might be rejected as surplusage, and then it would stand "two shillings of C. D.," which was a sufficient allegation that they were his property. R. v. Radley, 2 Car. & K. 974. Where the goods are in the possession of a bailee at the time they are stolen, they may be described as the goods of the owner, or of the bailee. They may be described as the goods of the owner, although he never have had actual, but merely a constructive possession of them: and, therefore, where bank notes, the property of one Nash, but which had never been in his possession, being by his orders sent by an agent of his in the Isle of Wight to his agent in London, and by the latter to an agent of Nash's at Worcester, were stolen from the carrier, and they were described in the indictment as the property of Nash: the judges held that they were properly described as Nash's property. R. v. Remnant, R. & Ry. 136. Or they may be laid to be the property of the bailee, as for instance, the carrier in Remnant's case, from whom the notes were in fact stolen. So linen delivered to a laundress to wash, Packer's case, 2 East, P. C. 653, cattle sent to an agister to agist, Woodward's case, 2 East, P. C. 653, or goods given to the driver of a stagecoach to carry, R. v. Deakin and Smith, Id., may be described as the property of the bailee, or of the owner. And if a man steal his own goods from a bailee, they must be laid to be the property of the bailee. 1 Hale, 513, 2 East, P. C. 654. If goods be stolen whilst in the custody of the sheriff under an execution, they may still be described as the property of the defendant, for they are his until sale. R. v. Eastall, 2 Russ. 92. Or they might be stated to be the goods of the sheriff. But if property be stolen from the owner's servant, they must be laid to be the property of the owner ; for the servant is not a bailee. 2 East, P. C. 652, but see R. v. Ruddick, 8 Car. & P. 237. But if a man part with the right to immediate possession, so as not to be in a situation to maintain trespass, as if he let furniture with lodgings to a lodger, then if any of the furniture be stolen, it cannot be laid as the property of the owner, but must be described as the property of the lodger. R. v. Belstead, R. & Ry. 411. R. v. Brunswick, Ry. & M. 27. The clothes of a child of tender years, supplied by the father, must be laid to be the property of the father; of a child grown up, the property of the father or of the child, and more properly the latter. R. v. Hughes, Car. & M. 593. 2 East, P. C. 654. Goods, &c. in the possession of a wife, must be laid to be the property of the husband, 1 Hale, 513, even although she held them as bailee for another. R. v. Roberts, 7 Car. & P. 485. If the owner be dead at the time the goods are stolen, they must be stated to be the property of his executor, if there be one, or of the administrator, if at that time there be one, or if

neither, they must be laid to be the property of the bishop of the diocese; R. v. George and Ann Smith, 7 Car. & P. 147. R. v. Tippin, Car. & M. 545; and if the shroud be stolen from the corpse, it may be laid to be the property of the person, whose property it was at the time it was put on. 1 Hawk. c. 33, s. 46. If goods be stolen from a felon, they are laid to be the property of the Queen. R. v. Whitehead, 9 Car. & P. 429. Where waifs, strays, or treasure trove are stolen, they may be laid to be the property of some person to the jurors unknown; 2 East, P. C. 606; and the same in all other cases, where the name of the owner is not known, 1 Hawk. c. 33, s. 44. 2 Id. c. 25, s. 71, and see ante, p. 80, if facts be proved from which the jury may fairly presume that the goods were stolen. 2 Hale, 290. 2 East, P. C. 651.

If the goods be the property of partners, joint tenants, tenants in common or parceners, they may be stated to be the property of one of them, named, and "another" or "others:" 7 G. 4, c. 64, s. 14. Ante, p. 81; which provision extends to all joint stock companies and trustees. Id. See also stat. 7 G. 4, c. 46, s. 9. R. v. Gaby, R. & Ry. 178. R. v. Steel, Car. & M. 337. The property of friendly societies may be laid in the treasurer or trustees; 10 G. 4, c. 56, s. 21; R. v. Cain, Car. & M. 39; of loan societies, in the treasurer; 3 & 4 Vict. c. 110; of savings banks, in the trustee or trustees. 9 G. 4, c. 92, s. 8. The property of a corporation aggregate, must be laid in the corporation in its corporate name.

