Imágenes de páginas

86. For a forcible entry on tenant for years, under the stat. 21 J. 1. c. 15(f).

The form is the same as in pr. 84. introducing after the words in the peaceable possession of one E. F. the words

into the next gaol, there to abide, convict, by the record of the same justices or justice, until they have made fine and ransom to the king. And that all the people of the county, as well the sheriffs as others, shall be attendant upon the same justices, to go and assist the same justices to arrest such of fenders, upon pain of imprisonment, and to make fine to the king. And in the same manner it shall be done of them that make such forcible entries into benefices, or offices of holy church.

By stat. 8 Hen. 6. c. 9. when forcible entry is made into premises, which are afterwards held forcibly, justices of the peace are to inquire of the force, by a jury summoned by the sheriff; and cause the tenements to be seized and restored, &c.

By sec. 2. all former statutes concerning forcible entry are confirmed.

By sec. 6. of the same stat. the party grieved shall have an action of trespass against the offender for treble damages, and the defendant shall moreover make fine and ransom to the king.

(f) In order, however, that parties grieved, having a less estate than that of freehold, should be relieved by restitution,

It is by stat. 21 Jac. 1. c. 15, enacted, "that such judges, justices, or justice of the peace, as by reason of any act or acts of parliament now in force, are authorised and enabled upon inquiry, to give restitution of possession unto tenants, of any estate of freehold, of their lands or tenements, which shall be entered upon with force, or from them with-holden by force, shall, by reason of this present act, have the like and the sawe authority and ability, from henceforth, (upon indictment of such forcible entries, or forcible with-holdings before them duly found) to give like restitation of possession unto tenants for term of years, tenants by copy of court-roll, guardians by kuight-service, tenants by elegit, statute merchant and staple, of lauds or tenements by them so holden, which shall be entered upon by force, or holden from them by force."

By stat. 31 Eliz. c. 11. no restitution upon any indictment of forcible entry, or holding with force, shall be made to any person, if the person so indicted hath had the occupation, or been in quiet possession, for the space of three whole years together, next before the day of such indictment so found, and his estate therein not ended; which the

for a certain term (z) of years then to come, and then and yet unexpired; then proceed as in pr. 84. concluding as in pr. 85, against the form of the statute, &c.


87. Indictment for grand larciny, in stealing the property of different persons.

(Commencement as in pr. 1 (a).) one (b) silver watch, of the value (b) of forty shillings, of the goods and chattels of (b) E. F. two hats, of the value of twenty shillings, and two (c) waistcoats, of the value of six shillings*, of the

party indicted may allege for stay of restitution, and restitution to stay till that be tried, if the other will deny or traverse the same: and if the same allegation be tried against the same person so indicted, he is to pay such costs and damages to the other party as shall be assessed by the judges or justices before whom the same shall be tried; the same costs and damages to be recovered and levied as is usual for costs and damages contained in judgments upon other actions.

(*) In order to bring the case within the stat. it must be alleged, that the party was possessed of a term for years, that he was possessed is not of itself sufficient. 1 Haw. c. 64. s. 38. 1 Vent. 306. 1 Sid. 102. 1 Mod. 73.

(a) As to the venue, when goods stolen elsewhere are brought into the body of a county, see p. 10. 13 G. 3. c. 31. s. 4. and 44 G. 3. c. 92.

(b) As to the description of the property stolen, its value, and ownership, see chap. X. p. 180.

(c) Although, in general, the value of each different individual article stolen should be specified, p. 187. 2 Hale, 183. yet where several articles of property of the same nature and kind, are stolen at the same time, as several sheep or handkerchiefs, it is the common practice to allege their value cumulatively, as ten handkerchiefs, of the value of 20 shillings. And unless the defendant be convicted of stealing part only, no uncertainty can arise; but if the jury find that he stole one only, then it may be doubtful, whether the offence be grand or petit larciny, since they were not alleged to be of the value of two shillings each, but in such case the difficulty might be obviated by finding the value specially.

goods and chattels of (e) one G. H. then and there being found, feloniously did steal, take, and carry away (f), against the peace, &c.

SS. Indictment under the stat. 21 H. 8. c. 2. (g) against a se rant for feloniously embezzling his master's goods, delivered to him to keep for the master's use.

That A. B. late of, &c. labourer, on, &c. then being a servant of and to one C. D. and not an apprentice (h), or a person within the age of eighteen years (h), he the said C. did then and there, upon confidence and trust, deliver unto the said A. B. his said servant, one silver watch, of the value of five pounds, of the gools and chattels of him. the said C. D. safely to keep the same to the use of him

[blocks in formation]

(f) These words are essential, see p. 73. and, in an indictment of this nature, it is unnecessary further to specify the means of gaining possession of the property. See p. 87. Leach, 273. 305. 730.

An indictment for petit larciny differs from one for grand larciny in no other respect than in laying the value at one shilling or under.

