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be wanting. Therefore no delivery of the goods from the owner to the offender, upon trust, can ground a larceny. As if A lends B a horse, and sweep it all away, and take it to himself, he 2dly. Where the offender unlawfully acquired will be guilty of theft, if the jury find that he the possession of goods as by fraud of force, acted with a felonious design. i Leach, 270. &c. with intent to steal them, the owner still reCald. 295. So if there be a plan to cheat a taining his property in them, such an offender man of his property, under colour of a bet, will be guilty of larceny in embezzling them. and he parts with the possession only, to depo- Therefore in addition to the instances men. sit as a stake with one of the confederates; tioned in the text, hiring a horse on pretence the taking by such confederate is felonious. of taking a journey, and immediately selling Russ. & Ry. C. C. 413. And if a bag of it, is larceny, because the jury found the de. wheat be delivered to a warchouseman for sale fendant acted animo furandi, in making the custody, and he take the wheat out of the bag, contract, and the parting with the possession and dispose of it, it is larceny. Russ. & Ry: had not changed the nature of the property, C. C. 337. And where a banker's clerk took 2 East P. C. 685. 1 Leach, 212; and see 2 notes from the till, under colour of a check Leach, 420. 2 East P. C. 691. So obtaidfrom a third person, which check he obtained ing a horse by pretending another person by having entered a fictitious balance in the wanted to hire it to go to B., but in truth with books in favour of that person, it was held he intent to steal it, and not going to B., but tak. was guilty of felony ; the fraudulent obtaining ing the horse elsewhere and selling it, is larthe check being nothing more than mere ma


| Leach 409. 2 East P. C. 689. So chinery to effect his purpose. 4 Taunt. 304. where the prisoner intending to steal the mail R. & R. C. C. 221. s.c. 2 Leach, C. C. bags froin a post-office, procured them to be 1083. And where one employed as a clerk, let down to him by a string from the window in the day-time, but not residing in the house, of the post-office, under pretence that he was embezzles a bill of exchange, which he re- the mail guard, he was held guilty of larceny. ceived from his master in the usual course of East P. C. 603. It is larceny for a person business, with directions to transmit it by the hired for the special purpose of driving sheep post to a correspondent, it was held larceny. to a fair, to convert them to his own use, he 2 East P. C. 565. And see 2 Chit. C. L. 2 having the intention so to do at the time of ed. 917. b. And where goods have not been receiving them from the owner. i Ry. & M. actually reduced into the owner's possession, C. C. 87. And where a man ordered a pair of yet if he has intrusted another to deliver them candlesticks from a silversmith, to be paid for to his servant, and they are delivered accord. on delivery, to be sent to his lodgings, whither ingly, and the servant embezzle them, he will they were sent accordingly, with a bill of par. be guilty of larceny; as where a corn factor cels, by a servant, and the prisoner contriving having purchased a cargo of oats on board a to send the servant back under some pretence, ship, sent his servant with his barge to re. kept the goods, it was holden larceny, cited ceive part of the oats in loose bulk, and the in 2 Leach, 420. And if a sale of goods is servant ordered some of them to be put into not completed, and the pretended purchaser sacks, which he afterwards embezzled, this absconds with them, and from the first his inwas holden larceny. 2 East P. C. 1798. 2 tention was to defraud, he is guilty of stealLeach, 825.

ing, I Leach, 92; and to obtain money from The learned commentator has already no- another by ring.dropping, is a similar offence, ticed the 21 Hen. VIII. c. 7. making the em- if there was an original design to steal, 1 bezzlement of goods above the value of forty Leach, 238. 2 Leach, 572: and where the shillings, felony, when intrusted to a servant owner of goods sends them hy a servant, to by his master. The act extends only to such be delivered to A., and B. pretending to be persons who were servants to the owner of A., obtains them from him, B. is guilty of lar: the goods, both at the time of their delivery, ceny. 2 East P. C. 673. So where the priand when they were stolen. I Hawk. c. 33. soner pretending to be the servant of a person

