Western Law Reporter (Canada) and Index-digest

ish any ground of distinction as to the treatment of the security when furnished. Clause 3 of sub-sec. (c) permits only a deposit, and it may, therefore, be contended that a deposit under this clause is not instead of a recognizance. In a limited sense this is true. More broadly, and I think correctly, the deposit still takes the place of, and is instead of, the recognizance. It is simply a form of security, required in this instance, taking the place of and instead of another form of security, which may be given in certain other cases. There would seem to be nothing justifying a departure from the one principle applicable to either form of security when given.

The underlying principle appears to be that the appellant, as a condition of his appeal, must give security to the appellate Court that he will abide the judgment and fulfil its terms, and that this security must be effectively given, that is to say, the Court must be placed in the position that it can readily and without difficulty enforce its judgment when given. This seems so common-sense and elementary a condition precedent to the appeal, and so well founded in reason and propriety, as to be beyond objection or criticism.

As it may be and was urged that the language of the Code is misleading and a cause of hardship, I would refer again to Rex v. Rondeau, cited above, which declares that the duty of the Justice to forward all proceedings to the Court does not rest entirely upon the Code. I would refer also to Ex p. Cowan, 9 Can. Crim. Cas. 463, where McLeod, J., said, "I think the magistrate could be compelled to make the return (of the conviction);" to Prosser v. Hyde, 1 T. R. 414, under which the Magistrate is liable for the special damage suffered by the appellant if he neglects to return the conviction; and especially to Regina v. Gray, above cited, where McDougall, Co.C.J, said: "I think that the obligation laid on an appellant by the Code extends beyond the mere leaving of the money with the Justice. Its return by the Justice into Court, before the time for hearing the appeal, must, in some way, have been secured."

There is one further point, which was not argued and is not essential to this appeal, but I think I should point out what appears to be the result of the authorities reviewed. These authorities clearly establish that the recognizance or the deposit must be in Court before it opens for hearing the

appeal. All the decisions were given, however, when no time was limited for perfecting the appeal, and, consequently, if these conditions precedent were met at any time before the Court opened, the jurisdiction was complete. Now, since the Code amendment of 1909, which limits the time for perfecting the appeal to the time for serving and filing notice, namely, 10 days after the conviction or order complained of, the conclusion would seem irresistible that what the appellant might do formerly at any time before the moment of opening the Court he must now do within 10 days after the conviction or order complained of-that is to say, that the recognizance or the deposit, as the case may be, must be of record in the appellate Court within the 10-days' limit now fixed for compliance with these conditions precedent of the appeal.

For the reasons given, this appeal is dismissed with costs..

OUSELEY, DIST. CT.J.

SASKATCHEWAN.

FEBRUARY 28TH, 1911.

DISTRICT COURT OF MOOSE JAW.

RE MEAD AND CITY OF MOOSE JAW.

Municipal Corporations

Local Option By-law

Liquor License Act, 1908-Construction-Powers of Provincial Legislature-Petition-Alterations in - Defects-Noncompliance with Statute-Invalidity of By-law-Notice of Voting-Publication-Appointment of Returning Officer-Time and Place for Summing up Votes-Printed Instructions for Voting Unauthorised Addition to Place of Voting—Irregularities Act-Costs.

Curative Section of

The Saskatchewan Liquor License Act, 1908, and Acts in amendment thereto, being statutes derogatory of the common law, should be construed strictly.

Quare, whether the provisions of the Act giving to municipalities the right to pass a local option by-law were within the powers of the Saskatchewan legislature.

Held, upon a motion to quash a local option by-law approvedby the electors and passed by the council of a city, that the petition for the by-law did not comply with the statute, because it was altered after it was signed, by adding "Moose Jaw" to the petitioners

names as signed, and because no street address or description of the locus in which each of the petitioners resided was given in the schedule, as required by the Act.

Re Williams and Town of Brampton, 17 O. L. R. 398, applied and followed.

And held, that, as there was no sufficient petition to the council, the by-law founded on the petition was invalid, and should be quashed. Held, also, that the petition was void for another reason, viz., that the figures "1910" were added to it after it was signed, which was important in view of sub.-sec. 4 of sec. 130 of the Liquor License Act.

Held, also, that the curative section of the Act did not save the by-law, as against these objections, as it does not apply to defects and irregularities in the petition.

The notice of the voting on the by-law, required by sec. 133 of the Act, as amended in 1909, was published on the 6th, 13th, and 20th days of October, 1910:

Held, not a publication for at least three weeks" within the meaning of the section; and that the curative section did not apply.

Cornfoot v. Royal Exchange Assurance Co., [1904] 1 K. B. 40, and judgment of Howell, C.J.A., in Re Shaw and Rural Municipality of Portage La Prairie, 15 W. L. R. 718, applied and followed.

Held, also, that the by-law was bad because it did not appoint a returning officer nor fix the time when and the place where he should sum up the number of votes cast, as required by sec. 214,

Re Ryall and Town of Carman, 16 W. L. R. 380, and Re Bell and Township of Elma, 13 O. L. R. 80, applied and followed.

Held, also, that the by-law was bad because the printed instructions to voters added an unauthorised illustration which in effect invited the electors to vote in favour of local option.

Held, also, that, having regard to the provisions of sec. 132 of the Act, every elector was entitled to vote on the by-law at the polling place where he voted for mayor and alderman; and an arrangement by which the polling places were different was such an irregularity as could not be cured.

The by-law was quashed with costs against the city corporation.

Application by Herbert Mead, of the city of Moose Jaw, to quash a local option by-law approved by the electors and passed by the city council.

Norman Mackenzie, K.C., and J. F. Hare, for the appli

cant.

W. B. Willoughby, for the city corporation.

OUSELEY, DIST. CT.J.:-This is an application to me to quash a local option by-law of the city of Moose Jaw, finally passed by the council of the city on the 19th December, 1910. Various grounds were taken by counsel for the applicant; but, before considering any of them, it is well to ascertain in what way these local option by-laws have been construed by the Courts. This is a matter of first importance, and in construing the statute, as I shall have to do, it is well to ascertain from the reported decisions whether in the past these statutes have had a liberal construction, or whether they have been construed strictly.

appeal. All the decisions were given, however, when no time was limited for perfecting the appeal, and, consequently, if these conditions precedent were met at any time. before the Court opened, the jurisdiction was complete. Now, since the Code amendment of 1909, which limits the time for perfecting the appeal to the time for serving and filing notice, namely, 10 days after the conviction or order complained of, the conclusion would seem irresistible that what the appellant might do formerly at any time before the moment of opening the Court he must now do within 10 days after the conviction or order complained of-that is to say, that the recognizance or the deposit, as the case may be, must be of record in the appellate Court within the 10-days' limit now fixed for compliance with these conditions precedent of the appeal.