clothes with, a watchmaker a watch to repair, or a friend property to keep secure, and while the trust continues, they convert them to their own use, they will not be guilty of felony (ƒ). So, if a man hire or borrow a horse for a particular purpose, real or pretended, and after that purpose is over, and before his possession of the animal is interrupted, sells it, such withholding and disposing will not constitute a new felonious taking, unless, at the time when he originally took it into his possession, he had a felonious intent to steal it (g).

But if the lawful possession of the bailee be first determined, as if its term or object has ceased, a subsequent new taking will be larcenous (h). Thus, if a carrier take a parcel with which he is intrusted to the place appointed, and there delivers, or lays it down, and afterwards removes it with intent to steal, such removal will be felony as a new taking (i). Or if the bailee's possession is determined by his tortious act, e. g., by breaking bulk, it will explain his original intent at the time he took charge of the article, and his subsequent taking will amount to felony. Thus it seems clear, that if a carrier during the conveyance of goods open the package containing them and take out part, he will be guilty

(f) Hawk. B. 1, c. 33, s. 2; R. v. Leary, 4 C. & P. 241. See R. v. Charles Smith, 1 Mood. C. C. s. 473.

(g) R. v. Banks's case, Russ. & Ry. C. C. R. 441, A. D. 1821. That case is consistent with R. v. Tunnard, cited from Foster's MSS. East's P. C. 687, and 694, where a mare which was lent to be ridden three miles, was brought up to London and there sold: for Raymond, C. J., in the presence of two other judges at the Old Bailey, left it to the jury to consider, whether Tunnard rode away with her with intent to steal her? and the jury finding in the affirmative, it was holden felony. Of this case Mr. East says (p. 694), perhaps the circumstances would have warranted the finding of the jury that the original hiring was a mere pretence to steal the horse, and therefore that the original taking was felonious. That seems the true point in question in cases of this nature; see R. v. Pear, 2 East, P. C. 685; and the first point left to the jury in Charlewood's case, id. 690. There must not only be an original intention to convert to the hirer's own use, but a subsequent actual conversion; thus, his merely agreeing to take a sum offered for the goods is not enough, if the buyer does not

mean to do so, till his suspicion respecting the hirer's right to sell is removed, R. v. Brooks, 8 C. & P. 295. Again, where a person employed to drive sheep to a fair, without authority to do any thing else, drove them in a different direction, and sold them the morning he took charge of them, and the jury found, that at the time he received them he intended to convert them to his own use, it was held larceny, R. v. Stock, 1 Moo. C. C. 87. Another reason for a similar decision, in R. v. M'Namee, id. 368, was, that the person employed to drive the sheep had the custody merely, and not the right to the possession, which in law remained in the owner; though the other was a general drover, or at least paid by the day.

(h) Whether a mere withholding and disposal of property bailed after the lawful possession of it is ended, with the term or object for which it was delivered over, but without a break in the actual possession, or any fresh taking afterwards, amounts to larceny in itself, without original intent to steal, is very doubtful, since Banks's case, R. & Ry. 441, and 2 East, P. C. 690, 694.

(i) 1 Hale, 505. See 2 East, P. C. 696; 3 Inst. 107.

of larceny (k). A singular doubt which was formerly entertained," whether the guilt of a bailee so opening a package and taking out all the contents amounted to felony, is now removed; and it may now be taken as law, that wherever a carrier, or other bailee, without authority, express or implied, breaks a parcel committed to his care, and takes and carries away the whole, or a part of the contents, with intent to steal, he is guilty of larceny (1). The breaking is, in these cases, the essential ground of distinction; for it was held in a modern case, where the master and owner of a vessel had disposed of parcels committed to him for conveyance, that he was not guilty of larceny, be cause it did not appear that he took the goods out of their packages (m). This decision was again acted on in a case where a man, not a common carrier, but employed to carry thirty trusses of hay for hire, appropriated one truss, without breaking its bulk, and was held not guilty of larceny (n). But where the prosecutor asked a man who was not his servant to put a letter in the post, telling him it contained money, and the man thus intrusted broke the seal and abstracted the money before he put it in the post, he was held guilty of larceny (o).

