CHAPTER THE TWENTY-FOURTH. OF LARCENY BY TENANTS AND LODGERS. Qu. offence at common law. IT was long doubted whether, as a lodger had a special property in the goods which were let with his lodgings, the stealing of them was felony: (a) and it was at length decided by a majority of the Judges that it was not. (b) In consequence of this decision, the 3 W. & M. c. 9. s. 5. was passed, which, after reciting that it was a frequent practice for idle and disorderly persons to hire lodgings with an intent to have an opportunity to take away, imbezil, or purloin the goods and furniture being in such lodgings, enacted and declared that if any person or persons should take away, with an intent to steal, imbezil, or purloin, any chattel, bedding, or furniture, which by contract or agreement he or they were to use, or should be let to him or them to use, in or with such lodging, such taking, imbezzilling, or purloining, should be to all intents and purposes taken, reputed, and adjudged to be larceny and felony, and the offender should suffer as in case of felony. Several points of nicety and difficulty arose upon the construction of this statute, and upon the statement of the contract in the indictment, (c) but it was repealed by the 7 & 8 Geo. 4. c. 27., (a) Raven's alias Aston's case, Kel. 24, 81, 82. 1 Hawk. P. C. c. 43. s. 2. And see as to a special property or bare use, &c. ante, 106,107. One (b) Meeres's case, Show. 50. (13) a Qu. is made whether it would not now be holden that a lodger purloining furniture is guilty of larceny at common law, on the ground of the possession still continuing in the owner of the house. But it has lately been ruled that if a man hires a lodg ing with intent that a comrade of his may steal the furniture, the thief cannot be indicted at common law as for stealing the goods of the original owner, Rex v. Belstead, East. T. 1820, MS. Bayley, J., and Russ. & Ry. 411. (c) 2 East. P. C. 586. 6 Ev. Col. Stat. Pt. V. Cl. VII. No. 17. p. 472. note (14). Brown's case, 1 Hawk. P. C. c. 43. s. 3. Palmer's case, 2 Leach 680. 2 East. P. C. 586. Pope's case, I Leach 386. 2 East. 587. Bill's case, 1 Hawk. P. C. c. 43. s. 7. Rex v. Goddard and Fraser, 2 Leach 545. Pike's case, 1 Hawk. P. C. c. and the statute passed for consolidating and amending the laws relative to larceny has substituted a more simple enactment, and provided that the indictment shall be in the common form as for larceny. The 7 & 8 Geo. 4. c. 29. s. 45. for the punishment of depredations committed by tenants and lodgers enacts, "that if any per"son shall steal any chattel or fixture let to be used by him or "her in or with any house or lodging, whether 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 manner as in the case "of simple larceny; and in every such case of stealing any chat"tel, 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." 43. s. 4. Mann's case, 1 Hawk. P. C. c. 43. s. 6. Butler's case, 1 Hawk. P. C. c. 43. s. 8. Rex v. Healey, Ry. & Mood. Cr. Cas. 1. Rex v. Bew, 7 & 8 Geo. 4. c. 29. s. 45. Tenants and lodgers stealing any property from houses or apartments let to them. CHAPTER THE TWENTY-FIFTH. 6 Geo. 4. c. 16. surrendering and submitting to be examin ed; discovery of his estate and effects; OF EMBEZZLEMENTS AND FRAUDS BY BANKRUPTS. THE statute 6 Geo. 4. c. 16. s. 112. enacts, "that if any person Bankrupt not against whom any commission has been issued, or shall hereafter "be issued, whereupon such person hath been or shall be declared bankrupt, shall not, before three of the clock, upon the forty"second day after notice thereof in writing, to be left at the usual place of abode of such person, or personal notice in case such person be then in prison, and notice given in the London "Gazette of the issuing of the commission, and of the meetings "of the commissioners, surrender himself to them, and sign or "subscribe such surrender, and submit to be examined before "them, from time to time, upon oath, or, being a Quaker, upon or not making "solemn affirmation; or if any such bankrupt, upon such ex"amination, shall not discover all his real or personal estate, and "how and to whom, upon what consideration, and when he disposed of, assigned or transferred any of such estate, and all "books, papers and writings relating thereunto, (except such part "as shall have been really and bond fide before sold or disposed "in the way of his trade, or laid out in the ordinary expence of his family); or if any such bankrupt shall not, upon such examination, deliver up to the commissioners all such part of such "estate, and all books, papers and writings relating thereunto, as be in his possession, custody or power, (except the necessary "wearing apparel of himself, his wife and children); or if any or embezzling "such bankrupt shall remove, conceal or embezzle any part of "such estate, to the value of ten pounds or upwards, or any "books of account, papers or writings relating thereto, with intent "to defraud his creditors, every such bankrupt shall be deemed or not de livering up his goods, books, &c.; or removing to the value of 107, felony. Punishment. Lord Chancellor may en large time for surrender. 66 66 guilty of felony, and be liable to be transported for life, or for "such term, not less than seven years, as the court before which "he shall be convicted shall adjudge, or shall be liable to be imprisoned only, or imprisoned and kept to hard labour in any "common gaol, penitentiary-house or house of correction, for any "term not exceeding seven years." 