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being ignorant of their owner, and bona fide supposing that they had been lost or abandoned, or even that they were his own by right of the finding, he will not be guilty of larceny (g), unless they are in some place where the owner might be presumed to have deposited them in which case, or if the true owner is known to him (k), or from some name, mark, or circumstance may be reasonably expected to be discovered (i), or if any artifice is employed to conceal them from his search, an original animus furandi is to be inferred (k). If the taking away was with intent to steal, the restoring because a reward is offered does not prevent the taking from being larcenous (1). So a tailor concealing money found in clothes sent him to repair is guilty of larceny (m). If the sheep of A. stray into the flock of B., and B., not knowing it, drive them home along with his own flock, and shear them, this is no felony; but it would be otherwise if he did any act for the purpose of concealing them, for that would indicate his knowledge of their being the sheep of another (n).

Again, the driver of a hackney carriage taking a parcel left in it, and unpacking it with a view to appropriate its contents, is guilty of larceny, if he knows the owner, or took up or set him down at any place where he might have inquired for him (0).

Distinction between Larceny and Swindling, or Breach of Trust, in

(g) In Reg. v. Peters, C. & Kir. 245, Rolfe, B., puts the case of an apple lost and found, as distinguished from 5007. in like circumstances. See 1 Hawk. Ch. 33, s. 2; Reg. v. Reed, 1 C. & Mar. 306.

(h) Thus where a carpenter to whom plaintiff sent a bureau to be mended, and by unnecessarily breaking it, found money secreted in it, and kept it, it was held to be larceny. Cartwright v. Green, 8 Vesey, 405; 2 Leach, 952; see Merry v. Green, 7 M. & W. 623.

(i) As by a mark on the property by which the owner may be traced, if the finder takes no step to restore it, and converts it to his own use, R. v. James, 2 Russ. C. & M. 102; see Reg. v. Kerr, 8 C. & P. 176.

(k) 1 Hawk. c. 33, s. 2. The old rule was "if one lose his goods and another finds them, though he convert them animo furandi to his own use, it is no larceny, for the first taking was lawful," 3 Inst. 108, see 7 M. & W. 631. And this holds in a case of pure finding, as of a purse in a road, there being no mark

by which the owner might be known, Reg. v. Mole, C. & K. 417. A coat which had been left on a stone seat by a roadside was soon after found in the prisoner's possession; Bayley, B., told the jury, that in order to find the prisoner guilty, they must be of opinion that at the time the prisoner took the coat, he took it animo furandi.-That he might have taken it with that intent, or, on the contrary, very honestly intending to restore it to the owner if inquired after. Milburne's case, 1 Lewin's Rep. 251. See 1 Hale, 506; R. v. Pope, 6 C. & P. 346.

(1) Per Rolfe, B., Reg. v. Peters, C. & Kir. 245, but see R. v. Wynne, 2 East's P. C. 664; 1 Leach 414.

(m) R. v. Lamb, 2 East, P. C. 664, c. 16, s. 99; 1 Leach, 415, R. v. Sear; Cartwright v. Green, supra.

(n) 1 Hale, 506.

(0) R. v. Wynne, 2 East, P. C. 664; 1 Leach, 413, cited 7 M. & W. 632; the case of a coachman opening a box, intending to be honest, but afterwards altering his mind: and see Reg. v. Jenkins (Stephen), 9 C. & P. 28, post.

Cases of Sale, Hiring, Loan, Bailment on Trial, Deposit.]-There are two classes of cases under this head in which the question of larceny, or no larceny, may arise. First, where the owner or lawful possessor has been induced voluntarily to part with the actual custody of property to a wrong doer; in which case the offence of depriving him of it altogether may be, according to circumstances, either larceny or false pretence: Second, where property has been delivered to a bailee for a special purpose, who afterwards appropriates it to his own use, in which case the offence may be either larceny, or breach of trust made punishable as embezzlement by statute.