2 East P. C. 562. To bring the case who had bought a chest of tea, deposited at within the act, the goods must have been de. the E. I. company's warehouse, got a request livered to the servant to keep for the master, paper and permit for the chest, and took it and the words “kept to the use of the mas. away with the assent of a person in the com. ter," imply that they are to be returned to the pany's service who had the charge of it; this master. 2 East P. C. 562. The act does not was held felony. R. & Ry. C. C. 163. So extend to goods, the actual property of which to obtain a bill of exchange from an indorsee, were not in the master at the time, and there. under a pretence of getting it discounted, is fore, it is said, that if the property be change felony, if the jury find that the party did not ed, as by melting the money down, or malting intend to leave the bill in the possession of corn, and then it be taken

ray, it is not the defendant, previous to receiving the mowithin the statute. 1 Hawk. c. 33. s. 15. ney to be obtained on his credit, and that he East P. C. 563. sed quære. See 1 Hawk. c. undertook to discount with intent to convert 33. s. 15. The act only extends to where the it to his own use, 1 Leach, 294 ; and it seems, owner has actually had ihem in his possession, that if a person procure possession of a house and not where his servant has merely receiv: with an intent to steal the lead affixed to it, ed them to his use. No wasting or consum. he may be indicted on the 4 Geo. II. c. 32. for ing the goods is within the act, however wilful. the statutable larceny. 2 Leach, 850. Hawk. b. 1. c. 33. s. 14.

In all these cases the defendant's original

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he rides away with him : or, if I send goods by a carrier, and he carries them away ; these are no larcenies (h). But if the carrier opens a bale or

(6) 1 Hal. P. C. 504

design in obtaining the goods was felonious, colour of bailment, but with intention of stealing and the owner never parted with his property them, and privity of the bailment has been detherein, for where either is not the case there termined either by wrongful act of offender or by can be no larceny, as will appear from the fol- intention of parties, if he afterwards embezzle lowing instances :- Thus where a house was such goods, he will be guilty of larceny. For burning, and a neighbour took some of the in the first case, after the determination of the goods, apparently to save them from the special contract by any plain and unequivocal Hames, and afterwards converted them to his wrongful act of the bailee, inconsistent with own use,

