The other was a case occurring within the same week, and differing from the last only' in that particular feature of discrimination under immediate consideration. The prisoner, a female, took a room in a street leading out of Smithfield, and dealt in a very small way in tea, sugar, and candles. She paid her way, as the phrase is, for several weeks. The offence in question arose in the following way:-She went to a shop in Clerkenwell and inquired the prices of candles and other articles; on being satisfied, she observed, that she did not want any just then, but she should do hereafter, for she dealt in those articles, and had hitherto bought of M. B. a great chandler in Smithfield, but her customers did not like his candles. She supposed, however, if M. B. gave her a character for punctuality, they, the traders in Clerkenwell, would serve her and give her a month's credit. They assented to the conditions, knowing M. B. particularly well. A few days after, she returned with a written passage book, of debtor and creditor account, purporting to be an account of goods delivered, and of monies paid by her to the house of M. B. and to have been settled from time to time by persons in M. B.'s employ. On the faith of this book so exhibited, she got credit for goods to the amount of 51. which she punctually paid; then of 10l. which she also punctually discharged at the time agreed upon: Then she got credit for 201. but was heard of no more, till several months after, when it was discovered that she had departed from her residence privately, and had defrauded other tradesmen in a similar manner, at several different residences in succession, in different parts of the town. It was also ascertained, that no such person had ever kept an account at the house of M. B. and that she had sold the particular candles in question at an inferior price as soon as she received them. She was committed for the fraud, and indicted for a misde

meanour.

At her trial it was objected that this was a felony, or nothing; that though it was true she did not pay the demand at the time she engaged to do, non constat that she did not, and does not even yet, intend to pay it; and that

Larcenies, and

some other heipunished by

nous offences,

statute.

as to her change of residence, that might be matter of ne cessity, indicative of no fraudulent intention; that if fraudylent intention must be presumed, it took place at the time of her giving the order for the goods; that she did it animo furandi; and that the mode of proceeding to punish it had been mistaken, for that the offence, if any, was a felony, not a misdemeanour. The objection, however, was over-ruled, and the prisoner convicted.*

Having noticed generally the line of distinction between those larcenies at common law which are ordinarily holden cognizable before a court of session of the peace, and those which are usually in practice reserved for the higher tribunals, accompanied by observations on such qualities as are common to both descriptions; it is but a necessary comple tion of the professed purpose of the work, to take also a cursory view of some felonies, as well as some other of the more heinous species of offences, that are directly, or indirectly, made referable by statute to the inferior authority particularly. As many of the offences by statute, which come under the description of larceny, are not only cognizable in law like all felonies, but are also in practice usually taken cognizance of by courts of session of the peace, without any distinction respecting value, it is necessary to introduce the notice of these statutable larcenies by a preliminary observation or two, on the direct influence which these particular provisions have on them. The nature of the crimes, then, is not, cannot be, changed by the statutes in contemplation; for the nature of a theft cannot be divested of its characteristic, + but it must ever remain a theft,

* Perhaps, at least, a more plausible defence to this accusation would have been, that the false pretence used to gain the credit, viz. the passage-book, and to the exhibition of which the credit is actually stated to have been given, only could have been referable to the first delivery of goods to the amount of 51.; for, at the time of delivery of the last parcel of candles to the value of 201. which forms the subject of this prosecution, the prisoner's credit was established on a different ground, and independent of the first transaction, viz. on her own punctuality in discharging her accounts with the prosecutor.

+ See East. P. C. c. 16. s. 70.

though it be directed by a statute, that if committed under particular circumstances, or accompanied by particular adjuncts or concomitants, it shall not be punished after the old manner of felonies, but after the accustomed manner of an inferior species of crime, viz. misdemeanours. Thus, if the language of a statute be, that such, or such an act; as, ex. gr. a felonious taking, or a receiving, under such, or such circumstances; shall be punished as a misdemeanour, or by fine and imprisonment, or by transportation for a certain term, or if any other words be used, in describing the punishment, to the same effect (without any relation to value in the case of larceny; or in the case of other offences, to the quality of the offence, by superadding any reference to the punishment of crimes of a more aggravated description *); such words do not, nor are they intended to, alter the nature of the offence, but only to prescribe the limit of the punishment; and in that case are uniformly interpreted (except indeed any particular jurisdiction be given, or prohibited, by the statute itself) not only to recognize, but even, as it were, to recommend, the jurisdiction of the sessions of the peace, over the offence so pointed out.

