otherwise the possession of them than by the bare receipt of his servant's upon the delivery of another for his master's use, although as against third persons this is in law a receipt of the goods by the master, yet, in respect of the servant himself, this will not support a charge of larceny, because, as to him, there was no tortious taking in the first instance, and therefore no trespass. Therefore, if there had been here a quantity of coals delivered to the prisoner for the prosecutor, and the prisoner, having remained in the personal possession of them without anything having been done to determine his original exclusive possession, had converted them animo furandi, he would have been guilty of embezzlement, not of larceny. But, if the servant has done anything which determines his original exclusive possession of the goods, so that the master thereby comes constructively into possession, and the servant afterwards converts them animo furandi, he is guilty of larceny, and not merely of a breach of trust at Common Law, or of embezzlement under the Statute." The reason being, that in the latter case there is a tortious and felonious "taking" within the meaning of that word, as used in the definition of larceny. The constructive possession of the coals by the prosecutor, in the case above cited, had commenced at the moment they were placed in his cart, so that there was a subsequent taking of the coals by the prisoner, whose intention was, beyond all question, felonious.

A watchmaker, induced by a fraudulent letter from the prisoner, sent a customer's watch, which he had had to regulate, by post, to a place named in the letter, addressed to the true owner; the prisoner, representing himself to be the true owner, went to the place and obtained the watch from the postmaster. It was held to be larceny, as the special property of the watchmaker, (if he had had any), had ceased when he had delivered the watch to the postmaster, and the postmaster had no special property in it, but was only a servant of the true owner, from whose possession, therefore, it was taken. (R. v. Kay, 26 L. J. M. C., 119).

Again, there will not be a taking sufficient to constitute larceny where the property alleged to have been stolen came into the hands of the prisoner rightfully in the first instance, and without an animus furandi, although it was afterwards wrongfully appropriated by him. If A. lends B. a horse for a particular journey, and B., having received the horse bonâ fide, afterwards rides away with it, he shall not be guilty of larceny; though, if the owner of the horse deliver him to a servant or agent, with orders that the latter shall take the horse to a distant place and there leave him, the possession would be deemed, constructively, to remain in the owner, and the agent would be guilty of theft in selling the horse while in charge of it, contrary to orders. (4th Cr. L. R., pp. 54, 55). And where the chattel was originally received by the accused, animo furandi, or where a constructive possession of goods confided to the prisoner's custody remained at the time of the conversion in their owner, the rule last stated does not apply. (R. v. Hock, 1 Mood. C. C., 87; R. v. Harvey, 9 C. & P., 353).

If, however, goods are sold on credit and delivered, no subsequent dealing with them by the vendee could amount to larceny. If A. deliver to B. a watch to be regulated or repaired, or a horse to be agisted, and B. sell it, this is not larceny, because these goods were delivered voluntarily, and not taken animo furandi. (R. v. Thristle, 1 Den. C. C., 502; R. v. Smith,

1 Mood. C. C., 473; R. v. Pratt, 1 Dears., 360); and see R. v. Cohen, 2 Den., 249, where the goods were parted with on the express understanding that they were to be paid for at the time, and were taken by the prisoner animo furandi.

In Pratt's case, (1 Dears., 360), the prisoner, having become involved in pecuniary difficulties, had assigned his goods by deed to trustees for the benefit of his creditors. The trustees did not take actual manual possession under the assignment, but the prisoner remained in possession as before, and, whilst thus in possession, he removed some of the goods, intending to deprive his creditors of them. The jury here expressly found, that the prisoner had not the care and custody of the goods as the agent of the trustees, and the Court of Criminal Appeal held, that, upon this finding, the prisoner, having been in lawful possession of the goods, could not be convicted of larceny.

Goods obtained in pursuance of a Contract].-In practice, a difficulty is sometimes experienced in determining whether goods alleged to have been stolen were not, in fact, obtained in pursuance of a contract between the prisoner and the prosecutor; here care is necessary in scrutinising the facts adduced in evidence, and in ascertaining whether the alleged contract was not a mere pretence or fraud upon the prosecutor,-part of a scheme for feloniously getting possession of his property, so as to render the intention which actuated the prisoner in doing so felonious. For instance, where the prisoner, a servant of the prosecutor, by a false statement, induced a fellow-servant who was charged with the custody of certain wheat belonging to the prosecutor, to allow him to remove some portion of it, which he subsequently appropriated to his own use. It was held to be larceny, because the artifice whereby the goods were in fact obtained, negatived the idea of bailment, and possession was obtained with intent, permanently, to convert the goods to the taker's own use. (R. v. Robins, 1 Dears., 418).

