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Husband

severally responsible for

contraven

tion commit

ted by wife.

Witness summoned.

Arrest

for refusal.

Imprison

ment.

Penalty for

refusal to ap

@vidence.

1043. Any husband, living and residing with his wife, when any contravention of this section is committed by her, whether she is a public trader or not, may be prosecuted and convicted, in the same manner, as if he himself had contravened this section. 41 V., c. 3, s. 208.

1044. In every prosecution, under this section, before any court, other than the Superior Court or Circuit Court, in which courts the ordinary rules of procedure as to the taking of evidence prevail, the court may summon before it any person represented to it as a material witness therein; and, if such person refuse or neglect to attend on such summons, the court, if, from affidavits or from the circumstances of the case, it be of opinion that the witness refuses to appear and thereby the ends of justice may be defeated, may issue its warrant for the arrest of such person; and, thereupon, he shall be brought before the court, and if he refuse to be sworn, or to affirm, or to answer any questions touching the case, he may be committed to the cominon gaol, there to remain, until he consents to be sworn or to affirm, and to answer. 41 V., c. 3, s. 209.

1045. If, in addition to the cases mentioned in the prepear or give ceding article, any person summoned as a witness to give evidence before a court touching any of the matters relative to this section, neglect or refuse to appear at the time and place appointed for that purpose, without reasonable excuse, and in respect of the reasonableness of which excuse, the court seized with the prosecution shall decide, or, appearing, refuse to give evidence upon oath, shall incur, for such neglect or refusal, a penalty of forty dollars even though the prosecution may have terminated, without his having appeared or given evidence. 41 V., c. 3, s. 210.

Depositions taken in writing.

Adjourn

ment.

Witness bound to answer.

Proviso.

No defendant

shall be a witness.

1046. Upon the demand of either party, the court may, in its discretion, receive and cause to be taken in writing the depositions of the witnesses then and there present, and postpone the trial to a further day fixed for that purpose. 41 V., c. 3, s. 211.

1047. Every person, other than the defendant, summoned or examined as a witness in any prosecution brought under this section, is bound to answer all questions put to him, which are pertinent to the issue, notwithstanding any declaration on his part, that his answers may disclose facts tending to subject him to any penalty imposed by this section; but such evidence shall not be used against him in any prosecution. 41 V., c. 3, s. 212.

1048. No defendant shall be examined as a witness, in any prosecution under this section. 41 V., c. 3 s. 213.

1049. In prosecutions for the sale, without license, of in- Proof may be toxicating liquors, it shall not be necessary that any witness general. should depose to the precise description of the liquor sold, nor shall it be necessary to state the quantity of liquor sold, except in the case of offences where the quantity is essential, and then it shall be sufficient to allege the sale of more or less than such quantity. 41 V., c. 3, s. 214.

1050. Rigorous precision as to the mention of time in Proof as to the complaint is not necessary in the proof to justify a convic- time. tion; it is sufficient to prove that such contravention was committed on or about the time mentioned. 41 V., c. 3, s. 215.

1051. The production of the license constitutes sufficient Duty shall be evidence of the payment of the duty thereon, unless the party presumed prosecuting proves that the duty has not been paid, in which paid; excepcase the license, without such payment, is deemed to be invalid.

41 V., c. 3, s. 216.

tions.

an auctioneer.

1052. In an action or prosecution against a defendant ac- Prima facie cused of having carried on, without a license, the business of proof against an auctioneer, the following are reputed primâ facie evidence of the auction sale:

1. The fact of having placed publicly, to be bid upon, any article, merchandise, or property moveable or immoveable, before an assemblage of persons in order to induce them, or any number of them, to purchase the same;

2. The publishing, in any newspaper or hand-bill, of a notice of an auction sale, by defendant;

3. The exhibiting to view, in, on, or near his house or dependencies, of any sign, printed matter, painting or writing, indicating, or of a nature to indicate, that he is desirous of acting as an auctioneer, or the fact that such has been exhibited with his knowledge or consent. 41 V., c. 3, s. 217.

a

1053. The proof that a person exhibits, or exposes to view, Primâ facie or permits that there should be exposed to view, in, on or near proof against a house or its dependencies, belonging to, or occupied by him, ing a billiard any sign, painting, writing, or printed matter, indicating or table. tending to indicate that a billiard table is kept in such house, or its dependencies, is prima facie evidence that such person keeps a billiard table for gain. 41 V., c. 3, s. 218.

1054. Proof that a billiard table is kept in an inn, temper- Proof that ance hotel, railway buffet or restaurant is held to establish that table is kept for gain. such table is thus kept for gain. 41 V., c. 3, s. 219.

III. JUDGMENTS.

1055. When a prosecution, instituted under the authority Hearing by of this section, has been brought before two justices of the two justices peace, judgment may be pronounced by one of them in the ab- of the peace;

judgment

pronounced

sence of the other, provided that such judgment be reduced to by one alone. writing and signed by both justices of the peace. 41 V., c. 3,

If they fail to agree.

Imprisonment

s. 220.

1056. When a prosecution has been brought before two justices of the peace, and they fail to agree on the judgment to be rendered, either of such justices of the peace may sign a certificate to that effect, and transmit it to the collector of provincial revenue, who thereupon may institute a new action for the same contravention. 41 V., c. 3, s. 221.

1057. In default of payment of any fine imposed, or of any of contraven- sum claimed under this section, the contravening person coning person in default of pay- demned to pay the same shall be imprisoned and detained in the common gaol during a period of three months, unless another period of detention be prescribed. 41 V., c. 3, s. 222.

ment.

