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be cut in such manner and extent, as in their opinion will effectually secure the lands through which it passes, as well as that where it terminates, from inundation. And the jury aforesaid shall upon oath value and assess what damages the proprietor or proprietors of the land where such drain is to be cut shall sustain. And where the same shall appear necessary, the damages shall be paid before the petitioner or petitioners proceed to cut a ditch or ditches through or into such proprietor or proprietors' lands. And when the petitioner or petitioners aforesaid, shall have so paid to the proprietor or proprietors of such lands as aforesaid, the damages or injury the jury might judge he or they sustained, he or they, their heirs or assigns, so paying, shall thereafter be vested with a good and sufficient title in fee for the lands so petitioned for.

In all cases where a jury is appointed for the purposes aforesaid, it shall be their duty to make a fair return of the whole of their proceedings to the next succeeding county court, which shall be recorded in the said courts respectively; and each of the jury appointed as aforesaid, shall be entitled to the sum of eight shillings for each day that they may necessarily be employed in laying off said ground; which sums shall be paid to each juryman by the petitioner or petitioners. But nothing in the law shall be construed so as to affect any person or person's cleared land or houses, unless by and with the consent of the proprietor or proprietors of said land. And no such drain or ditch shall be cut so as to injure any pond or ponds belonging to any mill or mills which now are or hereafter may be established by law, or to prevent the proprietor or proprietors through whose lands the said ditch or canal may pass, from putting a fence or bridge across the same, provided such fence or bridge shall not obstruct the free passage of the water down said canal or ditch.-Hayw.

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It is the duty of the courts of pleas and quarter sessions respectively, to appoint some person capable of surveying, to procession the lands in each district of the county, for all such as desire their lands processioned,--and to fill vacancies when they occur. For the Oath of a Processioner see Oaths.

The proprietor of the land which is about to be processioned, shall give ten days' notice in writing, to all the proprietors of adjoining lands, and shall deliver the notice to the processioner, sigued by the person who served it.

The processioner shall return to the clerk of his county court, together with a copy of the several notices, a certificate signed by himself for each tract of land by him processioned,

containing the claimant's name, the quantity of acres, the corners, and number of poles contained in each line; which certificate the clerk shall record in a bound book specially kept for that purpose, and file the same with the notices in his office.

The proprietor of the land shall pay to the processioner half the fees allowed by law for surveying lands, and to the clerk two shillings for every certificate by him recorded.

If a tract of land lie partly in one county and partly in another, the processioner, on application, shall procession that part which lies in his own district.

Where a line is disputed and the processioner forbidden by either of the parties interested, to proceed in running and marking the same, it is the duty of the processioner to report the same, stating truly all the circumstances of the case, with the name of the person or persons who forbad the further proceeding, to the next succeeding county court for the county wherein the land lies; and it is the duty of said court thereupon, to appoint five respectable freeholders, whose duty it shall be to appear with the processioner on the line or lines so disputed, and proceed, after being sworn to do equal right and justice between the contending parties, to establish such disputed line or lines as shall appear to them right, and procession the same, and make report of their proceedings to the next succeeding court; which proceedings shall be recorded as above directed; but either of the contending parties may call in any other surveyor to act with the processioner and complete such survey. And the party against whom the de cision is made, shall pay all costs.

LARCENY.

Larceny, or theft, is of two kinds. 1st. Simple larceny, or plain theft, unaccompanied with any other atrocious circumstance. 2d. Mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person.

Again. Simple larceny is of two kinds,-grand and petit. It is called grand larceny, when the goods stolen are above the value of twelve pence. It is called petit, larceny, when the goods are of that value or under.

SIMPLE LARCENY.

First, then, of simple larceny, which is, the felonious taking and carrying away of the personal goods of another.

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1st. It must be a taking. This implies the consent of the owner to be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a lar-, ceny. As if A lends B a horse, and he rides away with him; or if I send goods by a carrier, and he carries them away,these are no larcenies. But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part thereof; or if he carries it to the place appointed, and afterwards takes away the whole, these are larcenies. For here the animus furandi is manitest; since in the first case he had otherwise no inducement to open the goods-and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not of course be intended to arise from a felonious design; since that may happen from a variety of other accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 21 Hen. 8, c. 7, if any servant embezzles his master's goods to the value of forty shillings, it is made felony, except in apprentices and servants under eighteen years old. But if he had not the possession, but only the care and oversight of the goods, as the butler of plate, the shepherd of sheep, and the like, the embezzling of them is felony at common law. So, if a guest robs his inn or tavern of a piece of plate, it is larceny; for he has not the possession delivered to him, but merely the use. Under some circumstances also, a man may be guilty of felony in taking his own goods as if he steals them from a pawn broker, or one to whom he hath delivered and entrusted them with intent to charge such bailee with the value.

