+ Sect. 3. And by 22 Car. 2. c. 5. s. 4. it is further enacted, "That if such offender shall refuse to be so transported, or after "such transportation shall return or come again into England, "Wales, or Berwick upon Tweed, within the time aforesaid, such "person shall be put to execution upon the judgment so given "and pronounced against him." Larceny of Linnens from Bleaching Ground. By stat. 51 Geo. 3. c. 41. which repeals the first sect. of 18 Geo. 2. c. 27. (by which clergy was excluded from offenders stealing linen, &c. of the value of ten shillings, from bleaching grounds,) it is enacted, "That every person who shall feloniously "steal any linen, fustian, calico, cotton cloth, or cloth worked, ' woven, or made of any cotton or linen yarn mixed, or any thread, "linen, or cotton yarn, linen, or cotton tape, inkle, filleting laces, " or any other linen, fustian, or cotton goods, or wares whatso"ever, laid, placed or exposed to be printed, whitened, worked, "bleached, or dried in any whitening or bleaching croft, lands, fields, or grounds, bowking house, printing house, drying house, "or other building, ground, or place made use of by any calico "printer, whitster, crofter, bowker, or bleacher, for printing, whitening, bowking, bleaching, or drying of the same, to the value "of ten shillings; or who shall aid and assist, or wilfully or maliciously hire or procure any other person or persons to commit any such offence, or who shall buy or receive any such goods or wares so stolen, knowing the same to be stolen as aforesaid, "being lawfully convicted thereof, shall be liable to be trans"6 ported beyond the seas for life, or for such term, not less than seven years, as the judge before whom any such person shall be "convicted shall adjudge; or shall be liable, in case the said judge shall think fit, to be imprisoned, and kept to hard labour "in the common gaol, house of correction or penitentiary house, "for any term not exceeding seven years." 66 Upon an indictment upon the former statute 18 Geo. 2. by which the above offence was a capital felony, it appeared in evidence, that the yarn had been spread upon the ground for bleaching, but had been afterwards taken up and thrown into a heap, from which the prisoner took some of it. Thompson, B. ruled the case not within the statute, as the yarn was not necessarily left in that state. This ruling appears consonant to the general principle, that when a chattel is under peculiar sanction, ratione loci, that it should be in its proper deposit; so it has been questioned whether the great coat of a coachman stolen from the stable was protected by the stat. 10 & 11 Will. 3. on the ground that it is part of the necessary furniture of the stable, (Lea's case, 1 Leach, C. C. L. 304.) So in the above case, when the yarn was no longer in the bleach ground for the necessary manufacture of it, but was left there as a mere place of deposit, it was no longer under the protection of the statute. Robbery in a Dwelling-House, the Owner being therein and put in Fear. + Sect. 1. By 23 Hen. 8. c. 1. s. 3. 66 no person or persons "which shall be found guilty of robbing any person or persons in their dwelling-houses or dwelling-place, the owner or dweller "in the same house, his wife, his children, or servants, then being "within and put in fear and dread by the same, shall be admitted "to clergy." + Sect. 2. By 4 and 5 Philip and Mary, c. 4. "Every person "and persons who shall maliciously command, hire, or counsel "any person or persons to do any robbery in any dwelling-house "or houses, shall not have the benefit of clergy." Robbery in a Dwelling-House, the Family being therein, though not put in Fear. + Sect. 1. By 5 and 6 Edw. 6. c. 9. "If any person or persons "shall be found guilty for robbing of any person or persons in "any part or parcel of their dwelling-houses or dwelling-places, "the owner or dweller in the same house, or his wife, his children, " or servants, being then within the same house or place where "the robbery and felony is committed and done, or in any other "place within the precinct of the same house or dwelling-place, "the offender shall in no wise be admitted to clergy, whether the owner or dweller in the same house, his wife or children, then "and there being shall be sleeping or waking." 66 + Sect. 2. It is said, that in order to oust the offender of clergy 2 Hale, 354. under this statute, there must be such an actual breaking of the Foster, 108. house as would make a burglary if committed in the night. Cases Cro. L 354. Sect. 3. It is also said, that the indictment must run, "broke 2 Hale, 354. "and entered the mansion-house of J. S. the aforesaid J. S. his "wife and children in the same house being, &c."; but that it need not state the robbery violenter et à personâ, but only è domo prædictâ. + Sect. 4. It is also said, that if a servant steal goods out of his 2 Hale, 354. master's house in the day or night, the master, his wife and children being in the house, the offender is not ousted of his clergy by this statute, because there was no breaking of the house. † Sect. 5. It is