or carried than are allowed to be carried therein, in case any one or more of them shall by reason thereof be drowned, besides being liable to be punished for a misdemeanor, is disfranchised and not allowed at any time thereafter to work, row, or navigate any wherry, boat, or other vessel, or to enjoy any of the privileges of a freeman of the company of "The Master, Wardens, and Commonalty of Watermen and Lightermen of the River Thames."

*CHAPTER THE TWELFTH.

OF SETTING SPRING GUNS, ETC.

[*1052

By the 24 & 25 Vict. c. 100, s. 31, "Whosoever shall set or place, or cause to be set or placed, any spring gun, man trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labor; and whosoever shall knowingly and wilfully permit any such spring gun, man trap, or other engine which may have been set or placed in any place then being in or afterwards coming into his possession or occupation by some other person, to continue so set or placed, shall be deemed to have set and placed such gun, trap, or engine with such intent as aforesaid: Provided that nothing in this section contained shall extend to make it illegal to set or place any gin or trap such as may have been or may be usually set or placed with the intent of destroying vermin: Provided also, that nothing in this section shall be deemed to make it unlawful to set or place, or cause to be set or placed, or to be continued set or placed, from sunset to sunrise, any spring gun, man trap, or other engine which shall be set or placed, or caused or continued to be set or placed, in a dwelling house, for the protection thereof."(a)

The setting dog-spears in a wood is not an illegal act at common law, and it was not rendered so by the 7 & 8 Geo. 4, c. 18. Where, therefore, a declaration stated that there was a public footpath through a wood, and that the defendant unlawfully set a dog-spear, being an engine calculated to do grievous bodily harm, as well to the liege subjects as to their dogs, near to the said footway; by means whereof the plaintiff's dog, whilst in pursuit of a rabbit, ran upon the spear and was wounded; and the plea alleged that the spear was set for the purpose of preserving the game; it was held that the plea was good; for the setting of dog-spears is not an illegal act in itself, nor was it rendered such by the 7 & 8 Geo. 4, c. 18, and, although, it was admitted by these pleadings that the spear was calculated to do grievous bodily harm to human beings, still it did not appear to have been set with that intention.(b)

*So where in an action on the 7 & 8 Geo. 4, c. 18, for unlawfully setting

an engine calculated to do grievous bodily harm, it appeared that the plain- [*1053 tiff went at night into the defendant's garden and searched among some bushes for a fowl, and while so engaged he came in contact with a wire which caused a loud explosion, whereby the plaintiff was knocked down, and slightly injured in his face and eyes; but there was no evidence to show what was the nature of the engine or of the substance which caused the explosion; it was held that it was not enough that the instrument was one calculated to create alarm, but that it must be calculated to destroy human life, or to inflict grievous bodily harm. (c)

(a) This clause is framed from the 7 & 8 Geo. 4, c. 18, with some slight verbal alterations. As to counsellors and abettors, see sec. 67, ante, p. 881. As to hard labor, see ante, p. 900. As to fine and sureties, see ante, p. 900. The Act extends to Ireland, but not to Scotland.

(b) Jordin v. Crump, 8 M. & W. 782.

(c) Wootton v. Dawkins, 2 C. B. (N. S.) 412 (89 E. C. L. R.).

*1054]

*CHAPTER THE THIRTEENTH.

OF OFFENCES RELATING TO RAILWAYS AND RAILWAY TRAINS.

ALTHOUGH, perhaps, it may be departing from a strictly accurate distribution of offences to collect the clauses creating offences relating to railways and railway trains in one chapter, yet, as such a course appears to be likely to be of more practical utility, it has been adopted.

By the 3 & 4 Vict. c. 97, general provisions are made for the regulation of railways, and by sec. 13, "It shall be lawful for any officer or agent of any railway company, or for any special constable duly appointed, and all such persons as they may call to their assistance, to seize and detain any engine driver, guard, porter, or other servant in the employ of such company who shall be found drunk while employed upon the railway, or commit any offence against any of the by-laws, rules, or regulations of such company, or shall wilfully, maliciously, or negligently do or omit to do any act whereby the life or limb of any person passing along or being upon the railway belonging to such company, or the works thereof respectively, shall be or might be injured or endangered, or whereby the passage of any of the engines, carriages, or trains shall be or might be obstructed or impeded, and to convey such engine driver, guard, porter, or other servant so offending, or any person counselling, aiding, or assisting in such offence, with all convenient despatch, before some justice of the peace for the place within which such offence shall be committed, without any other warrant or authority than this Act; and every such person so offending, and every person counselling, aiding, or assisting therein as aforesaid, shall, when convicted before such justice as aforesaid (who is bereby authorized and required, upon complaint to him made, upon oath, without information in writing, to take cognizance thereof, and to act summarily in the premises), in the discretion of such justice, be imprisoned, with or without hard labor, for any term not exceeding two calendar months, or, in the like discretion of such justice, shall for every such offence forfeit to Her Majesty any sum not exceeding ten pounds, and in default of payment thereof shall be imprisoned, with or without hard labor as aforesaid, for such period, not exceeding two calendar months, as such justice shall appoint; such commitment to be determined on payment of the amount of the penalty; and every such penalty shall be returned to the next ensuing Court of Quarter Sessions in the usual manner."

