the judge (Mr. J. Bathurst) was clearly of that opinion; and that the counsel for the prosecutor should therefore apply their evidence only to the charge of harbouring and concealing the felon. They were all convicted, and the principal received judgment of death; the accessaries had their clergy, and were burned in the hand.

Note. It is observable that in the before-mentioned 4 G. c. 11. § 1. in the former part of that section in which it is enacted that certain offenders may be transported as therein mentioned, amongst other offenders are named "persons feloniously stealing or taking money or goods and chattels." In the clause relating to the case of Davidson, the word money is omitted.

Notwithstanding that regularly the accessary cannot be tried until the principal be convicted, yet by the stat. 1 Ann. st. 2. c. 9. 2. it is enacted, that it shall be lawful to prosecute and punish persons, who buy or receive any stolen goods, knowing the same to have been stolen, as for a misdemeanor, to be punished by fine and imprisonment, though the principal felon be not before convicted of the felony; which shall exempt the offender from being punished as accessary, if the principal shall be afterwards convicted.

And by stat. 5 Ann. c. 31. § 6. it is enacted, that if the principal felon cannot be taken so as to be prosecuted and convicted, yet nevertheless the person buying or receiving stolen goods, knowing the same to be stolen, may be prosecuted as for a misdemeanor, and punished by fine and imprisonment, or other such corporal punishment as the court shall think fit, which shall exempt him from being punished as accessary, if the principal shall afterwards be taken and convicted.

But the statute 4 Geo. 1. c. 11., which subjects receivers to transportation for 14 years, does not extend to prosecutions under the statutes of Anne for a misdemeanor only. And where the principal is amesnable to justice, the receiver ought still to be prosecuted as an accessary to the felony, and not for a misdemeanor only. Fost. 373.

Jonathan Wild was indicted for a misdemeanor, in receiving stolen goods, knowing them to have been stolen. Upon the prosecutor's evidence it appeared that the felons had been convicted and executed. Whereupon it was objected that this indictment would not lie, being only given in case where the felon cannot be taken, this being only a jurisdiction given under these particular circumstances. And Pratt C. J. being of that opinion, the defendant was acquitted.

W. Wilkes was convicted on the stat. 3 W. & M. c. 9. § 4., and 5 Ann. c. 31. § 6. as for a misdemeanor in receiving stolen goods, but it appearing that the prosecutor had had an opportunity of taking the principal, which he had neglected to do, though the latter could not be taken at the time of finding the indictment, judgment was respited until the opinion of the judges could be taken. In Trinity term, 1774, seven of the judges against four, were of opinion that there ought to be judgment on the conviction. The four other judges thought that where a prosecutor had it once in his power to take the principal, and neglected it, it took the case out of the statutes. But the seven held that the word "cannot" in the statute, must be applied to the time of the prosecution for the misdemeanor, if the principal be then without collusion out of custody; which was the case here.

But now by stat. 22 Geo. 3. c. 58. § 1. it is enacted, "that in Receivers proall cases whatsoever, where any goods or chattels, except lead, secuted for a iron, copper, brass, bell-metal, and solder," (the receiving of misdemeanor. which is provided for by stat. 29 Geo. 2. c. 30. after mentioned) "shall have been feloniously taken or stolen, whether the offence of the person or persons so taking or stealing the same shall amount to grand larceny, or some greater offence, or to petit larceny only; (except where the person or persons actually committing the felony shall have been already convicted of grand larceny or of some greater offence ;) every person who shall buy or receive any such goods and chattels, knowing the same to have been so taken or stolen, shall be held and deemed guilty of, and may be prosecuted for, a misdemeanor, and shall be punished by fine, imprisonment, or whipping, as the court of quarter sessions, who are hereby empowered to try such offender, or as any other court before which he, she, or they shall be tried, shall think fit to inflict; although the principal felon or felons be not before convicted of the said felony, and whether he, she, or they is or are amesnable to justice or not. And in cases where the felony actually committed shall amount to grand larceny, or to some greater offence, and where the person or persons actually commiting such felony shall not be before convicted, such offender or offenders shall be exempted from being punished as accessary or accessaries, if such principal felon or felons shall be afterwards convicted."

§ 2. Enacts "That it shall and may be lawful for any one justice of the peace, upon complaint made before him upon oath, that there is reason to suspect that stolen goods are knowingly concealed in any dwelling-house, out-house, garden, yard, croft, or other place or places, by warrant under his hand and seal to cause every such dwelling-house, out-house, garden, yard, croft, or other place or places, to be searched in the day-time; and the person or persons knowingly concealing the said stolen goods, or any part thereof, or in whose custody the same, or any part thereof, shall be found, he, she, or they, being privy thereto, shall be deemed and held guilty of a misdemeanor, and shall and may be brought before any justice of the peace for the county, city, town, corporation, riding, division, liberty, or place, and made amesnable to answer the same, by like warrant of any such justice, and being thereof convicted by due course of law shall be punishable in the manner aforesaid."

