tionnement fut pris et fixé par un juge en chambre. Sur motion de la Couronne que le cautionnement soit déclaré nul, et que le prisonnier soit ré-incarcéré: Jugé que le cautionnement était régulier et valide, DUVAL, J. C., CARON, BADGLEY et DRUMMOND, JJ. Contra MONK, J., qui était d'opinion que le cautionnement n'aurait dû être donné, fixé et pris que par la Cour, et non par un juge en chambre. (3 R. L., 439; 2 R. C., p. 106.) Law of Lower Canada. Felony.-Evidence.-Depositions taken on Oath before Trial on a criminal charge. New Trial. – Canadian Statute, 32 & 33 Vict., c. 29, s. 80.—Practice.—Leave to appeal in a criminal case. PRIVY COUNCIL, 18th March, 1873. On appeal from the Court of Queen's Bench for the Province of Quebec, Canada. Present Sir James William COLVILE, Sir Barnes PEACOCK The Lord Justice MELLISH, Sir Montague Edward SMITH, and Sir Robert Porrett COLLIER. OUR SOVEREIGN LADY THE QUEEN, appellant, and EDWARD COOTE, Respondent. According to the English law, introduced into Lower Canada at the time of the cession of Canada to England in 1763, and unaffected by subsequent Canadian or Imperial Statutes, the depositions on oath of a witness legally taken are admissible evidence against him, if he is subsequently tried on a criminal charge. The only exception is, in the case of answers to questions which he objected to when his evidence was taken as tending to criminate him, but which he has been impro perly compelled to answer. A was indicted for elony. At the trial the Crown put in evidence depositions sworn to by him, without being cautioned that what he so deposed to might be given in evidence against him, before Fire Commissioners empowered by the Quebec Statutes 31 Vict., c. 32, and 32 Vict.. c. 29, to investigate the origin of any Fires occurring in Quebec, and before any charge or accusation had been made against him, Held that the depositions were properly admitted as evidence against the Prisoner at the Trial. Semble-Chap. 77, s. 63, of the Consolitated Statutes of Canada, giving the Court of Queen's Bench power to direct a new trial, is repea led by the Canadian Statute, 32 & 33 Vict., c. 29, s. 80. On petition by the Attorney-General of the Province of Quebec, special leave to appeal granted from a judgment of the Queen's Bench, Quebec, on a case reserved in a Trial for Felony. In this case special leave to appeal was granted from a judgment of the Court of Queen's Bench of the Province of Quebec, Canada, on a case reserved for that Court by Mr Justice BADGLEY, under the powers of the Consolidated Statutes of Lower Canada, c. 77, ss. 57 and 58 (1) on a trial of the Respondent for Arson. The case so reserved by Mr Justice BADGLEY was as follows: "The prisoner, Edward CoOTE, was indicted for arson of a warehouse in his occupation, and belonging to Alexander Roy. The indictment contained four counts,-The first with intent to defraud the Scottish Provincial Insurance Company; second, to defraud the Royal Insurance Company; the third to defraud generally; and the fourth to injure generally; upon his plea of not guilty, he was tried before the Court of Queen's Bench, at the criminal term of the said Court, holden by me, at Montreal, in this present Month, before a competent jury empanelled in the usual manner, and after evidence adduced by the Crown and by the prisoner, was found guilty the jury returning a general verdict of guilty. In the course of the adduction of the evidence for the crown, two depositions made and sworn to by the prisoner, with his signature subscribed to each, taken by the Fire Commissioners (2) at their investigation into the cause and origin of the fire at his warehouse, before any charge or accusation against him or any other person had been made were produced in evidence against him, and which, after having been duly proved, were submitted to the jury as evidence against him, after the objection previously made by the prisoner to their production (1) By the Consolitated Statutes of Lower Canada, c. 77, s. 57, it is provided that "when any person has been convicted of any Felony at any Criminal Term of the Court of Queen's Bench, the Court before which the case has been tried, may, in its discretion, reserve any question of law which has arisen on the trial for the consideration of the Court of Queen's Bench on the appeal side thereof, and may thereupon postpone the judgment, until such question has been considered and decided by the said Court of Queen's Bench. By sect. 58," the said Court shall thereupon state, in a case, to be signed by the presiding Judge, the question or questions of law, with the special circumstances upon which the same have arisen. S.