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of going to his banker's to get cash, went away with it, the prisoner was held guilty of the simple larceny only: so also, that where a person, in possession of a large sum of money, was deluded by a ring-dropper to go into a public-house to share the value of the ring, and there induced to lay his money on the table, The case of which the ring-dropper immediately took up and went away, it Edward Owen, was decided, upon a case reserved for the opinion of the twelve O. B. July Sess. judges, that the ring-dropper having obtained the money from 1792, on a case reserved by the person of the prosecutor, it was only a single felony, and not BULLER, a stealing in the dwelling-house within the statute 12 Ann. c. 7. Justice.

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Sect. 7. And it has been ruled, that bank notes, and of course Dunmow's all those other securities for money, which were denominated Case, Essex Lent Assizes, choses in action at common law, are not to be considered within 1793, coram the meaning of this statute; for, although the statute 2 Geo. 2. HOTHAM, "shall be deemed Baron. c. 25. enacts, that the stealing of such things "and construed to be felony of the same nature, and the same degree, and with or without the benefit of clergy, in the same manner as it would have been if the offender had stolen or "taken by robbery, any other goods of like value with the money "due on such securities or secured thereby;" yet as the legislature could not, in the twelfth year of the reign of Queen Anne, have in contemplation a species of property which it was not a felony to steal until the second year of George the second, it is impossible to comprehend them under the word "money," and it has been decided (a), that they cannot be considered as or chattels, wares or merchandizes."

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goods

+ Sect. 8. It has also been ruled, that an indictment on this statute must state the name of the owner in whose house the larceny was committed, and that if the name be not truly stated, it is fatal to the capital part of the charge.

(a) Morris's Case, Cases

C. L. 368.

White's Case,
Cases C. L.

216.
Woodward's
Case, O. B.

Case, Cases

Cro. Law, 21.

Oct. Sess. 1785. M'Cabe's Case, O. B. May Sess. 1785. Sect. 9. It seems also, that if a larceny be committed in the See Hassell's General Post-Office to the amount of forty shillings, the indictment, in order to oust the offender of larceny under the 12 Ann. c. 7. may lay it to be the dwelling-house of the Postmaster-General. But quære.

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Larceny from a Shop or Warehouse privately to the amount of

Fifteen Pounds.

Sect. 1. By 10 and 11 Will. 3. c. 23. it is enacted, "That all and every person or persons that shall, at any time or times, by night, or in the day-time, in any shop, warehouse, coach-house, "or stable, privately and feloniously steal any goods, wares, or "merchandize, being of the value of five shillings, (increased to "fifteen pounds, by st. 1 Geo. 4. c. 117.) or more, (although "such shop, warehouse, coach-house, or stable, be not actually "broke open by such offender or offenders, and although the owners of such goods, or any other person or persons be, or "be not, in such shop, warehouse, coach-house, or stable, to be put in fear,) or shall assist, hire, or command any person or persons to commit such offence, shall be absolutely debarred " and excluded of and from the benefit of clergy," &c. (1)

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(1) Clergy restored by 4 Geo. 4. c. 53.

Jonathan
Wild's Case,
Old Bailey,
May Sess.
1725.

Case of Ann
Sheldon and

Mary Williams,
Old Bailey,
June Sess. 1785.

Mill's
Cases Cro.
Law, 43.

s case,

1 Peer Wms. 267.

2 Peer Wms. 112.

Cartwright's case, O. B. 1726. coram RAYMOND, Chief Justice Williams's

case, Croydon

In the construction of this statute, the following particulars seem most remarkable.

+ Sect. 2. It seems, that it is not necessary, to constitute the offence of privately stealing described by this act, that the shop, warehouse, coach-house, or stable, from which the goods are stolen, should be adjoining, or belonging to, and used with any dwelling-house; and therefore, if goods be stolen from a shop or warehouse, but not privately, the offender cannot be ousted of his clergy, unless the indictment allege that such shop or warehouse is adjoining to a dwelling-house, pursuant to the statute 3 and 4 Will. and Mary, c. 9.

Sect. 3. It has been held, that an accessary before the fact, that is, a person who is not in the shop, warehouse, coach-house, or stable, at the time the goods are stolen, but who waits at a distance to receive the goods, is not within this statute, and yet the words are, that whoever shall "assist, hire, or command "another to commit this offence, shall be deprived of clergy."

+ Sect. 4. It is certain, however, that if two or more persons be together in the shop, warehouse, coach-house, or stable, at the time the goods are privately solen, aiding, and assisting each other to commit the felony, they are all equally guilty.

Sect. 5. It is settled, that the stealing of money privately from a shop, warehouse, coach-house, or stable, is not within the statute, for the words are, "goods, wares, and merchandizes;" and it has been decided in a variety of cases, that these words do not include money, either in specie or in bank notes.

+ Sect. 6. It has also been decided, that if it appear on evidence, that the offender broke open the shop, warehouse, coachhouse, or stable, from which the goods are charged to have been privately stolen, he shall not be ousted of his clergy; for when any degree of force is used to obtain the goods, it excludes the idea of privately stealing.

