NIAX 16. :-:-'---"*"""“'

HAD NO JURISDICTION

_ gmtgilnzq from Page l

I; ,,,»-,,-,,ity not exceeding two hun-

* 3Y5-

“jflhc case was tried before George ]_'1"i\CCdY Esquire, Magistrate for W-moo Edward Island-

ML vivyatt, K. Ci, counsel for ap- pellant. contends that Mr. Tweedy had no jurisdiction to try the case, mat. his authority to d0 $0 Ofluld 31,1; no derived through the Cus- ,,.,,,_, not, which designates the Cont". as "two justices of the 1301108."

Cotinsel for the prosecution meets this contention by the claim that My, Tweedy has the power of two justices of the peace and is espe- flfllh authorized by the Provincial siziuiie to try Customs cases.

To this it ivas replied (l) that the tnagu-lraie had riot the power of [WU itistices of the tieace‘; and (2) that i-ten if he had such power, he \\'{llll\l not satisfy the requirements of the Customs Act, which confers (no jurisdiction ori "two justices of ihc tic-ice"

vvhiiievei" judicial authority Mr. Tvriiitv had was conferred by the siatuil‘ of this Province-B George p, 0gp. 1, iiitituled “An Act to Con- solidate and Amend the Various Acts llrliling to the Prohibition of In- itniriituig Liquors" and the amend- lllf‘lll.< thereof. The first amendment gmtllclgblfi to this case is l8 Geo. V-, can 11, of which Sec. 21 provides:

>31. For the purpose of the better "ing and carrying out the pro- . . iif this Act there may be ap- |,,, ,,-~l by the Lieutenant Governor m tgiiuiicil, at a salary to be fixed by the Lieutenant Governor in ciiiiiicii. three Magistrates who shall no racially styled as "Magistrates" for l'ZillCf‘ Edward Island," each hav- in: il.i powers of two Justices of the Peace. iiud each with concurrent jur- isdimiiin to try any offence under thi-. Art wheresoever committed llllllill the Province of Prince Ed- wavil island. including any incorpor- iitivl (Jity or Town therein, any stat- u:i- of the Province of Prince Edward lrlanri to the‘ contrary notatithstand- hie; Ziilil jurisdiction in all such niat- l~"l.~ hereby conferred upon each of .\lll'l\ Afzigistrates respectively in accordance with the provisions of llllS Ari. The Magistrates so appoint- ed f-illlll have all the piowers, privil- jurisdiction and authority of ihc iIIIilQCS of llic County Court or the Szipendiary Magistrate conferred lir smil Act and wheresoevcr powers, priiiirsos, jurisdiction and authority are t\i1l<'i'i'('(l upon Judges of the ("iiiii-‘x- Ciiurt or Stipendiary lvfagis- .. uudei- this Act. the samo pow- . lll‘iill"jl(‘$, jurisdiction and autli- ire hereby conferred upon the it's so appointed iiiidei- this i l'l' any of them. aitv Statute Provlncc to the contrary riot- \\'iili~l.ii;dii1;:. '

Til“ acting magistrate in \\'.'\.'~ njntviintctl under the vi itrililhiiioii Act as thus iziiiriiiicd. In the following year the Act 'i‘,l~ tiiriher amended by l9 Geo. \' (hip. 14, intituled "An Act to Further Amend an Act to Consolid- nit rd Amend the various Acts Ite- la‘ to the Prohibition of iiitox- lfffliili! Liquors" of which Sec. 9. S. fl. iii provides:

The Following section is lirvohv added after Sec. 2i of the sud Mt as Sec. 21a: i

211i. Each or any Magistrate for l"i'inv~ Edward Island who may from tuu~~ to lime be appointed under the l»i't5_i.-ions of the Prohibition Act shall dull": the tenure of office as such llaciiii-iito have and exercise in eiwh oi the counties of this Prov- ince. ~'l {he powers and authorities of cu? Justice of the Peace or of 0113-‘ itro or more Justices of the Pear." sitting or acting together. and in tii-osscutions or other proceedings iiistitiitrrl under the provisions of The customs Act or The Excise Act of the Parliament of Canada or any iurh afntzistrate for Prince Edward island shall and may exercise the itirlsdletlon mentioned in this sec- tion in all cases although the of- fence concerned may be alleged~to have been committed within the City 0i Charlottetown or the Town of Suiiiiiiri-slde or any other incorpor- tiled tiiwii in the Province of Prince Edward Island, any Statute of this Province to the contrary notwith- Slflllfilngf’

‘Fills last amendment added noth- ilw material to the powers which

_.____,

this case authority

»i,.

