TITLE 115. Malicious Mischief. 1.WHERE divers and sundry malicious and envious per- TIT. 115. sons, being men of evil and perverse dispositions, and seduced by the instigation of the devil, and minding the hurt, undoing A. D. 1545. and impoverishment of divers of the king's true and faithful St.37 H. 8.c.6. subjects, as enemies to the commonwealth of this realm, and as no true or obedient subjects unto the king's majesty, of their cutting By burning or malicious and wicked minds, have of late invented and practi- frames. sed a new damnable kind of vice, displeasure, and damnifying of the king's true subjects, and the commonwealth of this realm, as in secret burning of frames of timber prepared and made by the owners thereof, ready to be set up and edified for houses; cutting out of heads and dams of pools, motes, stews, and several waters; cutting off conduit-heads or conduit-pipes; burning of wains and carts loaden with coals or other goods; burning of heaps of wood, cut, felled and prepared for making of coals; cutting out of beasts tongues; cutting off the ears of the king's subjects; barking of apple-trees, pear-trees, and other fruittrees; and divers other like kinds of miserable offences; to the great displeasure of Almighty God, and of the king's majesty, and to the most evil and pernicious example that hath been seen in this realm :". 2. For remedy whereof, Be it enacted, That if any person or Destroying persons, at any time after the first day of May next ensuing, frames, &c. maliciously, unlawfully, willingly and secretly burn, or cause to be burned, cut, or cause to be cut or destroyed, any frame or frames of timber of any other person or persons, made and prepared, or hereafter to be made or prepared, for or towards the making of any house or houses, so that the same shall not be able for the purpose for the which it was prepared; that then every such act and acts so to be committed, perpetrated, and done by any person or persons, shall be deemed and adjudged felony, and the offender or offenders therein, being lawfully convicted or attainted, shall have and suffer pains of death, and shall lose and forfeit goods and chattels for ever, and the profits of their lands, tenements and hereditaments for term of his or their lives. [See within; St. 22 & 23 Ch. 2. c. 7.]* 3. Provided always, That such attainder shall be no avoid- Proviso. ing of any woman's dower, ne corruption of blood against the Not to work heir or heirs of such offender or offenders; But be it enacted, blood, &c. corruption of That the wife and wives of such offender or offenders shall have their dowers; and that such heir and heirs shall, after the decease of the said offender, have and enjoy the said lands, tene • See A. A. 1787. [P. L. 430.] There shall be no forfeiture of property for felony. TIT. 115. À. D. 1545. P. L. 56. ments and hereditaments of such offender and offenders, in like manner and form as they should have had, if this act, or any such attainder had never been had ne made. And that the heir or heirs having the said lands, tenements or hereditaments of any estate of inheritance, shall yield unto the party grieved for such offence or offences, his damages of the profits of the said lands, tenements or hereditaments of such offender or offenders, whereunto he shall be inheritable, by action of debt to be taken in the common bench at Westminster; in which action, no wager of law, essoin, ne protection shall be allowed.* By cutting 4. And if any person or persons, after the said first day of dams, &c. or May, maliciously, wilfully and unlawfully cut or cause to be by burning cut out the head or heads, dam or dams of any ponds, pools, wood, &c. or motes, stews, or other several waters, or the head or heads, by cutting out the tongues of pipe or pipes of any conduit or conduits of any other person living beasts, or persons; or maliciously, willingly and unlawfully, after the &c. or cutting said first day of May, burn or cause to be burned any wain or off the ears of wains, cart or carts, laden or to be laden with coals or any men, &c. other goods or merchandizes of any other person or persons; or maliciously, willingly and unlawfully, after the said first day of May, do burn or cause to be burned any heap or heaps of wood of any other person or persons, prepared, cut and felled, or to be prepared, cut or felled, for making of coals, billets or talwood; or maliciously, unlawfully and willingly, af4 Bl.Com. 206. ter the said first day of May, cut out or cause to be cut out the tongue or tongues of any tame beast or beasts of any other person or persons, the said beast then being in life; or maliciously, willingly or unlawfully, after the said first day of May, cut or cause to be cut off the ear or ears of any of the king's subjects, otherwise than by authority of the law, chancemedley, sudden affray or adventure; or after the said day,maliciously, willingly or unlawfully bark any apple-trees, peartrees, or other fruit-trees of any other person or persons; that then every such offender and offenders shall not only lose and forfeit unto the party grieved treble damages for such offence or offences, the same to be recovered by action of trespass to be taken at the common law, but also shail lose and forfeit to the king's majesty, and his heirs, for every such offence, x. 1. sterling in name of a fine. [See Title 113, Maiming.] A. D. 1670. 