guilty of burglary. Sec. 54-Whosoever shall enter any dwelling-house in the night,' with intent to commit any felony therein, shall be guilty of felony.' Sec. 58Whosoever shall be found by night armed with any dangerous or offensive weapon or instrument whatsoever, with intent to break or enter into any dwellinghouse or other building whatsoever, and to commit any felony therein, or shall be found by night, having in his possession without lawful excuse (the proof of which excuse shall lie on such person) any picklock, key, crow, jack, bit, or other implement of housebreaking, or shall be found by night having his face blackened, or otherwise disguised, with intent to commit any felony, or shall be found by night in any dwelling house or other building whatsoever with intent to commit any felony therein, shall be guilty of a misdemeanor.

Larceny2 (at Common Law) is the unlawful taking and carrying away of the personal property of another with the intent feloniously (animo furandi) to convert the same to the taker's own use, and permanently to deprive the rightful owner.3 Larceny is defined by Blackstone to be 'plain theft, unaccompanied with any other atrocious circumstance." Larceny accompanied with circumstances of aggravation is termed compound, mixed, or complicated larceny. The Statute Law of

1 Sec. 1-For the purposes of this Act the night shall be deemed to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeeding day.'

2 By the 24 & 25 Vic. c. 96, s. 2, the distinction between Grand and Petty Larceny is abolished. It enacts-Every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the 21st day of June, 1827.'

3 See 4 Steph. Com., p. 203 et seq.

4 4 Blac., p. 229.

England and Ireland relating to larceny and other similar offences, is consolidated by 24 and 25 Vic. c. 96.

The goods taken must, in the absence of any express statutable enactment, appear in evidence to be personal goods; for none other can be the subject of larceny at Common Law.

Larceny cannot be committed at Common Law of chattels real, or of things attached to or savouring of the realty.1

There must not only be a taking, but a carrying away (cepit et asportavit); a bare removal, however, from the place in which the thief found the goods is a sufficient asportation, or carrying away, though he did not succeed in making off with them.2

1 Property.-Things which are the subjects of property are either real or personal. Things real are those which are permanent and immoveable. They consist of lands and other tenements. The word 'land' includes the surface and substance of the earth, and everything which is permanently fixed or incident to it, such as houses, woods, waters, mines, fossils: cujus est solum, ejus est usque ad cœlum.

Things personal are divided into chattels (catalla) real and chattels personal. Chattels are such things as are not hereditary, but testamentary, as moveable goods, leases for years, wardships of lands and body, and the like: they are called testamentary, as well because, by the course of the Common Law, things only of that nature, and not hereditaments, might be disposed of by will and testament, as also because, after the death of the testator, the law does transfer the same to the executor of his last will and testament for the payment of his debts and legacies; for until a Statute made 32 Henry VIII., hereditaments were not disposable by will, if the testator had therein any greater estate than for years; such hereditaments excepted as were devisable by will, by a special custom, and not by the Common Law.'-Noy, p. 357. Chattels real are properly such as savour of the realty-viz., consist of such things as are in their nature hereditary, wardships of lands, or of other hereditaments, leases, or interests for years, or at will, derived out of anything whereof an estate of freehold or inheritance has or had a being.'-Noy, p. 358.

Chattels personal' are goods moveable, as goods, plate, money, oxen, kine, &c. Creatures fera naturæ, as deer, conies, hares, and such like, are not goods or chattels, except they are made tame. Any charters or deeds of an estate of inheritance or freehold, although they are moveable, are not chattels.'-Noy, p. 359.

2 Steph. Com., vol. iv. p. 205.

Embezzlement.-The 7 & 8 Geo. IV. c. 29, s. 47, enacts-If any clerk or servant, or any person employed for the purpose or in the capacity of a clerk or servant, shall, by virtue of such employment, receive or take into his possession any chattel, money, or valuable security, for or in the name or on the account of his master, and shall fraudulently embezzle the same, or any part thereof, he shall be deemed to have feloniously stolen the same from his master, although such chattel, money, or security, was not received into the possession of such master, otherwise than by the actual possession of his clerk, servant, or other person so employed.'