1,...“ pillars and not lcss than fifty;

the magistrate already had in re- ,gard to-the Prohibition Act and I

am therefore unable to see in it any ‘other intention‘ than to enlarge the field of jurisdiction of this magis- trate so as to include summary coii- vietion cases under the Customs and Excise Acts of Canada. Tothat ex- tent it is clearly ultra vlres of this legislature.

It is claimed by counsel for the prosecution that the invalidity of part of tho Act would not affect the remainder thereof, and that sec. 21a, which reads:

"'- w"..-

“Each or any Magistrate for Prince Edward Island, who may from time to time be appointed under the pro- visions of The Prohibition Act, shall during the tenure of office as such Magistrate have and exercise in each of the Counties of this Province all the powers and authorities of one Justice of the Peace or of any two or more’ Justices of the Peace sitting or acting together. ." would confer upon the magistrate the power of two justices of peace. With this contention I am un- able to agree. The“ avowed and often

amendments is to enforce and bet- ter enforce the Prohibition Act and even the attempt to extend the pow- ers of the magistrate irito the Do- ininlon field was moved by the ex- press intention of providing for the better enforcement of the Prohib- ition Act.

There is nothing in the Provincial

legislature had any intontiou of coli- ferririg on the Magistrate the gener- al power of two justices of the peace but only such powers as would bc adequate for the purpose of enforc- ing the Prohibition Act. Province had conferred "upon the of the peace, would that have qual- ified him ‘to try this case?

By the Customs Act the Dominion Parliament dealing with a subject within its exclusive jurisdiction cle-

lhe several tribunals before which and indicates the

procedure.

That falls under Part Crhriinal Code of Canada.

1 that "Every complaint and infor- mation shall be heard. tried and ad-

the

repeated intention of the Act with its

Statute referred to to show that the

But even assuming that the legislature of this

Magistrate the power of two justices

termines what acts shall constitute offences against the Customs laws, prescribes ihc penalties, designates

the respective offences shall be tried The procedure is by summary conviction. XV of the Section 707 of the Code provides by S. S.

1A

1

‘ for the application of J. I-f. Gallant. SIMILAR JUDGMENTS Grafton Jenkins. Appellant, vs. Al-

vin Shaw, Respondent. 15th MaYi 1930. Judgment of Mr. Justice Arsonnult: This is an appeal from a convic- tion made by George J. Tweedy E5. quire, Magistrate for Prince Edward Island. for unlawfully harbouring or keeping goods» unlawfully imported into Canada whcreon the duties had not been paid contrary to Sec. 217 of the Customs Act. The defendant was convicted of the charge and fined fifty dollars and costs or in do- fnult to be imprisoned for a tenn of three months. ' This case with others came up for! hearing at the last Georgetown Term ' of this Court and by consent of all parties was adjourned to my Chat-n. hers in Charlottetown foi' hearing. Tl"! Code came up ‘for hearing on

__ THE CIIARI.()'I"I'ETO\VN GUARDIAN

Yesterday Was Final Day For

Movingliuckmen

' Only Legitimate Transfers Are Permitted From Now On- Montgomery Of S’S1'de Will Be With Fredericton.

the 15th April last. i1‘i'i'|,COlll‘Y.- was

judgment.

On the argument several gPOllllCISl were taken against the conviction; but only one ground need here be considered and this is, that the said 5901112 J. Tweedy had no jurisdic- tion to take the information, hear the case or make the conviction.

