1861.

THE QUEEN against ELSTON.

down the house. Reg. v. Langford (a). It was the animus which constituted the crime, and malice could not be inferred. Rosc. Crim. Ev. 20.

A. R. Wetmore, contra, contended that the indictment. was sufficient, and that the question was left to the jury favorably for the defendants, who had the benefit of any doubts as to the act having been done maliciously.

Cur. adv. vult.

CARTER, C. J., now delivered the judgment of the Court. This case was referred to the Court by Mr. Justice Parker, before whom the prisoners were tried, on an indictment for having unlawfully and maliciously pulled down and destroyed the dwelling-house of one David Thompson; and the questions submitted for our consideration, are, 1st, whether an offence under 1 Rev. Stat. 413, § 1, is properly set out in the indictment; and 2dly, whether the case was properly left to the jury by the learned Judge. The section under which this indictment. is framed is as follows: "Any person who shall unlaw“fully and maliciously pull down or destroy, or begin to "pull down or destroy any building, bridge, or other erection, or machinery therein, shall be guilty of felony, and "shall be imprisoned for a term not exceeding fourteen "years." It was contended by Mr. Gray, that an indictment under this section must set out that the pulling down or destroying was done riotously, and in a manner to disturb the public peace; because the Ch. 147 is headed, "Of "Offences against the Public Peace"; and the short summary of the contents of the chapter referring to § 1 stands thus: "Section 1. Riotously pulling down buildings, &c." This heading and enumeration of the contents of the chapter are, it is argued, to be incorporated in the chapter as a part thereof, and to vary or qualify the language of the sections coutained therein. To say nothing of the danger and difficulty attending a mode of legislation so vague, loose, and slovenly, we do not think the provision in the Revised Statutes on which this argu(a) 1 Car. & M. 602.

66

ment

66

ment is founded, will support the doctrine sought to be
derived from it. That provision is contained in Ch. 161,
§ 35, p. 465: "Parts, Titles, Chapters, and Sections of
this and all other Acts shall be deemed as much a part
"thereof as if enacted; and capital letters and numbers
inserted in the sections shall be taken as referring to
"Forms in the Schedules having the like letters or num-
"bers at the head thereof, and shall, with the forms, let-
"ters, numbers, and matters connected therewith, explain
"the meaning and form a part of such sections." The
meaning of this provision is to our minds quite obvious.
The words "Be it enacted" being used only at the com-
mencement of the Revised Statutes, and not repeated, as
formerly, at the beginning of each separate chapter, this
provision was made to avoid any difficulty which might
have arisen from the absence of these words in each chap-
ter. The meaning of that provision as regards the chapter
and section now under consideration is this, that the
Legislature have enacted, by Part IV, Title XXXIX,
Ch. 147, Section 1, that any person who shall unlawfully
and maliciously pull down or destroy, &c. The refer-
ence in the subsequent part of § 35, p. 465, to letters and
numbers inserted in the sections, clearly proves that by the
word "sections" at the beginning of § 35, the Legislature
meant those divisions of the chapters which are generally
and universally known and called by that name, and not
the brief reference to the contents of such sections, which
is merely intended for convenient reference, and takes the
place of the marginal references formerly in use.
We are
therefore of opinion that the offence was properly set out in
the indictment. Whether it was the intention of the Leg-
islature to re-enact in fewer words the offence created by
the law as it was previous to the Revised Statutes, viz. by
12 Vic. Ch. 29, Sub-Ch. 5, Art. 6, which clearly made a
riotous assembling a necessary ingredient of the offence,
it is not for us to say. It is sufficient to say that they
have not done so.

As to the second question: there can be no doubt that the first point was correctly submitted to the jury, as to

the

1861.

THE QUEEN

against

ELSTON.

1861.

THE QUEEN against ELSTON.

the fact of pulling down the house. It is not denied that such act was unlawful. The other question for the jury, was whether it was done maliciously. This was left to the jury as depending on the question whether it was done in the belief that the house was the property of Thomas Elston, and under the bona fide impression that he and the other prisoners, acting with his authority and in his aid, had the right to pull down the house. In the case of Reg. v. Langford (a), Patteson, J., omitted the latter part of this question, in an indictment for riotously pulling down a building. The Act 7 & 8 Geo. IV, c. 30, § 8, under which that indictment was framed, does not contain the word "maliciously." Now, where malice is essential, the bona fide belief that they had a right to do the act, would be important as regards the animus; and in this view was a point, as it appears to us, rightly left to the jury. If the prisoners pulled down the house unlawfully (and even allowing they thought it was the property of Thomas Elston), yet not believing they had any right to take such means of gaining possession and ousting those who were residing in it, that would be evidence from which a jury might infer such malice as would be sufficient to support the indictment. Such circumstances might well come within what is laid down as the general signification of the word "maliciously" given by the Court of King's Bench in Curtis v. The Hundred of Godley (b), "as denoting an unlawful and bad act, done malo animo, "from an unjust desire of gain, or a careless indifference "of mischief."

