justice shall think fit; and whosoever, having been twice convicted of any such offence (whether both or either of such convictions shall have taken place before or after the passing of this Act), shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping." (d)

The words of this statute are much larger than the words of the 9 Geo. 1, c. 22, s. 1, which were, "unlawfully and maliciously cut down or otherwise destroy any trees." But upon this clause it was held that cutting down apple trees was suffi cient, although the trees were not thereby totally destroyed.(e)

Upon an indictment under the 7 & 8 Geo. 4, c. 30, s. 19, for maliciously injuring trees to an amount exceeding £5, the amount of injury done to the trees can alone be taken into consideration, and not any consequential damage arising from such injury. The prisoner was indicted for feloniously injuring one ash tree, one elm tree, and 100 thorn shrubs growing in a certain hedge, thereby doing injury to an amount exceeding £5, and it appeared that the injury to the trees amounted to £1; but it would be necessary to stub up the old hedge and replant it; and the stubbing, quick wood, setting, and cleaning, and posts and rails to protect the new hedge, would cost £4 14s. 6d. It was objected that as the injury must be done in respect of growing trees, there was no evidence of such injury beyond one pound; and, upon a case reserved, it was held that the conviction was wrong, for it was not sufficient that the consequential injury should raise the amount of injury to £5.(ƒ)

In one case (e) it was also held that the act must be done from malice to the owner, but this is no longer necessary.(g)

An indictment for damaging apple trees growing in a garden should state the damage to be done unlawfully and maliciously," and it is not sufficient to state that it was done "feloniously." The prisoner was indicted for damaging some apple trees growing in a garden, and the indictment alleged that the damage was *1067] done * feloniously," but did not state that it was done "unlawfully and maliciously." Bosanquet, J.: "Where the statute creating an offence uses particular words, those words must be pursued in the indictment. In this case, unless the damage was done maliciously, there was no felony committed. I think this indictment is bad."(h)

It seems that there might be cases in which a party might come within the 7 & 8 Geo. 4, c. 30, s. 19, though the tree cut were growing upon land in his occupation as tenant. In an action against a magistrate for false imprisonment, it appeared that he had committed the plaintiff under that section for maliciously cutting a tree, growing on premises in his occupation, and it was contended that the defendant had no jurisdiction, because it appeared that the plaintiff cut the tree on premises in his own occupation; but Tindal, C. J., said, "I cannot accede to the proposition that the circumstance of a party's being the occupier of the premises on which the tree is cut necessarily takes a case out of the statute; suppose the trees excepted in a lease, the tenant would be a trespasser; and if liable in trespass, I am not prepared to say he might not be liable criminally."(i)

And all doubt on this subject is removed by sec. 59 of the new Act, which was introduced to meet this and other like cases.(j)

We have seen that it was held that young pear trees about seven feet high were "trees" within the meaning of the 7 & 8 Geo. 4, c. 29, s. 38, and not "plants" within sec. 42 of that Act; and that the word "adjoining" in the former section

(d) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 20, and is extended to Ireland. There was a similar clause, but confined to damage done between sunrise and sunset, in the 14 & 15 Vict. c. 92, s 3 (I.). As to hard labor, &c., see ante, p. 1022.

(e) Rex v. Taylor, R. & R. 373.

(g) See sec. 58 of the new Act, ante, p. 1018.

(f) Reg. v. Whiteman, Dears. C. C. 353.

(h) Rex v. Lewis, Gloucester Sum. Ass. 1830, Bosanquet, J.; MSS. C. S. G. See Rex v. Turner, R. & M. C. C. R. 239, ante, p. 1046.

(i) Mills v. Collett, 6 Bing. R. 85 (19 E. C. L. R.).

(j) Ante, p 1021.

CHAP. XLIX.] OF Destroying, &c., PLANTS, ROOTS, FRUITS, &c.

1067

denoted land absolutely contiguous and without anything intervening, and only referred to the word "dwelling-house."(k)

The statute also contains provisions as to principals in the second degree, as to accessories, and as to abettors in misdemeanors.(7)

The destruction of a wood, coppice, &c., by fire has been mentioned in a former chapter.(m)

*CHAPTER THE FORTY-NINTH.

