Judgment having been respited on an objection that the papers in question were not effects within the 15 G.2.c.13., the case was argued before the Judges in the Exchequer Chamber.

Erskine for the Prisoner. By the common law the crime of larcency was confined to chattels of intrinsic value. It was confined to chattels, because it was thought that depredations upon freehold property were less easily committed, and that it was not necessary, therefore, to repress them by a punishment so severe. From time to time, however, the law of larceny has been extended with respect to the subject matter; and various statutes have passed, by which it is made felony to take iron, brass and other metals, though fixed to the freehold, or to take fish out of fish-ponds, or to lop timber trees. But the Legislature never appears to have entertained the idea that the law of larceny had not descended low enough in respect of the value of the thing taken. Before the 2 Geo. 2 c. 25. larceny could not have been committed of a bill of exchange, Bank note, bond, or other paper security for money, because the paper taken had no intrinsic value. To remedy this defect, therefore, the statute provides that persons who steal such securities shall be guilty of larceny in the same manner as if they had taken other goods of the value secured. The Legislature considered the theft of a security as an offence equally injurious to the public as a theft of the thing secured; but it did not think it necessary to provide any remedy for thefts which respected property less insignificant than that which the common law had made the subject of larceny. The object of passing the 15 Geo. 2. c. 13. was to remedy a defect of a very different nature. Though it had been made felony by the 21 H. 8. c. 7 (which statute indeed appears to have been only declaratory of the common law) for a servant to embezzle property entrusted to him by his master, yet if the pro

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perty were delivered to the servant by a third person for
the use of the master, it was not felony in the servant to
steal it. That such was the doctrine of the common law
appears clearly from the cases of Rex v. Waite, 1 Leach
Cro. Cas. 33.and Rex v. Bazely, 2 Leach 973. The in-
tention of the Legislature, therefore, in passing the
15 Geo. 2. called the Bank act, was to put the embezzler
upon a footing with the thief. The subject-matter of
larceny had been sufficiently provided for by other sta-
tutes, and does not appear to have been in contemplation
upon
this occasion; and indeed it is not to be supposed
that in providing for the security of the Bank of England
the Legislature intended to contemplate property of inferior
value to that which was the subject of larceny if taken from
a private individual. Yet if the argument for the pro-
secution is to prevail, it must be considered a capital fe-
lony for a Bank clerk to embezzle the smallest scrap of
paper, or an old pen belonging to the Bank of England,
though to steal property of the same description from
any other person would not amount to petty larceny.
The 15 Geo. 2. c. 13. s. 12., upon which this indictment
is founded, enacts, that "if any officer or servant of
the Bank, being entrusted with any note, bill, dividend-
warrant, bond, deed, or any security, money, or other
effects belonging to the said Company," shall embezzle
such note, &c. he shall be deemed guilty of felony. By
the words "other effects" it is evident that the Legisla-
ture intended things of a different nature from secu-
rities; every species of security which could come into
the hands of a servant of the Bank is comprehended un-
der the words in the former part of the sentence; and as
the words "other effects" immediately follow the word
66 money," it is most probable that bullion or other valu-
able articles of a similar nature were in the contemplation
of the Legislature. It is the more evident that the ef-
fects here contemplated were supposed to have an in-
trinsic value, since the word "valuable" is expressly

introduced

introduced into the 39 Geo. 3. c. 85. which was passed for the purpose of extending the benefits of the 15 Geo. 2. to all persons whatsoever; and as both statutes are in pari materia, they must be construed together. Indeed as the punishment inflicted by the latter act amounts only to transportation, it would be absurd to suppose that the Legislature could intend to punish with transportation only those who should be guilty of embezzling effects of intrinsic value entrusted to them by private persons, and yet to punish with death those who should embezzle effects of the Bank of so small a value as not to be the subject of criminal prosecution. As the papers in question were clearly not available in law, it is impossible to contend that they come under the description of Securities: it has indeed been decided that a person may be convicted of forging an instrument which, independent of the forgery, would be void for want of a proper stamp: but the crimes of forgery and larceny depend upon principles of a very different nature. The former consists in giving a fictitious value to that which is worth nothing, and the latter in taking from another something which already has a real value. But supposing the prisoner to have been rightly convicted, another question arises, namely, whether the 15 Geo. 2. c. 13., so far as relates to the punishment of death, has not been repealed by the 39 Geo. 3. c. 85. Though the preamble of the latter act only refers to the servants and clerks of "bankers, merchants, and others," and recites doubts whether embezzling by such clerks and servants amounted to felony, (which doubts could not exist with respect to the clerks of the Bank); yet, as the enacting part is general, it ought not to be restrained by the preamble. In the case of Rex v. Marks, 4 East, 157. it was held that though the preamble of the 37 Geo. 3. c. 123. was confined to the administration of unlawful oaths in order to give effect to attempts to seduce persons from their allegiance; yet, as the enacting part extended to the administering B 3 unlawful

