or take any works thereunto belonging, or in anywise direct or procure the same to be done, such offender or offenders, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as a felon, without benefit of clergy, shall from and after the passing of this Act be, and the same are hereby repealed."(e) *CHAPTER THE FIFTY-FOURTH. OF DESTROYING FENCES, WALLS, STILES, OR GATES. [*1076 By the 24 & 25 Vict. c. 97, s. 25, "whosoever shall unlawfully and maliciously cut, break, throw down, or in anywise destroy any fence of any description whatsoever, or any wall, stile, or gate, or any part thereof respectively, shall, on conviction thereof before a justice of the peace, for the first offence forfeit and pay, over and above the amount of the injury done, such sum of money not exceeding five 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, 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 twelve months as the convicting justice shall think fit."(a) Where the prisoner was found ferreting rabbits in a hedge, and he had a dog with him, which had done some slight damage to the hedge in two or three places by breaking through it; Parke, B., held that the injury done to the hedge by the dog was not an offence within the 7 & 8 Geo. 4, c. 30, s. 23, and said, "to constitute an offence under that Act, the injury done must be unlawful and malicious; it must be a wanton act of cutting or the like, with the object of doing damage to the thing injured. Here there was no spiteful object in damaging the fence; it was done merely in prosecution of the intention to kill the rabbits."(b) *CHAPTER THE FIFTY-FIFTH. [*1077 OF SETTING FIRE TO, DESTROYING, AND DAMAGING MINES AND MINE-ENGINES. By the 24 & 25 Vict. c. 97, s. 26, "whosoever shall unlawfully and maliciously set fire to any mine of coal, cannel coal, anthracite, or other mineral fuel, 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. 27. "Whosoever shall unlawfully and maliciously by any overt act attempt (e) See the Westminster Bridge Act, 16 & 17 Vict. c. 46, s. 14. (a) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 23. There was a similar clause in the 14 & 15 Vict. c. 92, s. 3 (I.). (b) Reg. v. Prestney, 3 Cox C. C. 505. A very much sounder ground for this decision would have been that the dog acted on his own impulse, and that there was no evidence that he acted on the instigation of the prisoner, and therefore the act was not the wilful, and still less the malicious, act of the prisoner. See my note in Michell v. . Williams, ante, p. 1073, as to the meaning of "malice." (a) 27 & 28 Vict. c. 47. (b) This clause is taken from the 7 Will. 4 & 1 Vict. c. 89, s. 9, and 9 & 10 Vict. c. 25, s. 9, and extended so as to include anthracite and other mineral fuel. As to hard labor, &c., see ante, p. 1022. to set fire to any mine, under such circumstances that, if the mine were thereby set fire to, the offender would be guilty of felony, 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(e) 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) Sec. 28. "Whosoever shall unlawfully and maliciously cause any water to be conveyed or run into any mine, or into any subterraneous passage communicating therewith, with intent thereby to destroy or damage such mine, or to hinder or delay the working thereof, or shall with the like intent unlawfully and maliciously pull down, fill up, or obstruct, or damage with intent to destroy, obstruct, or render useless, any airway, waterway, drain, pit, level, or shaft of or belonging to any mine, 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(e) 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: Provided that this provision shall not extend to any damage committed under ground by any owner of any adjoining mine in *working the same, or by any person duly *10781 employed in such working."(d) Sec. 29. Whosoever shall unlawfully and maliciously pull down or destroy, or damage with intent to destroy, or render useless, any steam-engine or other engine for sinking, draining, ventilating, or working, or for in anywise assisting in sinking, draining, ventilating, or working any mine, or any appliance or apparatus in connection with any such steam or other engine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, wagonway, or trunk for conveying minerals from any mine, whether such engine, staith, building, erection, bridge, wagonway, or trunk be completed or in an unfinished state, or shall unlawfully and maliciously stop, obstruct, or hinder the working of any such steam or other engine, or of any such appliance or apparatus as aforesaid, with intent thereby to destroy or damage any mine, or to hinder, obstruct, or delay the working thereof, or shall unlawfully and maliciously wholly or partially cut through, sever, break, or unfasten, or damage with intent to destroy or render useless, any rope, chain, or tackle, of whatsoever material the same shall be made, used in any mine, or in or upon any inclined plane, railway, or other way, or other work whatsoever, in any wise belonging or appertaining to or connected with or employed in any mine or the working or the business 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(e) 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."