66 The 113th section enacts" that the Lord Chancellor shall have power, as often as he shall think fit, from time to time to enlarge the time for the bankrupt surrendering himself for such "time as the Lord Chancellor shall think fit, so as every such "order be made six days at least before the day on which such "bankrupt was to surrender himself." The 115th section enacts, "that if any bankrupt apprehended Proviso for "by any warrant of the commissioners shall, within the time surrender "hereby allowed for him to surrender, submit to be examined, apprehended. "and in all things conform, he shall have the same benefit as if he "had voluntarily surrendered." Upon the repealed statute 5 Geo. 2. c. 30. which contained Repealed provisions of a similar nature, though (as to some of them) im- statute, 5 Geo. perfectly framed, it was observed, that no instance ever occurred 2. c. 30. of a capital punishment, or (as was believed) of a capital conviction, for the mere omission to surrender. (a) And the learned Judges presiding in the Court of Chancery, in many instances, superseded commissions, in order to prevent a prosecution for not surrendering in time, where there did not appear to have been any intention in the bankrupt of defrauding his creditors by not appearing within the time appointed, and where his absence proceeded rather from an ignorance of the consequence, or accident. (b) Such an order did not, however, prevent a prosecution, but operated only as an intimation of the Chancellor's opinion that the bankrupt did not keep out of the way fraudulently, and that it was a case in which the Chancellor did not see reason to think that if prosecuted he would have been convicted; (c) and it appears clear that there must have been a wilful omission to surrender to constitute a felony. (d) Very few points appear in the books upon the construction of Points upon this repealed statute, and some of them are inapplicable to the the repealed present law. (e) In an early case, upon the repealed statute, an objection was taken to an indictment that there ought to have been an averment in the indictment, that the commissioners did sit, and that those commissioners should have been named; whereas they were not named in the notice, which only set forth that he was required to surrender to the commissioners at Guildhall; and it might as well be understood of the commissioners of sewers, or of the lieutenancy, as of the commissioners of bankrupts, for they all sit at the same Guildhall. The court were of opinion that this, together with other objections, was good. (ƒ) (a) 4 Ev. Col. Stat. Bankrupts, p. 88. (b) Ex parte Wood, 1 Atk. 222. Ex parte Shiles, 1 Madd. 249. (c) By the Vice-Chancellor in Ex parte Shiles, 1 Madd. 249. (d) Id. Ibid. (e) The 1 Geo. 4. c. 115. s. 1. after reciting so much of the 5 Geo. 2. c. 30. as made it a capital felony for a bankrupt to conceal, embezzle, &c. to the value of 207. or any books of account, &c. with an intent to defraud his creditors, enacted, that so much of the said act as inflicted capital punishment of death on the offence thereinbefore recited should be repealed, and that any person duly convicted of the (f) Rex v. Frith, O. B. 1738. 1 statute. Nicety in framing indictments on that statute. It was observed that the principal nicety in framing an indictment on that statute consisted in the recital of the proceedings before and under the commission. (g) And the necessary evidence required attention; as it was necessary to prove regularly the trading, the petitioning creditor's debt, the act of bankruptcy, the issuing the commission, and the subsequent proceedings. "While the commission subsists, its "validity may be assumed for certain civil purposes; but when a "criminal case occurs, unless the party was a bankrupt, all falls "to the ground." (h) In a case where a defendant was indicted for refusing to give the commissioners an account of his effects, he was acquitted on the ground that he was an infant at the time the debts were contracted, and could not, therefore, be a bankrupt for debts which he was not obliged to pay. (¿) And the Court of Chancery refused to lend its aid to a prosecution on that statute by ordering the clerk under the commission to attend the trial, and produce the proceedings. (k) The following points were understood to have been decided in a case upon the repealed statute in which the defendant was charged by the indictment with concealing his effects to the amount of 201. with intent to defraud his creditors: First, that an averment in an indictment for felony, that a commission issued under the great seal of Great Britain, was sufficiently proved by evidence that it issued under the great seal of Great Britain and Ireland; secondly, that a bankrupt could not set up a prior secret act of bankruptcy to invalidate his commission; thirdly, that a creditor might prove the act of bankruptcy before the commissioners; and, fourthly, that a commission of bankruptcy was not liable to any of the stamp duties imposed by the 44 Geo. 3. c. 98. (1) It was also ruled that in an indictment against a bankrupt where the petitioning creditors' debt was alleged to be due to A., B., and C., surviving executors of the last will and testament of D., after proof that A., B., and C., were the executors, and were directed by the will to carry on the business, it was necessary to prove that they all assented to act in discharge of the be quashed. But the Court said it (g) 2 Chit. Crim. L. 511. notes. (i) Rex v. Cole, 1 Ld. Raym. 443. (1) Rex v. Bullock, 2 Leach 996. |