field declared that the offence provided againft, is the ftealing of or confent of the 66 net whatsoever, or any angle, hair noofe, trail or spear, or fhall lay any wears, pots, nets, fifh-hooks, or other en gines, or fhall take any fifh by any means or device whatfish; taking it "foever, in any river, ftew, pond, mote, or other several wawithout the leave 66 ters or rivers, or shall be aiding or affifting thereunto, withowner. And the❝ out the consent of the owner, on conviction by confeffion, words taking and or the oath of one witness within a month, before one jufkilling mean ftealing It must "tice, fhall render compensation, not exceeding treble damages, "and over and above, pay down immediately any fum not exthat the fish "ceeding ten fhillings, to the ufe of the poor, and on default by distress, fhall be imprisoned, not exceeding one month, in the house of correction, unless the offender fhall enter into a bond to the party injured, with one furety not ex"ceeding ten pounds, never to offend in like manner.-Juf"tices may feize the nets, &c. but the party may appeal to "the quarter feffions, which fhall be final, unlefs title to any "land, royalty, or fifhery is concerned therein." therefore appear killed were not fish of the party's killing them, and that they were 6 not killed in his own ponds. 2 Burr. 682. 9 + Sect. 4. And it is alfo further enacted by the Black act, Geo. I. c. 22. "That whoever being armed with fwords, fire arms, or other offenfive weapons, and having his or "their faces blacked, or being otherwife difguifed, fhall un"lawfully steal or take away any fifh out of any river or pond, "or fhall forcibly rescue any perfon in lawful cuftody for the fame, "or fhall by gift or promife of money or other reward, pro"cure any of the king's fubjects to join him or them in any "fuch unlawful act, fhall fuffer death without clergy." + Sect. 5. Alfo it is farther enacted by 5 Geo. 3. c. 14. "That whoever shall enter into any park or paddock fenced "in and inclosed, or into any garden, orchard, or yard, ad"joining or belonging to any dwelling house, in or through "which park or paddock, garden, orchard, or yard, any "river, or stream of water fhall run or be, or wherein fhall "be any river, ftream, pond, pool, moat, ftew, or other "water, and by any ways, means, or device whatfoever, fhall fteal, take, kill, or deftroy any fish bred, kept, or pre"ferved therein, without the confent of the owner thereof; "or fhall be aiding or affifting in committing the faid offence; or fhall receive or buy any fuch fifh knowingly, upon con"viction by indictment within fix months, before the juftices of gaol delivery where fuch place fhall be, fhall be tranf "ported for seven years. And any offender making a dif "covery of, and convicting his accomplices, is intitled to a "pardon.' + Sect. 6. And it is further enacted by the faid ftatute, par. 3, "That whoever fhall take, kill, or destroy, or at"tempt to take, kill or deftroy, any fish in any river or "ftream, pond, pool, or other water (not being in any park "or paddock, or in any garden, orchard, or yard, adjoining " or belonging to any dwelling house, but shall be in any "other inclosed ground which fhall be private property) on "conviction by one witness, fhall forfeit five pounds to the "owner for every offence, or be committed to the house of "correction not exceeding fix months. Any one juftice of "the place, upon complaint on oath, may iffue his warrant "to bring the offender before him, and the owner may, at "any time within fix months, recover the penalty by action at law, &c. But by par. 5. nothing in this act fhall extend "to any person who fhall have a juft right or claim to take, "kill, or carry away any fuch fifh as aforefaid. In a conviction on the above clause, the court declared that it ought to appear that the justice has jurifdiction; that the complaint was made by the owner; and that the fact was committed without his confent. That it must alfo fufficiently appear, upon oath, that the river, &c. was private property, and who was the owner of it; that the provifo in the fifth fection means to except fuch perfans as have efpecial right to fish in the fishery of another, and that if the owner is the complainer, it would be evidence of his diffent, 4 Burr. 2282. APPENDIX THE THE FOURTH. OF OFFENCES BY INCENDIARIES. THE HE CRIME of maliciously burning the house which another is in the poffeffion of, hath been already confidered under the title ARSON (a); I fhall therefore, in (a) Ante, page this chapter, recite what other offences, by MALICIOUS INCENDIARIES, are created felonies by ftatute. + Sect. 1. And first, to repress the daring outrages that formerly prevailed upon the Northern borders of the kingdom, it is, amongst other offences enacted by 43 Eliz. c. 13. f. 2. "That whoever shall willfully and of malice, burn or cause to "be burned, or aid, procure, or confent to the burning of "any barn or ftack of corn, or grain within Cumberland, "Northumberland, Weftmorland, or Durham, fhall, on con"viction at the affizes, or general feffion of the peace, fuffer "the pains of death without benefit of clergy." † Sect. 2. But these wicked courses growing into frequent, and fecret practice in feveral parts of the kingdom, it is enacted by 22 & 23 Car. 2. c. 7. "That if any perfon or perfons shall " in the night time, maliciously, unlawfully and willingly burn, "or cause to be burnt or deftroyed, any ricks or ftacks of corn, hay, or grain; barns, or other houses or buildings, "or kilns, the offenders fhall fuffer as in cafes of felony." P8 + Sect. 3. (a) Poulter's cafe, 11 Coke v Breeme, 4 Comm. 223. (6) Videz Black. 