The Goods taken must be the Property of another.]—A man may, in one case, be guilty of stealing goods which are, in some sense, his own :—e. g. when, having bailed them to another person, he takes them fraudulently, in order to charge the bailee in an action, or by force, in order to charge the hundred (p). But if the goods have been taken from the owner, and wrongfully mingled with others so that they cannot be separated, as if a garment be taken and embroidered, or wood be sawed out into planks, the owner may retake the altered article without committing any offence, however it may be increased in value (q).

Joint tenants, or tenants in common, of a chattel, as partners in trade, cannot commit larceny by abstracting the goods which belong to both, because they have a common interest in them; nor can a wife be guilty of larceny in singly abstracting the goods of the hus

(k) 3 Inst. 107.

(1) R. v. Brazier, Russ. & Ry. 337. See 2 East's P. C. 697, 698.

(m) R. v. Maddox, Russ. & Ry. 92; R. v. Fletcher, 4 C. & P. 545.

(n) R. v. Pratley, 5 C. & P. 533; Parke, J., Oxford Lent Ass. 1833.

(0) R. v. Jones, 7 C. & P. 151, Central Criminal Court. So in the case of a parcel, containing notes, sent to a

coach-office by a person not the employer's servant, who broke the parcel and took out the notes, Reg. v. Jenkins, 9 C. & P. 28.

(p) 1 Hale, 513; Cro. El. 537. In such cases they must be laid to be the bailee's goods. See post.

(g) 1 Hale, 513; Mawman v. Tegg, 2 Russ. R. 391, post; R. v. Tolfree, post.

band (r). But it is not necessary that the owner of goods should be known, in order to sustain an indictment, if there are circumstances which clearly prove them to have been stolen (s). The personal estate of a dead man is the subject of larceny; for where he has appointed executors, it vests in them on his death before probate: where the deceased is intestate, it vests in the ordinary till administration granted, and then in the administrator (t). Even the shroud of a man buried is the property of another, for it belongs in law to those who defrayed the expenses of his funeral (u).

6.-The Goods must be taken with a Felonious Intent to steal them.]—A taking with the bare intent to use the goods, though unlawfully, and to return them, will be only a trespass, if the original intention to return the goods be clear; though if they were ever taken with intent to steal, no restitution will alter the legal aspect of the offence; and in all such cases, the original intention is a question for the jury (x). Thus, where two persons took two horses from a stable, rode them to a place at a distance, and there left them, proceeding on foot, and the jury found that they took the horses merely to forward them on their journey, and not to make any further use of them, this was holden a trespass only, and not a larceny; as, though the horses were taken away against the consent of the owner, the intent to steal was negatived by the finding (x). But it is enough if the taking be lucri causa, for the sake of gain, though that gain may only result collaterally from the possession of the chattel. Thus, it has been holden, that a servant clandestinely taking his master's beans to give to his master's horses, and thereby depriving his master of his property, and diminishing his own labour, is guilty of larceny (y). In one case, where the prisoner took and killed a horse, not for the purpose of deriving any pecuniary advantage from it, but to prevent the horse from being identified as previously stolen by another, this was holden by six judges against five to be larceny (z). But clandestinely removing

(r) 1 Hale, 513. See Ch. VII. sect. 13. Index, tit. Coverture.

(*) 2 Hale, 290.

() 1 Hale, 514. See R. v. Smith, 7 C. & P. 147.

(u) 4 Bla. Com. 235.

(x) R. v. Phillips and Strong, 2 East, P. C. c. 16, s. 98.

(y) R. v. Morfit and Aver, R. & Ry. 307.

(z) R. v. Cabbage, R. & Ry. 292, and ante, p. 236. A carter took into his

master's cart two trusses of hay above the quantity allowed for the horses on a journey; at the end of it, an ostler assisted him in removing them into an inn stable. The larceny by the carter was held completed as soon as the hay was placed in the cart, animo furandi; and the ostler was held properly indicted for receiving it, knowing it to be stolen, Reg. v. Gruncell and Hopkinson, 9 C. & P. 365.

articles belonging to a woman, in order that she may go to seek them in a particular place where the taker may have sexual intercourse with her, has been held not a felonious taking (b).