(f) The prisoner was convicted of maliciously causing water to be conveyed into a mine, which was laid in one count as the mine of John Pickering and others, his partners; in another of John Dean Case; and in a third of Robert Roberts. The offence was committed on the 21st of May. John Pickering and his two brothers were lessees of the mine, and worked it till the 11th of May. They had borrowed £20,000 of the North and South Wales Bank. On the 11th of May, Roberts, acting for the bank, took possession of the mine; but it did not appear whether, in (c) This clause is taken from the 9 & 10 Vict, c. 25, s. 7. As to the words in italics, see the note to sec. 7, ante, p. 1030. As to hard labor, &c., see ante, p. 1022. (d) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 6, and 9 Geo. 4, c. 56, s. 7 (I.). The words in italics are new. As to hard labor, &c., see ante, p. 1022. (e) 27 & 28 Vict. c. 47. (f) This clause is framed from the 7 & 8 Geo. 4, c. 30, s. 7; 9 Geo. 4, c. 56, s. 8 (I.); and 23 & 24 Vict. c. 29, s. 1, with the additions in italics. As to hard labor, &c., see ante, p. 1022. pursuance of any deed or judgment, the name upon the carts was altered from Pickering to Robert Roberts, and from that time the mine was worked by him. Roberts stated that he was put in possession by Mallaby, as the attorney for the bank; and he explained that to be as attorney for John Dean Case, who, he said, was trustee for the company, and being asked whether by deed, he answered in the affirmative. He had ever since worked the mine for the benefit of Case. It was objected that the first count failed, as the Pickerings had given up possession. As to Case, he was merely the agent or factor of the bank, and there was no evidence that he was a shareholder. And as to Roberts, *he was merely agent or servant, and the property ought to have been laid in the registered officer of the banking company; but the judges, upon a case reserved, were unanimously of opinion, that the conviction was right. (e) [*1079 We have seen that where one of the owners of adjoining mines, asserting that an airway belongs to him, directs his workmen to stop it up, and they acting bonâ fide, and believing that he has a right to give such an order, do so, they are not guilty of felony for stopping up the airway, even though the master knew he had no right to it. But if any of the work men knew that the stopping of the airway was a malicious act of his master, such workman would be guilty of felony.(ƒ) If a steam-engine be set in motion without any machinery attached to it, with intent to damage it or render it useless, the case is within the statute. Upon an indictment for maliciously damaging a steam-engine with intent, as charged in one count, to destroy, as charged in another, to render it useless, it appeared that the steam-engine was used to bring up coals from the shaft of one mine, and water from another, and that it was stopped and locked up in the evening, and that the prisoners in the night got into the engine-house and set the engine going, and from its having no machinery attached to it, the engine worked with greater velocity, and the wheels were some of them thrown out of cog, so that the engine was damaged to the amount of £10, and would have been injured to a much greater extent if the mischief had not been discovered and the engine stopped. Gurney, B., left it to the jury to say whether the intent of the prisoners was to destroy the engine or to render it useless; and held that if the prisoners had either of those intents the case came within the provisions of the statute.