In case of repetition of contravention.

Provisions

which shall

be contained

1058. The penalty for a repetition of the contravention, against any one who shall have incurred a subsequent condemnation for a contravention of the same nature and kind, under the authority of this section, except in cases otherwise herein specially provided for, is a fine of one hundred dollars and imprisonment for six months, in default of payment. 41 V., c. 3, s. 223.

1059. In the cases mentioned in the two preceding articles, and in all other cases wherein a similar legal provision exists in the judg- in this section, every judgment or conviction shall contain a condemnation of the defendant to such imprisonment. 41 V., c. 3, s. 224.

ment.

IV. COSTS.

before the

Fees of clerks, 1060. In all prosecutions or actions brought before the advocates, &c. Circuit Court, the fees of the clerk of such court, of the adCircuit Court. Vocate and of the bailiff, shall be the same as those which are now allowed in the tariff of fees for the class of actions of forty dollars and under, but above twenty-five dollars. 2. In all prosecutions or actions brought before the Superior Court, the fees of the prothonotary of such court, of the advocate and of the bailiff, shall be those which are now allowed in the tariff of fees for the class of actions in the Circuit Court of sixty dollars and over, but not exceeding eighty dollars.

Fees, &c., before the Superior Court.

Fees, &c., in other prose

cutions.

3. In all other prosecutions or actions the following fees shall be allowed :

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b. To the bailiff, peace officer or constable: For the service of any summons, warrant, subpoena

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or order, and return. . . . . .

each mile travelled to serve the same (no
allowance for mileage in returning).......

every arrest, exclusive of mileage

seizure and sale under warrant, including

publication, but exclusive of mileage... seizure only, not followed by sale..

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$0 20

0 20

1.00

1 50

0 75

$5.00

8.00

One dollar per day, and ten cents for each mile travelled by them to attend the court, when he resides more than five miles from the place where the court is held.

may be

4. In any case, such further and other fees, as are not pro- Other fees vided for in the above lists, shall be allowed the prothonotary, allowed. clerk of the Circuit Court, clerk, bailiff, constable or advocate, as shall be taxed in the discretion of the court or functionary, before whom the prosecution or action is brought or heard; and, when so taxed, such additional fees shall be as lawful and valid, as if they were especially enumerated in the above lists. 43-44 V., c. 11, s. 41; 49-50 V., c. 34, s. 1.

1061. No fee shall be paid for any summons or warrant If goods have issued by a justice of the peace, in comformity with this been pawned. section, when the same has reference to goods pawned. 41 -V., c. 3, s. 226.

1062. No costs shall be adjudged against the collector of No costs shall provincial revenue, in any action or prosecution instituted be adjudged against the under this section; but, on the recommendation of the court, collector of or of the collector of provincial revenue, the Provincial provincial Treasurer may, in his discretion, pay to the person, in favor of revenue.

In what case whom judgment has been pronounced against the collector of the Treasurer provincial revenue, the costs or indemnity to which he may deem such person equitably entitled. 41 V., c. 3, s. 227; 46 V., c. 6, s. 1.

may pay costs.

In what case

an informant has his re

for costs.

1063. When a municipal corporation, after having been requested by any person, other than the collector of provincial course against revenue, to prosecute any contravention of this section, refuses corporations, or neglects, for fifteen days after such demand, to institute the prosecution, if such person have prosecuted in his own name and obtained a conviction against the contravening party, and the costs of prosecution cannot be recovered from the defendant, the corporation is bound to pay the prosecutor, (to whom a right of action against the corporation is granted to recover the same) all costs incurred, whether he shall have actually disbursed or not that amount, or any part thereof.

Right of prosecutor to

The same provisions and right of action apply, where prosecutions are instituted by any informant, at the request of a corporation. 41 V., c. 3, s. 228.

V.-EXECUTION OF JUDGMENTS.

1064. In default of immediate payment of the fine and make option. Costs, the prosecutor may, upon the rendering of the judgment or conviction, or at any time during the delay, if any, granted to the defendant, make option whether the defendant shall be first imprisoned for the time mentioned in the judgment or conviction, or shall be first proceeded against by seizure.

Case of seiz

ure or case of

moveable

effects proving insufficient.

Partial pay

fects of form

In the latter case, the amount of such fine and costs is levied by a warrant of seizure and sale of the moveables and effects of the defendant; and, in default of moveables and effects, or, in case they be insufficient, the defendant shall be imprisoned; but, in either case, he may be discharged from imprisonment by paying the fine in full and all costs incurred to the time of the conviction, and subsequent costs.

Except in the case of full payment as aforesaid, no defendant, ments and de- imprisoned in virtue of any provision of this section, shall be not to effect liberated on the ground of any defect of form in the warrant the judgment of commitment, or without due notice given to the prosecutor;

in certain

cases.

Penalty for procuring

arrest.

nor shall any partial payment affect or modify the terms of the judgment pronounced against him, in so far as imprisonment is concerned. 41 V., c. 3, s. 229; 43-44 V., c. 11, s. 42.

1065. Any one knowing or having reason to believe that a commitment has been issued against any person under this avoidance of section, who prevents the arrest of the defendant, or by any act of counsel, or in any other manner whatsoever, procures for the defendant the means of or facilitates his avoiding arrest, is liable to a fine of forty dollars. 41 V., c. 3, s. 230.

Delay for execution of udgment.

1066. The execution of a judgment, rendered in the Superior Court or in the Circuit Court, may take place on the expiration of two days from the date of such judgment. 41 V., c. 3, s. 231.

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