3. Enacts "That every constable, headborough or tithingman, in every county, city, town corporate, riding, division, liberty or other place where there shall be officers, and every beadle within his ward, parish or district, and every watchman, during such time only as he is on his duty, shall and may apprehend, or cause to be apprehended all and every person and persons who may reasonably be suspected of having, or carrying or any ways conveying at any time after sun-setting, and before sun-rising, any goods or chattels suspected to be stolen, and the same, together with such person or persons as soon as conveniently may be, to convey or carry before any justice of the peace for the county, city, town corporate, riding, division, liberty or place aforesaid to be dealt with according to law; and such person and persons so carrying or conveying such goods, or chattels, knowing the same to

22 Geo.3. c. 58. have been stolen, and being thereof convicted by due course of law, shall be deemed and held to be guilty of a misdemeanor, and, on conviction as aforesaid, shall be imprisoned for any time not exceeding six calendar months, nor less than three calendar months."

Sheep.

Money.

2 East's P. C. 748.

Bank notes,

On the construction of the statutes W. & M. & Anne, it has been holden that they include sheep; and by the same reasoning fowls and other animals. 2 East's P. C. 748.

But it is clearly settled that the receivers of money are not within the words "goods and chattels," in those acts, for if every receiver of money which happened to have been stolen were liable to be called to account for it, it might be attended with serious inconvenience to the public in their general dealings; it being always difficult, and sometimes impossible, to account for the possession of each individual coin which passes in circulation. (See ante, the note to R. v. Davidson, p. 14.)

In analogy to this, it was ruled by a majority of the judges not within the (seven) in 1787, that bank-notes were not within the statutes against such receivers. R. v. Sadi and Morris, O. B. July 1787. 2 East's P. C. 748. 2 Russ. 1308, 1309.

statutes.

R. v. A. Gaze

and W. Gaze, Gloucester Lent

Ass. 1819.

M. S. C. C. R.

Indictment

This point has recently been considered by the judges in a case reserved by Richardson J. at Gloucester Lent Assizes, 1819. Ann Gaze was convicted of stealing certain promissory notes for the payment of money, and William Gaze (her husband) of receiving the said notes, knowing them to have been stolen. The prisoners received sentence of imprisonment, but a doubt occuring to the learned judge, whether the receiver of stolen promissory notes could be considered as a receiver of "goods and chattels" within the 3 W. & M. c. 9. § 4, the case was submitted to the consideration of the judges in East. T. 1819, eleven of whom (Abbott C. J. absent) were unanimous that William Gaze was not rightly convicted, and they founded their opinion upon the reason assigned by Ashhurst J. in R. v. Sadi and Morris, which was, that though a statute which creates a new felony will attach to that felony all the common law incidents to felony, so that accessaries thereto will be included, it will go no further, and a receiver of the goods not being a common law accessary, is not included.

The indictment against a receiver of stolen goods need not against receiv- allege time and place to the fact of stealing the goods: it is sufficient if they be alleged to the fact of the receipt. 2 East's P. C. 780.

ers.

In the case of John Thomas the indictment was for receiving goods stolen by persons unknown, which was objected to be insufficient in not ascertaining the principal thief, and that it ought to appear to whom in particular the prisoner was accessary. This objection being referred to the judges, they were unanimously of opinion that the indictment was good; that the great view of the statutes was to reach the receivers where the principal thieves could not easily be discovered.

Where the principal, however, is known, it seems proper to state it according to the truth: and the common form of the indictment is to state the fact of stealing the goods by the principal, and the receipt of them by the receiver, he then and there well knowing the said goods and chattels to have been feloniously stolen, &c.

It is sufficient in an indictment for felony against a receiver of Hyman's case, stolen goods, to state that the principal was "tried and duly 2 Leach, 925. convicted," without going on to show what judgment was passed

upon him, or how he was delivered.

In an indictment for a misdemeanor against a receiver of stolen R. v. Baxter, goods, an averment that the principal has not been convicted, 5 T. R. 83. is unnecessary.

The legislature has also made particular provisions in a variety Receivers of of cases against the receivers of certain stolen goods. stolen lead, &c.

