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to kindle the fire at all (1.) If a person, after lighting his pipe on the road, toss the burning match over the wall, in consequence of which the crop on the other side of the wall is set fire to, he will be responsible for such culpable disregard of the safety of the property of others (2). A more serious case may be imagined, that of a person in a state of wild excitement from anger or otherwise, throwing a light among combustibles in his own house, without any real intention of raising a fire, and the fire spreading and doing damage to his landlord or neighbour (3).

Any deliberate attempt to commit fire-raising is ATTEMPT. criminal, if it is approximate to the completed act. It Attempt to is a crime to throw a burning brand into a house or raising. stackyard, or to set fire to the furniture of a house, though the crime of fire-raising be not completed by the fire laying hold on the subject (+). Even Attempt to fire

tempt to set fire to movables to the danger of the danger of other. lives or property of the lieges, is a crime (5.)

The punishment of wilful fire-raising is death (6), Punishment. but a capital sentence is never demanded, and penal servitude is the punishment inflicted. Attempts and minor offences are punished by penal servitude or imprisonment.

commit fire

movables to the


By statute (7), any owner, captain, master, officer, STATUTORY or mariner wilfully casting away, burning, or otherwise


1 Hume i. 128.- Alison i. 433. 6 Acts 7 Ann c. 21.-1 Geo. i. stat.

2 Arch. Phaup, H.C., Nov. 9th 2 c. 48, § 4. 1846 ; Ark. 176 (Lord Justice Clerk 7 Act 29 Geo. III. c. 46, § 1. Hope's statement to jury).

The subsequent statute, 43 Geo. 3 Geo. Macbean, Inverness, III. c. 113, which Hume says April 15th 1847 ; Ark. 262.

to apply to Scotland, was Hume 1. 135. -Alison i. 442, repealed by Geo. IV. c. 31. In 443.-Will. Douglas, H.C., May the case of Will, Kidd, H.C., Feb. 28th 1827 ; Syme 184.

25th 1850, the statute 43 Geo. III. 5 John Arthur, H.C., March was libelled on (Indictment, Adv. 16th 1836 ; 1 Swin. 124.

Lib. Coll.), either under the idea




common law.

destroying the ship or vessel of which he is an owner, or to which he belongs, or directing or procuring the doing of such an act, with intent to prejudice insurers, or merchants putting goods in the ship, or owners, is liable to capital punishment.

In such a case, according to modern practice, a sentence of death would Is an offence at not be demanded by the prosecutor. Such offences

were held punishable at common law, before the passing of the statute, and without the limitation of persons stated in it (1).

It is a question whether wilfully destroying a ther destroying vessel of another vessel, the property of another, though there be no

fraud intended, is a punishable crime. In one case such a charge was sustained (2); but in a later case it was withdrawn (3). It seems clear such an act is criminal

Question whe

per se relevant



The term mischief, preceded by such adjectives as inalicious, or wanton, or wilful, applies to all injuries to, or destruction of, property where there is no taking, but only the indulgence of cruel or malicious passion, or an attempt to concuss others by injuring their property.

It includes all such cases as destroying another's buildings, or stone dykes, breaking fences, cutting up turf, injuring trees, tearing up plants, breaking windows, throwing down corn stacks, firing piles of wood or peats, removing the bungs of casks

that the repealing statute did not apply to Scotland, or in ignorance of the repeal. In that case the judges were not satisfied that the Act 43 Geo. III. did apply to Scotland, and the charge was passed from. (Lord Justice--Clerk Hope's MSS.) The terms of the repealing statute seem to indicate that the act never did apply to Scotland.

1 Hume i., 176, 177, cases of M'ver and M‘Allum: and M.Nair there. -i. 486, case of Herdman there.-Alison i. 641.

2 Will. Kidd, H.C., Feb. 25th 1850; Lord Justice Clerk Hope's DISS.

3 John Martin, H.C., July 22nd 1858; 3 Irv. 177.




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containing liquids, breaking implements or apparatus Scope OF TERM (1), or destroying or maiming animals (2). It also includes maliciously placing any thing on a railway, railway. to obstruct trains; or wilfully and recklessly doing so in a manner calculated to obstruct them (3). This sort of mischief has also formed the subject of special statutory enactment (4), by which it is made an offence wilfully to “ do or cause to be done any thing “ in such manner as to obstruct any engine or carriage

using any railway; or to endanger the safety of persons conveyed in or upon the same; or to “ aid

or assist therein.” It is a question whether under this act any thing can be charged except a case of actual obstruction, or imminent danger (5). But the common law charge will be a safe resort in every case of difficulty. In cases of injury to inanimate property, as by Intent not

