is made felony, and punishable by imprisonment and whipping, or transportation. 25 G. 2. c. 10.

Secondly, bonds, bills, &c., being mere choses in action, are not the subject of larceny at common law, for they are of no intrinsic value. 8 Co. 33. 1 Hawk. c. 33.s.35. But now, by stat. 2 G. 2. c. 25. s. 3, to steal any exchequer orders or tallies, or any exchequer bills, South Sea bonds, bank notes, East India bonds, dividend warrants of the bank, South Sea company, East India company, or any other company, bills of exchange, navy bills or debentures, goldsmith's notes, or other bonds or warrants, bills or promissory notes for the payment of money, is felony, and punishable in the same manner as if the offender had stolen goods to the value of the sum secured by such written instruments, or remaining due thereon. And, by stat. 52 G. 3. c. 143. s. 1, if any officer or servant of the post office shall secrete, embezzle, or destroy any letter or packet containing the whole or part of any bank note, bill of exchange, &c., or other valuable paper specified in the act, or shall take the same out of any letter or packet; it is made felony, death. Or if he destroy any letter or packet with which he has received money for the postage, or shall advance the rate of postage on any letter or packet sent by the post, and shall secrete the money received for such advanced postage, it is a felony within clergy. 5 G. 3. c. 25. s. 19. 7 G. 3. c. 50. s. 3.

Thirdly, larceny at common law cannot be committed of such animals, in which there is no property either absolute or qualified; as of beasts that are feræ naturæ, and unreclaimed, such as deer, hares and conies, in a forest, chase or warren; fish in an open river or pond; or wild fowls at their natural liberty. 1 Hale, 511. Fost, 366. But if they are reclaimed or confined, and may serve for food, it is otherwise; for of deer so inclosed in a park that they may be taken at pleasure, fish in a trunk or net, and pheasants or partridges in a mew, larceny may be committed. 1 Hale, 511. 1 Hawk. c. 33. s. 39. Swans, it is said, if lawfully marked, are the subject of larceny at common law, although at large in a public river; Dalt. Inst. c. 156; or whether marked or not, if they be in a private river or pond. Id. So, all valuable domestic animals, as horses, and all animals domitæ naturæ, which serve for food, as swine, sheep, poultry and the like, and the flesh of such as are feræ naturæ, may be the subject of larceny. 1 Hale, 511. But as to all other animals which do not serve for food, such as dogs, and other creatures kept for whim and pleasure, stealing them does not amount to larceny at common law. 1 Hale, 512. Stealing dogs, however, now renders the offender liable, upon a summary proceeding, to fine or imprisonment and whipping, by stat. 10 G. 3. c. 18. To hunt, snare, shoot at, &c., or carry away any deer in an inclosed ground, is a felony, and subjects the offender to transportation for seven years; 42 G. 3. c. 107, s. 1; or if in

an uninclosed part of a forest, chase, &c., he shall be fined for a first offence, and transported for seven years for a second. Id. s. 2, 4. See also 9 G. 1. c. 22. s. 1. To take or kill conies in the night time, in any ground used for the breeding or keeping of the same, whether inclosed or not, subjects the offender to transportation for seven years, or to whipping, fine, or imprisonment, at the discretion of the court. 5 G. 3. c. 14. And if a man, armed and disguised, rob a warren or other place where conies or hares are usually kept, it is felony, death. 9 G. 1, c. 22. s. 1. So, if a man, armed and disguised, steal or take away any fish out of a river or pond, it is felony, death. 9 G.1. c. 22. s. 1. And by stat. 5 G. 3. c. 14. s. 1, entering an inclosed park or paddock, or a garden, orchard, or yard belonging to a dwelling house, and stealing or destroying any fish in a river or other water therein, subjects the offender to transportation for seven years; or if in any other inclosed ground, then to a fine or imprisonment, upon a summary conviction. 1d. s. 3. Stealing oysters or oyster brood from an oyster bed, laying, or fishery, being private property, is made felony, and punishable by transportation for seven years, or imprisonment, by stat. 48 G. 3. c. 144. s. 1. Stealing hawks, in disobedience to the rules prescribed by stat. 37 Ed. 3. c. 19, is also felony. 3 Inst. 98.

