151. That property of a boarder, as such, but not his stock in trade, is protected from seizure for rent of the housekeeper. Costello v. Walker, Anth. N. P., 2 ed., 339.

152. Property in transit from an adjacent building through a common passage, not liable to seizure. Ib.

153. Adjustment of rent between lessee and sub-tenant, not conclusive against chief land lord. Ib.

159. A notice not stating that the defendant in possession was the applicant's tenant, is insufficient. The notice is in the nature of process, and must make out a case conferring jurisdiction on the officer, under the statute. Supreme Ct., 1843, Millard v. Robinson, 4 Hill, 604. To similar effect, Olcott v. Frazier, 5 Id., 562.

160. Stating that the rent claimed is due for use and occupation for a certain period,

Consult, also, EJEOTMENT, and DISTRESS.

2. Retaining Rent, on Levy of Execution on Tenant's Goods.*

154. Landlord is not entitled to have sheriff, who levies on tenant's goods, retain rent for current quarter, but only rent overdue. 1807, Hazard . Raymond, 2 Johns., 478.

Nor for rent due from an under-tenant. Brown . Fay, 6 Wend., 392.

155. He is not entitled to a lien for rent accrued subsequent to the levy, while the goods remain on the premises in the possession of the sheriff. Supreme Ct., 1820, Trappan v. Morie, 18 Johns., 1; and see Beekman v. Lansing, 3 Wend., 446.

Followed, under 1 Rev. Stat., 2 ed., 737, § 12; 1842, Theriat v. Hart, 2 Hill, 380; 1845, Camp v. McCormick, 1 Den., 641.

156. A secret levy on goods left on the premises in defendant's possession, with no act to give it notoriety, or to bring it to the knowledge of the landlord for nearly a year, cannot bar his claim for rent. Supreme Ct., 1830, Beekman v. Lansing, 3 Wend., 446.

157. Notice to the sheriff of rent due, given after a sale of the goods, but before the money is paid over, is good. [1 Rev. L., 437, $12.] Ib.

Otherwise under 1 Rev. Stat., 746, § 12. Supreme Ct., 1844, Bussing v. Bushnell, 6 Hill, 382.

158. The plaintiff in the execution cannot object that the landlord's notice to the sheriff is informal. Supreme Ct., 1834, Miller v. Johnson,† 12 Wend., 197.

This remedy was taken away by the "act to abolish distress for rent and other purposes." Laws of 1846, 869, ch. 274.

+ Disapproved, Supreme Ct., 1843, Olcott v. Frazier, 5 Hill, 562.

defective. It must show that the money was due from the defendant as tenant. Supreme Ct., 1845, Camp v. McCormick, 1 Den., 641.

161. Formal notice of rent must be given. Delivering a distress-warrant to the sheriff is not enough; for knowledge on his part is not Supreme Ct., 1844, notice within the statute. Bussing v. Bushnell, 6 Hill, 382.

162. An attorney employed by the landlord's agent to take measures for a distress,— Held, not an agent within the statute. Ib.

163. The removal of goods destroys the landlord's lien, and the statute giving a landlord the right to follow goods, and to seize

them off the premises, for the rent, does not continue the lien. V. Chan. Ct., 1835, Reed v. Darrow, 2 Edw., 412.

164. Several executions. An execution

being levied, the landlord gave notice of one year's rent due, and other executions were levied by another officer, and the goods remained unsold until another year's rent accrued, of which he gave notice to the other executions;-Held, that the landlord was enofficer, and the goods were sold on all the titled only to the last year's rent. Supreme

Ct., 1837, Van Rensselaer v. Quackenboss, 17 Wend., 34.

165. To maintain an action against an officer, for refusing under an execution to levy affidavit of the truth of the claim must be and pay over rent claimed by a landlord, an produced to the officer; its non-production cannot be excused, although waived by the officer at the time of the claim, unless the tenant consents to a sale, to satisfy the claim of the landlord. Supreme Ct., 1839, Farrington v. Baley, 21 Wend., 65. To the same effect, 1843, Olcott v. Frazier, 5 Hill, 562.

166. Defence. In the landlord's action against an officer who had levied on the tenant's goods, for not making the rent, the defendant may prove that no rent was due.

Definition.

Supreme Ct., 1839, Farrington v. Baley, 21 Wend., 65.

167. The payment into court, under an order, of moneys collected as rent for the landlord, under 1 Rev. Stat., 746, § 12, on an execution against a tenant, out of goods liable to distress, is a protection to the sheriff. Ct. of Appeals, 1858, Acker v. Ledyard, 8 N. Y. (4 Seld.), 62; reversing S. C., 8 Barb., 514. As to the remedies for Waste, and Use and Occupation, see those titles.

LARCENY.

1. Grand larceny defined to be the felonious taking and carrying away the personal property of another of the value of more than $25. 2 Rev. Stat., 679, 63.

2. Petit larceny defined to be the stealing, taking, and carrying away the personal property of another of the value of $25 or under. 2 Rev. Stat., 690, § 1.

