6. Of injuries to stacks of corn, &c. crops, plantations, &c. By § 17. maliciously setting fire to any stack of corn, grain, pulse, straw, hay, or wood, is a capital felony; and maliciously setting fire to any crop of corn, grain, or pulse, whether standing or cut down, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorze, furze, or fern, wheresoever the same may be growing, is a felony, subjecting the offender to seven years transportation, or two years imprisonment; and if a male, whipping.

7. Of injuries to hopbinds and trees.

By $ 18. maliciously cutting or otherwise destroying any hopbinds growing on poles in any plantation of hops, is a felony, punishable with transportation for life or not less than seven years, or imprisonment for four years, and whipping, By $19. maliciously cutting, breaking, barking, rooting up, or otherwise destroying or damaging the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house (in case the amount of the injury done shall exceed the sum of one pound,) is a felony, subjecting the offender to be transported for seven years, or to be imprisoned for not exceeding two years; and if a male, to be whipped; and maliciously cutting, breaking, barking, rooting up, or otherwise destroying or damaging the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing elsewhere than in any of the situations hereinbefore mentioned, is also a felony (in case the amount of the injury done shall exceed the sum of five pounds,) liable to any of the punishments hereinbefore last mentioned.

By § 20. if any person shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be respectively growing, the injury done being to the amount of one shilling at the least, every such offender, being convicted before a justice of the peace, shall for the first offence forfeit and pay, over and above the amount of the injury done, not exceeding five pounds; and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, he shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labour for not exceeding twelve calendar months; and if such second conviction shall take place before two justices, they may further order the offender, if a male, to be whipped, after the expiration of four days from the time of such conviction; and if any person so twice convicted shall afterwards commit any of the said offences, such offender shall be deemed guilty of felony, and being convicted, shall be liable to any of the punishments which the court may award for the felony hereinbefore last mentioned.

Dwarf apple and pear trees are trees within the statute. R. & R. 373.

As to injuries to fruit, &c. see Gardens.

MALICIOUS/INJURIES, 9.

vided, every such person, being convicted thereof before a justice of the peace, shall forfeit such sum of money as shall appear to the justice to be a reasonable compensation for the damage, injury, or spoil so committed, not exceeding five pounds; which sum of money shall, in the case of private property, be paid to the party aggrieved, except where such party shall have been examined in proof of the offence; and in such case, or in the case of property of a public na ture, or wherein any public right is concerned, the money shall be applied in such manner as every penalty imposed by a justice of the peace under the act is hereinafter directed to be applied; and if such sum of money, together with costs (if ordered,) shall not be paid either immediately after the conviction, or within such period as the justice shall at the time of the conviction appoint, the justice may commit the offender to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, as the justice shall think fit, for not exceeding two calendar months, unless such sum and costs be sooner paid: provided that nothing herein contained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act com. plained of, nor to any trespass, not being wilful and malicious, committed in hunting, fishing, or in the pursuit of game, but that every such trespass shall be punishable in the same manner as before the passing of the act.

9. The general provisions of the statute.

By § 25. every punishment and forfeiture by the act imposed on any person maliciously committing any offence, whether the same be punishable upon indictment or upon summary conviction, shall equally apply and be enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed, or otherwise.

By § 26. in the case of every felony punishable under the act, every principal in the second degree, and every accessory before the fact, shall be punishable with death or other wise, in the same manner as the principal in the first degree is by this act punishable; and every accessory after the fact to any felony punishable under this act, shall, on conviction, be liable to be imprisoned for not exceeding two years; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender.

By § 27. where any person shall be convicted of any indictable offence punishable under the act, for which imprisonment may be awarded, the court may sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour.

By § 28. for the more effectual apprehension of all offenders against the act, it is enacted, that any person found committing any offence against the act, whether the same be punishable upon indictment or upon summary conviction, may be immediately apprehended without a warrant, by any peace officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring justice of the peace, to be dealt with according to law.

By § 29. the prosecution for every offence punishable on summary conviction under the act, shall be commenced within three calendar months; and the evidence of the party ag grieved shall be admitted in proof of the offence, and also the evidence of any inhabitant of the county, riding, or division in which the offence shall have been committed, notwithstanding any forfeiture incurred by the offence, may be payable to the general rate of such county, &c.

for building, repairing, or fitting out of ships or vessels; or any of his majesty's military, naval, or victualling stores, or other ammunition of war, or any place or places where the same shall be kept, placed, or deposited, he is guilty of a capital felony.

