was larceny, because there was no intent to cheat or charge the lightermen, but only an intention to defraud the crown. Wilkinson's case,

Russ. and Ry. 470 (a).

Upon the same principle, although the part-owner of goods cannot in general be guilty of larceny with regard to the other part-owners, yet if the property be in the possession of a person who is responsible for its safety, and a part-owner take it out of his possession, under such circumstances as would in ordinary cases constitute a larceny, it is a felony. Thus where a box belonging to a benefit society, was deposited with the landlord of a public house, who, by the rules of the society, was answerable for its safety, and a member of the society broke into the house, and carried away the box, being convicted of larceny, the judges on a case reserved were clear, that as the landlord was answerable to the society for the property, the conviction was right. Bramley's case, Russ. and Ry. 478 (b).

Proof of ownership-goods of joint tenants, tenants in common, joint stock companies, and partners.] In general a party having a right of property in goods, and also a right to the possession, cannot be guilty of larceny with respect to such goods. Tenants in common, therefore, and joint tenants cannot be guilty of stealing their common goods (1). 1 Hale, P. C. 513; 2 East, P. C. 558.

Difficulties often arising with regard to the proof of the names of all the partners laid in an indictment, the following enactment was made for the purpose of removing the inconvenience.

By the 7 Geo. 4, c. 64, s. 14, in order to remove the difficulty of stating the names of all the owners of property in the case of partners and other joint owners, it is enacted, "that in any indictment or information for any felony or misdemeanor, wherein it shall be requisite to state the ownership of any property whatsoever, whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons be partners in trade, joint tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be; and whenever, in any indictment or information for any felony or misdemeanor, it shall be necessary to mention for any purpose whatsoever, any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe them in the manner aforesaid; and the provision shall be construed to extend to all joint stock companies and trustees."

The words of the above provision are "another or others;" therefore, where a prisoner was indicted for stealing paper the property of G. E. and others, and it appeared that the paper belonged to G. E. and another only, Lord Denman, C. J. held that he must be acquitted. Hampton's case, Greenw. Coll. Stat. 143.

[ *582] *A bible had been given to a society of Wesleyan Dissen

(1) One entitled to receive a share of a crop for his services is not joint-tenant or tenant in common with his employer, and commits larceny in stealing a part. State v. Gay, 1 Hill, 364. On an indictment for stealing the goods of A. & B. Evidence that some belonged to A. and some to B. will not do. State v. Ryaw, 4 M'Cord, 16.

(a) 1 Eng. C. C. 470. (b) Id. 478.

ters, and was bound at the expense of the society. No trust deed was produced. The bible having been stolen, the indictment charged the property to be in A. and others. A. was a trustee of the chapel and a member of the society. Parke, J., held the indictment right. Boulton's case, 5 C. and P. 537 (a).

It is not requisite that a strict legal partnership should exist. Where C. and D. carried on business in partnership, and the widow of C. upon his death, without taking out administration, acted as partner, and the stock was afterwards divided between her and the surviving partner, but before the division, part of the stock was stolen; it was held, that the goods were properly described as the joint property of the surviving partner, and the widow, upon an objection that the children of C. ought to have been joined, or the goods described as the property of the surviving partner, and the ordinary, no adininistration having been taken out. Gabey's case, R. and R. 178 (b). And where a father and son took a farm on the joint account, and kept a stock of sheep, their joint property, and upon the death of the son, the father carried on the business for the joint benefit of himself and his son's children, who were infants; it was held, upon an indictment for stealing sheep bred from the joint stock, some before and some after the death of the son, that the property was well laid in the father and his son's children. Scott's case, R. and R. 13 (c); 2 East, P. C. 655.

Under a statute of the same session, the 7 Geo. 4, c. 46, s. 9, in indictments or informations by or on behalf of joint stock banking copartnerships, for stealing or embezzling, money, goods, effects, bills, notes, securities, or other property belonging to them, or for any fraud, forgery, crime, or offence committed against or with intent to injure or defraud such copartnership, the money, &c., may be stated to be the property of, and the intent may be laid to defraud any one of the public officers of such copartnership, and the name of any one of their public officers may be used in all indictments or informations, where it otherwise would be necessary to name the persons forming the company.