On the first class of cases, the principal question always is, whether the party from whose lawful custody the goods were obtained, was induced to relinquish the property in the goods, or merely the actual possession of them. If he parted with the property, or even the possession of the goods, under representations however fraudulent, a conversion by the party defrauding him is not larceny, unless when he got the possession he intended to steal them (o); but if he merely relinquish the custody or physical possession of the goods, the party first contriving to obtain such possession, and then converting them to his own use, is guilty of that offence, as they still remain, constructively, in the possession of the true owner (o), even though he may have laid a trap by marking money and directing his servant to part with it to the criminal in the way suggested to him (p). Again, if a man, designing to obtain a horse without paying its price, bargains with the owner for ready money, upon which the owner improvidently delivers possession of the animal, expecting immediate payment, and the pretended purchaser immediately mounts the horse and rides away, without paying any thing, this is no felony, because the owner delivered the horse in performance of his part of the contract, expecting a correspondent performance from the vendee, and the property passed with the transfer (q). But there can be no doubt that, if instead of delivering the horse on the completion of the bargain, the owner had allowed the party to ride him by way of trial, and he had immediately ridden away, in pursuance of an intention to defraud, the property would have remained unchanged, and the felony have been complete. So if a horse be hired

(0) See Reg. v. Jones, 1 C. & Mar. 611, 612, Cresswell, J.

(p) Reg. v. Williams, C. & Kir. 195. (g) R. v. Harvey, 1 Leach, 521. The custom at a fair was to mark beasts when sold, but not to deliver them till paid for. Some beasts were sold there to the prisoner, who refused to mark them, but said he would pay for them at

a place near. The prosecutor never consented to their being taken away without payment, but while he was gone to the place fixed, they were taken away by prisoner. Indictment for larceny held right, as the jury found that the prisoner never at any time meant to pay for the beasts. R. v. Gilbert, 1 Mood. C. C. 185.

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for the day by a party intending at the time of hiring to appropriate it, and is accordingly taken away and sold, a felony will be committed, because the owner did not intend to relinquish his property in the horse, but only the temporary possession (r). So if a carriage be hired for an indefinite time, but with a then present intent to appropriate it, and it is so appropriated, the fraudulent hirer will be guilty of larceny (s). The case of selling a horse hired for a particular purpose, after that purpose is accomplished, seems better arranged, post, p. 245. The intent to steal and defraud, existing at the time (t) when the possession was obtained, is common to both conditions-without this there is neither larceny nor indictable false pretence-but a mere failure to perform a contract, which is the subject of a civil action.

The distinction in these cases of selling, hiring, or lending on trial, is sufficiently obvious; there are many rendered more complicated by the machinery employed to effectuate the fraud; but they will all be determined by the careful application of the same principle. Thus, where a shopkeeper, having agreed to sell goods for ready money sent them with a bill of parcels by his servant, who delivered them, and received from the vendee, instead of money, two bills of exchange which proved to be worthless, his fraud, although contemplated at the time of the purchase, was holden to be no felony, as the tradesman had parted with the property in the goods, by the act of his servant who delivered them (u). But where goods were brought by a tradesman to the house of a party on his request that he might inspect them, and being left there while the owner went to obtain others for the pretended customer to choose from, were taken away, in pursuance of an original intention to obtain tortious possession of them, this was holden larceny (x). So if a party be induced to deposit money in the hands of one of several confederates, on a pretended wager, and they carry it away, under colour that the depositor has lost, they will be guilty of larceny, because by depositing the money he did not part with the property in it: but if he had originally paid it, as on the loss of the wager, however fraudulent the conduct of the parties might be, or if the prosecutor parted with his money to buy the prisoner's share of a dropped ring, intending to part with it for ever, and not with its possession only, they could not be indicted for stealing it (y). There

(r) R. v. Pear, 1 Leach, 253; R. v. Patch, 1 Leach, 238; R. v. Pratt, 1 Moo. C. C. 250.

(8) R. v. Semple, 1 Leach, 420. (t) The law looks to the beginnings of acts, Plowden's Comm. 260, 474 a, ante, p. 240, n.

(u) R. v. Parker, 2 East's P. C. c. 16. (x) R.v. Sharpless, 2 East, P. C. c.16. (y) R. v. Robson and others, Russ. & Ry. 413; R. v. Wilson, et al. 8 C. & P. 111. But the latter were afterwards convicted of conspiracy to defraud, before Coleridge, J., Stafford Ass.

are numerous authorities on this distinction, the recapitulation of which would exceed the limits of this work, and would tend to little practical benefits; as each case stands on its own peculiar circumstances, which are not likely to recur with entire similitude; and, therefore, recourse must almost always be had to the principle which we have attempted to illustrate.

On the second class of cases, where there has been an original delivery or bailment of goods, as to servants or others intrusted with care of goods: the offence of appropriating them will be larceny or not, as these questions may be answered

First, whether the possession was, in point of law, parted with by the owner?

And, secondly, if it was, whether the bailment was determined before the act charged as a felonious taking?

