1 A K C E N Y. aso 
or employers, and {hall fraudulently embezzle, fecrete, or 
make away with, the fame, or any part thereof; every ftich 
offender fliall be deemed to have felonioufly ftolen the 
fame, although fuch money, goods, Sec. was or were not 
othervvife received into the pofleflion of fuch mafter or 
matters, &c. than by the actual pofleflion of his or their 
fervant, clerk, or other perfon fo employed. And every 
fuch offender, his advifer, procurer, aider, or abettor, be¬ 
ing thereby lawfully convicted or attainted, thall be liable 
to be tranfported to fuch parts, Sec. for any term not ex¬ 
ceeding fourteen years, in the diferetion of the court be¬ 
fore whom he fhall be convifted or adjudged. Several 
ftatutes have alfo, at various times, paffed to protect pub¬ 
lic companies from depredations by their officers and fer- 
vants; as 15 Geo. II. c. 13. § 12. with refpeft to thofe of 
the Bank of England, rendering embezzlement a capital 
felony ; and 24 Geo. II. c. 11. § 3. refpefting the officers 
and fervants of the South-Sea houfe. 
If a guelt robs his inn or tavern of a piece of plate, it 
is larceny ; for he hath not the pofTeffion delivered to him, 
but merely the ufe. 1 Hawk. P.C. c. 33. § 6. And fo it is 
declared to be by hat. 3 & 4 VV. & M. c. 9, if a lodger 
runs away with the goods from his ready-furniffied lodg¬ 
ings. A wife cannot be guilty with her hufband upon 
th is ftatute, forffie is under his coercion; nor without her 
luifband, if it fhould appear the lodgings were let to him ; 
nor even if it fhould appear that the lodgings were let 
jointly to both the hufband and wife; for it fliall be con- 
ftrued to be the adt of the hufband only. 0 . B. 1758. No. 
105. The offender muff be a lodger at the time the lar¬ 
ceny is committed. 0 . B. 1785. No. 74. The indictment 
muft alfo fet forth the name of the perfon by whom the 
lodgings were let. 0 . B. 1784. No. 747. And the pro¬ 
perty ftolen mull: be fuch as may reafonably be conftrued 
the furniture of the fort of lodging taken. Leach's Hawk. 
P. C. 1. c. 33. § 13. in n. 
Under fome circumftances alfo a man may be guilty of 
felony in taking his own goods; as if he fteals them from 
a pawnbroker, or any one to whom he hath delivered and 
entrufted them, with intent to charge fuch bailee with the 
value; or if he robs his own meffenger on the road, with 
intent to charge the hundred with the lols according 
to the ftatute of Winchefter. Fojl. 133, 4. So where the 
owner delivers goods to a carrier, and afterwards lecretly 
fteals them from him with an intent to charge him for 
them, &c. becaufe the carrier had a fpecial property, 
and the pofTeffion for a time. 3 Injl. no. Dalt. 373. Pult . 
126. 
In further explanation of this part of the fubjeftythe 
following is deferving of attention : To make the crime 
of larceny, there muft be a felonious taking; or an intent 
of dealing the thing, when it comes firft to the hands 
of the offender, at the very time of the receiving. 3 Injl. 
107. Dalt. 367. And, if one intending to (teal goods, 
gets pofTeffion of them by ejeCtment, replevin, or other 
procefs at law unduly obtained, by falfe oath, See. it is a 
felonious taking. 3 Injl. 64. If a man hath pofTeffion of 
goods once lawfully, though he afterwards carry them 
away with an ill attention, it is no larceny; where a tai¬ 
lor embezzles cloth delivered to him, to make a fuit of 
clothes, See. it is not felony. H. P.C. 61. And if I lend 
a perfon my horfe to go to a certain place, and he goes 
there, and then rides away with him, it is not larceny ; 
but remedy is to be had by adlion for the damage; though, 
if one comes on pretence to buy a horfe, and the owner 
gives the ftranger leave to ride him, if he rides away w ith 
the horfe, it is felony ; for here an intention is implied. 
'■Wood's Injl. 264. In the above cafes, there is a lawful pof- 
i'effion by delivery, to extenuate the offence; but perions 
having the pofTeffion of goods by delivery, may in fome 
inftances be guilty of felony, by taking away part there¬ 
of ; as if a carrier open a pack, and take out a part of 
the goods ; a miller, who has corn to grind, takes out 
part of the fame, with an intent to fteal it, &c. in which 
cafes, the pofleflion of part, diftinct from the whole, was 
gained by wrong, and not delivered by the owner, &c. 
i Hawk. P. C. c. 33. § 3. 