By § 2. any person who shall commit any of such offences out of the realm may be indicted and tried in any county within the realm.

By the 4 Geo. 3. c. 37. for establishing and incorporating the British Linen Company, it is enacted, § 16, that if any person shall, by day or night, break into any house, shop, cellar, vault, or other place or building, with intent to steal, cut, or destroy any linen belonging to any manufactory, or the looms, tools, or implements used therein, or shall wilfully or maliciously cut in pieces or destroy any such goods, either when exposed to bleach or dry, every such offender shall be guilty of felony, and shall suffer as in cases of felony without benefit of clergy."

By the 13 Geo. 3. c. 38. § 29. for incorporating the British Plate Glass Company (revived by 33 Geo. 3. c. 17. § 21.) it is enacted, "that if any person or persons shall, by day or night, break into any house, shop, cellar, vault, or other place or building belonging to the said manufactory, or wherein the same shall be then carrying on, with intent to steal, cut, break, or otherwise destroy any glass or plate glass, wrought or unwrought, or any materials, tools, or implements, used in, for, or about the making thereof, or any goods and wares belonging to the said manufactory, or shall steal or wilfully or maliciously cut, break, or otherwise destroy any such glass, materials, tools, or implements, every such offender, being lawfully convicted, shall be guilty of felony, and be transported for not exceeding seven years." By the 54 Geo. 3. c. 42. the destruction of goods in the course of manufacture, and of the machinery employed therein, are felonies punishable with transportation for life or years. Its provisions seem to be embodied in the 3d section of the 7 & 8 Geo. 4. c. 30. See ante, 2.

The enactments of the 7 & 8 Geo. 4. c. 29. with respect to destroying records, wills, title-deeds, and other documents, have already been noticed under tit. Larceny, I. MALIGNARE. To malign, to slander; it has been interpreted to maim. See Leg. Hen. 1. c. 11. MALIGNUS, i. e. Diabolus.

MALO GRATO. In spite; unwillingly. Hence the French malgré, and the old English, maugre. Libertatem ecclesiæ, &c. malo grato stabilierunt, i. e. he being unwilling. Mat. Paris, 1245.

MALT. By stat. 12 An. st. 1. c. 2. no malt shall be imported on pain of forfeiting the same and the value thereof.

The intercourse of malt between Great Britain and Ireland is now permitted and regulated under stat. 50 Geo. 3. cc. 34, 53.

Malt may be exported from any part of the United Kingdom without duty or bounty, 54 Geo. 3. c. 69.

By the 7 & 8 Geo. 4. c. 52. the laws relative to the making of malt, and the revenue of excise thereon, were consolidated and amended; but many of its provisions have been repealed and others substituted by the 11 Geo. 4. and 1 Will. 4. c. 17. By the 1 & 2 Will. 4. c. 55. the laws for suppressing the illicit making of malt, and distillation of spirits in Ireland, were consolidated and amended, and a variety of former acts repealed.

By the 2 Will. 4. c. 29. the allowance in spirits made from malt only, in Scotland and Ireland, was reduced.

By the act for the general regulation of the customs, 3 & 4 Will. 4. c. 52. § 58. malt is prohibited to be imported under the penalty of forfeiture, but by § 59. it may be warehoused for exportation.

There was formerly not only a direct heavy duty on malt, but another on beer, which together were equivalent to an

ad valorem tax of from 140 to 175 per cent. The beer duty was however repealed in 1830.

MALT-HOUSE. See Malicious Injuries, I.

MALT MULNA. A quern, or malt-mill. Mat. Paris's Lives of the Abbots of St. Albans, &c.

MALT-SHOT. Malt-scot. Some payment for making malt. Somner of Gavelkind, p. 27.

MALVEILLES, from Fr. malvoillance.] Is used in our ancient records, for crimes and misdemeanors, or malicious practices. Record, 4 Edw. 3.

MALVEISA. A warlike engine to batter and beat down walls. Matt. Paris.

MALVEISIN, Fr. mauvais voisin, malus vicinus.] An ill neighbour.