Proof of ownership-goods in the possession of children.] Clothes and other necessaries, provided for children by their parents, are often laid to be the property of the parents, especially where the children are of tender age; but it is good either way. 2 East, P. C. 654; 2 Russell, 160. In a case, at the Old Bailey, in 1791, it was doubted whether the property of a gold chain, which was taken from a child's neck, who had worn it for four years, ought not to be laid to be in the father. But Tanner, an ancient clerk in court, said that it had always been usual to lay it to be the goods of the child in such case, and that many indictments, which had laid them to be the property of the father, had been ordered to be altered by the judges. 2 East, P. C. 654. Where a son, nineteen years of age, was apprenticed to his father, and, in pursuance of the indentures of apprenticeship, was furnished with clothes by the *father, it was held that the clothes were the property of the [*583] son exclusively, and ought not to have been laid in the indictment to be the property of the father. Forsgate's case, 1 Leach, 463.

(a) Eng. Com. I. Rep. xxiv. 445. (b) 1 Eng. C. C. 178. (e) Id. 13.

Proof of ownership—goods in possession of the bailees.] Any one, who has a special property in goods stolen, may lay them to be his in an indictment, as a bailee, pawnee, lessee for years, carrier, or the like; a fortiori, they may be laid to be the property of the respective owners, and the indictment is good either way. But if it appear in evidence that the party, whose goods they are laid to be, had neither the property nor the possession, (and for this purpose the possession of a feme covert or servant is, generally speaking, the possession of the husband or master,) the prisoner ought to be acquitted on that indictment. 1 Hale, P. C. 513; 2 East, P. C. 652. Many cases have been decided on this principle.

Goods stolen from a washer-woman, who takes in the linen of other persons to wash, may be laid to be her property; for persons of this description have a possessory property, and are answerable to their employers, and could all maintain an appeal of robbery or larceny, and have restitution. Packer's case, 2 East, P. C. 653; 1 Leach, 357 (n.).

So an agister, who only takes in sheep to agist for another, may lay them to be his property, for he has the possession of them, and may maintain trespass against any who takes them away. Woodward's case, 2 East, P. C. 653; 1 Leach, 357 (n.).

A coach-master, in whose coach-house a carriage is placed for safe custody, and who is answerable for it, may lay the property in himself. Taylor's case, 1 Leach, 356. So where a glass was stolen from a lady's chariot, which had been put up in a coach-yard, at Chelsea, while the owner was at Ranelagh, the property was held to be properly laid in the master of the yard. Statham's case, cited 1 Leach, 357.

Goods at an inn, used by a guest, where stolen, may be laid to be either the property of the innkeeper or the guest. Todd's case, 2 East, P. C. 653.

Where the landlord of a public-house had the care of a box belonging to a benefit society, and, by the rules, he ought to have had a key, but in fact had none, and two of the stewards had each a key; the box being stolen, upon an indictment, laying the property in the landlord, Parke, J., held that there was sufficient evidence to go to the jury of the property being in the landlord alone (1). Wymer's case, 4 C. and P. 391 (a).

Proof of ownership-bailees-goods in possession of carriers-drivers of stage-coaches, &c.] Carriers, as bailees of goods, have such a possession as to render an indictment, laying the property in them, good. Supra. And so it has been held, with regard to the driver of a stagecoach. The prisoner was indicted for stealing goods, the property of one Markham. The goods had been sent by the coach driven by Markham, [ *584] and had been stolen *from the boot on the road. The question was whether the goods were properly laid to be the property of Markham, who was not the owner, but only the driver of the coach, there being no contract between him and the proprietors that he should be liable for any thing stolen; and it not appearing that he had been guilty of any laches. Upon a case reserved, the judges were of opinion that the property was rightly laid in Markham; for though, as against his employers, he, as dri(1) So as to goods in possession of a captain of a vessel. Williams's case, 1 Rogers' Rec.

29.

(a) Eng. Com. L. Rep. xix. 436.

ver, had only the bare charge of the property committed to him, and not the legal possession, which remained in his masters, yet, as against all the rest of the world, he must be considered to have such a special property therein as would support a count, charging them as his goods; for he had, in fact the possession of and control over them; and they were intrusted to his custody and disposal during the journey. They said that the law, upon an indictment against the driver of a stage-coach, on the prosecution of the proprietors, considers the driver to have the bare charge of the goods belonging to the coach; but, on a charge against any other person, for taking them tortiously and feloniously out of the driver's custody, he must be considered as the possessor. Deakin's case, 2 Leach, 862, 876; 2 East, P. C. 653.

Proof of ownership-goods of deceased persons, executors, &c.] Where a person dies intestate, and the goods of the deceased are stolen before administration granted, the property must be laid in the ordinary ; but if he dies, leaving a will, and making executors, the property may be laid in the executor, though he has not proved the will; and it is not necessary that the prosecutor should name himself ordinary or executor, because he proceeds on his own possession (1). 1 Hale, P. C. 514; 2 East, P. C. 652.

