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“ proper; or it shall and may be lawful to and for such court or “ judge, or for any other subsequent court held at the same “ place, with the like authority as the former, to order such of“ fender or offenders to be transported to some of his majesty's or to be trans“ plantations beyond the seas, for a term not exceeding seven ported for

bnported for seven

years; “ years, as such court or judge shall think most proper; and “thereupon judgment shall be given that the person or persons “ so convicted shall be committed and whipt, or transported “accordingly, and if transportation shall be directed, the same " shall be executed in such manner as is or shall be provided by “ law for the transportation of felons; and if any such person or " persons so committed or transported shall voluntarily escape and if they es“ or break prison, or return from transportation before the expi- cape from P

son, or return “ ration of the time for which he, she, or they shall be ordered from transpor" to be transported as aforesaid, such person or personis being tation, to suffer “thereof lawfully convicted, shall suffer death as a felon without death ; “ benefit of clergy, and shall be tried for such felony in the “ county where he, she, or they so escaped, or where he, she, “ or they shall be apprehended.”

+ Sect. 2. By 25 Geo. 2. Ć. 10. $. 2. it is further enacted, and a certificate “That if any person shall be convicted or attainted of any of of the former

conviction « the offences aforesaid, and shall voluntarily escape, break a “ prison, or return from transportation as aforesaid, and shall cient proof “ be apprehended in any other county or city different from that thereof. “ wherein the said offence was committed, the clerk of the assize, “ or clerk of the peace for the county or city where such convic“tion or attainder for the said offence or offences was had, shall, " at the request of the prosecutor, or of any other on his ma“ jesty's behalf, certify the same by a transcript in few words, "containing the effect and tenor of such conviction or attainder, “ for which certificate two shillings and sixpence and no more « shall be paid; and such certificate being produced in court shall “be sufficient proof of such former conviction or attainder.”

+ Sect. 3. By 25 Geo. 8. c. 10. s. 3. it is further enacted, Receivers of “That all and every person or persons who shall buy or receive

who shall buy or receive lead, knowing

such to be “ any wad or black cawke, commonly called black lead, know- stolen, guilty of “ing the same to be so unlawfully taken and carried away felony. “as aforesaid, shall be deemed and construed to be guilty “ of felony, and being convicted thereof, shall be subject and “ liable to all the pains and penalties which any person of per“ sons can or may by the laws and statutes of this realm be sub“ject and liable to, for buying or receiving any goods or chattels " that have been feloniously taken of stolen, knowing the same "to have been stolen.” • Lead or Iron, and Copper, Brass, of Bell-metal, affired to

on a Dwelling-house.. + Sect. 1. By 4 Geo. 2. c. 32. IT IS RECITED, “That the Stealers of lead, pernicious practice of stealing lead, iron bars, iron gates, iron iron bars, &c.

fixed to houses, palisadoes, and iron rails, fixed to dwelling-houses, out-houses, or coach-houses, stables, and other buildings, and fixed in gardens, belonging thereorchards, court-yards, fences, and outlets, belonging to dwelling- to, shall be,

guilty of felony, houses and other buildings, hath of late time been much used, in to the great detriment of his majesty's subjects; and it is neces- ported for seven

sary, years.