[*1068

OF DESTROYING, ETC., PLANTS, ROOTS, FRUITS, AND VEGETABLE PRODUCTIONS.

By the 24 & 25 Vict. c. 97, s. 23, "whosoever shall unlawfully and maliciously destroy, or damage with intent to destroy, any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery ground, hothouse, greenhouse, or conservatory, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labor, for any term not exceeding six months, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding twenty pounds, as to the justice shall seem meet; and whosoever, having been convicted of any such offence, either against this or any former Act of Parliament, shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for the term of five(a) years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

Sec. 24. "Whosoever shall unlawfully and maliciously destroy, or damage 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 enclosed, not being a garden, orchard, or nursery ground, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labor, for any term not exceeding one month, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding twenty shillings as to the justice shall seem meet, and in default of payment thereof, together with the costs, if ordered, shall be committed as aforesaid for any term not exceeding one month, unless payment be sooner made; and whosoever, having been convicted of any such offence either against this or any former Act of Parliament, shall [*1069 afterwards commit any of the said offences in this section before mentioned, and shall be convicted thereof in like manner shall be committed to the common gaol or house of correction, there to be kept to hard labor for such term not exceeding six months as the convicting justice shall think fit."(c)

We have seen that clover was held to be a cultivated plant used for the food of beasts within the 7 & 8 Geo. 4, c. 29, s. 43.(d) But that it has been doubted whether grass growing in a field was a cultivated plant within the same clause.(e) (k) Rex v. Hodges, M. & M. 341, ante, p. 258. (m) Ante, p. 1063.

(1) Ante, p. 1021.
(a) 27 & 28 Vict. c. 47.

(b) As to the meaning of the terms "plant" and "vegetable production," see Rex v. Hodges, M. & M. 341, ante, p. 258, and Rex v. Fraser, R. & M. C. C. R. 419, ante, vol. 1, p.

997.

This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 21. There was a similar clause in the 14 & 15 Vict. c. 92, s. 3 (I.). As to hard labor, &c., see ante, p. 1022.

(c) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 22. There was a similar clause in the 14 & 15 Vict. c. 92, s. 3 (I.).

(d) Reg. v. Brumby, 3 C. & K. 315, ante, p. 260.

(e) Morris v. Wise, 2 F. & F. 51, ante, p. 260.

*1070]

*CHAPTER THE FIFTIETH.

OF CUTTING AND DESTROYING HOPBINDS.

By the 24 & 25 Vict. c. 97, s. 19, “whosoever shall unlawfully and maliciously cut or otherwise destroy any hopbinds growing on poles in any plantation of hops shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen and not less than five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

*1071]

*CHAPTER THE FIFTY-FIRST.

OF BREAKING DOWN, ETC., SEA BANKS, LOCKS, AND WORKS ON RIVERS, CANALS, ETC.

By the 24 & 25 Vict. c. 97, s. 30, "whosoever shall unlawfully and maliciously break down or cut down or otherwise damage or destroy any sea bank or sea wall, or the bank, dam, or wall of or belonging to any river, canal, drain, reservoir, pool, or marsh, whereby any land or building shall be or shall be in danger of being overflowed or damaged, or shall unlawfully and maliciously throw, break, or cut down, level, undermine, or otherwise destroy, any quay, wharf, jetty, lock, sluice, floodgate, weir, tunnel, towing-path, drain, watercourse, or other work belonging to any port, harbor, dock, or reservoir, or on or belonging to any navigable river or canal, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

Sec. 31. "Whosoever shall unlawfully and maliciously cut off, draw up, or remove any piles, chalk, or other materials fixed in the ground, and used for securing any sea bank or sea wall, or the bank, dam, or wall of any river, canal, drain, aqueduct, marsh, reservoir, pool, port, harbor, dock, quay, wharf, jetty, or lock, or shall unlawfully and maliciously open or draw up any floodgate or sluice, or do any other injury or mischief to any navigable river or canal, with intent and so as thereby to obstruct or prevent the carrying on, completing or maintaining the navigation thereof, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not less than five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(c)

(a) 27 & 28 Vict. c. 47.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 18, and is new in Ireland. As to hard labor, &c. see ante, p. 1022.