I consider that thc ground is well taken and the judgment delivered to-day by the Chief Justice in the case of tho King vs. Johnston, which is a. decision of the Court of Appeal of this Province. is binding upon me.

The appeal herein is, for the rea- sons therein set forth, allowed with costs to be paid by the respondent to the Prothonotary of this Court within thiiiy days from this day and by him paid to the tiarties entitled.

Chester McDonald, Appellant, vs. John Joseph McPhee, Respondent. Judgment of Mr. Justice Arsenault:

This case is similar to the Jenkins case in which judgment has just been (lelivtered and for the same rea- son the appeal is allowed with costs to be paid by the respondent to the Prothonotaryof this Court ivithin thirty day's from this date and by liiin puld to the parties entitled.

Mr. David Matheson appeared for the applicant. Jenkins, Mr. J. J. Johnston. K. C., for the applicant, lvfcDonald. Mr. ivicGuigan appeared for the respondent in both cases.

BASKETBALL

q The final game to decide the city championship will be trlziyed 1n the Y gym. tonight at 8 p. m... between the Spartans and the Navy. The

SAINT JOHN, May li-Yesterday i Steve Estabrooks, both of whom ac-

gum-Wards adjourvfflj m L045‘, w‘, was the final day set for establishing l cepted positions here seine time ago, ' ‘mp5 of the fire-gutted courthmjggl residence for next winters hockey, l will establish themselves in Frecleric- The ‘V3115, cracked and 5mg,“

except for players who are transferr- i ed legitimately by their employers. Thus we find on all sides that hockey stars, Maritime and Upper Canadian, have located in various puck centres throughout New Brunswick and Nova Scotia. Thursday night many had already established residence and yesterday the last clay saw several more aspirants for M.A.l-I.A. teams reaching their destination.

The management of the Saint John Beavers had very little to say over the prospects of new men but will likely announce a number of changes be- 1°": midnight, as at least two new men will in all likelihood be located hcrewithln the next 12 hours.

Sussex has already been invaded by a number of young men from Upper Canada and there may be further announcement today on the situation in the Dairy Town.

§ ton within the next 24 hours. j Representatives of the Bathurst ‘Hockey Club were here today trying} 5L0 coax Clint Gammon back to Bat- i liurst again, but the speedy little for- l -ward of the Papermakers told them he was satisfied to remain iii Freder- icton. The Bathurst inaii then left for Moncton after other taliiycrs.

Maroon Farm?

It is said that Gammon. McAvthur and Estabrooks are slated to go on to the Montreal Nlaroons negotiation list which will ensure them contracts as soon as "Buck" Boucher, who is being sent hcre from the Maroons as , coach of the Capitals, pronounccsl them ready for pro hockey. Otheri jilayers with the Fredericton club will l. have similar opportunities, it wasi said. I I

In bloncton MONCTON, N. B., May l5.—~At a meeting of the Moncton Victoria Hockey Club tonight a board of di- rectors composed of G. Z-l. Louns-i bury, B. A. Bourgeois, Charlie Mac- I Donald. E. l-l. Ritcey. Ambrose Wheeler, B. A. Taylor, C. H. Blakncyt, l J. RJMacKriight and J. H. Bourgeois E were named to handle the affairs of l

Up-River “eves

FREDERICTON, May 15.--Cliff Montgomery, promising young de- fence player of the Summerside Crystals, who attracted attention of various scouts by his playing in the Prince Edward Island Hockey League last winter, is cnroute to Fredericton and will play with the Capitals next winter. The arrival of Montgomery here completes thc Fredericton team's defence for next season, Louis Far- row, who will play goal, and Fergu- son, formerly of Campbellton and

The board will meet tomorrow when tho officers for the year will be select- ed.

It was made known tonight that

ment, is slated to take a forestry course at University of New Bruns- wick is to play for Fredericton

city today and would arrive here to- morrow afternoon. Mitchell is a left winger and comes on the recommen-

thc club during the 1930-31 season. Boston . . . . . . . .

judwd by one Justice o; the rig-Mei last game was won by the Spartans

TUCKETTS

MONTREAL

or two or more Justices asdirceted by the act or law upon which the complaint or information is framed or by any act or law in that behalf."

