a anonymous case on the statute and W III c a woman indict for have in her  custody some piece of canvas contrary to the statute and W III c there be a  case in the western circuit before Mr justice foster which have in some of its  circumstance a resemblance to the beforereported case of John bell a  widowwoman be indict on the statute and W III c for have in her custody  diverse piece of canvas mark with his majesty mark in the manner describe in  the Act she not be a person employ by the commissioner of the navy to make the  same for his majesty use the canvas be produce at the trial mark as charge in  the indictment and be prove to the satisfaction of the court and jury to be of  that sort which be common make for the use of the navy and to have be find in  the defendant custody the defendant do not attempt to show that she be within  the exception of the Act as be a person employ to make canvas for the use of  the navy nor do she offer to produce any certificate from any officer of the  crown touch the occasion and reason of such canvas come into her possession  her defence be that when there happen to be in his majesty store a  considerable quantity of old sail no long fit for that use it have be  customary for the person entrust with the store to make a public sale of they  in lot large or small as best suit the purpose of the buyer and that the  canvas produce in evidence which happen to have be make up long since some for  tablelinen and some for sheeting have be in common use in the defendant family  a considerable foster time before her husband death and upon his death come to  the defendant and have be use in the same public manner by her to the time of  the prosecution this be prove by some of the family and by the woman who have  frequent wash the linen foster er p this sort of evidence be strong oppose by  the counsel for the crown who insist that as the Act allow of but one excuse  the defendant unless she can avail herself of that can resort to any other for  if the canvas be real buy of the commissioner or of person act under they  which be the only excuse point out by the statute why be no certificate of  that matter take at the time of the purchase since the four section of the Act  admit of that excuse and the second section admit of no other but the judge be  of opinion that though the clause of the statute which direct the sale of  these thing have not point out any other way for indemnifying the buyer than  the certificate and though the second section seem to exclude any other excuse  for those in who custody they shall be find yet still the circumstance attend  every case which may seem to fall within the Act ought to be take into  consideration otherwise a law calculate for wise purpose may by too rigid a  construction of it be make a handmaid to oppression there be no room to say  that this canvas come into the possession of the defendant by any act of her  own it be bring into familyuse in the lifetime of her husband and it continue  so to the time of his death and by act of law it come to her thing of this  kind have be frequent expose to public sale and though the Act point out a  expedient for the indemnity of the buyer yet probable few buyer especial where  small quantity have be purchase at one sale have use the caution suggest to  they by the Act and if the defendant husband real buy this linen at a public  sale but neglect to take a certificate or do not preserve it it will be  contrary to natural justice after this length of time to punish her for his  neglect he therefore think the evidence give by the defendant proper to be  leave to the jury foster and direct they that if upon the whole of the  evidence they be of opinion that the defendant come to the possession of the  linen without any fraud or misbehaviour on her part they shall acquit her and  she be acquit end OF the appendix leech er p leech report volume case in crown  law determine by the twelve judge by the court OF king bench and by  commissioner OF oyer and terminer and general gaol delivery from the four year  of George the second to the fortyfifth year of George the three by thomas  leech Esq of the middle temple barrister at law the four edition with  correction and addition in two volume volume I London leech case I king v  hassel leech I er report date the king v hassel it be felony in a servant of  the postoffice to steal a single banknote from a letter commit to his care at  the old Bailey on Friday the that October Thomas hassel be try before Lord  chief justice Raymond present Mr justice Denton and Mr baron comens on the  statute Geo two c S and Ann c for steal one banknote of fifty pound the  property of John Arden in the dwellinghouse of Edward Carteret and Edward  Harrison esqr it appear in evidence that the gentleman in who dwellinghouse  the felony be say to have be commit be the Postmastersgeneral that the  prisoner be employ by they in the postoffice in the capacity of a sorter of  letter that the banknote describe in the indictment have be send by the post  in a letter from John Arden of Manchester direct to Mr bury in London and that  the prisoner have receive the money for it from the bank by the hand of one  Mitton a ticketporter the day after leech that on which the letter will arrive  in town by the regular course of post before the prisoner enter on his defence  his counsel Mr sergeant Daniel and Mr strange submit two objection to the  consideration of the court first that the evidence admit it to be true only  prove that the prisoner be guilty of a embezzlement and breach of trust and  not of larceny within the true and legal definition of that crime second admit  that the take be sufficient to satisfy the legal notion of larceny yet the  subject of it be not within the term or meaning of the Act of Geo two c upon  the first point they argue that the prisoner from the nature of his office and  the extent of the trust repose in he be under the circumstance of this case  discharge from all criminal responsibility he be employ at the general  postoffice as a sorter of letter and have accord give security to a very  considerable amount for the faithful performance of his duty the mail leech er  p contain many bag and each bag a great number of letter and upon their  arrival at the office they be immediate deliver into the custody of the  sorters who business it be to arrange they accord to their respective  direction for the purpose of their be afterward deliver the delivery of the  bag give the sorters a entire possession upon a trust that they will not  violate the confidence repose in they for whoever send letter by the hand of  other repose in the