them away; these are no larcinics. (b) But if the carrier opens a bale or pack of goods, or pierces a vessel of wine, and takes away part there

b Hal. P. C. 504.

property was parted with by the owner, secondly, supposing it was not, whether the prisoner at the time he obtained it conceived a felonious design. In the first case, no fraud or breach of trust can make a conversion larceny; in the second, the complexion of the offence must depend on the felonious design.

3dly. Where offender lawfully acquired possession and qualified property in goods, under colour of bailment, but with intention of stealing them, and privity of the bailment has been determined either by wrongful act of offender or by intention of parties, if he afterwards embezzle such goods, he will be guilty of larceny. For in the first case, after the determination of the special contract by any plain and unequivocal wrongful act of the bailee, inconsistent with that contract, the property, as against the bailce, reverts to the owner, although the actual possession remain in the bailce. East P. C. 691. 627. The most remarkable case of this description is that of a carrier pointed out by the learned commentator. So the conversion of money with a felonious intent, which was found in a bureau delivered to a carpenter to be repaired, by breaking it open, when there was no necessity for so doing for the purpose of repairs, will amount to a larceny, 8 Ves. 405. 2 Leach, 952. 2 Russ. 1045.; and in the same case it was said, that if a pocket-book containing bank notes were left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket, and the notes out of the pocket-book with a felonious intent, it would amount to a felony. If the master und owner of a ship steal some of the goods delivered to him to carry, it is larceny in him, unless he took the goods out of their package: nor if larceny, would it be an offence within 24 Geo II. c. 45. R. & R. C. C. 92. And if corn be sent to a miller to grind, and he take part of it, he will be guilty of felony, 1 Roll. Abr. 73.; but where forty bags of wheat were sent to prisoner, a warehouseman, for safe custody, until sold by prosecutor, and prisoner's servant, by direction of prisoner, emptied four of the bags and mixed their contents with other inferior wheat, and part of mixture was disposed of by prisoner, and remainder was placed in prosecutor's bags, which had thus been emptied, and there was no severing of any part of wheat in any one bag with intent to embezzle that part only which was so severed, the prisoner was held guilty of larceny in taking the wheat out of the bag. R. & R. C. C. 357. And where property which prosecutors had bought was weighed out in the presence of their clerk, and delivered to their carter's servant to cart, who let other persons take away the cart and dispose of the property for his benefit, jointly with that of the other per sons, it was held, that the carter's servant was not guilty of a mere breach of trust, but that he as well as the other persons were guilty of larceny at common law. Russ. & Ry. C. C. 125.; and see 2 East P. C. 568 to 574, 695 to 698. But in all these cases the defendant must have had an intention of stealing the property at the time it was delivered to him. R. & R. C. C. 441. over ruling 2 East C. C. 690. 694. 2 Russ. 1089, 90. 1 R. & M. C. C. 87.

4thly. Where the offender has the qualified property and actual possession of the goods at the time of the embezzlement, he will not be guilty of larceny at common law. Thus where a ser vant or clerk had received property for the use of his master, and the master never had any other possession than such possession by his servant or clerk, it was doubted whether the latter was guilty of felony in stealing such property, or was guilty merely of a breach of trusty 2 Leach, 835 Hale, 668. East P. C. 570, 1.; and see 4 Taunt. 258. Russ. & Ry. C. 215. S. C. 2 Leach C. C. 1054. So a cashier of the bank could not be guilty of felony in embezzling an India bond which he had received from the court of chancery, and was in his actual as well as constructive possession. 1 Leach, 28. So if a clerk received money of a customer, and, without at alk putting it in the till, converted it to his own use, he was guilty only of a breach of trust, though had he once deposited it, and then taken it again, he would have been guilty of felony. 2 Leach,

335.

