with both mortgage deeds; but these were, in fact, at the office of the mortgagee's attorney when the burglary was committed. REG. v. POWELL. 1852. Burglary- On the part of the prisoner it was objected that the intent was not properly alleged in the indictment, as though the mortgage deeds might be the subject of statutable larceny, as "valuable securities," they were not goods and chattels. I overruled the objection, thinking that the mortgage deeds being substantially and chattels securities for debts, and containing covenants to pay principal and Mortgage deeds. interest were distinguishable from deeds, which as "savouring of the realty" were not the subjects of larceny at common law, and that the parchments on which the covenants were inscribed were chattels, if indeed the words "goods and chattels" might not be rejected as surplusage. The prisoner was sentenced to ten years' transportation, but doubts having been suggested if he was properly convicted on the objection as applied to the facts, I present this case for the judgment of the Court of Criminal Appeal. The prisoner remains in this country under his sentence. The counsel for the prosecution also relied on the satisfied bond as, at all events, the subject of larceny. The question for the Court is, whether the conviction is right. January 24. Slade (with him Allen), for the prisoner.-There is a fatal variance. The mortgage deeds are not "goods and chattels," They are either title deeds and not the subjects of larceny as savouring of the realty; or they are choses in action, or valuable Argument. securities, and so only the subjects of larceny by statutory enactment,-applying to them, not as goods and chattels, but as valuable securities. [WIGHTMAN, J.-Would they go to the heir or executor?] There is some difference of opinion between the courts on that subject; but it is unnecessary to consider that question, because, if they would go the heir, then it is quite clear that the intention to steal them would not make the breaking and entering burglarious. So strict was the rule of the common law upon this subject, that not only were title-deeds themselves not the subject of larceny (Reg. v. Westbeer, 1 Leach, 12), but even the box which contained them was also deemed to savour of the realty. Thus Lord Coke says (3 Inst. 109), "So it is of a box or chest with charters, no larceny can be committed of them, because the charters concern the realty, and the box or chest, though it be of great value, yet shall it be of the same nature the charters be of: et omne majus dignum trahit ad se minus." [ALDERSON, B.-I suppose, then, that if a lion was stolen in a cage, it would be said that the cage was feræ naturæ.] The statute 7 & 8 Geo. 4, c. 29, s. 23, does not help the case; because if the deeds are evidence of title to the realty it makes it a misdemeanor only to steal them; and of course breaking into a house with intent to commit a misdemeanor is not burglary. But supposing them to be "valuable securities," within s. 5 of 7 & 8 Geo. 4, c. 29, the stealing of them is only made felony by that statute, they being at common law mere REG V. POWELL. 1852. Burglary 66 choses in action, and not the subject of larceny, because of no intrinsic value. They, therefore, cannot be described in an indictment as goods and chattels. It is true that in Reg. v. Perry (1 Den. C. C. 69, 1 Cox Crim. Cas. 222), a void cheque was held to be properly described in one count of an indictment for larceny as Goods one piece of paper of the value of one penny," but there the and chattels instrument purporting to be a cheque turned out, upon inspection, Mortgage deeds. not to be one; and so, perhaps, in this case if the parchments had turned out not to be what they professed to be, but mere waste parchment, they might have fallen within the description of goods and chattels. If valuable securities might always have been described as goods and chattels, and treated as a picture or a map, without reference to the nature of their contents, what necessity was there for passing the statute, which makes it felony to steal valuable securities? If, in Reg. v. Perry, there had been but one count charging a larceny of a piece of paper, and, upon the evidence, that piece of paper had turned out to be a valid cheque, then the variance would have been fatal, as it is here. [TALFOURD, J.-How do you distinguish this from R. v. Vyse (I Moo. C. C. 218)? Some of the judges doubted there whether the pieces of stamped paper were valuable securities; but all thought that they were goods and chattels.] There the notes had been paid in London, and were in possession of a partner in the banking firm, who was taking them into the country to be re-issued, when they were stolen. They were, in truth, not valuable securities at the time when they were taken; and they were therefore goods and chattels. [WIGHTMAN, J.- Mortgages are chattels real. ALDERSON, B.-But the indictment must be understood of such goods and chattels as are the subject of larceny. (He referred to R. v. Watts, 4 Cox C. C. 336.) JERVIS, C. J.-In that case the cheque had been paid, and returned to the drawers.] The words "goods and chattels " cannot be rejected as surplusage; because then the indictment would charge simply an intent to steal therein; and there are many things, the stealing of which is not felony. Argument. Judgment. JERVIS, C. J.-It should have alleged an intent to commit felony therein. Cur. adv. vult. JERVIS, C. J., now delivered the judgment of the court.-After reading the case, his lordship said:-The case assumes, that the prisoner broke and entered the house, with intent to steal the mortgage deeds, they being securities for money. It is, therefore, quite unnecessary to deal with the question whether mortgage deeds, containing covenants to pay, are distinguishable from deeds savouring of the realty; because securities for money are not goods and chattels. (Calye's case (b), 8 Rep. 33 a.; Chanell (b) In Calye's case it is said: "which words (bona et cattalla) do not of their proper nature extend to charters, and evidences concerning freehold or inheritance, or obligations, or other deeds or specialties, being things in action." v. Robotham (c), Yelv. 68.) The case of R. v. Vyse (1 Moo. C. C. 218) was different; the notes had been paid; they had become mere paper and stamps, the property of the prosecutor; and were therefore his goods and chattels. In this case, the mortgage securities were not satisfied. We therefore think that the conviction was wrong. Conviction reversed. REG. v. POWELL. 