But they become the sub jects of larceny by being severed. private depredations of the things which were part of the freehold, than of those which were merely personal, in the earlier times, when articles of provision and other personal chattels (frequently the most valuable) were carried from place to place by the individual tenants, in that attendance in the camp which was exacted by their military tenures. (m) But things, though they savour of the realty, may become the subjects of larceny by being severed from the freehold : thus, if stones be dug out of a quarry, wood be cut, fruit be gathered, or grass be cut, larceny may be committed of them. (n) And this will be the case, not only when they have been severed by the owner, but also by the thief himself, if there be an interval between his severing and taking them away; so that it cannot be considered as one continued act. If therefore the thief sever them at one time, whereby the trepass is completed, and they are converted into personal chattels in the constructive possession of him on whose soil they are left or laid, and come again at another time when they are so turned into personalty and take them away, it is larceny. (0) Thus though, "if a "thief severs a copper, and instantly carries it off, it is no "felony at common law; yet if he lets it remain, after it is severed, any time, then the removal of it becomes a "felony, if he comes back and takes it: and so of a tree "which has been some time severed." (p) (m) 3 Bac. Ab. Felony (A). 4 (0) 1 Hawk. P. C. c. 33. s. 34. Black. Com. 233. 2 East. P. C. c. 16. s. 27. p. 587. And so in 1 Hale 510., it is said, "But if a man come "to steal trees, or the lead of a "church or house, and sever it, "and, after about an hour's time, 46 or so, come and fetch it away, "this hath been held felony, be66 cause the act is not continuated Statutes making it penal to fully things that are part of the freehold. This being the common law, and many of the descriptions of property which come within this notion of a connection take wrongwith the freehold being thereby placed in a very precarious and unprotected situation, the legislature has from time to time interfered for their protection, and made the wrongful taking of them in some instances felony, and in others a minor offence, punishable by summary proceedings before a magistrate. 1 25 Geo. II. c. 10. breaking into lead, or taking lead, &c. from thence, or aid ing therein, guilty of feTony; The statute 25 Geo. II. c. 10. enacts that "all and every " person or persons, that shall unlawfully break or by Persons "force enter into any mine or mines, wad-hole or wad- mines of black "holes of wad or black cawke, commonly called black lead, "or into any pit, shaft, adit, or vein of wad, black cawke or "black lead, with an intent to take and carry away from "thence any wad, black cawke or black lead; or shall un"lawfully from thence take and carry away any wad, black "cawke or black lead, although such mine or mines, wad❝hole or wad-holes, pit, shaft, adit, or vein, be not actually "broke, or by force entered into, by such offender or offenders; or shall aid, abet, assist, hire, or command any person or persons to commit such offence or offences as "aforesaid;" shall be deemed guilty of felony; and being convicted, may be committed to the prison or gaol of the county, or to some house of correction within the county, for a time not exceeding one year, there to be kept to hard labour, and to be publicly whipt by the common hangman, or by the master of such house of correction, at such times and at such places, and in such manner, as the court or Judge shall think proper; or the court or Judge, or any Or by transother subsequent court held at the same place, with the like portation. authority as the former, may order such offenders to be transported for a term not exceeding seven years. The statute then further enacts, that " if transportation shall be "directed, the same shall be executed in such manner, as is "or shall be provided by law, for the transportation of "felons; and if any such person or persons so committed "or transported, shall voluntarily escape or break pri- And escape of And punished by imprisonment and whipping; return from transportation is made felony without benefit of clergy. 39 and 40 Geo. III. c. 77. s. 5. Stealing coals, &c. made summary proceedings be fore a justice. son, or return from transportation before the expiration "of the time for which he, she, or they shall be ordered to "be transported, as aforesaid, such person or persons being "thereof lawfully convicted, shall suffer death as a felon, "without benefit of clergy; and shall be tried for such fe"lony in the county where he, she, or they so escaped, or "where he, she, or they shall be apprehended." The 39 and 40 Geo. III. c. 77. s. 5. gives certain summary proceedings in cases of depredations committed upon coal, culm, &c.; but it appears to apply only to the taking of punishable by those articles when severed, which is an offence punishable more severely as a larceny at common law. It enacts (amongst other provisions for the better security of collieries) that if any person shall steal and take away any coal, culm, coke, wood, iron, ropes, or leather, not exceeding the value of five shillings, from any place belonging to any manufacturer or coal dealer, or from any boat, barge, waggon, cart, or other carriage carrying the same; or shall steal, break, destroy, damage or embezzle any tools or implements