Servants and Clerks. The dangers resulting from this doctrine occasioned the enactment of 39 Geo. III. c. 85. against such embezzlements by servants, or clerks, rendering the offence punishable with transportation for fourteen years. This act extends only to such servants as are employed to receive money, and to instances in which they receive money by virtue of their em ployment. It seems an apprentice, though under the age of eighteen, is within the act. R. & R. C. C. 80.; so is a female servant. R. & R. C. C. 267. A person employed on commission to travel for orders, and to collect debts, is a clerk within the act, though he is employed by many different houses on each journey, and pays his own expenses out of his commission on each jour ney, and does not live with any of his employers, nor act in any of their counting-houses. R. & R. C. C. 198. So a servant in the employment of A. & B., who are partners, is the servant of each, and if he embezzle the private money of one, may be charged under the act as the servant of that individual partner. 3 Stark. C. N. P. 70. A man is sufficiently a servant within the act, although he is only occasionally employed when de has nothing else to do; and it is sufficient if he was employed to receive the money he embezzled, though receiving money may not be in his usual employment, and althongh it was the only instance in which he was so employed. R. & Ry. C. C. 299. A clerk intrusted to receive money at home from out-door collectors, receives it abroad from out-door customers, it was held, that such receipt of money may be considered "by virtue of his employment," within the act, though it is beyond the limits to which he is authoriz ed to receive money from his employers. R. & Ry. C. C. 319. So if a servant generally employ VOL. II. 70

of, or if he carres it to the place appointed, and afterwards takes away the whole, these are larcinies: (c) for here the animus furandi is manifest;

c 3 Inst. 107.

ed by his master to receive sums of one description and at one place only, is employed by him in a particular instance to receive a sum of a different description and at a different place, this latter sum is to be considered as received by him by virtue of his employment, for he fills the character of servant, as it is by being employed as servant he receives the money. R. & Ry. C. C. 516. Where the owner of a colliery employed the prisoner as captain of one of his barges to carry out and sell coal, and paid him for his labour by allowing him two-thirds of the price for which he sold the coals, after deducting the price charged at the colliery, he was held a servant within the act, and having embezzled the price, be was guilty of larceny within the act. R. & R. C. C. 139. So a servant who received money for his master for articles made of his master's materials which he embezzled, was held within the act, though he made the articles, and was to have a given portion of the price for making of them. Russ. & Ry. C. C. 145. The act is not confined to clerks and servants of persons in trade; it extends to the clerks and servants employed to receive of all persons whatever. Therefore where the overseers of a township employed the prisoner as their accountant and treasurer, and be received and paid all the money receivable or payable on their account, he received a sum and embezzled it, he was held a clerk and servant within the act. R. & R. C. C. 349. 2 Stark. C. N. P. 349. S. C. If a servant, immediately on receiving a sum for his masters, enters a smaller in his book, and ultimately account to his master for the smaller sum only, he may be considered as embezzling the difference at the time he made the entry, and it will make no difference, though he received other sums for his master on the same day, and in paying them and the smaller sum to his master together he might give his master every piece of money or note he received at the time he made the false entry. R. & R. C. C. 463. 3 Stark. N. P. C. 67. S. C. It seems the act does not apply to cases which were larceny at common law. 2 Leach, C. C. 1033. R. & R. C. C. 160. S. C. Peck's case, cor. Park, J. Staffordshire Sum. Ass. 1817, 3 Stark. Evid. 842. It is questionable, therefore, whether, if a servant receives money from his master to pay C. and does not pay it, he can be indicted for embezzlement, Russ. & Ry. C. C. 267.; but as counts for larceny at common law, and for embezzlement under the statute, may be joined in the same indictment, any difficulty in this respect may be avoided. See 3 M. & S. 549, 550. Although property has been in the possession of the prisoner's masters, and they only intrust the custody of such property to a third person to try the honesty of their servant, if the servant receives it from such third person and embezzles it, it is an offence within the act. R. & R. C. C. 160. 2 Leach, 1033. S. C. The statute, in mentioning the specific punishment of transportation for fourteen years, does not exclude any other punishment of inferior degree, 2 East P. C. 578. R. & R. C. C. 285.; therefore the court may fine or imprison, 3 M. & S. 556, 7. 2 Russ. & Ry. 1244.; and now by & Geo. IV. c. 38. s. 2. the offender may be unprisoned only, with or without hard labour for not exceeding three years.

Agents in general.-By stat. 52 Geo. III. c. 63 s 1. the embezzlement by bankers, merchants, brokers, attorneys, or agents of deeds, bills, securities for money, &c. or other personal effects, intrusted to their care, without any authority to sell or pledge the same, is a misdemeanor punishable with transportation for fourteen years at the discretion of the court.