Of the value of, &c.] It is immaterial whether the goods be proved to be of the value laid in the indictment, or not. Ante, p. 22. 63. If the jury be of opinion that the articles proved to have been stolen, are of a value exceeding 12d., the defendant shall be convicted of grand larceny; if of the value of 12d. or under, of petit larceny. And it is necessary to observe, that if it appear to the jury that the several articles mentioned in the indictment were stolen at different times, and that no one of them exceeded the value of 12d., or that the goods stolen at any one time did not exceed that value, the defendant can be found guilty of the petit larceny only.

Of the goods and chattels of one J. N.] It must be proved upon the trial that the goods stolen are the absolute or special property of the person thus named in the indictment. If he be misnamed, if the name thus stated be not either his real name or the name by which he is usually known, or if it appear that the owner of the goods is another and different persou from him thus named as such in the indictment, the variance will be fatal, and the defendant must be acquitted. So, if he be described in the indictment as a certain person to the jurors unknown, and it appear in evidence that his name is known, the defendant will be acquitted. See 3 Camp. 264. 1 Holt, 595. ante, p. 11. 2 East, P. C. 651. 2 Leach, 862.

It has already been observed, that where goods are stolen out

of the possession of a bailee, it may be described in the indictment as the property of the bailor or bailee; ante, p. 10. 2 Hale, 181; as, for instance, goods intrusted to a person for safe keeping, or to a carrier to carry, cloth to a tailor to make into clothes, linen to a laundress to wash, goods pawned, and the like, may be laid to be the goods and chattels either of the person to whom they are so intrusted, &c., or of the owner, at the option of the prosecutor. Id. and see 1 Leach, 356. 2 Leach, 875. 2 East, P. C. 652. So, where cattle were alleged in the indictment to be the property of a person, who, it appeared in evidence, was merely the agister, and not the actual owner, the judges held it to be sufficient. R. v. Woodward, 2 East, P. C. 653. But if it appear that the person named as owner, is merely servant to the real owner, the defendant must be acquitted; 2 East, P. C. 652; for the servant has not a special property in the goods, the possession of the servant being the possession of the master. So, where the person named as owner, appears to be a married woman, the defendant must be acquitted; because in law the goods are the property of the husband. 1 Hale, 513. ante, p. 63. But where goods were stolen from a feme sole, and before indictment she married, it was holden that describing her as the owner of the goods, by her maiden name, was sufficient. R. v. Turner, 1 Leach, 536. Clothes or other necessaries furnished by a father to his child, may it seems be laid to be the property either of the father or of the child, particularly if the child be of tender age; 2 East, 654; but it is safer perhaps to allege it to be the property of the child. See 1 Leach, 463, 464 n.

We have seen (ante, p. 10.) that where the goods stolen are the property of partners, they may be described as the goods and chattels of any one or more of the partners; 1 Geo. 4. c. 102; and the same where minerals, timber, iron, or other materials are stolen from mines, the property of any mining company. 56 G. 3. c. 73. In all other cases, where joint property is stolen, if it appear in evidence that all the joint proprietors are not named in the indictment (that is, it should seem, all that were joint proprietors at the time the felony was committed), the defendant must be acquitted. But when the goods of a corporation are stolen, they must be laid to be the property of the corporation, in their corporate name, and not in the names of the individuals who compose it; 2 East, P. C. 1059, 1 Leach, 253; and there is a difference, upon this subject, between an ancient corporation and a corporation newly erected an ancient corporation may by use have a special name differing in substance from that by which they were originally incorporated, and they may plead and be impleaded by that name; but a corporation created within memory, must plead and be impleaded by the name by which they were incorporated. Hob. 211. Noy. 54. 2 Brownl. 292. Latch. 229. 11 Co.

