CHAP. IV. RIFS TO REAL of the general county rate. And the 33d section provides, that if the damage or penalty be not paid, the offender is to be II. & III. INJUimprisoned, with or without hard labour, for a term not exceeding two calendar months, where the sum and costs to be paid do not exceed 5l.; or four months, if above that sum; and not more than 10%., or not exceeding six months, in any other case, determinable on payment. The 34th section enables a justice, after a first conviction, to discharge the offender upon his making such satisfaction to the party aggrieved for damages and costs, or either, as shall be ascertained by the justice. The 35th section enables the king to pardon the party imprisoned; and the 36th section enacts "That in case any person convicted of any offence punishable upon summary conviction shall have paid the sum adjudged to be paid, together with costs, or shall have received a remission thereof from the crown, or shall have suffered the imprisonment awarded for nonpayment thereof, or the imprisonment adjudged in the first instance, or shall have been discharged from his conviction in the manner aforesaid, in every such case he shall be released from all further or other proceedings for the same cause." The act then gives a form of conviction and allows an appeal to the sessions, but takes away removal by certiorari or otherwise, and contains the usual provisions for the protection of persons bona fide intending to act under the act. (h) The provisions of this act, and of that relating to day poaching, render it unnecessary to proceed by action for small trespasses on land when actual damage has been committed not exceeding five pounds, or when there is not any substantial right to be tried, or when the wrong-doer could not consider that he had a right to do the act complained of, or when he did not commit it in hunting, fishing, or in pursuit of game, without previous notice, or when on any other account, as the rank or situation of the parties, it might be inexpedient to adopt such summary proceedings. The terms of the enactment apply to every injury that can be deemed wilful or malicious, and whether the property affected were public or private; but still the supposed injury must have been wilful or malicious, and so charged, (i) and it must have actually occasioned some sensible real damage, and not a mere trespass in law; and therefore the mere fact of trespassing and walking over a party's (h) Sect. 41. (i) Rex v. Turner, R. & M. C. C. 239. CHAP. IV. II. & III. INJU PROPERTY. grass is not a trespass within this act, though in point of law a RIES TO REAL Common action of trespass might be sustainable; (j) and for the same reason the power to apprehend, given by a prior, now repealed, act, does not extend to a mere trespasser in walking over a field without any right of way. (k) So the act only extends to the party who actually committed a wilful or malicious injury to real or personal property, and consequently if some persons wilfully sever a fence from the land and thereby damage it, and another person, not one of them, afterwards carry away part of such fence so previously separated, the latter cannot be committed for so carrying it away, though the original parties might have been convicted for the prior injury. () The justice is not as a matter of course to adjudge 5l. to be paid, but must ascertain what the value of the actual damage in each case has been, and award reasonable compensation according to the amount of the actual injury proved.(m) 6. Other criminal injuries and offences relating to real property in nature of lar. ceny or of arson, &c., provided for by ch. 29, 30, 31. 6. With respect to the other crimes and offences to real property, and the remedies against the hundred, the 7 & 8 Geo. 4, c. 27, repealed most of the prior enactments, excepting those we have considered relative to forcible entries and detainers, and a few others, which still remain provided for either at common law or by the particular enactments we have 7 & 8 Geo. 4, just considered. And the 7 & 8 Geo. 4, c. 29, contains the new enactments relative to offences partaking of larceny, such as burglaries, sacrilege, housebreaking, robberies in houses, and other enumerated buildings and places, especially in parks and places where deer are usually found, warrens, fisheries, trees, shrubs, fruit, vegetables, and offences by separating or stealing glass, wood-work and fixtures, and materials, from the buildings or land, whether by lodgers or others. (n) The 7 & 8 Geo. 4, c. 30, besides the general clauses against small injuries not exceeding five pounds, which we have just noticed, (o) contains the new and particular enactments against considerable malicious injuries, as by burning or arson, or riotous demolition in part or in the whole of certain buildings, or setting fire to or drowning coal or other mines, destroying sea-banks, damaging any navigation, public bridges, setting (j) Butler v. Turley, 2 Car. & P. 585. (k) Per Best, C. J. Dewey v. White, M. & M. C. N. P. 56. (1) Rex v. Harper, 1 Dowl. &. R. 223 ; see the form, Burn's J. 26 ed. tit. Ma licious Injuries. (m) Rex v. Harper, 1 Dowl. & R. 223. (n) See the enactments and some decisions thereon, ante, 161 to 203. (0) Ante, 407. THEIR INJURIES, AND REMEDIES IN PARTICULAR. CHAP. IV. II. & III. INJU PROPERTY. fire to any crop of corn, grain, or pulse, whether standing or cut down, or to any heath, gorze, furze, or fern wheresoever RIES TO REAL growing, destroying or injuring trees, shrubs, fruit, or vegetables, fences, walls, gates, or stiles; (p) and the attempt to commit arson, although unsuccessful, was considered a misdemeanor at common law. (q) The Hundred act, 7 & 8 Geo. 4, c. 31, contains the enactment defining the injuries and offences for which the hundred are liable to make private compensation, and prescribing the proceeding to enforce such compensation, which, though before limited to 2007., is now to be the full extent of the injury. These injuries are now confined to arson, or setting fire to, or in part or in the whole demolishing, houses and certain specified buildings, and those only when committed by several persons The feloniously, riotously, and tumultuously assembled.