HAZEN,
C.J.:—Immediately
after
judgment
had
been
delivered
in
this
matter,
on
November
18
last,
Mr.
Doiron
on
behalf
of
the
defendant
made
an
application
for
costs,
bringing
himself
within
the
rule
of
Budenberg
v.
Roberts
(1876)
L.R.
2
C.P.
292,
which
is
authority
for
the
proposition
that
the
application
for
costs
should
be
made
immediately
upon
the
disposal
of
the
cause.
The
judgment
in
favour
of
the
defendant
and
the
quashing
of
the
conviction
proceeded
on
the
ground
that
it
was
not
shown
in
the
evidence
before
the
Magistrate
that
Goodwin,
who
laid
the
information,
was
authorized
by
the
finance
department
or
any
other
department
of
the
Government
to
do
so
or
to
otherwise
enforce
the
provisions
of
the
Income
War
Tax
Act,
and
as
the
statute
was
enacted
not
for
the
purpose
of
safeguarding
public
morals
but
for
the
purpose
of
obtaining
revenue
alone,
it
was
as
determined
by
this
Court
in
The
King
v.
Limerick,
Ex
parte
Murphy
(1921),
49
N.B.R.
280,
an
Act
solely
for
the
protection
and
benefit
of
the
revenue
of
Canada,
and
its
provisions
could
be
enforced
by
officers
of
the
Inland
Revenue
Department
and
they
alone.
There
is
no
doubt
whatever
but
that
this
Court
has
discretion
with
regard
to
the
matter
of
costs.
The
Summary
Jurisdiction
Act,
1857
(Imp.),
c.
43,
is
almost
identical
with
ss.
761
et
seq.
of
the
Cr.
Code,
and
sec.
6
of
the
Imperial
Act
is
as
follows:—
"‘The
Court
to
which
a
case
is
transmitted
under
this
Act
shall
hear
and
determine
the
question
or
questions
of
law
arising
thereon,
and
shall
thereupon
reverse,
affirm,
or
amend
the
determination
in
respect
of
which
the
case
has
been
stated,
or
remit
the
matter
to
the
Justice
or
Justices,
with
the
opinion
of
the
Court
thereon;
or
may
make
such
other
order
in
relation
to
the
matter,
and
may
make
such
order
as
to
costs,
as
to
the
Court
may
seem
fit;
and
all
such
orders
shall
be
final
and
conclusive
on
all
parties
:
provided
always,
that
no
Justice
or
Justices
of
the
Peace
who
shall
state
and
deliver
a
case
in
pursuance
of
this
Act
shall
be
liable
to
any
costs
in
respect
or
by
reason
of
such
appeal
against
his
or
their
determination.’’
Section
765
of
the
Cr.
Code
provides
as
follows
:—
‘‘The
court
to
which
a
case
is
transmitted
shall
hear
and
determine
the
question
or
questions
of
law
arising
thereon,
and
shall
thereupon
affirm,
reverse
or
modify
the
conviction,
order
or
determination
in
respect
of
which
the
case
has
been
stated,
or
remit
the
matter
to
the
Justice
with
the
opinion
of
the
court
thereon,
and
may
make
such
other
order
in
relation
to
the
matter,
and
such
orders
as
to
costs,
as
to
the
court
seems
fit;
and
all
such
orders
shall
be
final
and
conclusive
upon
all
parties.
2.
No
Justice
who
states
and
delivers
a
case
shall
be
liable
to
any
costs
in
respect
of
or
by
reason
of
such
appeal
against
his
determination.’’
In
Short
&
Mellor’s
Crown
Practice,
2nd
ed.,
p.
426,
it
is
said
that
:—
‘
"
The
costs
under
s.
6
(of
20th
and
21st
Victoria,
c.
43)
are
in
the
discretion
of
the
Court,
and
usually
follow
the
judgment”
(citing
Venables
v.
Hardman
(1858)
1
EL.
&
El.
79.
120
E.R.
837).
Paley
on
Summary
Convictions,
8th
ed.,
pp.
427-8,
speaking
with
reference
to
cases
stated
by
Magistrates
under
the
provisions
of
c.
43
of
the
Imperial
Act,
which
are
as
stated
very
similar
to
the
provisions
of
the
Cr.
Code
under
which
this
appeal
is
brought,
says
:—
‘
The
costs
are
in
the
discretion
of
the
Court,
but
as
a
general
rule,
will
be
given
to
the
successful
party
.
.
.
.
Costs
may
be
awarded
for
or
against
the
Crown,
whether
directly
or
indirectly
a
party
to
the
information’’
(citing
Moore
v.
Smith
(1859),
1
El.
&
El.
597,
120
E.R.
1034).
"‘The
unsuccessful
party
generally
pays
costs,
although
he
may
have
argued
merely
in
support
of
the
decision
of
the
magistrate”
(Venables
v.
Hardman,
supra).
This
Court
has
always
acted
upon
the
maxim
that,
the
Crown
neither
takes
nor
pays
costs
except
in
cases
of
certiorari
affecting
taxation,
and
without
impeaching
in
any
way
the
correctness
of
such
a
course
it
seems
in
the
present
case,
as
the
judgment.
proceeded
on
the
ground
that
the
informant,
Goodwin,
acted
wholly
within
authority
and
the
defendant
was
therefore
put
to
the
expense
of
prosecuting
an
appeal
there
from
that
he
should
have
his
costs
of
so
doing.
The
application
of
the
defendant,
Ed,
for
costs
of
so
prosecuting
said
appeal
is
for
these
reasons
acceded
to.
Application
granted.
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