integrity of those into who hand they be commit and if any  mistake or abuse happen although it may amount to a high and aggravate  misdemeanour and although they or their security may be civil liable for the  amount of the loss yet it be no felony this distinction be so complete  establish by the know rule of the commonlaw that it will be trifle with the  time of the court to cite precedent in support of it the legislature have  themselves act upon and confirm this rule of law for by the Ann c S they have  express provide for this offence by inflict a penalty of twenty leech pound  with incapacity of office upon any person who shall presume wit Willing and  know to open or detain any letter after its delivery at the postoffice and  before its delivery to the person to who it be direct without a order for that  purpose under the hand of the secretary of state it be apparent therefore that  this penalty be all the punishment which the law intend to inflict upon this  offence for it can be contend that the prisoner be within the Henry VIII c  which make it felony for servant to rob their master dalt dyer hale hawk a  that Act require that the master shall be the owner of the good and it be  clear that the prisoner be not servant to the owner of the note it indeed  furnish a strong argument that servant entrust with their master good be not  guilty of felony by the commonlaw for take they away but now by Geo III c S  and Geo c it be felony without clergy for any sorter or other servant of the  postoffice to secret embezzle or destroy any letter contain a banknote or  other security therein mention upon these statute Richard clay be indict at  the assize for York as a servant to the postoffice for embezzle a letter  contain a bill of exchange it be object that as he have not take the oath  require by Ann c S and he can not be consider as a legal servant to the  postoffice but the court overrule the objection SC east b upon the second  point they contend that suposing the prisoner have not the entire or legal  possession of this banknote but a bare charge of the property only yet it be  not a offence within the Act the statute of Geo two c S enact that whoever  shall steal or take by robbery any exchequer order or tally or other order  entitle any other person to any annuity or share in any parliamentary fund or  any exchequer bill banknote SouthSea bind eastindia bind dividendwarrants c c  shall be deem guilty of felony and so go on enumerate other species of  property all of they in the plural number whereas the fact charge in the  indictment be for steal one banknote only Penal act be to be construe with  great strictness and can be make to affect leech the life liberty or property  of the subject but accord to their literal import as to the present case it be  high probable that the legislature do not intend to take away life for steal  only one of the security which the Act describe the I Edward VI c S make it  felony without clergy to steal horse gelding or mere in the plural number it  be doubtful whether this extend to the steal of one horse only and the  legislature think it proper to pass another Act to supply this defect haw sir  Philip York create ld Hardwicke in appoint chancellor create viscount Royston  and earl of Hardwicke in attorneygeneral answer these objection on the part of  the crown First The offence be clear felony and not mere breach of trust for  the prisoner have no property in the banknote but a bare charge only over the  letter in which it be contain to sort and put it into its proper place it be  therefore like the case of a butler who have a charge over plate or of a  shepherd who have a flock of sheep commit to his care or of a weaver who have  silk deliver to he by the throwster to work and in all these case it have be  decide that it be felony leech er p to steal any of the good so deliver  notwithstanding the delivery Henry VII Henry VII b cor hale hawk a but admit  for a moment that the prisoner be possess of the property in the letter in the  same manner as it be say a carrier be of good which be deliver to he to carry  yet still he will be guilty of felony for by open the letter the privity be  determine and it have accord be adjudge Edward IV S PC Kely hawk b that if a  pack of good or a tun of wine be deliver to a carrier and he open they and  take out part of the good or wine he be guilty of felony but I insist that a  carrier have no such possessory property by the delivery of good as will in  any case excuse he from the gild of felony if he felonious convert they to his  own use as to the second objection see a case in person nares I easter term  east c I ready admit that penal statute ought to receive a strict construction  but they must also be construe accord to sound reason common sense and the  apparent intention of the legislature that the present statute extend to one  note as well as to two or more be in my apprehension very plain and apparent  the word leech be whoever shall felonious steal any note c and then the Act go  on to say notwithstanding any of these particular may be term in law a choose  in action which plain show that it be the intention of the legislature to make  the steal of a choose in action which a banknote be felony it will be a most  unreasonable construction to say that the legislature intend to make it felony  to steal two note of five pound each and yet that it shall not be felony to  steal one note of ten thousand pound as to the argument that have be draw from  the Edward VI c S the word in that statute be horse mere gelding and not any  horse mere or gelding accord to the manner of expression use in the Geo two c  and yet in that case it be only doubt whether it do extend to one horse c the  and Edward VI c therefore only declare that the steal of one horse shall  exclude the felon from the benefit of clergy which show that the parliament  only give their judgement that it be felony without clergy by virtue of the  first Act the second be mere to remove doubt and not to make a new law by and  car two c it be make felony to burn any rick or stack of corn c in the  nighttime and yet it have never be doubt because this be express in the plural  number but that the burn of one barn c be felony within the statute the court  after consult upon the subject declare that it be their clear and unanimous  opinion that there be nothing in either of the objection but that the offence  if the jury believe the witness for the king be clear felony without the  benefit of clergy the prisoner be accord put on his defence and he call  several witness who establish a probable alibi upon which he be acquit leech  case two