Page images
PDF
EPUB

Wallace, R. v. (1883), 4 O.R. 127

.214, 221, 222, 229

Wallace, R. v., L.R. 1 P.C. 283

111

Wallace v. Attorney-General (1865), L.R. 1 Ch. 1..

411

Ware v. Hilton, 3 Dall. 199

389

Warilow, R. v. (1908), 14 Can. Cr. Cas. 117, 17 O.L.R. 643, 644

.211, 214, 220, 231, 236

Warwickshire, Justices of, R. v., 6 A. & E. 873
Waterhouse, R. v., 7 Q.B.D. 545

158, 159

99

Watkins v. Major, L.R. 10 C.P. 661

Webb, R. v. (1834), 6 C. & P. 595...

Webster, R. (1885), 16 Q.B.D. 134

Welman, R. v., 22 L.J.M.C. 118

18

Watts, R v. (1902), 3 O.L.R. 368, 5 Can. Cr. Cas. 246

416

29

362, 363

480

Wemyss v. Hopkins, L.R. 10 Q.B. 378, 44 L.J. 101, 39 J.P. 389
Westmore v. Paine (1891), 1 Q.B. 483

177

157

Westropp v. Comrs. Pub. Wks. (1896), 2 Q.B. Ir. 93

[blocks in formation]

Wilkes, R. v. (1906), 12 O.L.R. 264, 11 Can. Crim. Cas. 226..

478

Wilkinson v. Dutton (1863), 32 L.J.M.C. 152.

[blocks in formation]

Windsor v. The Queen (1866), L.R. 1 Q.B. 289, 396, and 10 Cox C.C.

392

[blocks in formation]

Page 494, line 3, for “instructed" read "requested."

FORD

Canadian Criminal Cases.

Reports of Cases in Criminal and Quasi-Criminal matters decided in the Courts of Canada and of the Provinces thereof.

[SUPREME COURT OF NOVA SCOTIA.]

BEFORE LONGLEY, J., PRESIDING OVER THE CAPE BRETON CIRCUIT,

THE KING v. McKAY.

Certiorari Recognizance on application-Dismissing motion for irregularity in recognizance affidavits-No leave reserved to renew—Fresh application to another Judge after correction of irregularity-Same objection to conviction-Dismissal of second application-N. S. Crown Rules 28 and 29-Cr. Code sec. 1124.

1. Where an application for a certiorari to remove a summary conviction was made on the ground that there had been no effective service of the magistrate's summons but the motion was dismissed on the technical objection that the affidavits to the recognizance filed on the certiorari application were insufficient, a fresh application for a certiorari upon the same ground as the first cannot be made to another Judge after remedying the technical defect, unless leave has been reserved so to do on the first application.

DECIDED: November 19, 1910.

Motion for a writ of certiorari to remove a summary conviction for violation of the N. S. Temperance Act, 1910.

The Nova Scotia Crown Rules provide as follows:28. The party, intending to apply for a writ of certiorari shall, before giving notice thereof, file in the office of the clerk of the Crown of the county where the writ is to be made re

1-c.c.c. XVII.

turnable, a recognizance with two sureties in the sum of two hundred dollars, with condition to prosecute the certiorari with effect and without any wilful or affected delay, and to respond the judgment which shall be finally given in the matter, and pay such costs as the Court or a Judge shall order. Such recognizance shall be entered into before a commissioner of this Court, and the sureties shall justify before a commissioner. The recognizance shall, as nearly as may be, be in the form No. 4 in the appendix to these rules.

29. No notice of motion for a writ of certiorari shall be effectual, nor shall any writ be granted thereon, unless the recognizance and affidavits of justification shall have been filed, as prescribed by the preceding section, before the notice was given, and the same verified by affidavit.

D. A. Cameron, for prosecutor.
A. D. Gunn, for defendant.

SYDNEY, C.B., November 19, 1910.

LONGLEY, J.:-This is an application made before me at Sydney for a certiorari to remove to this Court a conviction made against the defendant by a stipendiary magistrate, Ledbetter, for selling intoxicating liquor contrary to the provisions of the Nova Scotia Temperance Act (1910). The ground upon which it is asked is chiefly and substantially that the defendant was not served with a summons.

The prosecution raises several objections to the issue of this writ which it is proper to state in detail.

1. An application was made some days before to Mr. Justice Laurence for a writ of certiorari in this same cause and upon substantially the same grounds, which the said learned Judge refused on the ground that the affidavits of justification by the bail were insufficient. I have not before me the grounds stated by the learned Judge, except the statements of counsel, but I have his order before me dismissing the application with

costs. The applicant has since amended his affidavits of justification and makes this renewed application before me. The counsel for the prosecution contends that this cannot be done.

Reg. v. Pickles, 12 L.J.Q.B. 40, is cited in support of this proposition and this decision can be epitomised as follows:

"Where a rule for mandamus obtained by churchwardens had been discharged with costs on the ground that their affidavits were imperfect, and a subsequent rule was obtained by the same parties on the same ground on amended affidavits, the Court refused to hear the second application upon the merits, and discharged the second rule, also with costs. There is no difference whether the applications are made in a public or private capacity." This authority seems very much in point and is supported by others leaning in the same direction. Indeed, so far as I have examined all the available authorities this represents the practice in England. It was urged in this case that the previous application to Mr. Justice Laurence was disposed of on the ground of want of jurisdiction, thus leaving open the matter of a fresh application on the same grounds. I fail to differentiate between the circumstances of this case and that of Reg. v. Pickles. In any case, I think if a fresh application was to be made it ought to have been to the learned justice who had dealt. with it. Except in cases of habeas corpus, one Judge is cautious about dealing with matters previously disposed of by another.

There are other preliminary objections to this application, such as that the present affidavits of justification do not conform to the requirements of Chitty's Forms, 12th ed., p. 724. The jurat is bad, as it does not state the date when the affidavits were sworn, the recognizance is signed simply "W. G. Hill," without adding his capacity as commissioner, and other more technical objections. I do not now say how far any of them are entitled to consideration since I am basing my present refusal to grant the order for certiorari on the ground that a previous application has been made on similar grounds to another Judge and has been refused. Certiorari refused.

« PreviousContinue »