readily presumed cutting up turf, or breaking down an obnoxious fence, where civil or the like, partaking of the character of trespass, and dispute. being frequently the result of disputed questions of civil right, some degree of violence and disorderly conduct is usually required to constitute a charge of mis

rights are in

1 Hume i. 122, cases of Robertson : Leitch : Grant: and Monro there.-i. 123, two cases of Trotter there.--Alison i. 448, 449, 450, and cases of Muir : Campbell : and Vaudenburgh there.—i. 451, case of Monro there. By certain old statutes special penalties attached to injuring ploughing apparatus or beasts of draught at particular seasons, and to injuring young wood, breaking dovecots, &c. But such offences would probably be prosecuted now without regard to these statutes, which have long been in desuetude, and applied to times very different from the present.

2 Hume i. 124, and case of Bellie there.--Alison i. 450, and cases of

Wilson : Clark : and Burton there.
-Archibald Thompson, Perth,
April 25th 1874; 2 Couper 551.-
Andrew Stewart, Aberdeen, April
28th 1874 ; 2 Couper 554. In the
case of Patrick M‘Guire, Glasgow,
Sept. 1826, a charge of wickedly
and feloniously slaughtering any
cow or other animal the property
of another, without the consent of
the owner thereof was sustained.
Indictment and Lord Justice-
General Boyle's MSS.

3 David Miller, H.C., July 24th

Ark. 525.-John E. Mur
doch, Perth, May 2nd 1849; J
Shaw 229.

4 Act 3 and 4 Vict. c. $ 15.
5 David Miller (supra).



chief (1). Where the servants of the buyer of some wood refused to unload their master's cart at the command of the seller, (the condition of sale being payment before removal, and the price not having been paid), and the seller cut part of the harness, it was held that this was not a case of that reckless and

wilful destruction of property which constitutes Property injured malicious mischief (2). Even if mischief be done for fraudulent purpose.

with a fraudulent intent, that does not necessarily constitute malicious mischief. Where a farmer was charged with breaking beams in a farm house, to increase a claim for damage alleged to be due to him as tenant, the charge of malicious mischief was held

irrelevant (3) Question whe- It has not been decided whether “attempt to comther unsuccessful attempt indict- “mit malicious mischief” is a relevant charge, or

whether a deliberate attempt to injure another's property, the success of which is prevented, may not amount to criminal mischief. Where a woman threw stones at windows, which failed to break them, in consequence of their being (unknown to her) protected by wire guards, the Court, without giving any opinion, recommended the withdrawal of the charge (4)

Besides previous conviction, criminal mischief may be aggravated by its intent, as in the case of damage done to property, in order to concuss masters or

workmen (5), or by its being committed by means of Housebreaking. housebreaking (6.)

1 Hume i. 124, and cases of Rigg 6 David Munro, July 12th 1831 ; and Trotter ; and Dunbar there.- Bell's Notes 48. In an earlier case Alison i. 449.

a charge of aggravation by house2 Speid v. Whyte, Perth, Sept. breaking was found irrelevant 30th 1864; 4 Irv. 584.

(Colin Campbell, Inverary, Sept. 3 Will. Reid, Ayr, Sept. 1833 ; 13th 1823; Shaw 105). But the Bell's Notes 47.

report does not indicate whether 4 Ann Duthie, Aberdeen, April the general question, or only the 24th 1849; J. Shaw 227.

terms of the particular indictment, 6 Arch. Barr and others, June formed the foundation of the ob30tb 1834; Bell's Notes 47.


It would rather appear goods in loom or



The punishment of malicious mischief is generally PUNISHMENT. imprisonment, or in trifling cases a fine. By certain old statutes (1), destroying or houghing horses or cattle, and cutting growing wood or corn, are capital crimes, but these statutes are obsolete.

But by a more recent statute (2), wilfully and maliciously Destroying cutting or destroying serge or other woollen goods in weaving apthe loom, or on the rack, or burning, cutting, or destroying any rack on which such goods are hung to dry, or any velvet, or silk, or mixed silk goods in the loom, or any linen or cotton, or mixed linen or cotton goods in the loom, or any of the apparatus used in these manufactures, are crimes punishable with death. In such cases, however, the pains of law are invariably restricted to an arbitrary punishment.


breaking, as libelled, is not rele

to have been the latter only. For the words of the report are—"find “that the aggravation of house

" vant."

1 Acts 1581, c. 110— 1587, c. 83.
2 Act 29 Geo. III. c. 46.

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