1852. Scotland. HIGH COURT OF JUSTICIARY. (Before LORD JUSTICE CLERK, LORDS COLONSAY and COWAN.) November 17, 1851. H. M. ADVOCATE v. BURNET AND OTHERS. Evidence. A letter is admissible in evidence to prove identity of an absent accomplice. BURNET was charged with stealing a 501. Bank of England note, and Masterton as an accessory in disposing of it. Masterton was outlawed for non-appearance. In proceeding with the case, quoad the theft, the prosecutor proposed to prove and produce to the jury a letter, written by Masterton from London, where he had been apprehended on presenting the note at the Bank of England. Brown objected that this evidence was incompetent against Burnet; that even had Masterton been at the bar the statements in his letter could not have been received against Burnet. A fortiori, no letter of Masterton's could be evidence against Burnet, the only party now being tried. Young, A. D., and the Solicitor-General, for the prosecution, explained that his only object in producing the letter was to identify Masterton with the person alleged to be dealing with the stolen property. (c) In Chanell v. Robotham, which was an action of trespass for taking goods and chattels, it was held that the plaintiff was not entitled to recover a bond or the value of it under that description. H. M. v. BURNET AND The COURT held that the prosecutor must first establish some ADVOCATE Connexion or communication between Burnet and Masterton. A witness was then called, who proved that Burnet, two or three weeks previous to the alleged theft, had been seen occasionally in the shop of Masterton, who carried on business as a spirit dealer in Edinburgh. OTHERS. 1851. Evidence The COURT held this sufficient, and then allowed the brother of Masterton to examine the letter written from London, and prove that it was in the handwriting of Masterton. COURT OF QUEEN'S BENCH. November 21, 1851. REG. v. THE INHABITANTS OF WAVERTON. (a) Indictment for non-repair of highway-Reference from one count to another-Sufficiency after verdict. The 1st count of an indictment alleged that a certain highway, in the township of W., was out of repair, and that the inhabitants of the said township were by custom bound to repair it. The 2nd count, after alleging a custom for the inhabitants of the township to repair all roads within it, which otherwise would be repairable by the parish, proceeded thus: "That the said part of the said common highway hereinbefore mentioned to be ruinous and in decay as aforesaid, was a common highway, which but for the said usage would be repairable by the parish at large; and that by reason of the premises, the inhabitants of the township ought to repair and amend the same part of the said common highway, so being ruinous and in decay as aforesaid, when and so often as it hath been and shall be necessary; and that the inhabitants of the township have not yet done the same. A verdict of not guilty having been found upon the first count, and of guilty upon the second: Held, upon a motion in arrest of judgment upon the second, that that count sufficiently referred to the first to import into it the allegations contained in the first count, that the road was situate in the township of W., and was out of repair. NDICTMENT for the non-repair of a highway. IN The 1st count alleged that on, &c., there was, and from thence hitherto hath been, and still is, a certain common Queen's highway (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. REG. v. THE 1851. in the said county, used for all the subjects of our said Lady the Queen, to go, return, pass, and repass, ride and labour, on foot and on horseback, and with cattle, carts, and carriages at their INHABITANTS will and pleasure, and that a certain part of the said last- OF WAVERTON. mentioned common Queen's highway, situate, lying, and being in the township or district of Waverton, otherwise called Waverton High and Low, in the parish of Wigton, in the county aforesaid, Indictment for called Yeven's highway, leading from, &c. (particularly describing it), on the day and year aforesaid, and from thence continually, hitherto, until the day of the taking of this inquisition, at the parish and in the township or district last aforesaid, in the county aforesaid, was and is yet very ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same, so that, &c. non-repair of highway Reference from one count to another. 2nd Count. That within the parish of Wigton aforesaid, &c., from time whereof, &c., there had been and still are divers townships or districts whereof the township or district of Waverton, &c. is one, and that the inhabitants of the said township or district of Waverton, &c., from time whereof, &c., have repaired and amended and have been used and accustomed to repair and amend, and of right ought, &c., when and so often as it hath been or shall be necessary, such and so many of the common highways situate, and being within the township or district of Waverton aforesaid, as would otherwise be repairable and amendable by the inhabitants of the said parish at large, and that the said part of the said common highway herein before mentioned to be ruinous, deep, Indictment. miry, broken, and in decay as aforesaid, was a common highway, which, but for the said prescription or usage, would be repairable and amendable by the inhabitants of the said parish of Wigton at large; and that by reason of the premises, the inhabitants of the township or district of Waverton aforesaid, in the parish aforesaid, during all the time last aforesaid, ought to have repaired and amended, and still ought to repair and amend, the same part of the said common highway so being ruinous, deep, miry, broken, and in decay as aforesaid, when and so often as it hath been and shall be necessary. And the said inhabitants of the said township aforesaid have not yet done the same, to the evil example of all others in like cases offending, and against the peace of our said Lady the Queen, her crown and dignity. The 3rd count was, in substance, the same as the 2nd. This indictment was tried before Williams, J., at the last assizes for the county of Cumberland, when a verdict of not guilty was entered on the 1st count, and a verdict of guilty on the 2nd and 3rd. Knowles, in this Term, obtained a rule nisi to arrest the judgment on those counts, on the ground that they neither alleged that the road was out of repair, or that it was within the indicted township. November 13. 2 D Temple and Pickering showed cause.-These counts are made VOL. V. |