for getting coal or minerals not exceeding the above value, and shall, on the complaint of the owner or his agent, be convicted, either by confession or the oath of one witness, before one justice, he shall for the first offence forfeit not exceeding ten shillings, over and above the costs, which, if not paid, he shall be committed to the house of correction to hard labour for one month, or until the penalty and charges be paid; and for the second offence, shall forfeit not exceeding twenty shillings over and above the costs, and upon non-payment shall be committed to the house of correction to hard labour for three months, or until such penalty and charges be paid; and for the third, or any future offence, #hall forfeit not exceeding forty shillings over and above the charges to be ascertained by such justice, and upon non-payment shall be committed to the house of correc tion to hard labour for six months, or until such penalty and charges be paid. The same section provides also, that no person who shall be convicted of any offence against this act shall be prosecuted for the same offence under any other law. 32. and iron affix ed to houses, The statute 4 Geo. II. c. 32. relates to the stealing of 4. Geo. II. c. lead and iron fixed to houses, or other buildings and places Stealing lead adjoining, the prevalence of which pernicious practice is recited in the preamble. It enacts "that all and every &c. made person and persons who shall steal, rip, cut, or break felony, "with intent to steal, any lead, iron bar, iron gate, iron pa lisadoe, or iron rail whatsoever, being fixed to any dwell"ing-house, out-house, coach-house, stable, or other build"ing used or occupied with such dwelling-house, or there"unto belonging, or to any other building whatsoever, or "fixed in any garden, orchard, court-yard, fence, or outlet, "belonging to any dwelling-house or other building, shall "be deemed and construed to be guilty of felony ;" and shall be subject to the like pains and penalties as in cases of felony; and that the court may transport such felons for the space of seven years. And enacts also, that "all and " every person and persons who shall be aiding, abetting, or "assisting in stealing, or in such ripping, cutting, or break❝ing any lead, iron bar, iron gate, iron palisadoe, or iron 66 rail, fixed to any dwelling-house, out-house, coach-house, ❝stable, or other building; or fixed in any garden, orchard, ❝ court-yard, fence, or outlet, belonging to any dwelling"house, or other building: or who shall buy or receive any if they had “such lead, iron bar, iron gate, iron palisadoe, or iron rail, stolen the "knowing the same to be stolen, shall be subject and liable "to the same punishments as if he, she, or they had stolen "the same." This act was explained and amended by a subsequent statute the 21 Geo. III. c. 68. which, after reciting that the former act did not prohibit and make punishable the stealing of copper, brass, and bell-metal affixed to dwellinghouses, and the appurtenances thereto, enacts, "that all "and every person and persons who shall steal, rip, cut, "break or remove, with intent to steal, any copper, brass, And punish- iron, &c. nishments as same. And the of "bell-metal, utensil, or fixture, being fixed to any dwelling"house, out-house, coach-house stable, or other building, "used or occupied with such dwelling-house, or thereunto "belonging, or to any other building whatsoever; or fixed ❝in any garden, orchard, court-yard, fence, or outlet, be"longing to any dwelling-house, or other building; or "C any iron rails or fencing set up or fixed in any square, "court, or other place, (such person having no title, or "claim of title thereto) shall be deemed and construed to "be guilty of felony ;" and the court may transport such felons for the term of seven years; or may order such offender to be kept in prison, and therein kept to hard labour for any time not exceeding three years, nor less than one year; and within that time, if such court shall think fit, such offender shall be once or oftener, but not more than three And persons times, publicly whipped. And it further enacts, that" all aiding, &c. or and every person and persons who shall be aiding, abet❝ing, or assisting, in stealing, or in such ripping, cutting, "breaking, or removing any copper, brass, bell-metal, uten"sil, or fixture, fixed to any dwelling-house, out-house, made liable to "coach-house, stable, or other building; or fixed in any "garden, orchard, court-yard, fence or outlet belonging to any dwelling-house, or other building; or any iron rails, or fencing, set up or fixed in any square, court, or other place; fenders may be transported, or imprisoned and whipped. buying, or receiving such copper, brass, &c. knowing them to be stolen, are the same punishments. Construction of these statutes. 66 or who shall buy or receive any such copper, brass, bell"metal, utensil, or fixture, iron rails, or fencing, knowing "the same to be stolen, shall be subject and liable to all and every the same punishments, pains and penalties, as if he, "she, or they, had stolen the same, although the principal "felon or felons has not or have not been convicted of steal"ing the same." It has been already shewn that a church is within the meaning of the words "or other building," in the statute, 4 Geo. II. c. 32. (q) But where the prisoner was indicted for stealing a "window casement made of iron, lead, "and glass," the property of the benchers of the Middle (q) Ante, 963. |