The crime of embezzlement by a servant, as distinguished from larceny, consists in its being committed in respect of property which is not, at the time of the wrongful appropriation, in the actual or legal possession of the owner.1 If the servant received the property and converted it to his own use before it came to the possession of the master, the offence is embezzlement ; whereas, if the property had come to the possession of the master, and the servant afterwards converted it to his own use, it is larceny; the punishment of which

1 See R. v. Gill, 1 Dearsley's C. C. R., p. 289.

2 Servants within the meaning of the Act.-A female servant; an apprentice, though under age; a person employed as accountant and treasurer to the overseers of the poor; a collector of poor and other rates; and in indictments for larceny and embezzlement, a collector, or assistant overseer, shall be described as the servant of the inhabitants of the parish whose money or property he shall be charged with having embezzled or stolen; a clerk to a savings-bank; a steward receiving money for his employers, even though they had no right to it, and were wrongdoers in receiving it; a clerk of a corporation, though not appointed under their common seal; a traveller employed to take orders and collect money, though paid by a percentage or share of the profits, and employed by others as well as the prosecutor; a member of and secretary to a society, who withheld money received from another

is regulated by Sec. 46 of the same Act. A verdict for embezzlement may be had on an indictment charging larceny, and vice versa.1

Cheating and False Pretences.-'Whosoever shall by any false pretence2 obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of a misdemeanor.'3

Wherever a person fraudulently represents as an existing fact, that which is not an existing fact, and so gets money, &c., that is an offence within the Act. All

member, it being the duty of the former to pay over the amount to the trustees; a person employed only upon one specific occasion to receive money; a journeyman miller not employed as clerk or accountant, but in the habit of selling small quantities of meal on his master's account; a servant intrusted with the receipt of money from particular persons, who received from other persons and embezzled it; have severally been held to be punishable by the Statute. But, in order to render him liable, it is necessary that the money should have been received in the course of the servant's employment; as where a debtor of the prisoner's employer paid the prisoner £5, supposing him to be authorized to receive it, which he was not, and the prisoner never accounted for this money; this was held no embezzlement. So in the case of a servant employed to look after goods, but not intrusted with the receipt of money; so also of a butcher's boy whose duty it was to carry out meat, but had never been employed to receive money; and where the prisoner was employed to lead a stallion, with authority to charge and receive a fixed sum, but not less, and he received a less sum and embezzled it, this was held not to be within the Statute, because the money was not received by virtue of his employment.

1 24 and 25 Vic., c. 96, s. 72. See Campbell's Acts, by Greaves, p. 68 et seq.

? It is not necessary that words should be used; where a party gave a cheque on a banker with whom he had no account-this was held a false pretence; so where a man obtained goods and money for a forged note of hand for ten shillings and sixpence; so where a man assumed the name of another to whom money was required to be paid by a genuine instrument; so also where a defendant assumed the gown and cap of a member of the University of Oxford, but was not so, and obtained goods by the fraud. But where the prisoner had passed a note of a country bank which he knew had stopped payment, but one of the parties was solvent, it was held he could not be convicted for obtaining money under false pretences.

3 24 and 25 Vic., c. 96, s. 88.
4 Reg. v. Wooley, 1 Den. C. C.,

p. 559.

сс

2

cases where the false pretence creates the credit are within the Statute. But a false representation merely as to the quality of goods sold or pledged, is not indictable, and is clearly distinguishable from fraudulently representing a spurious article to be the genuine.3 A pretence that the party will do an act notwithstanding that he does not intend to do it, e.g., to pay for goods on delivery, is not a false pretence within the Act, but merely a promise for future conduct. These illustrations will suffice to indicate the scope of the section, and a little reflection will enable the reader to draw the line aimed at by the Legislature, which, though not always easy to track, still necessarily exists between that puffing and promising which unfortunately exists to far too great an extent among tradesmen, but which, however objectionable, is not criminal, and the fraud which it is the aim of the Legislature to suppress.

Crimes against the Reputation.-Libel (written Slander) may be defined to be the malicious publication of an unlawful defamation, expressed either in printing, writing, picture, or sign.

MALICE (malitia præcogitata, or malice prepense or aforethought), or criminal intent, is the formed design of doing harm or mischief to another. Malice, in law, is either express or implied. The law implies or presumes malice when the natural and obvious tendency of the act is to harm, res ipsa in se dolum habet-the facts speak for themselves.5

1 Reg. v. Witchell, 2 East P. C., p. 830.

2 Reg. v. Bryan, 1 Dears and B. C. C., p. 265.

3 Reg. v. Dundas, 6 Cox, C. C., 380.

Reg. v. Goodhall, R. and R., p. 461.

5 Answer of the Judges to the House of Lords, 8 Scott, N. R., pp. 595, 601. Haire v. Wilson, 9 B. and C., p. 643.