Sec. 14. "Provided always, and be it enacted, that (if upon the hearing of any such complaint he shall think fit) it shall be lawful for such justice, instead of deciding upon the matter of complaint summarily, to commit the person or persons charged with such offence for trial for the same at the Quarter Sessions *1055] for the county or place wherein such offence shall have been committed, and to order that any such person so committed shall be imprisoned and detained in any of Her Majesty's gaols or houses of correction in the said county or place in the meantime, or to take bail for his appearance, with or without sureties, in his discretion; and every such person so offending, and convicted before such Court of Quarter Sessions as aforesaid (which said Court is hereby required to take cognizance of and hear and determine such complaint), shall be liable, in the discretion of such Court, to be imprisoned, with or without hard labor, for any term not exceeding two years."

Sec. 21. "Wherever the word 'railway' is used in this Act it shall be construed to extend to all railways constructed under the powers of any Act of Parliament, and intended for the conveyance of passengers in or upon carriages drawn or impelled by the power of steam or by any other mechanical power; and wherever the word 'company' is used in this Act it shall be construed to extend to and include the proprietors for the time being of any such railway, whether a body corporate or individuals, and their lessees, executors, administrators, and assigns, unless the subject or context be repugnant to such construction."

By the 24 & 25 Vict. c. 100, s. 32, "Whosoever shall unlawfully and maliciously

put or throw upon or across any railway any wood, stone or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace 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 endanger the safety of any person travelling or being upon 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 labor, and if a male under the age of sixteen years, with or without whipping."(a)

Sec. 33. "Whosoever shall unlawfully and maliciously throw, or cause to fall or strike, at, against, into, or upon any engine, tender, carriage, or truck used upon any railway, any wood, stone, or other matter or thing, with intent to injure or endanger the safety of any person being in or upon such engine, tender, carriage, or truck, or in or upon any other engine, tender, carriage or truck of any train of which such first-mentioned engine, tender, carriage, or truck shall form part, 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 labor." (b)

[*1056

Sec. 34. "Whosoever, by any unlawful act, or by any wilful omission or ne glect, shall endanger, or cause to be endangered, the safety of any person conveyed or being in or upon a 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 labor.(c)

By the 24 & 25 Vict. c. 97, s. 35, "Whosoever shall unlawfully and maliciously put, place, cast, or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace 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

(a) This clause is taken from the 14 & 15 Vict. c. 19, s. 6, and the word "unlawfully" is substituted for "wilfully" throughout. As to principals in the second degree, and accessories, see sec. 67, ante, p. 881. As to hard labor, see ante, p. 900. As to whipping, see ante, p. 900. As to sureties, see ante, p. 900. The Act extends to Ireland, but not to Scotland.

(b) This clause is taken from the 14 & 15 Vict. c. 19, s. 7. The word "unlawfully" is substituted for "wilfully." The introduction of the word "at" extends this clause to cases where the missile fails to strike any engine or carriage. The other words in italics were introduced to meet cases where a person throws into or upon one carriage of a train, when he intended to injure a person being in another carriage of the same train, and similar cases. In Reg. v. Court, 6 Cox C. C. 202, the prisoner was indicted for throwing a stone against a tender with intent to endanger the safety of persons on the tender, and it appeared that the stone fell on the tender, but there was no person on it at the time, and it was held that the section was limited to something thrown upon an engine or carriage having some person therein, and consequently that no offence within the statute was proved, but this case would clearly come within this clause. As to hard labor, &c.,

see the last note.

(c) This clause is taken from the 3 & 4 Vict. c 97, s. 15, the words of which were, any person who shall wilfully do, or cause to be done, anything in such a manner as to obstruct any engine or carriage using any railway, or to endanger the safety of persons conveyed in or upon the same." The present clause extends to any unlawful act and any wilful omission or neglect. As to counsellors and abettors, see sec. 67, ante, p. 881. As to hard labor, see unte, p. 900. As to fine and sureties, see ante, p. 900.

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 labor, and, if a male under the age of sixteen, with or without whipping."(d)

Sec. 36. "Whosoever, by any unlawful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any 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 labor."(e)

*Sec. 37. "Whosoever shall unlawfully and maliciously cut, break, throw *1057] down, destroy, injure, or remove any 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 labor: 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 labor, 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."(f)

Sec. 38. Whosoever shall unlawfully and maliciously, by any overt act, attempt to commit any of the offences in the last preceding section mentioned, 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 thre months, or else shall forfeit and pay such sum of money not exceeding ten pounds as to the justice shall seem meet."(g)

See the 26 & 27 Vict. c. 112, "An Act to regulate the Exercise of Powers under Special Acts for the Construction and Maintenance of Telegraphs," for the general provisions as to such telegraphs.

