Bigelow v. The Queen
The omission to produce the affidavit required by s.117 of the Nova Scotia Liquor License Act was a fatal procedural defect on the application for certiorari and justified vacating the certiorari order; accordingly the appeal was dismissed.
Source-derived case information.
- Citation
- (1900) 31 SCR 128
- Parties
- Appellant: Bigelow; Respondent: The Queen; Informant: Informant
- Court
- Supreme Court of Canada
- Jurisdiction
- Canada
- Judgment Date
- 12 June 1900
- Procedural Posture
- Appeal / Appeal From Supreme Court of Nova Scotia Concerning Certiorari on a Magistrate's Conviction; Judgment on Procedural Defect (affidavit)
- Outcome
- Appeal dismissed with costs.
- Legal Topics
- Provincial Legislative Powers, Certiorari, Jurisdiction, Procedural Requirements, Affidavit Requirements, Liquor Licensing Legislation
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bigelow
Appellant
The Queen
Respondent
Informant
Informant
Procedural Posture
Appeal / Appeal From Supreme Court of Nova Scotia Concerning Certiorari on a Magistrate's Conviction; Judgment on Procedural Defect (affidavit)
Legal Issues
- 1 Whether the affidavit required by s.117 of the Nova Scotia Liquor License Act was required to be produced on the application for certiorari and whether its absence vitiated the certiorari order
- 2 Whether the constitutionality of the Liquor License Act should be decided prior to or instead of resolving the procedural defect
Ratio Decidendi
The omission to produce the affidavit required by s.117 of the Nova Scotia Liquor License Act was a fatal procedural defect on the application for certiorari and justified vacating the certiorari order; accordingly the appeal was dismissed.
Court Disposition
Appeal dismissed with costs.
Orders
- Appeal dismissed with costs.
- Order of the Supreme Court of Nova Scotia vacating the certiorari order upheld.
Full Case Text
Judgment text and source record
1 paragraphs
Bigelow v. The Queen Collection Supreme Court Judgments Date 1900-06-12 Report (1900) 31 SCR 128 Judges Strong, Samuel Henry; Taschereau, Henri-Elzéar; Sedgewick, Robert; Gwynne, John Wellington; King, George Edwin On appeal from Nova Scotia Subjects Constitutional law Decision Content Supreme Court of Canada Bigelow v. The Queen (1900) 31 SCR 128 Date: 1900-06-12 Bigelow v. The Queen 1900: May 1; 1900: June 12. Present:—Sir Henry Strong C.J. and Taschereau, Gwynne, Sedgewick and King JJ. Nova Scotia Liquor License Act, 1896—Conviction by magistrate—Jurisdiction—Application for certiorari—Affidavit—Constitutional law—Powers of provincial legislature—Matter of procedure. Appeal from the judgment of the Supreme Court of Nova Scotia[1] vacating the order of Ritchie J. for certiorari on a conviction against the appellant, on the ground that the affidavit required by sec. 117 of the Liquor License Act, 1896, had not been produced on the application for the writ of certiorari. After hearing counsel for the parties, the court reserved judgment, and on a subsequent day, dismissed the appeal for the reasons given in the judgment appealed from, Mr. Justice Gwynne dissenting, and holding that the question of the constitutionality of the Liquor License Act should have been decided before entering upon the technical point respecting the affidavit. Appeal dismissed with costs. Borden Q.C. for the appellant. Longley Q.C., Attorney General for Nova Scotia, for the Crown. McLellan for the informant. [1] 31 N. S. Rep. 436.