-S. 2: The said Court of Queen's Bench shall have full power and authority, at any sitting thereof on the appeal side, after the receipt of such case, to hear and finally determine any question therein, and thereupon to reverse, amend, or affirm any judgment which has been given on the indictment, on the trial whereof such question arose, or to avoid such judgment, and to order an entry to be made on the record, that in the judgment of the said Court of Queen's Bench the party convicted ought not to have been convicted, or to arrest the judgment, or to order the judgment to be given thereon at some other Criminal Term of the said Court, if no judgment has before that time been given, as the said Court of Queen's Bench is advised, or make such other order as justice requires." (2) The Fire Commissioners, before whom the depositions were taken, were appointed under the Statutes of the Provincial Legislature of Quebec, 31 Vict., c. 32, and 32 Vict., c. 29. In pursuance of those Statutes they were empowered to investigate the origin of any fires occuring in the cities of Quebec and Montreal, to compel the attendance of witnesses, and examine them on oath, and to commit to prison any witnesses refusing to answer without just cause. in evidence, and after his said objection had been overruled by me-after the conviction of the prisoner, and before sentence was pronounced by me thereon, he moved the court by two motions filed in court in the terms following:" The case then set out the two motions, of which the first is immaterial, as BADGLEY, J., rejected it, and reserved no question respecting it; the second was in the following terms: " Motion on behalf of Edward CoOTE, that judgment upon the said indictment, and upon a verdict of guilty thereon, rendered against him, be arrested, and that the said verdict be quashed and set aside and the said Edward CoOTE be relieved therefrom, for, among others, the following reasons: " A great many reasons were then set, the only ones material to the present appeal being, that the two depositions were inadmissible in evidence because the Fire Commissioners before whom they were taken had no authority to administer an oath, or take such depositions, and such depositions were not admissible as statements made by the prisoner, because they were not made freely and voluntarily and without compulsion or fear, and without the obligation of an oath. The case then stated the rejection of the first motion, and that the Judge, though himself considering the reasons given insufficient to support the second motion, yet, as doubt might be held by the Court of Queen's Bench as to the legal production of the deposition, reserved it, and held it over for decision with reference to the admission of the depositions by the Court of Queen's Bench. The reserved case came on for argument in the court of Queen's Bench, appeal side, before the Chief Justice DUVAL, and the Justices CARON, DRUMMOND, BADGLEY and MONK; and on the 15th of March, 1872, the Court gave judgment in the following terms: "After hearing Counsel as well on behalf of the prisoner as for the Crown, and due deliberation had, on the case transmitted to this Court from the Court of Queen's Bench, sitting on the Crown side at Montreal, it is considered adjudged, and finally determined by the Court now here, pursuant to the Statute in that behalf, that an entry be made on the Record to the effect, that in the opinion of this Court the production of the depositions made by the prisoner before the Fire Commissioners at Montreal was illegal, and, therefore, that the evidence adduced on the part of our Sovereign Lady the Queen does not justify the verdict, which is hereby quashed and set aside. But this Court considering that the conviction is declared to be bad from a cause not depending upon the merits of the case, does hereby order that the said prisoner, EDWARD COOTE, be tried anew on the Indictment found and now pending against him, as if no Trial had been had in the case; and that for the purpose of standing such new Trial he be bound over in sufficient recognizance to appear on the first day of the next ensuing term of the Court of Queen's Bench, sitting on the Crown side, at Montreal, and thereafter, from day to day, until duly discharged." From this judgment the Justices BADGLEY and MONK dissented. The prisoner was discharged on his recognizance to appear on a new Trial. And application made by the AttorneyGeneral