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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 transplantations beyond the seas, for a term not exceeding seven ported for seven

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5 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 of

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years;

son, or return

persons so committed or transported shall voluntarily escape and if they es " or break prison, or return from transportation before the expi- cape from pri"ration of the time for which he, she, or they shall be ordered from transpor"to be transported as aforesaid, such person or persons 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

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county where he, she, or they so escaped, or where he, she,

" or they shall be apprehended."

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conviction

+ Sect. 2. By 25 Geo. 2. c. 10. s. 2. it is further enacted, and a certificate "That if any person shall be convicted or attainted of any of of the former "the offences aforesaid, and shall voluntarily escape, break deemed suffiprison, 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 majesty'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."

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such to be

+ Sect. 3. By 25 Geo. 2. c. 10. s. 3. it is further enacted, Receivers of "That all and every person or persons who shall buy or receive lead, knowing "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. 66 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 or persons can or may by the laws and statutes of this realm be subject and liable to, for buying or receiving any goods or chattels "that have been feloniously taken or stolen, knowing the same "to have been stolen."

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Lead or Iron, and Copper, Brass, or Bell-metal, affixed to

a Dwelling-house.

or any fences

+ 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. palisadoes, and iron rails, fixed to dwelling-houses, out-houses, fixed to houses, coach-houses, stables, and other buildings, and fixed in gardens, belonging thereorchards, court-yards, fences, and outlets, belonging to dwelling- to, shall be houses and other buildings, hath of late time been much used, and be transguilty of felony, to the great detriment of his majesty's subjects; and it is neces- ported for seven

sary, years.

All persons who shall steal, &c.

any copper, &c. fixed to any

&c. shall be deemed guilty of felony, and may be trans

years, &c.

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sary, for the more effectual preventing of such offences, to inflict 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 building 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 66 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."

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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 remove, with intent to steal, any copper, brass, bell-metal, dwelling-house," utensil, or fixture, being fixed to any dwelling-house, out"house, coach-house, stable, or other building, used or occupied "with such dwelling-house, or thereunto belonging, or to any "other building whatsoever, or fixed in any garden, orchard, ported for seven «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 (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, publicly whipped."

All persons assisting, or who

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Sect. 3. By 21 Geo. 3. c. 68. it is further enacted, "That " all

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ments.

"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"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."

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+ Sect. 4. It is clear, that these statutes create a new felony, and therefore the indictment must state whatever the statute makes constituent parts of the offence, and conclude contra for

mam statuti.

Rex v. T. Josling, O. B. July Sess. 1784, coram ADAIR, Recorder.

† Sect. 5. 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 ubi supra. incidental to a felony at common law, and therefore that the indictment must affix a value to the property stolen, in order that it may appear either grand or petit larceny.

case of James

+ 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, O. B. "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.

Sess. 1779, co

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 ram WILLES, places, 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"called upper eyes, which may be lifted on and off the hooks sizes, 1784, co"of the gate-post at pleasure," is not a fixture to the freehold. Justice.

ram GOULD,

+ 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 a casement is not among the things enumerated, it is not within the statutes. + Sect.

Breese's case,
O. B. Feh.
Sess. 1785.

Jos. Hickman's
case,
O. B.

May Sess. 1786,

on a case re

served for the

opinion of the Judges.

Clarke's case,
O. B. Feb.

Sess. 1781.

Marney's case,
O. B. June
Sess. 1785, co-
ram HEATH,
Justice.

The case of
Brown and

Stephens, O.B.
April Sess.

1791.

The case of

Recorder.

+ Sect. 10. So also it has been held, that a stock-lock, which is a lock with iron-work wards in a wooden frame, is not within these statutes.

+ Sect. 11, It has been decided, that "a church" is "a build"ing" within the meaning of these statutes; and that an indictment for stealing lead affixed thereto, is good, although it do not mention the person in whom the freehold, to which the property taken was affixed, resided.

Iron Fails 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,

+ Sect. 12. But it has been held, that an observatory placed in the middle of a gentleman's garden grounds is not "a build"ing used and occupied with a dwelling-house" within the meaning of these statutes,

Sect. 13. It has also been held, that an iron bar affixed to the copper-hole of a hot-house or green-house, in a garden, is within these statutes.

+ Sect. 14. But it has been held, that an iron grate fixed to the ground over the mouth of a sewer, in the middle of a public highway, and not belonging to any building, but to the commissioners of severs, is not within the statute 4 Geo, 2. c. 32.

Sect. 15. It has been held, that an indictment on 4 Geo. 2. Thomas Breese, c. 32. for stealing lead affixed to a dwelling-house, is not maincoram ADAIR, 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 ripping the lead with intent to steal.

The penalty for breaking a park

or warren, of

for hunting of

conies.

13 Car. 2.

stat. 1. c. 10. Farther

provided by

7 Jac. 1. c. 13. sect. 4.

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.

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As to Rabbits.

Sect. 1. By 3 Jac. 1. c. 13. s. 2. it is enacted, "That if any «person or persons shall, in the night time, or by day, wrongfully or unlawfully break or enter into any park impaled, or any other several grounds, inclosed with wall, pale, or hedge, and used or kept for the keeping, breeding, and cherishing of "any conies, and wrongfully or unlawfully shall hunt, drive, or "chase out, or take, kill, or slay any conies within any such impaled park, or closed ground with pale, wall, or other inclosure "as aforesaid, against the will, mind, or pleasure of the owners, occupiers,

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❝ 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

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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 sureties 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."

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+ 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 hear and "their circuits, and justices of peace and gaol delivery in their determine the sessions, shall, by virtue hereof, have power and authority to said. "enquire, hear, and determine all and singular the said offences,

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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,"

offences afore

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 grieved. "his further remedy against all and every such offender and "offenders, for his loss and damages, and to recover the treble "value of the same in that behalf, as well before the justices of 66 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

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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 these good "to release at his pleasure the suretyship of the good behaviour, behaviour may "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 "notwithstanding."

grieved.

gun or bow at

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 "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 conjes shall amount to the clear yearly value of forty shillings, to be letten

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