for life, &c. or if any person shall, in the name of any other person not privy or in the name consenting to the same, acknowledge any fine, recovery, (t) cognovit of another; actionem, or judgment, or any deed to be enrolled; every such transportation offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years." (u) In the construction of the 21 Jac. 1, c. 26, s. 2 (now repealed) it was holden, that the bare personating of bail before a Judge at chambers, or the acknowledging thereof in another name, was no felony, but only a misdemeanor, unless the bail were filed. (v) But yet it appears in one case that the offence was considered as complete by the personating; as, though the bail-piece was filed at Westminster, the trial was had in London, the county where the bail was personated. (w) It seems that if bail were put in under feigned names of persons who had no existence, the offender could not be prosecuted upon this repealed statute for felony. (x) (t) Fines and recoveries are now abolished by the 3 & 4 Wm. 4, c. 74. (u) See the general provisions of this statute, ante, p. 408, et seq., and as to principals in the second degree, accessories, and hard labour and solitary confinement, sce ante, p. 410. (v) 1 Hale, 696. Timberley's case, 2 Sid. 90. 1 Hawk. P. C. c. 47, s. 5. 2 East, P. C. c. 20, s. 4, p. 1009. The words of the 21 Jac. 1, c. 26, s. 2, were "That all and every person and persons which shall acknowledge or procure to be acknowledged, any fine or fines, recovery or recoveries, deed or deeds inrolled, statute or statutes, recognizance or recognizances, bail or bails, judgment or judg ments, in the name or names of any other person or persons not privy or consenting (w) Beesley's case, T. Jones, 64. 1 (x) Anon. 1 Str. 384. 1 Hawk. P. C. c. 47, s. 6. But the court in this case ordered the bail and the attorney to be set in the pillory. CHAPTER THE FORTY-FIRST. Malice against the owner of the property not necessary in offences of this kind. OF MALICIOUS INJURIES TO PROPERTY. We now come to the consideration of those injuries to property which proceed rather from malicious or wanton motives, than from any proposed gain to the offender. Injuries of this kind were made punishable by different statutes passed from time to time, as they appeared to be required for the protection of the community; but it has lately been deemed expedient that these statutes should be repealed, and that the provisions contained in them should be amended and consolidated into one statute, and accordingly the 7 & 8 Geo. 4, c. 30, was passed into a law. The several enactments of this statute will be mentioned in the succeeding chapters, in such arrangement as may seem most appropriate; but its general provisions may be properly stated in the first instance. The 25th section enacts, that malice against the owner of the property shall not be essential in offences of this description; an ingredient in the offences under some of the repealed statutes which had often obstructed the course of justice, and (as in the instance of maiming cattle) had screened the perpetrators of very barbarous acts 7 & 8 Geo. 4, from deserved punishment. (a) The words of this section are, “that every punishment and forfeiture by this act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment, or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise." c. 30, s. 25. If the natural an act be to injure a particular person, it will be intended If the thing attempted to be done would, if successful, have preconsequence of judiced a particular individual, it will be intended that such prejudice was meant, without any proof of actual malice against such individual. The prisoner was indicted for setting fire to a ship which belonged to himself and others, with intent to prejudice the other part-owners, and it appeared that there was an insurance at the least to the full value of the ship; and although made before the transfer of the shares to the other part-owners, it was verbally agreed that they were to have the benefit of it, and it was therefore contended there could be no intent to prejudice them: Gaselee, J., thought it right, however, to leave the question to the jury, upon the ground that the prisoner must be understood to intend what was the natural conse that the person doing it so intended. (a) An alteration had been made in this respect as to the offence of maiming cattle by the 4 Geo. 4, c. 54, now repealed by the 7 & 8 Geo. 4, c. 27. quence of the act, and that the setting fire to the ship by the person by whom and for whose benefit the insurance was originally made, and in whose name any suit must be brought to recover the amount, might vitiate the insurance; and upon a case reserved, it was contended that there was no proof of malice. The prisoner could not be intended to mean malice to his part-owners in an act which was equally injurious to himself; and unless he could be presumed to have intended injury to himself, he could not be presumed to have intended it to them; sec. 25 of the 7 & 8 Geo. 4, c. 30, did not supply the deficiency of proof of malice, but was meant to apply to malicious injuries to animals. It was answered that it was not necessary to prove express malice, where the act was of such a nature as could spring from no other than a bad motive, and was calculated to inflict injury without cause or justification. In such case the law implies malice from the act itself, and in the language of the statute it will properly be said to be maliciously done. And the Judges were of opinion that the intent to prejudice was implied by the act. (b) malice was intended to If an indictment under the 7 & 8 Geo. 4, c. 30, alleged an intent to Under the injure the owner of the property set fire to, it was supported, although 7 & 8 Geo. 4, the jury found that the prisoner intended to injure another person. The prisoner was indicted for setting fire to an outhouse in the possession intended of Chettle, with intent to injure Chettle, and Chettle swore that against the there had never been any quarrel between him and the prisoner, owner of proand there was evidence that the prisoner had endeavoured to throw although the perty injured, suspicion on one Smith; but Gaselee, J., told the jury that the law jury found the was that a person, who did an act wilfully, necessarily intended that prisoner which must be the consequence of the act, and that the consequence injure another here was injury to the prosecutor, who was injured by the destruc- person. tion of his property. The jury said they must find the prisoner guilty, with intent to injure Smith. Gaselee, J., asked them if they were content that their verdict should be, that they found no intent to injure Chettle, except so far as by law it must be so considered, to which they agreed; and upon a case reserved, in order that the opinion of the Judges might be taken on the finding of the jury, the Judges present were unanimously of opinion that the indictment was right as to the intent to injure Chettle. (c) It must, however, be observed that an act, the necessary consequence of which is an injury to another person, may be done under