Sum. Assize, 1785, coram EYRE, Chief Baron. Foster's Crown Law, 79.

Charlotte

Smith's case,

1784, coram

HEATH,

Sect. 7. It is also the common practice of the court, on the trial of an indictment for this offence, to allow the prisoner O. B. Jan. Sess. the benefit of his clergy, if it appear that he was seen by the prosecutor, his servants, or agents, to take the goods mentioned in the indictment; and the slightest perception of the fact seems sufficient; even a suspicion that the prisoner was about to take the goods, has been held enough, for if the taking is in any degree visible, it cannot be privately stealing.

Justice.
Rex. v. Hugh
Graham, Feb.
Sess. 1785,

coram GOULD,

Justice. The case of Maxey and Hide, Old Bailey, Feb. Sess. 1784, coram PERRYN, Baron, and BULLER, Justice.

By FOSTER, Justice.

Fost. C. L. 78.

John Howard's
case, Foster,
C. L. 77.

Sect. 8. It is said, that the goods, wares, and merchandizes, must be such as are usually exposed to sale in the shop or warehouse, and not any other valuable thing which may happen to be put there; and though coach-houses and stables are not places for sale, yet the goods should be such as are usually lodged in those places.

+ Sect. 9. Accordingly it hath been ruled, that a common warehouse

house by the water-side, where merchants usually lodge goods intended for exportation, until they shall have an opportunity of putting them on board a ship, is not within the meaning of this statute; for that by the word "warehouses" in the statute is meant not mere repositories for goods, but such places where merchants and other traders keep their goods for sale, in the nature of shops, and whither customers go to view them.

Sess. 1783.

+ Sect. 10. And it has been doubted, whether the warehouse Godfrey's of a Blackwell-hall-factor, who receives his goods by the bale from case, Old the manufacturing clothiers in the country, and deposits each Bailey, Dec. piece, tied up in brown paper, as taken out of the bale, upon Cases C. L. shelves, but never exposes them to sale in the warehouse windows, 235. or at the door, which is generally shut and fastened by a latch, and only sells wholesale by the piece thus tied up, upon commission, both for exportation and home consumption, is a warehouse within the meaning of the act.

Sect. 11. Also it has been ruled, that if a watchmaker receive Stone's Case, the watch of a customer to repair, and hang it in his show-glass Old Bailey, until it is fetched away by the owner, his shop is not, as to 1784. July Sess. watches so situated, a shop within the meaning of the statute, Cases Cro. but a mere repository, where the watch was kept for the and not exposed to sale by the watch-maker.

owner,

Law, 274.

9 Geo. 1.

+ Sect. 12. So also, where a shirt was left by a customer at the Anonymous, shop of a tradesman, in order that the master of the shop might Old Bailey, send it to a sempstress to be mended, but was privately stolen April Sess. before it was sent, it was held, that this was not a case within the 8 Mod. 165. statute, which was made to preserve such goods as are usually in the shop by way of trade, and not such as are casually left there.

Sect. 13. So also, where a coachman's box-coat was hung up Case of John in the stables, and was privately stolen while the coachman went Seas, Old into the house to receive his wages, it was held, that this was not Sess. 1785. Bailey, Feb. a case within the statute, for that a coachman's livery great-coat is not the usual furniture of stables, and the statute only extends to such articles as are proper to be kept therein, such as bridles, saddles, horse-cloths, &c.

+ Sect. 14. So also, it has been held, that the property must John Archer's be taken in a shop, warehouse, coach-house, or stable; for where case, Old Baia chariot stood under a gateway which was used as a shed, in the ley, May Sesyard belonging to a coach-house, and the glasses of the chariot, coram MR. SERthus standing, were privately stolen, it was held not within the JEANT ADAIR,

statute.

Larceny from Church or Chapel.

+ Sect. 1. By 1 Edw. 6. c. 12. s. 10. "No person or persons that "shall be attainted or convicted of felonious taking of any goods "out of any parish church, or other church or chapel, shall "be admitted to have and enjoy the privilege or benefit of his ❝ clergy or sanctuary, but shall be put from the same."

sion, 1784,

Recorder.

Sect. 2. It is said, that the crime of sacrilege was not deprived 2 Hale, 333. of the benefit of clergy by the common law; at least, it was 26 Assize, 27. allowed after the statute de Clero, 25 Edw. 3. c. 4. unless the S. P. C. 123. ordinary refused the offender.

+ Sect.

2 Hale, 366.

1 Hale, 518.

Grime's case,
Maidstone
Lent Assizes,
1752.
Foster, 79.

Leigh's case,
Cases Cro.
Law, 2d edit.
50.

The case of
W. Morris,
Cases in Cro.
Law, 308.

Moses Pike's

Sect. 3. It seems to be also agreed, that the statute 4 and 5 Philip and Mary, c. 4. which takes away clergy from robbing of any dwelling-house, doth not extend to robbing of churches or chapels.