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sary, for the more effectual preventing of such offences, to in-
flict a more exemplary punishment on such offenders, than by
the laws of this realm can now be done;" AND IT IS ENACTED,
“ That all and every person and persons who shall steal, rip, cut,
or break, with intent to steal, any lead, iron bar, iron gate,
“ iron palisado, or iron rail whatsoever, being fixed to any
“ dwelling-house, out-house, coach-house, stable, or other build-
“ ing used or occupied with such dwelling-house, or thereunto
“ belonging, or to any other building whatsoever, or fixed in
“ any garden, orchard, court-yard, fence, or outlet, belonging
“ to any dwelling-house or other building, shall be deemed and
« construed to be guilty of felony; and every such felon and
“ felons shall be subject and liable to the like pains and penal-
“ ties as in cases of felony; and the court, by and before whom
“ such person or persons shall be tried, shall, and hereby have
“ power and authority to transport such felons for the space of
“ seven years, in like manner as other felons are directed to be
“ transported by the laws and statutes of this realm; and all and
“ every person and persons who shall be aiding, abetting, or as-
“ sisting in stealing, or in such ripping, cutting, or breaking any
“ lead, iron bar, iron gate, iron palisado, or iron rail, fixed to
“ any dwelling-house, out-house, coach-house, stable, or other
“ building, or fixed in any garden, orchard, court-yard, fence, or
“ outlet, belonging to any dwelling-house or other building, or
“ who shall buy, or receive any such lead, iron bar, iron gate,
“ iron palisado, or iron rail, knowing the same to be stolen,
“ shall be subject and liable to the same punishments as if he,
“she, or they had stolen the same; any law to the contrary in

“ anywise notwithstanding." All persons who + Sect. 2. By 21 Geo. 3. c. 68. it is enacted, “ That all and

: “ every person and persons who shall steal, rip, cut, break, or any copper, &c. fixed to any * “ remove, with intent to steal, any copper, brass, bell-metal, dwelling-house, “ utensil, or fixture, being fixed to any dwelling-house, outdeemed guilty

“ house, coach-house, stable, or other building, used or occupied of felony, and

and “ with such dwelling-house, or thereunto belonging, or to any may be trans- “ other building whatsoever, or fixed in any garden, orchard,

“court-yard, fence, or outlet, belonging to any dwelling-house, years, &c.

“ or other building, or any iron rails or fencing set up or
“ fixed in any square, court, or other place (such person having
“ no title or claim of title thereto), shall be deemed and con-
“ strued to be guilty of felony; and the court, by and before
“ whom such person or persons shall be tried and convicted,
“ shall, and hereby have power and authority to transport such
“ felons for the term of seven years, in like manner as other
felons are directed to be transported by the laws and statutes
of this realm; or to order and direct that such offender be kept
“ and detained in prison, and therein kept to hard labour for any
“ time not exceeding three years, nor less than one year; and
“ within that time, if such court shall think fit, such offender
“ shall be once, or oftener, but not more than three times, pub-

“ licly whipped.” All persons as + Sect. 3. By 21 Geo. 3. c. 68. it is further enacted, “ That sisting, or who

« all

shal

Por

even

« all and every person and persons who shall be aiding, abetting, shall buy, liable “ or assisting, in stealing, or in such ripping, cutting, breaking, to same punish

ments. “ or removing any copper, brass, bell-metal, utensil, or fixture, “ fixed to any dwelling-house, out-house, coach-house, stable, or “ other building, or fixed in any garden, orchard, court-yard, “ fence, or outlet, belonging to any dwelling-house, or other “ building, or any iron rails, or fencing, set up or fixed in any “ square, court, or other place; or who shall buy or receive any “ such copper, brass, bell-metal, utensil, or fixture, iron rails, “ or fencing, knowing the same to be stolen, shall be subject “ and liable to all and every the same punishments, pains, and “ penalties, as if he, she, or they, had stolen the same, although “ the principal felon or felons has not or have not been convicted “ of stealing the same; any law to the contrary in anywise not“ withstanding.”

+ Sect. 4. It is clear, that these statutes create a new felony, Rex v. T. Josand therefore the indictment must state whatever the statute ling, O.B.July

Sess. 1784, makes constituent parts of the offence, and conclude contra for- coram Adile. mam statuti.

Recorder

ram WILLES,

+ Sect. 3. It seems also, that as the legislature has created a Josling's case, new felony, it partakes of course of all those qualities which are uli supra. incidental to a felony at common law, and therefore that the in-.. dictment must affix a value to the property stolen, in order that it may appear either grand or petit larceny.