it was holden no felony, because the that contract, the property, as against the jury thought the original design honest. 1 bailee, reverts to the owner, although the acLeach, 411. notes. And it is certain, that if tual possession remain in the bailee. East P. the property in effects be given voluntarily, C. 691. 627. The most remarkable case of whatever false pretence has been used to ob- this description is that of a carrier pointed out tain it, no felony can be committed. 1 Hale by the learned commentator. So the conver. P. C. 506. R. & R. C. C. 225. S. P. Thus sion of money with a felonious intent, which obtaining silver on pretence of sending a half was found in a bureau delivered to a carpenter guinea presently in exchange is no selony. 2 to be repaired, by breaking it open, when there East P. C. 672. So writing a letter in the was no necessity for so doing, for the purpose name of a third person to borrow money, of repairs, will amount to a larceny, 8 Ves. which he obtains by that fraud, is only a mis- 405. 2 Leach, 952. 2 Russ. 1045; and in demeanor, 2 East P. C. 673; and it makes no the same case it was said, that if a pocketdifference in these cases that the credit was book containing bank notes were left in the obtained by fraudulently using the name of pocket of a coat sent to be mended, and the another, to whom it was intended to be tailor took the pocket-book out of the pocket, given, i Leach, 303. notes. 2 East P. C. and the notes out of the pocket-book with a 673. R. & R. C. C. 225; and is a horse- felonious intent, it would amount to a felony, dealer delivers a horse to another on his pro. If the master and owner of a ship steal some mise to return immediately and pay for it, the of the goods delivered to him to carry, it is not party's riding off and not returning is no fe- larceny in him, unless he took the goods out lony. 1 Leach, 467. 2 East P. C. 669. So of their package : nor if larceny, would it be if a tradesman, sells goods to a stranger as for an offence within 24 Geo. II. c. 45. R. & R. ready money, and sends them to him by a ser. C. C. 92. And if corn be sent to a miller to vant who delivers them, and takes in payment grind, and he take part of it, he will be guilty for them bills which prove to be mere fabrica- of felony, 1 Roll. Abr. 73; but where forty tions, this will be no larceny, though the par. bags of wheat were sent to prisoner, a warety took his lodgings for the express purpose of houseman, for safe custody, until sold by proobtaining the goods by fraud, because the secutor, and prisoner's servant, by direction owner parted with his property. 2 Leach, of prisoner, emptied four of the bags and 614. So fraudulently winning money at gam mixed their contents with other inferior wheat, ing, where the injured party really intended and part of mixture was disposed of by prito play, is no larceny, though a conspiracy to soner, and remainder was placed in prosecu. defraud appear in evidence. 2 Leach, 610. tor's bags, which had thus been emptied, and So brokers, bankers, or agents embezzling se. there was no severing of any part of wheat curities deposited with them for security or in any one bag with intent to embezzle that any special purpose, are not guilty of larceny, part only which was so severed, the prisoner 4 Taunt. 258. 2 Leach, 1054, R. & R. Č. was held guilty of larceny in taking the C. 215. S. C. ; but this decision occasioned wheat out of the bag. R. & R. C. C. 337. the 52 Geo. III. c. 63. to be passed, making it And where property which prosecutors had a misdemeanor in brokers, bankers, and others, bought was weighed out in the presence of to embezzle securities deposited with them their clerk, and delivered to their carter's serfor safe custody or for any special purpose, in vant to cart, who let other persons take away violation of good faith, and contrary to the the cart and dispose of the property for his special purpose for which they were deposit- benefit, jointly with that of the other persons, ed, see the act, infra. Thus in all cases where it was held, that the carter's servant was not a voluntary delivering by the prosecutor is the guilty of a mere breach of trust, but that he defence to be relied on, two questions arise, as well as the other persons were guilty of first, whether the property was parted with by larceny at common law. Russ. & Ry. C. C. the owner, secondly, whether supposing it was 125; and see 2 East P. C. 568 to 574, 695 to not, wheiher the prisoner at the time he ob- 698. But in all these cases the defendant tained it conceived a felonious design. In must have had an intention of stealing the prothe first case, no fraud or breach of trust can perty at the time it was delivered to him. R. & make a conversion larceny ; in the second, the R. C. C. 441. over-ruling 2 East P. C. 690. 694. complexion of the offence must depend on the 2 Russ. 1089, 90, 1R. & M.C.C. 87. felonious design.

4thly. Where the offender has the qualified 3dly. Where offender laufully acquired pos- property and actual possession of the goods at session and qualified property in goods, under the time of the embezzlement, he will not be

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pack of goods, or pierces a vessel of wine, and takes away part thereof, or if he carries it to the place appointed, and afterwards takes away the whole, guilty of larceny at common law. Thus where by him by virtue of his employment, for be a servant or clerk had received property for fills the character of servant, as it is by being the use of his master, and the master never employed as servant he receives the money. had any other possession than such possession R. & Ry. C. C. 516. Where the owner of a by his servani or clerk, it was doubted whe- colliery employed the prisoner as captain of ther the latter was guilty of felony in stealing one of his barges to carry out and sell coal, such property, or was guilty merely of a and paid him for his labour by allowing him breach of trust, 2 Leach, 835. Hale, 668. two-thirds of the price for which he sold the East, P. C. 570, 1; and see 4 Tauni. 258. coals, after deducting the price charged at the Russ. & Ry. C. C. 215. S. C. 2 Leach, C. colliery, he was held a servant within the act, C. 1054. So a cashier of the bank could not and having embezzled the price, he was guilbe guilty of felony in embezzling an India ty of larceny within the act. R. & R. C. C. bond which he had received from the court of 139. So a servant who received money for chancery, and was in his actual as well as his master for articles made of his master's constructive possession. 1 Leach, 28. So if materials which he embezzled, was held with. a clerk received money of a customer, and, in the act, though he made the articles, and without at all putting it in the till, converted was to have a given portion of the price for it to his own use, he was guilty only of a making of them. Russ. & Ry. C. C. 145. breach of trust, though had he once deposited The act is not confined to clerks and servants it

