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No certiorari, &c.
to be return
ed to the Quarter sessions.
custody; and the court at such sessions shall hear and de-
LXXIII. And be it enacted, that no such conviction or adjudication made on appeal therefrom shall be quashed for want of form, or be removed by certiorari or otherwise into any of his majesty's superior courts of record; and no warrant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same.
LXXIV. And be it enacted, that every justice of the peace, before whom any person shall be convicted of any offence against this act, shall transmit the conviction to the next court of general or quarter sessions which shall be holden for the county or place wherein the offence shall have been committed, there to be kept by the proper officer among the records of the court; and upon any indictment evidence in or information against any person for a subsequent offence, future cases. a copy of such conviction, certified by the proper officer of the court, or proved to be a true copy, shall be sufficient evidence to prove a conviction for the former offence, and the conviction shall be presumed to have been unappealed against, until the contrary be shewn.
Notice of action.
Venue, in LXXV. And, for the protection of persons acting in the proceedings execution of this act, be it enacted, that all actions and against per prosecutions to be commenced against any person for any sons acting thing done in pursuance of this act, shall be laid and tried in the county where the fact was committed, and shall be commenced within six calendar months after the fact committed, and not otherwise; and notice in writing of such action, and of the cause thereof, shall be given to the defendant one calendar month at least before the commenceGeneral is- ment of the action; and in any such action the defendant sue, &c. may plead the general issue, and give this act and the special matter in evidence at any trial to be had thereupon; and no plaintiff shall recover in any such action if tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into court after such action brought, by or on behalf of the defendant; and if a verdict shall pass for the defendant, or the plaintiff shall become nonsuit, or discontinue any such action after issue joined, or if, upon demurrer or otherwise, judgment shall be given
against the plaintiff, the defendant shall recover his full costs as between attorney and client, and have the like remedy for the same as any defendant hath by law in other cases; and though a verdict shall be given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant, unless the judge before whom the trial shall be, shall certify his approbation of the action, and of the verdict obtained thereupon.
LXXVI. Provided always, and be it enacted, that no- This act not thing in this act contained shall extend to Scotland or to extend to Ireland, except as follows; (that is to say,) that if any Ireland, experson, having stolen or otherwise feloniously taken any cept in two chattel, money, valuable security, or other property what- cases. soever, in any one part of the united kingdom, shall afterwards have the same property in his possession in any other part of the united kingdom, he may be dealt with, indicted, tried, and punished for larceny or theft in that part of the united kingdom where he shall so have such property, in the same manner as if he had actually stolen or taken it in that part; and if any person in any one part of the united kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever, which shall have been stolen or otherwise feloniously taken in any other part of the united kingdom, such person knowing the said property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, tried, and punished for such offence in that part of the united kingdom where he shall so receive or have the said property, in the same manner as if it had been originally stolen or taken in that part.
LXXVII. And be it enacted, that where any felony or To extend misdemeanor punishable under this act, shall be com- committed mitted within the jurisdiction of the admiralty of England, at sea. the same shall be dealt with, inquired of, tried, and determined in the same manner as any other felony or misdemeanor committed within that jurisdiction.
Note. For the following summary of the law of larceny, the editor is indebted to the kindness of Mr. Banks Robinson, of Lincoln's Inn :
Larceny has been defined by Bracton, "contrectatio rei alienæ, fraudulenter, cum animo furandi, invito illo domino, cujus res illa fuerit: Lib. 3, c. 32.-And, in Hammon's case, 2 Leach, 1189, per Grose, J., in delivering the opinion of the court, it was laid down, that the true meaning of larceny is, "the felonious taking the goods of another, without his consent and against his
will, with intent to convert them to the use of the taker."
It is proposed to consider the offence of larceny, as far as the limit of this note will allow-1st. as to the indictment and the alterations made by the new enactments; and, then, as to the circumstances and intent necessary to constitute the offence.