5. Whereas divers lewd and evil-disposed persons intending the-ruin and impoverishment of their fellow subjects, have devised, and of late secretly in the night time, and at other times when they think their deeds are not known, frequently practised in several parts of this kingdom, unlawful and wicked courses in burning of ricks and stacks of hay, corn and grain, destroying of buildings, trees, and cutting, maiming, wounding and killing of horses, sheep, beasts, and other cattle, in Coke says this statute was repealed as to the burning of frames, by 1 Ed. 6. and 1 Mar. (Sess. 1. c. 1.) 3 Inst. 66. See 2 vol. Statutes at large, 373. contempt of the laws, and to the insupportable wrong and da- TIT. 115. mage of many of his majesty's good subjects:? Ch. 2. c. 7. 6. For prevention whereof, and discovery of the offenders, A. D. 1670. Be it enacted, That where in any part of this kingdom any per- St. 22 & 23 son or persons, after the first day of March in the year of our P. L. 80. Lord 1670, shall in the night time maliciously, unlawfully and To burn willingly burn, or cause to be burnt or destroyed, any ricks stacks of or stacks of corn, hay, or grain, barns, or other houses or build- grain, &c. or ings, or kilns; or shall in the night time, maliciously, unlaw- Kill horses, fully and willingly kill, or destroy any horses, sheep, or other &c. felony. cattle, of any person or persons whatsoever; every such offence shall be adjudged felony, and the offenders, and every of them shall suffer as in case of felony. 7. Provided always, That no attainder for any the offences Proviso made felony by virtue of this act, shall make or work any corruption of blood, loss of dower, or disinheritance of heir or heirs. [See A. A. 1787. P. L. 430.] 8. In case any person or persons who shall be convict or The offender attainted of any the offences made felony by virtue of this act may be trans as aforesaid, (to avoid judgment of death, or execution there- ported. upon for such his offence) shall make his election to be transported beyond the seas, to any of his majesty's plantations; that then the justices of assise, oyer and terminer, gaol delivery, or justices of the peace, before whom such offender shall be convict or attaint by virtue of this act, and every of them respectively, shall cause judgment to be entered against every such offender, that he be transported beyond the seas to some of his majesty's plantations, in the said judgment to be particularly mentioned and expressed, there to remain for the space of seven years; and that in pursuance of the said judgment, the sheriff or sheriffs of the county or city where such offender shall be so convict or attainted, shall cause the said offender to be safely conveyed and embarked to be transported as aforesaid; and if any such offender shall return into this kingdom before the expiration of the said seven years, he shall suffer death as a felon, and as if no such election to be transported had been made by him.* In the case of The State v. Kirkpatrick, which was before the constitutional court of appeals at Columbia, in November, 1807-he had demurred to an indictment upon this statute, for having in the night time, maliciously, &c. destroyed a horse; and it was contended for him that as he could not avail himself of the optional alternative provided by this clause, the whole statute ought to be considered inoperative and void. On the contrary it was urged, that although the offender cannot from the nature of our present government, and the situation of the country, have the benefit of an election to be transported beyond the seas, yet it cannot be maintained, on legal principles, that the statute is therefore void, except so far as the same is impracticable. And the legislature in adopting this and other English statutes, had carefully guarded against any construction which would have the effect of rendering them inoperative and null, without necessity, by declaring that they should be put in execution as to the substantial parts of them, &c. A. A. 1712. P. L. 100. A. D. 1670. horses, &c. in the offender to treble da-. mages. Authority of justices of peace respect ing. TIT. 115.. 9. If any person or persons shall in the night time malíciously, unlawfully and willingly maim, wound, or otherwise hurt any horses, sheep or other cattle, whereby the same shall not be killed or utterly destroyed, or shall destroy any plantations of trees, or throw down any inclosures in manner aforesaid; that then every such offender or offenders shall lose and forfeit unto the party grieved treble the damage which he or they shall thereby sustain; the same to be recovered by action of trespass, or upon the case, to be taken at the common law. 10. And be it further enacted, That upon the complaint and request of the party or parties injured in any such manner, any three or more justices of the peace for the county, division, city, town corporate, or place where such offence shall be committed, whereof one to be of the quorum, shall and may, and they are thereunto authorized and required by virtue of this act, to enquire, as well by the oaths of twelve lawful men or more of the same county, as by examination of