to appropriate the whole amount, was not guilty of larceny (6). § 126. Wrongful conversion by finder of lost property. It was early established that if one find goods lost by another and convert them to his own use it is not larceny, for the taking was lawful, though he might have denied the finding and secreted the property afterwards. But in later cases some nice distinctions were taken, which frequently make it a point of no little difficulty to decide whether the original taking was lawful; and one of the limitations thus placed on the old rule was that if at the time of the finding the finder knew who the owner of the lost article was, or from a mark upon it, the place where it was found, or other circumstances, he knew that the owner could be found, and upon picking it up immediately determined nevertheless to convert it to his own use and deprive the owner of it, that is larceny. One bought an old secretary at auction and found a purse and coins in a secret drawer and converted them to his own use. For this he was arrested, and later he brought an action for false imprisonment against the prosecutor and officer. In this latter action the court held that if he bought the secretary only and not the contents, the delivery of the secretary to him was not a delivery of the contents so as to give a lawful possession of the purse and money; the vendor had no intention to deliver it nor the vendee to receive it; both were ignorant of its existence; and when the plaintiff discovered the secret drawer and contents he was in the position of a finder of lost goods knowing (6) Queen v. Flowers, L. R. 16 Q. B. D. 643. how to find the owner, and if he then converted them to his own use it was common law larceny (7). On appeal from the conviction of one who found a banknote on the highway, not knowing who was the owner, and with nothing on it to indicate the fact, but who intended to and did appropriate it the moment he saw it, the court said among other things: "The rule of law on this subject seems to be that if a man find goods that have actually been lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny. But if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. It would probably be presumed that the taker would examine the chattel as an honest man ought to do, at the time of taking it, and if he did not restore it to the owner, the jury might conclude that he took it, when he took complete possession of it, animo furandi. The mere taking it up to look at it would not be a taking possession of the chattel. To apply these rules to the present case. The first taking did not amount to a larceny, because the note was really lost, and there was no mark on it or other circumstance to indicate then who was the owner, so that he might be found, nor any evidence to rebut the presumption that would arise from the finding of the note as proved that he believed the owner could not be found, and therefore the original taking was not felonious; and if (7) Merry v. Green, 7 M. & W. 623. the prisoner had changed the note or otherwise disposed of it before notice of the title of the real owner, he clearly would not have been punishable; but after the prisoner was in possession of the note, the owner became known to him, and he then appropriated it animo furandi, and the point to be decided is whether there was a felony. Upon this question we have felt considerable doubt. If he had taken the chattel innocently and afterwards appropriated it without knowledge of the ownership, it would not have been larceny; nor would it, we think, if he had done so knowing who was the owner, for he had the lawful possession in both cases, and the conversion would not have been a trespass in either. But here the original taking was not innocent in one sense, and the question is, does that make a difference? We think not" (8). If the finder knew who the owner of the chattel was when he found it, and then picked it up to take it to the owner, it has been held that no subsequently formed intention to convert it to his own use could make the conversion larceny; for it may be that this thought first came to his mind when he was miles away from the chattel, and an honest possession cannot be turned into a crime by such a change of mind (9). An article which has merely been mislaid and forgotten, like a purse on a shop counter, is not lost, and one who converts it to his own use is guilty of larceny (10). (8) Queen v. Thurborn, 1 Denison C. C. 387. (9) Queen v. Preston, 5 Cox Cr. Cases 390. (10) Queen v. West, Dearsley Cr. Cases 402. § 127. Trespass by bailee in breaking packages. A strange doctrine has been established concerning bailees. It arose from a decision in England in the time of Edw. IV., on a question referred to the judges by the chancellor, which has ever since been known as the Carrier's case (11). It appears that one who had agreed to carry certain bales and other things to Southampton, took them to another place, opened the bales, and converted the contents to his own use. This would seem to be clearly within the rule that where one gets goods lawfully he cannot be guilty of larceny if he converts them to his own use; for one cannot be guilty of a trespass in taking what he has in his own possession, and without a trespass in the taking there could be no larceny. At first the judges seemed inclined to take this view of the case; but the chancellor seemed desirous of making the case turn on its moral character; and perhaps the king wanted the culprit punished. At all events a decision was finally reached, which many have thought to have been a compromise by the judges, to accede to the desire of the king and chancellor without overthrowing any more of the old law than need be; and the decision was that the carrier had possession of the bales, but that he did not have possession of the contents of the bales, which the sender might not want him to know of; that when he turned aside and opened the bales, he thereby determined the bailment and committed a trespass which made the conversion larceny. It may seem strange that a carrier should be guilty of a crime if he break the package and take a part only of the contents, whereas he would be guilty of (11) Yearbook, 13 Edw. IV, 9, pl. 5. a civil breach of trust only if he should appropriate the whole package without opening it. While this decision. seems to be a plain contradiction of the general doctrine that one cannot take feloniously what he already has rightfully, it has not only been adhered to since, but even extended; and now it is held that if a bailee converts to his own use part of the goods entrusted to him he is guilty of larceny. If a miller is given a grist to grind and takes more of it than his toll he is guilty of larceny; if several parcels of goods are consigned to a carrier in one bill, and he takes one of the parcels to his own use, this is such a breaking of bulk as constitutes larceny, though the breaking of the package was only the imaginary package created by putting them in the same bill. § 128. Fraudulent acquiring amounting to a trespass. The wrong in the taking may be either a trespass, or a fraud inducing the owner to give the possession; in either case it is larceny. If there is an actual trespass, which is the ordinary case, or if there be a constructive trespass, as in the cases discussed in the foregoing paragraphs, it is common law larceny. It is also common law larceny though there was no trespass in the taking, provided the possession was acquired by a fraud. In this respect a vital distinction is taken between a fraud which induces the owner to part with possession only and one which induces him to part with his title also. If the possession only is obtained by the fraud it is larceny; but if the owner intended to part with both possession and title, the fraud which induced that intention and the consequent taking of possession |