The Act upon which the informa- tion in this case is framed tThe Cus- toms Acti thc ‘offence charged a court consist- ing of two justices of the peace. On examination of the Customs Act I note that six at least of the fences friable on summary convic-

iices of the peace” and that each one carries a. money penalty of from

fence HIIICIOI’ Sec. 225) ma)’ be "led "before two justices of the peace or police magistrate or other magistrate having the jiower of two justices of the jieace." The Court under Sec

of from $10.00 to $100.00.

The offence charged iri this case falls under Sec. 217 money penalty of $200.00 and requir- ing for the trial two justices of the jierice.

The intention of Parliament making the distinction courts and their respective tienaliz- ing powers is evident. There can be

in

two justices of the peace which the Customs Act has designated for the trial of the offence charged in the prosecution.

The conclusion at avhich I have arrived. therefore, is that the fling- istratc for Prince Edward Island had no jurisdiction to try this (asc-

The rule for a. certlorari will be made absolute with costs to be paid by the prosecutor to the Prothono- tary of this Court within 30 days from this date and by the Prothono- tary to the applicant, Reginald Jolm- ston, or his attorney.

Mr. .1. B. Wyatt. K. 0.. amwarefl for the applicant, and Mr. D. O. Stewart. contra.

A similar judgment was rendered

requires for the trial of

of-

tion are to be tried before "two jus-,

$50.00 to $200.00. and that one of;

225 can only impose a money taeiialty

authorizing a

as to the

no substitution for the tribunal 0f

' by a margin of l0 points, With this lead to overcome the Navy boys are determined to play the game of their lives and lo make every effort to win. The Spartans however. are just I85 determined to maintain their lead ' and by s0 doing win the champion- ship, What more could be expected than the fastest and most cxcitinZ lgamc of the year? Don't miss it.

At 8 p. m.. on Saturday there will be :i‘girls‘ game between. ihc Abeg- welt Sisters and P111100 Siffietv ,| which we know will 1W9"! 1115i a5 i‘ exciting and interesting as tonight's ‘ game. ‘The following is the standing of the second section of the $015 leaguc:-

i

P, “l. C. P. s. s. . . . . . . Abbie Sisters

(Patriot Please ccpyfl

litcisiuil

Continued from P213975

IIFQIIIIIIIOIIIU

“mum “M045 Foul.“

could over be at rest."

That case was followed by Hamlet vs. Richardson. 9 Bing. 640. which de- cided that where money is paid after suing out process to recover it, the dc- feridnnt before he trays knowing the cause of action for which it is sued out and there being no fraud, no action is inaintainnble to recover the money back.

De Medina v. Grove a ors, reported 10 Q. B., I52. followed defining the proper procedure where fraud is alleg- ed. viz, by notice to set aside the judg- ment or execution. not by an action for money had and received. Lord Denham. C.J.. in his judgment said, "If such nii action as the present would lie great inconvenience might follow. The Court might refuse to interfere with the judgment or execution and yet if such an action could be brought the de- fendant in the original action might recover the money levied and so defeat both fur‘ ‘ and execution."

In the present case some reliance was placed upon the fact that plaintiff ~ pnld the tax "under protest." That can ' have no weight when payment is made under pressure of legal process. It scarcely needs authority to determine i that where payment is made by n. exe- cution debtor of the amount claimed in the execution in order to secure its withdrawal he cannot by protesting or objecting to the payment secure the right to turn around and sue the exe- cution creditor for its return. If that could be done the process might be Y continued indefinitely so that "no cause of action would ever be at rest." ' ‘rho conclusion at which I have ar- rived on careful consideration of the authorities and the arguments aub- u-iltted by counsel ls that the l pond- ' ent (plaintiff below) has failed on §every material ground t0 sustain his j action.

i

Capitals. ._Montgoinery has his career ahead of him, he is 19 years old and weighs 190 pounds.