(g) Damaging a drum moved by a steam-engine is not damaging the steam-engine, but damaging a scaffolding placed across the shaft of a mine, in order to work a level, is damaging an "erection" "used in conducting the business of a mine." Upon an indictment founded on the 7 & 8 Geo. 4, c. 30, s. 7, containing counts for damaging an engine employed in working a mine with intent to destroy it, and for damaging a certain erection used in the working a mine, with intent to destroy it, it appeared that a coal mine was worked by a steam-engine, which caused a cylinder, called a drum, to revolve and take up the rope as the coal was drawn from the mine. At the other end of the rope was a heavy weight, called a bull, which the prisoners threw into the shaft of the mine, and by the sudden jerk caused the drum to be strained and injured. The bottom of the shaft was filled with water, and the owner of the mine had caused a scaffold to be erected at some *distance above the [*1080 bottom of the mine, for the purpose of working a vein of coal that was on a level with the scaffold, and the prisoners had thrown a sort of wagon, called a corve, down the shaft, whereby the scaffold was much injured. It was objected, first, that as the drum was no part of the steam-engine, the counts charging the damaging the steam-engine could not be supported; secondly, that the scaffolding was not an "erection" within the meaning of the 7 & 8 Geo. 4, c. 30, s. 7, as the word erection," being used in conjunction with the words "staith or building," must be (e) Reg. v. Jones, 2 M. C. C. R. 293; 1 C. & K. 181 (47 E. C. L. R.). The ground of decision is not stated, but probably the judges thought the possession of Roberts quite sufficient against a wrong-doer. In the report of C. & K., Parke, B., said, "It appears that Mr. Case was in possession by his servant, Mr. Roberts; but there is nothing to take the property out of the first lessees." And Lord Abinger, C. B., said, "It appears that the mine is worked on account of Mr. Case; but I should think that Mr. Roberts having his name on the carts would be some evidence at least that he was working the mine." (f) Reg. v. James, 8 C. & P. 131 (34 E. C. L. R.), Lord Abinger, C. B., ante, p. 1020. (g) Reg. v. Norris, 9 C. & P. 241 (38 E. C. L. R.). See Rex v. Tracy, post, p. 1082. taken to mean an erection ejusdem generis; and it was held that the damaging the drum did not support the counts charging the damaging the steam-engine: but it was held that the scaffolding was an erection within the meaning of the statute; the word "erection" being clearly meant to denote something different from a building.(h) In an action against a hundred to recover compensation for the felonious demolition by rioters of a certain erection of the plaintiffs' used in conducting the business of a mine, it appeared that a year after they had begun to work the mine, they took the lease of a slag bed and a pool adjoining it at a distance of half a mile from the mine. The slag bed consisted of heaps of refuse ore, and a process had been discovered for extracting ore from the slag. Washing the slag was an important part of this process, and to supply the pool with water for washing the slag the plaintiffs diverted thereto a stream of water by means of a wooden trough erected upon piles. The trough did not approach the mine nearer than half a mile. The water supplied through this trough was at first used in washing the slag, and for no other purpose; but subsequently, and up to the time of the injury complained of, it had been regularly used in washing the ore gotten from the mine. The jury found that the trough was used in conducting the business of the mine, and it was held that as the jury had so found, the only question of law was whether such a trunk could be so used. "The business of a mine was not merely to get the rough ore from the bowels of the mine, but to produce the ore itself separate from the earth which is brought up with it,"(i) and "includes all that is done about the mine towards preparing the ore in a marketable state; and all erections used for this purpose. or as places of deposit for gunpowder, candles, and other mining materials, are within the protection of the statute."() The ore is not brought up by itself, but together with earth and other matters attached to it, which must be separated from it to make what is brought up ore. This trunk was used in the process of such separation, and that separation is part of the business of the mine, and therefore the trunk was an erection used in conducting the business of a mine within the 7 & 8 Geo, 4, c. 31, s. 2.