for the Province of Quebec, to the Court of Queen's Bench, for leave to appeal to Her Majesty in Council from this judgment, was refused. A petition was then presented by the Attorney-General of Quebec to the Queen in Council praying for special leave to appeal from the above judgment. The petition was heard by the judicial Committee on the 30th of April, 1872. Sir R. PALMER, Q. C., and Mr H. M. BOMPAS, for the petitioner. Their Lordships granted the application; and by an Order in Council, dated the 10th of May. 1872, special leave to appeal from the judgment of the Court of Queen's Bench of the 15th of March, 1872, was granted. As no appearence was entered for the respondent, the appeal was heard ex-parte. Sir JOHN KARSLAKE, Q. C. (M. H. M. BOMPAS with him), for the Appellant: This case is governed by English Law. The Criminal Law of England was introduced into Canada at the time of the cession of Canada to England in the year 1763, and the Criminal Law of England at that time still continues in force, except so far as it has been altered by Canadian or Imperial Statutes applicable to Canada. Statutes of Quebec, 31 Vict., c. 32, ss 3, 4, 5, 6, 7 and 8. Our contention is, that the depositions of the prisoner were properly received in evidence by the Judge before whom the indictment was tried. The Fire Commissioners before whom the depositions were taken, had under the Provincial Statutes, 31 Vict., c. 32, and 32 Vict., c. 29, power to compel the attendance of witnesses, to examine them on oath and also to commit for contempt. Such depositions were admissible in evidence against the prisoner, although made on oath by him as a witness whose attendance might have been compelled, and without caution that his statement might be given. in evidence against him: Russell on Crimes, Vol. III, p. 418 [4th Ed.], where the cases are collected; Taylor on Evidence, Vol. I., p. 743 [3rd Ed.]; Roscoe's Criminal Evidence, p. 62 [7th Ed.]; Joy on Confess., pp. 62, 68; Reg. v. Garbett (1); Rex v. Lewis (2); Rex v. Haworth (3); Reg. v. Goldshede (1) Den. C. C., 236. (1); Reg. v. Sloggett (2); Reg. v. Chidley and Commins (3); Reg. v. Gillis (4). There was no substantial ground for moving an arrest of judgment, nor had the Court power to award a new trial. Chapter 77, s. 63, of the Consolidated Statutes of Lower Canada, gave the Court of Queen's Bench power to direct a new trial; but that Statute was repealed by a subsequent Statute, 32 & 33 Vict., c. 29, s. 80, which section contains no power authorizing the Court of Queen's Bench to grant a new trial in a criminal case. At the conclusion of Sir John Karslake's argument their Lordships intimated that, if necessary, they would call on M. BOMPAS. He was not called on, and judgment was now delivered by SIR ROBERT P. COLLIER : EDWARD COOTE, the respondent, was convicted of arson, subject to a question of law reserved by BADGLEY, J., (the judge who presided at the trial), for the consideration of the appeal side of the Court of Queen's Bench, in pursuance of c. 77, sect. 57 of the Consolitated Statutes of Lower Canada. The question reserved was, whether or not the prosecutor was entitled to read as evidence against the prisoner depositions made by him under the following circumstances :-An Act of the Quebec Legislature appointed officer named "Fire Marshals" for Quebec and Montreal respectively, with power to enquire into the cause and origin of fires occuring in those cities, and conferred upon each of them "all the powers of any judge of session, recorder or coroner, to summon before him and examine upon oath all persons whom he deemed capable of giving information or evidence touching or concerning such fire." These officers had also power, if the evidence adduced afforded reasonable ground for believing that the fire was kindled by design, to arrest any suspected person, and to proceed to an examination of the case and committal of the accused for trial in the same manner as a justice of the peace. Upon an enquiry held, in pursuance of this statute, as to the origin of a fire in a warehouse of which Coote was the occupier, he was examined on oath as a witness. No copy of his depositions accompanies the records, but their Lordships accept the following statement of BADGLEY, J., as to the circumstances under which they were taken: " Among the seve ral persons examined respecting that fire was Coote himself, upon two occasions, at an interval of three or four days bet (1) 1 C. & K., 657. (2) Dears. C. C., 656. (3) 8 Cox's C. C., 365. (4) 17 Ir. C. L. Rep., 512. |