"done, such sum of money, not exceeding twenty shillings, as to "the justice shall seem meet, and in default of payment thereof, together with the costs, (if ordered,) shall be committed as afore"said, for any term not exceeding one calendar month, unless payment be sooner made; and if any person so convicted shall "afterwards be guilty of any of the said offences, and shall be con"victed thereof in like manner, every such offender shall be com"mitted to the common gaol or house of correction, there to be "kept to hard labour for such term, not exceeding six calendar "months, as the convicting 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 conviction." (h) written instruments. II. Larceny could not by the common law, be committed of Of larceny of written instruments, whether they related to real estate, or concerned mere choses in action. If they related to real estate, the taking of them was considered as merely a trespass and no felony, upon a principle allied to those already mentioned, namely, that they concern the land, or (in technical language) savour of the realty, are considered as part of it by the law, and descend with it to the heir: (i) and when they concerned mere choses in action, as bonds, bills, and notes, they were considered at common law not to be goods whereof larceny could be committed, as being of no intrinsic value, and not importing any property in the possession of the person from whom they were taken. (k) Parchment Upon an indictment for stealing a parchment writing, purport- Westbeer's ing to be a commission for ascertaining the boundaries of certain case. manors, pursuant to an order of the court of Chancery, the goods writings which of our sovereign lord the king; and also another parchment concern the writing annexed thereto, purporting to be a return made to the realty. said commission, the goods of persons unknown; it was found by a special verdict, that the prisoner was guilty of privately taking away these parchment writings, being of the value of one penny each, with intent to steal them. In the course of the argument, it was urged by the counsel for the crown, that the reason why felony could not be committed of charters which concerned the realty, was that they could not be valued; but that the reason would not apply in this case, because a value had been affixed by the jury; and that it was well known that for certain purposes old parchments will sell for a considerable price and it was also urged, that the relation to the realty did not alone constitute the exemption, as there could be no doubt that it would be felony to steal an heir loom, though that savours of the realty. The court, however, were unanimously of opinion, that as the parchment writings in question concerned the realty, no larceny could be committed of them. (1) Box, &c. in which they are kept. Stealing, &c. of wills. The stealing of writings relating to real estate. These provisions as to wills and writings shall not lessen any remedy which the party aggrieved now has. The doctrine of charters and other written assurances concerning the realty not being the subjects of larceny was carried so far, that it was holden that no larceny could be committed of the box or chest in which they were kept. (m) These defects of the common law have been remedied by 7 & 8 Geo. 4. c. 29. The 22d section of this statute enacts, " that if any person shall "either during the life of the testator or testatrix, or after his or "her death, steal, or for any fraudulent purpose destroy or con، ceal, any will, codicil, or other testamentary instrument, whe“ther the same shall relate to real or personal estate, or to both, every such offender shall be guilty of a misdemeanour, and being "convicted thereof, shall be liable to any of the punishments "which the court may award as hereinbefore last mentioned (viz. "at the discretion of the court, transportation beyond the seas for "seven years, or such other punishment by fine or imprisonment, “ or by both, as the court shall award) and it shall not in any in"dictment for such offence be necessary to allege that such will, "codicil, or other instrument, is the property of any person, or "that the same is of any value." ،، The 23d section enacts, "that if any person shall steal any paper or parchment, written or printed, or partly written and partly printed, being evidence of the title, or of any part of the "title, to any real estate, every such offender shall be deemed 66 guilty of a misdemeanour, and being convicted thereof, shall be "liable to any of the punishments which the court may award, as "herein before last mentioned; and in any indictment for such of"fence, it shall be sufficient to allege the thing stolen to be evi"dence of the title, or of part of the title, of the person, or of "some one of the persons having a present interest, whether legal or equitable, in the real estate to which the same relates, and to “ mention such real estate, or some part thereof, and it shall not "be necessary to allege the thing stolen to be of any value.” The 24th section provides "that nothing in this act contained "relating to either of the misdemeanours aforesaid, nor any pro"ceeding, conviction, or judgment to be had or taken thereupon, shall prevent, lessen, or impeach any remedy at law or in equity which any party aggrieved by any such offence, might or "would have had, if this act had not been passed; but neverthe"less the conviction of any such offender shall not be received in " evidence in any action at law or suit in equity against him; and no person shall be liable to be convicted of either of the misde"meanours aforesaid, by any evidence whatever, in respect of ،، Leach 12. 