MALVEIS PROCURORS. Are understood to be such as used to pack juries, by the nomination of either party in a cause, or other practice. Artic. super Chart. cap. 10. MALUM IN SE. Our law books make a distinction between malum in se and malum prohibitum. Vaugh. 332. All offences at common law are generally in mala in se; but playing at unlawful games, and frequenting of taverns, &c. are only mala prohibita to some persons, and at certain times, and not mala in se. 2 Rol. Abr. 355. See Homicide, II.

MAN, ISLE OF. An island off the coast of Cumberland, Westmoreland, and Lancashire, in the channel that parts Ireland from England.

This island was a distinct territory from England, and out of the power of our chancery, or of original writs which issue from thence. And in the case of the Earl of Derby, it was adjudged, that no man had any inheritance in this isle, but the earl and the bishop; and that they are governed by laws of their own, so that no statute made in England did bind there without express words, in the same manner as in Ireland. 1 Inst. 9; 4 Inst. 284; 7 Rep. 21; 2 And. 115.

According to Blackstone, it seems that this distinction is still preserved; he states that it is a distinct territory from England, and is not governed by our laws; neither doth any act of parliament extend to it, unless it be particularly named therein; and then an act of parliament is binding there. Comm. 105; Introd. § 4; cites 4 Inst. 284; 2 And. 116.

1

It was formerly a subordinate feudatory kingdom subject to the kings of Norway; then to King John and Henry III. of England; afterwards to the kings of Scotland; and then again to the crown of England; and at length we find King Henry IV. claiming the island by right of conquest, and disposing of it to the Earl of Northumberland, upon whose attainder it was granted by the name of the Lordship of Man, to Sir John de Stanley, by letters patent, 7 Hen. 4. In his lineal descendants it continued for eight generations, until the death of Ferdinando, Earl of Derby, A. D. 1594; when a controversy arose concerning the inheritance thereof, between his daughters and William his surviving brother; upon which, and a doubt that was started concerning the validity of the original patent, the island was seised into Queen Elizabeth's hands, and afterwards various grants were made of it by King James I. All which being expired or surrendered, it was granted afresh in 7 Jac. 1. to William Earl of Derby and the heirs male of his body, with remainder to his heirs general: and by a private act of that year, chap. 4. confirmed and assured to the right heirs of James Lord Stanley, seventh Earl of Derby, with the restraint of the power of alienation. On the death of James the late Earl of Derby, A. D. 1735, the male line of Earl William failing, the Duke of Athol succeeded to the island, as heirgeneral by a female branch. In the mean time, though the title of King had long been disused, the Earls of Derby, as Lords of Man, had maintained a sort of royal authority therein, by assenting to or dissenting from laws, and exercising an appellate jurisdiction; yet, though no English writ or process from the Courts of Westminster was of any au

a command, issuing in the king's name from the Court of King's Bench, and directed to any person, corporation, or inferior court of judicature, within the king's dominions; requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least supposes to be consonant to right and justice.

It is a high prerogative writ of a most extensive remedial nature, and may be issued in some cases where the injured party has also another more tedious method of redress, as in the case of admission or restitution to an office; but it issues in all cases where the party hath a right to have any thing done, and hath no other specific means of compelling its performance. 3 Comm. c. 7. p. 110.

Where, however, the party has a complete and specific redress at law, it is conceived that the circumstance of its being a more tedious method will not be sufficient to warrant the court in granting a mandamus. For there must be a specific legal right, as well as the want of a specific legal remedy, in order to found an application for a mandamus. Per Lord Ellenborough, 8 East, 219. But where the remedy is inadequate, the writ may issue; thus, where a party refuses to do some act which by law he ought to do, and the nonfeasance of which is injurious to the public, though this be an indictable offence, that will not prevent the issuing of a mandamus, for the indictment will not directly compel the performance of the act; the offender may be fined or imprisoned, but if he be obstinate, the party injured has no complete remedy. 2 B. & A. 646. Neither does the instance put by Mr. Justice Blackstone, of an admission to an office, seem to be in point; for though a mandamus will undoubtedly lie for such a purpose, yet it lies specifically, because the party without it would have no legal remedy by action. It is proper also to add another qualification; if the right in dispute be strictly and wholly private, the court will not interfere: a mandamus is properly a writ to compel the performance of public or, at least, official duties; and therefore the court, considering the Bank of England as a mere corporation of private traders, so far as regarded its internal management of its own concerns, refused to issue a mandamus upon the application of a member to compel the directors to produce their accounts in order to make a dividend of all their profits. 2 B. & A. 620; 5 B. & A. 899. See Coleridge's Note to 3 Comm. 110.

