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 labor, 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."(a)

(a) 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 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 3d 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 deceased. 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 license from the ordinary he shall be bound to his good behavior, as was done in Prickett's case by Sir C. Wray, Chief Justice of the King's Bench." This is a very strong authority to show that the incumbent cannot break or deface anything annexed to the freehold of the church. If he cannot deface superstitious annexations, à multo fortiori he cannot deface monuments lawfully erected.

A little consideration will also prove that the representative of a family for the time being cannot lawfully deface them. When a person erects a monument, he dedicates it for ever for every purpose which it may lawfully serve. He intends it to be in perpetuam memoriam of every thing stated in it. As soon as it is annexed to the freehold it passes into the possession of the incumbent to be preserved for the purpose for which it was erected. Now, what are those purposes? It becomes for all future time legal evidence of all the births, marriages, and deaths mentioned in it in every case where any question may arise relating to any of them. This clearly proves that the representative of the family for the time being can have no right to destroy it; for all other members of the family then living or thereafter to be born have or will have an interest in it. The present representative may be a peer, the last of his branch of the family, and there may be a monument which alone would prove the descent of the next heir to the title; it is impossible to suppose that he can lawfully destroy such a monument, and thereby prevent the next heir from succeeding to the peerage. So it may be that the present representative is tenant for life of an estate entailed on the heir male of the family; can he lawfully destroy a monument which may prove who is entitled to succeed to the estate on his death? A monument also may be evidence for a person wholly a stranger in blood to the person who erected it. Suppose an estate be entailed on the heirs male of A. with remainder to A.'s right heirs; a monument may show that C. the son of A. died without issue male, and may thus prove that a female descendant of A. was seized in fee of the estate, and so establish the title of a stranger in blood, to whom the female had devised the estate. These instances, which have occurred in the families of two peers, plainly show that the representative of a family for the time being cannot lawfully alter or destroy any inscription on a monument erected to a member of his family. In fact his posi

CHAP. LIX.] OF WILFUL DAMAGE TO REAL OR PERSONAL PROPERTY. 1098

*CHAPTER THE FIFTY-NINTH.

[*1098

OF WILFUL OR MALICIOUS DAMAGE TO REAL OR PERSONAL PROPERTY NOT OTHERWISE PROVIDED FOR.

By the 24 & 25 Vict. c. 97, s. 51, "whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is hereinbefore provided, the damage, injury, or spoil being to an amount exceeding five pounds, 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 in case any such offence shall be committed between the hours of nine of the clock in the evening and six of the clock in the next morning, 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."(b)

Sec. 52. "Whosoever shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is herein before provided, 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 two months, or else shall forfeit and pay such sum of money not exceeding five pounds as to the justice shall seem meet, and also such further sum of money as shall appear to the justice to be a reasonable compensation for the damage, injury, or spoil so committed, not exceeding the sum of five pounds; which last mentioned sum of money shall, in the case of private property, be paid to the party aggrieved; and in the case of property of a public nature, or wherein any public right is concerned, the money shall be applied in the same manner as every penalty imposed by a justice of the peace under this Act;(c) and if such sums of money, together with costs (if ordered), shall not be paid either immediately after the conviction, or within such period as the justice *shall at the time of the conviction appoint, the justice [*1099 may commit the offender to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labor, as the justice

tion is extremely like that of a tenant for life of an estate under lease, who may bring an action on the case against any one who cuts down timber on the estate, but cannot cut it himself, or permit it to be cut by any other person.

It might also be well contended that the public have the same interest in a monument that they have in a register of births, marriages, and deaths, and that an inscription on the one can no more lawfully be defaced by one than an entry in the other. But amply sufficient has been said to show that there can be no doubt whatever that no one can lawfully deface any monumental inscription.

Where an aisle in a church belongs to a private individual, it seems clear that he is in the actual possession of it, and of everything in it; and consequently he may maintain an action of trespass against any one who injures any monument in it. See Burn's Ec. L., "Church Ile."

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

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

(b) This clause is new, and a very important amendment of the law. In the present times there are so many very valuable instruments and machines daily invented, that it is impracticable to specify them particularly in any Act; but this general clause will include injuries to all of them, and also any other malicious injuries, exceeding the amount of five pounds, which have not been provided for by the other parts of the Act. There was originally a clause in this Bill providing for malicious injuries to steam and other engines and machines not otherwise provided for; but it was struck out, and the punishment in this clause fixed with reference to those and other like injuries.

The part of this clause giving a greater punishment for offences committed in the night was introduced principally with reference to Ireland, where malicious injuries seem often to be perpetrated in the night.

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

(c) See sec. 64, Appendix.

1099 OF WILFUL DAMAGE TO REAL OR PERSONAL PROPERTY. [BOOK IV.

shall think fit, for any term not exceeding two months, unless such sums and costs be sooner paid provided that nothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of(d), nor to any trespass, not being wilful and malicious, committed in hunting, fishing, or in the pursuit of game, but that every such trespass shall be punishable in the same manner as if this Act had not passed." (e)

Sec. 53. "The provisions in the last preceding section contained shall extend to any person who shall wilfully or maliciously commit any injury to any tree, shrub, or underwood, for which no punishment is hereinbefore provided."(f)

An indictment on the 24 & 25 Vict. c. 97, s. 51, alleged that the prisoner committed damage to the amount of five pounds on real and personal property; the evidence was that the damage, exceeding five pounds, was done on two following days, but the damage on either day did not amount to five pounds; it was objected that the indictment was not sustained, as it was not proved that damage exceeding five pounds was done at any one time; and it was held in Ireland, on a case reserved, that this evidence did not prove an offence within that section.(g)

A person who sets fire to letters in a pillar for receiving them may be convicted under the 24 & 25 Vict. c. 97 s. 52, although he was originally charged with the offence under sec. 10 of the Act, and remanded, and on the hearing that charge was abandoned, and although there was no information on oath and the offender was not found committing the offence.(99)

(d) See Reg. v. The Justices of Richmond, 8 Cox C. C. 314, and Reg. v. Dodson, 9 A. & E. 704 (36 E. C. L. R.), that it is a question for the magistrates under all the circumstances, whether the party acted under such fair and reasonable supposition that he had a right to do the act.

(e) This clause is taken from the 7 & 8 Geo. 4, c. 30, s. 24. There was a similar clause in the 14 & 15 Vict. c. 92, s. 3 (I.).

The former Act was defective in neither giving the power to award any fine in addition to the amount of the injury done, nor any imprisonment; the latter Act did both; and this clause authorizes the justice either to commit the offender or to fine him, in addition to the amount of the injury done.

This clause is altered in accordance with the 18 & 19 Vict. c. 126, s. 22, so that where the owner of the property injured is examined as a witness, he may receive compensation for the injury.

(f) This clause is new, and was introduced in consequence of Reg. v. Dodgson, 9 A. & E. 704 (36 E. C. L. R.), and Chanter v. Greame, 13 Q. B. 216 (66 E. C. L. R.). In the former case the court expressed a clear opinion that trees under the value of a shilling were within the 7 & 8 Geo. 4, c. 30, s. 24; in the latter the court expressed an almost equally clear opinion that they were not. This clause brings them within the preceding section, and it was very expedient that it should; for a malicious individual might destroy a newly planted wood with impunity, by destroying a single tree at a time, and several flagrant instances of the kind had occurred.

(g) Reg. v. Williams, 9 Cox C. C. 338.

(gg) Shepherd v. The Postmaster-General, 10 Cox C. C. 15.