(r) liability of the hundred to make compensation for other injuries was repealed by the 7 & 8 Geo. 4, c. 27. When considering each particular kind of Real Property, the above enactments, as applicaple to each, have been stated, and we shall not therefore repeat them. (s) It will be observed that many of the enactments are merely repetitions in the same terms as in the former repealed acts, and consequently many former decisions and parts of treatises will continue to be applicable. Thus the term "Burglary” is used as before, although the place where it may be committed has been properly limited and fixed to the principal mansion, or to some building immediately connected with the same, and no longer extends generally to the whole curtilage; (t) but as to the hour or time of the night when the offence may be committed, that is regulated and to be ascertained by the former decisions. (u) Anciently the day was accounted to begin only at sun-rising and to end immediately upon sun-set, but the present rule is, that if there be day-light or twilight (v) enough begun or left to discern a man's face, the entry cannot be deemed burglarious. (x) It will be observed, that although, as to night poaching and day poaching, the legislature have defined the precise time when night and day shall be deemed to commence, (y) the precise time when burglary may be committed is left to proof as to the degree of light (p) See the enactment and decisions, ante, 161 to 203. (9) 1 Wils. 139. See decisions on this act, post, (u) 3 Inst. 63; 1 Hale, 550; 2 East, (1) Supra, note (u). 11. & III. INJURIES TO REAL CHAP. IV. existing at the time the offence was committed. But on the other hand, if the entry be certainly before twilight has comPROPERTY. menced, or after it has ceased, then the circumstance of the night being exceedingly moonlight will not prevent the offence of burglary from being complete. (z) Criminal inju ries and of POREAL pro perty. INCORPOREAL property, from its nature, is subject comparafences to INCOR- tively to very few criminal injuries or offences, and certainly not to most of those affecting corporeal property. When, however, such criminal injuries are recognized by law, we may observe that there are generally three descriptions of remedies or punishments: first, the preventive; secondly, those for compensation, usually only afforded when the injury was at most a misdemeanor; or thirdly, punishments either at common law or under particular enactment. We may premise that no injury to real property incorporeal can be considered a crime or an offence, unless it affect not merely one individual, but the public in general, or a great many individuals. In case of crimes or offences to public ways or to navigable rivers or watercourses, or to any other public incorporeal right, and in which, at least in the eye of the law, all the public are interested, any individual may adopt proceedings of the above nature, Thus he may by his own act abate or remove any obstruction to a highway or public watercourse, and it is said in so doing need not observe that care in avoiding injury to materials as in abating a private injury, (a) though no one is recommended to act upon the supposition that that doctrine, which has been denied, would ultimately be holden sound and tenable. If the obstruction be in progress or continuing, a Court of Equity will by injunction prevent it. (b) If the offence complained of consist in the non-observance of a clear public duty, then the Court of King's Bench will interfere by mandamus, but if the obligation or the offence be doubtful, that Court will leave the parties complaining, first to establish the right, or duty, or obligation, and the offence, upon an indictment at common law, and not interfere till a subsequent application. (c) If any individual has sustained actual and particular injury from the obstruction or other nuisance to the public (:) 4 Bla. C. 224. (a) Lodie v. Arnold, 2 Salk. 458; and see fully post, chap. vii. (b) See fully post, chap. viii., and ante, 197, 198, 200, 203. (c) Rex v. Corporation of Plymouth, K. B., A. D. 1832. CHAP. IV. RIES TO REAL right, then we have seen he may proceed in an action on the case for private and particular satisfaction. (d) Or for nominal II & III. INJU punishment, though usually in effect to compel specific relief, or repair, or performance, any person may indict the party occasioning an obstruction or nuisance, or neglecting to repair, for his offence or neglect, and this either at common law, or under the General Highway Act, (e) or the Turnpike Act, (f) or a Canal Act, or some local act; or sometimes, as under the Highway Act, he may proceed more summarily under its provisions. All public nuisances in general, and more particularly as they affect the habitation of houses, and the passing along highways, and consequently what may be termed public incorporeal rights, are remediable either by similar preventive measures, or by civil action for compensation, or by public prosecution, as on the behalf of the public. Each of these in their order will hereafter be fully and practically considered. |