witnesses upon oath, or by any lawful ways or means which to them shall seem meet, of and concerning any the offences before incurred, and offenders therein; and in order thereunto, to issue out warrants, as well for the summoning of jurors, as for the apprehending of all such persons, as shall or may be thereof suspected, and to take their examination touching the same; as also to cause all such other persons as to them shall seem likely to make discovery thereof, to appear before them, and to give information upon oath, of and concerning their knowledge of the premises: so as no person so to be examined by the said justices of the peace, shall be convicted, or in any wise proceeded against, for or by reason of any offence concerning which he or they shall be so examined as a witness, and shall upon such his examination make a true discovery thereof: and in case any person or persons, who by the said justices be thought likely to make discovery as aforesaid, shall refuse to appear or to be examined as a witness, being duly summoned by the 4 Bl.Com. 244. said justices in pursuance of this act; it shall and may be lawful for the said justices of the peace to commit the party so refusing, to the common gaol for the said county without bail or mainprise, until he shall submit to be examined upon oath, of and concerning his knowledge touching the same offence, or the offenders by whom the same was committed. Limitation of prosecution. 11. Provided, That no person who shall be punished for any offence by virtue of this act, shall be punished for the same offence by virtue of any other act or law whatsoever; nor shall be questioned for the same, unless he be proceeded against within six months after the offence committed. The decision on the motion was delayed from various causes till May, 1810-when the motion was withdrawn. It is an established rule in the construction of statutes, that they shall be so expounded as to give them all the effect of which they are susceptible, according to the intent of the makers of them, and so as to prevent their being eluded if possible. Repeals by implication of law are not favoured, because they cast a reflection (it is said) on the wisdom of the legislature. 11 Co. 63. 10 Mod. 118. Plow. 466. 13. 88. Co. Litt. 24. 12. And for the effectual preventing the wilful casting TIT. 115. away, burning or otherwise destroying, by masters and mari-. ners, of ships under their charge, Be it enacted, That if any A. D. 1701. St. 1 An. c. 9. captain, master, mariner or other officer belonging to any ship, shali, after the said twelfth day of February, 1702, wil- St. 2. fully cast away, burn or otherwise destroy the ship unto Ships destroy which he belongeth, or procure the same to be done, to the ed by masters prejudice of the owner or owners thereof, or of any merchant to owners preor merchants that shall load goods thereon, he shall suffer judice, felony. death as a felon.* P L. 93. 4 Bl.Com. 244. time. 13. And whereas an ill custom has prevailed in this pro- A. A. 1740. vince, of firing guns in the night time; For the prevention P. L. 174. thereof for the future, Be it enacted, That if any person shall Firing guns in the night fire or shoot off any gun or pistol in the night time after dark and before day light, without necessity, every such person shall forfeit the sum of forty shillings current money, for each gun so fired as aforesaid; to be recovered by warrant from any one justice of the peace of the county where the offence is committed, according to the direction of the act for the trial of small and mean causes, and shall be paid to the church wardens of the parish where the offence shall be committed, for the use of the poor of the said parish.† [See Title 21, Benefit of Clergy. Title 80, Fire-Hunting and Burning the Woods.] TITLE 116. Mandamus,Quo Warranto. TIT. 116. St. 9 An.c. 20. 1. WHEREAS divers persons have of late illegally in- A. D. 1701. truded themselves into, and have taken upon themselves to execute the offices of mayors, bailiffs, portreeves and other No. 1. offices, within cities, towns corporate, boroughs and places, See Title 70, within that part of Great Britain called England and Wales; English Staand where such offices were annual offices, it hath been found tutes, § 4. 9. very difficult, if not impracticable, by the laws now in being, If this offence should be committed on the high seas (which seems to have been intended by the act) or out of the jurisdictional limits of the state, the state courts cannot take cognizance thereof. The Congress of the United States have power to define and punish felonies committed on the high seas, &c. See Constitution United States, Art. 1. § 8. † See Justices of Peace; and A. A. Feb. 1791. + Mandamus is a writ issuing out of the court of general sessions, &c. In England it is called a prerogative writ, and issues from the king's bench. It is a criminal process relative to civil rights. The courts of sessions in this state, as the court of king's bench in England, have a general superintending power over all inferior jurisdictions and persons, to compel them to do justice in matters appertaining to their office and duty, and to enforce obedience to acts of the legislature. See 2 Inst. 40. 3 Bl. Com. 110. Bull. N. P. 199. 3 Burr. 1267. |