2 East. P. C. c. 16. s.34. culty that no such judgment could be given. 1 Leach 14, 15. (m) Staundf. 25 b. 1 Hale 510. And the same law is laid down in 3 Inst. 109. as to the box or chest, though it be of great value; and the reason given is, that "it shall be of "the same nature the charters be of; et omne majus dignum trahit ad se "minus." "any act done by him, if he shall at any time previously to his "being indicted for such offence have disclosed such act on oath, "in consequence of any compulsory process of any court of law or "equity in any action, suit, or proceeding, which shall have been "bona fide instituted by any party aggrieved, or if he shall have "disclosed the same in any examination or deposition before any "commissioners of bankrupt." 66 &c. of records tice. With respect to stealing, &c. of records and other proceedings Records. of courts of justice, the 21st section of the same statute enacts The stealing, "that if any person shall steal, or shall for any fraudulent pur- and other propose take from its place of deposit for the time being, or from ceedings of "any person having the lawful custody thereof, or shall unlaw- courts of jus"fully and maliciously obliterate, injure, or destroy any record, "writ, return, panel, process, interrogatory, deposition, affidavit, "rule, order, or warrant of attorney, or any original document "whatsoever, of or belonging to any court of record, or relating "to any matter, civil or criminal, begun, depending, or terminated "in any such court, or any bill, answer, interrogatory, deposition, "affidavit, order, or decree, or any original document whatsoever "of or belonging to any court of equity, or relating to any cause "or matter begun, depending or terminated in any such court, every such offender shall be guilty of a misdemeanour, and, being "convicted thereof, shall be liable, at the discretion of the court, "to be transported beyond the seas for the term of seven years, or to suffer such other punishment by fine or imprisonment, or "by both, as the court shall award; and it shall not, in any in"dictment for such offence be necessary to allege that the article, "in respect of which the offence is committed, is the property of any person, or that the same is of any value." By the 5 Geo. 4. c. 30. any person who shall in Ireland, steal, Records, &c. take, or secretly or forcibly carry away any record, deed, security, or instrument, or any paper, parchment, or piece of vellum relating to the proceedings in the courts of justice in Ireland, or concerning the business of any person holding office, and deposited in the courts, or in the castle of Dublin, &c. is declared to be guilty of felony, punishable by transportation or imprisonment. It has been observed that written instruments which concerned Choses in mere choses in action, as being of no intrinsic value, and not im- action. porting any property in possession of the party from whom they were taken, were not at common law the subjects of larceny; (n) which offence can be committed only in respect of goods which have some worth in themselves, and do not derive their worth merely from their relation to some other thing. (o) But the legislature found it necessary to interfere upon this subject, and make the stealing of choses in action in many instances an offence of the degree of felony. The 2 Geo. 2. c. 25. s. 3. (which was passed in the first instance 2 Geo. 2. c. for five years, but revived and made perpetual by 9 Geo. 2. c. 18. 25. s. 3. and is now repealed by 7 & 8 Geo. 4. c. 27. except so far as such repeal may be considered to be qualified by the second section of (n) Ante, 141. (0) 1 Hawk. P. C. c. 33. s. 35. 2 East. P. C. c. 16. s. 36. p. 597. Stealing public or private securities for money, or warrants for goods, shall be felony, and punishable ac cording to the circumstances, like stealing goods. that statute,) enacted that if any person or persons should steal or take by robbery any exchequer orders or tallies, or other orders, entitling any other person or persons to any annuity or share in the parliamentary fund, or any exchequer bills, South Sea bonds, bank-notes, East India bonds, dividend warrants of the bank, South Sea company, East India company, or any other company, society, or corporation, bills of exchange, navy bills or debentures, goldsmiths' notes for payment of money, or other bonds or warrants, bills, or promissory notes for the payment of any money, being the property of any other person or persons, or of any corporation, notwithstanding any of the said particulars were termed in law a chose in action, it should be deemed and construed to be felony of the same nature and in the same degree, and with or without the benefit of clergy, in the same manner as it would have been, if the offender had stolen or taken by robbery, any other goods of like value with the money due on such orders, tallies, bills, bonds, warrants, debentures, or notes, or secured thereby, and remaining unsatisfied; and that such offender should suffer such punishment as he or she should or might have done, if he or she had stolen other goods of the like value with the monies due on such orders, tallies, bonds, bills, warrants, debentures or notes respectively, or secured thereby, and remaining unsatisfied. 