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SECTION II.

By the com

mon law, lar

ceny cannot

be committed of things that

are part of the freehold.

But they

Of the Personal Goods in respect of which the Offence of Larceny may be committed.

In pursuing this part of the enquiry respecting the offence of larceny, there seem to be three points which more particularly require consideration; I. Whether the goods taken were in any way part of the freehold; II. Whether they consist of written instruments; and III. Whether they consist of animals, birds, or fish.

I. By the common law, larceny cannot be committed of things which savour of the realty, and are, at the time they are taken, part of the freehold; whether they be of the substance of the land, as lead, or other minerals; of the produce of the land, as trees, corn, grass, apples, or other fruits; or things affixed to the land, as buildings, and articles, such as lead, &c. annexed to buildings. (t) The severance and taking of things of this description is, at common law, only a trespass. One reason for which doctrine (though it does not apply to the whole of the articles which have been enumerated) is said to be, that things which are a part of the freehold, being usually more difficult to remove, are less liable to be stolen: (u) possibly also the doctrine may have proceeded upon certain subtilties in the legal notions of our ancestors; (x) and it may perhaps in some measure have originated in the greater security from private depredations of the things which were part of the freehold, than of those which were merely personal, in the earlier times, when articles of provision and other personal chattels (frequently the most valuable) were carried from place to place by the individual tenants, in that attendance in the camp which was exacted by their military tenures. (y)

But things, though they savour of the realty, may become the become the subjects of larceny by being severed from the freehold: thus, if subjects of larceny by stones be dug out of a quarry, wood be cut, fruit be gathered, or being severed. grass be cut, larceny may be committed of them. (z) And this will be the case, not only when they have been severed by the owner, but also by the thief himself, if there be an interval between his severing and taking them away; so that it cannot be considered as one continued act. If therefore the thief sever them at one time, whereby the trespass is completed, and they are converted into personal chattels in the constructive possession of him on whose soil they are left or laid, and come again at another time when they are so turned into personalty and take them away, it is

(t) 3 Inst. 109. 1 Hale 510. 1
Hawk. P. C. c. 33. s. 34. 3 Bac. Ab.
Felony (A). 4 Black. Com. 232. 2
East. P. C. c. 16. s. 27. p. 587.

(u) 1 Hawk. P. C. c. 33. s. 34. 2

East. P. C. c. 16. s. 27. p. 587.
(x) 4 Black. Com. 232.
(y) 3 Bac. Ab. Felony (A).
(z) 3 Inst. 109. 1 Hale 510.

larceny. (a) Thus though "if a thief severs a copper, and in"stantly carries it off, it is no felony at common law; yet if he "lets it remain, after it is severed, any time, then the removal "of it becomes a felony, if he comes back and takes it: and so of a tree which has been some time severed." (b)

take wrong

This being the common law, and many of the descriptions of Statutes makproperty which come within this notion of a connection with the ing it penal to freehold being thereby placed in a very precarious and unpro- fully things tected situation, the legislature from time to time interfered for that are part their protection, and made the wrongful taking of them in some of the freeinstances felony, and in others a minor offence, punishable by summary proceedings before a magistrate. These provisions are for the most part amended and consolidated by the recent statute 7 & 8 G. 4. c. 29.

hold.

The 37th section of that statute enacts, "that if any person Stealing from "shall steal or sever with intent to steal the ore of any metal, certain mines. "or any lapis calaminaris, manganese or mundick, or any wad,

"black cawke, or black lead, or any coal or cannel coal, from

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any mine bed or vein thereof respectively, every such offender "shall be guilty of felony, and being convicted thereof shall be "liable to be punished in the same manner as in case of simple "larceny."

buildings, &c.

By the same statute, s. 44, it is enacted, "that if any person Stealingthings "shall steal, or rip, cut, or break with intent to steal, any glass annexed to "or woodwork belonging to any building whatsoever, or any lead, ❝ iron, copper, brass, or other metal, or any utensil or fixture "whether made of metal or other material, respectively fixed in 66 or to any building whatsoever, or any thing made of metal "fixed in any land being private property, or for a fence to any "dwelling-house, garden, or area, or in any square, street, or "other place dedicated to public use or ornament, every such of"fender shall be guilty of felony, and, being convicted thereof, "shall be liable to be punished in the same manner as in the case "of simple larceny; and in case of any such thing fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person."

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Construction

tutes.