(k) *1081] *CHAPTER THE FIFTY-SIXTH. OF DESTROYING AND DAMAGING ARTICLES IN A COURSE OF MANUFACTURE, AND OF DESTROYING ETC., IMPLEMENTS AND MACHINERY. By the 24 & 25 Vict. c. 97, s. 14, "whosoever shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or to render useless, any goods or article of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or any framework-knitted piece, stocking. hose, or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process, or progress of manufacture, or shall unlawfully and maliciously cut, break, or destroy. or damage with intent to destroy or to render useless, any warp or shute of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or shall unlawfully and maliciously cut, break, or destroy, or damage with intent to destroy or render useless, any loom, frame, machine, engine, rack, tackle, tool, or implement, whether fixed or moveable, prepared for or employed in carding, spinning, throwing, weaving, (h) Reg. v. Whittingham, 9 C. & P. 234 (38 E. C. L. R.), Patteson, J. (k) Barwell v. The Hundred of Winterstoke, 14 Q B. 704 (68 E. C. L. R.). The court agreed that the question was the same as if it had arisen on an indictment for injuring the trunk. fulling, shearing, or otherwise manufacturing or preparing any such goods or articles, or shall by force enter into any house, shop, building, or place, with intent to commit any of the offences in this section 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 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."(aa) Upon an indictment under the 28 Geo. 3, c. 55, s. 4 (now repealed), for maliciously damaging a frame used for making stockings, it appeared that the prisoner unscrewed, unfastened, and carried away a part, called the half-jack, from two frames used for the making of stockings. The half-jack is a piece of iron, which is an essential part of the frame. and when taken out the frame is rendered useless; but it may be taken out and again replaced without injury to the frame, and is sometimes so treated when the frame is taken to pieces to be cleaned. Most of the other parts of the frame may in like manner be taken out and *replaced. The frames [*1082 in this case were not otherwise injured than by taking away the half-jacks. It was objected that this removal of the half-jack was not a damaging of the frame within the statute, which it was contended applied only to cases of breaking, bending, or straining some part of the frame, and not to the removal of a part, though that part might be an essential part. But, upon a case reserved, the judges were unanimously of opinion that the taking out and carrying away the half-jack was a damaging the frame within the meaning of the 28 Geo. 3, as it made the frame imperfect and inoperative.(b) The 22 Geo. 3, c. 40, s 1, made it a capital felony to break into any house, &c., with intent to destroy "any serge or other woollen goods in the loom, or any tools employed in the making thereof," and it was held that destroying part of a loom did not come within the meaning of that statute.(c) The first count charged the prisoners with maliciously damaging 100 pieces of worsted stuff, "in a certain process of manufacture," with intent to destroy the same. Other counts stated the goods to be in "a certain stage of manufacture," and others stated them to be "in the progress of manufacture." The prosecutors were dyers, and received the stuffs from the manufacturer after the texture was complete, but while they were still in an unmarketable state. The stuffs which were damaged by the prisoners were, at that time, upon rollers, immersed in liquid, and in the actual process of being dyed; and the injury was done by throwing deleterious ingredients upon the stuffs themselves, and into the liquid in which they were immersed. For the prisoners it was contended, that as the article damaged was at the time of the damage being done in a complete state, so far as the manufacturing and texture were concerned, and only required dyeing to fit it for the market, the case did not come within the words of the Act. For the prosecution it was submitted, that the legislature could not have intended to withdraw the protection of the Act, until the manufacture was so complete that the articles were fit for immediate sale. Coleridge, J. (after consulting with Parke, B.), said that they were both of opinion that the true construction of the Act was that contended for by the prosecutor; he therefore overruled the objection, and he referred to the provision in the same section relating to goods on the rack or tenters," as showing that the Act contemplated injuries to goods subsequent to the completion of the texture.(d) The indictment stated that the prisoner six warps of linen yarn of the goods of A. B. unlawfully, maliciously, and feloniously did damage by throwing the said warps (a) 27 & 28 Vict. c. 47. (aa) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 3, and 9 Geo. 4, c. 56, s. 3 (I.). The former enactments are extended to articles made of hair or alpaca. The words "or shall unlawfully, &c.," are repeated in order to obviate a doubt, which existed on the construction of the clause without them. See Rex v. Ashton, 2 B. & Ad. 750 (22 E. C. L. R.), post, 1084. As to hard labor, &c., see ante, p. 1022. (b) Rex v. Tacey, R. & R. 452. (c) Rex v. Hill, R. & R. 483 The repealed statute was framed to meet this case. (d) Rex v. Woodhead, 1 M. & Rob. 549. |