And by the second section of the same act, the embezzlement by any banker, merchant, broker, attorney, or other agent, in whose hand any money, security, &c. or order, be placed, under a written direction signed by the party depositing, is a misdemeanor, and may be punished with fourteen years' transportation. But the act is not to extend to prevent persons receiving money due on securities. s. S. Nor does it extend to partners not being privy to the offence. s. 4. And by sect. 5. the act is not to lessen any remedy at law or equity, regarding the party aggrieved. The act does not affect trustees or mortgagees. s. 6. Nor does it restrain the parties from dispo sing of securities on which they have a lien, unless they dispose of more than is necessary to satisfy the lien. s. 8. It has been questioned whether money can be considered as personal effects within the 1st section. 1 D. & R. C. N. P. 22. The proprietor and member of a saving bank, receiving money for taking care of deposits, &c. is not within the act, though be embezzle them. 1 D. & R. C. N. P. 22.

Manufacturers.By the 17 Geo. III. c. 56. s. 1. persons employed in the manufactories therem mentioned, embezzling property, may be imprisoned, with hard labour, for not less than fourteen days, nor more than three months; and for a subsequent offence, not less than three nor more than six months; and in either case may be whipped.

Officers of Bank of England. There are also several statutes to protect great public companies from depredations of this nature by their servants. Thus by the 15 Geo. II. c. 13. s. 12. servants of the Bank of England guilty of embezzlement, will be guilty of felony without benefit of clergy. Where a bank clerk employed to post into the ledger and read from the cash-book bank notes from 1001. in value up to 1000, and who, in the course of that occupation, had with other clerks access to a file, upon which paid notes of every description were filed, took from that file a paid bank note of 501., be was not considered as intrusted with the possession of this note so as to bring him within this act; and in the same case it was questioned whether a note once cancelled by the bank is within the act. R. & R. C. C. 35. Securities issued by government, as exchebills, are "effects" within the act, though not valid and legal bills. Ross, & R. C. C. 67. adach. 58. IN.R.1.FC

since in the first case he had otherwise no inducement to open the goods, and in the second the trust was determined, the delivery having taken its effect. But bare non-delivery shall not of course be intended to arise from a felonious design; since that may happen from a variety of other incidents. Neither by the common law was it larciny in any servant to run away with the goods committed to him to keep, but only a breach of

Public Officers in general.-By stat. 50 Geo. III. c. 59. for preventing the embezzlement of money or securities for money belonging to the public, by any person intrusted with the manageraent, &c. thereof, it is a misdemeanor, and the offender may be transported, or receive such other punishment as is usually inflicted on persons guilty of misdemeanors

Servants in Post-office.-At common law, persons employed in the post-office have no special property in the letters committed to their charge, which may prevent their stealing them from amounting to larceny. 1 Leach, 1. But by 7 Geo. III. c. 50. any officer or person employed in the post-office, embezzling any letter, &c. containing any bank note, &c. or note whatsoever for the payment of money, or stealing out of any letter any such bank notes, &c. is a felon without benefit of clergy. In order to bring a person within this act, it is not necessary that he should have taken the oath prescribed by 9 Ann. e. 10. s. 41.; but stealing a letter containing money itself, and not an instrument securing it, is not within this statute, 1 Leach, 106. ; nor will a draft, in itself invalid, on the ground of the defect or want of the stamp, if taken in a letter by a person employed by the post-office, be such a draft for the payment of money as to subject the offender to be indicted under it. 2 Leach, 887. 3 Bos. & Pul. 311 Russ & Ry. C. C. 12 S. C. And though the letter will be evidence on an indictment upon the second section of 7 Geo. III. c. 50. for seating the letter, yet as it has been holden that no person employed in the post-office can be guilty under the last provision, it will be in vain to indict him on that clause, 2 Leach, 900. 904. 3 Bos. & Pul. 315. 1 East, P. C. Addend. XVII. R. & R. C. C 31. S. C.; but he may be indicted under the 52 Geo. III. c. 143. s. 3. R. & R. C. C. 32. potes, post, 235. n. (12). And, indeed, there seems to be no statute by which a servant of the post office can be punished for inerely embezzling a letter, unless it contains some of the securities which the 7 Geo. III specially protects. Country bank notes, however, that have been paid, and which the owners have the power to re-issue, are within the statute, 2 Leach, 1090. R. & R. C. C. 232 S. C. and part of a valid instrument will suffice. 2 Leach, 575. 2 East, P. C. 581. S. C. And now, by 42 Geo. III. c. 81. it is expressly declared a capital offence to secrete, embezzle, or destroy any letter containing a part of any instrument named in the former statute. An embezzlement for the mere purpose of obtaining the postage, is not capital at common law. 1 Leach, 81 3. 2 East P. C. 604. But this is provided against by 5 Geo. III. c. 25. s. 19. and 7 Geo. III c. 50. See 3 Chit. Crim. L. 922. b. 2 ed. By the 5 Geo. IV. c. 20 s 10. persons in the post office embezzling, &c. parliamentary proceedings or newspapers, &c. or any other printed paper whatever, sent by the post, will be guilty of a misdemeanor, and punishable by fine and imprisonment; the offence to be tried in the place where committed or where party apprehended.

Lodgers.-The statute of 3 & 4 W. & M. c. 9. as to lodgers stealing from their lodgings, is already noticed by the learned commentator. Where a man takes a whole house ready furnished, and, at the same time, enters into an agreement to pay for whatever articles may be missing when his term expires, he will not be guilty of larceny within this statute, by taking any of the moveables from the premises 2 Leach, 680. Quare, whether stealing goods in a lodging room fet by contract to prisoner, to be used with the lodging, is within the act. R & R. C. C. 480.

Party stealing his own Goods, &c.-Besides the cases already mentioned in the text, if a man steals his own goods from his own bailee, though he has no intent to charge the bailee, but his intent is to defraud the king, yet if the bailee had an interest in the possession and could have withheld it from the owner, the taking is a larceny. R. & R. C. C. 470. 3 Burn J. 24th ed. 240. S. C. And a man may be accessary after the fact to a larceny committed on himself, by receiv ing and harbouring the thief instead of bringing him to justice, Fost. 123.; but a joint tenant or a tenant in common of effects cannot be guilty of larceny in appropriating the whole to his own purpose, 1 Hale, 513. but if a part-owner of property steal it from the person in whose custody it fs, and who is responsible for its safety, he is guilty of larceny. R. & R C. C. 478. 3 Burn J. 24th ed. 241. S. C. Nor can a wife commit larceny of her husband's goods, because his custody is, in law, her's, and they are considered as one person. 1 Hale, 514. On the same ground no third person can be guilty of larceny by receiving the husband's goods from the wife, and if she keep the key of the place where the property is kept, her privity will be presumed, and the defendant must be acquitted. 1 Leach, 47. See 1 Hale, 45. 516. Kel. 37.

The taking must always be against the will of the owner, 1 Leach, 47.; but if the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design, and lead them on till the offence is complete, so long as he did not induce the original intent, but only provided for its discovery after it was formed, the criminality of the thieves will not be destroyed. 2 Leach, 913. So if a man be suspected of an intent to steal, and another, to try him, leaves property in his way, which he takes, he is guilty of larceny. 2 Leach, 921. And if, on thieves breaking in to plunder a house, a servant, by desire of his master, shew them where the plate is kept which they remove, this circumstance will not affect the crime. 2 Leach

922.

Chillys

civil trust. But by statute 33 Hen. VI. c. 1. the servants of persons deceased, accused of embezzling their masters' goods, may by writ [231] out of chancery (issued by the advice of the chief justices and

chiefbaron, or any two of them) and proclamation be made thereupon, be summoned to appear personally in the court of king's bench, to answer their master's executors in any civil suit for such goods, and shall, on default of appearance, be attainted of felony. And by statute 21 Hen. VIII. c. 7. if any servant embezzles his master's goods to the value of forty shillings, it is made felony; except in apprentices, and servants under eighteen years old. But if he had not the possession, but only the care and oversight of the goods, as the butler of the plate, the shepherd of sheep, and the like, the embezzling of them is felony at common law. (d) So if a guest robs his inn or tavern of a piece of plate, it is larciny: for he hath not the possession delivered to him, but merely the use, (e) and so it is declared to be by statute 3 & 4 W. & M. c. 9. if a lodger runs away with the goods from his ready furnished lodgings. Under some circumstances also a man may be guilty of felony in taking his own goods: as if he steals them from a pawnbroker, or any one to whom he hath delivered and entrusted them, with intent to charge such bailee with the value; or if he robs his own messenger on the road, with an intent to charge the hundred with the loss according to the statute of Winchester. (f)

