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And similarly, although the credit be obtained by fraudulently using the name of another person, to whom in truth the credit was intended to be given, if the delivery was made by the owner, or any person having power of disposal for that purpose: 2 E. P. C. 672, Coleman's case, 1 Leach, 339, and Atkinson's case, 2 E. P. C. 673; which cases are distinguished from Noah Pearce's case, id. 603. on that ground. In Wilkin's case, 2 Leach, 586, the person from whom the goods were obtained by the fraudulent representation, was only intrusted with a bare charge of them for a particular purpose; in this case, the possession of the master still continued by the hands of the servant. From these cases, we may deduce a rule by which it may be decided, whether the property, or merely the possession, has been parted with, (when the deli very has been made by another than the owner,) namely, by considering whether such person had a general, or only a limited power of disposal in the first case, he may part with the property; in the second, he cannot.
But the property is not considered as having been parted with, wherever the delivery, from the circumstances, must be considered conditional; for instance, when a sale is incomplete: R. v. Sharpless, 1 Leach, 108, or wherever the goods have been delivered, by way of pledge, or the like, to have them returned, as in Patch's case, 1 Leach, 273, 2 E. P. C. 678; Moore's case, 1 Leach, 354; Watson's case, 2 Leach, 730. In these cases the possession was obtained by fraud, with intent to steal, but the property was not parted with. Where there has not been a sufficient delivery to change the property, the finding by the jury, of the preconceived fraudulent inten
tion is not essential to complete the offence: R. v. Sharpless, 1 Leach, 108. Similarly, where a bill was delivered to the prisoner, for the purpose of being discounted, who ran away with it before payment, it was held felony, as the property had not been parted with: R. v. Aickles, 1 Leach, 330. In all these cases it is evident that the property was not parted with, that such an intention never could have existed in the minds of the owners, that the delivery was strictly conditional and qualified. But where the circumstances of a case show that the owner, or some person having a general power of disposing, although deceived by fraudulent representations, really intended to part with property in the goods, there it is fraud, and not felony : see R. v. Adams, R. & R. 225; (and see ante, title, "Cheating "). It is apprehended that this principle will be found to apply to all cases, as to the parting either with the property, or merely the possession : see Cockwaine's case, Leach, 562; Wilkin's case, id. 586; Chapelle's case, id. 698; Hench's case, R. & R. 163. The latter case was decided upon that of Rex v. Wilkins, (supra,) and upon the ground, it is apprehended, that the person who made the delivery had only a limited power of disposal, or a bare charge, and could not, consequently, part with the property in the goods. Similarly, where the delivery is by way of pledge or security, the property is not parted with by the owner, and, consequently, larceny may be committed if the delivery were obtained fraudulently, and with intent to steal: 2 E. P. C. 678; Patch's case, 1 Leach, 273; Moore's case, 1 Leach, 354; Watson's case, 2 Leach, 730; R. v. Horner, Leach, 305; and R. v. Robson, R. & R. 413; and see distinction between this case and
R. v. Nicholson, 2 E. P. C. 669, supra.
Where the property remains without doubt in the original owner, the only question is, whether possession has been so far parted with, as to exclude the idea of trespass in the taker. Therefore, it is necessary to examine whether such possession was parted with, either by way of charge, general bailment, or delivery for a special purpose. First, where the legal possession remains in the owner, larceny may be committed, as if no such delivery had been made. Secondly, where, by the delivery, a special property, and consequently, legal possession would be acquired, if there were no fraud, it amounts to larceny, if such delivery were fraudulently procured, with felonious intent to convert such property. Thirdly, after determination of a contract, larceny may be committed. Under the first head are included all cases where the persons to whom the delivery is made, have but a bare charge or custody of them, or a special use, as in the case of servants (see supra); Chipchase's case, Leach, 805; R. v. Waite, id. in notis, and the distinction taken between them, or guests in the owner's house. And journeymen to whom yarn or silk is delivered to be worked in the master's house: S. P. C. 25, and 2 E. P. C. 682. But it is otherwise, where the article is delivered to a weaver out of the house; he has thus a special property, and to make it larceny, a preconceived intent to defraud must, it is apprehended, be shown, which would bring it under the second head. Under this principle may be included cases, where the possession is allowed in the presence of the owner: see Clusser's case; Lord Raym. 275; and see 2 E. P. C. 684.
