■'■ 
 
 m 
 
 ^ 
 
 I 
 
 
 . •,' .-. I: 
 
 
 m^^^ 
 
 1 !■ . MW^ 
 
 I*. 
 fit 
 t>'i 
 
 1^ 
 
 WIFE— Continued. 
 
 A oompetent and eompellable witness in certain oasea, 221. 
 
 WINE AND BEBB LICENSES (see Bekr and Wine Lioembes). 
 WINE MEASURE. 
 
 Its equivalent, 7. 
 
 WITNESSES (see Evidbnoi). 
 
 Oommissioners may summon and examine at hearing of objeotions to 
 
 application, 86. 
 Who are oompetent and compellable, 127, 221, 250. 
 May be exempted from penalty, 188. 
 Where person charged incompetent, 195, 
 Tampering with, 202. 
 
 May be examined on oath or affirmation, 219. 
 Evidence of to be taken in writing, 219. 
 Meaning of " credible witness," 221. 
 
 Summoned and not appearing may be brought up by warrant, 21118. 
 Production of documents, 260. 
 
 WORDS AND PHRASES (see Imtbbpbbtation). 
 
88, 221. 
 
 iIOEMSES) 
 
 ring of objeotionfl to 
 
 by warrant, 268.