:

94. Dy. 279. 3 Mod. 6. Cro. El. 351. Bac. Abr. Corp. C. 3, and see 10 Co. 87. 1 Leach, 513.

The clothes, furniture, tools, and other things whatsoever, purchased or provided for the use of the poor of a parish, &c., if stolen, must be described as the property of the overseers for the time being. 55 G. 3. c. 137.8. 1. So, timber, stones, and other materials, and tools, &c., purchased by order of justices, or of the surveyor of county bridges, if stolen, must be described as the property of such surveyor for the time being. 43

G. 3. c. 59. s. 3.

Feloniously.] The taking and carrying away, must be felonious; that is, done animo furandi; or, as the civil law expresses it, lucri causa. 4 Bl. Com. 232. This indeed is not very definite; but larceny, as far as respects the intent with which it is committed, (and the intent here is a material ingredient in the offence), may perhaps correctly be defined thus: Where a man knowingly takes and carries away the goods of another, without any claim or pretence of right, with intent wholly to deprive the owner of them, and to appropriate or convert them to his own use. If the sheep of A. stray into the flock of B., and B. not knowing it, drive them home along with his own flock, and shear them, this is no felony; but it would be otherwise if he did any act for the purpose of concealing them, for that would indicate his knowledge of their being the sheep of another. 1 Hale, 506. If under colour of arrear of rent, although none be actually due, I distrain or seize my tenant's cattle, this may be a trespass, but is no felony. 1 Hale, 509. If I take an estray, upon a claim of right to it as lord of the manor, it is no felony, however groundless my claim may be. Id. If a servant take his master's horse without his knowledge, and bring him home again; if a man take his neighbour's plough, that is left in a field, and use it upon his own land, and then return it: these may be trespasses, but are not felonies, 1 Hale, 509, because the returning the thing taken, sufficiently evinces that the party, when he took it, had no intention to deprive the owner of it, or to convert it to his own use. turning the goods, however, can be considered merely as evidence of the defendant's intentions when he took them; for if it appear that he took them originally with the intent of depriving the owner of them, and of appropriating them to his own use, his afterwards returning them will not purge the offence. See 1 Hawk. c. 34. s. 2. 1 Hale, 533. In R. v. Phillips & al., 2 East, P. C. 662, 663, it was proved that the defendants took two horses out of the prosecutor's stable at night, without his leave, and having rode them about 30 miles, left them at an inn, desiring care to be taken of them, and saying that they should return in three hours; the defendants were taken, on the same day, at the distance of 14 miles from the

Re

inn, walking in a direction from it: the jury found the defendants guilty, but at the same time found specially that the defendants meant merely to ride the horses the thirty miles and to leave them there, without an intention to return for them or otherwise dispose of them; and ten of the judges held that this was no felony, as there was no intention in the prisoners to change the property or make it their own.

In all cases of larceny, the questions whether the defendant took the goods knowingly or by mistake, whether he took them bona fide under a claim of right, or otherwise, and whether he took them with an intent to return them to the owner, or to deprive the owner of them altogether and to appropriate or convert them to his own use,are questions entirely for the consideration of the jury, to be determined by them upon a view of the particular facts of the case.

Take.] There must be a taking of the goods, either actual or constructive, to constitute larceny. Therefore, if there be joint-tenants or tenants in common of a personal chattel,and one of them carry away and dispose of it to his own use, this is no larceny; 1 Hale, 513; there is in fact no taking, for he is already in possession; it is merely the subject of an action of account, or bill in equity. So, if a wife carry away and convert to her own use, the goods of her husband, it is no larceny; for husband and wife are one person in law, and consequently there can be no taking, so as to constitute a larceny. 1 Hale, 514. So, if a man lose goods, and another find them, and, not knowing the owner, convert them to his own use, this is no larceny, 3 Inst. 108. 1 Hawk. c. 33. s. 2, even although he deny the finding of them, or secrete them. 1 Hale, 506. But it is otherwise if he know the owner and therefore, where a bureau was given to a carpenter to repair, and he found money secreted in it, which he kept and converted to his own use, it was holden to be a larceny. Cartwright v. Green, 8 Ves. 405. 2 Leach, 952. So, if a hackney coachman convert to his own use, a parcel left by a passenger in his coach by mistake, it is a felony, if he know the owner, or if he took him up or set him down at any particular place where he might have enquired for him. R. v. Wynne, 2 East, 664. 1 Leach, 413. R. v. Lamb, 2 East, 664. R. v. Sear, 1 Leach, 415 n.

We have just now said, that the taking may be actual or constructive actual, where the goods have been actually taken out of the owner's possession, against his will or without his consent, and which requires no further comment or illustration; constructive, where the owner delivers the goods, but either does not thereby divest himself of the legal possession, or the possession of the goods has been obtained from him by fraud, and in pursuance of a previous intent to steal