1 ARTICLE 306. POSSESSION. A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of al other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. A movable thing is in the possession of the husband of any woman, or the master of any servant, who has the custody of it for him, and from whom he can take it at pleasure. The word "servant " here includes any person acting as a servant for any particular purpose or occasion. The word "custody" means such a relation towards the thing as would constitute possession if the person having custody had it on his own account. If a servant receives anything for his master from a third person, not being a fellow-servant, he has the possession as distinguished from the custody of it, until he has put it into his master's possession, by putting it into a place or thing belonging to his master, or by some other act of the same sort, whether the servant himself has or has not the custody of that place or thing. If a servant receives anything belonging to his master from a fellow-servant who has received it from their common master, such thing continues to be in the possession of the master, unless the servant who delivered it delivered it with the intention to pass the property therein to the servant to whom it is delivered, having authority to do so from the master. If a servant receives anything belonging to his master from a fellow-servant who has received it on the master's account, and has done no act to put it into the master's possession, it is in the possession of the servant who so receives it, and not in his custody merely. 1 See Note XI. Such violation may be: (1.) By taking away property from the owner without his consent (a.) by violence to his person or habitation ; (b.) without such violence. (2.) By persuading the owner by fraud to transfer his rights of property. (3.) By the misappropriation of property intrusted by the owner to the offender. (4.) By acts calculated to defraud, whether they actually defraud or not; that is to say (a.) forgery; (b.) personation; (c.) coining and uttering bad money. (5.) By wilful and malicious mischief done to property. (6.) By breaches of certain kinds of contract and interference in certain cases with freedom of trade. ARTICLE 305. PROPERTY IN MOVABLE THINGS. 1 A person who has a right as against the world at large to do with or to any movable thing anything which the law does not specifically forbid him to do with or to it, and the right to prevent all other persons from doing therewith or thereto anything whatever which they are not specifically authorised to do, either by law or by his consent, is said to be the general owner of that thing, and that thing is said to be his property, although he may have limited the above-mentioned rights respecting it as regards particular persons by contract. capable of being stolen. The definition of theft turns on the doctrine of possession (see Note XI.), and this is unintelligible except in relation to the doctrine of property. 1 2 Austin, Jurisprudence, 876, 965. 1 ARTICLE 306. POSSESSION. A movable thing is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of al other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. A movable thing is in the possession of the husband of any woman, or the master of any servant, who has the custody of it for him, and from whom he can take it at pleasure. The word "servant" here includes any person acting as a servant for any particular purpose or occasion. The word "custody" means such a relation towards the thing as would constitute possession if the person having custody had it on his own account. If a servant receives anything for his master from a third person, not being a fellow-servant, he has the possession as distinguished from the custody of it, until he has put it into his master's possession, by putting it into a place or thing belonging to his master, or by some other act of the same sort, whether the servant himself has or has not the custody of that place or thing. If a servant receives anything belonging to his master from a fellow-servant who has received it from their common master, such thing continues to be in the possession of the master, unless the servant who delivered it delivered it with the intention to pass the property therein to the servant to whom it is delivered, having authority to do so from the master. If a servant receives anything belonging to his master from a fellow-servant who has received it on the master's account, and has done no act to put it into the master's possession, it is in the possession of the servant who so receives it, and not in his custody merely. 1 See Note XI. 1 Illustrations. (1.) 1 A, the master of a house, gives a dinner party; the plate and other things on the table are in his possession, though from time to time they are in the custody of his guests or servants. (2.) 2 A assigns the goods in his house to trustees for the benefit of his creditors. The trustees leave him undisturbed, and do not in any way interfere with the goods. A and not the trustees is in the possession of the goods. 3 The (3.) A produces a receipt stamp, and gets B to write a receipt on it in A's presence as for money paid by A to B. stamp is in A's not B's possession. (4.) A buys a bureau from B at a sale with money in a secret drawer, of the existence of which neither A nor B is aware. The money is not in B's possession (though the bureau which contains it is), because B cannot be presumed to intend to act as the owner of it when he discovers it. (5.) 5 A is clerk to B, a banker, money is paid to A on B's account, A keeps it for a short time, and then puts it into the till. The money is in A's possession till it is put into the till, when it passes into B's possession, though A may have the custody of it. (6.) 6 B leaves a watch with its maker to be regulated. A writes to the maker to send the watch to B at a certain postoffice. A then goes to the post-office, and, pretending to be B, gets the watch. As soon as the watch reaches the post-office addressed to B, it is in B's possession, as the postmaster, as regards the letter and watch, is the servant of the owner. pay (7.) B being prevented by a crowd from getting near the place at a railway station, hands a sovereign to A, who is close to it, to pay for her ticket, and give her the change. reign is in B's possession, but in A's custody. The sove (8.) 8 B sends his servant A with a cart of B's to fetch coals for B from C. A receives the coals from C, carries them in 1 Founded on 1 Hale, P. C. 506. 2 R. v. Pratt, 1854, D. & P. 360. 3 R. v. John Smith, 1852, 2 Den. 449. Cartwright v. Green, 1803, 8 Ves. 405; Merry v. Green, 1841, 7 M. & W. 623. This case led to the first Act 5 Bazeley's Case, 1799, 2 Leach, 835. against embezzlement by clerks and servants. No opinion was publicly delivered in it, but the judges seem to have considered that the act was not felony. Several similar cases are quoted in the argument. 6 R. v. Kay, 1857, D. & B. 231. See Bramwell, B.'s, remarks on this case in R. v. Middleton, 1873, 2 C. C. R., at p. 58. 7 R. v. G. Thompson, 1862, L. & C. 225. 8 R. v. Reed, 1853, D. & P. 168, 257. sacks on his back to the cart, puts them into the cart, and drives it back to B. The cart is throughout in B's possession, but in A's custody. The coals are in A's possession whilst he is carrying them on his back to the cart, but as soon as they are deposited in the cart they are in the possession of B, though both coals and cart continue to be in the custody of A. (9.) A, B's servant, obtains by false pretences B's money from C, another of B's servants. The money after such obtain ing is still in B's possession. (10.) 2 A, B's servant, obtains by false pretences from C, B's cashier, the property in coins which belonged to B till C gave them to A. The possession of the coins is in A. (11.) 3 A, B, and C are all servants to D. D's customers pay money to C, who pays it to A, who pays it to B. B, A, and C each keep separate accounts of their receipts and payments, so as to be checks on each other. