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THE Captain having been led to think so much
of law, of late, was struck with the idea of visiting
courts of justice, and hearing some of those cases
argued, which come before them. Understanding
that a court was then sitting, he resolved to take the
opportunity of the interval of Teague's purgation, in
the work-house, to amuse himself with the pleading
of the advocates. Accordingly, repairing to the courthouse,
he took his place amongst the crowd, and listened
to what was going forward.

What came before the court was a motion in arrest
of judgment. A Jonathan Mun had been indicted,
and found guilty of “feloniously taking and carrying
away water out of the well of Andrew Mab.”
It was moved in arrest of judgment, that larceny
could not be committed of water in a well, it being
real property; for it was a distinction of the common
law, that larceny could not be committed of things
real, or savouring of the reality, Black. 232. 2 Ray.
470. Hawkins, &c. So that taking away the soil was
merely a trespass; and taking away the water could
be no more.

It was answered, that water being fluitans, et mobi
is, could not be considered as real property; that an

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ejectment would not lie for water, but for so many
acres of land covered with water, Yelv. 143. 1 Burr.
142. Because it was impossible to give execution
of a thing which is always transient and running,
Run. 36, quotes Cro. Jas. 150. Lev. 114. Sid. 151.
Thence it is that in a grant of the soil it is necessary,
as we see from old forms, to add the right of ways,
woods, and water-courses, Lilly. Con. 132. and 179.
Bridg. Con. 321. That whatever might be said of
water in its natural bed on the soil, as water in a running
stream; yet a well being dug by the labour of
hands, the water thus acquired, must be counted as
personal, not real property. Barbcray, Titius, and
Locke. That at a well, the water being drawn up by
the bucket, and thus by one act separated from the
freehold, and by another taken from the bucket, it
becomes a subject of larceny; as in the law of corn,
trees, or grass growing. For if these be severed at
one time, and at another time taken away, it is larceny.
Hawk. Pl. Cr. 93.

It was replied, that an ejectment would lie of water
in a well; for here the water is fixed in a certain
place, within the bounds and compass of the well;
and is considered as part of the soil. Run. 37. That,
ex vi termini, in the indictment, “out of the well,”
it must be considered as water ex, out of, or from
the well; that is, water severed by the very act of
taking; for otherwise it would have been expressed,
by “water out of the bucket” of Andrew Mab; not
out of the well; and so the taking could not be larceny,
but trespass; as in the case of a tree that is cut
down at one time, and taken away at another; or apples
growing on a tree, or shaken down and gathered
from the soil; the first being a trespass, the second
larceny.

Curia advisare vult,

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The Captain whispering to lawyer Grab, enquired
what difference it made in the punishment, whether
it was larceny or trespass? He was answered, that in
the one case it was hanging by the common law, and
in the other to pay the value of the property. A very
material difference indeed, said the Captain, to depend
on so nice a distinction.