3. Taking. What constitutes a sufficient taking and carrying away. Tobias' Case, 1 City H. Rec., 30; Philip's Case, 4 Id., 177; McDowel's Case, 5 Id., 94; Scott's Case, Id.,

169.

4. The market value, and not the prime cost of goods, is the true criterion in determining the grade of larceny. So held, where the market value was more than the cost and intrinsic value of the goods, viz., jewelry. Gen. Sess., 1816, Taylor's Case, 1 City H. Rec., 28.

5. Written instrument. The money due or secured, or the value of the property transferred, declared the measure of value, in determining the grade of the offence. 2 Rev. Stat., 679,

§ 66.

6. Tickets. Stealing railroad passage tickets declared larceny ;-either grand or petit, according as the value of the tickets stolen exceeds or

not $25.

Punishment therefor prescribed. Laws of 1855, 914, ch. 499, §§ 1, 2.

7. Public records. Stealing them declared larceny, without reference to value. Punishment prescribed. 2 Rev. Stat., 680, § 69.

8. The intent. To constitute larceny, the property must be taken animo furandi. Where defendant took a birdcage of trifling value out of her neighbor's yard, through mischief merely,—Held, no larceny. Gen. Sess., 1816, Crocheron's Case, 1 City H. Rec., 177. Compare Hadley's Case, 5 Id., 8; Hisrott's Case, Id., 137.

Subject of Larceny

9. One's own property. A man may be guilty of larceny in stealing his own property, when done with intent to charge another person with the value of it. [2 East Cr. L., 558; 1 Hawk. P. C., ch. 33, § 30.]* E. g., where property which has been levied on is stolen from the officer by the general owner. Supreme Ct., 1833, Palmer v. People, 10 Wend.,

165.

10. Ice put away in an ice-house for domestic use is private property, and the subject of larceny. Ct. of Errors, 1843, Ward v. People, 6 Hill, 144; affirming S. C., 3 Id., 395.

11. Promissory note. Stealing a note not payable in money, formerly not larceny. Linnenden's Case, 1 City H. Rec., 30.

12. Where the holder of a promissory note, having received a partial payment from the prisoner, who was the maker, handed it to him to indorse the payment, and he took it away and refused to give it up,-Held, that the possession remained in the owner, the prisoner acquiring only a temporary charge or custody for the special purpose; and that his subsequent conversion, the jury having found it felonious, was larceny. Supreme Ct., 1845, People v. Call, 1 Den., 120.

13. One may be guilty of larceny of a note made by himself. And although the note was signed by others as sureties with him, and, with his consent, the holder has erased the name of one of them, the note remains valid against the principal, and is the subject of larceny. Ib.

14. Bank-notes, filled up and complete, though not yet issued, but remaining in the possession of the bank, are the "personal property" of the bank, and are the subject of larceny. So held, on an indictment for receiving stolen notes. Supreme Ct., 1842, People v. Wiley, 3 Hill, 194. Compare, to the contrary, People v. Loomis, 4 Den., 380.

15. On a trial for larceny, consisting in stealing bank-notes, proof must be made that the notes were genuine. Supreme Ct., 1884, People v. Caryl, 12 Wend., 547; 1847, Johnson v. People, 4 Den., 364; 1848, Low v. Peo

The statutory definition now is, the stealing the rule above quoted, from the English authorities, "the property of another" (supra, 1, 2). So that ought perhaps to be limited to cases like that in the text, where the party in possession has acquired a special property as against the general owner.

Lost Property.

Fraudulent Acquisition.

2196.

17. The indictment charged the stealing of "ten promissory notes, called bank-notes, issued by the C. bank, for the payment of divers sums of money, amounting in the whole to $50, and of the value of $50." Held, sufficient. It was not necessary to state whether or not the bank was a foreign bank;-nor to aver the value of each note;-nor to aver formally that the bank existed, or that the note was genuine. Supreme Ct., 1850, People v. Jackson, 8 Barb., 637. Compare INDICTMENT, 102–105.

18. Receipt. To make a receipt for the payment of money the subject of larceny, it must have been executed and duly delivered. No writing which is fictitious, whatever may be its form, or which, although genuine in signature, has not been made effective by being issued or delivered as a valid paper, can be the subject of larceny under our law. Supreme Ct., 1847, People v. Loomis, 4 Den., 380. 19. Therefore, where a debtor procured his creditor to sign a receipt for the debt, under a pretence that he was about to pay him, and then took it from him with a criminal intent, and without paying the money,-Held, that he was not guilty of larceny. Ib.

20. A mere letter, not importing any property in possession of the person from whom it was taken, is not a subject of larceny. Supreme Ct., 1810, Payne v. People, 6 Johns., 103.

21. Realty. Severing produce from soil, or any portion or material from building, inclosure, &c., with intent to steal,-larceny. 2 Rev. Stat., 680, § 68.

24. N. having visited defendant's shop, through forgetfulness left his whip there, and defendant concealed it, and when N. returned for it, denied that it was there. Held, that this was not a case of finding lost property, and that the conversion, it having been found felonious, was larceny. Supreme Ct., 1837, People v. McGarren 17 Wend., 460.