Upon an indictment on the 3 & 4 Vict. c. 97, s. 15, it appeared that the railway was constructed under an Act of Parliament, and was intended for the conveyance of passengers in carriages drawn by steam, but at the time of the offence the conveyance of passengers for hire had not commenced, and the traffic was confined to the carriage of materials and workmen. A railway truck was placed by the prisoners across the railway so as to obstruct the passage of any carriage and endanger the safety of persons conveyed therein, but its position was discovered, and it was removed before any collision occurred; it was objected that the case was not within (d) This clause is taken from the 14 & 15 Vict. c. 19, s. 6, and "unlawfully" is substituted for "wilfully" throughout. As to principals in the second degree, and accessories, hard labor, whipping, and sureties, see ante, pp. 4, 5.

(e) This clause is taken from the 3 & 4 Vict. c. 97, s. 15. See note (c) supra. As to counsellors and abettors, hard labor, fine, and sureties, see ante, pp. 4, 5.

(f) 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 counsellors and abettors, hard labor, fine, and sureties, see ante, pp. 4, 5. The summary proceedings may be in England under the 11 & 12 Vict. c. 43, and in Ireland under the 14 & 15 Vict. c. 93.

(9) This clause is new, and provides against attempts to commit the offences created by the last section. As to the proceedings on this section see the last note.

the satute-1st, because the railway was not used for the conveyance of passengers for hire; 2dly, because no actual obstruction took place; but, upon a case reserved, it was held that the case was within the statute. It must be assumed that [*1058 the railway was completed, and that all that required to be done was to open it for the public traffic. The prisoners did put an obstruction on the line, and they put it in such a position as to endanger the safety of the persons conveyed. The case therefore came within both branches of the section; there was an obstruction put on the line, and it was put so as to endanger the safety of the persons conveyed. It was contended that there could be no obstruction until some train were absolutely obstructed; but such a construction could not be maintained. The object of the Legislature was obviously to prevent any disaster to those using the railway, and to punish those who put obstructions in such a manner as was likely to cause such disaster. The case was, therefore, within the intention of statute; and though, in the ordinary course of things, it would generally be after the railway was fully opened that the public required to be protected, yet an obstruction before that time was within the mischief as well as the words of the statute.(h)

On an indictment on the 3 & 4 Vict. c. 96, s. 15, for throwing a stone upon a railway in such manner as thereby to endanger the safety of one G. C. and of divers other persons being conveyed on the engines and carriages then using the railway, it appeared that the defendant was on a bridge over the railway, and let drop a stone on a train that was passing; the stone was a thin flat stone, about twice the thickness of a biscuit; and the train was travelling at the rate of about fifteen miles an hour. The railway was opened in January 1845, but no Act of Parliament was obtained until the July following. It was objected on the interpretation clause, sec. 21(hh) that this railway was not constructed under an Act of Parliament; but Alderson, B., held that the effect of that clause was to extend and not to weaken the effect of section 15.) And his Lordship told the jury, "there are two propositions for you to consider:-First, did the defendant wilfully cast or drop this stone on the railway? and secondly, did the casting that stone on the railway in the manner in which it was cast endanger the safety of any of the persons travelling on the railway at that time? If you are satisfied on both these points, he is guilty. If the defendant had this stone in his hand at the time when the train was passing, and it dropped accidentally from his hand on the railway, you should acquit him; for that which occurs by accident cannot be said to be wilful. Should you think that the defendant did cast the stone on the railway wilfully, the next question is, was it cast there by him under such circumstances as to endanger the safety of G. C., the guard, the engineer, or any of the passengers or persons in the carriages? Now that would depend very much on the rate at which the train was proceeding at the time, and the weight and the size of the stone dropped. The former is material, because it is the same thing whether I throw a stone at your head or you run your head against the stone. If, therefore, the train were coming along at the rate of fifteen miles an hour, it would strike with that velocity a *stone that meets it. You might drop a stone on a broad-wheeled [*1059 wagon without doing any harm; but it may be very different where you drop it on a machine going at an enormous rate. Suppose a passenger in this train, going at the rate of fifteen miles an hour, had put his head out of the window, or the guard were to do so, which his duty might render necessary, a blow from a stone of this size and weight certainly might endanger his safety." The jury found that the defendant foolishly dropped the stone on the railway, but not with the intention of doing any injury; Alderson, B.: "The intention of the prisoner in dropping the stone is not the question. It is, did he purposely drop the stone on the railway, and would the effect of the stone's being so dropped be to endanger the safety of the persons on the railway."(k)

6

(h) Reg. v. Bradford, Bell C. C. 268.

(hh) Ante, p. 1055.

(i) Ante, p. 1056, note (e). Alderson, B., said it would have been wiser if a count had been inserted at common law for throwing a stone at a railway carriage, which is an offence at common law.

(k) Reg. v. Bowray, 10 Jurist 211.