2

2. There must not only be a taking, but a carrying away; cepit et asportavit was the old law-latin. A bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carying away. As if a man be leading another's horse out of a close, and be apprehended in the fact; or if a guest,

d 1 Hal. P. C. 506.

e i Hawk. P. C. 99.

f Fost. 123, 124.

(2) All these points will be found more fully considered under note (1), ante 280.

(3) If a thief cut a belt on which a purse is hung, and it drops to the ground where be leaves it, or if he compel a man to lay down goods which he is carrying, and is apprehended before he raises them from the grond, the crime is incomplete. 1 Leach, $22. n. b. 1 Hale, 533. And if goods are tied to a string, which is fastened at one end to a counter, and a person intending to steal them takes hold of the other, and removes them towards the door as far as the string wil! permit hin, this will be no felony. So where the prosecutor had his keys tied to the strings of his purse in his pocket, which the prisoner endeavoured to take from him and was detected with the purse in his hand, but the strings still hung to the pocket by the keys, this was holden to be no asportation, and therefore no larceny was committed. 1 Leach, 321. n. a. 1 Hale, 508. But a very slight asportation will suffice. Thus, to snatch a diamond from a lady's ear, which is instantly dropped among the curls of her hair, 1 Leach, 320. 2 East P. C. 557.; to remove sheets from a bed and carry them into an adjoining room, 1 Leach, 222. in notes-to take plate from a trunk, and lay it on the floor with intent to carry it away, ibid.-and to remove a package from one part of a waggon to another, with a view to steal it, 1 Leach, 256. have respectively been holden to be felonies; and where prisoner had lifted up a bag from the bottom of a boot of a coach, but was detected before he had got it out, it did not appear that it was entirely removud from the space it at first occupied in the boot, but the raising it from the bottom bad completely removed each part of it from the space that specific part occupied, this was held a complete asportation. 1 Ry. & Moody, C. C 14. But if the defendant merely change the position of a package from lying endways to lengthways, for the greater convenience of taking out its contents, and cuts the outside of it for that purpose, but is detected before he has taken any thing, there will be no larceny committed. Id. ibid. in notes. Where it is one continuing transaction, though there be several distinct asportations in law by several persons, yet all may be indicted as principals who concur in the felony before the final carrying away of the goods from the virtual custody of the owner, 2 East P. Č. 557.; but two cannot be convicted upon an indictment charging a joint larceny, unless there be evidence to satisfy a jury that they were concerned in a joint taking. 2 Stark. on Evidence, 840. If one steal another man's goods, and afterwards another stealeth from him, the owner may prosecute the first or the second felon at his choice. Dalt. c. 162. There is no occasion that the carrying away be by the hand of the party accused, for if he procured an innocent agent, as a child or a lunatic, to take the property, or if he obtained it from the sheriff by a replevin, without the slightest colour of title, and with a felonious design, he will himself be a principal offender. Hawk. b. 1. c. 33. s. 12. Chitty

stealing goods out of an inn, has removed them from his chamber down stairs: these have been adjudged sufficient carryings away, to constitute a larciny. (g) For if a thief, intending to steal plate, takes it out of a chest in which it was, and lays it down upon the floor, but is surprised before he can make his escape with it; this is larciny. (h) ↑

3. This taking, and carrying away, must also be felonious: that [232] is, done animo furandi: or, as the civil law expresses it, lucri causa. (i) This requisite, besides excusing those who labour under incapacities of mind or will (of whom we spoke sufficiently at the entrance of this book), (k) indemnifies also mere trespassers, and other petty offenders. As if a servant takes his master's horse without his knowledge, and brings him home again: if a neighbour takes another's plough that is left in the g S Inst. 103, 109. i Inst. 4. 1. 1. k See page 20.

h 1 Hawk. P. C. 93.