We think the conviction should be affirmed.

Rule accordingly.

(a) 1 Car. & M. 602.

(b) 3 B. & C. 253.

1861.

TH

THOMPSON against REED.

of lading,

HIS was an action of assumpsit against the defendants Where a bill as common carriers, tried before Carter, C. J., at which had the last Circuit court in St. John.

been proved before commissioners

take evidence,

The plaintiff tendered in evidence three bills of lading, appointed to which were referred to by the commissioners for taking was not enevidence in Liverpool, as having been before them, and were certified under their several signatures as follows:

closed in the

return of the

commissioners, but was offered in evidence on the

In the Supreme Court of Judicature of the Province of ground that New Brunswick.

George F. Thompson v. James Reed and Robert Reed.

This is the bill of lading marked 'A' referred to

i was referred to in the deposi

tions, and was

indorsed with

in a certificate signed by on both commis

sioners, that it

the deposition of William Edwin Tucker, before us "the 15th day of November, 1859, and in the deposition had been be"of James Alexander Forrest, taken before us on the 17th and the hand

"day of November, 1859.

"JOHN FLETCHER.
"THOS. WOODBURN."

These bills were not enclosed by the commissioners in their return, but were offered in evidence upon proving

fore them;

writing of one of the commissioners was proved by a witness, but that of the other only by a comparison with the signature upon the commis

that the evi

properly re

the handwriting of one of the commissioners by a witness sion: Held,who knew it, and proving the signature of the other, by dence was comparison of handwriting with the signature in the return jected at the itself. The learned Judge refused to admit the bills of lading in evidence, and nonsuited the plaintiff, with leave

to move to set it aside.

In Trinity term last, Duff obtained a rule nisi to aside the nonsuit.

set

trial.

Semble, that admissible if

it would be

there were clear evidence

that it was the

identical paper produced before the

The commission

In Michaelmas term last, Wetmore shewed cause. commission must be based upon the Judge's order, and if in exactly the

,ers, and was

same state as

it does not follow the order, it is inadmissible in evidence. when so proRose. Ev. 104. The commission authorizes any one of duced. them to administer the oath, which is contrary to the Judge's order. Perjury could not be assigned upon it.

[RITCHIE,

1861.

[RITCHIE, J. It appears by the depositions that the witnesses were sworn before both commissioners.] The THOMPSON Commission does not authorize that; the oath is, "You against REED. "are true answer to make to all such questions as shall "be asked you upon the interrogatories now produced "and shown to you." That is not enough; it should have been, to have answered all questions as well, viva voce or otherwise the oath to the commissioners is limited to taking evidence on the interrogatories. Steinkiller v. Newton (a). The commission should not have been received, and defendant has a right to take the objection now in answer to this motion to set aside the nonsuit. [RITCHIE, J., refers to Howkins v. Baldwin (b), as to waiver of this objection.] The viva voce examination was not under oath at all. The bills of lading not being enclosed with the commission renders the whole inadmissible; the Act requires it to be sealed up; and anything outside of the commission cannot be received. 2 Rev. Stat. 335.

Duff, contra. The defendant is not in a position to take objection to the admissibility of the commissioners' return; it is too late to object to the form of the oath. He might have taken advantage of it at the trial or at the examination before the commissioners, but having appeared and cross-examined witnesses, he cannot object to the form of the oath now. The oath is not merely to answer the interrogatories, but to answer all questions put to him upon the interrogatories; and the cross-interrogatories are based upon them. The handwriting of the commissioners to the certificate on the bills of lading was sufficiently proved; and the exhibit being properly identified, the requirements of the Act are satisfied. The words "examination and deposition" do not include an exhibit. Dan. Ch. Pr. 1124. The bills of lading were sufficiently referred to in the evidence, the handwriting of the commissioners was proved, and they were as much identified as if they had been attached to the depositions. [CARTER, C.J. The signature of Fletcher, one of the commissioners, (a) 8 Dowl. 579. (b) 16 Q. B. 375.

to