such circumstances as negative malice. Thus, if an act injurious to another be done under a bona fide claim of right it will not come within the statute. If, therefore, a servant stop up the airway of mine by his master's order, supposing bona fide that the master had a right to order it to be done, the servant is not liable to be convicted (b) Rex v. Philp, R. & M. C. C. R. 263. See this case, post, p. 563, as to other points. (c) Rex v. Newill, R. & M. C. C. R. 458. In his luminous charge to the Bristol grand jury in 1832, Lord C. J. Tindal observed, that " where a statute directs that to complete an offence it must have been done with intent to injure or defraud any person, there is no occasion that any malice or ill will should subsist against the person VOL. II. a An act injurious to another done under a claim of right is not within bona fide the 7 & 8 whose property is so destroyed. It is a note. N N Sec. 26. under the 7 & 8 Geo. 4, c. 30, s. 6, of maliciously obstructing the airway. The prisoners were indicted for feloniously and maliciously obstructing an airway belonging to a mine of one Phelps, by building a wall across the airway; the prisoners were in the employ of Protheroe, between whom and Phelps there was a dispute respecting two mines in their respective occupations, lying close together. Protheroe, professedly with the view of exerting his supposed right against Phelps, directed the prisoners to effect the obstruction charged in the indictment, and the prisoners accordingly made such obstruction. (d) The effect of the obstruction would be to drive back the choke damp into Phelps's mine, and prevent the working. Lord Abinger, C. B. "If a master, having a doubt or no doubt of his own rights, sets his servants to build a wall in a mine, they would, if he proved to have no right, be all liable in an action of trespass, but it would not be felony in the servants. The rules respecting acts mala in se do not apply. If a master told his servant to shoot a man, he would know that that was an order he ought to disobey. But if the servant, bond fide, did these acts, I think they do not amount to an offence within this statute. If a man claims a right which he knows not to exist, and he tells his servants to exercise it, and they do so, acting bona fide, I am of opinion that that is not a felony in them, even if in so doing they obstruct the airway of a mine. What I feel is this, that if these men acted bona fide in obedience to the orders of a superior, conceiving that he had the right which he claimed, they are not within this act of Parliament. But if either of these men knew that it was a malicious act on the part of his master, I think then that he would be guilty of the offence charged." (e) And this decision was confirmed in an action brought by one of the prisoners against Phelps, for a malicious prosecution, in which it was contended that the proviso in sec. 24 of the 7 & 8 Geo. 4, c. 30, (which authorizes justices summarily to convict in cases of malicious injuries to real or personal property) that "nothing herein contained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act complained of," raised a strong inference that the legislature did not intend to except from the operation of sec. 6, acts done in the supposed exercise of a right, as there was no such proviso in sec. 6. But the Court of Queen's Bench were of a contrary opinion, and Lord Denman, C. J., observed, "as to the 7 & 8 Geo. 4, c. 30, s. 24, I think it makes strongly against the argument of the defendant's counsel. That section gives a power to convict summarily for malicious mischief; and it contains a proviso that, where there is a boná fide acting under a supposed right, the party acting shall not be liable to conviction even for the trespass. Now why was there no such provision in the case of felony? for this plain reason, that the principles of the common law prevent the act from being felonious where there is no malice in the intention." (f) With respect to principals in the second degree and accessories, (d) This statement is taken from the report of James v. Phelps, 11 Ad. & E. 483. (e) Reg. v. James, 8 C & P. 131. Lord Abinger, C. B., directed the prisoners to be acquitted. (ƒ) James v. Phelps, ubi supra. accessories. the 26th section enacts, "that in the case of every felony punishable Principals in under this act, every principal in the second degree, and every ac- the second cessory before the fact, shall be punishable with death or otherwise, degree and in the same manner as the principal in the first degree is by this act punishable; and every accessory after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender." of hard labour and solitary may be in flicted. By sec. 27, "where any person shall be convicted of any indictable Sec. 27. offence punishable under this act, for which imprisonment may be Punishment awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the confinement common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet. (g) And with respect to the apprehension of offenders, the 28th sec- Sec. 28. tion enacts, "that any person found committing any offence against Apprehension this act, whether the same be punishable upon indictment or upon found commitsummary conviction, may be immediately apprehended, without a ting any warrant, by any peace officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring justice of the peace, to be dealt with according to law." of persons offences may be without a warrant. fences committed within the admiralty jurisdiction. Offences amounting to felony or misdemeanor, punishable under Trial of ofthis act, and committed within the Admiralty jurisdiction are, (by sec. 43,) to be dealt with, tried, &c., in the same manner as any other felony or misdemeanor committed within that jurisdiction. The statute contains various regulations as to the summary pro- Summary proceedings by conviction before magistrates, which are authorized by ceedings its provisions for the punishment of minor offences. It limits the authorized by time for the prosecution of offences punishable on summary conviction, gives the mode of compelling the appearance of offenders, makes abettors in such offences punishable as principal offenders, gives a form of conviction, allows an appeal in certain cases, and contains provisions as to the application of the forfeitures and penalties, and as to several other matters. the statute. Geo. 4, c. 64, The general provisions of the 7 Geo. 4, c. 64, as to offences com- General provimitted on the boundaries of counties, or begun in one county and sions of 7 completed in another, or committed during a journey or voyage, applicable to and the provisions as to the statement of property, and as to the malicious trial, &c., of accessories, will apply to offences by malicious in- injuries. jury. (h) (9) The 1 Vict. c. 90, s. 5, "enacts that after the 1st October, 1837, "it shall not be lawful for any court to direct that any offender shall be kept in solitary confinement for any longer period than one month at a time, or than three months in the et (h) See these provisions, ante, p. 120, seq. |