In a case upon the repealed statutes 4 G. 2. c. 32. and 21 G. 3. c. 68. where the prisoner was indicted for stealing a "window of these sta"casement made of iron, lead, and glass," the property of the benchers of the Middle Temple, fixed to a certain building situate in Elm-court, it was holden that the case was not within the acts. The court said, that the statutes amongst the several articles which they enumerated did not mention "a casement ;" and that

(a) 1 Hawk. P. C. c. 33. s. 34. 4 Black. Com. 233. 2 East. P. C. c. 16. s. 27. p. 587. And so in 1 Hale 510. it is said, "But if a man come to "steal trees, or the lead of a church "or house, and sever it, and, after "about an hour's time, or so, come "and fetch it away, this hath been "held felony, because the act is not "continuated but interpolated, and

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7 & 8 G. 4. c. 29. s. 45. Stealing chattels or fixtures

let to tenants and lodgers.

Where the prisoner had

obtained fraudulent possession of a

house upon an

agreement for a lease, and stripped it of the leaden pipes, &c. it

was holden to be within the act 4 Geo. II.

c. 32. now repealed.

7 & 8 G. 4. c. 29. s. 38. Stealing trees, shrubs, &c.

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as the statute 21 Geo. III. c. 68. was made to remedy the defects of the 4 Geo. II. c. 32. which mentioned every specific article by name, the words " any copper, brass, bell-metal, utensil, or fixture," were to be taken as substantive nouns, and not as descriptions of the sorts of fixtures which the legislature intended to protect. (c) Such an offence however would be clearly within the provisions of the recent statute upon an indictment properly framed.

By the 45th section of the 7 & 8 G. 4. c. 29. for the punishment of depredations committed by tenants and lodgers, it is enacted, "that if any person shall steal any chattel or fixture let "to be used by him or her in or with any house or lodging, whe"ther the contract shall have been entered into by him or her or "by her husband, or by any person on behalf of him or her or her "husband, every such offender shall be guilty of felony, and being "convicted thereof shall be liable to be punished in the same 66 manner as in the case of simple larceny; and in every such case "of stealing any chattel it shall be lawful to prefer an indictment "in the common form as for larceny, and in every such case of "stealing any fixture to prefer an indictment in the same form as "if the offender were not a tenant or lodger, and in either case to "lay the property in the owner or person letting to hire."

In a case where the prisoner was indicted on the repealed statute 4 Geo. II. c. 32. for stealing two hundred weight of lead, fixed to a house and building, the facts were, that the house in question being to be let, the prisoner, giving a false description of his situation in life and his place of residence, obtained possession of it, under a treaty for a lease of it for one and twenty years, which was agreed to be executed; and, in a few days after he had so obtained possession of it, stripped it of the lead on the roof, and of the leaden pipes, &c. The jury said that they were of opinion that he had entered into the contract for the purpose of getting a fraudulent possession of the house; and found a verdict of guilty and, upon the case being reserved for the opinion of the Judges, though no opinion was publicly delivered, the prisoner afterwards was sentenced to pay a fine of a shilling, and to be imprisoned for two years in the house of correction. (d)

The statutes passed for the better preservation of timber trees, plants, shrubs, and other articles, which are the produce of the land, have been consolidated in the recent statute 7 & 8 G. 4. c. 29.

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The thirty-eighth section of that statute enacts, "that if any person shall steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of

(c) Senior's case, O. B. 1788. 1 Leach 496. 2 East. P. C. c. 16. s. 31. p. 593. The prisoner was afterwards indicted for a similar offence, before Wilson, J., and acquitted upon the authority of this determination. In a former case, Rex v. Hedge, I Leach 201. 2 East. P. C. c. 16. s. 30. p. 590. note (b), the question appears to have

turned upon whether the window sashes stolen were fixed to the freehold; which was ruled in the negative, upon the facts of the case, which shewed that they were only attached by a temporary fastening.

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(d) Munday's case, O. B. 1799. Leach 850. 2 East. P. C. c. 16. s. 31.

p. 594.

any tree, sapling, or shrub, or any underwood, respectively "growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling"house, every such offender (in case the value of the article or "articles stolen, or the amount of the injury done, shall exceed "the sum of one pound) shall be guilty of felony, and, being con"victed thereof, shall be liable to be punished in the same man"ner as in the case of simple larceny; and if any person shall "steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, "sapling, or shrub, or any underwood, respectively growing else"where than in any of the situations hereinbefore mentioned, every such offender (in case the value of the article or articles "stolen, or the amount of the injury done, shall exceed the sum "of five pounds) shall be guilty of felony, and, being convicted "thereof, shall be liable to be punished in the same manner as in "the case of simple larceny.'