, and then taken it again, he would have been of persons in trade ; it extends to the clerks guilty of felony. 2 Leach, 835.

and servants employed to receive of all persons Servants and Clerks.—The dangers result- whatever. Therefore where the overseers of ing from this doctrine occasioned the tenact- a township employed the prisoner as their acment of 39 Geo. III. c. 85. against such em. countant and ireasurer, and he received and bezzlements by servants, or clerks, rendering paid all the money receivable or payable on the offence punishable with transportation for their account, he received a sum and embez. fourteen years.

This act extends only to zled it, he was held a clerk and servant with such servants as are employed to receive mo. in the act. R. & R. C. C. 349. 2 Stark. C. ney, and to instances in which they receive N. P. 349. S. C. If a servant, immediately money by virtue of their employment. lion receiving a sum for his masters, enters a seems an apprentice, though under the age of smaller in his book, and ultimately account to eighteen, is within the act, R. & R. C. C. his master for the smaller sum only, he may 80; so is a female servant. R. & R. C. C. be considered as embezzling the difference 267. A person einployed upon commission at the time he made the entry, and it will make to travel for orders, and to collect debts, is a no difference, though he received other sums clerk within the act, though he is employed for his master on the same day, and in paying by many different houses on each journey, them and the smaller sum to his master toand pays his own expenses out of his commis- gether he might give his master every piece sion on each journey, and does not live with of money or note he received at the time he any of his employers, nor act in any of their made the false entry. R. & R. C. C. 463. 3 counting houses. R. & R. C. C. 198. So a Stark. N. P. C. 67. S. C. It seems the act servant in the employment of A. & B., who does not apply to cases which were larceny at are partners, is the servant of each, and if he common law. 2 Leach, C. C. 1033. R. & embezzle the private money of one, may be R. C. C. 160. S.C. Peck's case, cor. Park, charged under the act as the servant of that in- J. Staffordshire Sum. Ass. 1817, 3 Stark. dividual partner. 3 Stark. C.N.P. 70. A man is Evid. 842. It is questionable, therefore, whesufficiently a servant within the act, although ther, if a servant receives money from his he is only occasionally employed when he has master to pay C. and does not pay it, he can nothing else to do; and it is sufficient if he be indicted for embezzlement, 'Russ. & Ry. was employed to receive the money he em. C. C. 267; but as counts for larceny at combezzled, though receiving money may not be mon law, and for embezzlement under the slain his usual employment, and although it was tute, may be joined in the same indictment, the only instance in which he was so employ: any difficulty in this respect may be avoided. ed. R. &. Ry. C. C. 299. A clerk intrusted See 3 M. & S. 549, 550. Although property to receive money at home from out-door col. has been in the possession of the prisoner's lectors, receives it abroad from out-door cus- masters, and they only intrust the custody of tomers, it was held, that such receipt of money such property to a third person to try the may be considered " by virtue of his employ- honesty of their servant, if the servant receives ment," within the act, though it is beyond the it from such third person and embezzles it, it limits to which he is authorized to receive is an offence within the act. R. & R. C. C. money from his employers. R. & Ry. C. C. 160. 2 Leach, 1033. S. C. 319. So if a serrant generally employed by Party stealing his own Goods, &c.-Besides his master to receive sums of one description the cases already mentioned in the text, if a and at one place only, is employed by him in man steals his own goods from his own bailee, a particular instance to receive a sum of a though he has no intent to charge the bailee, different description and at a different place, but his intent is to defraud the king, yet if the this latter sum is to be considered as received bailee had an interest in the possession and

† See post. p. 231. note.


these are larcenies (c); for here the animus furandi is manifest ; 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 accidents. Neither by the common law was it larceny in any servant to run away with the goods committed to him to keep, but only a breach of civil trust. But by statute 33 Hen. VI. c. 1. the servants of persons deceased, accused of embezzling their masters' goods, may by writ out of chancery (issued by the advice of *the chief justices and chief [*231] baron, or any two of them), and proclamation made thereupon, be summoned to appear personally in the court of king's bench, to answer their masters' executors in any civil suit for such goods; and shall, on de- · fault 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 (4), (5). But if he had not the possession, but only

