of them contained contraband goods:-Held that it was but one entry, and that being false as to some of the packages, the goods were not duly entered, and the whole were forfeited under the (N. B.) 1 Rev. Stat., c. 27, s. 10. (a) A revenue inspector, suing in the Queen's name for penalties under the 14 & 15 Vic., c. 100, is not liable for costs, because he comes within the ordinary common law rule, exempting the Crown from costs. (b) Under the (N. B.) 18 Vic., c. 36, a warrant to search for liquors in a dwelling-house in which a family resides, and no part of which is used as a shop or place for the sale of liquors, cannot issue, without the oath of three persons, stating their reasons for believing that liquors have been sold, or are kept in such dwelling-house for illegal sale. (c) Nor can such warrant issue without such information to search for liquors in a dwelling-house in which a family resides, though there may be a shop or place in the house for the sale of liquors. (d) Proof that the house in which the liquor was seized was kept as an hotel will not justify a search warrant on the information of one person, as it cannot be judicially noticed that an hotel is a place for the sale of liquor. (e) Where liquor, legally imported, is condemned, under section 15, as being kept for illegal sale, the Justice has no power to order the casks containing the liquor to be destroyed. (f) The onus of proving that the liquor was not intended for sale, in order to save it from forfeiture, under section 15, is thrown on the owner; but to subject him to the penalty, under section 16, it must be proved that he in tended the liquor for illegal sale. (a) Reg. v. Southward, 3 Allen, 387. (b) Ex parte Hogue, 3 L. C. R. 287. (c) Reg. v. Salter, 3 Allen, 321. (d) Ex parte Caldwell, 3 Allen, 393. An information under the Act need not state that the informer is a reputable person. (a) An order made under this Act, by a Justice of the Peace, to condemn liquors, with the packages in which they are contained, is indivisible; and if bad as to the packages, cannot stand good as to the rest, though the liquor is liable to forfeiture. (b) In a proceeding under this Act, the person summoned to shew why the liquor seized should not be forfeited, has a right, before going into his proof, to be informed by the Justice who the complainant is, and what he has sworn to in the information. (c) An information, stating that intoxicating liquors are kept for illegal sale by A. "in his house or shop, or on the premises where he now dwells, in the County of C." is not sufficiently certain to authorize the search of a dwelling-house under this Act. And such an information will not justify a search warrant, stating that there was a place in the dwelling-house for the sale of liquor. (d) A conviction under this Act must follow the form prescribed in the schedule, and not the form in the Summary Conviction Act. The form of conviction given stated that, in default of payment of the fine and costs of prosecution, the defendant should be imprisoned for three months, "unless the said several sums be sooner paid":Held that a conviction under the Act, which, in addition to these sums, required the costs of distress and commitment to be paid, was bad. (e) Excise. An indictment, under 31 Vic., c. 8, s. 143, for breaking a lock, etc., after other statements, alleged :—in which said warehouse certain goods for and in respect of (a) Reg. v. Salter, 3 Allen, 321. which a certain duty of excise was then and there by law imposed, were then and there kept and secured, without the knowledge and consent of the collector of inland revenue:-Held that the redundant expression, "were then and there kept and secured," made the words which form the gist of the offence, "without the knowledge and consent of the collector of inland revenue," apply apparently not to the opening of the lock, but to the keeping and securing of certain goods in the warehouse, and was therefore bad. (a) The indictment need not shew the description of goods, nor that they are subject to excise, nor by whom the goods were kept and secured, nor that the goods were retained in any warehouse, under the supervision of any officer of Inland Revenue, nor that defendant opened a lock attached to a warehouse in which goods were so retained, nor that the excise duty was then and there unpaid, for all these allegations are mere surplusage. (b) It has been held that, in a prosecution for selling liquor without