Maclean, Deputy Attorney-General, for the Crown: Section 611 of the Code provides that a count of an indictment is sufficient if it contains in substance a statement that the accused has committed the offence specified; the indictment gives more particulars than are required by the form, but that was done so as to prevent the necessity of a demand for particulars.

As to the evidence: [MARTIN, J., referred to Rex v. Jones (1791), Peake 51; Rex v. Dowlin (1792), ib. 227, and Reg. v. Britton (1893), 17 Cox C.C. 627, as shewing that the whole of the accused's evidence should be laid before the jury.] The accused could call a witness to prove he explained his words; the rest of his evidence is to shew that the evidence in respect of which the indictment was laid was true, and he can't shew what he said was true by the stenographer, because that would be hearsay. The rest of the evidence was only admissible to explain that the words were spoken in mistake, but not to shew that they were true.

VICTORIA, June 8, 1903.

Per curiam: We are all of the opinion that there was evidence in the depositions of the accused at the civil trial which was explanatory of the criminal charge, and which might well have influenced the jury in their verdict, and which consequently the accused was entitled to have had placed before them; there should be a new trial.

As to the first count of the indictment, WALKEM and IRVING JJ., were of the opinion that it was good. MARTIN, J., desired further time for consideration, and subsequently handed down the following written opinion:

July 6th, 1903. MARTIN, J.:-As to the first question reserved for the consideration of this Court, it should, in my opinion, be answered in the affirmative, because it is clearly established by the authorities I referred to during the argument, that on such a charge the accused is entitled to have laid before the jury at least any portion of his evidence at the former trial out of which the accusation arose which would explain or qualify the statement

alleged to be a perjury: Rex v. Carr (1669), 1 Siderfin 418-9; Rex v. Jones (1791), Peake 51; Rex v. Dowlin (1792), ib. 227; Reg. v. Britton (1893), 17 Cox C.C. 627; 1 Russell on Crimes (1896), 378-9; Roscoe's Criminal Evidence (1898), 727; Archbold's Criminal Pleading (1900), 1,008-9.

Here there was evidence of that nature which may well have had weight with the jury, and the failure to lay it before them is a “substantial wrong" within the meaning of section 746 of the Criminal Code: Reg. v. Hamilton (1898), 2 Can. Cr. Cas. 390.

As to the second question concerning the sufficiency of the first count. The statutory forms of indictments on such a charge will be conveniently found at pages 589-90 and 769-70 of Crankshaw's Criminal Code, 2nd ed., and it is objected that they have not been followed, nor have the older and lengthier precedents. It is true that the charge is laid in a somewhat involved manner and I am unable to say why the Crown officers have not adhered to the convenient statutory precedents, as should be done, but nevertheless, after a further consideration of the indictment, I have come to the conclusion that an offence is disclosed therein. It contains more than is required by the statute, but the essential averments are there, and the unnecessary matter may be considered as mere surplusage not invalidating the count.

The second question also should be answered in the affirmative.

There should be a new trial.

New trial ordered.

Note: Proof in perjury cases.

The practice upon the trial of an indictment for perjury committed in a civil action is thus laid down by Archibald (Crim. Evidence, 22nd ed., 1900, page 1009, referred to in the opinion of Martin, J., supra).

Upon an indictment for perjury, charged as having been committed on the trial of an action in the High Court of Justice, in order to prove that the action mentioned in the indictment was pending and was tried as alleged, the following documents were tendered in evidence:-1. The filed copy of the original writ of summons. 2. The copy of the pleadings in the action filed. 3. The original order to dismiss the action. It was held that these documents were properly received in evidence, and that they sufficiently proved the existence and trial of the action. R. v. Scott, 2 Q.B.D.

Note-Continued.

Proof in perjury cases.

415; 46 L.J. (M.C.) 259.

Then prove the evidence the defendant gave upon the trial by the testimony of some person who was present at the trial. It is sufficient for this purpose if the witness state from recollection the evidence the defendant gave, though he did not take it down in writing, and cannot say with certainty that it was all the evidence given by the defendant, if he can say with certainty that it was all he gave on that point, and that he said nothing to qualify it. R. v. Rowley, 1 Mood. CC. 111; R. v. Munton, 3 C. & P. 498; R. v. Browne, 3 C. & P. 572; M. & M. 315. It is said that all the evidence admissible on the trial of the indictment in which the perjury is alleged to have been committed is admissible on the trial for the perjury. R. v. Harrison, 9 Cox 503.

Statements made by the judge, etc., before whom the perjury is alleged to have been committed, are not admissible on the trial for the offence. R. v. Britton, 17 Cox 627. It is not necessary to produce the judge's notes, which are not the best evidence of what took place at the trial, and are not admissible except to refresh the memory of the judge if called as a witness. R. v. Child, 5 Cox 197; R. v. Morgan, 6 Cox 107; and the judge should not be called. R. v. Gazard, 8 C. & P. 595, Patterson, J. The notes or minutes of the clerk of the court are in the same position as those of the judge. R. v. Newall, 6 Cox 21; and of no greater authority than those of a shorthand writer or other person who took a note of the evidence. Ib. The judgment in the prior case is not evidence on a trial for perjury in the prior case. R. v. Goodfellow, C & M. 569.