2d. There must not only be a taking, but a carrying away. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation or carrying away; as if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest stealing goods out of an inn, has removed them from his chamber down stairs,-these have been adjudged sufficient carrying-away to constitute larceny. Or if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprised before he can make his escape with it,-this is larceny.

3d. This taking and carrying away, must also be felonious. That is, done with intent to steal; or, as the civil law expresses it, for the sake of gain. This requisite, besides excusing those who labour under incapacities of mind or will, in

demnifies also mere trespassers, and other petty offenders; as if a servant takes his master's horse without his knowledge and brings him home again: if a neighbour takes another'splough that is left in the field, and uses it upon his own land, and then returns it: if under colour of arrear of rent where none is due, I distrain another's cattle or seize them;-all these are misdemeanors and trespasses, but no felonies. The ordinary discovery of a felonious intent is, where the party doth it clandestinely; or being charged with the fact denies it. But this is by no means the only criterion of criminalty; for in cases that may amount to larceny, the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to recount all those which may evidence a felonious intent, or annimum furandi-wherefore they must be left to the due and attentive consideration of the court and jury.

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4th. This felonious taking and carrying away, must be of the personal goods of another. For if they are things real, or savour of the realty, larceny at the common law cannot be committed of them. Lands, tenements, and hereditaments, (either corporeal or incorporeal) cannot in their nature be taken and carried away. And of things likewise that adhere to the freehold, as corn, grass, trees, and the like, or lead upon house, no larceny can be committed; but the severance of them is merely a trespass, which depends on a subtilty in the legal notions of our ancestors. These things were parcel of the real estate, and therefore while they continued so, could not by any possibility be the subject of theft, being absolutely fixed and immoveable; and if they were severed by violence, so as to be changed into moveables, and at the same time, by one and the same continued act, carried off by the person who severed them, they could never be said to be taken from the proprietor, in this their newly acquired state of mobility (which is essential to the nature of larceny) being never, as such, in the actual or constructive possession of any one but of who committed the trespass. He could not in strictness be said to have taken what at that time were the personal goods of another, since the very act of taking was what turned them into personal goods. But if the thief severs them at one time, whereby the trespass is completed, and they are converted into personal chattels in the constructive possession of him on whose soil they are left or laid, and comes again at another time, when they are so tnrned into personalty, and takes them away, it is larceny. And so it is if the owner or any one else has severed them. Upon nearly the same principle, the

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stealing of writings relating to real estate, is no felony, but a trespass; because they concern land, or (or according to our technical language) savour of the realty, and are considered as part of it by the law, so that they descend to the heir, together with the land which they concern.

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[But by acts of 1811, c. 13, the stealing or feloniously taking and carrying away any growing, standing, or ungathered corn, maize, cotton, or rice, shall hereafter be held and deemed larceny; and every person convicted thereof shall suffer punishment as in other cases of larceny.]

Bonds, bills, and notes which concern mere choses in action, are also not such goods whereof larceny at the common law may be committed, being of no intrinsic value, and not importing any property in the possession of the person from whom they were taken.

[But by acts of 1811, c. 11, if any person or persons shall feloniously, steal, take, and carry away, or take by robbery any bank note, check, or order, for payment of money, issued or drawn on any bank or other society or corporation within this state, or within any of the United States; or any treasury warrant, debenture, certificate of stock, or other public security; or any order, bill of exchange, bond, promissory note, or other obligation, either for the payment of money or for the delivery of specific articles, being the property of any other person or persons or of any corporation, (notwithstanding any of said particulars may be termed in law a chose in action), such felonious stealing, taking, and carrying away, or taking by robbery, shall be deemed and construed to be felony of the same nature and in the same degree, and with or without benefit of clergy, in the same manner as it would have been if the offender had feloniously stolen or taken by robbery, money, goods, or property of like value with the money or specific articles due or expressed on the face of such bank note or other paper as aforesaid, or secured thereby and remaining unsatisfied. And such offender, for every such offence, being thereof legally convicted, shall suffer such punishment, and be subject to such pains, penalties, and disabilities, as he or she should or might have suffered, if such offender had feloniously stolen or taken by robbery, money, goods, or other property of the like value with the money or specific articles, due or expressed on the face of such bank note or other paper as aforesaid respectively, or secured thereby and remaining unsatisfied.]

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