of linen yarn with great force unto and upon the ground, &c., with intent to render the same useless; against the form, &c. After conviction a writ of error was brought, and the errors assigned were, that it did not appear by the count that the said warps were at the time of the damage goods in any stage of manufacture, or that they were *1083] prepared for being woven or manufactured into, or were employed in the weaving or manufacturing, any such goods, &c.; and it *was contended that the indictment did not state any offence within the statute, because the damaging warps was made an offence only where such warps had been prepared for or employed in spinning, &c., or otherwise manufacturing the goods mentioned in the previous part of the section; and that the indictment did not allege that the warps of linen were so prepared or employed. Lord Tenterden, C. J., in delivering the judgment of the court, said, "We are of opinion, on a careful examination of the statute, that it was not necessary to allege specifically in the count that the warps therein mentioned were prepared for or employed in carding, spinning, weaving, &c., or otherwise manufacturing goods. The third section of 7 & 8 Geo. 4, c. 30, consists of three branches. The first branch enacts, that if any person shall unlawfully and maliciously damage, with intent to destroy, any goods therein described, being in the loom, &c., he shall be guilty of felony. Now in an indictment for an offence against that enactment, it would be undoubtedly necessary to allege that the goods were at the time of the damage in the loom, &c., because it was not the intention of the legislature to make it an offence to destroy such goods wherever found, but to protect them only while they were in a course of manufacture. The same observation applies to the latter part of the second branch of the section, which makes it an offence to damage or break any loom prepared for or employed in manufacturing, &c.; it would not be sufficient in an indictment, framed upon that provision of the statute, to charge the mere destruction of a loom, without adding that it was one prepared or employed in some of the ways therein described, for the count then would be too general. But as to the damaging of any warp or shute of silk, woollen, or linen, the question may, on the words of the Act, admit of some doubt. The whole sentence is, 'If any person shall unlawfully and maliciously damage, &c., with intent to destroy, any warp, or shute of silk, woollen, linen, &c., or any loom, frame, &c., prepared for or employed in carding, spinning, weaving,' &c.; and the question is, if the words 'prepared for or employed,' &c., are to be considered as referring to all the preceding words, or to those only denoting the implements of manufacture. That must be ascertained by looking at the subject-matter of the enactment and the object which the legislature had in view. That object in the first branch of the section was, the protection of goods while in the course of manufacture; in the second, the protection of the warp or shute, and of the machinery and implements, when they were prepared for or employed in the production of goods. Now as to the latter, it is necessary, with a view to the limited purpose which the legislature had in view, that the concluding words should apply to them; but not so as to the warp, because a warp is a denomination of some kind of thread prepared to be woven and used in manufacture; it is in itself something prepared for manufacturing goods.' We were referred in the argument to former Acts of Parliament in pari materiâ which had been repealed, and it was said that, under some of those Acts, the word warp was so connected with the words importing preparation for manufacture, that a similar connection must be understood here, and, consequently, it was necessary that they should be so con*1084] nected in an indictment on the present clause. To the party *indicted that must, at all events, be immaterial, because the warp must be something already prepared for manufacture; and therefore the proof would be the same, whether the indictment contained such an allegation or not; but in the statute, 4 Geo. 4, c. 46, the word warp is used absolutely by itself, without reference to any word denoting preparation for manufacture, and without any qualification before or after. The words which follow, or to burn, break, &c., any loom, &c., prepared for or employed in manufacturing,' constitute a distinct branch of the sentence, and after them a new sentence commences. Upon this view of the two Acts of Parliament, and considering that the word warp is a well known denomination of an article which is in some way or other prepared for or employed in manufacture,

we are of opinion that it was not necessary to allege specifically in this case that the warp mentioned in the indictment was so prepared or employed."(e)