(g) By this stat. servants having caskets, jewels, money, goods, or chattels, delivered to them by their masters or mistresses, safely to be kept for the use of their said masters or mistresses, and after such de

livery withdrawing themselves from their masters or mistresses, and going away with the said caskets, &c. or any part thereof, to the intent to steal the same and defraud his or their said masters or mistresses thereof, contrary to the trust and confidence to him or them put by his or their said masters or mistresses; or else being in the service of his said master or mistress, without assent or commandment of his master or mistress, if he embezzle the said caskets, &c. or any part thereof, or otherwise convert the same to his own use, with like purpose to steal it, (if the said caskets, &c. be of the value of forty shillings, or above,) then the same false, fraudulent, and untrue act or misdemeanor shall be adjudged felony; and he or they so offending shall be punished as other felons are punished.

(h) Unnecessary, the excep tions are not in the purview, 162.

the said C. D. and that he the said A. B. after the said delivery and whilst he was such servant (i) as aforesaid, to wit, on the day of, with force and arms, at the parish aforesaid, in the county aforesaid, did feloniously withdraw himself from the said C. D. his said master, and feloniously did go away with the same silver watch above mentioned, to the intent to steal the same, and defraud the said C. D. his said master, thereof, contrary to the trust and confidence in him the said A. B. put by the said C. D. his said master, against the form of the statute, &c. and against the peace, &c. (Add a count for a common larciny, as in pr. 87.)

89. Indictment against a clerk for embezzlement, under the stat. 39 G. 3. c. 85 (k).

Lancashire, &c. that J. J. late of Liverpool, in the

(i) He must be servant, both at the time of the delivery and running away. Dalt. c. 58. Dyer 5. 1 Haw. c. 33. s. 12. East. P. C. 562.

(k) By 39 Geo. 3. c. 85. it is enacted and declared, that if any servant or clerk, or any person employed for the purpose, in the capacity of a servant or clerk, to any person or persons whomsoever, or to any body corporate or politic, shall by virtue of such employment receive or take into his possession any money, goods, bond, bill, note, bankers draft, or other valuable security or effects, for or in the name, or on the account of his master or masters, or employer or employers, and shall fraudulently embezzle, secrete, or make away with the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from

his master or masters, employer or employers, for whose use, or in whose name or names, or on whose account, the saine was or were delivered to, or taken into the possession of such servant, clerk, or other person so employed, although such money, goods, bond, bill, note, banker's draft, or other valuable security, was or were no otherwise received into the possession of his or their servant, clerk, or other person so employed; and every such offender, his adviser, procuror, aider, or abettor, being thereof lawfully convicted or attainted, shall be liable to be transported to such parts beyond the seas, as his majesty, by and with the advice of his privy council, shall appoint, for any term not exceeding fourteen years, in the discretion of the court before whom such offender shall be convicted or adjudged,

county of Lancaster, labourer, on, &c. at, &c. was clerk to the trustees of the Liverpool docks, and the said J. J. being such clerk as aforesaid, did then and there, by virtue of his said employment as such clerk as aforesaid, receive and take into his possession, for and on account of the said trustees of the Liverpool docks, divers, to wit, nine bank notes (7), for the payment of divers sums of money, amounting in the whole to a certain sum of money, to wit, the sum of 97. of lawful money of Great Britain, and of the value of 97. of like lawful money; and the said J. J. having so received and taken into his possession the said bank notes for and on account of his said employers, the said trustees of the Liverpool docks, he the said J. J. afterwards, to wit, on the same day and year aforesaid, with force and arms, at, &c. fraudulently and feloniously did embezzle (m) and secrete the same (n):

(1) In Milnes's case, East. P. C. 602. the prisoner was charged with stealing one promissory note for the payment of one guinea, and also one other promissory note for the payment of five guineas, which said notes were the property of J. M. and were due and unsatisfied; and this was holden to be a sufficient description under the stat. 2 G. 2. and in the case of the King v. Johnson, where the above indictment was used; the case of the King v. Simpkin was cited, which had been tried before Mr. J. Chambre, who held that a general description was sufficient. See R. v. Campbell, Leach, 642. where the property was described as one promissory note called a bank note, of the value of 25 ponds, the said note, at the time of committing the felony aforesaid, being the property of the said C. M. A. and the said sum of 25 pounds payable and

secured by the said note, being then due and unsatisfied to the said C. M. A.; a similar description was used in Nicholson's case, Leach, 678.

(m) The act is declaratory of the common law, consequently, an indictment framed upon it must contain all that is essential to an indictment for larciny at common law. R. v. M'Gregor, 3 Bos. & Pull. 106. and, therefore, it appears to be necessary to superadd to the description of a larciny at common law, the descriptive words of the statute.

(n) This is the form in which indictments under this statute are usually drawn, and it is remarkable that the words descriptive of the larciny at common law, which are essential, (since the act is merely declaratory of the common law,) should be alleged after the words and so the jurors afore-' said, &c. as if the larciny were nothing more than a mere con

« AnteriorContinuar »