case the king against to make water and another if a person take a lodgingroom  by the week furnish and have the key deliver to he and run away with the good  it be not felony indictment at the old Bailey on the sixteenth of may last  against mary to make water and Susan vicar for the steal a rug and other good  of Robert Geery upon not guilty plead a special verdict that Susan vicar and  her husband late decease take a lodging room in the house of Richard Geery  furnish with the good mention in the indictment from week to week at two  shilling per week that the key of the door be deliver to the say Susan which  she keep that Susan pay one shower KB shower KB er p week payment for the room  and lodging and continue therein about four week that the say Susan and mary  on the day in the indictment and before the expiration of the four week take  and carry away the good et si c holt chief justice send this case to I and Mr  Northey to argue for the prisoner and accord at sergeant inn I attend and  argue to this effect that this be no felony and here be two thing considerable  what interest to make water hold in those good then what the law make a felony  and so to apply both here be a good lease from week to week at the will of  both party the lodger have a possessory right against all stranger nay against  the landlord himself if he come and take the good out of the room a action of  trespass will lie the key of the room be give which be more than a bare use  such as a guest have this be a interest not determinable but at a week end  here be a hire pay for it and though the rend do not in the eye of the law  issue out of good yet it be reserve in respect and consideration of they and  the more be pay for they than otherwise will be accord to the case of Dubytoft  v Courteen a a eviction of tithe make a apportionment of the rend where a barn  and tithe be let together though the rend be issue out of the barn only in  point of remedy yet it be issue out of both tithe as well as barn in point of  render the death of the husband be no determination of the estate at will  accord to Hensteads case b then it be considerable that in case of bailment of  good to keep though the bailor have a interest yet the bailee have one too and  such a property as to maintain a replevin and so be Henry pl c beside if no  interest pass here be a possession by the delivery of the owner and that be  express find and a separate possession by his consent which will much affect  the case when we come to consider what felony be by our law second what make a  felony concern good accord to the mirror of justice d larceny be describe to  be the take of any movable treacherousment against the will of the owner by a  unlawful gain the possession of they and then he say take be a necessary  contradistinction to delivery and treacherousment which in the old book be the  same with felon because if the eloiner do apprehend the good to be his own and  that he may well take shower KB they in such case he be not guilty of this  crime nor where he apprehend that it please the owner he shall have they but  of this say he there must be a apparent evidence and presumption now from  hence I can infer that in those ancient time two thing do excuse a tortuous  take of good from the gild of larceny videlicet a contest or claim of property  and a take in pursuance of such claim and this be allow by constant experience  or a delivery or consent of the owner that the party shall have they now in  either of these case it be not a larceny though the person have not the true  real property in the first case but be mistake and though he do exceed or  outdo and go beyond the authority of the owner in the latter case to  illustrate this Glanville lib cap theft non be where beginning detention to  have per owner rei if there be such a consent of the owner as argue his trust  in I and give I a possession against all stranger there my break that trust or  abuse that possession though to the owner utter deceit of all his interest in  those good it will not be a felony e much less where I have a possession by  his consent and maintainable against himself as in this case and accord to  Glanville if a man lend I remember svan ad use ind I to take wholly in slavery  meo the time be expire I be bind to make restitution but if I use it at  another place or beyond the time agree on I be bind to make amends f but a  theft to strike out per hoc quod beginning to have detention per owner rei  Pulton de pace royal power fol say that the intent of steal to make it larceny  ought to be at the time when the party do first come to the possession of the  good though he have a evil intent afterward to convert they to his own use it  be not a cro throw b     p c hale sum hale p c hawk p c d chapter the first  section e case in crown law d edit f see sir William Jones law of bailments  shower KB er p felony in he g for no felony be intend to be do but with  violence way et arms which can be suppose in this case see they be deliver to  he by the owner of they and so he come lawful to they these be the word of the  book h a bare possession by the consent of the owner nay of one that be not  owner even of a wife will make a take not felonious for if she deliver her  husband good to a stranger and he run away with they it be not felony I so be  assize in assize if a forester cut tree and leave they and at another time  come and carry they away it be a quaere if it be felony much less ought it to  be where the right owner give the possession in Henry pl the case of a  goldsmith who have certain stuff in his custody to work and embeziled it it  shower KB be hold no felony because he can not be say to take it way et arms  when it be in his possession by consent of the owner and yet there the trust  be to a particular purpose and the conversion may be reckon a determination of  the privity as well as in our case in Henry be a express case for I if a man  deliver good to keep or lend good to another he may commit felony of they  himself he have but law quality the bailee have law possession so be  Gouldsborough a servant or journeyman employ to