Where a deceased had appointed executors who would not prove the will, Bolland, B., and Coleridge, J., held that the property must be laid in the ordinary, and not in a person who, after the commission of the offence, but before the indictment, had taken out letters of administration. George Smith's case, 7 C. and P. 147 (a).

There can be no property in a dead corpse, and though a high misdemeanor, the stealing of it is no felony. A shroud stolen from the corpse must be laid to be the property of the executors, or of whoever else buried the deceased. So the coffin may be laid to be the goods of the executor. But if it do not readily appear who is the personal representative of the deceased, laying the goods to be the goods of a person unknown is sufficient. 2 East, P. C. 652; 2 Russell, 163.

In some cases, the property of an intestate has been held to be rightly described as being in the party in actual possession, no administration having been granted. D. and C. were partners; C. died intestate, leaving a widow and children. From the time of his death, the widow acted as partner with D., and attended to the business of the shop. Three weeks after his death part of the goods were stolen, and were described in the indictment as the goods of D. and the widow. It was [*585] contended, that the name of the children, as next of kin, should have been joined, or that the property should have been laid in D. and the ordinary; but Chambre, J., held, that actual possession, as owner, was sufficient, and the judges, on a case reserved, were of the same opinion. Gaby's case, Russ. and Ry. 178 (b). So where a father and son carried on business as farmers, and the son died intestate, after which the father carried on the business for the joint benefit of himself and the son's next of kin ; some of the sheep being stolen, and being laid as the property of the father

(1) Property cannot be laid as belonging to a person deceased. State v. Davis, 2 Car. Law Rep. 291.

(a) Eng. Com. L. Rep. xxxii. 473. (b) 1 Eng. C. C. 178.

and next of kin, the judges, on a case reserved, held the indictment right. Scott's case, Russ. and Ry. 13 (a).

Proof of ownership-goods of lodgers.] Where a room, and the furniture in it, are let to a lodger, he has the sole right to the possession, and if the goods are stolen, it has been held, in two cases, by the judges, that the property must be laid in the lodger. Belstead's case, Russ. and Ry. 411 (b); Brunswick's case, 1 Moody, C. C. 26 (c).

Proof of ownership-goods of married women.] Where goods, in the possession of a married woman, are stolen, they must not be described as her property, but as that of her husband; for her possession is his possession. 2 East, P. C. 652. See French's case, Russ. and Ry. 491 (d); Wilford's case, Id. 517 (e), stated ante, p. 319. Where the goods of a feme sole are stolen, and she afterwards marries, she may be described by her maiden name. Turner's case, 1 Leach, 536.

Proof of ownership-goods of persons unknown.] Felony may be committed in stealing goods, though the owner is not known, and they may be described in the indictment as the goods of a person to the jurors unknown; and the king is entitled to them. 1 Hale, P. C. 512; 2 East, P. C. 651. But if the owner be really known, an indictment, alleging the goods to be the property of a person unknown, is improper, and the prisoner must be discharged upon that indictment. 2 East, P. C. 651. See Walker's case, 3 Campb. 264; Bush's case, Russ. and Ry. 372 (ƒ), stated ante, p. 96.

In prosecutions for stealing the goods of a person unknown, some proof must be given sufficient to raise a reasonable presumption that the taking was felonious, or invito domino; it is not enough that the prisoner is unable to give a good account how he came by the goods. 2 East, P. C. 651; 2 Hale, P. C. 290.

An indictment for plundering a wreck contained two counts. The first count stated the property in the ship to be in certain persons named; the second, in persons unknown. The witness for the prosecution could not recollect the christian name of some of the owners. The counsel for the crown then relied upon the second count, but Richards, C. B., said, "I think the prisoner must be acquitted. The owners, it appears, are known, but the evidence is defective on the point. How can I say that the owners are unknown?" Robinson's case, Holt's N. P. C. 596 (g).

[*586] *Proof of ownership-goods of servants.] In general, the possession of a servant is the possession of the master, the servant having merely the charge and custody of the goods; and in such case, the property must be laid in the master and not in the servant (1). 2 East, P. C. 652; 2 Russell, 158. Upon an indictment for stealing goods from a dissenting chapel, laying the property in one Evans, it appeared that Evans was the servant of the trustees of the chapel; that he had a salary of 51. a year, with the care of the chapel, and the things in it, to clean

(1) Comm. v. Morse, 14 Mass. 217. monds, 1 N Hamp. 289.

Norton v. The People, 8 Cowen, 137.

(a) 1 Eng. C. C. 13. (b) ld. 411. (c) 2 Id. 26. (d) 1 Id. 491. (e) Id. 517. (g) Eng. Com. L. Rep. iii. 191.

Poole v. Sy

(ƒ) Id. 372.