ting down, by the servant, of a load of hay, which the mas[192] ter had sent him for, at the master's *stable door, was held a sufficient delivery to the master to make the servant guilty of larceny in then appropriating a part of it to his own use. Reg. v. Hayward, C. & K. 508. There is a distinction between servants and bailees, which it may be necessary to mention in this place; if, for instance, a weaver or silk-throwster deliver yarn or silk to be wrought by his journeymen in his house, and they carry it away, and convert it to their own use, this is larceny: but if to be wrought out of the house, it is not for the journeymen in that case are considered bailees, not servants. See 2 East, P. C. 682, 683.

If the owner of goods deliver them to another, but be present all the time they are in the other's possession, and there be no intention on the part of the owner to relinquish his dominion over them by such delivery, the owner still retains the possession in law, notwithstanding this delivery; and if the person to whom he has so delivered them make away with them and convert them to his own use, he will be guilty of larceny. 2 East, P. C. 683, 684; 1 Hawk. c. 33, s. 2. As, for instance, if the owner give the goods to a man to carry, and accompany him at the same time-if the man run away with the goods, he is clearly guilty of larceny.

So, if a man have a bare use of the goods of another, this does not divest the owner of the possession in law; and if the person, who thus has the use of them, fraudulently convert them, it is larceny. As, for instance, if a guest rob his inn or tavern of a piece of plate, it is larceny; for he hath not the possession delivered to him, but merely the use. 1 Hale, 506; 1 Hawk. c. 33, s. 6.

It may be necessary to add, that although the taking must, in strictness, be invito domino, yet, where a servant, being solicited to become an accomplice in robbing his master's house, informed his master of it; and the master thereupon told him to carry on the affair, consented to his opening the door leading to the premises, and to his being with the robbers during the robbery, and also marked his property, and laid it in a place where the robbers were expected to come; it was holden that this conduct of the master was no defence to an indictment against the robbers. R. v. Eggington, 2 B. & P. 508; 2 Leach, 913: see Reg. v. William, 1 C. & K. 195.

Where a larceny is committed in one county, and the thief, at any distance of time, R. v. Parkin, 1 Mood. C. C. 45, carries the goods into another county, in contemplation of law he is guilty of, not only a carrying away, but also a taking, in every county through or into which the goods have been carried by him. 1 Hale, 507; 1 Hawk. c. 33, s. 52; 3 Inst. 113. So, if a larceny be committed in one part of the United Kingdom, and the goods be carried into another part of the United Kingdom, the offender may be indicted in that part of the United

Kingdom into which the goods are carried. So, if a larceny be committed within 500 yards of the boundary of two counties, the defendant may be indicted in either county. And if committed upon any person, or with respect to any property, in or upon any coach, &c., or vessel, during the progress of a journey or voyage, the defendant may be indicted in any county in which, or by the boundary of which, the coach, &c., or vessel may pass during the progress of the journey or voyage. pp. 24, 25).

(Ante,

Carry away.]—There must not only be a taking, but also a carrying away, in order to constitute larceny. A bare removal, [193] however, from the place in which the thief found the goods, though he does not make off with them, is a sufficient asportation or carrying away. 4 Bl. Com. 231. As, for instance, if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest, stealing goods out of an inn, have removed them from his chamber down stairs; 3 Inst. 108, 109; or, if a servant animo furandi, take his master's hay from his stable, and put it into his master's waggon; Reg. v. Gruncell, 9 C. & P. 365: or if a thief, intending to steal plate, take it out of a chest in which it was, and lay it down upon the floor, but be surprised before he can make his escape with it; R. v. Simpson, Kel. 31; 1 Hawk. c. 33, s. 25; or if, intending to steal a cask of wine, he remove it from the head to the tail of the waggon in which it is placed, and be detected before he can effect his purpose of carrying it off. R. v. Walsh, 1 Mood. C. C. 14. And where the defendant drew a book from the inside pocket of the prosecutor's coat, about an inch above the top of the pocket; but, whilst the book was still about the person of the prosecutor, the prosecutor suddenly put up his hand, upon which the defendant let the book drop, and it fell into the prosecutor's pocket: this was considered a sufficient asportation to constitute larceny. R. v. Thompson, 1 Mood. C. C. 78. But where the defendant merely set a package on end, in the place where it lay, for the purpose of cutting open the side of it to get out the contents, and was detected before he had accomplished his purpose; the judges held that this was not sufficient. R. v. Cherry, 2 East, P. C. 556. So, where the thief was not able to carry off the goods on account of their being attached by a string to the counter; Anon., 2 East, P. C. 556; or to carry off a purse on account of some keys attached to the strings of it getting entangled in the owner's pocket; R. v, Wilkinson, 1 Hale, 508; the court in these cases held, that there was not a sufficient carrying away to constitute larceny: to render the asportation in such cases complete, there must be a severance. 2 Russ. 6.

LARCENY BY CLERKS OR SERVANTS.

Statute.

7 & 8 Geo. 4, c. 29, s. 46.]—For the punishment of depredations committed by clerks and servants in cases not punishable capitally, it is enacted, that if any clerk or servant shall steal any chattel, money, or valuable security, belonging to or in the possession or power of his master, every such offender, being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for a term not exceeding three years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment.

