1784. ing at nine o'clock, and promising that he would then return the twenty guineas and the four doubloons to the prosecutor, MOORE'SCASE. and also one hundred guineas for his share of the ring. The prisoner and the stranger went away together. The prosecutor attended the next morning pursuant to the appointment, but neither of the parties came. The ring was of a very trifling value.

(1) Lord Loughbo rough, Lord Chief

Baron SKYN

NER.

It was left with the Jury to consider, Whether the prisoner and the other man were not confederated together, for the purpose of obtaining money on pretence of sharing the value of the ring, and whether he had not aided and assisted the other man to obtain the money by the means that were used for that purpose? And the Jury were of opinion, that the prisoner was confederating with the person unknown for the purpose of obtaining the money by means of the ring, and did therefore aid and assist the person unknown in obtaining the twenty guineas and the four doubloons from the prosecutor. They accordingly found him guilty of stealing, but not in the dwelling-house, subject to the opinion of the twelve Judges, whether it was felony.

On the first day of Michaelmas Term 1784, all the Judges except Lord MANSFIELD, assembled at Lord LOUGHBOROUGH'S Chambers, to consult upon this case; and in the December Session following Mr. JUSTICE WILLES delivered their opinion at the Old Bailey to the following effect; All the JUDGES agreed, That in considering the nature of larceny, it was necessary to attend to the distinction between the parting with the possession only, and the parting with the property; that in the first case it is felony, and in the last case it is not. Upon the circumstances of the present case two of the Judges (1) were of opinion, that the doubloons were to be considered as money, and that the whole was a loan on the security of the ring, which the prosecutor believed to be of much greater value than the money he advanced on it, and therefore that he had voluntarily parted with the property as well as with the possession of the doubloons: But nine of the Judges were clearly of opinion that it was felony; for they thought the twenty guineas and the four

doubloons were deposited in the nature of a pledge till the half of the supposed value of the ring was paid to the prose

1784.

cutor and not as a loan, and therefore he had parted with the MOORE'SCASE. possession only and not with the property; more especially as to the doubloons, which he clearly understood were to be returned the next day in specie, and they could not distinguish this case from The King v. Patch in this Court in February Session 1782 (1), and The King v. Pear, in September (1) Vide ante, Session 1779 (2). The majority of the Judges therefore were P. 238, Case of opinion, That this case had been properly left to the Jury; and that the prisoner was guilty of felony (a).

THE prisoner was accordingly transported (b).

(a) See post, in October Session 1784, the case of Richard Marsh convicted before Lord Loughborough for an offence of the same kind, and determined on the authority of this decision.

(b) The indictment was laid capitally, viz. stealing in the dwellinghouse; but the property being taken from the person of the prosecutor, was not within the protection of 12 Anne. Vide S. P. Watson's case, post, December Session 1794.

p.

119.

(2) Ante, p.

212, Case 105.

THE KING against MOSES PIKE.

AT the Old Bailey in May Session 1784, the prisoner tried before MR. SERJEANT ADAIR, Recorder, on the tute 24 Geo. II. c. 45. for stealing a quantity of deals "a certain barge on the navigable river THAMES."

66

river is not satisfied by evidence of a

be

stealing on one of its

creeks.

S. C. 2 East,

Ir appeared in evidence, that a barge full of deals, longing to the prosecutor, was navigating down the Thames; but the lighterman being fearful that the barge would sink, unloaded a portion of his cargo into a long-boat, and brought 647. both the barge and the long-boat into Limehouse-dock, where he moored them alongside each other. By the efflux of the tide they were left aground, and in the night the long-boat with the deals mentioned in the indictment, which were much above the value of forty shillings, were stolen.

1784.

THE COURT held, That this case was not conformable to the meaning of this Act of Parliament. In the construction PIKE'S CASE. of statutes which take away the benefit of clergy, the law requires that the fact laid in the indictment should be strictly proved; but in the present case the evidence proves that this larceny was not committed on the navigable river Thames, but on the banks of one of its creeks. It is true, the statute also takes away the benefit of clergy from any person who shall steal to the amount of forty shillings "in any port of entry or discharge, or in any creek belonging "to any navigable river, port of entry or discharge;" but this being a different branch of the Act, the indictment should have charged the fact accordingly. The prisoner therefore can only be convicted of the simple larceny.

CASE CLIV.

"A church" is a building" within the meaning of 4 Geo. II. c. 32.

and an indict

ment for stealing lead affixed thereto, need not state the person in

whom the property or

the freehold

resides.

S. C. 2 East,

593.

THE KING against HICKMAN AND DYER.