settled, that if a servant unlatch or turn the key of a door in the house and steal goods out of that room, he shall not be ousted of his clergy, as a stranger in such case would be, for the opening of the door in this manner is within his trust, and so no breaking of the house; but if a servant break open a door, whether outward or inward, and steal goods, it is within the act. Sect. 6. It is certain also, that there must not only be a breaking of the house, the owner, his wife, children, or servants, being within the same, but there must also be a felonious taking of goods out of the house, to exclude clergy by this statute. + Sect. 7. And a bare felonious taking of goods out of the 2 Hale, 355. house, whether by night or day, without such a breaking as would make burglary if done in the night, will not oust the offender of clergy. + Sect. 8. It is also said, that a stranger only being in the house Staundf. 129. at the time is not sufficient, for the statute requires that "the 2 Hale, 355. "dweller or owner, his wife, children, servants or servant, be " within;" 4 Hawk. P. C. ch. 33. Tomlin's Case, "within ;" and therefore in such case if such sojourner be robbed Hetl. 64. But without being put in fear, the offender shall have his clergy. see post. 1 Hale, 524. 1 Hale, 508. 524. 1 Hale, 527. Foster, 108. 1 Hale, 524. Sect. 9. It is said, that if a person go into a house, the doors. being open, and break open only a chest or trunk and steal goods, it is not such a robbery as is within this statute; but that in such case if the person break open an inner door, or a counter, or cupboard fixed to the freehold, he shall be ousted of his clergy; and yet it hath been adjudged, that the breaking open of a chest is all one as to this purpose with the breaking open of a door, though the chest be not fixed to the freehold; and this latter resolution was by all the judges of England: but Mr. Justice Foster says, that "if a moveable chest be meant, this case cannot be law;" and that"in capital cases, such fixtures which merely supply the place of chests and other ordinary utensils of household, should "be considered in no other light than as mere moveables, par" taking of the nature of those utensils, and adapted to the same 66 66 use. + Sect. 10. But now the benefit of clergy is taken away from robbery in general by 3 and 4 Will. and Mary, c. 9. which enacts, "That all and every person or persons that shall rob any other person, or shall comfort, aid, abet, assist, counsel, hire or com"mand any person or persons to commit such offence, shall not "have the benefit of clergy." 66 Robbery in a Booth or Tent, the Family being therein, though not put in Fear. 66 66 Sect. 1. By 5 and 6 Edw. 6. c. 9. s. 5. “ No person or persons which shall be found guilty of and for robbing any person or persons in any booth or tent, in any fair or market, the owner, "his wife, his children, or servants or servant, then being within "the same booth or tent, shall be admitted to clergy, but shall "be excluded therefrom, and suffer death in such manner and "form as is mentioned in 23 Hen. 8. c. 1. for robberies in dwelling-houses, the owner or dweller in the same, his wife, chil"dren, or servants, being then within the same, and put in fear " and dread, without having any respect or consideration whether "the owner or dweller in such booths or tents, his wife, children, or servants, being in the same booths or tents at the time of "such robberies and felonies committed, shall be sleeping or waking." 66 Sect. 2. It hath been ruled, that the robbing of a shop, such as was formerly kept in Westminster-Hall, and like those which are now kept in Exeter-Change, is not robbing a booth or tent within the meaning of this statute. Robbery in a Dwelling-House, breaking the House, any Person being therein and put in Fear. 66 + Sect. 1. By 1 Edw. 6. c. 12, s. 10. "No person or persons "that hath been attainted or convicted of breaking any house by day or by night, any person being then in the same house where "the same breaking was committed, and thereby put in fear or dread, shall be admitted to clergy." + Sect. + Sect. 2. It is said, that in order to oust an offender of clergy 2 Hale, 353. under this statute, there must not only in all cases be a putting in fear, but that the breaking, if by night, must appear to have been done with intention to commit a felony, and if by day, that a felony was actually committed. + Sect. 3. It is also said, that if any stranger be then in the 2 Hale, 353. house and put in fear, it excludes from clergy, though it be not the owner or any of his family. Robbery in a Dwelling-House in the Day time, any Person being therein. + Sect. 1. By 3 Will. and Mary, c. 9. " All and every person or persons that shall rob any dwelling-house in the day-time, any person being therein, or shall comfort, aid, abet, assist, "counsel, hire, or command any person or persons to commit the "said offence, shall not have the benefit of his or their clergy." Robbery in a Dwelling-House, any Person being therein and put in Fear. + Sect. 1. By 3 Will. and Mary, c. 9. "All and every person or persons who shall feloniously take (1) away any goods or "chattels being in any dwelling-house, the owner or any other person being therein, and put in fear, or shall comfort, aid, abet, assist, counsel, hire or command any person or persons to "commit the said offence, shall not have the benefit of his or their clergy." 