Venue. By 7 Geo. 4, c. 4, s. 12,
(see ante, title "Indictment") where the offence of larceny is committed on the boundary or boundaries of two or more counties, or within five hundred yards of such boundary, or boundaries, the offence may be laid in the indictment in either county, and by s. 13 of the same statute, where the larceny has been committed "upon any person, or on, or in respect of any property, in, or upon, any coach, waggon, cart, or other carriage whatever," on any journey, or on board of any vessel whatever employed in any voyage, upon any navigable river, canal, or inland navigation, it may be charged to have been committed in any county through which such vessel may have passed; and where the canal or river forms the boundary of any two counties, such offence may be inquired of in any county, through or adjoining to, or by the boundary of which, such vessel may have passed. The principal alteration made by these enactments (as regards larceny) is that the goods in any vehicle or vessel are protected. Under 59 Geo. 3, c. 27, and 59 Geo. 3, c. 96, which referred to such offences, carriages and vessels employed for the conveyance of merchandize only, were mentioned. Also by 7 & 8 Geo. 4, c. 29, s. 76, if any person having feloniously taken any chattel, &c., in any one part of the united kingdom, shall afterwards have it in his possession in any other part, he may be indicted in that part where he shall so have such property in his possession, as if he had actually stolen it there. It does not appear, whether under the 12 sect. of 7 Geo. 4, c. 64, and this 76th sect. of 7 & 8 Geo. 4, c 29, an indictment would be bad, which did not state the place where the original offence was committed: according to the case of R. v. Mellor, R. & R. 144, it would be more
correct to do so. But if the indictment be preferred in the adjoining county, it need not be averred that it is the adjoining county: it may appear by the caption, or memorandum, when the record is drawn up: R. v. Goff, R. & R. 179. And further, by 7 Geo. 4, c. 64, s. 20, no judgment upon any indictment, or information, whether after verdict, or outlawry, or by confession, or otherwise, shall be stayed, or reversed, for want of a proper venue. But it seems questionable whether it be not a ground for demurrer, in all cases, where, before this act, it was good in arrest of judgment. If the indictment does not state the place where the offence was committed, it shall be taken according to the venue, and this where place is material: R. v. Napper, R. & M. 44.
Every indictment must shew with certainty the person indicted. The person against whom the offence has been committed.
The place and time when the offence was committed; and The property which was the subject of the offence.
1. As to certainty of person indicted :
7 Geo. 4, c. 64, s. 19, enacts, that no indictment shall be abated by reason of any dilatory plea of misnomer, or of want of addition, or of wrong addition of person offering such plea; but gives the court power to amend and to call upon the party to plead, and shall proceed as if no such dilatory plea had been pleaded. Where a prisoner will not disclose his name, he may be indicted as a person whose name was unknown, but who was personally brought before the jurors by the keeper of the prison: Anon, R. & R. 489; and see now 7 & 8 Geo. 4, c. 28, s. 2.
2dly. As to persons against whom the offence is committed. A prose
cutor may be described, by the
number of persons not incorpo-
appear that the party, whose goods they are laid in the indictment, had neither property, nor possession; for this purpose, the possession of a fême coverte, or agent, or servant, is,generally speaking, the possession of the husband, or master : see R. v. Remnant, R. & R. 136. The agister of cattle also, has been held to have such a property in them: R. v. Woodward, 2 E. P. C. 653. And the property may be laid in a stage coachman, R. v. Deakin & Smith, id. E. P. C. 653, and in Taylor's case, 1 Leach, 395, it was held that a coach glass of a gentleman's coach, standing in a coachmaster's yard, might be laid as the property of such coach-master. But the goods in a dissenting chapel, vested in trustees, cannot be described as the goods of a servant, who has merely custody of the chapel and things in it to keep clean, though he has the key, and no other person but the minister has another R. v. Hutchinson, R. & R. 412. But they may be laid as the goods of the chapel in the custody of" such and such," or, in case of a parish church, as the goods of the parishioners: 1 Haw P. C. c. 33, s. 29. 1 H. P. C. 512. And it is not necessary, that the property of the thing taken should be the strict legal property, as was held in Scott's case, R. & R. 13. In this case, a father and son carried on business as farmers; the son died intestate, and his wife shortly after. The father then carried on the business, for the joint benefit of himself and his grand-children, his sons next of kin. Some of the sheep were stolen, and were laid as the property of the father and his son's children, and it was held to be rightly laid. And actual possession is sufficient. D. and C. were partners. C. died intestate, leaving a widow and children: from the time of his death, the widow acted as
partner with D., and attended the business in the shop. Some time after C's. death, goods were stolen. A description of them in the indictment as the goods of D. and the widow, was held correct: Rex v. Gaby, R. & R. 178. By 21st sect. of 7 & 8 Geo. 4, c. 29, it is not necessary in an indictment for stealing "records, &c." there mentioned, to allege either that the article is the property of any person, or that is of any value. The 22nd sect. enacts the same as to wills; and by the 44th sect. of the same act, where the materials specified in that section are fixed in any square, street, or other like place, it is not necessary to allege them to be the property of any person; and in Hickman & Dyer's case, Leach, 358, it seemed to be suffi. cient to state, that the lead stolen from a church, was stolen from "the parish church," without laying the property in any one. In cases of larceny by lodgers and tenants, the property may be laid, either in the owner or the person letting to hire: 45 sect. id. But in cases of embezzlement by clerks or servants, of money which never was in the possession of the master but by the hands of such clerk or servant, the property must be laid in the master: R. v. M'Gregor, R. & R. 23.
The place where the offence was committed has been already considered.
As to the time. - The 20 sect. of 7 Geo. 4, c. 64, provides, that no indictment or information,under the circumstances there mentioned, and referred to above, shall be stayed and reversed for omitting to state the time at which the offence was committed, in any case where time is not the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to