Page images
PDF
EPUB

Indorsement

son,

value of the goods or other valuable thing mentioned in the war. rant or order; and each of the several documents herein-before enumerated, shall throughout this act be deemed for every purpose to be included under and denoted by the words “ valuable

security." A bill payable At a conference of the judges in Easter term 1781, Nares J. to order, but

mentioned, that a person was convicted before him for privately not indorsed.

stealing from the person of another a pocket-book containing a note of the Bristol bank, signed by some one on behalf of him. self and partners, promising to pay to the prosecutor or order a sum of money, but which the prosecutor had not indorsed. All the judges were of opinion that this was a capital felony within the stat. 2 G. 2. c. 25. (now repealed), which makes the stealing promissory notes, &c. felony, with the same consequences as goods of the like purported value; that this was a promissory note, and its not being indorsed was immaterial. 2 Easi's P. C. 598.

So, an indictment for stealing a bill of exchange upon the same made after the statute was sustained by proof that when found in the prisoner's taking. possession there, it had an indorsement (made afterwards) and not

jaid in the indictment; for the addition of a third name made no difference; it being the same bill that was originally stolen. Austin

and King's case, Leicester Lent Ass, 1783, 2 East's P. C. 602. Exchequer bill In an indictment on 15 G. 2. c. 13., relating to embezzlements by signed by un- servants of the Bank of England, the prisoner was charged with authorised per- stealing certain bills called exchequer bills: and as it appeared that

the person who signed them on the part of government was not legally authorised to do so, the court held they were not good ex. chequer bills, and that the prisoner could not be convicted. R. v.

Aslett, 2 Leach, 954. 2 Russ. 145. Country bank

Where the notes of a country bank had been paid by their notes paid, but correspondent bank in London, but were reissuable, and being about to be re

stolen while they were in transitu for the purpose of being reissued, issued, subjects of larceny at

held, that they were subjects of larceny at common law (though common law. . they were extinct as promissory notes) as valuable property of the

country bankers, under the description of pieces of paper each respectively stamped with a stamp, &c. R. v. Clarke, E. T. 1810,

C. C. R. 181. Chattel valu- And in the above case the principle was laid down, that if a able to the chattel be valuable to the possessor, though not saleable, and of no owner only.

value to any one besides, it may still be the subject of larceny.

2 Russ. 147. n (t.) Paid notes that

Prisoner was indicted for the receiving of stolen notes of a are re-issuable may be called

country bank which had been paid by a London bank, who were goods and chat- their agents, and were stolen while in the course of being sent

down again to the country bankers for the purpose of being reissued; they were described in some counts as pieces of paper of great value, being stamped, &c. of the goods and chattels of J. W., and in others as valuable securities, of the property of J. W.: on case reserved, some of the judges doubted whether they could properly be called valuable securities; but, if not, they all thought they were goods and chattels; and that the conviction

was right. M. T. 1829, R. v. Vyse, 1 R. & M. 218. Country bank A case is cited on which it was ruled that it was not felony notes, not in circulation, not

within 2 G. 2. c. 25. (now repealed) to steal bankers' notes com. within 2 G. 2. pletely executed, but which had never been put int o circulation;

tels.

notes.

om

was

on the ground that no money was due upon them. Anon. cor. as promissory Ld. Ellenb. C. J., Carlisle, 1802, 2 Leach, 1061. n. (6) 2 Russ. notes. 147.

In a prosecution on 7 G. 3. c. 50., relating to larcenies and em- Paid country bezzlements in the post office, it appeared that country bank notes bank notes, having been paid by the bankers in London, were purloined at the within 7 G. 3.

as promissory post office, while on their passage back to the country bank for the purpose of being reissued: it was objected, that being “paid notes" they did not fall within the act, having no longer the value or force of promissory notes. A majority, however, of the judges were of opinion, that the notes fell within the description of promissory notes mentioned in the act; that they were not cancelled, and would be available in the hands of holders for valuable consideration against the makers. Tr. T. 1812, R. v. Ranson, C. C. R. 232.