2. There muft not only be a taking, but a carrying 
away ; cepit et afportavit was the old law Latin. But a 
bare removal from the place in which he found the goods, 
though the thief does not quite make off with them, is a 
fufficient afportation, or carrying away. As if a man be 
leading another’s horfe out of a clofe, and be appre¬ 
hended in the faft; or if a guelt, dealing goods out of an 
inn, has removed them from his chamber down flairs.; 
thefe have been adjudged fufficient carryings away to con- 
ftitute a larceny. 3 Injl. 108, 9. Or if a thief, intending 
to fteal plate, takes it out of a cheft in which it was, and 
lays it down upon the floor, but is furprifed before he 
can make his efcape with it, this is larceny. 1 Hawk. P. C. 
c. 33. § 18. A man was detected in taking the contents 
of a bale of goods in a waggon. It appeared that the 
bale lay horizontally, and that he had fet it on its end ; 
but, as it had not been removed from the fpat, this was 
held, upon a cafe referved, not to be fufficient carrying 
away. But, where a man with a felonious intention had 
removed goods from the head to the tail of a waggon, it 
was held a fufficient removal to conftitute a carrying 
away. 0 . B. 1784. 734. So a diamond ear-ring lhatched 
from a lady’s ear, but lodging in the curls of her hair, and 
not taken by the thief, was held to be a fufficient afporta¬ 
tion. Leach's Hawk. P.C. c. 33. § 18, in n. 
3. This taking and carrying away, muft alfo be feloni¬ 
ous ; that is, done animo furandi. This requiiite, befides 
excuiing thofe who labour under incapacities of mind or 
will, indemnifies alfo mere trefpaffers, and other petty of¬ 
fenders. As if a fervant takes his mafter’s horfe without 
his knowledge, and brings him home again ; if a neigh¬ 
bour takes another’s plough that is left in the field, and 
ufes it upon his own land, and then returns it; if, under 
colour of arrear of rent where none is due, one diftrain 
another’s cattle or feize them ; all thefe are mitdemeanors 
and trelpaffes, but no felonies. 1 Hal. P. C. 509. The or¬ 
dinary difeovery of a felonious intent, is where the party 
doth it clandeftinely; or, being charged with the faff, 
denies it; but this is by no means the only criterion of 
criminality ; for, in cafes that may amount to larceny, the 
variety of circumltances is fo great, and the complications 
thereof fo mingled, that it is impoffible to recount all 
thofe which may evidence a felonious intent, or animum 
fu.randi\ wherefore they muft be left to the due and atten¬ 
tive confideration of the court and jury. 
4. This felonious taking and carrying away muft be of 
the perfonal goods of another ; for if they are things real, or 
favour of the realty, larceny at the common law cannot 
be committed of them. Lands, tenements, and heredita¬ 
ments (either corporeal or incorporeal) cannot, in their 
nature, be taken and carried away. And of things like- 
wife that adhere to the freehold, as corn, graft, trees, and 
the like, or lead upon a houfe, no larceny could be com¬ 
mitted by the rules of the common law ; but the l'ever- 
ance of them was, and in many things is Hill, merely a 
trefpafs; which depended on a fubtlety in the legal no¬ 
tions of our anceftors. Thefe things were parcel of the 
real eftate ; and therefore, while they continued fo, could 
not by any poffibility be the fubjeCt of theft, being abfo- 
lutely fixed and immovable. And, if they were levei'ed 
by violence fo as to be changed into moveables, and at' 
the fame time, by one and the fame continued act, car¬ 
ried off by the perfon who fevered them ; they could ne¬ 
ver be faid to be taken from the proprietor in this their 
newJy-acquired ftate of mobility, (which is effential to 
the naturu of larceny,) being never, as fuch, in the ac¬ 
tual or conftructive polfeflion of any one but of him who 
committed the trefpafs- He could not, in ftribtnefs, be. 
faid to have taken what at that time were the perfonal 
goods of another, iince the very act of taking was what 
turned them into perfonal goods. But if the thief fever 
them at one time, whereby the trefpafs is completed, and 
they are converted into perfonal chattels, in the conftruc¬ 
tive 