One count charged the prisoner with maliciously damaging certain cotton warps being in a stage and progress of manufacture, with intent to destroy and render them useless. Another count was similar, but applied only to one warp. A third count charged the prisoner with destroying a cotton warp with intent to destroy and render it useless. It appeared that some warps were sent in a cart by the manufacturers to a warp-sizer to be sized, and whilst they were in the cart on the way, one of them was destroyed by vitriol thrown on it. It was objected that the warp was not in any stage or progress of manufacture at the time it was destroyed; and therefore the two first counts were not proved:(f) and as to the third, the statute required the warp to be "prepared for or employed in carding," &c.; and this warp required "sizing" to enable it to be used in any manufacture. It was answered that the indictment need not allege that the warp was "prepared for," &c., (g) and that the warp was within the meaning of the clause, though it required "sizing." Alderson, B.: "The warp must be something altogether prepared for manufacture, and the proof must be of something completely prepared for manufacture. It may be that the third count is not bad for not stating the warp to be completely prepared for manufacture; but it is not sufficient, without proof, to support the want of that averment." Having consulted Coleridge, J., Alderson, B., said: "We have considered the question, and both agree that the words 'prepared for' and 'in process of manufacture' must be considered as referring to the warp. We are both agreed that the warp is not a warp unless it be prepared for or used in a certain process of manufacture." (After referring to Rex v. Ashton) "I should be of opinion, that in order to bring the case within the statute it will not do simply to prove any warp to have been damaged, except a warp damaged which was prepared for and in the process of manufacture of goods of this description. But as there may be some doubt as to the facts, I think it better to take the opinion of the jury, how far this was a warp prepared for, or in the process of the manufacture of goods; as until it was what is called 'sized,' it is my impression that it was not such a *warp, though called a warp in popular language. On these facts being found I will reserve the case." (h)

[*1085 One count charged the prisoner with maliciously cutting certain tackle, to wit, certain cords prepared for and employed in weaving; and another count with maliciously damaging the tackle with intent to destroy it. The prisoner was in the employment of a clothier. One day his loom was examined, and it was found the cords had been taken from the "lambs" and "treadles," and the "slay" (a frame into which a number of steel rods are inserted) disengaged. This was caused by the thrum having been cut. The thrum ought not to be severed when a piece of cloth is taken from the machine. It would have taken a man about three days to replace the loom in its proper state. The new yarn is fastened to the old thrum, the ends being united. The thrum is the end of the woollen chain or thread left in the working tools or harness to fasten on to the next piece of cloth, and is the connecting link between the fabric and the machine. The chain is the one part, the shute the other. The thrum was cut off between the harness and the slay. prisoner pulled one part of the thrum from another, and he tore it after he cut it. He took off the cords of the machine, of which there were between thirty and forty, by cutting some of them. He also cut off a small string which passed round the "marker," to regulate the size, and called the "reeveing string." The fastening of the threads to the thrum was the secret of the work. There was a different mode of tying the cords according to the work; the prisoner had his own tye; other workmen looked on and tried to get the secret. Every thread of the thrum is put through an eye in the "hevel," or tool, which has the effect of keeping them separate. There is a fresh thrum to every piece of work. The old thrum is cut

(e) Rex v. Ashton, 2 B. & Ad. 750 (22 E. C. L. R.).

(f) Nothing is said as to what became of this objection.

(g) Rex v. Ashton, supra.

The

(h) Reg. v. Clegg, 3 Cox C. C. 295. The prisoner was acquitted on the ground of mistaken identity.

VOL. II.-53

off, and goes with the finished work to the master. The cords are to raise the harness for the shuttle to move to and fro. In order to form the fresh thrum, it is not necessary to go through the process of threading the eyes of the "hevel;" but what the prisoner did made it necessary to thread the eye of every hevel. Williams, J., told the jury that what the prisoner appeared to have done was two things, cutting the thrum and cutting the cords. With reference to the question whether the cutting must have been done with intent to destroy or render useless, if the cords were cut maliciously, it was unnecessary to aver that the act was done with intent to destroy or render useless; for this simple reason, that, if actually cut, then, if done maliciously, it must be done with intent to destroy. If the prisoner committed the act thinking he had a right, or even a notion that he had a right, he would not be guilty; for that was not the offence charged. The question resolved itself into this: did the prisoner do it in anger and revenge to his employer, or from any supposed right to conceal his art. Although cutting the thrum was not the offence charged, it was material, as showing the object of the prisoner; for if he cut the thrum maliciously, that is a key to the cutting the cords.(i)

By the 24 & 25 Vict c. 97, s. 15, whosoever shall unlawfully and maliciously 1086*] cut, break, or destroy, or damage with intent to destroy or to render useless, any machine or engine, whether fixed or moveable, used or intended to be used for sowing, reaping, mowing, threshing, ploughing, or draining, or for performing any other agricultural operation, or any machine or engine, or any tool or implement, whether fixed or moveable, prepared for or employed in any manufacture whatsoever (except the manufacture of silk, woollen, linen. cotton, hair, mohair, or alpaca goods, or goods 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), 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(j) 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."(jj)