722. c + Sect. 3. But this ftatute having made the crimes therein mentioned, only fingle felonies, and fome doubt (a) remain29, and dierum ing whether the crime of Arfon was not intitled to the benefit per Gould, J. in of clergy, it was thought expedient to extend (b) the provifions the cafe of Rex of the 22 & 23 Car. 2. c. 7. and it is accordingly enacted. By 9 Geo. 1. c. 22. made perpetual by 31 Geo. 2. c. 42. That if any perfon or perfons fhall fet fire to any (1) houfe, "barn, or out-houfe, or to any hovel, cock, mow, or stack the entrance to "of corn, ftraw, hay, or wood; or fhall forcibly rescue any "perfon being in lawful cuftody for the fame; or fhall by through a dwell-gift, promile of money, or other reward procure another fully within this to join him or them in any fuch unlawful act, every person "fo offending fhall fuffer death without clergy."-The perfon injured by this offence may fue the hundred (2) to the amount of two hundred pounds, and a reward of fifty pounds is offered for apprehending, &c. the offender. (1) A prifon, which is ing houfe, act, Rex v. Donnevan. Str. 1247. (2) The words wilfully and maliciously, are not inferted in the above clause of the Black aft; and it hath therefore been anjunged, that they need not be laid in a declaration against the hundred; for a declaration may follow the ftatute, however imperfectly expreffed. But the court thought it probable that an indictment, for the felony itself, mutt charge the offence to have been done wilfully and maliciously, for other wife it is no crime. Black. 843. + Sect. 4. And to encourage and protect plantations. Burning woods. of woods, It is enacted by Geo. 1. ft. 2. c. 48. f. 4. "That whofoever fhalt malicioufly fet on fire, or burn, or "caufe to be burned, any wood, underwood, or coppice, or any part thereof, fhall fuffer and be liable to all the penal"ties and forfeitures as felons by the law now are." + Sect. 5. It is alfo enacted by re Geo. 2. c. 32. f. 6. "That whoever during the continuance of the before-men"tioned act of 9 Geo. 1. fhall wilfully and maliciously set on "fire, or caufe to be fet on fire, any mine, pit, or delph of "coal, or cannel coal, fhall fuffer death without clergy." Firing coalmines. + Sect. 6. It is enacted by 9 Geo. 3. c. 29. f. 2. “That "whoever fhall wilfully or maliciously burn, or set fire to any Burning mills. wind-faw-mill, or other wind-mill, or any water-mill, or other mill, fhall fuffer death without benefit of clergy."Provided the profecution be commenced within eighteen "months after the offence committed." For the offence of throwing squibbs and fire-works, vide 10 & 11 Will. 3. c. 7. For burning garments with aqua fortis, &c. vide 6 Geo. 1. c. 23. App. 9. For burning private fhips by officers and mariners vide ch. 43. fect. 10. FOR burning the public property, as ships of war, magazines, ftores, &c vide ch. 12. f. 13, 14. For burning houfes by the negligence of fervants, vide ante, c. 53. For the offence of threatning to burn houfes, barns, &c. vide 27 Geo. 2. c. 15. FOR burning and deftroying engines to draw water out of mines, 9 Geo. 3. c. 29. f. 3. For burningwains, or carts loaded, vide 37 Hen. 8. c. 6. f. 4. For burning the covert for the red and black game, 4 5 Will. and Mary, c. 23. f. 11. FOR burning the covert for preferving deer, vide 28 Geo. 2. c. 19. f. 3. APPEN. APPENDIX THE FIFTH. OF SHOOTING AT ANOTHER, AND OF SENDING THREATENING LETTERS, T is enacted by the Black act, 9 Gen. 1. c. 22. "That if Vide Arnold's I "any perfon or perfons fhall, wilfully and malicioufly (1) cafe, 8 St. Tr 2901 for fhoot. "hoot at (8) any perfon in any dwelling houfe, or other ing at Lord On"place; or fhall forcibly refcue any perfon in lawful cuftody flows "for the faid offence; or fhall by gift, or promife of money, For the form of " or other reward, procure any other to join with him or an indictment "them in fuch unlawful act, fuch offenders fhall be adjudged upon this act, guilty of felony, (3) and fuffer death without the benefit of 155 "clergy." ་་ Cro. Cir. Come (1) It has alfo been laid doton, by authority, that the word malicioufly" conftitutes the cffential part of the offence, and that no act of fhooting will amount to felony by this ftatute, unlets, if death had enfied; fuch homicide would have been murder. It follows, therefore, that neither an accidental footing, which is neither wilful or malicious; nor a fhooting in the intemperance of paffion, upon fuch a provocation, as would, in law, reduce the crime of homicide to manflughter, in which no malice can exift; are within the meaning of this ftatutes O. B. 1786, p. 748. (2) There must be a shooting us the perfon to conflitute this felony, O. B. 1781, No. 261. And the shooting must be with a gun, or other inftrument, loaded with a leaden bullet, &c. a) It has alfo been determined, that this ftatute creates a new felony, which confequently pofies all the qualities incidental to a felony at common law. Therefore, if feveral perions ociate in the purfuit of the fame unlawful defign, and only one of them fhoot, they are all equally involved in his guilt; for the act of one being confidered as the act of all, whoever is prefent ading and affitting, are adjudged principals in the fecond degree. The Coal heaver's 'cale.