20s. (11 &

Vict. c. 63,

s. 133).

12

Vict.

c. 63,
s. 135).
Yes
(see
Note
232 to
title
Va-

Every person so offending to be
deemed a rogue and vagabond,
and punishable as such (ss. 2, 3,
4), viz. imprisonment for not ex-
ceeding 3 calendar months and
hard labour (5 Geo. 4, c. 83, s. 4).
The costs of conviction may like- grants,
wise be ordered under s. 18 of post.)
the 11 & 12 Vict. c. 43, and in (Note
default of distress for them, an 136).
additional imprisonment of not
exceeding 1 calendar month, un-
less sooner paid (Id. s. 24, see
ante, pp. 105, 106).

tion for all or any of the purposes for which the local board of health are by the Public Health Act, 1848, authorized to make bye-laws (s. 9), and a copy receivable in evidence (s. 10). The penalties are to be proceeded for and recovered in the same way as is provided in the Public Health Act with respect to penalties imposed on offenders by the local board against their bye-laws (s. 10). See " title “ Health (Public) Act," 1848," and Note 111, ante, p. 200, as to who to prosecute.

(135 d) Incorporation Clause.] The clauses and provisions of the "Railways Clauses Consolidation Act, 1845," with respect to the recovery of penalties not specially provided for, are incorporated with this act (s. 15). The sections therefore here referred to will be found in tit. "Railways," post.

(136) Justices' Jurisdiction doubted.] It has been contended by some persons (vide Stone's Manual, 4th ed. p. 166) that justices have no jurisdiction to convict summarily for offences

OFFENCES within the 11 & 12 VICT. C. 43.

MALICIOUS INJURIES.

I. TO TREES, PLANTS, FENCES, &c.

II. TO ANY OTHER PROPERTY.

III. ACCESSORIES.

I. TO TREES, PLANTS, FENCES, &c.

Statute.

1. Trees, Shrubs, &c. to amount to 1s.] Unlawfully and maliciously cutting, 7 & 8 Geo. 4, breaking, barking, rooting up,

or

2. Otherwise destroying or damaging,

the whole or any part of any tree, sapling or shrub, or any
underwood wheresoever growing, the injury being to the amount
of 1s. [and not exceeding £1, s. 19].

[MEM.] Cutting, &c. trees, &c. in a park, pleasure ground, orchard
or avenue, or in any ground adjoining or belonging to a dwelling-
house, if exc. £1,—or elsewhere, if exc. £5,-is felony (s. 19). If
the damage amount to less than a shilling, the offender may be pro-
ceeded against under the 24 sect. (Offence 9); Reg. v. Dodson et
al., 9 Ad. & El. 704; 5 J. P. 404; but in Charter v. Greame (18
Law J. M. C. 73; 13 Jur. 208; 13 J. P. 232), the court inti-
mated an opinion that he could not be, for that section was not in-
tended to apply to trees at all. Vide, however, 16 J. P. 634.]
[Vide Offence 26, ante, p. 234, for having possession of trees, &c.
found upon a search warrant.]

3. Plants, Fruits, &c. in Gardens, &c.] Unlawfully and maliciously de-
stroying,

c. 30, s. 20 (Note 129, ante,

p. 229).

Id. s. 21.

or

4. Damaging with intent to destroy,

any plant, root, fruit or vegetable production growing in any
garden, orchard, nursery ground, hothouse, greenhouse or con-
servatory.

under the 42 Geo. 3, c. 119, s. 2, since the passing of the 46 Geo. 3, c. 148, s. 59, and the decision of Reg. v. Tuddenham (10 L. J. Rep. (N. S.) M. C. 163; 9 Dowl. P. C. 937) is cited; but it will be seen that the latter statute only prohibits proceedings for pecuniary penalties being taken otherwise than by action in the name of the attorney-general in the Court of Exchequer, and does not apply to the punishment as a rogue and vagabond, which the 42 Geo. 3, c. 119, s. 2, authorizes under the then Vagrant Act, 17 Geo. 2, c. 5, which, even though repealed by the 3 Geo. 4, c. 40, for other purposes, is still in force (except as altered by the present Vagrant Act, 5 Geo. 4, c. 83) with respect to proceedings under the 42 Geo. 3, c. 119 (vide 15 J. P. 712, 713); and the case cited is likewise inapplicable, for it was a conviction in 1841 under s. 5 of the 42 Geo. 3, c. 119, adjudging a pecuniary penalty, which section does not, like s. 2, impose a punishment and a pecuniary penalty as well, but only a penalty. In addition to the fact that the provisions of the old Vagrant Act, 17 Geo. 2, c. 5, are still in force, and that s. 3 of 42 Geo. 3, c. 119, refers to the punishment of a rogue and vagabond under it, the present Vagrant Act, 5 Geo. 4, c. 83, although by s. 1 it repealed all provisions theretofore made relative to rogues and vagabonds, &c. provides, in s. 21, "that wherever by any act or acts of parliament now in force it is directed that any person shall be punished as an idle and disorderly person, or as a rogue and vagabond, or as an

