MALTCIOUS INJURY TO TREES, ETC. 137 



to the tree itself ; and hence where prisoners were indicted for maliciously 

 damaging trees cjroicing in a licdgc, to an amount exceeding £5, and it 

 was proved they had injured trees to the amount of £1, and that to 

 repair the injury it was necessary to stub up the old hedge, and further, 

 that putting in and protecting a new hedge would cost, including the 

 £1 for injury to the ti-ees, a sum exceeding £5, it was held that there 

 was no evidence of injury to the trees to the amount of £5. The above 

 section makes it felony unlawfully and maliciously to cut up and destroy 

 ■ trees growing in a ijanlcn, &c., if the injury exceed £1. 



Section 20 of this act inflicts a fine not exceeding £5 beyond the injury 

 done, for unlawfully and maliciously cutting up and destroying ireets 

 wherever fjrou'lngi^ the injury amount to Is., upon conviction before a 

 justice ; section 21 inflicts imprisonment or forfeiture not exceeding 

 £20 beyond the injury done, for unlawfully and maliciously destroying 

 or damaging with intent to destroy any vegetahle production growing in 

 ang garden, &c., upon like conviction : section 22 inflicts imprisonment 

 for a shorter term or forfeiture (not exceeding 20.s-.), as before, fur 

 unlawfully and maliciously destroying, damaging with intent to destroy, 

 ang cultivated root, plant, dr., used for food, medicine, or manufacture 

 growing in tlie land not being a garden, upon like conviction ; and section 

 24 inflicts, upon conviction before a magistrate, a forfeiture of such sum 

 not exceeding £5, as shall appear to the magistrate a reasonable com- 

 pensation for wilfully or maliciously committing any damage, injury, or 

 spoil to or upon ang real or personal propertg, public or private, for 

 which no remedg or punishme?it is in the act before provided. And senible, 

 section 24 is inapplicable to damage to growing trees ; but neither under 

 that nor any other section is a committal or conviction good which 

 states the offence to be wilfully and maliciously cutting up and destroy- 

 ing fruit trees in a garden, or wilfully and maliciously committing 

 damage, injury, and spoil to real property, to wit, fruit trees, without 

 a finding as to the amount of damage (Charter v. Graeme and Simpson). 



Tfw occupier of land is bound to fence off ang hole on it which adjoins 

 or is close to a public way, and he is prima facie liable for any accident 

 which may happen from his negligence in this respect {Barnes v. Ward). 

 One of the first reported cases of this kind was that of Bhjthe v. Topham, 

 where it was held that if A,, seised of a waste adjacent to a highway, 

 digs a pit in the waste within 3G feet of the highway, and the mare of 

 B. escapes into the waste and falls into the pit, and dies there, yet B. 

 shall nob have an action against A., because the making of the pit in the 

 waste and not in the highway was not any wrong to B., but it was the 

 default of B. himself that his mare escaped into the waste. The 

 existence of the pit in the waste adjoining the road was clearly not 