And where a person having obtained the key of an uninhabited house belonging to a gentleman to whom he was domestic servant, entered it, and threw several articles of furniture into a river which ran near, in which they were destroyed, and the jury found that this was done in revenge for a supposed affront, and with no intention of converting the goods to his own use; the prisoner being tried for larceny was, under direction of the judge, acquitted (c). And even though there be a conversion of the goods, with a fraudulent and wrongful purpose, yet, if the animus furandi was wanting when they were originally acquired, the conversion may not amount to larceny. Thus, during a fire, the prisoner, with other neighbours of the owner of the house which was burning, took several articles in his presence with the alleged design of saving them from the flames; the prisoner, on being asked for the articles she had taken, denied that she had them, but they were found concealed in her possession; the jury found specially that she did not take the goods with a felonious intention, but with a laudable design, and that the design of fraud suggested itself to her mind afterwards; on which the judges were of opinion, that as the jury had negatived the animus furandi at the time of the taking, it was not a felonious taking, and the prisoner was discharged (d).

Where it clearly appeared that the prisoner pledged a stolen artic e to raise money for a temporary purpose, with a reasonable expectation of being soon enabled by receipt of money to regain and restore it, the prisoner was held properly acquitted of larceny (e).

Claim of Right.]—A bona fide claim of right will rebut the presumption of felonious intention, though it may turn out to be groundless. Thus, if the lord of a manor claiming a right of waif and estray, seize a horse as such estray, without any concealment or mark of fraud, this will be no felony (ƒ). But the claim must have a colour of right, and not be set up against known law, as a claim to glean on the lands of

(b) R. v. Dickinson, R. & Ry. 420. (c) R. v. Blyton, A. D. 1791. From Mr. Dickinson's MSS.

(d) R. v. Leigh, 2 East, P. C. c. 16. (e) Reg. v. Phetheon, 9 C. & P. 552;

Gurney, B. confirmed by the other judges. See 1 Hale, 509, 533; 1 Hawk. c. 34, s. 2.

(f) 1 Hale, 596.

another against his will (g), or to plunder a wreck (h); for these will not be excused merely because custom has appeared to sanction such usages.

In general, however, a wrongful taking of property against the will of the owner must be considered as felonious, unless shown by circumstances to be otherwise. But the question of intent is to be gathered from circumstances, on which the jury are to decide; of which the most important is the presence or absence of concealment at the time of, and subsequent to, the taking. The question is always for the jury; and if they entertain any doubt whether the taking were with intent to steal, they ought to acquit the prisoner.

Indictment for Larceny.]-The following is the form of an indictment for larceny at common law :

Berkshire, to wit.

The jurors for (i) our Lady the Queen upon their oath [and

{affirmation, if one be a quaker, &c. see ante, p. 200, &c.], present,

(k) in the county of

that A. B. late of the parish of -, labourer, on the first day of November, in the ninth year of the reign of our Sovereign Lady Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, with force and arms, at the parish aforesaid, in the county aforesaid, one coat of the value of ten shillings, one waistcoat of the value of five shillings, and one pair of shoes of the value of one shilling, of the goods and (1) chattels of one C. D. feloniously did steal, take, and carry away, against the peace of our said Lady the Queen, her crown and dignity.

Indictment for a subsequent Felony after previous Conviction (m).

Berks,

to wit.

The jurors for our Lady the Queen upon their oath [as to adding "and affirmation," see ante, p. 200,] present, that heretofore, to wit, at, &c. [describing the court where the defendant was tried and convicted] on the

(g) Steel v. Houghton, 1 Hen. Bla. 51, 63.

(h) Hamilton v. Davies, 5 Burr. R. 2932.

(i) As to "of," see Reg. v. Turner, 2 M. & Rob. 214; ante, p. 199. This is quasi a suggestion on the roll.

(k) If a place is alleged generally in pleading without some addition to declare the county, e. g. King Street, in the parish of St. Margaret, in the county of Middlesex, as in this case it is, King Street will be esteemed in law a town. When a matter is laid in a parish, it shall be intended in law to contain no more towns than one, unless the contrary is shown, Co. Lit. 125, b.; ante, p. 211.

64

(1) An indictment alleged a larceny of

a piece of linen cloth of A. N." instead "of the goods and chattels of A. N." Held bad for varying from the precedents, and also that "an indictment ought to be certain to every intent, without intendment to the contrary: and here it may be that this piece of linen was not the goods and chattels of A. N. at the time of the taking, but by him let out, or delivered, or pledged to another."

(m) See Archb. Cr. Pl. & Ev. 8th ed. 690. The form is as follows:

These are to certify, that at the assizes and general delivery of the gaol of our Lady the Queen (or at the general quarter session of the peace), holden at