It is necessary to prove in substance the whole of what is set out in the indictment as having been sworn by the defendant, and of the evidence connected with it and necessary to explain it; proving a part only, it seems, is not sufficient. R. v. Jones, Peake (3rd ed.), 51; R. v. Dowlin, Peake (3rd ed.), 227, S. T. R. 317. And it must be proved literally or substantially as set out. R. v. Leefe, 2 Camp. 134; 11 R.R. 683. And the evidence must be clear and precise, and not ambiguous. R. v. Bird, 17 Cox 387.

As to the corroboration necessary, see sec. 684 of the Criminal Code. As to the proof of judicial proceedings see secs. 10, 20 and 21 of the Canada Evidence Act.

[SUPREME COURT OF NOVA SCOTIA.]

BEFORE WEATHERBE, RITCHIE AND TOWNSHEND, JJ.

THE KING v. OLAND (No. 1).

Liquor License-Exposing License in warehouse—Brewer's license not included in N.S. Law, sec. 55-Stated case by magistrate-Summary Convictions Act, R.S.N.S. 1900, c. 161, s. 73-Liquor License Act, R.S. N.S. 1900, c. 100, secs. 115, 127, 149, 182.

1. A wholesale brewer's license under the N.S. Liquor License Act need not be kept exposed in the warehouse, and is not subject to the requirements of sec. 55 of the Act.

2. Notwithstanding sec. 127 of the N.S. Liquor License Act a case may be stated by a stipendiary magistrate to the Supreme Court in respect of a question of law arising on a prosecution under the Act.

ARGUED: November 23, 1903.

DECIDED: November 23, 1903.

Case stated for opinion of the court under provisions of the Nova Scotia Summary Convictions Act. Defendant under proper license from the Government of Canada carried on a business as brewer at Dartmouth, N.S., and was convicted by the Stipendiary Magistrate of the town of Dartmouth for that he did while the holder of a license for sale by wholesale under the provisions of the Nova Scotia Liquor License Act omit to expose in his warehouse and premises at Dartmouth the said license in accordance with the provisions of section 55 of the Liquor License Act. T. Notting, for the prosecutor, took preliminary objection that no appeal by way of case stated would lie, and cited section 127 of the Act.

W. B. A. Ritchie, K.C., for defendant.

HALIFAX, November 23, 1903.

The court overruled the preliminary objection and at the conclusion of the argument of the stated case delivered an oral judgment quashing the conviction and holding that a license

to be taken out by a brewer under section 14 was not within the intendment of section 55, and that all the requirements and provisions governing brewers' licenses were covered by section 14.

Conviction quashed.

Note: Appeal from summary convictions-"Stated case" an alternative mode of appeal on the law.

Sec. 127 of the Nova Scotia Liquor License Act is as follows:

"In all cases of prosecution for any offence against any of the provisions of this chapter for which any penalty or punishment is precribed, the conviction or order of the magistrate shall, except as in this chapter otherwise provided, be final and conclusive and, except as is so provided there shall be no appeal against such conviction or order to any other court."

Sec. 149 of the same Act enacts that "an appeal shall lie from every conviction for any offence under this chapter to the judge of the County Court for the county," etc., subject to the conditions set forth in the section.

But sec. 115 also provides that except as in the Liquor License Act otherwise provided all the provisions of the Summary Convictions Act, R.S.N.S. 1900, c. 161, shall apply to any prosecution or proceeding thereunder.

Among the provisions contained in the Summary Convictions Act (N.S.) is one permitting a case to be stated by a magistrate on a point of law.

These sections interpreted together are construed in the Oland Case, supra, as incorporating the procedure by "stated case" notwithstanding the provisions of 127.

It will be noted that the exception in the latter section by the words "except as in this chapter otherwise provided," is wide enough to include both secs. 115 and 149 and that the latter, while stating that an appeal shall lie, does not purport to make it the only mode of appeal. A stated case is a mode of appeal; R. v. Robert Simpson Co., 2 Can. Cr. Cas. 272; but only for the review of questions of law. If it is desired to review the findings of facts and to obtain a trial de novo upon both law and fact, the appeal must be taken under section 149 and its conditions must be complied with. See R. v. McNutt, 33 N.S.R. 14, 4 Can. Cr. Cas. 392. Upon an appeal to the county judge an affidavit of merits is obligatory in Nova Scotia whether the facts are in dispute or not. Bigelow v. The Queen (1900), 4 Can .Cr. Cas. 337, 31 Can. Cr. Cas. 128.