ciple furnishes the well known distinction in the Carrier's case, which, as has been justly observed, stands more upon positive law than upon sound reasoning-2 East. P. C. 659; for it certainly does seem a strange departure from good sense and reason to hold, that if a man delivers goods to a carrier to carry to a certain place, and he steal the whole of them, it is no felony; but that if he open a bale or trunk, and only steal some of the goods, it then becomes a felony.-13 Ed. IV. 9, 6. A position involving so great a contradiction, and one which has excited the surprise of so many learned persons, may well be startling to a common understanding; it is thus noticed by Lord Chief Justice Kelyng, who was certainly no mean authority in criminal law:"I marvel at the case put, 13 Ed. IV. 9 b, that if a carrier have a tun of wine delivered to him, to carry to such a place, and he never carry it but sell it, all this is no felony; but if he draw part of it out, this is felony. I do not see why the disposal of the whole should not be felony also."-Kel. 83.

The arguments in support of the above distinction appear to be these:-There can be no larceny without a trespass; the carrier (having lawful possession of the goods entrusted him to carry) cannot therefore commit a trespass in taking them until that lawful possession is determined; this lawful possession can only be determined either by the natural termination of the contract of bailment or by some tortious act of the carrier, which rescinds it; and the only tortious acts to determine this possession are, the breaking open a package or a severance of part of the commodity from the rest.

By Millers. So, if a miller steal part of the meal produced by the corn delivered to him to grind, this being taken out from the rest, is felony.-2 East. P. C. 698.

Fraudulent wagers.-A man is frequently swindled out of his money by fraudulent bets and wagers, upon a preconcerted plan to defraud him, when it becomes a material question (as in all other cases of delivery) whether the property, or only the possession of the money, or other thing, is parted with; in the first case, the offence is held not to amount to larceny, as there is no felonious taking, but in the last it is otherwise, if the possession be gained animo furandi. Thus, where several sharpers inveigled the prosecutor to bet with them at hiding under the hat, and after suffering him to win at first, contrived to strip him of a large sum of money on the event of a bet, it was held, that though this was found by the jury to be a preconcerted scheme to get his money, yet it was no felonious taking, as he parted with his property under the idea that it had been fairly won.R. v. Nicholson, 2 Leach, 610; 2 East. P. C. 699.

Card playing.-But where the prisoners decoyed the prosecutor into a public house, and there introduced the game of cutting cards, and the prosecutor having pulled out some money, but, not playing on his own account, one of the sharpers prevailed upon him to cut the cards for him, and then, under pretence that the prosecutor had cut the cards for himself, and had lost, another of them swept his money off the table and went away with it; this was decided to be one of those cases that should be left to a jury to determine quo animo the money was obtained, and which would be felony if they found that the money was obtained upon a preconcerted plan to steal it.R. v. Homer, 1 Leach, 270; Cald. 295.

Ring dropping.-So, where the delivery is by way of pledge or security, the property remains in the owner, and larceny may be committed of it, if the delivery were obtained fraudulently, and with intent to steal; as, where the prisoner and some accomplices being in company with the prosecutor, one of them stooped down and pretended to find a valuable ring, upon which they promised the prosecutor that he should have his share of the value of it, and by that means prevailed on him to deposit his money and watch, and to take the ring until his share of the value should be paid, when the accomplices made off with the money and watch, and the ring proved to be of little or no value; this was held to be larceny, as the possession was obtained by fraud, and the property not altered.-R. v. Patch, 2 East. P. C. 678; 1 Leach, 238. In like manner where several act in concert all will be guilty of the felony. Thus, where three sharpers pretended that the prosecutor could not bet £100, when being provoked by the challenge, he produced that sum in notes, which one of them took to count, and then handed to another, who, with the third, pretended to gamble for them; when the first mentioned thief beckoned the prosecutor out of the room, and the other two decamped with the money, and all three afterwards shared it; this was held larceny in all three.-R. v. Stanley, Russ. & Ry. 305.

Of what things Larceny may be committed.

Every description of personal property (with the exceptions hereinafter noticed) may be the subject of larceny; such as money, goods, wearing apparel, cattle, and the like. If the personal goods savour anything of the realty (or freehold), it cannot be larceny; therefore it is no larceny, but a bare trespass, to steal corn or grass growing, or apples on a tree; but it is larceny to take them being severed from the freehold, as wood cut, grass in cocks, stones dug out of the quarry; and this, whether they are severed by the owner or even by the

thief himself, if he sever them at one time, and then come at another and take them.-1 Haw. 93; 1 H. H. 510.

Also, the goods ought to have some worth in themselves, and not to derive their whole value from the relation they bear to some other thing, which cannot be stolen, as paper or parchment, on which are written assurances concerning lands, or obligations, or covenants, or other securities for a debt or chose in action.-1 Haw. 93. The goods ought also not to be things of a base nature, as dogs, cats, bears, foxes, monkeys, ferrets, and the like; which, howsoever they may be valued by the owner, shall never be so highly regarded by law, that for their sakes a man shall die.-1 Haw. 93.