66 This statute is repealed by 7 & 8 Geo. 4. c. 27. except so far as such repeal may be considered as qualified by the second section of the act, which enacts "that nothing in this act contained shall "in anywise affect or alter such part of any act as relates to the post-office, or to any branch of the public revenue, or to the "naval, military, victualling, or other public stores of his majesty, &c. except the acts of 31 Eliz. c. 4., and 22 Car. 2. c. 5., "which are hereinbefore repealed, or shall affect or alter any act "relating to the Bank of England, or South Sea company." The statute 7 & 8 Geo. 4. c. 29. s. 5. enacts "that if any person shall steal any tally, order or other security whatsoever, entitling or evidencing the title of any person or body corporate "to any share or interest in any public stock or fund, whether of "this kingdom, or of Great Britain, or of Ireland, or of any "foreign state, or in any fund of any body corporate, company, "or society, or to any deposit in any savings bank, or shall steal (6 any debenture, deed, bond, bill, note, warrant, order, or other "security whatsoever, for money or for payment of money, whe"ther of this kingdom, or of any foreign state, or shall steal any "warrant or order for the delivery or transfer of any goods or "valuable thing, every such offender shall be deemed guilty of "felony, of the same nature, and in the same degree, and punish"able in the same manner as if he had stolen any chattel of like "value with the share, interest, or deposit to which the security "so stolen may relate, or with the money due on the security so "stolen or secured thereby, and remaining unsatisfied, or with "the value of the goods or other valuable thing mentioned in the Rule of inter-warrant or order; and each of the several documents hereinpretation. "before enumerated, shall throughout this act be deemed for every purpose to be included under and denoted by the words "valuable security." 66 In a case upon the statute 2 G. 2. c. 25. s. 3. (now repealed as before-mentioned) where the prisoner was convicted of stealing a note, by which the maker promised to pay to the prosecutor or order a sum of money, but which the prosecutor had not indorsed, it was holden by all the Judges that its not being indorsed was immaterial. (p) In a case upon the same statute where the prisoners were indicted for stealing a bill of exchange, it appeared that when the bill was stolen from the prosecutor, at Manchester, two names only were indorsed upon it; but that when it was negociated by one of the prisoners, at Leicester, a third name was added to the two other indorsers: upon which it was objected, on behalf of the prisoners, that this being an indictment, in Leicester, for then and there stealing a bill of exchange, whereon were indorsed the names of the two first indorsers, it was not supported by the evidence of a bill with an additional name indorsed thereon, at the time the bill was negociated by one of the prisoners, in Leicester. But the prisoners were convicted: and the point being submitted to the twelve Judges, for their consideration, they all agreed that the addition of the third name made no difference; that it was the same bill that was originally stolen; and, therefore, that the conviction was proper.(q) In a case upon a statute 15 Geo. 2. c. 13. relating to embezzlements by servants of the Bank of England, which will be mentioned in a subsequent chapter, a prisoner was indicted for stealing certain bills, commonly called exchequer bills; and as it appeared that the person, who signed them, on the part of the government, was not legally authorized so to do, the court held that they were not good exchequer bills, and the prisoner was consequently acquitted. (s) which have bankers, in In a modern case it was holden that the paper and stamps of Clarke's case. the notes of a firm of country bankers, which had been paid by stamps of the The paper and their correspondent banker, in London, and which were re-issua- notes of counble by the country bankers, were the valuable property of such try bankers, country bankers while they were in transitu for the purpose of been paid by being re-issued. The indictment consisted of several counts; in their corressome of which the prisoner was charged with stealing "promis- pondent sory notes ;" and in others he was charged with stealing "one London, and "hundred and thirty-five pieces of paper, each being respectively are re-issuable "stamped with a stamp of four shillings, value four shillings, by the country being the stamp directed by the statute in such case made and the valuable provided on every promissory note for payment to the bearer on property of "demand of any sum of money not exceeding, &c.; one hundred the country "and eighty-four pieces of paper, each being respectively stamped in transitu, for "with a stamp of one shilling, &c.; and seventy-seven pieces of the purpose of paper, each being respectively stamped with a stamp of one "shilling and sixpence, &c. all the said pieces of paper being so "stamped as aforesaid, and being the property, &c.; and each (p) Anon. East. T. 1781. 2 East. P. C. c. 16. s. 37. p. 598. (9) Rex v. Austin and King, Lei VOL. II. L cester Lent Ass. 1783. East. T. 1783. 2 East. P. C. c. 16. s. 37. p. 602. (s) Aslett's (first) case. 2 Leach 954. bankers, are bankers, while being re issued, and the subject of larceny at common law. |