Under the second head are included those cases where, by the delivery, a special property is passed, and a legal possession, distinct from the owner, is acquired. The cases where the property is actually changed by the delivery have been considered, and it has been seen that felony cannot, in such cases, be committed. There is another case, where, although the actual property still remains in the owner, a special property and legal possession, distinct from the owner, would be acquired, if there was no fraudulent intent in the obtaining possession. This includes all cases, where the original delivery was in pursuance of a contract, and every case of bailment. Where a legal possession, primâfacie, exists, distinct from the owner, the person so entitled cannot commit larceny, as in every case of bailment and delivery by contract. In such cases, the primâ facie legal possession can only be rebutted by evidence tending to show,-1st, that possession has been obtained with a felonious intention, by fraud, threat, or duress; or, 2dly, that the privity of contract is determined by some precedent wrongful act of the bailee; or, 3dly, that it is determined accord. ing to the intention of the parties, 1st, By evidence of a precedent felonious intention, as where a prisoner hired a horse, on pretence of taking a journey, but, in truth, with intent to sell it, as was evidenced by his doing so, directly he obtained possession: R. v. Pears, 1 Leach, 253; Charlwood's case, Leach, 456; Major Semple's case, Leach, 470. But it must be recollected, that in cases of bailment or delivery by contract, the prisoner must be acquitted, unless there be such evidence as will prove the felonious intention to have existed, when the goods were first ob
tained; for, if such intention be not proved to have existed originally, no subsequent act of conversion can be evidence of it, so as to constitute a new felonious taking: R. v. Banks, R. & R. 441. If, therefore, a person obtain possession of goods by a lawful delivery, without fraud, although he afterwards convert them to his use, he cannot be guilty of felony; nor does it make any difference whether the purpose for which the delivery was made be ended or not, as to time or place: R. & R. 441. 2dly, When the privity of contract is determined by some precedent wrongful act of the bailee,-by any wrongful act of the bailee inconsistent with the contract, it is determined, and the property revests in the owner, although the actual possession remain in the bailee.
As where a carrier breaks open a package committed to him, the contract is by this act determined, and the property revests in the owner, so as to make any subsequent conversion felony: 1 H. P. C. 504; 1 Haw. P. C. c. 33, s. 5; 2 Inst. 107; 2 E. P. C. 695. But if the act which determines the contract, and the act of conversion, be one and the same, or contemporaneous, as where the porter carries off the goods and sells them without breaking them, it is only breach of trust, see supra and cases cited; therefore, the wrongful act must be precedent to the conversion: see also R. v. Brazier, supra. 3dly, By intention of the parties, as where the package delivered to the carrier had reached its destination: 1 H. P. C. 504-5.
1 Ed. I, c. 1.
of the most
I. Be it enacted, &c., that whatsoever person or persons, The penalty from and after the first day of May next coming, shall de- for speaking prave, despise, or contemn the said most blessed sacrairreverently ment, in contempt thereof, by any contemptuous words, or blessed saby any words of depraving, despising, or reviling; or what crament. person or persons shall advisedly in any other wise contemn, despise, or revile, the said most blessed sacrament, contrary to the effects and declaration abovesaid; that then, he or they shall suffer imprisonment of his or their bodies, and make fine and ransom at the king's will and pleasure; and for full and effectual execution of the premises before devised, ordained, and enacted by this act, be it furthermore enacted, by the authority of this present parliament, that immediately after the first day of May next coming, the justices of peace, or three of them at the least, whereof one of them to be of the quorum, in every shire of this realm, and Wales, and all other places within the king's dominions, shall have full power and authority by virtue ofthis act, as well to take information and accusation by the oaths and depositions of two able, honest, and lawful persons at
enquire of offenders.
A writ directed by
No indictment but
the least, and after such accusation or information so had, to inquire by the oaths of twelve men, in every of their four quarter sessions yearly to be holden, of all and singular such accusations or informations to be had or made of any of the offences abovesaid, to be committed or done after the said first day of May, within the limits of their com mission; and that upon every such accusation and information, the offender or offenders shall be inquired of, and indicted before the said justices of peace, or three of them at the least, as is aforesaid, of the said contempts and offences, by the verdict of twelve honest and indifferent men, if the matter of the said accusation and information shall seem to the said jury good and true.
