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did not appear in evidence that the lodgings were taken with the intent of rifling them, and all the rest thought the point worthy of consideration, it seems reasonable, that when such intent clearly appears, it would be held a felony at common-law. The stat. 3 & 4 W. & M. c. 9, however, has expressly made it larceny, to steal any "chattel, bedding, or furniture," let to use with any s6 lodging." But the preamble of this statute recites the practice of hiring lodgings" with the intent," &c. Proof of the felonious intent, therefore, still remained necessary, and it seems to have been the intention of the legislature, to preserve a consistency with the rule laid down (supra) in cases of larceny by servants. Upon this statute, Palmer's case, 2 Leach, 782, was decided, where it was adjudged, that if the whole house, ready furnished, was let to the prisoner, he could not be indicted upon this statute for stealing goods in the lodging-house; and Eyre, C. J., said, that the statute was meant to apply to cases where the owner had possession, and the lodger the use, and was made to obviate a doubt as to the owner's possession. In this case the agreement was to make good every thing which was missing, which made the case stronger.

The statute of William & Mary only uses the word lodging-It has been also held upon this statute, that the indictment must state by whom, as well as to whom the lodgings were let: Ann Pope's case, 1 Leach, 377. But in a late case, it was thought to be unnecessary to state by whom the lodging was let, and all the judges held that the letting might be stated either according to the fact, or according to the legal operation: Healey's case, R. & M. 1. Now 7 & 8 Geo. 4, c. 29, s. 45, comprises any fixture

or chattel, let to be used in or with any "house" or lodging, and extends to cases of larceny by "tenants," as well as lodgers. The statement as to the person by whom the lodging is let, would be regulated by Healey's case (supra), and as to the person to whom, the statute is sufficiently explicit. Under this statute, Goddard's case, 2 Leach, 617, would not be law. In this case the prisoners were acquitted, because the indictment stated, that the contract was made with the male prisoner, and by the evidence it was shewn to have been with the female. In Bew's case, P. & R. 480, the indictment was for stealing goods in a lodging-house, let by contract to the prisoner, to be used with the lodging aforesaid. This was held to import a liberty of sole user, and the prisoner was acquitted, as it appeared that others had a concurrent use of the lodg ing-room and goods. But since 7 & 8 Geo. 4, c. 29, s. 45, in the case of chattels, allows the indictment to be in the common form as for larceny, it is apprehended that this decision would not be held now to apply. In case of larceny of fixtures, the indictment may now be preferred, as if the offender were not a tenant, or lodger; and in either case the property may be laid either in the owner or the person letting to hire. Sect. 45.

Of what things.-By the common law, larceny can only be committed of goods personal, and not of chattels real, or such as are annexed to the freehold : 1 E. P. C. 587; 1 Haw. P. C. c. 33, s. 21; 1 H. P. C. 509, 510; 4 Blac. Com. 233. Therefore, no larceny at common law can be committed of trees, grass, &c. or lead of a house, or the like; but when once they are severed from the freehold, either by the owner himself or by the thief, if there be an interval between his

severing and taking away, so that
it cannot be considered as one con-
tinued act, it would then be felony
at common law to take them away,
2 E. P. C. 587; and so strictly has
this been construed, that it has
been held at common law, that
larceny cannot be committed of
title-deeds, &c. because, as it is
said, they savour of the realty: 2
E. P. C. 596; 1 Haw. P. C. c. 33,
s. 22; 1 H. P. C. 510. Statutes
have at different times been passed
in order to remedy this defect; they
are, however, all repealed by 7 &
8 Geo. 4, c. 27, and re-enacted in
effect, by the 7 & 8 Geo 4, c. 29.
It is not necessary, therefore, to do
more than to refer to the several
sections of this act, pointing out
very briefly where any important
alteration appears to have been
effected. The two statutes 6 Geo.
3, c. 36, and 6 Geo. 3, c. 48, which
were passed for the protection of
garden-shrubs, are limited, the first
to roots, shrubs, or plants, in any
garden-ground, nursery-ground, or
other inclosed ground, and the of-
fence must be committed in the
night-time; the second to those
growing in fields, nurseries, gar-
dens, or garden-grounds, or other
cultivated lands. Now 7 & 8 Geo.
4, c. 29, s 42, protects " any plant,
root, fruit, or vegetable production,"
growing in any garden, orchard,
nursery-ground," hot-house, green-
house, or conservatory." The first
offence against this section is only
punishable on summary convic-
tion, but the second is felony, and
to be punished as in case of simple
larceny. And the 43rd section of the
same statute protects, by summary
conviction," any cultivated root
or plant," used for the food of man
or beast, or for medicine, or for
distilling, or for dying, or for or in
the course of any manufacture, and
growing in any land open or en-
closed, not being a garden, orchard,

or nursery ground. In these, the time when the offence is committed, is not essential. The 44th section extends to stealing any glass or wood work belonging to any building whatsoever; therefore, under this statute, the "stealing a window-casement," made of iron, lead, and glass, might be included, which could not under the former statutes, 4 Geo. 2, c. 32, and 21 Geo. S, c. 68: see R. v. Senior, 1 Leach, 509. This statute also extends to any metal fixed in any land, or a fence to any dwellinghouse, garden, or area, or in any square, street, or public place; and in this last case it is not necessary to allege the property to be in any person. The 7 & 8 Geo. 4, c. 27, repeals 4 Geo. 2, c. 32, and 21 Geo. 3, c. 68. A church would come within the meaning of the statute: see Parker's and Easy's case, E. P. C. 592.