Upon an indictment for destroying a threshing machine it appeared that the prosecutor, in expectation of a mob coming to destroy his threshing machine, had himself taken it to pieces, and that the prisoners only broke the detached parts of it; but it was held that the offence was made out, although at the time when the machine was broken it had been taken to pieces, and was in different places, only requiring the carpenter to put the pieces together again.(k) So where the prisoner was indicted for destroying a threshing machine, and it appeared that it had been previously taken to pieces by the owner, by separating the arms and other parts of it, for the purpose of placing it in safety, but with a view to put it together again; and it was destroyed whilst in this disjointed state; it was decided, that the offence was within the statute of the 7 & 8 Geo. 4, c. 30, s. 4.(7) So where certain sideboards were wanting to the machine at the time it was destroyed, but which did not render it so defective as to prevent it altogether from working, though it would not work so effectually as if those boards had been made good; it was held, that it was still a threshing machine within the meaning of the statute.(m) So also where the owner had removed a wooden stage belonging to the machine, on which the man who fed the machine was accustomed to stand, and had also taken away the legs; and it appeared in evidence, that though the machine could not be conveniently worked without some stage for the man to stand on, yet that a chair, or table, or a

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

(i) Reg. v. Smith, 6 Cox C. C. 198. () This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 4, and 9 Geo. 4, c. 56, s. 4 (I.). The clause is extended to all agricultural machines or engines.

As to hard labor, &c., see ante, p. 1022.

(k) Rex v. Mackerel, 4 C. & P. 448 (19 E. C. L. R.), Park, J. A. J., Bolland, B., and Patteson, J.

(1) Rex v. Hutchins, 2 Deac. Cr. Dig. 1517, Read Sp. Com., Park, J. A. J., Bolland, B., and Patteson, J.

(m) Rex v. Bartlett, 2 Deac. Cr. Dig. 1517, Salisb. Sp. Com., Vaughan, B., Parke and Alderson, Js.

number of sheaves of corn, would do nearly as well, and that it could also be worked without the legs; it was held, that the machine was an entire one within the Act, notwithstanding the stage and legs were wanting.(n)

So where on an indictment for destroying a threshing machine, it appeared that the machine was worked by water, and that the prosecutor, expecting a mob would come to break it, had had it *taken to pieces, and had removed the pieces to a barn at the distance of a quarter of a mile, leaving no part of it [*1087 standing but the water-wheel and its axis and a brass joint, which was joined to the axis of the water-wheel, and that this water-wheel was broken by the prisoners. The water-wheel had been put up for the sole purpose of working the threshing machine, and had never been used for anything else, except sometimes to work a chaff-cutter, which was appended to the threshing machine; it was held that the wheel was part of the threshing machine, and that the damaging it was damaging a threshing machine within the meaning of the statute, and that it made no difference that the threshing machine was sometimes worked by horses when there was a scarcity of water.(0)

But where the prosecutor had not only taken the machine to pieces, but had broken the wheel before the mob came to destroy it, for fear of having it set on fire and endangering his premises; and it was proved that, without the wheel, the engine could not be worked; in this case it was held, that the remaining parts of the machine, which were destroyed by the mob, did not constitute a threshing machine within the meaning of the statute.(p)

Where, on an indictment for destroying a threshing machine, it appeared that the machine was broken by a mob, Patteson, J., allowed the witnesses to be asked whether many persons had not been compelled to join the mob against their will, and whether the mob did not compel each person to give one blow to each threshing machine they broke; and also whether, at the time when the prisoner and a witness called for the prisoner joined the mob they did not agree together to run away from the mob the first opportunity.(g)

A table with a hole in it for water, used in the manufacture of bricks, was held not to be a machine "prepared for or employed in any manufacture," within the 7 & 8 Geo. 4, c. 30, s. 4.(r)