But where one was compelled by duress to make a promissory Person com note on stamped paper, before prepared by the prisoner, who was pelled by duress

to make a propresent during the time, and withdrew the note as soon as it

missory note. made, this was holden not to be a felony within the statute 2 G. 2. (now repealed); for, according to some of the judges, that is confined to available securities in the hands of the party robbed, which this was not, being of r'o value while in the hands of the maker himself

. Yet, even if it were, according to others, this was never in his possession ; his signature having been procured by duress to a paper which during the whole continuing transaction was in the possession of the prisoner. Phipoe's case, 2 Leach, 673. 2 East's P. C. 599.

The prisoner was indicted under 2 G. 2. (now repealed) for hav. Stealing bank ing stolen a bank post bill; but it was not set out, and it appeared post bill, under that no bank post bills were in use at the time of the passing of 2 G. 2. 2 G. 2. Held, that the court could not take notice that this instrument fell within any of the descriptions mentioned in the statute ; that when the statute passed it was not properly a bill but a promissory note, and that the conviction of the prisoner was

Tr. T. 1822, R. v. Chard, C. C. R. 488. Though the note charged to be stolen need not be set out, yet Indictment, the indictment must follow the description given in the statute; description of where, therefore, in a case under 2 G. 2. (now repealed), it was stated to be “ a note commonly called a bank note,” it was held bad. R. v. Craven, C. C. R. 14.

An indictment for larceny of a promissory note may describe it Note described generally, as (ex. gr.) “ One promissory note for the payment of generally. one guinea," without setting forth the note; and if the value of the thing stolen in the dwelling-house (including the note) be 40s., clergy is ousted. Milne's case, Worcester Sum. Ass. 1800, 2 East's P. C. 602. 3 B. & P. 145.

thereof wrong.

note,

Special Property or possessioni. Any one who has a special property in goods stolen may lay Property may them to be his in an indictment for larceny, as a bailee, pawnee, in absolute or lessee for years, carrier, or the like; a fortiori, they may be laid to

special owner. be the property of the respective owners (a), and the indictment is good either way. 2 East's P. C. 652. But if it appeared in evi

(a) But see infra, as to a lessor, next page.

For per

case.

dence, that the party whose goods they are laid to be, had neither
the property nor the possession (and for this purpose the posses-
sion of a feme covert or servant is, generally speaking, the possession
of the husband or master), the prisoner ought to be acquitted on
that indictment. The same rule prevails in the case of goods
belonging to a guest (Jane Todd's case, O. B. July, 1711, 2 East's
P. C. 653.) stolen at an inn; they may be laid to be the property
either of the innkeeper or the guest. So goods stolen from a
washerwoman (Packer's case, 0. B. April, 1714, 2 East's P. C.
653.) who takes in the linen of other persons to wash, may be laid
to be her goods : by Parker C. J., Tracy and Bury Js.
sons of this description have a possessory property, and are answer-
able to their employers. So an agister has a possession and

property against all but the right owner. Woodward's

In John Woodward's case, Leicester Sum. Ass. 1796, 2 East's

P. C. 653., who was indicted for maliciously and feloniously killProperty laid

ing two sheep the property of W. Dalton, it was proved that the in agister of catele,

prosecutor had only taken the sheep in to agist for another. Whereupon it was objected, that the property was not well laid in the agister; and upon reference to the judges in M. T. 1796, one of them doubted at first, because an agister of cattle is not liable for them at all events, like an innkeeper for the goods of his guest. The majority, however, thought the conviction right. But the matter stood over till H. T. 1797, when, upon reference to 4 Inst

. 293., shewing that an agister has a possession, and 2 Roll. Abr. 551., that he may maintain trespass against any who takes the

beasts; all the judges agreed that the conviction was right. Special pro

In a prosecution for stealing a window glass and hammercloth perty. Owner of from a carriage, the prosecutor in whom the property was laid, was yard in which

a coachmaster, who had the care of the carriage, which stood in a a carriage

coach-house in his yard, when the articles were stolen, and an ob. jection that the property should have been laid in the owner of the carriage was overruled. 0. B. 1785, Taylor's case, 1 Leach, 350.