license, the information need not be under oath, for the Act respecting tavern-keepers (c) gives all the forms that are to be followed in such cases, and the Con. Stat. Can., c. 103, s. 24, does not apply to the case. (d) In another case, the Court refused to grant a mandamus to compel two Justices of the Peace to issue execution upon a conviction under 6 Wm. 4, c. 4, s. 2, for selling spirituous liquors without license, the conviction having been founded on the written statement of the informer, and the oath of one other witness, there being a doubt under the Statute whether the information ought not also to be on oath. (e) (a) Reg. v. Bathgate, 13 L. C. J. 303. (b) Ib.; see also as to excise 31 Vic., cs. 49 and 50; 33 Vic., c. 9; and 34 Vic., c. 15. (c) Con. Stat. L. C., c. 6. (d) Ex parte Cousine, 7 L. C. J. 112. (e) Reg. v. McConnell, 6 U. C. Q. B. O. S. 629. Now, in Ontario, prosecutions for selling liquor without license are to be conducted according to the practice and procedure and after the forms contained in the 32 & 33 Vic., c. 31. (a) Under s. 24 of the 32 & 33 Vic., c. 31, all informations may be without oath or affirmation as to the truth thereof, unless some particular Act or law otherwise requires. A deputy revenue inspector may validly sign a plaint or information for selling liquor without a license. (b) The prosecutor is not bound to prove that the defendant had no license, as he is not called on to prove a negative. (c) Under the 29 & 30 Vic., c. 51, ss. 249 and 254, a person holding a shop license for the sale of liquors was punishable for an offence against law, under the latter section, for selling liquors at his shop in quantities less than a quart. (d) Where the jurisdiction of the Justices appeared on the conviction, the offence being alleged to have happened at the Town of Moncton, where it was heard and tried, and the conviction being in the form prescribed by the (N.B.) Rev. Stat., c. 138, and the place of sale spoken of at the trial appearing to he known to all parties, and no objection having been then made that it was not within the jurisdiction of the Justices:-Held that the jurisdiction sufficiently appeared, though it was not shewn by positive evidence that the offence was committed within the limits of the Town of Moncton. (e) A conviction under 28 Vic., c. 22, for selling liquor without a license, omitted to state that defendant had been (a) See (Ont.) 32 Vic., c. 32, s. 25. (b) Reynolds and Durnford, 7 L. C. J. 228. (c) Ex parte Parks, 3 Allen, 237; see post evid; Re Barrett, 28 U. C. Q. B. 561, per A. Wilson, J.; Rex v. Turner, 5 M. & S. 206. (d) Reg. v. Faulkner, 26 U. C. Q. B. 529, 3 L. C. G. 185. (e) Ex parte Dunlop 3 Allen, 281. convicted of selling "by retail" :-Held, on appeal to the Quarter Sessions, that the offence was not sufficiently stated in the conviction, and it was accordingly quashed: —Held, also, that the proper time for applying to amend the conviction, under the 29 & 30 Vic., c. 50, was at the time it was made, and that it could not afterwards be amended under the provisions of that Act. (a) In an appeal from a conviction for selling liquor contrary to c. 22 of the (N.S.) Rev. Stat., the Court will allow the original summons to be amended. (b) A 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," was held clearly bad, as shewing no offence. So a conviction for that the said H. "did sell wine, beer, and other spirituous or fermented liquors, to wit, one glass of whisky, contrary to law," was held bad for uncertainty, as not shewing whether the offence was for selling without license, or during illegal hours. (c) In a conviction under the (N. B.) 15 Vic., c. 51, which prohibits the sale of intoxicating liquors, except beer, ale, porter, and cider, it is insufficient to allege that the sale was "contrary to the Act of Assembly." The conviction should negative the exceptions in the Act. (d) The action of debt for the recovery of penalties given by this Act is a cumulative remedy, and does not take away the mode of proceeding prescribed by the Summary Conviction Act, 12 Vic., c. 31. (e) A conviction for selling liquors without a license is bad if it do not specify the day on which the offence was committed. (f) (a) Bird v. Brian, 3 L. C. G. 60; see 32 and 33 Vic. c. 31, s. 68. (b) Taylor v. Marshall, 2 Thomson. 10. (c) Reg. v. Hoggard, 30 U. C. Q. B. 152. (d) Ex parte Clifford, 3 Allen 16. (e) Ex parte Hartt, 3 Allen, 122. (f) Reg. v. French, 2 Kerr, 121. |