Some of the statutes, which might reasonably be supposed to come within the above assigned limit of observation, however, having become obsolete, or rather, perhaps, superseded in practice by the more essential, or more appropriate modern provisions, † are, for obvious reasons, omitted here. Those which have an imperative claim to notice are the following:

iron, &c. from

The 4 Geo. 2. c. 32. is for the more effectual punishing Larceny by stealers of lead or iron bars fixed to houses, or any fences stealing lead, belonging thereto. And enacts that "every person who houses, &c. shall steal, rip, cut, or break with intent to steal, any lead, ‡

As in 54 Geo. 3. c. 101. against child-stealing, where it says, “ offenders shall be punished as persons guilty of grand larceny;" wherefore courts of session, which generally abstain from trying offences above petty larceny, do not usually entertain prosecutions for this offence. † See East. P. C. c. 16.

↑ A casement made of lead, iron, and glass, was determined not to be within this statute. Senior's case, 1 Leach, 227.

La

4 Geo. 2. c. 32.

29 Geo. 2. c. 30.

iron bar, iron gate, iron palisadoe, or iron rail, 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 house or other building, † shall be deemed and construed to be guilty of felony," and the court before whom tried shall have authority to transport for the said offences for seven years.§ And aiders and abettors in the stealing, and receivers of any of the said goods, shall be liable to the same punishment.

The foregoing act was followed by another of 29 Geo. 2, c. 30. for more effectually discouraging the offences mentioned in the former. The intentions of the legislature in passing this act were various. First, as its preamble declares, to punish receivers more severely, by a specific punishment of transportation for fourteen years (instead of the seven imposed by the former statute), although the principal felon should not have been convicted. Secondly, to subject such offenders to a more summary mode of discovery, and a conviction, in addition to that by indictment, viz. before two Justices of the peace. Thirdly, to enlarge the description of articles, for the receiving of which, there being reason to suppose them stolen, such receivers should be amenable to the punishments inflicted by it, which is effected by the mention of copper, brass, bell-metal, and solder, in addition to those of lead and iron, inserted in the former statute; and also to extend the description of the premises to which they should appertain, as well as the manner in which they should so appertain. This is effected by the words lying or being in or upon, houses, outhouses, mills, warehouses, work

A church is within the act. Hickman's case. Id. 137.

+ Rails to a tomb-stone not connected with the church by contiguity are not within the act. R. v. Davies, East. P. C. c. 16.

A person having a house for the purpose of stripping it of the lead is within the provisions of the act. Munday's case, Ibid.

§ Defendant under this act may be convicted, and have judgment for petty larceny. East. P. C. c. 16.

shops, areas, vaults, yards, gardens, orchards, ships, barges, lighters, boats, and other vessels.

intent to steal,

The next statute relating to the same general subject is Stealing, and 21 Geo. 3. c. 68. It begins by reciting the 4 Geo. 2. lately removing with noticed, and then proceeds as follows. "And whereas the other articles from houses, stealing of copper, brass, and bell-metal affixed to dwelling- &c. houses and the appurtenances thereto, is not expressly pro- 21Geo. 3. c. 68. hibited and made punishable by the said recited act," &c. every person who shall (thenceforth) "steal, rip, cut, break, or remove, with intent to steal, any copper, brass, bell-metal, utensil, or fixture,* being fixed to any dwelling-house, outhouse, coach-house, stable, or other building, used or occupied with such dwelling-house, or thereto 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, or any iron rail 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 construed to be guilty of felony; and the court by and before whom such person shall be tried and convicted, shall have power and authority to transport such felon for the term of seven years; or to order and direct that such felon be kept and detained in prison, and therein kept to hard labour, for any time not exceeding three years, nor less than one; and within that time, if such court shall think fit, such offender shall be once or oftener, but not

The paragraph in Italics is worthy of particular observation. The words brass, copper, bell-metal, utensil, or fixture, are here pointed as they stand in the statute-book. If they are all to be used substantively, as seems the grammatical construction, it does away with the old objection, respecting larceny not being to be committed of any thing affixed to the freehold; for in that way of interpreting the words, ANY utensil, and ANY fixture, of whatever kind or composition, is within the statute. It has generally, indeed, been taken for granted, that utensils made of copper, brass, or bell-metal, were alone designed to be protected; but that interpretation was only to be supported by using copper, brass, and bell-metal, adjectively, and applying them to the substantives utensil and fixture, in defiance of all grammatical construction of the sentence, as influenced by accurate punctuation.