CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF NEW BRUNSWICK

IN

HILARY TERM,

IN THE TWENTY-FOURTH YEAR OF THE REIGN OF VICTORIA.

1861.

FR

DESBRISAY against MOONEY.

6th February.

to an applica

charge by a

RASER moved for the discharge of the defendant It is no answer out of custody under the provisions of the Insolvent tion for disConfined Debtors' Act (1 Revised Statutes, c. 124, § debtor who 10), he having received the weekly allowance for six the weekly

months.

has received

allowance for six months

solvent Con

Act, that he

D. S. Kerr opposed the motion on affidavits stating under the Inthat the defendant was upon the limits, living at a respec- fined Debtors' table boarding-house, and that the plaintiff had offered to has the means of supporting give him work to support himself, which he had refused. himself: that He contended that this was an answer to the applica- suspending

tion.

The Court said, that if the debtor had the means of supporting himself, that was the ground of an application, under the eighth section of the Act, to suspend the order for support, but was no answer to this motion. The tenth section of the Act entitled the defendant to his discharge.

Order granted.

is a ground for

the order for support.

1861.

Stat. c. 147,

any person who shall un

maliciously

destroy any

building,

bridge, or othererection,

of felony:

it was not nec

THE QUEEN against ABRAHAM ELSTON and OTHERS.

THE

64

66

By the Rev. HE defendants were convicted before Parker, J., at the last King's circuit, of an offence under the lawfully and Revised Statutes, c. 147, § 1, which enacts that " any pull down or person who shall unlawfully and maliciously pull down "or destroy any building, bridge, or other erection, or "machinery therein, shall be guilty of felony, and shall shall be guilty be imprisoned for a term not exceeding fourteen years." Held, 1. That It was a private prosecution, and the first count of the essary to al- indictment on which the defendants were convicted. lege in an incharged that on the 6th March, 1860, at the parish of Kingston, the defendants with force and arms did own a house, unlawfully, maliciously, and feloniously pull down and destroy the dwelling-house of one David Thompson." There was no question as to the fact that the defendants did, at the time stated, pull down and destroy the house any bona fide in which Thompson and his family were actually living, belief by the defendant that though no personal injury was done to any of them,—the he had a right intention of the defendants evidently being to get posses

dictment un

der this Act, for pulling

that it was

..

done riotous- 66 ly. 2. That if the house was pulled down unlawfully,

and without

to do it, the

jury might

infer such malice as would support the indictment.

need not pro

sion of the land, which was claimed by Thomas Elston, one of the defendants, and for which an action of ejectment had been brought, and in which, after a verdict for the The act done plaintiff, a new trial had been granted. [See Doe d. Elston ceed from per- v. Thompson (a).] The defendant, Abraham Elston, was a son of Benjamin Elston, who died intestate about thirteen years before the trial, seized in fee of the land in ferred from dispute; the other defendants were the sons of Abraham the commis- Elston; and Thompson, the prosecutor, was a son-in-law of Benjamin Elston, deceased.

sonal malice

towards the owner of the property; but may be in

sion of wrong

ful acts, for

bidden by

law.

The defence was, that the title to the land was in Thomas Elston, and that the defendants entered under him as the owner, in the exercise of his legal rights, and therefore were not liable to be proceeded against as criminals. The letters of administration tɔ Abraham Elston upon the estate of Benjamin Elston; a license from the

(a) 4 Allen, 483.

Probate

Probate Court of King's county, authorizing the administrator to sell the real estate for payment of debts; and the deed from the administrator to the defendant Thomas Elston of the land in dispute, dated 3d August, 1857, duly acknowledged and registered, were put in evidence. On the part of the prosecution, evidence was then given of the proceedings in the action of ejectment, and the rule of Court ordering a new trial. The learned Judge left the following question to the jury: Did the defendants pull down and destroy the house maliciously, or in the belief that it was the property of Thomas Elston, and under the bona fide impression that he, and the other defendants acting in his aid, had the right to pull down the house? His Honor told them, that the mere belief that Thomas Elston had the right to the property, would not excuse the act of the defendants, unless they were acting under the bona fide belief that Thomas Elston had the right to pull down the house; and as to malice, that what the Act meant, was not personal malice towards the owner or occupier, but such as might be inferred in this and similar cases from wrongful and injurious acts, forbidden by law.

The learned Judge having reserved the questions of law for the consideration of the Court,

In Michaelmas term last, Gray, Q. C., moved to arrest the judgment, and contended: 1st, That the indictment should have charged the pulling down to have been done riotously, because the title of the chapter was "Offences

against the Public Peace," and the summary of contents. of the section under which the indictment was found was, "Riotously pulling down buildings, &c.," and the Titles and Sections were part of the Act (1. Rev. Stat. 465). The offence charged was only a trespass; and it never could have been the intention of the Legislature to make the mere assertion of title, however mistaken, a felony. 2d. That if the defendants bona fide believed they were entitled to the land, it was no offence under the Act, though they knew they were acting illegally in pulling

down

1861.

THE QUEEN against ELSTON.