Where goods are stolen from a church, we have seen (ante, p. 352) that they may be laid to be the property of the rector, the churchwardens, or the parishioners; if stolen from a chapel, the property of the owner, or of the trustees. And where a Bible and hymn-book, which had been presented to the Methodists' society at Feckenham, were stolen from the Methodist chapel there, and were described as the property of John Bennett and others, Bennett being one of the society and also one of the trustees of the chapel: Parke, J., held it to be correct. R. v. Boulton, 5 Car. & P. 537.

Goods and chattels provided at the expense of a county, riding, or division, for the building or repairing of a county bridge, or for a gaol, house of correction, infirmary, asylum, or other building,-may be described as the property of the inhabitants of such county, riding, or division. 7 G. 4, c. 64, s. 15; ante, p. 81, 82. Goods and chattels in a workhouse or poorhouse of a parish, township, or hamlet, or provided for the poor thereof, may be stated to be the property of the overseers of the poor of such parish, &c., without mention of their names; 7 G. 4, c.64, s. 16; and where they were described as the property of "the overseers of the poor for the time being" of the parish of K., the judges held it to be sufficient. R. v. Went, R. & Ry.359. Goods and chattels belonging to a poor law union,

the

or to a parish under guardians, by stat. 4 & 5 W. 4,c. 76, must be described as the property of the guardians of the poor of union (or of the parish of) in the county of 5 & 6 W. 4, c. 69, s. 7. 5 & 6 Vict. c. 57, s. 16, ante, p. 82. Materials or tools for making or repairing a highway in any parish, &c., may be laid to be the property of the surveyor or surveyors of the highways there for the time being, without mention of the names. 7 G. 4. c. 64, s. 16; see ante, p. 82. Goods, &c., belonging to a turnpike trust, or materials or tools for making or repairing the road, may be described as the property of the trustees or commissioners of the road, without naming them. 7 G. 4, c. 64, s. 17; see ante, p. 83. Property under the commissioners of sewers,may be described as the property of the commissioners within or under whose view, cognizance or management such things shall be, without naming them. 7 G. 4, c. 64, s. 18; see ante, p. 83.

If the name stated be that by which the party is usually called, it will be sufficient: where the prosecutor was called in the indictment John Hancox, and his real name was John Walter Hancox, but he was usually called and known by the name of John Hancox, Park, J., held it to be sufficient. R. v. Berriman, 5 Car. & P. 501. Anon. 6 Car. & P. 408, S. P. So, where the prosecutrix was named in the indictment by a name which she had assumed, and by which alone she was known in the neighbourhood, the judges held it sufficient. R. v. Norton, R. & Ry. 610. If the name be mis-spelt, it will not be deemed material. R. v. Foster, R. & Ry. 512. Or if there be a variance between the indictment and proof in the name of the party alleged to be owner, or in the ownership of the property, the court at the trial, if it consider such variance not to be material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended according to the proof. 14 & 15 Vict. c. 100, s. 1; ante, p. 86.

Several counts.] By stat. 14 & 15 Vict. c. 100, s. 16, “it shall be lawful to insert several counts in the same indictment against the same person for any number of distinct acts of stealing, not exceeding three, which may have been committed by him against the same person, within the space of six calendar months from the first to the last of such acts, and to proceed thereon for all or any of them.”

And by sect. 17, "If upon the trial of any indictment for larceny it shall appear that the property alleged in such indictment to have been stolen at one time, was taken at different times, the prosecutor shall not by reason thereof be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or

that more than the space of six calendar months elapsed between the first and the last of such takings; and in either of such last-mentioned cases the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six calendar months from the first to the last of such takings." Before this statute, if several articles were named in the indictment, whether in the same or in different counts, and it appeared at the trial that the goods were stolen at several distinct times, the court would put the prosecutor to his election for which act of larceny he would prosecute, and would oblige him to confine his evidence to that. See R. v. Smith and Jefferies, Ry. & M., N. P. C. 295. But they would not do so, merely because the goods might have been, and probably were, stolen at different times, if, from anything appearing in the case, it were not impossible that they might all have been stolen at one time. R. v. Dunn and Smith, Ry. & M. 146.