Where Possession was parted with by the Owner, or remains in him, and herein of Servants, Drovers, &c. entrusted with property.]— Where goods are delivered by their owner to a person who has merely the care and oversight of them, the possession in law remains in the owner. Thus, if a butler, a shepherd, a carter, a porter, employed to deliver goods, or even a person employed for the special purpose of driving cattle to a fair without authority to dispose of them, sells, or converts the plate, goods, or animals with which he is intrusted, it is larceny; for he had only the custody, without any right to the session (z). The principle of the numerous cases in which this doctrine

(z) 1 Hale, 506; R. v. M'Namee, 1 Mood. C. C. R. 368; R. v. Bass, 2 East, P. C. 566. See Reg. v. Sheppard, 9 C. & P. 120, case of a horse ridden in a fair by a servant having no authority to sell, but, in fact, exchanging for another with one who had offered to buy: held larceny in the latter. In Reg. v. Wm. Goodbody, 8 C. & P. 665, (Central Criminal Court), a driver was employed by a grazier in the country to drive eight oxen to London :-his instructions were, that if he could sell them on the road he might, and was to take those he did not so sell, to a particular salesman in Smithfield-market, who was to sell them for the grazier. The drover sold two on the road, and instead of taking the other six to the salesman, drove them himself to Smithfield-market -sold them there, and received the

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Held, 1st, no felonious taking in first instance, as prosecutor had given prisoner a legal ownership for a particular purpose; and

2nd. There being no proof that prisoner was servant of prosecutor in the first instance-held that he must be acquitted. And per Parke, B. semb. a man cannot be servant of several at one time, notwithstanding R. v. Carr, R. & Ry. 198, where it was held otherwise on indictment for embezzlement, by a clerk who travelled for various houses. For the same reason, where a prosecutor delivered his horse to the prisoner to agist, who agisted it a week, and then sold it, the judges held that he could not be convicted of larceny, as the prosecutor had parted with the posses

has been acted on is, that the offenders had the custody of the goods merely in the capacity of servants, or in situations analogous to it, and had not therefore the legal possession (a). The reverse is the case where a servant receives into his possession for his master's use, money, or goods, of which the master has never had possession, and converts them to his own use. There he is not guilty of larceny at common law, for want of actual possession by the master at any time of the thing converted (b).

So where goods are delivered by the owner to a party to be merely used by him; as where a piece of plate is set before a guest at an inn, or sheets are put on his bed, the host has not parted with the possession, and the guest who steals them is guilty of larceny (c).

Another instance of the legal possession of goods remaining in the owner, though in point of fact they are out of his hands, is where he is present all the time they are in another's possession, and never intended to relinquish the dominion over them by delivering them over; e. g. if he accompany a man to whom he has given them to carry, and the man run away with them, he is guilty of larceny (d). An article may be said to be in a party's possession if in his presence, and intended to be kept in his possession by such presence (e).

Whether Bailment determined before felonious taking:—and herein of breaking Bulk, Carriers, &c.]—On the other question, whether the bailment was determined before the act charged as a felonious taking, it is clear that unless such bailment or lawful custody was first determined, the appropriation of goods is not, at common law, larcenous. Thus, if a carrier receives goods to convey, a tailor cloth to make

sion. R. v. Charles Smith, 1 Mood. C. C. 473.

In Reg. v. Jackson, 2 Mood. C. C. 32, a person was hired to drive a heifer in two days to a place named, at 28. a day. He received 28. in hand, sold the heifer, and absconded with the money. This was held larceny, the prisoner's possession being that of a servant only, though the intent to sell was not conceived till after he had taken possession of the cattle.

(a) R. v. Eastall, 2 Russ. C. & M. 197. See Reg. v. Harvey, 9 C. & P. 353.

(b) 2 East, P. C. 568, and cases collected, 8th ed. Arch. Crim. Pl. 190.

(c) 1 Hale, 506, 508; 1 Hawk. c. 33, s. 6. See as to this distinction, R. v.

Palmer, 2 Leach, 680, in the case of lodgers stealing furniture from furnished lodgings, now provided against by 7 & 8 G. IV. c. 29, s. 45.

(d) Arch. Crim. Pl. 8th ed. 191.

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(e) Per Parke, B. Muspratt v. Gregory, Tyr. & Gr. 1095. See ante, p. 241. "If the true man had cast off his surcote, or other upper garment, and the same lying in his presence, a thief assault him, &c. and take the surcote, this is robbery :for that which is taken in his presence, is in law taken from his person; and so it is of the horse of a true man which stands by him," &c. 3 Co. Inst. 69. See 2 East's P. C. 683; 1 Haw. P. C. c. 63, s. 2; R. v. Thomas, Carrington's Suppl. 295.

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