Stealing from certain mines.By the 37th section it is made felony to steal, or to sever with the intent to steal, the ore of any metal, or any lapis calaminaris, manganese, or mundick, or any wad, black cawke, or black lead, or any coal, or cannel coal, from any mine, &c. Wad, black cawke, or black lead were the subjects of the statute 25 Geo. 2, c. 10. Coals were protected by the 39 & 40 Geo. 3, c. 77, s. 5. These two statutes are repealed.

Records. The 8 Hen. 6, c. 12, as relates to stealing, &c. "records," is repealed, and the 21st section of this act substituted, which differs from the repealed act-1st, By extending to "any person." 2dly, By making destruction, or obliterating, an offence as well as stealing. 3dly, By including interrogatories, depositions, affidavits, rules, orders, or any original documents whatsoever. 4thly, By extending to the court

of chancery, independent of common law. 5thly, In making the offence a misdemeanor. The fraudulent purpose must be proved, or a legal presumption raised in the case of stealing; and in the destruction of records it must be laid to be done maliciously. At common law goods must be of some value to constitute the stealing. Lar ceny, therefore, of bonds, bills, &c. which concern mere choses in action, being of no intrinsic value, are not the subjects of larceny at common law.

Bonds, &c.-The 5th section of this statute does not make much alteration in the law as established by 2 Geo. 2, c. 25, s. 3, except by including warrants or orders for the delivery of any goods or valuable thing, and in the rule of interpretation that the several documents enumerated in the act shall be included by the words "valuable security," and including securities for payment of money in the funds of a foreign state, or money of a foreign state. An unendorsed promissory note, payable to the prosecutor, was held to be within the 2 Geo. 2, c. 25; 2 E. P. C. 598, s. 37. In Phipoe's case, 2 Leach, 774, where the prosecutor was compelled by menaces, and violence, to make a promissory note on stamped paper, beforehand prepared by the prisoner, who was present during the time, and withdrew the note as soon as made, the prisoner was acquitted of the felony by a majority of nine judges against two; of those who were against the conviction, some thought, amongst whom was Lord Kenyon, that the statute was only intended to protect existing available notes in the hands of the person from whom they were stolen; others thought that the note was of value from the moment it was drawn, but that it never was in the possession of the prosecutor. But

all the nine judges thought the transaction to be one continued act, and that the note was procured by duress, not by stealing. Ashurst, J., who differed, thought, that there was a distinguishable interval between the writing of the note, and the taking of it by the prisoner, during which it was in the prosecutor's possession, and that it was an instrument of value, as it would have been available against him, in the hands of an innocent holder. The points in this case worthy of consideration, as regards the 7th & 8th Geo. 4, c. 29, are the question of value, the point of property, and the duress. The 6th section of that act expressly includes cases where the property named in the 5th section is demanded "with menaces and force;" and the only question would be, 1st, whether such a note were a valuable security under the words of the 5th section; and 2dly, whether, being made under such circumstances, it would be held ever to have been in the possession of the prosecutor. Although nine of the judges (as reported in 2 E. P. C. 598,) decided against the conviction, they were divided upon the question of the value of the note, some thinking that the note was of value from the moment it was drawn, but that it was never in the possession of the prosecutor; and Mr. J. Ashurst, who held the conviction good, said it certainly was an instrument of value, as it would be available against him in the hands of an innocent holder; and as to possession by the prosecutor, that in the interval between the writing of the note and the taking by the prisoner, it was in the prosecutor's possession. Clark's case, R. & R. 182, where the prisoner was indicted upon 2 Geo. 2, c. 25, for stealing re-issuable notes after payment, and before re-issuing, does not de

Fish. The 22nd & 23rd C. 2, c. 25, & 5 Geo. 3, c. 14, are both repealed, and the 34th section of the statute, 7 & 8 Gen. 4, c. 29, makes it a misdemeanor to take or destroy fish in any water running through, or being in any land adjoining or belonging to the dwelling-house, and for the offence committed in any water not being such aforesaid, gives summary conviction before a magistrate. It has been doubted whether at common law a larceny can be committed of fish in a pond. It is admitted, that it may, if they be confined in a trunk or net, because they are then restrained of their natural liberty; and it seems difficult not to extend the application of this reason to the case of fish in a pond; the pond being private enclosed property, and the fish liable to be taken at any time, according to the pleasure of the owner: 2 E. P. C. 619. Lord Coke, as cited in 2 E. P. C. 610, and Haw. P. C. c. 33, s. 25. It may be remarked upon this section of 7 & 8 Geo. 4, c. 29, that in an indictment upon it, it will be sufficient to prove the locality according to this act, and the ownership or right of fishery; see R. v. Carradice, R. & R. 205, which was decided upon the 5 Geo 3, c. 14, s. 1.