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The 39th section enacts, that if any person shall steal, or shall

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S. 39. Stealing trees, shrubs,

&c. wheresoever growing, and of any value above

1s., punishable on sum

mary conviction for first

and second offences; third offence, fe

"cut, break, root up, or otherwise destroy, or damage with intent
"to steal, the whole or any part of any tree, sapling, or shrub, or
any underwood, wheresoever the same may be respectively
growing, the stealing of such article or articles, or the injury
"done, being to the amount of a shilling at the least, every such
"offender, being convicted before a justice of the peace, shall for
"the first offence forfeit and pay, over and above the value of the
"article or articles stolen, or the amount of the injury done, such
"sum of money, not exceeding five pounds, as to the justice shall
"seem meet; and if any person so convicted shall afterwards be lony.
"guilty of any of the said offences, and shall be convicted thereof
"in like manner, every such offender shall for such second offence
"be committed to the common gaol or house of correction, there
"to be kept to hard labour for such term, not exceeding twelve
"calendar months, as the convicting justice shall think fit; and
"if such second conviction shall take place before two justices,
"they may further order the offender, if a male, to be once or
"twice publicly or privately whipped, after the expiration of four
"days from the time of such conviction; and if any person so
"twice convicted shall afterwards commit any of the said of-
"fences, such offender shall be deemed guilty of felony, and being
"convicted thereof, shall be liable to be punished in the same
"manner as in the case of simple larceny.'

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The 40th section enacts, "that if any person shall steal, or s. 40. Steal"shall cut, break, or throw down with intent to steal, any part ing, &c. any "of any live or dead fence, or any wooden post, pale, or rail set live or dead fence, wooden up, or used as a fence, or any stile or gate, or any part thereof fence, stile, or respectively, every such offender, being convicted before a jus- gate." "tice of the peace, shall for the first offence forfeit and pay, over "and above the value of the article or articles so stolen, or the "amount of the injury done, such sum of money, not exceeding "five pounds, as to the justice shall seem meet; and if any person so convicted shall afterwards be guilty of any of the said "offences, and shall be convicted thereof in like manner, every "such offender shall be committed to the common gaol or house

S. 41. Suspected persons in possession

of wood, &c.

rily accounting for it.

"of correction, there to be kept to hard labour for such term, not "exceeding twelve calendar months, as the committing justice "shall think fit; and if such subsequent conviction shall take

place before two justices, they may further order the offender, "if a male, to be once or twice publicly or privately whipped, "after the expiration of four days from the time of such convic❝tion." (e)

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The 41st section also enacts, " that if the whole or any part of any tree, sapling, or shrub, or any underwood, or any part of "any live or dead fence, or any post, pale, rail, stile, or gate, or not satisfacto-"any part thereof, being of the value of two shillings at the "least, shall, by virtue of a search warrant, to be granted as here"inafter mentioned, be found in the possession of any person or on the premises of any person, with his knowledge, and such person being carried before a justice of the peace, shall not satisfy the justice that he came lawfully by the same, he shall on "conviction by the justice forfeit and pay, over and above the "value of the article or articles so found, any sum not exceeding "two pounds." (f)

S. 42. Stealing, &c. any fruit or vege

table produc

tion in a gar

ishable on

summary conviction for

first offence;

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The 42d section enacts," that if any person shall steal, or shall destroy or damage with intent to steal, any plant, root, fruit, or vegetable production, growing in any garden, orchard, nursery ground, hot-house, green-house, or conservatory, every such den, &c. pun-offender, being convicted thereof before a justice of the peace, "shall, at the discretion of the justice, either be committed to the "common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour for any term "not exceeding six calendar months, or else shall forfeit and pay, 66 over and above the value of the article or articles so stolen, or "the amount of the injury done, such sum of money, not exceeding twenty pounds, as to the justice shall seem meet; and if any person so convicted shall afterwards commit any of the said of"fences, such offender shall be deemed guilty of felony, and being "convicted thereof, shall be liable to be punished in the same "manner as in the case of simple larceny." (g)

Second offence felony.

S.43. Stealing, &c. vegetable productions not growing in gardens,

&c.

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The 43d section enacts," that if any person shall steal, or shall "destroy or damage with intent to steal, any cultivated root or "plant used for the food of man or beast, or for medicine, or for distilling, or for dyeing, or for or in the course of any manufacture, and growing in any land, open or inclosed, not being a "garden, orchard, or nursery-ground, every such offender, being "convicted before a justice of the peace, shall, at the discretion "of the justice, either be committed to the common gaol or house "of correction, there to be imprisoned only, or to be imprisoned "and kept to hard labour, for any term not exceeding one calen"dar month, or else shall forfeit and pay over and above the value "of the article or articles so stolen, or the amount of the injury

(e) As to the application of forfeitures and proceedings in case of non-payment see the act, ss. 66, 67.

(f) As to the apprehension of offenders see the act, s. 63. and as to

the application of forfeitures and proceedings in case of non-payment, see

ss. 66, 67.

(g) As to the apprehension of offenders, &c. see the act, ss. 63. 66, 67.

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