sell good and receive money  for his master use sell a considerable quantity and receive one hundred and  sixty guinea for his master and go away with one hundred and fifty when  discharge and lie the ten in a private place in the chamber where he lie on be  discharge his master house and service he afterward in the night time break  open the house and take the ten guinea so hide hold no burglary in a special  verdict easter session for that the take the money be not felony for though  his master money in right yet his in possession and the first original act be  no felony and if he have lie it underground in the garden and afterward come  and take it away this will have be no felony per wright Herbert Atkins Powell  and holt c now that be a tortuous possession we be lawful we can maintain  trespass or appeal for these good c felony be accord to the original intent  but then it must be find there be such a intent and in favor vitae nothing be  to be intend or presume against the party there be nothing find of a intention  to take away the good when they take the lodging king as there be in the case  of sue the replevin it be ex mind and so be Foorers case report in side the  form of indictment be considerable here it must be way et arms c felon to take  in hand as well as to lead away and unless it be so it be nought except on the  Henry c where the carry away be the felony as the marginal note in the new  dyer be that the indictment in that case be only felon abcarriavit and in no  other case be it good so suppose a man lease land with a stock of sheep and  the lessee sell they or kill they c that be no felony and here we have the  interest and possession both by the owner goodwill at first objection the  Edward pl l a carrier have good in a box send to London carry they to  Southwark and there cut open the bale take the money and run away hold to be  felony which perhaps be hard enough I answer in that very case it be agree  that if they have be deliver to keep shower KB by way of bailment it have be  otherwise but beside in that case the authority be but for a particular place  then the carry to Southwark determine the privity and then the break open the  box and take the good may be felony m and it be there agree that if a servant  have good to sell or for any other particular purpose it will not be felony  and that be the reason of make the statute of Henry c for at the commonlaw  where the good continue in the master actual possession it may be felony  otherwise not because of the particular trust n bailment to keep be no felony  dyer here be a contract for the good if that be break no felony because a  contract at first oh g Charlewoods case at the old Bailey Feb Sess case in c l  h hale sum I harrison case case in c l king hawk p c   p c Staunf hawk p c m  dalt c roll Abr Kely hale p c hawk p c n   p c hale p c hawk p c oh hawk p c  shower KB er p as to the objection that the butler cook or servant who have  the bare charge of good may commit felony of they Henry p I answer if a bag of  money be deliver to a servant to carry to York or to buy horse with it be no  felony it be out of the master possession and in the servant Q and the reason  give for that of a butler and cook in Staunforde r and in coke S be because  they have not the possession but the bare charge they be in load not in  possession leaning forward coni pounder of far say coke they can have trespass  or appeal for they say Staunforde which we may have one that have a horse lend  he to ride on or a weaver that have cloth to work no felony u and therefore  embezzlement in some case make felony and as to that of a servant it be the  master own possession and therefore he may maintain all action for they accord  to latch Poph as to the objection the assize pl the case of a guest lodging in  a inn who take the good c the same answer still it be the innkeeper possession  and the party have the bare use of they as and while in his possession who be  owner here be a express contract for the good as well as for the room there be  none but only for the meat and lodging we be more than a bare use at least  here be a possession which can not be recall as that of a guest may and other  use on the whole I pray judgement pro prisonariis Mr Nortby argue with I to  the same effect insist chief upon the first possession by the owner consent  holt chief justice of the king bench think it no felony pollexfen chief  justice c b think it be and that a lodger have the bare use as a guest have  and that become facias against the landlord will reach these good as be shower  KB the constant practice that no indebitatus lie for the rend of the room  which show the money be for the room and not the good Atkins justice be of  opinion that it be no felony and that the lodger have more than a bare use and  nowadays lodging furnish and perhaps the great part of the house be take by  the year and there be no difference in the time Nevil justice No felony Turton  justice No felony rokesby justice think it no felony because no intent find to  steal either in the take the lodging or in carry away the good Ventris justice  of the same opinion but all think it a point deserve very good consideration  wonder vide postea p Henry pl bro cor more pasch hale p c Q Staundfords plea  of the crown r book I chap title larceny S Inst t side ray hawk p c u roll Abr  Kely hale hawk p c wonder this question be now settle by the statute of will  mary c which enact and declare that if any person or person shall take away  with intent to steal embezzle or purloin any chattel bed or furniture which by  contract or agreement he or they be to use or shall be let to he or they to  use in or with such lodging such take embezzle or purloin shall be to all  intent and purpose take repute and adjudge to be larceny and felony and the  offender shall suffer as in case of felony shower KB er p shower KB michaelmas  term the first of William and mary in the king bench sir John holt Knt chief  justice sir William dolben Knt sir William Gregory Knt sir Giles eyres Knt  justice sir George Treby Knt attorney general sir John summer Knt solicitor  general