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same,

unlawful oaths purporting to bind the person taking the
"not to reveal any unlawful combination or con-
federacy, or not to reveal any illegal act done or to be
done," the administering an oath purporting to bind the
person taking the same not to divulge the secrets of an
unlawful association of journeymen for the purpose of
raising wages, was held to be within the operation of the
statute. Here the words of the 39 Geo. 3. are sufficiently
comprehensive to include the clerks and servants of the
Bank, and if the 15 Geo. 2. had never passed, the
prisoner might certainly have been indicted under that
act. Is it not reasonable then to suppose, that as the
Legislature had, in the first instance, passed a severe law
with respect to the servants of the Bank only, and after-
wards came to the determination of passing a general law
upon the same subject of a milder natnre, the old penalty
with respect to the servants of the Bank was intended to
be repealed, and one general, but milder law, to be ap-
plied to the whole kingdom? In the case of Rex v. Davis,
2 Leach 306. it was holden that the 16 Geo. 3.
which punishes killing deer in a park with a penalty of
201. in the first instance, and makes the second offence
felony, had repealed the Black act, 9 Geo. 1. c. 22., so
far as it made that offence felony without benefit of
clergy in the first instance.

C.

30.,

Giles for the prosecution. With respect to the supposed repeal of the capital punishment presribed by the 15 Geo. 2. it may be observed that the 39 Geo. 3. relates to a different species of offences from those mentioned in the 15 Geo. 2.; for by the preamble of the 39 Geo. 3. it plainly appears that the offences within the scope of that act are offences with respect to which doubts had been entertained whether they amounted to felony before that act, whereas no doubt could arise whether the offences comprehended in the 15 Geo. 2. amounted to felony, since they are expressly made felony by that act. Moreover

the

the denominations of property contained in the two statutes are different. The former speaks of deeds and dividend-warrants, which are omitted in the latter; and in the latter statute the word "valuable" is introduced, which is not to be found in the former. The latter act extends to Scotland, but the former does not. The subject-matter therefore of the two acts being different, there is no ground to infer that the penalty contained in the one was intended to be altered by the other. It is true that the penalty imposed by the 9 Geo. 1. c. 22. on deerstealers was holden to be repealed by the 16 Geo. 3. c. 30. though the former statute was not particularly mentioned, but the preamble of the latter statute having recited the intention of the Legislature to repeal all such laws respecting deer-stealers as were ineffectual, and to reduce all the good provisions into one act, it was not to be supposed that the penalty contained in the 16 Geo. 3. could be intended to remain in force. Here both statutes may stand together without inconsistency, and where that is the case a repeal is not to be presumed. This was expressly laid down in Robinson's case, East P. C. 1110, Leach Cro. Cas. 869. [Lord Ellenborough Ch. J Leges posteriores priorcs contrarias abrogant. All the cases are but applications of this principle.] Secondly, the papers described in the indictment must be deemed effects, within the meaning of the 15 Geo. 2. They were the property of the Bank: and though not legally available as securities, they were papers which it was of the highest importance to the Bank to preserve. On giving up these papers the Bank would have been entitled to an action for money had and received against those from whom they received them. They were therefore of importance as affording evidence upon which such an action might be founded. The words of the statute do not confine its operation to effects of any particular quality or value: and the word “ ef« fects" itself is the largest denomination of personal pro

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