Note. 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 the note, ante, p. 115.

Injuries to Railway Carriages and Telegraphs.

throw any

engine, &c.

35. Whosoever shall unlawfully and maliciously Placing put, place, cast, or throw upon or across any railway wood, &c., on railway any wood, stone, or other matter or thing, or shall with inten unlawfully and maliciously take up, remove, or dis- to obstruct place any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the cases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using such railway, 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 three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and, if a male under the age of sixteen, with or without whipping.

Note.-This clause is taken from the 14 & 15 Vict. c. 19, s. 6, and "unlawfully" is substituted for "wilfully" throughout.

As to hard labour, &c., see ante, p. 5.

36. Whosoever, by any unlawful act, or by any Obstructwilful omission or neglect, shall obstruct or cause ing engines to be obstructed any engine or carriage using any

or carriages

on rail

ways.

railway, or shall aid or assist therein, 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 labour.

Injuries to

magnetic

Note.-This clause is taken from the 3 & 4 Vict. c. 97, s. 15.

See the note to s. 34 of the Offences against the Person Act, ante, p. 62.

As to hard labour, &c., see ante, p. 5.

37. Whosoever shall unlawfully and maliciously electric or cut, break, throw down, destroy, injure, or remove any telegraphs. battery, machinery, wire, cable, post, or other matter or thing whatsoever, being part of or being used or employed in or about any electric or magnetic telegraph, or in the working thereof, or shall unlawfully and maliciously prevent or obstruct in any manner whatsoever the sending, conveyance, or delivery of any communication by any such telegraph, 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 labour: Provided that if it shall appear to any justice, on the examination of any person charged with any offence against this section, that it is not expedient to the ends of justice that the same should be prosecuted by indictment, the justice may proceed summarily to hear and determine the same, and the offender shall, on conviction thereof, 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 labour, for any term not exceeding three months, or else shall forfeit and pay such sum of money not exceeding ten pounds as to the justice shall seem meet.

Note.-This clause is new. It consists of two branches. The first provides against injuries to any battery or other thing used in electric

telegraphs. The second provides against the
preventing or obstructing communications by
such telegraphs: and these offences are made
misdemeanors; but as it was foreseen that
there may be malicious injuries, which would
fall within the first part of this clause, of too
trifling a character to deserve so severe a
punishment, it was thought fit to empower
any justice, who is of opinion that it is not
expedient to the ends of justice that the offence
should be prosecuted by indictment, summarily
to convict the offender.

As to hard labour, &c., see ante, p. 5.

38. Whosoever shall unlawfully and maliciously, by Attempt to any overt act, attempt to commit any of the offences injure such in the last preceding section mentioned, shall, on contelegraphs. viction 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 labour, for any term not exceeding three months, or else shall forfeit and pay such sum of money not exceeding ten pounds as to the justice shall seem meet.

Note. This clause is new, and provides against attempts to commit the offences created by the last section.'

Injuries to Works of Art.

churches,

39. Whosoever shall unlawfully and maliciously Destroying destroy or damage any book, manuscript, picture, or damaging works print, statue, bust, or vase, or any other article or of art in thing kept for the purposes of art, science, or litera- museums, ture, or as an object of curiosity, in any museum, &c., or in gallery, cabinet, library, or other repository, which public museum, gallery, cabinet, library, or other repository places. is either at all times or from time to time open for the admission of the public or of any considerable number of persons to view the same, either by the permission of the proprietor thereof or by the pay

ment of money before entering the same, or any picture, statue, monument, or other memorial of the dead, painted glass, or other ornament or work of art, in any church, chapel, meeting-house, or other place of divine worship, or in any building belonging to the Queen, or to any county, riding, division, city, borough, poor law union, parish, or place, or to any university, or college or hall of any university, or to any inn of court, or in any street, square, churchyard, burial ground, public garden or ground, or any statue or monument exposed to public view, or any ornament, railing, or fence surrounding such statue or monument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding six months, with or without hard labour, and, if a male under the age of sixteen years, with or without whipping: Provided that nothing herein contained shall be deemed to affect the right of any person to recover, by action at law, damages for the injury so committed.

Note. This clause is framed on the 8 & 9 Vict. c. 44, ss. 1, 4, and 17 & 18 Vict. c. 33, s. 6.

The clause is extended to pictures, statues, &c., in public buildings, and in buildings belonging to the universities and inns of court, and to statues, monuments, and other memorials of the dead in churchyards, &c.

As much misapprehension seems to prevail as to the law respecting monuments to the dead, it may be well to state what it appears to be. Lord Coke, 3 Inst. 202, speaking of "tombs, sepulchres, or monuments in a church, chancel, or churchyard," expressly lays it down, in general terms and without any limitation whatever, that "the defacing of them is punishable by the common law,' as it appeareth in the book of 9 Ed. 4, 14 (Lady Wyche's case), and as it was agreed by the whole Court in Corven's case, 12 Rep. 104. And this position appears to be clearly correct. In Corven's case it was held

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that if a nobleman, knight, esquire, &c., be buried in a church, and a gravestone or tomb be made for his monument, although the freehold of the church be in the parson, yet cannot the ordinary, parson, churchwardens, or any other take them or deface them, but he is subject to an action on the case by the person who placed them during his life, and after his death by the heir male, lineal or collateral, of the deceased. Co. Litt. 18, b. 27 a.; Frances v. Ley, Cro. Jac. 366. The first branch of this passage is equally general with the passage cited from the 3rd Inst. 202, and may be considered as explained by it; and, therefore, it ought not to be looked upon as limited by the latter branch to cases where the injury is done by some one other than the person who erected the monument or the heir of the de-* ceased. But even if it were contended that this passage showed that such person or the heir could alter or deface a monument, it seems plain that such is not the law. A monument affixed to a church or in a churchyard is just as much in the possession of the incumbent as the church and churchyard, as is shown by the action by the heir being an action on the case; consequently the heir would be guilty of a trespass if he defaced the monument without the leave of the incumbent. But it may be said that the incumbent can give such a consent as will justify the heir in dealing with the monument; it is conceived, however, that he can give no such consent. He is merely tenant for life at the utmost, and cannot lawfully do anything to the detriment of the freehold, or of anything annexed to and parcel of it, and what he cannot lawfully do himself, he cannot lawfully permit another to do. In Frances v. Ley, above cited, it was held that "it is not lawful for any to break or deface any superstitious pictures in any church or aisle, but the ordinary only; and if any do so without licence from the ordinary he shall be bound to his good behaviour, as was done in Prickett's case by Sir C. Wray, chief justice of the King's Bench." This is a very strong autho