It is, indeed, laid down, that all felony includes trespass, and that, if the party accused of stealing be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away. (Hawk., P. C., Bk. I., c. 19, s. 1). And it is further true that, to support an indictment of larceny, the prosecutor must have such possession as would entitle him to bring trespass. (Parke, B., in R. v. Stear, 1 Den. C. C., 355).

Hence, if goods are bailed, and bailee convert them animo furandi, this would not be larceny, because, being lawfully in possession of the chattel, the taking it would not constitute either a trespass or a felony.

According to this rule, if property be delivered to bailee, and he do any wrong inconsistent with the contract, as by breaking open the box containing the property, he thereby puts an end to the contract, and the property in the chattel revests in its proprietor; the property being then revested, the carrier is guilty of larceny at Common Law, in taking any part of such property, as if he had, independently of any contract, taken it animo furandi from its owner's possession. (Fenn v. Bittleston, 7 Ex., 159). But now, by the recent Statute, (22 Vic., No. 9), it is enacted, that if any person being a bailer of goods or chattels, shall, with intent to defraud, convert such goods or chattels or any part thereof to his own use, or the use of any person other than the owner thereof, he shall be guilty of larceny.

The taking must be animo furandi].-Further, the taking must be animo furandi, and with intent to deprive the owner wholly of his property in the thing taken. "If," says Alderson, B., "a servant take a horse out of his master's stable, and turn it into the road, with intent to get a reward next day, by bringing it back to his master, such an offence is not larceny," because the facts supposed would not evidence a felonious intent, i.e., an intent to deprive the owner wholly of his property in the thing taken. (R. v. York, 1 Den. C. C., 35).

A person, however, may be guilty of this offence, who takes the property of another, and afterwards sells it to him again,-provided the thief took it with the intention that it never should revert to the owner as his own property except by sale. If, for instance, A. takes a horse from B., wrongfully disguises it, and then sells it back, this would be larceny. (R. v. Hall, 1 Den. C. C., 381).

A felonious intent could not be inferred from the taking of property in mere thoughtlessness, by way of joke; and where an assertion of property and ownership is meant by the taking, all semblance of a criminal intent manifestly disappears.

Appropriation of lost goods by the finder].-Where goods of a third person, having been lost, are appropriated by the finder to his own use, such appropriation, under certain circumstances, will-whereas, in others, it will not amount to larceny. It will be larceny if the finder takes the goods with the intention of wholly applying them to his own use,—at the same time, "reasonably believing that the owner can be found,"” (R. v. Thurborn, 1 Den. C. C., 387, 394), where the Court observes that it will be generally ascertained whether the accused had reasonable belief that the owner could not be found, by evidence of his previous acquaintance with the ownership of the particular chattel, the place where it is found, or the nature of the marks upon it. In some cases, the existence of such a belief in the mind of the finder would be at once obvious; in others, it would appear only after an examination into the particular circumstances. Thus, if a horse is found feeding in an open common, or on the side of a public road, or a watch is found apparently hidden in a haystack,-the taking of either description of property would be larceny, because the taker could have no right to presume that the owner did not know where to find it. On the other hand, if a man finds goods which have been actually lost, or which may reasonably be supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing, when he takes them, that the owner cannot be found, this is not larceny; nor would it be if the taking occurred in such a place, and under such circumstances, as that the owner might be reasonably presumed by the taker to have abandoned his property in the particular chattel, or, at least, not to know where to find it; so that the crime of larceny cannot be committed unless the goods feloniously taken appear to have an owner; and further, unless the taker must have known or believed that the taking was against the will of the owner, which could not be if the property were believed to have been abandoned. Where a person finds a purse of money on the high-road, and appropriates it to his own use, the question for the jury is, whether he does it at the time of finding with a felonious intent; and that depends on whether, at the time,

he knows who the owner is, or has the means of knowing him by reason of the marks on the article indicating the owner. But the finder is not guilty of felony merely because, when afterwards learning who the owner is, he fails to make restitution, and fraudulently retains the property. (R. v. Christopher, 28 L. J. M. C., 35); and see R. v. Preston, (2 Den. C. C., 353), which shows that, if a man were to pick up in the street a bank-note marked with the owner's name, so that he could be easily discovered, with the innocent intention of finding out the owner, and restoring the note, and subsequently were to change his mind, and convert the note to his own use, this would not amount to larceny.