2 Russ. 157. S. P.

In another case, the prisoner was convicted of stealing a chariot glass from a lady's chariot, which had been placed in a coach-yard at Chelsea while the owner was at Runelagh, and the property was laid in the master of the yard. Statham's case, O. B. 1773, 1 Leach,

357. 2 Russ. 157. Stealing goods In the case of stealing from ready-furnished lodgings, the prolet with lodg- perty must be laid in the lodger and not in the original owners. ings.

Prisoner was indicted for stealing in the house of J. A. goods the property of J. A.; it appeared that J. A. occupied only part of the house, and let out the rest in lodgings, and that the goods stolen were part of the furniture let to a lodger. The judges held the conviction wrong ; for that the property ought to have been laid in the lodger, for that J. A. was not entitled to possession, and could not have maintained trespass. R. v. Belstead, C. C. R. 411.

acc. R. v. Brun wick, 1 R. & M. 26. Principle in re- In 2 East's P. C. c. 16. $ 90. p. 652., it is stated that “ any one speçt of goods who has a special property in goods stolen may lay them to be his that are in the

in an appeal or indictment for larceny, as a bailee, pawnee, lessee possession of a lessee;

for years, carrier, or the like; a fortiori, they may be laid to be the property of the respective owners, and the indictment is good

stood.

either way."

The like principle is laid down in 2 Russ. 156. : “ There is no doubt that there may be a sufficient ownership of the goods stolen in a person who has only a special property in them; and that they may be laid as the goods and chattels of such persons in tlie indictment. A lessee for years, a bailee, a pawnee, a carrier, and the like, have such special property; and the indictment will be good if it lay the property of the goods either in the real owners, or in the persons having only such special property in them.”

The law so declared in two text-books of standard authority is unquestionably not reconcileable, in all its parts, with the decisions cited above in R. v. Belstead and R. v. Brunswick. The following clear and succinct observations, which have been allowed to appear in this work, will, it is conceived, be deemed valuable in pointing out the true legal distinctions which govern cases of this nature : “ If the owner parts with the right of possession for a time, so as They must be to be deprived of the legal power to resume the possession during laid as the prothat time, and the goods are stolen during that time, they cannot perty of the be described as the goods of such owner; but if the owner parts

lessee. with nothing but the actual possession, and has a right to resume the possession when he thinks fit, the goods may be described either as his goods, or his bailee's. In the latter case he does not for an instant part with the general right of possession ; he confers a qualified right only, which he may put an end to when he will; in the former case, he parts with the whole right of possession for the time. The bailee for safe custody, the carrier, the tailor, the pawnee, have never more than a partial right; the owner may resume the goods, on satisfying their lien, when he will. The agister is in the same situation, and the decision as to him, in R. v. Wood. ward, only is, that the cattle may be described as his, not that they rrust. The ground of decision in R. v. Belstead and R. v. Brunswick was, that the owner had parted with the right of possession for the time, he had nothing but a reversionary interest, and could not have brought trespass.” MS. observations of Bayley B.

Where goods taken under a fi. fa. are stolen, they may be laid Goods taken as the goods of the party against whom the writ issued; for though under fi. fa. they are in custodia legis, the original owner continues to have a ownership cone property in them until

they are sold; and the sheriff is accountable tinues in perto him for the goods so seized.

A sheriff's officer seized goods whom writ under a fi. fa. against J. S., and afterwards stole part of them; the issued. indictment described them as the goods of J. S., and it was objected, that they ought to have been described as the goods of the sheriff; but the point being saved, the judges held that, notwithstanding the seizure, the general property lay in J. S., as the loss would fall upon him if they did not go to liquidate the debt, and that the debt continued. M. T. 1822, R. v. Eastall, 2 Russ. 158.