Property unknown.-There may be felony in taking goods, the owner whereof is unknown; in which case, the king shall have the goods, and the offender shall be indicted for taking the goods of a person unknown.-1 Haw. 94.

Stealing securities.-By 4 & 5 Vic. c. 25, § 5, if any person shall steal any tally, order or other security whatsoever, entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of this province or of the United Kingdom of Great Britain and Ireland, or of any British colony, or of any foreign state or colony, or in any fund of any body corporate, company or society, or to any deposit in any savings bank, or shall steal any debenture, deed, bond, bill, note, warrant, order or other security whatsoever for money or for payment of, monies, whether of this province or of Great Britain,* or of any British colony, or of any foreign state or colony, or shall steal any warrant or order for the delivery or transfer of any goods or valuable thing, every such offender shall be deemed guilty of felony in the same degree and punishable in the same manner as if he had stolen any chattel of like value.

Stealing from vessels.-§ 21. If any person shall steal any goods or merchandize in any vessel, barge or boat, in any port of entry, or discharge upon any navigable river or canal, or in any creek belonging to or communicating therewith, or shall steal any goods or merchandize from any dock, wharf or quay adjacent thereto, being convicted thereof, he shall be liable to any of the punishments which the court may award, as in said act is mentioned.

Stealing records.-§ 25. If any person shall steal, or shall for any fraudulent purpose take from its place of deposit, or from any person having the lawful custody thereof, or shall unlawfully and maliciously obliterate, injure or destroy any

• Ireland omitted.

record, writ, return, panel, process, interrogatory, deposition, affidavit, rule, order or warrant of attorney, or any original document whatsoever of or belonging to any court of justice, or relating to any matter, civil or criminal, begun, depending or terminated in any such court, or any bill, answer, interrogatory, deposition, affidavit, order or decree, or any original document whatsoever of or belonging to any court, or relating to any cause or matter begun, depending or terminated in any such court, or any notarial minute, or the original of any other authentic act, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be imprisoned at hard labor in the Provincial Penitentiary, for any term not exceeding fourteen years nor less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceeding two years, or to suffer such other punishment by fine or imprisonment, or both, as the court shall award; and it shall not be necessary to allege in the indictment that the article stolen was the property of any person, or of any value.

Stealing wills.§ 26. If any person shall either, during the life of the testator or testatrix, or after his or her death, steal, or for any fraudulent purpose destroy or conceal, any will, codicil, or other testamentary instrument, whether relating to real or personal estate, or both, such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to any of the punishments which the court may award, as before mentioned; and it shall not be necessary to allege in the indictment that the same was the property of any person, or of any value.

Stealing title deeds.-§ 27. If any person shall steal any original paper or parchment, written or printed, or partly written and partly printed, being evidence of the title to any real estate, such offender shall be deemed guilty of a misdemeanor, and being convicted thereof, shall be liable to any of the punishments which the court may award, as before mentioned; and in the indictment, it shall be sufficient to allege the thing stolen to be evidence of title, or of part of the title, of the person or persons having a present interest, legal or equitable, in the real estate to which the same relates, and to mention such real estate or some part thereof; and it shall not be necessary to allege value.

§ 28. Nothing in this act contained shall prevent, lessen or impeach any remedy at law or in equity which any party aggrieved might or would have if this act had not been passed; but the conviction of such offender shall not be evidence in any action at law or suit in equity against him, nor shall such

offender be convicted by any disclosure made by him on oath upon compulsory process in any action or suit at law or in equity, or before commissioners of bankrupt.

Stealing glass, lead, &c.—§ 36. If any person shall steal or rip out or break with intent to steal any glass or wood work belonging to any building whatsoever, or any lead, iron, copper, brass or other metal, or any utensil or fixture, whether made of metals or other materials, respectively fixed in or to any building whatsoever, or anything made of metal fixed in any land, being private property, or for a fence to any dwellinghouse, garden or area, or in any square, street or other place dedicated to public use or ornament, 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 case of any such thing fixed in any square, street, or other like place, it shall not be necessary to allege the same to be the property of any person.

Stealing by Clerks or Servants.-§ 38. 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 imprisoned at hard labor in the Provincial Penitentiary, for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned in any other prison or place of confinement for any term not exceed ing two years.

Stealing by Tenants.-By 4 & 5 Vic., c. 25, § 37, if any per son shall steal any chattel or fixture let to be used by him or her in or with any house, 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 case of stealing any chattel the indictment may be preferred in the common form as for larceny; and in every such case of stealing any fixture, the indictment may be preferred as if the offender were not a tenant or lodger, and the property laid in the name of the owner or person letting to hire.

Restitution. § 49, If any person guilty of such felony or misdemeanor as aforesaid, in stealing, taking, obtaining or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for any offence by or on the behalf of the owner of the property, or his heir, curator, executor or administrator, and convicted thereof, in such case the property shall be restored to the owner