(c) 3 Inst. 107.

could have withheld it from the owner, the this circumstance will not affect the crime. 2 taking is a larceny. R. & R. C. C. 470. 3 Leach, 922. Burn. J. 24th ed. 240. S. C. And a man may (4) The above statutes, with others on the be accessary after the fact to a larceny com- same subject, are repealed by the 7 and 8 Geo. mitted on himself, by receiving and harbouring IV. c. 27; and by the 7 and 8 Geo. IV. c. 29, the thief instead of bringing him to justice, $ 46, any clerk or servant stealing any chattel, Fost. 123 ; but a joint tenant in common of money, or valuable security belonging to, or effects cannot be guilty of larceny in appro- in the possession or power of his master, is priating the whole to his own purpose, 1 Hale, punishable with transportation for any term 513; but if a part-owner of property steal it not exceeding fourteen years, and not less from the person in whose custody it is, and than seven, or with imprisonment for any term who is responsible for its safety, he is guilty of not exceeding three years, with whippings. larceny. R. & R. C. C. 478. 3 Burn J. 24th S. 47 enacts, that any clerk or servant, or pered. 241. S. C. Nor can a wise commit larceny son employed as such, receiving or taking, of her husband's goods, because his custody by virtue of such employment, into his pog. is, in law, her's, and they are considered as session, any chattel, money, or valuable secu. one person.

| Hale, 514. On the same rity, for, or in the name, or on the account of ground no third person can be guilty of lar- his master, and fraudulently embezzling the ceny by receiving the husband's goods from same, or any part thereof, shall be deemed to the wife, and if she keep the key of the place have feloniously stolen the same from his where the property is kept, her privity will be master, although such chattel, &c., was not presumed, and the defendant must be acquit. received into the master's possession otherted. I Leach, 47. See I Hale, 45. 516. Kel. wise than by the actual possession of such 37.

clerk or servant, or other person so employed, The taking must always be against the will of and shall be liable to any of the punishments the owner, I Leach, 47, but if the owner, in set forth in s. 45. By s. 48, " for preventing order to detect a number of men in the act of the difficulties that have been experienced in stealing, directs a servant to appear to encou- the prosecution of the last-mentioned offend. rage the design, and lead them on till the of- ers," it is enacted, “ that it shall be lawful to fence is complete, so long as he did not in charge in the indictment, and proceed against duce the original intent, but only provided for the offender for any number of distinct acts of its discovery after it was formed, the crimi- embezzlement not exceeding three, which nality of the thieves will not be destroyed. 2 may have been committed by him against the Leach, 913. So if a man be suspected of an same inaster, within the space of six calendar intent to steal, and another, to try him, leaves months from the first to the last of such acts; property in his way, which he takes, he is and in every such indictment, except where guilty of larceny. 2 Leach, 921. And if, on the offence shall relate to any chattel, it shall thieves breaking tn plunder a house, a ser- be sufficient to allege the embezzlement to be vant, by desire of his master, chew them of money, without specifying any particular where ihe plate is kept which they remove, coin or valuable security; and such allegation,

(5) In New-York, embezzlement by clerks, Jue would be punished. (2 R. S. 678, 9 59. &c. except apprentices and persons under 18 &c.) The buying or receiving embezzled proyears of age, or taking, secreting, &c. with perty knowingly, is punished in the same way. intent to embezzle, is punished in the samne (id. 9 61.) Carriers are also punished in the way as the stealing of articles of the same va- same way for embezzling, &c. (Id. 0 62.)

the care and oversight of the goods, as the butler of the plate, the shepherd of the sheep, and the like, che 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 larceny: 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 (6). 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 ( s ).

2. There must not only be a taking, but a carrying away (7); cepit et as(d) I Hal.P. C. 506.

U) Fost. 123, 124.