AT the Old Bailey in May Session 1784, Joseph Hickman and James Dyer were convicted before MR. BARon Perryn, the statute of 4 Geo. II. c. 32. for stealing lead affixed to the parish church of Hendon.

on

THE indictment contained three counts. THE FIRST COUNT charged that the prisoners, on such a day and at such a place, 150 pounds weight of lead, belonging to the Reverend Carrington Garrick, then and there fixed to a certain building called HENDON CHURCH, of the said Carrington Garrick then and there feloniously did steal, take, and carry away, against the peace and against the form of the statute in such case made and provided. THE SECOND COUNT stated the property as belonging to John Bond and Ralph Mitcheson, the churchwardens of the parish of Hendon aforesaid, then and there fixed to a certain other building called HENDON CHURCH, of the said John Bond and Ralph Mitcheson, as such churchwardens of the parish of Hendon aforesaid. THE THIRD COUNT laid the property as belonging to the inhabitants and parishioners of the parish of Hendon afore

said, and then and there fixed to a certain other building called HENDON CHURCH, of the said inhabitants and parishioners of the parish of Hendon aforesaid.

upon

66

PROPERTY affixed to the freehold, as in the present case, was not, at common law, the subject of larceny, provided it was severed and carried away at the same time. To remedy the inconvenience arising from this distinction, the statute which the indictment was founded, enacts, "That whoever shall steal, rip, cut, or break with intent to steal, "any lead, iron bar, iron gate, iron palisadoes, or iron "rail whatsoever, being fixed to any dwelling-house, out"house, coach-house, stable, or other building, used or "occupied with such dwelling-house, or thereunto belong"ing, or to any building whatsoever, or fixed in any garden, ❝orchard, court-yard, or outlet belonging to any dwelling❝house, or other building, shall be guilty of FELONY."

THE COURT therefore doubted, Whether a church was a building within the meaning of the statute, and whether the lead stolen was properly laid to be the property of the respective persons mentioned in the indictment; and upon this doubt the case was referred to the consideration of the TWELVE Judges.

MR. JUSTICE WILLES, in May Session 1785, delivered the JUDGES' opinion. The words of the statute are very general and comprehensive, and the JUDGES are unanimous on the first question, that "a church," is included within the words "any building whatsoever;" and that stealing any of the species of property mentioned in the Act, from any building within the meaning of the Act, is felony. As to the second question regarding the person or persons, in whom the property or the freehold of the church by law resides, a majority of the JUDGES are of opinion, that the first count, charging that the lead was stolen from the parish church of Hendon, and laying it to be the property of the Reverend Carrington Garrick, the vicar, is sufficient to support this indictment; and that therefore the conviction is right. It was also thought by many of the JUDGES, that as this statute

1784.

HICKMAN'S
CASE.

See 21 Geo. and the case of Parker and Easy, 2 East, 593.

III. c. 68.

1784.

HICKMAN'S
CASE.

has made the stealing lead, &c. from any building a felony, the averment in the indictment that the lead was stolen from a certain building called Hendon Church, is of itself a description of sufficient certainty; and that the further averment in whom the stolen property resides, is immaterial and unnecessary: the allegation that it was affixed to a building, describing the sort of building, and that the building, whether church or house, belonged to such a person, being all that the law in this case requires; and that the allegation as to the property might be rejected as surplusage (a).

(a) At the Suffolk Summer Assizes June 1782, Parker and Easy were indicted on the statute 4 Geo. II. c. 32. and a majority of the JUDGES determined in Michaelmas Term 1782, that a church is within the meaning of the words "or other building." and they all agreed, that the property of lead fixed to a church cannot be laid to be either in the churchevardens or in the inhabitants and parishioners. 2 East, C. L. 592, 593. In January Session 1785, Richard Isley was convicted upon the same Act of Parliament, for stealing lead fixed to a certain building called a CHURCH, belonging to the parish of West-Drayton; and the property was laid to be in, 1st, the vicar; and 2dly, the churchwardens: but the judgment was respited, and the case referred to the JUDGES, who were of opinion, That this case was exactly the same, in point of law, with that of Hickman and Dyer, and that his conviction was legal.

CASE CLV.

To force an ear-ring from the ear of a lady with a felonious in

tent to steal

it, is a sufficient degree of violence to constitute

THE KING against JAMES LAPIER.

AT the Old Bailey in May Session 1784, James Lapier was indicted before MR. BARON PERRYN, for assaulting Albina Hobart, and taking from her person violently, and against her will, one gold ear-ring set with diamonds, value 1507. the property of her husband George Hobart, Esq.

THE circumstances of this case, as they appeared in evirobbery; and dence, were as follow: Mrs. Hobart was retiring from the to remove it Opera-house, through the King's door, towards her carto the curls of riage, which had drawn up close to the pavement of the street her hair, a to receive her. Whilst she was preparing to step in, she felt sufficient carrying away. S. C. 2 East, 557, 708.

from the ear