load of coal, and the coal was delivered by the dealer into the wagon, it was in the possession of the master within the rule above stated, so that the servant, in taking part of the coal out of the wagon on the way home and selling it, was taking it from the possession of the master and guilty of a sufficient trespass to make the taking larceny (1). In a late American case in which a saloon-keeper suspected his sales clerk of embezzling funds, and accordingly employed a detective to watch him, who made a purchase and paid marked money received from the master to the clerk, who deposited it in the till until the detective's back was turned and then took it out again, it was held that the mere fact that the clerk deposited the money in the till momentarily for his own purpose to conceal his embezzlement was not a delivery to the master; and therefore his conviction on a charge of embezzlement was sustained (2).

§ 124. Trespass in making exchange. Where one goes to a shop apparently to buy goods, and they are delivered to him to examine, this is not a consent to his possession of the goods without paying for them; and if thereupon he goes away with the goods it is a trespass sufficient to make the taking larceny. If one orders goods delivered, agreeing to pay cash on delivery, and when the goods are delivered, refuses either to pay or return the goods, such conversion is common law larceny unless the seller thereupon agrees that the buyer shall have credit for a time, however short, a day or even an hour. Likewise if upon

a purchase the purchaser pays for the goods by handing over a bill for change and the seller refused either to return the bill or the change he is guilty of larceny of the bill; for it was delivered to him conditionally only, that is, that he would either return the bill or the change. It was even held that when a man met a girl in a bar-room, bought some brandy, and agreed to stay with her for the night, and later when she protested that they had not enough brandy gave her a twenty dollar bill to go back and buy some more, and she returned saying that she could not get the bill changed but in a minute more said she would try it in another place and left and did not return, it was held that the delivery to her was not absolute, and although the prosecutor did not expect to see the same twenty dollar bill again, yet he did expect to have either that returned or the change and the brandy; and therefore the conversion of the money by the girl was sufficient trespass to make it larceny (3).

Again, where the defendant agreed with a gas company to purchase gas at so much per thousand feet, and the company put in a meter to measure the gas taken, the act of the defendant in making a secret connection between his pipe and the company's main was a sufficient trespass to make the conversion of the gas larceny. The company had agreed and consented to deliver gas to him through the meter, but they had not consented that he should take the gas in any other way, and therefore his taking in another way was larceny (4).

The defendant claimed to be the agent for the Louisiana Lottery and desired that the prosecutor lend him some money to be used in the prosecutor's presence to illustrate to the prosecutor and the others present how the game was worked. The prosecutor handed over the money to be used in his presence for this purpose; and the defendant, having explained the trick, refused to return the money. Although the prosecutor had consented to the use of his money in his presence by the defendant, he had not agreed to part with the possession; and therefore the conversion was larceny (5).

§ 125. Wrongful conversion of property delivered by mistake. There has been much debate and difference of opinion as to whether one is guilty of larceny who converts to his own use property honestly received by him. upon a delivery by the owner through mistake either as to what is being delivered, the person to whom the delivery is being made, or his right to receive the payment. On the one hand it is argued that the subsequent conversion is not larceny, because of the rule stated above, that where property is once received into the possession of the defendant rightfully no subsquently formed design by him to convert it to his own use and deprive the owner of it, can make the act larceny. Accordingly, where a bill of exchange was sent by mail and accidentally delivered to another person of the same name as the payee, who obtained the cash on it, and it did not appear that the prisoner had any animus furandi when he first received the

(5) People v. Johnson, 91 Cal. 265.

bill, the judges held that his conviction was erroneous (5a) In a number of later cases in which one sum of money has been delivered in the belief that it was a smaller sum, for example, a twenty dollar gold piece as a silver dollar, the courts have been divided as to whether the consent to deliver the money was sufficient to prevent the subsequent conversion of it by the receiver after the discovery of the mistake, being larceny. On the ground that there never was any real consent to the possession by the defendant of the money converted it has been argued that the conversion was larceny. On the other side it has been argued that the criminal character of the taking must be determined by the facts existing at the time and cannot depend upon subsequent developments. A prisoner was convicted of larceny on proof that after dark he asked the prosecutor to loan him a shilling until the next day, on which the prosecutor took from his pocket and delivered to the prisoner a coin which both supposed to be a shilling, but which was in fact a sovereign, and that when the prisoner afterwards discovered what it was he immediately determined to and did appropriate it, had it changed, and later denied receiving it. Seven of the judges held that to constitute the crime of larceny at common law there must be a taking and carrying away of a chattel against the will of the owner, and that at the time of such taking there must exist such a felonious intent in the mind of the taker. If one or both of the above elements be absent, there cannot be a larceny at common law. The taking must be under such circumstances as would sustain

(5a) Rex v. Mucklow, 1 Moody C. C. 160.

an action of trespass. If there be a bailment or delivery of the chattel by the owner, inasmuch as, among other reasons, trespass will not lie, it is not larceny at common law; and therefore in the present case the coin was not taken against the will of the owner, and if this be so, it is sufficient to show that there was no larceny at common law; and secondly, it being conceded that there was no felonious intent in the prisoner when he received the coin, this is also fatal to the act being larceny at common law. Six of the judges held that the prisoner was properly convicted. Their argument was, that, as the prosecutor gave and the prisoner received the coin under the impression that it was a shilling and not a sovereign, the prosecutor never consented to part with the possession of the sovereign, and consequently there was a taking by the prisoner without the prosecutor's consent. As the prosecutor did not at the time of the delivery subject himself to the liabilities of the borrower of a sovereign, he was not entitled to the privileges attending the lawful possession of a borrowed sovereign. When he discovered that the coin was a sovereign he was bound to elect, as a finder would be, whether he would assume the responsibilities of a possessor; but at the moment when he was in a position to elect, he also determined fraudulently to convert the sovereign to his own use; and therefore was guilty of common law larceny (5b). In a later case it was held that a workman who was accidentally paid more than his weekly wages and discovered the fact upon opening his envelope, but thereupon immediately determined

(5b) Queen v. Ashwell, L. R. 16 Q. B. D. 190.