But if it appear in evidence that the party, whose goods they Servant or feme are laid to be, had neither the property nor the possession, as is covert. usually the case of a feme coveri or servant, who have in their custody the goods of the husband or master, the prisoner ought to be acquitted. 2 East's P. C. c. 16. § 90. pp. 652, 653.

Rex v. Thomas Hutchinson and Joseph Boffey, C. C. R. 412. The goods in a The prisoners were tried before Richardson J., at Stafford Lent dissenting chaAss. 1820. Hutchinson was convicted of stealing, and Boffey of peolevested in receiving, scienter, &c., a quantity of brass, which in the first count be described as was laid to be the property of Thomas Penn, and 20 other persons the goods of a

and no other

any other.

servant.

man.

servant, who

therein named, and in the second count, to be the property of has merely the Samuel Evans. The property stolen formed the brass chandelier care of the

and sconces (not fixed to the freehold) of a chapel of protestant chapel and

dissenters, and the persons named in the first count were the things in it, to clean and keep

trustees of the chapel ; but the prosecutors were not prepared to in order, though prove the trust deed whereby they were appointed, nor that all of he has the key them had acted in the trust or management, some of them residing of the chapel, at a distance. Samuel Evans, in whom the property was laid in

the second count, stated that he was servant to the managers, and person, but the minister, has

had a salary of 51. a-year. That he for many years had had the care of the chapel, and of the things in it to clean and keep in order. That he kept the keys, and that no person except himself had a key of the chapel, but the minister had a key of the vestry, through which he could enter the chapel. The trustees had no key. The witness received his orders sometimes from the trustees and sometimes from the minister. No one resided in the chapel. On case, the judges thought the property could not be considered as Evans's, and therefore that the conviction was wrong.

E. T. 1820. Case of special Yet there are some cases where a kind of special property has property in a

been considered to exist in the servant ; as where the master dis. guised himself and robbed his servant, with intent to charge the

hundred. 2 East's P. C. c. 16. § 5. p. 558. and ♡ 90. p. 654. Property laid

Rex v. Deakin and Smith, O. B. April 1800, cor. Grose J. in stage coach- 2 Leach, 875. 2 East's P. C. 653. James Deakin and William

Smith were indicted for stealing spoons and other articles, laid in the second count (on which alone they were convicted), to be the property of one Markham. The goods had been sent by a tradesman in London to Mr. Broderick at Spalding, by the Spalding coach, and were stolen by the prisoners at Pondersend, out of the boot behind the coach. The question was, whether they were properly laid to be the property of Markham, who was not the owner but only the driver of the coach, there being no contract between him and the proprietors, that he should be liable for any thing stolen, and it not appearing that he had been guilty of any laches. The case being referred to the judges, it stood over for some time, but finally the conviction was holden right, the coachman having the possession and a special property in the goods

committed to his charge. Property laid Property may be laid as belonging to the real owner, though it in owner,

never was actually in his possession, but in the possession of his though in pos- agent only. Turner, as agent for Nash, sent up by his direction session of an

some notes to Morgan, another of Nash's agents ; and Morgan, as agent.

agent to Nash, sent them by the coach to one Walker in Worcestershire, to pay workmen there ; and the prisoner stole them from the coach. The indictment described them as the property of Nash

, and after conviction all the judges were of opinion that the property

was well laid. R. v. Remnant, C. C. R. 136. There must be But aliter, where the person, in whom the property is laid, has either actual or had neither the actual nor constructive possession of it.

Thus, where Paul had ordered a hat of Beer, and the prisoner possession.

sent for it in Paul's name and got it, and was indicted for stealing Paul's hat, the judges held that the property could not be said to be in Paul. E. T. 1807, R. v. Adams, C. C. R. 225. See antè.

constructive

[ocr errors]
« PreviousContinue »