(e) I Hawk. P.C. 90.

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so far as regards the description of the pro- friend, with a bill to get it discounted, and conperty, sball be sustained, if the offender shall vening it to his own use, is noi an agent within be proved to have embezzled any amount, the meaning of the Act. Rex 3. Prince, 2 C. although the particular species of coin or valu- and P. 517. able security of which such amount was com- (6) Repealed by 7 and 8 Geo. IV. c. 27; and posed shall not be proved; or if he shall be by 7 and 8 Geo. IV. c. 29, Ø 45, it is enacted, proved to have embezzled any piece of coin that if any person shall steal any chattel or or valuable security, or any portion of the va- fixture let to be used by him in or with any lue thereof, although such piece of coin or house or lodging, he shall be guilty of felony, valuable security may have been delivered to and be punished as for simple larceny; and him in order that some part of the value there- the indictment may be preferred in the common of should be returned to the party delivering form as for larceny, and as if the offender were the same, and such part shall have been re- not a tenant or lodger, and in either case the turned accordingly." Each act of embezzle- property may be laid in the owner or person ment should be set forth in a separate count, letting to hire. In Healey's case, R. and M. and the prosecutor cannot be compelled tó 1, it was considered unnecessary to state by elect which he will singly proceed upon. The whom the lodging was let, the judges holding indictment need not state from whom the mo. that the letting might be stated either accordney alleged to have been embezzled, was re- ing to the fact, or according to the legal operaceived. Rex v. Beacall, 1 C. and P. 454. tion. The statement as to the party by whom . The day laid is not material. By statute 5 the lodging is let, would be regulated by this Geo. IV. c. 20, § 10, persons employed in the case under the present Act. post-office embezzling notes, parliamentary, (7) If a thief cut a belt on which a purse is proceedings, or newspapers, &c., are guilty hung, and it drops to the ground where he of a misdemeanor, and punishable by fine and leaves it, or if he compel a man to lay down imprisonment, the offence to be tried either goods which he is carrying, and is apprehendwhere committed or where the offender is ap- ed before he raises them from the ground, the prehended.

crime is incomplete. 1 Leach, 322. n. b. I By 7 and 8 Geo. IV. c. 29, 9 49, bankers, Hale, 533. And if goods are tied to a string, merchants, brokers, attornies, and other which is fastened at one end to a counter, and agents, embezzling money intrusted to them a person intending to steal them takes hold of to be applied to any special purpose, or em- the other, and removes them towards the door bezzling any goods, or valuable security in. as far as the string will permit him, this will trusted to them for safe custody, or for any be no felony. So where the prosecutor bad special purpose, are guilty of a misdemeanor, his keys tied to the strings of his purse in his and punishable in any of the modes pointed pocket, which the prisoner endeavoured to out in s. 46. S. 50 provides, that the Act shall take from him and was detected with the not affect trustees or mortgagees; nor bankers, purse in his hand, but the strings still hung to &c. receiving money due on securities, or dis- the pocket by the keys, this was holden to be posing of securities on which they have a lien. no asportation, and therefore no larceny was By s. 51, factors pledging for their own use committed. I Leach, 321. n. a. I Hale, 508. any goods, or documents relating to goods, in- But a very slight asportation will suffice. trusted to them for the purpose of sale, are Thus, to snatch a diamond from a lady's ear, guilty of a misdemeanor, and punishable by which is instantly dropped among the curls of transportation for fourteen or seven years, or her hair. 1 Leach, 320. 2 East, P. C. 557; by fine and imprisonment, as the court shall to remove sheets from a bed and carry them award ; the clause not to extend to cases where into an adjoining room, I Leach, 222, in notes the pledge does not exceed the amount of -to take plate from a trunk, and lay it on the their lien. And by s. 52, these provisions as floor with intent to carry it away, ibid.--and to to agents shall not lessen any remedy which remove a package from one part of a waggoa the party aggrieved previously had, af law or to another, with a view to steal it, I Leach, in equity. A person intrusted as a private 236. have respectively been holden to be felo

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