I. In what cases a Mandamus will lie.
II. Of the Writ and Return.

I. A mandamus lies to compel the admission or restoration of the party applying to any office or franchise of a public nature, whether spiritual or temporal, to academical degrees, to the use of a meeting-house, &c. It lies for the production, inspection, or delivery of public books and papers; for the surrender of the regalia of a corporation; to oblige bodies corporate to affix their common seal; to compel the holding of a court; and for an infinite number of other purposes, which it is impossible to recite minutely. But on this part of the subject it is to be particularly remarked, that it issues to the judges of any inferior court, commanding them to do justice according to the powers of their office, wherever the same is delayed. For it is the peculiar business of the Court of King's Bench to superintend all inferior tribunals, and therein to enforce the due exercise of those judicial or ministerial powers with which the crown or legislature have invested them; and this not only by restraining their excesses, but also by quickening their negligence, and obviating their denial of justice. A mandamus may therefore be had to the courts of the city of London to enter up judgment, (Raym. 214,) to the spiritual courts to grant an administration, to swear a churchwarden, and the like. 3 Comm. 110.

This writ of mandamus is also (as has already been hinted) made, by 9 Ann. c. 20. a most full and effectual remedy, in

the first place, for refusal of admission where a person is entitled to an office or place in any corporation; and, secondly, for wrongful renewal when a person is legally possessed. There are injuries for which, though redress for the party interested may be had by assise or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the Court of King's Bench, commanding, upon good cause shown to the court, the party complaining to be admitted or restored to his office. And the statute requires that a return be immediately made to the first writ of mandamus; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue or demur, and the same proceedings may be had as if an action on the case had been brought for making a false return; and after judgment obtained for the prosecutor, he shall have a preremptory writ of mandamus to compel his admission or restitution; which latter, in case of an action, is effected by a writ of restitution. 11 Rep. 79. So that now the writ of mandamus, in cases within this statute, is in the nature of an action whereupon the party applying and succeeding may be entitled to costs in case it be the franchise of a citizen, burgess, or freeman. 12 Geo. 3. c. 21. Also in general a writ of error may be had thereupon. 1 P. Wms. 351; 3 Comm. c. 17. p. 265.

By 1 W. 4. c. 21. § 3. the enactments of the 9 Ann. c. 20. relating to returns within that statute, are extended to all other writs of mandamus. See post, II.

This writ of mandamus may also be issued in pursuance of 11 Geo. 1. c. 4. in case within the regular time no election shall be made of the mayor or other chief officer of any city, borough, or town corporate, or being made it shall afterwards become void, requiring the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so respectively chosen. 3 Comm. 265.

By the common law the Court of King's Bench had authority to grant a mandamus to fill up the vacancy occasioned by the death of a mayor or other chief officer of a borough or corporation within the year; but where the vacancy arose from an omission or neglect to elect such officer on the day fixed by the charter, or upon the removal of one unduly chosen, the court could not compel an election before the day again came round. Consequently, an omission to make an election on the appointed day, whether arising from fraud, inadvertence, or accident, or the removal of an officer improperly elected, might occasion a forfeiture of the charter, and a dissolution of the corporation.

It was to remove these inconveniences that the above statute was passed, and being a remedial act it has been very liberally construed; for though three or four years have elapsed since a regular election, the court will grant a mandamus under it. See Bull. N. P. 201 a; Selw. N. P. 1064. And a mandamus has been granted where there was a mayor de facto, it appearing clearly there was no due election. 2 Str. 1003. 1157. And see 3 Burr. 452; 4 Burr. 2005.

Under the statute a mandamus may be granted to proceed to the election of any annual officer, as well as of the mayor or head officer. 2 T. R. 732.

And the statute is not confined to annual officers, but was held to extend to the appointment of burgesses who, under a charter, were elected for life. 8 East, 270.

To enumerate, with any degree of particularity, the various offices and situations to which a person may be admitted or restored by this writ, would take up more space than the nature of our work allows. The following, however, is a summary of so general a nature as, with what has already been said, may give an idea of the extensive use and nature of this remedy.

It has been granted to admit and restore a mayor, alderman, jurat, common council-man, recorder, high steward, town clerk, liveryman, member of the court of assistants, burgess, bailiff, serjeant or freeman of a company or a cor