+ Sect. 6. But it has been said, that an offender against this By Glyn, Restatute cannot be rendered guilty of a capital offence, by stating corder, in the that he burglariously broke and entered the dwelling-house in Carragon, 0. B.

S case of James “ the night-time, and then and there stole such a quantity of in the year “ lead, iron, &c. the same being fixed to the said dwelling-house, 1772. “ &c.” for the legislature has described the offence, and limited the punishment. Sed quære.

+ Sect. 7. It hath been ruled, on an indictment for stealing Hedges' case, “ iron window sashes,” that if it appear that the window frames O. B. May from which the sashes were taken were fixed into their proper

Sess. 1779, coplaces, but that the sashes were neither hung nor beaded in the Justice. frames, but merely fastened in by laths nailed across the frames, to prevent their falling out, they are not fixed to the freehold within the meaning of these statutes.

* Sect. 8. So also it has been held, that “ a wooden gate, Challis's case, “ with an iron spring latch and clasp, and two pieces of iron, Essex Lent As

sizes, 1784, co“ called upper eyes, which may be lifted on and off the hooks

ram Gould, “ of the gate-post at pleasure,” is not a fixture to the freehold. Justice.

+ Sect. 9. It has also been repeatedly ruled, that a window Senior's case, casement, made of iron, lead, and glass, is not within these sta- Cases C. L. tutes; for the words, “ lead, iron bar, iron grate, iron palisado, 394. “ iron rail, or copper, brass, or bell-metal utensil," are to be taken as substantive nouns, and not as adjectives, describing the qualities of the things mentioned; and therefore, as u casement is not among the things enumerated, it is not within the statutes.,

t Sect.

s also bead, ano bar, metal bites, de

Breese's case, + Seot. 10. So alsu it bas been held, that a stock-lock, which 0.B. Feb. is a lock with iron-work wards in a wooden frame, is not within Sess. 1785.

these statutes, - Jos. Hickman's + Sect. 11, It has been decided, thạt “ a churchis a buildcase, O. B. « ing" within the meaning of these statutes; and that an indict

786, ment for stealing lead affixed thereto, is good, although it do not on a case re

son in whom the freehold, to which served for the mention the person in whom the freehold, to which the property opinion of the taken was affixed, resided. Judges.

Irop failş fixed to a tombstone in a churchyard, was ruled not to be within the meaning of these statutes, J. Davis's case,

O. B. Jan. 1792, Clarke's case,

+ Sect. 12. But it has been held, that an observatory placed O. B. Feb. in the middle of a gentleman's garden grounds is not “ a buildSess. 1781.

“ ing used and occupied with a dwelling-house” within the mean

ing of these statutes. Marney's case, Seot. 13. It has also been held, that an iron bar affixed to the O.B. June Sess. 1785, CO- TP

copper-hole of a hot-house or green-house, in a garden, is within ram Heath, these statutes. Justice. The case of

+ Seçt, 14, But it has been held, that an iron grate fixed to Brown and the ground over the mouth of a sewer, in the middle of a public Stephens, O. B. bighway, and not belonging to any building, but to the commisApril Sess. 1791.

sioners of severs, is not within the statute 4 Geo, 2. c. 32. The case of

+ Sect. 15. It has been held, that an indictment ou 4 Geo. 2. Thomas Breese, c. 32, for stealing lead affixed to a dwelling-house, is not mainRecorder, AIR tained by evidence that it was lead belonging to a sink, and that

it was only cut, ripped, and turned up, but not taken away; but such evidence would maintain an indictment for cutting and rip, ping the lead with intent to steal.

Of Things in which none have a determinate Property at Common

Law. There can be no felony at common law, as Hawkins has observed, of things, in which no one had a property at the time of the fact committed. It follows from hence there could be no property in any animals fera natura before they were reduced into possession by being either dead or reclaimed. The legislature has again interfered in these instances by making it larceny to take certain of these animals in their wild state by persons having no title to take them.

