or wound, any deer (h) kept or being in the inclosed part of any forest, chase, purlieu, or in any inclosed land (i) wherein deer shall be usually kept, every such offender shall be guilty of felony, and being convicted thereof shall be liable to be punished in the same manner as in the case of simple larceny; and if any person shall unlawfully and wilfully course, hunt, snare, or carry away, or kill, or wound, or attempt to kill or wound, any deer, kept or being in the uninclosed part of any forest, chase, or purlieu, he shall for every such offence, on conviction thereof before a justice of the peace, forfeit and pay such sum, not exceeding fifty pounds, as to the justice shall seem meet; and if any person who shall have been previously convicted of any offence relating to deer, for which a pecuniary penalty is by this act imposed, shall offend a second time, by committing any of the offences hereinbefore last enumerated, such second offence, whether it be of the same description as the first offence or not, shall be deemed felony, and such offender being convicted thereof shall be liable to be punished in the same manner as in the case of simple larceny."

The 27th section provides for the summary conviction and punishment of persons in whose possession deer, or snares, or engines for taking deer, may be found, and who may not satisfactorily account for such possession.-Section 28 provides for the summary punishment of persons setting snares or engines for the destruction of deer, or wilfully destroying the fences of any land where they may be kept. Section 29 enacts, "That if any person shall enter into any forest, chase, or purlieu (whether inclosed or not), or into any inclosed land where deer shall be usually kept, with intent unlawfully to hunt, course, wound, kill, ensnare, or carry away, any deer, it shall be lawful for every person entrusted with the care of such deer, and for any of his assistants (whether in his presence or not), to demand from every such offender any gun, fire arms, snare, or engine, in his possession, and any dog there brought for hunting, coursing, or killing deer; and in case such offender shall not immediately deliver up the same, to seize and take the same from him in any of those respective places or (upon pursuit made) in any other place to which he may have escaped therefrom, for the use of the owner of the deer. And if any such offender shall unlawfully beat or wound any person entrusted with the care of the deer, or any

(h) Young fawns or conies, though in a park or warren, were not at common law subjects of larceny, though deer in a park, &c. were, 1 Hale's P. C. 511; 4 Bla, C. 235; and qu. if this act has

made any difference?

(i) Forest, chase, park, wood, or plantation," were held" open or inclosed grounds" within 57 G. III. c. 90; R. v. Parkhurst & another, R. & Ry. 503.

of his assistants, in the execution of any of the powers given by this act, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in case of simple larceny."

Indictment under Section 26, for coursing, killing, and carrying away Deer in inclosed places.

That A. B. late of, &c. on, &c. with force and arms, at, &c. in a certain enclosed land there situate, in the occupation of C. D. wherein deer had been, and then were usually kept, unlawfully, wilfully, and feloniously did course, kill, and carry away [or "snare, kill, and carry away, hunt, kill, and carry away," or kill or wound, or attempt to kill or wound, &c. according to the fact] one fallow deer, of the value of five pounds, the property of the said C. D (k), [then and there kept, and being in the said enclosed land (1),] against the form of the statute, &c. and against the peace, &c.

Indictment under same Section for coursing and carrying away Deer in the uninclosed part of any Forest, Chase, or Purlieu, after a previous Conviction for some Offence relating to Deer (m).

That A. B. on, &c. [the date of the conviction] was duly convicted before E. F. one of her majesty's justices of the peace for the county of - for that he the said

A. B. on, &c. [recite the conviction and adjudication] (n). And the jurors aforesaid, upon their oath aforesaid, do further present that the said A. B. late of, &c. being so convicted as aforesaid, after the said conviction, on, &c. with force and arms, at, &c. in a certain uninclosed part of a certain forest called there situate, unlawfully and wilfully did course, kill, and carry away [or either "hunt, snare, wound, or attempt to kill," as the fact may be] one fallow deer of the value of five pounds, then and there being in the said uninclosed part of the said forest, against the form of the statute, &c. and against the peace, &c.

Though it is a felony to assault a deerkeeper in execution of his duty, the indictment is placed post, title Assault, with misdemeanours resembling it in its nature.

(*) Seems at least surplusage, Hickman's case, supra, p. 277.

(1) Essential, see 13 L. J. (M. C.) 43, Reg. v. King, commitment on this clause held bad for want of these words. (m) See p. 278, note.

(n) The identity of the prisoner with the person previously convicted should be strictly proved; for the facilities afforded by 7 & 8 G. IV. c. 28, s. 11,

in cases of previous convictions for felony, do not apply where the party is not laid in the indictment to have been duly convicted; or if he was not duly convicted in fact, e. g. having been convicted, but not in the proper county; or if the conviction, being joint, viz. of four, the indictment states it to be of one, R. v. Allen, R. & Ry. 513.

SECTION VIII.'

OF LARCENY BY TENANTS AND LODGERS.