+ Sect. 4. But it is certain that the above statute of 1 Edw. 6. c. 12. ousts sacrilege of clergy in all cases except that of challenging above twenty, which defect is supplied by the statute 3 and 4 Will. and Mary, c. 9.

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Larceny upon Navigable Rivers.

Sect. 1. By 24 Geo. 2. c. 45. "All and every person or persons that shall at any time steal any goods, wares, or merchan"dize, of the value of forty shillings, in any ship, barge, lighter, "boat, or other vessel or craft, upon any navigable river, or in any port of entry or discharge, or in any creek belonging to "any navigable river, port of entry or discharge, within the king"dom of Great Britain; or shall feloniously steal any goods, "wares or merchandize, of the value of forty shillings, upon any "wharf or key adjacent to any navigable river, port of entry, or "discharge; or shall be present, aiding, and assisting in the committing any of the offences aforesaid, being thereof con"victed or attainted, or being indicted thereof shall of malice "stand mute, or will not directly answer to the indictment; or "shall peremptorily challenge above the number of twenty persons returned to be of the jury, shall be excluded from the be"nefit of clergy." (1)

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And upon this statute the following determinations have been made.

Sect. 2. It has been ruled on the trial of an indictment on this statute, that Portugal money not made current by proclamation, but current by tacit consent, is not "goods, wares, or merchan"dize," within the meaning of this law.

Sect. 3. So also where the indictment was for stealing sundry articles of wearing apparel, value twenty-one shillings, and two dollars, value nine shillings, and two guineas, from on board a ship lying in the river Thames, it was held, that the dollars and the guineas, being money, were not within the act, and that, as the value of the wearing apparel did not amount to forty shillings, the prisoner was not ousted by this statute of the benefit of clergy.

+ Sect. 4. It seems also, that the stealing of bank notes from on board a vessel in a navigable river would not be within this statute, because bank notes are not included within the meaning of goods and chattels, although by the statute 2 Geo. 2. c. 25. s. 3. the stealing of bank notes is made felony "of the same nature, and "in the same degree, and with or without the benefit of clergy, "in the same manner as it would have been if the offender had "stolen, or taken away by robbery, any other goods of like value "with the money due on such notes, &c."

Sect. 5. It has also been held, that evidence of a loaded barge case, Old Bailey, in navigating down the Thames being likely to sink, and that the

May Session,

1784.

bargemen,

(1) Clergy restored by 4 Geo. 4. c. 53.

bargemen, in order to avoid the danger, unloaded part of the cargo into a long boat, and carried both the barge and the boat into Limehouse Dock, where the boat with her lading was left aground by the efflux of the tide, and in such situation stole in the night time from her moorings, will not maintain an indictment, charging the offence to have been committed "on the "navigable river Thames;" but perhaps it would have been sufficient if the indictment had, in the language of another part of the statute, charged the stealing from a boat "in a certain creek "belonging to the navigable river Thames."

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Larceny from Wrecks.

Sect. 1. By 12 Ann. st. 2. c. 18. s. 5. "If any person or persons shall steal any pump belonging to any ship or vessel "shipwrecked or in distress, or shall be aiding or abetting in the stealing such pump, such person or persons shall be and are "hereby made guilty of felony without any benefit of his, her, or "their clergy."

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+ Sect. 2. By 26 Geo. 2. c. 19. s. 1. "If any person or per"sons shall plunder, steal, take away or destroy any goods or " merchandizes or other effects from or belonging to any ship or "vessel of his majesty's subjects, or others, which shall be in dis"tress, or which shall be wrecked, lost, stranded or cast on shore, "in any part of his majesty's dominions (whether any living crea"ture be on board such vessel or not), or any of the furniture, "tackle, apparel, provisions, or part of such ship or vessel; then "such person or persons so offending shall be deemed guilty of felony, and shall suffer death as in case of felony without "benefit of clergy."

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Sect. 3. But by 26 Geo. 2. c. 19. s. 1. it is provided, "That "when goods or effects of small value shall be stranded, lost, or "cast on shore, and shall be stolen without circumstances of "cruelty, outrage, or violence, then and in such cases it shall be "lawful for any person or persons to prosecute for such offence

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by way of indictment for petit larceny, and the offender, being "thereof lawfully convicted, shall suffer such punishment as the "law in cases of petit larceny does enjoin or require."

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Larceny of Woollens from Tenter Grounds.

+ Sect. 1. By 22 Car. 2. c. 5. s. 3. "No person or persons "who shall be indicted for felonious cutting and taking, stealing, or carrying away of any cloth or other woollen manufactures "from the rack or tenter in the night-time, and be thereupon "found guilty, shall be admitted to have the benefit of his or their clergy." (1)

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Sect. 2. But by 22 Car. 2. c. 5. s. 4. it is provided, “That "it shall and may be lawful for the judges or justices of the court "before whom such offender shall be arraigned and condemned, at their discretion, to grant a reprieve for the staying of execu"tion of such offender, and to cause such offender to be trans"ported for seven years."

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+ Sect.

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