Commencement as ante, p. 168.]—In the county aforesaid, was clerk ("clerk or servant") to J. N., and that the said J. S., afterwards, and whilst he was such clerk to the said J. N., as aforesaid, on the day and year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, ten pieces of the current gold coin of the realm, called sovereigns, of the value of ten pounds; ten yards of linen cloth, of the value of ten shillings; and one bill of exchange, for the payment of ten pounds, and of the value of ten pounds, (" any chattel, money, or valuable security," see ante, p. 175, and post, 214,) of and belonging to the said J. N., his master, then and there being found, [or, in the possession and power (possession or power") of the said J. N., his master, then and there being], then and there feloniously did steal, take, and carry away, against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity.

You may add a count for larceny at common law, although this is unnecessary; and if it appear that the money, &c., was received by the clerk, &c., by virtue of his employment, on account of his master, and was not received into the possession of the master otherwise than by the actual possession of the clerk, so as to be doubtful whether the offence strictly amounts to larceny, add a count for embezzlement, post.

Felony, transportation for not more than fourteen nor less than seven years, or imprisonment (with or without hard labour, and with or without solitary confinement, 7 & 8 G. 4, c. 29, s. 4, ante, p. 169, such confinement not exceeding one month at any one time, nor three months in any

one year, 7 W. 4 & 1 Vict. c. 90, s. 5, ante, p. 169), for not more than three years; and, if a male, to be once, twice, or thrice publicly or privately whipped, in addition to the imprisonment, if the court shall think fit. 7&8 G. 4, c. 29, s. 46.

Evidence.

Prove that the defendant, at the time he committed the offence, was "clerk or servant" to J. N., as alleged in the indictment; see post, tit. Embezzlement. The driver of a glass coach hired for the day is not the servant of the hirer, so as to come within the statute. R. v. Haydon, 7 C. & P. 445. See Quarman v. Burnett, 6 M. & W. 499. Then prove the larceny, as directed ante, p. 170-192; see particularly, p. 189. Where, upon an indictment for larceny, it appeared that the defendant, being sent by his master to get change for a 51. note, got silver for it and absconded, it was holden that it was not larceny, because the silver had never been in the possession of the master, except by the hands of the defendant. R. v. Sullens, 1 Mood. C. C. 129. But if the property be in the possession of the master, even by the hands of another clerk or servant, it is larceny. R. v. Murray, 1 Mood. C. C. 276. It is not required by the statute that the goods, &c., stolen should be the property of the master; the words of the statute are " belonging to or in the possession or power of the master."

STEALING OR KILLING HORSES, COWS, SHEEP, ETC.

[ *195 ]

Statutes.

7 & 8 G. 4, c. 29, s. 25]-Enacts, that, if any person shall steal any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, or shall wilfully kill any such cattle, with intent to steal the carcase or skin, or any part of the cattle so killed, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon.

7 W. 4 & 1 Vict. c. 90, s. 1–Punishment for Horse-stealing, &c.] -Recites the stat. 2 & 3 W. 4, c. 62, s. 1, which abolished the punishment of death in certain cases, (amongst others, the stealing "any horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb," and also the wilful killing of any such cattle, with intent to steal the carcase or skin, or any part of the cattle so killed,)

and also the stat. 3 & 4 W. 4, c. 44, s. 3, which empowered the court in these and other cases to award imprisonment before transportation, and) Enacts, that so much of the recited acts as relates to the punishment of persons convicted of offences for which they are liable under the stat. 2 & 3 W. 4, c. 62, to be transported for life, shall, from and after the commencement of this act, (1st October, 1837), be and the same are hereby repealed; and that, from and after the commencement of this act, every person convicted of any of such offences shall be liable to be transported beyond the seas for any term not exceeding fifteen years nor less than ten years, or to be imprisoned for any term not exceeding three years.

Sect. 3-Place and Mode of Imprisonment]-Enacts, that, in awarding the punishment of imprisonment for any offence punishable under this act, it shall be lawful for the court to direct such imprisonment to be with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one inonth at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. (See ante, p. 169).

Indictment for stealing Horses, Cows, Sheep, &c.

Commencement as ante, p. 169]-one mare, ("horse, mare, gelding, coll, or filly, bull, cow, ox, heifer, or calf, ram, ewe, sheep, or lamb”), of the price of ten pounds, of the goods and chattels of one J. N., then and there feloniously did steal, take, and lead away; against the form of the statute in such case made and provided, and against the peace of our lady the Queen, her crown and dignity. If the indictment be for stealing a bull, &c., or sheep, &c., say "drive away" instead of "lead away." The indictment must give the animal one of the descriptions mentioned in the statute; otherwise the defendant can be punished as for simple larceny merely. R. v. Beaney, R. & R. 416.

Felony, 7 & 8 G. 4, c. 29, s. 25, transportation for not more [ *196 ] than fifteen nor less than ten years, or imprisonment not exceeding three years, 7 W. 4 & 1 Vict. c. 90, s. 1, with or without hard labour, and with or without solitary confinement, such confinement not exceeding one month at any one time, nor three months in any one year. Id. s. 3.

Evidence.

Prove a larceny of the mare, &c., as directed ante, p. 170. See R.