25. The finder of property, who knows the owner, or has means, from marks upon it or otherwise, of knowing who he is, is bound to restore it, and is guilty of larceny if he fraudulently converts it to his own use. Oyer & T., 1889, People v. Swan, 1 Park. Cr., 9.

26. To render the finder of lost property liable as for a larceny, he must know who the owner is at the time he acquires possession, or have the means of identifying him at once, by marks then about the property which the finder understands. It is not enough that he has general means of discovering the owner, by honest diligence, &c. Supreme Ct., 1841, People v. Cogdell, 1 Hill, 94.

27. Where property (e. g., a pocket-book containing bank-bills), with no mark about it indicating the owner, was lost, and found in the highway, and there was no evidence to show that the finder, at the time, knew who the owner was,-Held, that he could not be convicted of larceny, though he fraudulently, and with intent to convert the property to his own use, concealed the same immediately afterwards. Ib.

28. Stray cattle. The rule that larceny cannot be committed of goods accidentally lost, and of which the finder really supposes that the owner cannot be ascertained, is not applicable to cattle which have strayed from the inclosure of the owner upon the public

deemed lost. Nor can a taking of them from the highway be deemed to have been done in good faith. Supreme Ct., 1856, People v. Kaatz. 3 Park. Cr., 129.

Jurisdiction.

30. Illustrations of this rule, and of the distinction between an intent on the part of the owner to part with the property in the goods, and one to part with possession merely. Dayton's Case, 2 City H. Rec., 167; Dow's Case, 3 Id., 129; Lloyd's Case, Id., 132; McClure's Case, Id., 154; O'Terre's Case, Id., 154; Valentine's Case, 4 Id., 33; Bowen's Case, Id., 46; Langley's Case, Id., 159; Bartron's Case, 6 Id., 56; Cochran's Case, Id., 62. 31. The accused, by false pretences to the owner of goods, procured him to send them to S., and then by false pretences to S., procured the delivery of them to himself. Held, a case of larceny, not of obtaining by false pretences. The title to the goods in the hands of S., remained in the original owner; and when they were procured from S., it was without any assent of such owner. Supreme Ct., 1857, People v. Jackson, 3 Park. Cr., 590.

32. Hiring a chattel with intent to convert it to one's own use may constitute larceny; and the intent may be inferred from the circumstances. Gen. Sess., 1816, Brannan's Case, 1 City H. Rec., 50; but compare Jeffer's Case, Id., 83.

Accessaries.

1858, Nichols . People, 17 N. Y. (3 Smith), 114; reversing S. C., sub. nom. People v. Nichols, 3 Park. Cr., 579.

37. One who elopes with another man's wife, and takes also goods belonging to the husband, is guilty of larceny, notwithstanding such taking is at the express request of the wife. She has no such interest in the goods of her husband, that the request can affect the character of the taking. Supreme Ct., 1827, People v. Schuyler, 6 Cow., 572.

38. Jurisdiction. A thief may be tried in any county whither he may carry the goods. The possession of goods by the felon in any county where he may carry them, is a larceny continued; for at no instant of time is the owner devested of his legal right of possession. Gen. Sess., 1816, Paine's Case, 1 City H. Rec., 64.

39. Another State. When the original taking is out of the jurisdiction of this State, the offence does not continue and accompany the possession of the thing stolen, as it does in the case where a thing is stolen in one county, and the thief is found with the property in another county. Supreme Ct., 1807, People v. Gardner, 2 Johns., 477. Followed, 1817, McCullough's Case, 2 City H. Rec., 45.

40. One who shall steal property in another State or county, and shall bring it into this State,

34. One who has the bare charge or custody of the chattels of another, and converts them to his own use with felonious intent, is guilty of larceny. Supreme Ct., 1845, People v. Call, 1 Den., 120.

35. And it is sufficient that the felonious intent existed at the time of the conversion. It need not have arisen when the prisoner received the property. Ib.

36. A carrier intrusted with pig-iron, in bars, for transportation, appropriated a portion to his own use, with felonious intent; and delivered the remainder at the port of consignment. Held, larceny, not mere embezzlement. The iron being in a condition, in which it is, in commerce, usually transferred in bulk, by weight, and not by count, the separation of a part was a trespass such as constitutes the conversion a larceny. Ct. of Appeals,

ceny had been committed in this State. 2 Rev. Stat., 698, § 4. Consult, also, JURISDICTION.

41. Second offence. The provision of 2 Rev. Stat., 699, § 9,-imposing increased punishment in case a person who has previously been convicted of petit larceny is subsequently convicted of a second offence,-does not apply where the first offence was committed and the conviction had in another State. The construction of the statutory provisions relative to second offences,-considered. Oyer & T., 1855, People v. Cæsar, 1 Park. Cr., 645.

42. Long Island Sound. As to convicting for a larceny committed on board a steamboat while navigating Long Island Sound. Manley v. People, 7 N. Y. (3 Seld.), 295. Explained, Haskins v. People, 16 N. Y. (2 Smith), 344, 350.

43. An accessary to larceny, before or after the fact, cannot be convicted as principal. Supreme Ct., 1828, Norton v. People, 8 Cow., 137.

44. One who sends another to commit petit