(a) 27 & 28 Vict. c. 47.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 12, and 9 Geo. 4, c. 56, s. 12 (I.). The words in italics are new; and in England the clause is new as far as it relates to any "dam, drain, reservoir, weir, tunnel, towing-path, and watercourse," which words are taken from the 9 Geo. 4, c. 56, s. 12 (I.) These additions are very important amendments, as they include cases where loss of life and great injury to property might ensue from such malicious acts. The Holmfirth 'reservoir might have been maliciously let off by cutting through its dam, and there are many similar reservoirs and pools, which might be caused to inundate large districts by the destruction of their dams. As to hard labor, &c., see ante, 1022.

(c) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 12, and 9 Geo. 4, c. 56, s. 13 (I.). The words in italics are introduced to extend the clause to protect the materials used to secure such dams of drains, &c. As to hard labor, &c., see ante, p. 1022.

*CHAPTER THE FIFTY-SECOND.

[*1072

OF DESTROYING THE DAMS OF FISH-PONDS, ETC., OR MILL-PONDS, AND OF PUTTING NOXIOUS MATERIALS INTO FISH-PONDS, ETC.

By the 24 & 25 Vict. c. 97, s. 32, "whosoever shall unlawfully and maliciously cut through, break down, or otherwise destroy the dam, floodgate, or sluice of any fish-pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or shall unlawfully and maliciously put any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish that may then be or that may thereafter be put therein, or shall unlawfully and maliciously cut through, break down, or otherwise destroy the dam or floodgate of any mill pond, reservoir, or pool, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years and not less than five(a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

In a case upon the 9 Geo. 1, c. 22, the words of which were, "if any person shall unlawfully and maliciously break down the head or mound of any fish-pond, whereby the fish shall be lost or destroyed," the judges thought that that provision applied only to cases of wanton and malicious mischief in cutting the head of a pond, and not to cases where it was used as the means of stealing the fish. (c)

Where an action was brought for maliciously charging the plaintiff with maliciously breaking down the dam of a fish-pond with intent to take the fish therein, it appeared that the plaintiff had become tenant to the defendant of a house and lands, together with the exclusive right of sporting over certain lands, and the plaintiff had cut down the dam of a fish-pond in these lands in order to take the fish, and disputes having arisen between the plaintiff and defendant, the former had caused an information to be laid against the latter for maliciously breaking down the dam under the 7 & 8 Geo. 4, c. 30, s 15, and it was contended that [*1073 *the agreement only authorized sporting in the usual and legitimate mode, and that the cutting down the dam was not the ordinary mode. Parke, B.: "Supposing it was an unsportsmanlike mode of fishing, and that the plaintiff had cut down the dam out of spite in consequence of the quarrel, still, if he did it by right, or under a supposition of right, it would not be within the Act, which means the doing of a wicked and unlawful act without color of right." And in delivering judgment, Parke, B., also said: "Supposing this to have been an unusual mode (of fishing), and not the mode in which sportsmen generally exercise their right of sporting, and supposing the plaintiff to have done this under the infiuence of malicious feelings to the defendant, from having had a quarrel with him; supposing that something has been done which would not have been done unless the plaintiff had been incited to do it by feelings of hostility to the defendant; granting all this to be so, is it possible for any man to say that the act of cutting this dam, to get the fish out of the pond, can come under the meaning of the Act of Parliament, which is directed against those who from malicious feelings destroy the property of others, and which makes it a transportable offence if any person breaks down the dam of a pond for the purpose of taking the fish therein?"(d)

(a) 27 & 28 Vict. c. 47.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 15, and 9 Geo. 4, c. 56, s. 16 (I.). Under the former enactments, if a man had destroyed the floodgate or sluice of a pond, or the dam of a reservoir or pool, he would not have been punishable. These defects are remedied by the words in italics. As to hard labor, &c., see ante, p. 1022.

(c) Rex v. Rose, R. & R. 10. The new statute seems clearly to meet this case.