—At The Lent Afizes for Surry, 1785, Gibfon, Mutton, and Wiggs were tried upon two indictments, before Mr. Baron Perryn. The one for burglary, the other upon this statute, and they were found guilty. Garrow moved in arrest of judgment, and the fentence was refpited. But the prifoners Laving been convicted of the burglary, the judges never gave any opinion. In a cafe fubfequent to this, however, where one only, among a number, had fired, and the evidence left it in doubt which it was; Mr. Juftice Ashhurft directed the jury to confider, Firft, Whether the act of shooting at another had been committed; Secondly, Whether the prifoners were prefent alding and affifting and on a reference, the judges were of opinion, upon the authority of the Coal neaver's cafe, which they recognized as good law, that the direction was proper, and the conviction right. M.S. + Sect. 2. 'It is also enacted by the faid ftatute, par. 14. "That every offence that fhall be done or committed contrary to this act, fhall and may be enquired of, examined, "tried and determined in any (4) county within England, in "fuch manner and form as if the fact had been therein commit"ted. But no attainder upon this act fhall work corruption "of blood, (5) lofs of dower, or forfeiture. (4) It was determined by the judges, in the cafe of the King v. Rich Mortis, 11 Geo. 3. be fore Mr. Baron Eyre, that this claufe gives to a private profecu. for the option of proceeding in any county and that there is no neceffity for a special come m. M.S.(5) An eftate came to a convict on this act, and, as it faves corruption of blond, &g. 3 creditor was permitted to ferve him with a latita, in prder to obtain a judgment for his debta ford Raym. 1573. VOL. J. Threatening letter. an indictment + Sect. 3 It is also enacted by the faid ftatute 9 Geo. 1. c. 22. "That if any perfon or perfons fhall knowingly fend any letter, without any name fubfcribed thereto; or figned For the form of with a fictitious name, demanding money, venifon, of "other valuable thing; or fhall forcibly refcue any perfon being lawfully in cuftody of any officer or other person for "the offences aforefaid; or fhall by gift, or promife of money or other reward, procure another to join him or them in 66 any fuch unlawful act, fuch offender fhall fuffer death without benefit of clergy.' for this offence, vide Cro. Ci.. Com. 153. Burn. 293. tr + Scal. 4. And it is enacted by 27 Geo. 2. c. 15. "That "if any perfon or perfons fhall knowingly (6) fend any letter "without any name fubfcribed thereto, or figned with a ficti"tious name or names, letter or letters, threatening to kill "or murder any of his majefty's fubjects, or to burn their houfes, outhoufes, barns, itacks of corn or grain, hay or "ftraw, though no money or venifon, or other valuable thing "fhall be demanded, in or by fuch letter or letters, or shall alet forcibly refcue any perfon in lawful cuftody for the fame, "fuch offender fhall fuffer death without benefit of clergy." (6) It has been determined, that proof of the prifoners merely ter of this kind, to another, without any intima. tion of what was contained in it, for the purpose of its being conveyed to the profecutor, is fufficient evidence of his fending it, knowing the contents. And that the offence may be tried by a jury of the county in which the letter was delivered to the profecutor, although the original delivery, for the purpose of conveying it to him, was in a different county. But it feems, that the threat contained in it, should be conceived in exprefs and unequivocal terms, and not drawn from it by interence or implication. Rex v. Girdwood, O. B. February feffions, 1776, upon the unanimous opinion of all the judges. M.S. For the threat is the git of the offence. O. B. Dec. 1784. No ce tiorari will lie upon this act to re mve an indict. ment from the juftices of Mid. dleiex. Cowper 24. + Sec. 5. And it is further enacted by 30 Geo. 2. c. 24. "That all perfons who thall knowingly fend or deliver any "letter or writing, with or without a name or names subfcribed thereto, or figned with a fictitious name or names, letter or letters, threatening to accufe any perfon of any "crime punishable by the law with death, transportation, or pillory, or any other infamous punishment, with a view or intent to extort or gain money, goods, wares, or mer"chandizes, from the perfon or perfons fo threatened to be threatning letter accufed, fhall on conviction be put in the pillory, publicly toa maiter wool-whipped, or fined and imprifoned, or tranfported, not ex"ceeding the pace of feven years, in the difcretion of the For the offence et fending a comber, &c. vide. Infra. appendix 10. f. 8. ❝ court." APPEN |