(4) See these points more fully considered under note (S), supra.

(5) The felonious quality consists in the intention of the prisoner to defraud the owner, and to apply the thing stolen to his own use; and it is not necessary that the taking should be done lucri causâ; taking with an intent to destroy will be sufficient to constitute the offence, if done to serve the prisoner or another person though not in a pecuniary way. R. & R. C. C. 292. In a late singular case it was determined, that where a servant clandestinely took his master's corn, though to give it to his master's horses, he was guilty of larceny, the servant in some degree being likely to diminish his labour thereby. R. & R. C. C. 307. 3 Burn. J. 24th edit 209. (See a late case, Russ. & Ry. C. C. 118. under very particular circumstances.) It is sufficient if the prisoner intend to appropriate the value of the chattel and not the chattel itself to his own use, as where the owner of goods steals them from his own servant or bailee in order to charge him with the amount. 7 Hen. VI. f. 43. The intention must exist at the time of the taking, and no subsequent felonious intention will render the previous taking felonious, as where goods are removed by the prisoner during a fire with intent to preserve them for the owner, and he afterwards determine to appropriate them to his own use, East P. C. 694.; or where a bailment is procured without any felonions intent on the part of the bailee, and he afterwards and before the determination of the bailment converts the property, East P. C. 594. 837. and if the owner parts with the possession of goods for a special purpose, and the bailee, when that purpose is executed, neglects to return them, and afterwards disposes of them, if he had not a felonious intention when be originally took them, his subsequent withholding and disposing of them will not constitute a new felonious taking, or make him guilty of felony, R. & R. C. C. 441. overruling

East l'. C. 690. 694. 2 Russ. 1089, 1090.

We have seen that a taking by finding, and a subsequent conversion, will not amount to a felony. 3 Inst. 108. 1 Hawk. c. 33. s. 2. 2 Russ. 1041. But if the goods are found in the place where they are usually suffered to lie, as a horse on a common, cattle in the owner's fields, or money in a place where it clearly appears the thief knew the owner to have concealed it, I Hale, 507, 506. 2 East P. C. 664.; or if the finder in any way know the owner, or if there be any mark on the goods by which the owner can be ascertained, see 3 Burn J. 24th edit. 218. the taking will be felonious. So if a parcel be left in a hackney coach, and the driver open it, not merely from curiosity, but with a view to appropriate part of its contents to his own use, or if the prosecutor order him to deliver the package to the servant, and be omits so to do, he will be guilty of felony. 2 East P. C. 664. 1 Leach, 413. 15, and in notis.

Where the taking exists, but without fraud, it may amount only to a trespass. This is also a point frequently depending on circumstantial evidence, and to be left for the jury's decision. Thus, where the prisoners entered another's stable at night and took out his horses, and rode them thirty-two miles, and left them at an inn, and were afterwards found pursuing their journey on foot, they were held to have committed only a trespass, and not a felony, 2 East P. C. 662. Clandestinely taking away articles to induce the owner (a girl) to fetch them, and thereby to give the prisoner an opportunity to solicit her to commit fornication with him, is not felonious. R. & R. C. C. 420. and see id. 118. It depends also on circumstances what offence it is to force a man in the possession of goods to sell them; if the defendant takes them, and throws down more than their value, it will be evidence that it was only trespass; if less were offered, it would probably be regarded as felony. 1 East. Rep. 615. 636. And it seems that the taking may be only a trespass, where the original assault was felonious. Thus, if a man searches the pockets of another for money, and finds none, and afterwards throws the saddle from his horse on the ground, and scatters bread from his packages, he will not be guilty of robbery, 2 East P. C. 662., though he might certainly have been indicted for feloniously assaulting with intent to steal, for that offence was complete.

The openness and notoriety of the taking, where possession has not been obtained by force or stratagem, is a strong circumstance to rebut the inference of a felonious intention, 1 Hale, 507. East P. C. 661, 662.; but this alone will not make it the less a felony. Kel. 32 2 Raym 276. 2 Vent. 94. A taking by mere accident, or in joke, or mistaking another's property for one's own, is neither legally nor morally a crime. 2 Hale, 507. 509. Chitty