As lodgers and tenants of ready-furnished houses have a special property in the goods let to them for hire, it seems that at common law, they could not be indicted for larceny in stealing the goods so let to them (n); and it has been decided, that if a man hires a furnished lodging with intent that his comrade should steal the furniture, the comrade removing it cannot be indicted at common law for stealing the goods of the original owner (o). To remedy the original defect in the law, the 3 W. & M. c. 10, s. 5, was passed; but difficulties arose on its construction (p), and it is now repealed and superseded by 7 & 8 G. IV. c. 29, s. 45, which not only makes it larceny for a tenant or lodger to steal a chattel, but a fixture, of which, at common law, no larceny could be committed by any one. That section enacts, "That if any person shall steal any chattel or fixture, let to be used by him or her, in or with any house or lodging, whether the contract shall have been entered into by him or her, or by her husband, or by any person on behalf of him or her, or her husband, every such offender shall be guilty of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny; and in every such case of stealing any chattel it shall be lawful to prefer an indictment in the common form as for larceny; and in every such case of stealing any fixture, to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the property in the owner or person letting to hire."

The form of the indictment is sufficiently prescribed by the statute. Where a chattel is stolen, the indictment will be as for larceny at common law, ante, s. 2; when a fixture is stolen, as ante, s. 5 of this chapter.

SECTION IX.

OF LARCENY BY CLERKS AND SERVANTS.

When a Servant is guilty of Larceny at Common Law.]-The question, whether a servant is guilty of larceny, in appropriating the goods of his master when they are lawfully in his own actual custody, de

(n) R. v. Meeres, Show. 50.

(0) R. v. Belstead, Russ. & Ry. 411.

(p) 1 Moo. C. C. 1, R. v. Healey.

pends on the nature of the custody, and the degree of trust reposed in him. Where he has the mere charge or custody of them, it is clear that the legal possession remains in the master, and that the servant is guilty of larceny at common law in stealing them (q). Thus a servant who goes off with money given to him by his master to carry to another, and applying it to his own use, is guilty of larceny (r); so is a clerk employed as such in the daytime, but not residing in the house who embezzles a bill received from his master in the usual course of business, with directions to send it by post to a correspondent (s).

Severer Punishment prescribed by 7 & 8 G. IV. c. 29, s. 46.]-To protect masters against thefts by their servants, whether partially entrusted with the property or not, larceny by them is subjected to a severer punishment than in ordinary cases. For this purpose, the 7 & 8 G. IV. c. 29, s. 46, enacts, "That if any clerk or servant shall steal any chattel, money, or valuable security, belonging to, or in the possession or power of his master, every such offender being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years; and, if a male, to be once, twice, or thrice, publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."

Indictment under this Section for Larceny by a Servant of Goods, Monies, and Securities, belonging to, or in the Possession and Power of, his Master.

That before and at the time of committing the offence hereinafter next mentioned, A. B. late of, &c. labourer, on, &c. with force and arms, at, &c. being then and there a servant to one C. D. feloniously did steal, take, and carry away one gold ring of the value of ten shillings, ten pieces of the current silver coin of this realm called shillings, of the value of ten shillings, and one promissory note of the governor and company of the bank of England for the payment of five pounds, then unpaid and unsatisfied, being a valuable security for the payment of the said sum of five pounds, and of the value of five pounds, of the monies, goods, chattels, and valuable securities of the said C.D. his master as aforesaid, and belonging to the said C.D. against the form of the statute, &c. and against the peace, &c.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B. while he was such servant to the said, C. D. as aforesaid to wit, on, &c

(g) See ante, p. 243, and Mr. Greaves's excellent edition of Russell on Crimes, where all the cases on this subject are fully collected and explained.

(r) R. v. Lavender, 2 East's P. C. 566; 2 Russ. C. & M. 201, S. C.

(8) R. v. Paradise, 2 East's P. C.

565.

aforesaid, with force and arms, at, &c. aforesaid, feloniously did steal, take, and carry away one other gold ring, &c. [as before] then and there being in the possession and power of the said C. D. his master as aforesaid, against the form of the statute, &c. and against the peace, &c.

The provisions respecting embezzlement will be stated in the next section. Counts for such embezzlement, and also counts for larceny at common law, may be joined with the above when there is any doubt as to the facts, or as to the legal result of them when substantiated at the trial.

SECTION X.

OF FELONIOUS (t) EmbezzlemENT BY CLERKS AND SERVANTS.

Distinction between Larceny and Embezzlement].-The legal distinction between larceny and embezzlement by persons in the employ of those whom they defraud is this;-in the former, the property is taken from the actual or constructive possession of the master, or has been delivered by him to the servant for a special purpose only; in the latter, the property has never been in the possession of the master, but being received by the servant for his master's use, is fraudulently appropriated to his own. To punish this offence, which the extended transactions of modern times have rendered of great moment, mon law contained no provision; but various statutes have been passed applicable to parties in different situations of trust, which are now consolidated by 7 & 8 G. IV. c. 29.

the com

Clerks or Servants, receiving any Money, &c. on their Master's account and embezzling it, shall be deemed to have feloniously stolen it.]-The section 7 & 8 G. IV. c. 29, s. 47, generally applicable to clerks and servants, is as follows:-"That if any clerk or servant, or any person employed for the purpose or in the capacity of a clerk or servant, shall, by virtue of such employment, receive or take into his possession any chattel, money, or valuable security, for, or in the name, or on the account of his master, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such money, chattel or security, was not received into the possession of such master, otherwise than by the actual possession of his clerk, servant, or other person so employed; and every such offender, being convicted thereof, misdemeanours by statute, see post, Ch. VI. s. 11.

(f) As to embezzlements which remain as at common law, misdemeanours ; and as to certain embezzlements made