As to Rabbits. The penalty for Sect. 1. By 3 Jae. 1. c. 13. s. 2. it is enacted, “ That if any breaking a park “ person or persons shall, in the night time, or by day, wrongfor hunting of

“ fully or unlawfully break or enter into any park impaled, or conies. “ any other several grounds, inclosed with wall, pale, or hedge,

“ and used or kept for the keeping, breeding, and cherishing of stat. 1. c. 10. Farther pro

“ apy conies, and wrongfully or unlawfully shall hunt, drive, or vided by “chase out, or take, kill, or slay any conies within any such im7 Jac. 1. c. 13.

“paled park, or closed ground with pale, wall, or other inclosurę “ as aforesaid, against the will, mind, or pleasure of the owners,

“occupiers,

13 Car. 2.

sect. 4.

mine the

6 occupiers, or possessioners of the same, not having lawful title
« or authority so to do, and thereof shall be lawfully convicted
“ at the suit of our sovereign lord the king, his heirs or suc-
“cessors, or the party grieved, shall suffer imprisonment of his
" or their bodies by the space of three months; and also shall
“ yield and pay to the party grieved his treble damages and costs,
« to be assessed and rated by the justices before whom he or
“they shall be convicted, after the said three months expired;
“and shall find sufficient şureties for his and their good abearing
“ against the king, his heirs and successors, and all his liege
“people, for the space of seven years after, or else shall remain
“ and continue still in prison without bail or mainprize, until
“ such time as he or they so offending shall find sufficient sure-
“ties during the said time and space of seven years."

+ Sect. 2. By 3 Jac. 1. c. 13. §. 3. it is further enacted, What justices “That the justices of oyer and terminer, justices of assize in may bear and " their circuits, and justices of peace and gaol delivery in their

offences afore“ sessions, shall, by virtue hereof, have power and authority to said. "enquire, hear, and determine all and singular the said offences, " by examination of the offenders, and to make and award pro“cess thereupon, as well upon indictments taken before them, “as by bill of complaint, information, or any other action; in “ which said suit or action, no essoin, wager of law, or protec“tion shall be allowed.”

+ Sect. 3. By 3 Jac. 1. c. 13. s. 4. it is also enacted, “That The remedy " it shall and may be lawful to the party grieved, to sue and take of the party “his further remedy against all and every such offender and gr “ offenders, for his loss and damages, and to recover the treble “ value of the same in that behalf, as well before the justices of “ oyer and terminer, justices of assize in their circuits, and jus“ tices of the peace and gaol-delivery in their sessions, or else“where in any other the king's majesty's courts of record at “ Westminster; and that upon true satisfaction of the said treble “ damages to the party grieved, or upon the confession or ac“knowledgment thereof by the said party offending, before the “ justices in open sessions holden for the county wherein the “ same offence shall be committed, it shall be at the liberty of In what case “ the said party grieved, to whom the said offence is committed, the suretyship

of the good “ to release at his pleasure the suretyship of the good behaviour, behar “ at any time within the said seven years or before; any thing in be released “this present act before-mentioned or declared to the contrary by the party

> grieved. “notwithstanding.”

+ Sect. 4. By 3 Jac. 1. c. 13. s. 5. it is further enacted, " That Penalty for “if any person or persons not having any manors, lands, tene- shooting with “ments, or hereditaments, of the clear yearly value of forty conies, or for

Ortugun or bow at “pounds, or not worth in goods or chattels the sum of two hun- keeping of “dred pounds, shall use any gun, bow, or cross-bow, to kill any engines, &c. “conies, or shall keep any engine-hayes, gate-nets, purse-nets, “ ferrets, or coney-dogs, except such person or persons as shall " have any ground imparked with pale, or inclosed with wall or “hedge as aforesaid, used for the keeping, breeding, or cherish"ing of any conies, the increasing of which said conies shall " amount to the clear yearly value of forty shillings, to be letten

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