It was said ytesierclay tiiiit the i Fredericton club would probably have I a couple of surprises to spring in the I way of new arrivals who will estab- lish residence here bcforc May 15 has t come and gone. Already Clint Gam- l mon. Joe Beaten and Joe Nairn are} here and Specs Pecbles and anotheri new forward. an Upper Canadian re- commended by the Montreal lvlaroons , will also be attending U. N. B. , It is still within the realm of pus-l sibilities- that Hymie MeArthur and

dation of Cecil Hart, pilot of the,

i i

.—_:'\(}F.

. ilerir Maxie In New

I131

23 Are' Charged

With Texas Riot

i

SHERMAN- Tex. May I5»—V\i'llh z-i - persons arrested and charged with incendiarisni and inciting a riot. a military court to-clay probed into Friday's mob violence which ended only after the Grayson County court- house had been burned and a negro. charged with assault of a white wo- man, had been killed arid his body dragged through the streets.

The Military Court was in execu- tive sessions. Names of the witnesses were not disclosed by Col Laurence E. McGee, provost marshal.

Colonel McGee, military district] commander since Governor Dani, Moody placed Sherman under mar-i tial law early Saturday, orderedi county authorities to dynamite thei

I l

g, WCPC‘ deemed a hazard. ‘

The coroner said to-day that. George Hughes. 41, the negro who‘ was locked in the courthouse vault“ when the mob first attempted to storm the building, died of suffoca- tion and not of burns.

Full order, enforced by miiitiameiul was restored to-day. Negroes return- ed to their work, and several report- cd that they had been threatened with death.

I

l

l

i __ l now Titer STAND

I i

AMERICAN LEAGUE

Won Lost P.C.: _ Philadelphia, 17 7 50g '. (icrman cunlcntlcr for the world IIP“ Washington .. . i6 .9 .640 < 1min New York oirflie s. 1" Cleveland ,,, , 14 9 1-399 ' . the Riv-fun iizr, next iuoiiih New York , 11 11 ,5()0 ' “enri- of the (irrnmi figh... Boston . 1i l4 .440 Chicago 9 13 .409 f"""“ "m" —~~—— st. Louis .. .... 1o l3 .4oo,1""“‘-"’ - V1" i‘ Y'"""‘iiriitiuzoiaous - Detroit . . . . . . . . . . . . . . .. 9 1o .32li‘lk'llll'frl - - 1‘ 1-’ i sain T0 iivr-“civ ': v . 11 l‘; 1:41, NATIONAL LEAGUE ,§"“°l11‘1»1 iii i: 4i‘; \'lC'l‘Ul°.i.\. 12.. c

won L05,‘ fJvc-i (‘mini l? l? l‘ liars [T0111 1.11.‘ Chicago ............ ,. lli 11 mo " " ' ' limo iiriiiii c". Ii New York‘ i4 n rim , '-i d," Fl” i -~ '~ Brooklyn . . iii 11 _ ,. Si. Loiiis , 14 l: -;, ,,,~,,s,,.__ Cincinnati .. i2 i2 , y ,1 11,5; Pittsburgh l2 l2 _ v ‘_ -1-, rm,

. a iii so; “f t i »- Philadelphia 1 .15 .;-:1a.“~‘

t 1 . . Til‘.-

INTERNATIONAL LEAGUE

_ v av]. . Won Lost P.C.illl trmtwrr

Saint John, being already here. while flllvllicr Upper Canadian player Foster . Buffalo . . . . . . . . . . . . . .. 14 3 .636 um or, Brwtlicr. defence player recommended Mitchell, last year with the Northern i Baltimore ..... . l3 i0 .565 i l~\-"l'zi~ l». 37i- by the Montreal lyfaroons [nanage- Electric of Montreal, left the latterlRochcsier 13 l0 .365 11%. l. t‘, ~

‘Draper, Ottawa player

world's champions, Canadiens. Jack‘ with whomi the local club had been negotiating. is located a few miles out of Ottawa and it is probable that lie will arrive hcre tomorrow as the last word local’ men received from him was that he was willing to come.