In R. v. West, (1 Dears., 402), the prisoner was charged with stealing a purse and its contents under the following circumstances :-The prosecutor, after making a purchase at the prisoner's stall at market in a country town, accidentally left his purse upon it, and the prisoner thereupon appropriated it to her own use, and, on the prosecutor demanding it from her, denied all knowledge of it. The jury found that the prisoner took up the purse, knowing that it was not her own, and intending at the moment to appropriate it. They also found that the prisoner did not then know who was its rightful owner. The prisoner having been convicted, the Court held the conviction right, observing that, if there had been evidence that the purse and its contents were lost property, according to the strict meaning of that term, and the jury had so found, they ought further to have been asked whether the prisoner had reasonable means of finding the owner, or reasonably believed that the owner could not be found. There is a clear distinction, they said, between property lost, and property merely mislaid, or put down and left by mistake, under circumstances which would enable the owner to know the place where he had left it, and to which he would naturally return to it.

Where a hackney-coachman abstracts the contents of a parcel which has been accidentally left in his coach by a passenger, whose address he could easily find, or where a tailor applies to his own use a pocket-book left in a coat sent to him for repair by a customer, or where the purchaser of an article of furniture, as a desk, at a sale by auction, discovers valuables in it and appropriates them, provided in this case that the purchaser had express notice that he was not to have any title to the contents of the desk, if there happened to be anything in it,—or provided, without such express notice, that he had no ground to believe that he had bought the contents, and had reason to think, as he most likely would have, that the owner could be found, (Merry v. Green, 7 M. & W., 623),— -are cases of larceny under circumstances analogous to those latterly considered.

Doctrine of relation].-But, although it is true that, where the taking of a chattel is in its inception lawful, a subsequent conversion of the thing taken, however tortious and wrongful it be in a moral point of view, is not larceny; yet, if the taking be in itself wrongful and unlawful, although without any felonious intent, a subsequent conversion of it with such intent will be larceny. Thus, in R. v. Riley, (1 Dears., 149), the prisoner was indicted for stealing a lamb, under the following circumstances:-It appeared that, having, in the first instance, put twenty-nine black-faced lambs, belonging to himself, into a field, containing ten whitefaced lambs, belonging to the prosecutor, he afterwards took away his

own lambs and offered them for sale, as amounting in number to twentynine; the proposed purchaser, however, in counting the lambs, pointed out to the prisoner that there were thirty in the flock, which included one white-faced lamb, belonging to the prosecutor. The prisoner, nevertheless, sold them all to the other party on his own individual account; on the trial, the jury found that, at the time of leaving the field, the prisoner did not know that the prosecutor's lamb was in the flock, but that he had a felonious intention when he sold it. The Court of Criminal Appeal held, that he might be convicted of larceny,-for, assuming that the prisoner was ignorant of the fact of the lamb being in his flock when he drove it from the field, the so driving it away and keeping it was a tortious act, for which trespass would have lain, and this act became felonious when the prisoner, knowing that the lamb in question was not his own, sold it. The Asportation].-Another ingredient, not yet noticed, in larceny, is the carrying away or "asportation" of the chattel; there must be not only a taking, but a carrying away. A bare removal from the place where he found the goods, though he does not quite make off with them, is sufficient asportation; as, if a man be leading another's horse out of a close, and be apprehended in the act; or, if a thief intending to steal plate takes it out of the chest in which it was, and lays it down on the floor, but is surprised before he can escape with it; (4 Bl. Com., 231); or, if gas be fraudulently severed and abstracted from the main, against the will and without the knowledge of the Company who supply it. (1 Dears., 203). Larceny effected by means of an innocent Agent].-Lastly, in connection with taking and asportation as constituent ingredients in larceny, if a man, by means of an innocent agent, does an act which in law amounts to this crime, the employer, and not the innocent agent, is the person accountable for that act. And, further, should it appear that the asportation was not completed, the jury may, if the facts justify such finding, convict of the attempt to steal, for which, moreover, as a misdemeanor at Common Law, an indictment might clearly be preferred. (R. v. Ferguson, 1 Dears., 427).

Receiving Stolen Goods, &c.]-The offence of receiving goods, moneys, &c., knowing them to have been stolen, is sometimes scarcely distinguishable from that of stealing. (7 & 8 G. IV., c. 29, s. 54). As, for instance, where the thief and receiver are together when the felony is committed, and the thing taken is transferred by the former to the latter. It has been held, on the one hand, that the person who, whilst waiting outside a house, receives goods which a confederate is stealing in the house, is a principal; (R. v. Owen, 1 Mood. C. C., 96; and per Alderson, B., 2 Den. C. C., 461); and, on the other hand, that if the goods be removed some little distance from the house before they are delivered into the prisoner's hands, he will be indictable as a receiver only. (R. v. King, Russ. & R., 332).

With a view to remove the difficulty caused by this distinction, 13 Vic., No. 7, enacts, that in every indictment for feloniously receiving stolen goods, it shall be lawful to add a count for feloniously stealing the same, and vice versâ.

To constitute the offence of receiving stolen goods, it must be shown in evidence that the goods were stolen, and that they were received by the