Stat. 29 Geo. 2. c. 30. (after reciting that "the pernicious 29 G. 2. c. 30. practice of stealing lead, iron, copper, brass, bell-metal, and solder, fixed to or lying or being in or upon houses, outhouses, mills, warehouses, workshops, and other buildings, areas, vaults, yards, gardens, orchards, or other places; and also the stealing of such materials from ships, barges, lighters, boats, and other vessels and craft, upon navigable rivers, in ports of entry or discharge, creeks and docks belonging thereto, and also from off wharfs, quays, and other places, is become a great and notorious evil, by reason of the difficulty in apprehending and convicting the thieves, and the still greater difficulty of discovering and convicting the buyers or receivers thereof; which buyers or receivers are the principal cause of the commission of such thefts: and in regard that the said offences are committed in such close Transportation and clandestine manner that there can be no witness to the same, for 14 years. but such who is or are partakers of the offence: and whereas if the buyers and receivers of lead, iron, copper, brass, bellmetal, or solder, knowing or having reasonable cause to suspect the same to be stolen or unlawfully come by, were made original offenders, and punishable independent of the apprehension and conviction of the thief; and if the apprehending, prosecuting, and convicting the offenders in both kinds were rendered more easy and speedy, it might more effectually tend to the discovery and suppression of the said offences:" For remedy whereof enacts, "That from and after the 1st of October 1756, every person who shall buy or receive any lead, iron, copper, brass, bell-metal, or solder, knowing the same to be unlawfully come by; or shall privately buy or receive any stolen lead, iron, copper, brass, bellmetal, or solder, by suffering any door, window, or shutter to be left open or unfastened between sun-setting and sun-rising for that purpose; or shall buy or receive the same, or any of them, at any time, in any clandestine manner, from any person or persons whatsoever; shall, being thereof convicted by due course of law, although the principal felon or felons has not or have not been convicted of stealing the same, be transported for 14 years to any of his majesty's colonies or plantations in America, according to the laws in force for the transportation of felons."

By 2. Any one justice of the peace, upon complaint made to him upon oath by any credible persons, that there is cause to suspect stolen lead, iron, copper, brass, bell-metal, or solder, is concealed in any dwelling-house, out-house, yard, garden, or other place, may, by warrant under his hand and seal, cause every such dwelling-house, &c. to be searched in the day-time; and if any of the same suspected to be stolen shall be found therein, he may cause the same, and the person in whose house or other place the same shall be found, to be brought before any two

On cause of suspicion, jussearch warrant.

tice to issue

29 G. 2. c. 30. or more justices for the same county, &c.: And if such person shall not give an account to the satisfaction of such justices how he came by the same; or shall not within some convenient time to be set by the said justices, produce the party of or from whom he bought or received the same, then he shall be adjudged guilty of a misdemeanor.

Suspected persons in the night-time may be apprehended,

&c.

In which cases, materials to be deposited with church-warden,

&c.

Owner proving his property to

have them.

Pawn-brokers, &c. may stop such materials

on suspicion.

By 3. And every constable, head-borough, or tithing-man, where they shall be officers, beadle within his district, and watchman whilst he is upon duty, shall apprehend or cause to be apprehended every person who may reasonably be suspected of having, carrying, or conveying, after sun-setting and before sun-rising, any of the said materials, suspected to be stolen or unlawfully come by; and the same, together with such person, as soon as conveniently may be, shall carry before any two justices for the county, &c. And if the person so apprehended conveying the same shall not produce the person from whom he bought or received the same, or some other credible witness to depose upon oath the sale or delivery thereof, or shall not give an account, to the satisfaction of any two such justices, how he came by the same, then he shall be adjudged guilty of a misdemeanor.

By 4. In case of conviction of either of the said misdemeanors, any two such justices may cause the same to be deposited with the churchwardens and overseers of the poor where the same were found, or in any other convenient place, for any time not exceeding 30 days, and in the meantime may order the said churchwardens and overseers, or one of them, in every parish within the bills of mortality, to insert an advertisement in some public paper, and in every other parish or place cause notice to be given by some public crier, and by fixing on the church or chapel door notice describing such materials, and where deposited: And if any person can prove his property thereto upon oath, to the satisfaction of any two such justices, they shall order restitution thereof to the owner, after paying reasonable charges of removing, depositing, and giving public notice of the same. And if at the end of 30 days no person shall prove his property thereto, the same shall be sold for the best price that can reasonably be had; and after deducting the charges as aforesaid, half of the money arising from such sale shall be given to the person apprehending, and half to the poor of the parish where the offence shall be committed (if it is known where), or else where the conviction shall be made.

By § 5. Every person to whom any of the same shall be brought and offered to be sold, pawned, or delivered, (there being reasonable cause to suspect that the same was stolen or unlawfully come by,) shall apprehend, secure and carry before a justice for the county, &c. where the same shall be so brought or offered, (having it in his power so to do) the person so bringing or offering the same, together with the said materials; and such person shall be dealt with, and the said materials shall be deposited and disposed of, as if he had been apprehended by the constable, beadle or watchman. And if it shall appear upon the oath of any person, notwithstanding he was concerned in stealing the same, if corroborated with other credible circumstances to the satisfaction of two such justices, that there was reasonable cause to suspect that the same was stolen or unlawfully