Also, by stat. 11 & 12 Vict. c. 46, s. 3, in every indictment for feloniously stealing, it shall be lawful to add a count for feloniously receiving the same property, knowing it to have been stolen; and the jury upon the trial may find a verdict of guilty, either of stealing the property, or of receiving it knowing it to have been stolen; or if the indictment be found against two or more, the jury may find all or any of them guilty of stealing, or of receiving, or one or more guilty of stealing, and the other or others guilty of receiving. See ante, pp. 93, 94.

Verdict.] If upon an indictment for larceny, the evidence prove an embezzlement, the jury may find the defendant not guilty of the larceny, but guilty of embezzlement; and thereupon he shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement. 14 & 15 Vict. c. 100, s. 13. So, upon an indictment for larceny, the jury may find the defendant not guilty of the larceny, but guilty of an attempt to commit it. Id. 8. 9. But if upon an indictment for larceny, the evidence prove an obtaining of money by false pretences, the jury are not at liberty to find the defendant guilty of the latter offence, or of the larceny, but he must be acquitted. Ante, p. 174. Upon an indictment for larceny, although a taking at one time only be stated, the jury may find a verdict of guilty generally, although evidence of three different takings within six calendar months have been given. See 14 & 15 Vict. c. 100, s. 17, ante, p. 360.

Before I state the evidence in larceny, it may be convenient that I should first state the definition of the offence at common

r

law, and give the decisions and other authorities which construe and explain each part of that definition.

Larceny, what.] Simple larceny at common law, is, the taking-and carrying away-of the personal goods of another, of any value,-against the will or without the consent of the owner, without any bona fide claim of right,-with a felonious intent.

The taking.] The taking in larceny, is either actual or constructive actual, where the party actually gets the goods out of the possession of the owner or his bailee, invito domino, by force or by stealth, or the like, upon which it is not necessary to make any further observation; constructive, where he obtains possession of them by some trick or artifice, or the like, not having the effect of transferring the right of property, but the possession only, having at the time a felonious intent to convert them to his own use, or to deprive the owner of them. This part of the subject shall be considered at length, when I come to treat of the evidence.

The carrying away.] If the goods be detached from the place where they were taken, any the slightest removal of them from the place, is a carrying away, within the definition of larceny. Where it appeared that the prisoner, who was sitting on the driving box of the Exeter mail coach, took hold of the upper part of a bag that was in the front boot, and lifted it from the bottom of the boot on which it rested; he handed the upper end of it to a person near him, and they were both endeavouring to pull it out of the boot, with a common intent to steal it, when the guard of the coach coming up, they dropped the bag again into the boot: the judges held that this was a complete asportation of the bag, sufficient to constitute larceny. R. v. Walsh, Ry. & M. 14. I shall notice other cases upon the subject, when I come to consider the evidence.

The personal goods of another.] At common law, larceny can be committed of personal chattels only:-not of things attached to the freehold, such as trees or vegetables growing, fixtures, or the like, for they are not personal chattels; 1 Hawk. c. 33, s. 34; not of bills of exchange or other written securities for money, for they are merely choses in action, not chattels ; 1 Hawk. c. 33, s. 35; not of animals feræ naturæ, unless tamed or confined, and fit for the food of man. But horses, mules, asses, oxen, sheep, swine, goats, are personal chattels, and the subject of larceny; so are all other domestic animals which are fit for the food of man, such as turkies, geese, hens, ducks, &c., and their eggs and their young. 1 Hawk. c. 33, s. 43. So, pulling the wool off a sheep's back and stealing it, has been holden to be larceny. 1 Hawk. c. 33,