cide whether such notes were con- now, beyond doubt, come within sidered as valuable within the the 6th section of 7 & 8 Geo. 4, statute, for the judges held the con- c. 29. viction right, on the counts for the value of the stamps, and paper; not referring to the objection as to the value of the notes. But in Ranson's case, R. & R. 232, which was on the 7th Geo. 3, c. 50, s. 1, against a clerk in the Post Office for secreting a letter, containing country bank-notes paid in London and not re-issued, it was contended that they were not available within the act; but the majority of the judges, among whom was Lord Ellenborough, thought otherwise; and as, upon the face of them, they remained uncancelled, they would, in the hands of a holder for a valuable consideration, be available against the makers. Wherever, therefore, the instrument would, in in the hands of an innocent holder, be available against the maker, such an instrument would, it is apprehended, be considered of value. It may be worth while to consider, further, whether the possession of the subject matter of the instrument is not sufficient to bring the offender within the 7th & 8th Geo. 4, c. 22. The object of the statute, is, to put the securities mentioned therein, upon the same footing as the money they represent. The property consists in the power of disposing; if, therefore, the power of disposal is taken away, the possession and property is gone. The disposal of such property is effected by means of these instrumen's; every such act of disposal, therefore, it is apprehended, must be considered as an exercise of property, and the making of such a note, under any circumstances, an act of possession. If, therefore, such a promissory note, so obtained, would be accounted of value, and to have been in the possession of the prosecutor, the offence would


Oysters. The stealing is made felony, and the placing any dredges, &c. for the purpose of taking them, is a misdemeanor.

Goods in a process of manufacture are protected by the 16th section. This is confined to goods exposed during any stage, process, or progress of manufacture. This section extends the offence to silk and cotton goods; the 18 Geo. 2, c. 27, reaches the offence where the goods are already manufactured.

Dixon, R. & R. considered the dwelling-house of the prosecutor: R. v. Flannagan, R. & R. 187.

In the case of R. v. 53, where the prisoners were charged in an indictment, upon 18 Geo. 2, c. 27, s. 1, for stealing calicos, &c., being in a certain building, made use of for printing and dying the same, the conviction was held bad, upon those counts which charged the capital offence, inasmuch as it was not proved that the building from which the goods were stolen was made use of either for printing or for dying; but the conviction stood upon the count for simple larceny.

In what place.-Stealing in a dwelling-house. The offence of stealing in a dwelling-house is regulated by 7 & 8 Geo. 4, c. 29, s. 12. which enacts, that the mere act of stealing from a dwelling-house to the value of 51. or more, shall be punishable with death. Goods left by mistake at a house were held entitled, under the old statute, to the protection of the house, so as to make the stealing by a lodger therein, under pretence of their being his, an offence: R. v. Peter Carroll, R. & M. 89. And the present statute would include the case of a man stealing goods in his own house, as was the case in R v. Thompson and Macdaniel, 1 Leach, 379. And also that of a wife stealing in her husband's house: id. 380, in notes.

In Rex

v. Taylor, R. & R. 418, it was held, by a majority of the judges, that where a lodger invites a man to his room, and there steals his goods not about his person, he is liable to be found guilty of stealing in a dwelling-house. The goods of a lodger's guest were then held under the protection of the dwellinghouse; and see Campbell's case, Leach, 642. When the prosecutor left his house, intending to use it as a warehouse, but left persons to sleep and to guard the property, it was held, that this was not to be


Stealing in a shop, &c.-The offence guarded against by 10 & 11 W. 3, c. 23, was that of privately stealing; and the 3 & 4 W. & M. c. 9, s. 1, extended to breaking; but the 15th section of 7 & 8 Geo. 4, c. 29, refers to the offence of breaking, entering, and stealing, and, therefore, combines the purposes of 10 & 11 W. 3, c. 22, and 3 & 4 W. & M. c. 9, s. 1. the offence has been committed without such violence as to bring it under the 15th section, the prisoner, it is apprehended, must be indicted upon the 12th and 13th sections, as for stealing in a dwelling-house, (provided the shop is situated, with regard to the dwelling-house, as is required by 13th section, and the value of the property stolen be 57.); and if the value of the property be below 57. the offence remains larceny at common law. Under the statute of 10 & 11 W. 3, goods exposed for trade only were protected, 2 E. P. C. 642-3, the statute using the words goods, wares, and merchandises." The statute 12th Anne, extended to "money ;" but it is apprehended that the present enactment would protect any goods, the words "chattels, money, or valuable securities," being of sufficiently large import, and not bearing a meaning which would apply only to "merchandize." If all goods and chattels are protected, it makes no difference whether the place where they are be considered as a mere repository, or as a place for the sale of such goods, as was held in Howard's case, Fost. 77; and in Godfrey's case, 1 Leach, 322; and Stone's case, Leach, 375-6. It is also apprehended that this enactment would extend to the goods of any person.

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