THE OPINION of the TWELVE JUDGES, On the CASE of WILLIAM HOWE , otherwise HOWARD proceedingsdefend , AS DELIVERED BY Mr. Baron THOMPSON < no role > .

THE prisoner at the bar, William Howe < no role > , otherwise Howard, (together with John Hitchcock < no role > , who is since dead,) were indicted here last sessions, for that they, about the hour of twelve in the night, on the 23d of December, in a certain inclosed ground, belonging to Robert Palethorpe < no role > , five shrubs, called sweet bay-trees, growing there, of the value of 5 s. from and out of the said inclosed ground, without the consent of the owner, unlawfully, wilfully, and feloniously, did spoil, destroy, take and carry away against the statute. There is another count in the indictment, the same as the former, only omitting the words,

"take and carry away;" they were found, the one cutting, and the other tying them up; the shrubs would have been worth at Fleet-market, from eight shillings to twelve shillings: The Jury found them both Guilty; but their judgment was respited on a doubt,

"whether the statute 6 Geo. < no role > 3.

"chap. 36. on which that indictment

"was founded, was not repealed by a

"statute of the same year, chap. 48." This question has been considered at a meeting of the Judges, (from which, only one was absent;) and we are of opinion, that he statute, the 6 Geo. < no role > 3. chap. 36. is not so repealed: By that statute it is among other things enacted, that

"after the

"6th, of June 1766, all persons who shall in

"the night dig up, spoil, destroy, steal,

"or carry away, plants of the value of

"5 s. which shall be growing in the garden

"ground, nursery ground, or other

"inclosed ground, of any person or persons" whomsoever without consent of the owner,

"shall be deemed guilty of felony,

"and shall be punished by the like pains

"and penalties, as in cases of felony,

"and that the Court shall have authority

"to direct such persons to be transported

"for seven years, as others are directed to

"be transported by the laws and statutes

"of this realm;" This statute applies only to the offence of stealing or destroying the shrubs of the value of 5 s. and that offence committed in the night, and it does not at all extend to stealing or destroying the shrubs in the day-time, be their value what it may; at the session of Parliament, another statute, passed ch. 48. whereby among other things, it is enacted, that

"after the 24th day of June, 1766,

"every person who shall pluck up, destroy,

"steal, or carry away, any root, shrub,

"or plant, out of the fields or other grounds

"of any person whatsoever, without

"the consent of the owner, and shall be

"convicted before a Justice of the peace,

"for the first offence, shall forfeit a sum

"of money, not exceeding 40 s. for the

"second offence, a sum of money, not exceeding

"5 l. and for the third offence,

"shall be deemed guilty of felony." - These acts of the 6 Geo. < no role > 3. ch. 36. & 48. passed in the same session, we think ought to be taken together, and then their provision will stand thus; the offence of destroying and carrying away, if of the value of 5 s. is felony, if done in the day-time; or even in the night, if the property is under 40 s. it is only subject to the pecuniary penalty mentioned in the last act; we are of opinion, that the prisoners were properly convicted upon the first-mentioned statute.

GUILTY .

Fined 1 s. and imprisoned six months .