(d) Michell v. Williams, 11 M. & W. 205. The term "malice" in its legal sense denotes a wrongful act, done intentionally, without just cause or excuse. See vol. 1, p. 668, note;

*1074]

*CHAPTER THE FIFTY-THIRD.

OF DESTROYING OR INJURING BRIDGES, TURNPIKE-GATES, ETC.

By the 24 & 25 Vict. c. 97, s. 33, "whosoever shall unlawfully and maliciously pull or throw down or in anywise destroy any bridge (whether over any stream of water or not), or any viaduct, or aqueduct, over or under which bridge, viaduct, or aqueduct any highway, railway, or canal shall pass, or do any injury with intent and so as thereby to render such bridge, viaduct, or aqueduct, or the highway, railway, or canal passing over or under the same, or any part thereof, dangerous or impassable, shall be guilty of felony; and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life, or for any term not less than five (a) years-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

Sec. 34. "Whosoever shall unlawfully and maliciously throw down, level, or otherwise destroy, in whole or in part, any turnpike-gate or toll-bar, or any wall, chain, rail, post, bar, or other fence belonging to any turnpike-gate or toll-bar, or set up or erected to prevent passengers passing by without paying any toll directed to be paid by any Act of Parliament relating thereto, or any house, building, or weighing engine erected for the better collection, ascertainment, or security of any such toll, shall be guilty of a misdemeanor."(c)

The malicious destruction or damaging of public bridges is said to be without doubt punishable as a misdemeanor at common law, being a nuisance to all the King's subjects. (d) But in a case of slight damage this might, perhaps, be questioned. With respect to wilful damage done to bridges, arches, walls, &c., erected by *the commissioners of turnpike-roads, pecuniary penalties, recoverable by summary conviction, are imposed by 3 Geo. 4, c. 126, s. 121, and 4 Geo. 4, c. 95, s. 72.

*1075]

There are, however, a great number of bridges within this kingdom which it was made felony to injure or destroy, by the enactments of particular statutes. In some instances the offence was made capital, as in the case of Westminster Bridge, by 9 Geo. 2, c. 29, s. 5. But the 1 Geo. 4, c. 116, repeals this provision of the Westminster Bridge Act, and with respect to similar provisions in other statutes it enacts, "that such parts of all former Acts relating to bridges as enact that if any person or persons shall wilfully and maliciously blow up, pull down, or destroy any bridge, or any part thereof, or attempt so to do, or unlawfully and without authority remove

and it is settled that such is its meaning in the Acts providing for the punishment of malicious injuries. See ante, p. 1018, et seq. The dicta of Parke, B., therefore, in this case, seem to be much too narrow.

(a) 27 & 28 Vict. c. 47.

(b) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 13, and 9 Geo. 4, c. 56, s. 14 (I.). So much doubt had existed as to what was a public bridge, or part of one, which a county was bound to repair, in Rex v. Oxfordshire, 1 B. & Ad. 289 (20 E. C. L. R.); Rex v. Oxfordshire, 1 B. & Ad. 297, and Reg. v. Derbyshire, 2 Q. B. 745 (42 E. C. L. R.), that the words "whether over any stream of water or not," were introduced to remove that doubt, and to extend this clause to all bridges.

The clause is also extended to viaducts and aqueducts, so as to protect all those gigantic structures which have sprung either out of the construction of railways and canals or from other causes.

The former clause was in terms confined to "public bridges;" this clause includes every bridge over or under which any highway passes. It is therefore confined to public bridges where no highway passes under them, but includes both public and private bridges where a highway passes under them. But in other cases any injury to a private bridge exceeding the amount of five pounds would bring the case within sec. 51, post, p. 1098, and if less than that sum, within sec. 52, post, p. 1098. As to hard labor, &c., see ante, p. 1022. (c) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 14, and 9 Geo. 4, c. 56, s. 15 (I.). The 14 & 15 Vict. c. 92, s. 9 (I.), makes the offences contained in this clause punishable summarily in Ireland. As to the punishment, see ante, vol. 1, p. 92.

(d) 2 East P. C. c. 22, s. 27, p. 1081.