The prisoner was indicted for damaging a machine employed in the manufacture of iron. The prosecutors were manufacturers of iron, and the prisoner was one of their workmen. Their engineer being at the door of the rolling mill engine-house, and within sight of the puddling furnace and squeezers, saw the prisoner coming down the race (an iron pathway on which the puddling balls are conveyed from the furnace to the squeezers) with a sledge-hammer, which he was drawing along with tongs towards the squeezers, the same way as if he was engaged in drawing a puddling ball. He put the sledge-hammer between the jaws of the squeezers, the engine being then in motion. There is a sort of step in the lower jaw of the squeezers between the narrow and the wide part, and the practice is to hold the puddling ball with the tongs in the wider part of the squeezers against the step, until, by the action of the squeezers, it is partially crushed, and then to remove it into the narrower part of the squeezers. By this method the strain on the engine (worked by *steam) which would result from forcing the balls at [*1088 once into the angle of the squeezers, is avoided. The prisoner put the hammer into the upper part of the squeezers, and immediately there was a loud report, as of a blow, shaking the building. The engineer called out, There, young man, you have done something now;" he made no reply; but took the hammer from the squeezers with the tongs. The engineer examined the squeezers, but perceived no mark. He then went into the squeezer's hole, and examined the carriage of the

(n) Rex v. Chubb, 2 Deac. Cr. Dig. 1518, Salisb. Sp. Com., Vaughan, B., and Parke, J. (0) Rex v. Fidler, 4 C. & P. 449 (19 E. C. L. R.), Park, J. A. J., Bolland, B., and Patteson, J.

(p) Rex v. West, 2 Deac. Cr. Dig. 1518, Salisb. Sp. Com., Alderson, J.

(q) Rex v. Crutchley, 5 C. & P. 133 (24 E. C. L. R.).

(r) Reg. v. Penny, Arch. C. L. 454; 15 Ed., Jervis, C. J., after consulting Lord Campbell, C. J.

spur-wheel of the engine and the rests; they were displaced; the silling also of the carriage was displaced. These injuries would not have occurred if the sledgehammer had not been put in. The connecting-rod was displaced and lifted up, but the engine was not so much displaced as to prevent the work from going on; it continued to roll puddling bars; no part of the machinery was broken. The oak silling and the brickwork under it had given way and sunk, and the carriage went down with it. The actual damage done to the squeezers was three shillings, and the total damage to the machine five shillings. The value of the whole machine was five thousand pounds. The millwright included the silling as part of the machine. If the silling had not given way, the probable damage would have been upwards of one thousand pounds. The sledge-hammer was fourteen or fifteen pounds weight. It was objected, 1st, that express malice must be proved, and there was no evidence that the prisoner knew what the consequence of his act would be; but Platt, B., held that everything wilfully done, if injurious, must be inferred to be done with malice. 2d, that there was no damage to any part of the machine; for the silling was no part of the machine, but only that part which was in motion. 3d, that there was no damage or injury done within the statute. But Platt, B., after consulting Wightman, J., held that the silling was to be considered a part of the machine, and that a dislocation or disarrangement of a machine was within the statute.(8)

An indictment under sec. 15 of the new Act must allege that the Act was done feloniously.(t)

The provisions contained in the 24 & 25 Vict. c. 97, relating to rioters destroying buildings and machinery, have been introduced in a former part of this work, together with the cases on the subject.(u)

Where an indictment contained counts founded on the 7 & 8 Geo. 4, c. 30, s. 8, for riotously demolishing certain machinery, and also counts founded on the third section for destroying certain loomis, and it was objected that the two sets of counts were improperly joined, as the same judgment could not be passed on both; Bayley, J., said, "I see no difficulty. I do not see that the prisoners will be under any disadvantage; but I will speak to the judges on the subject."(v)

*1089]

*CHAPTER THE FIFTY-SEVENTH.

OF BURNING AND DAMAGING SHIPS AND OTHER VESSELS, AND ARTICLES THEREUNTO BELONGING.

THE offence of unlawfully and maliciously setting fire to ships and other vessels was dealt with in a preceding chapter in the last edition, but is now introduced in this chapter. The former statutes on this subject contained several general provisions against the offences of maliciously damaging ships and other vessels, and doing certain acts tending to their immediate loss or destruction, and most of them are now repealed.

By the 24 & 25 Vict. c. 97, s. 42, "whosoever shall unlawfully and maliciously set fire to, cast away, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, 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

(8) Reg. v. Foster, 6 Cox C. C. 25. See Rex v. Tacey, ante, p. 1082.

(t) Reg. v. Gray, L. & C. 365. Another question raised in this case, but not determined, was whether either a patent plough of Bastall or an ordinary plough, or a scarifier, each being commonly in use in agriculture, is a machine for ploughing or performing any other agricultural operation, within sec. 15 of the new Act.

(u) See vol. 1, p. 382, et seq.

(v) Kershaw's case, 1 Lew. 218. It is not stated in the report how this case terminated. (a) 27 & 28 Vict. c. 47.