66 It must be stated, in the indictment under this statute, that the persons in the house were put in fear, otherwise the prisoner will be entitled to clergy. 2 Leach, Č. C. L. 271.-E. P. C. 635. Robbery in a Dwelling-House, no Person being therein, and stealing to the value of Five Shillings. Sect. 1. By 39 Eliz. c. 15. “ If any person or persons shall "be found guilty for the felonious taking away (2) in the day-time "of any money, goods, or chattels, being of the value of five shillings, or upwards, in any dwelling-house or houses, or any I part thereof, or any out-house or out-houses, belonging and "used to and with any dwelling-house or houses, although no person shall be in the said house or out-house at the time of "such felony committed, then such person or persons shall not "be admitted to clergy." 66 Sect. 2. It is adjudged, that accessaries to this offence are not excluded from clergy by this statute. But by 3 and 4 Will. and Mary, c. 9. it is enacted, "That whoever shall comfort, aid, "abet, assist, counsel, hire, or command any person or persons "to break any dwelling-house, shop or warehouse thereunto "belonging, or therewith used in the day-time, and feloniously "take away any money, goods, or chattels, of the value of five "shillings, Cro. Car. 473. P. C. ch. 33. (2) The words in this enacting clause are for "the felonious taking away," but as the preamble mentions the robbing and breaking and entering dwelling-houses, it has been held that the taking must be by robbery, that is, by breaking the dwellinghouse. E. P. C. 638. 2 Hale, 356. 2 Hale, 357. Poulter's Case, 2 Hale, 356. Smith's Case, upon a refer- twelve judges. (a) 2 Hale, 358. (b) Sir H. Hungate's Case, (c) Burgess's Case, shillings, or upwards, therein being, although no person shall be "within such dwelling-house, shop, or warehouse, shall be excluded from clergy." And upon these statutes the following determinations have been made. + Sect. 3. FIRST, That the bare taking of goods out of a house, under this statute, will not oust the offender of his clergy, unless there is also such an actual breaking of the house as is necessary to constitute the crime of burglary; and therefore if he enters, the doors being open, and breaks open a chest, and steals goods to the value of five shillings, this shall not oust him of his clergy. Sect. 4. SECONDLY, But if a man enters a house in the daytime, the doors being open, and no person being in the house, and then breaks open, or unlocks, or unlatches an inner door, and steals goods to the value of five shillings, he thereby loses the benefit of clergy, although he only removes the goods from the place where he takes them, and lays them on the floor; for this is a sufficient asportation to constitute a larceny at common law, and the statute doth not alter the nature of the offence. + Sect. 5. THIRDLY, That to oust the offender of clergy, the indictment must pursue the statute, viz. “That in the day-time, "to wit, between the hour, &c. the mansion-house of I. S. broke "and entered, no person in the same house then being, and there, “&c. in the same house found, then and there feloniously stole, took, and carried away, &c." for breaking the house in the day without taking the goods, is no felony. + Sect. 6. FOURTHLY, That if it appear on the evidence that it was in the night, or that any person was in the house at the time, or that he stole the goods, but did not break the house, the offender shall not be ousted of his clergy. Sect. 7. FIFTHLY, But it hath been adjudged, that if on an indictment on this statute, it appear that the prisoner was let into the house by a servant, and that he afterwards broke open an inner door, it cannot be objected, that the servant was in the house at the time, for that a house with so treacherous a servant in it was equally defenceless as if no person whatever had actually been therein. + Sect. 8. SIXTHLY, It is also decided, that a chamber in an inn of court (a) is a mansion-house within this statute. But a Cro. Car. 473. lodging in Whitehall (b) or Somerset-house, (c) or the Invalid Office at Chelsea, (d) is not a dwelling-house within this statute; and therefore a robbery in such lodging is not excluded from clergy by this statute, if any person were at the time in any other part of the palace. 267. Kely. 27. 52. Rex v. Har- Bailey, Jan. Sect. 9. SEVENTHLY, So it hath been ruled, that if the prisoner enter at the outer door, being open, and break open the door of a room above stairs, and steal goods, yet if there is any person in the room below, it is not a case within the statute. + Sect. 10. EIGHTHLY, It seems, that as the 39 Eliz. c. 15. only takes clergy from the principal where "an out-house in "which such robbery is committed" belongs to, or is used with the |