counsel objected that the indictment was bad, because the value of the articles damaged was ascribed to them collectively and not individually. But upon a case reserved, the indictment was held good, and Bovill, C. J., said: "We are all of opinion that it was not material to allege the value of the several articles in the indictment, but only that the amount of the damage exceeded five pounds."

Defendant was indicted for unlawfully and maliciously committing damage upon a window, in the house of the prosecutor, against this section. Defendant who had been fighting with other persons in the street after being turned out of a public house, went across the street, and picked up a stone, which he threw at them. The stone missed them, passed over their heads, and broke a window in the house. The jury found that he intended to hit one or more of the persons he had been fighting with, and did not intend to break the window: held, that upon this finding the prisoner was not guilty of the charge within this section: to support a conviction of this nature, there must be a wilful and intentional doing of an unlawful act in relation to the property damaged.— Reg. vs. Pembliton, 12 Cox, 607.

MALICIOUS INJURIES NOT BEFORE PROVIDED FOR, NOT EXCEEDING TWENTY DOLLARS.

Sect. 60.-Whosoever unlawfully or maliciously commits any damage, injury or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is herein before provided, shall, on conviction thereof before a justice of the Peace, forfeit and pay such sum of money not exceeding twenty dollars as to the Justice seems meet, and also such further sum of money as appears to the Justice to be a reasonable compensation for the damage, injury

or spoil so committed, not exceeding the sum of twenty dollars; which last mentioned sum of money shall, in the case of private property, be paid to the party aggrieved; and in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in the same manner as every penalty imposed by a Justice of the Peace under this Act; and if such sum of money, together with the costs if ordered, are not paid, either immediately after the conviction, or within such period as the Justice shall at the time of the conviction appoint, the Justice may commit the offender to the common gaol or other place of confinement there to be imprisoned only, or to be imprisoned and kept to hard labour, as the Justice thinks fit, for any term not exceeding two months, unless such sum and costs be sooner paid; provided that nothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of, nor to any trespass, not being wilful and malicious, committed in hunting, fishing or in the pursuit of game, but every such trespass shall be punishable in the same manner as if this Act had not been passed.-24-25 Vict., ch. 97, s. 52, Imp.

Sect. 61. The provisions in the last preceding section contained shall extend to any person who unlawfully or maliciously commits any injury to any tree, sapling, shrub, or underwood, for which no punishment is hereinbefore provided.-24-25 Vict., ch. 97, s. 53, Imp.

In these two clauses it ought to be "unlawfully and maliciously.

In the English Act the word wilfully stands in lieu of unlawfully, in these two clauses.

As to summary convictions under this Act, see post,

sect. 75.

W. was summoned before the Justices under this clause. He was in the employment of D., and by his order, he forcibly entered a garden belonging to and in the occupation of F. accompanied by thirteen other men, and cut a small ditch, from forty to fifty yards in length, through the soil. F. and his predecessors in title had occupied the garden for thirty-six years, and during the whole time, there had been no ditch upon the site of part of that cut by D. For the defence D. was called, who stated that, fifteen years before, there had been an open ditch in the land, which received the drainage from the highway, and that he gave directions for the ditch to be cut by W. in the exercise of what he considered to be a public right. The Justices found that W. had no fair and reasonable supposition that he had a right to do the act complained of, and accordingly convicted him: held, that by the express words of the section and proviso, the jurisdiction of the justices was not ousted by the mere bonâ fide belief of W. that his act was legal, and that there was evidence on which they might properly find that he did not act under the fair and reasonable supposition required by the Statute.-White vs. Feast, 7 L. R. Q. B. 353.

A conviction by Justices under sect. 52, ch. 97, 24-25 Vict., cannot be brought up by certiorari on the ground that they had no jurisdiction inasmuch as the defendant had set up a bonâ fide claim of right, but the exemption is impliedly restricted to cases where the Justices are reasonably satisfied of the fair and reasonable character of the claim.-Reg. vs. Essex, Reg. vs. Mussett, 26, L. J., N. S. 429.

UU

MAKING GUNPOWDER TO COMMIT OFFENCES, SEARCHING FOR THE SAME.

Sect. 62.-Whosoever makes or manufactures, or knowingly has in his possession any gunpowder or other explosive substance, or any dangerous or noxious thing, or any machine, engine, instrument or thing with intent thereby, or by means thereof to commit, or for the purpose of enabling any other person to commit any of the felonies in this Act mentioned, is guilty of a misdemeanor, and shall be liable to be imprisoned in any gaol or place of confinement, for any term less than two years, with or without hard labour, and with or without solitary confinement.-24-25 Vict., ch. 97, s. 54. Imp.

Sect. 63.-Any Justice of the Peace of any district, county or place, in which any machine, engine, implement or thing, or any gunpowder or other explosive, dangerous or noxious substance is suspected to be made, kept or carried, for the purpose of being used for commiting any of the felonies in this Act mentioned, upon reasonable cause assigned upon oath by any person, may issue a warrant under his hand and seal, for searching in the day time any house, mill, magazine, storehouse, warehouse, shop, cellar, yard, wharf or other place, or any carriage, waggon, cart, ship, boat or vessel, in which the same is suspected to be made, kept or carried for such purpose as hereinbefore mentioned; and every person acting in the execution of any such warrant may seize any gunpowder, explosive substance, or any dangerous or noxious thing, or any machine, engine or instrument or thing which he has good cause to suspect is intended to be used in committing or enabling any other person to commit any offence against this Act, and with all convenient speed after the seizure shall remove the same to such proper place as he thinks fit, and detain the same until ordered by a judge of one of Her Majesty's Superior Courts of criminal juris

diction to restore it to the person who may claim the same. -24-25 Vict., ch. 97, s. 55, Imp.

The words in italics are new; in the English Act, the same powers and protection are given to any person acting in the execution of any such warrant as are given to persons searching for unlawful quantities of gunpowder, in virtue of 23-24 Vict., ch. 139, Imp.

Sect. 64.-The searcher or seizer shall not be liable to any suit for such detainer, or for any loss of or damage which may happen to the property, other than by the wilful act or neglect of himself or of the persons whom he intrusts with the keeping thereof.

This clause is not in the English Act.

Sect. 65.-Any gunpowder, explosive substance or dangerous or noxious thing, or any machine, engine, instrument or thing intended to be used in committing or enabling any other person to commit any offence against this Act, and seized and taken possession of under the provisions hereof, shall, in the event of the person in whose possession the same may be found, or of the owner thereof being convicted for any offence against this Act, be forfeited, and the same shall be sold under the direction of the Court before which any such person is convicted, and the proceeds thereof shall belong to the Province in which the offender is convicted, and shall be paid to the chief financial officer thereof for the use of such Province.

This clause is not in the English Act.

See remarks under sections 66, 67 and 68 of ch. 20, 32– 33 Vict., an Act concerning offences against the person.

These sections provide for the making, etc., of gunpowder intended to be used to commit any of the felonies in this Act, or in any other Act mentioned; so that their re-enactment in ch. 22 was unnecessary.