II. [Justices may bind the accusers to appear, by recognisance in the sum of five pounds.]
III. [Process of outlawry shall be awarded against the persons indicted. Justices of peace may determine the offences, and bail persons indicted.]
IV. Provided always, and be it enacted, that the said justices of peace, or three of them at the least, at their quarter sessions, where any offender or offenders shall be or stand indicted of any of the contempts or offences abovesaid, shall direct and award, one writ in the king's name to the bishop of the diocese, where the said offence or offences be supposed to be committed or done, willing and requiring the said bishop to be in his own person or by his chancellor, or other his sufficient deputy learned, at the quarter-sessions in the said county to be holden, when and where the said offender shall be arraigned and tried, appointing to them in the said writ, the day and place of the said arraignment; which writ shall be of this form: Rex, &c. Episcopo L. salutem, Præcipimus tibi quod tu, Cancel larius tuus, vel alius deputat, tuus sufficienter eruditus, sitis cum Justic. nostris ad pacem in com. nostro B. conservand. assignat. apud D. tali die, ad sessionem nostram, adtunc et ibm. tenend. ad dand. consilium et advisament eisdem Justiciariis nostris ad pacem, super arranament. et deliberationem offendent, contra form. Statuti concernen. sacrosanct. Sacramentum Altaris.
V. Provided always, and be it enacted by the authority aforesaid, that no person or persons shall be indicted of any within three of the contempts or offences abovesaid, but only of such contempts or offences as shall be done or perpetrated within three months next after the said offence or offences so committed or done.
after the offence.
VI. And be it further enacted by the authority aforesaid, ant may try that in all trials, of any such offenders before the said jus tices, as is aforesaid, the person or persons being complained on and arraigned, shall be admitted to purge or try his or their innocency, by as many or more witnesses in
cency by witnesses.
number, and of as good honesty and credence, as the witnesses be which deposed against him or them, or any of them.
1 Eliz. c. 2.
I. Where, at the death of our late sovereign lord, King Edward the Sixth, there remained one uniform order of common service and prayer, and of the administration of sacraments, rites, and ceremonies in the church of England, which was set forth in one book, intituled, "The Book of Common Prayer, and Administration of Sacraments, and other Rites and Ceremonies in the Church of England;" authorized by act of parliament, holden in the fifth and sixth years of our said late sovereign lord, King Edward the Sixth, intituled, "An Act for the Uniformity of Common Prayer, and Administration of the Sacraments;" the which was repealed and taken away by act of parliament in the first year of the reign of our late sovereign lady, Queen Mary, to the great decay of the due honour of God, and discomfort to the professors of the truth of Christ's religion :
II. [Repeals the statute of Mary concerning the Book of Common Prayer, and confirms the said book.]
IV. And that, if any manner of parson, vicar, or other whatsoever minister, that ought or should sing or say Common Prayer, mentioned in the said book, or minister the sacraments, from and after the feast of the nativity of St. John Baptist next coming The penalty shall preach, declare, or speak any thing in the derogation for deprav or depraving of the said book, or any thing therein contained, ing the book or of any part thereof, and shall be thereof lawfully convicted, according to the laws of this realm, by verdict of twelve men, or by his own confession, or by the notorious evidence of the fact, shall lose and forfeit to the queen's highness, her heirs, and successors, for his first offence, the profit of all his spiritual benefices or promotions, coming or arising in one whole year next after his conviction; and also that the person so convicted shall, for the same offence, suffer imprisonment for the space of six months, without bail or mainprise.
V. And if any such person once convict of any offence The penalty concerning the premises, shall after his first conviction for the seeftsoons offend, and be thereof in form aforesaid lawfully convict, that then the same person shall for his second offence suffer imprisonment by the space of one whole year, and also shall therefore be deprived, ipso facto, of all his spiritual promotions, and that it shall be lawful to all patrons or donors, of all and singular the same spiritual promotions or of any of them, to present or collate to the same, as though the person or persons so offending were dead.