incorrigible rogue, for any offence specified in such act or acts, and not hereinbefore provided for by this act, in every such case, whether such person shall or shall not have committed any offence against this act, every such person shall be punished under the provisions, powers and directions of this act." The attorney-general was of opinion that justices had jurisdiction to punish offenders under the Vagrant Act, and a conviction took place at Leeds in January, 1850, of one Masser, under s. 2 of the 42 Geo. 3, c. 119, in a prosecution instituted by the Crown, and he was committed to the house of correction for seven days (see 14 L. T. 383).

(137) Apprehension without Warrant.] Offenders found committing any of the offences under this title may be apprehended immediately without a warrant, by any peace officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring justice of the peace to be dealt with according to law (s. 28).

(138) Vide Note 134, ante, p. 230, which is equally applicable under this title, where several offenders join in the commission of the same offence (s. 32).

(139) This is the same as Note 135, ante, p. 231 (s. 40). (140) This is the same as Note 131, ante, p. 229 (s. 38).

R

OFFENCES within the 11 & 12 VICT. c. 43.

Statute.

MALICIOUS INJURIES-continued.

I. TO TREES, PLANTS, FENCES, &c.-continued.

5. Roots or Plants elsewhere.] Unlawfully and maliciously destroying,

or

6. Damaging with intent to destroy,

any cultivated root or plant used for the food of man or beast,
or for medicine, or for distilling, or for dyeing, or for or in the
course of any manufacture, and growing in any land, open or
inclosed, not being a garden, orchard or nursery ground.

7 & 8 Geo. 4,
c. 30, s. 22
(Note 129,

ante, p. 229).

7. Fences, Stiles, Gates, &c.] Unlawfully and maliciously cutting, breaking, throwing down,

or

8. In anywise destroying,

any fence of any description whatsoever, or any wall, stile or
gate, or any part thereof respectively.

Id. s. 23.

II. TO ANY OTHER PROPERTY.

9. Wilfully or maliciously committing any damage, injury or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no remedy or punishment is by this act provided (Note 141).

[MEM. This section contains a proviso, that it shall not extend to any
case where the party trespassing 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. This proviso extends to the statute
generally (R. v. Thomas, MS. Q. B. H. 1841; Paley, 3rd ed. 57, and
see ante, pp. 19, 20). Malice against the owner of the property in
respect of which any offence is committed need not be proved (s. 25).]

Id. s. 24.

(141) Must be Damage.] A trespass, however wilful, unless some actual damage be done, is not within this section (Butler v. Turley, Moo. & M. 54; 2 C. & P. 585; Dewey v. White, M. & M. 56); but if there really be damage, the amount is immaterial; and therefore, where a person was convicted of doing damage to underwood to the amount of 6d., it was held to be sufficient within this section, although the 20th section, expressly applicable to underwood, requires the damage to be to the extent of 1s. (vide Mem. to Offences 1, 2). On the other hand, where the damage (in s. 24) exceeds £5, the justices, it is conceived, have no jurisdiction, although the complainant may be willing to reduce his claim to that amount (Stone's Manual, 5th edit. 249). The 24th section appears to apply entirely and

peal, and Penalty, &c.

to whom
payable.

Page, &c.

of Formulist.

Yes

(s. 38,

Note
140,

ante,

One.

Id.

1st Offence. Either impr. with or
without h. 1. for not more than 1
cal. m.;

Or else forfeit, over and above in-
jury, not exc. 20s.; and in default
of payment, the like impr. for not p. 241).
exc. 1 cal. m. unless sooner paid
(s. 22).
Subsequent Offence (Note 139, ante, p.
241). Impr. with h. 1. for nor exc. 6
cal.m. and, if a male, and convicted
before two justices, they may fur-
ther order whipping once or twice
pub. or priv. after 4 days from con-
viction (s. 22).

Forfeit a reasonable compensation Id.
for the damage, injury or spoil
committed, not exc. £5; in de-
fault of payment, impr. with or
without h. 1. for not exc. 2 cal. m.
unless sooner paid (s. 24).

If private property, damage to

party aggrieved (s. 24, Note 142).

No. 5,

p. 148.

exclusively to direct damage committed by the party complained against, and to have no reference whatever to damage indirectly caused by any act, however unlawful in itself (14 J. P. 30); nor to the acts of parties occasioning losses to others, not amounting strictly to "damage, injury or spoil," to the body of the property, nor rendering it of less value, for the penalty is "a reasonable compensation for the damage, &c." committed (see 16 J. P. 715). (142) Unless he be examined in proof of the offence, and in such case, or if public property, or wherein public right concerned, to be applied as a penalty, which (by s. 32) goes to the overseers.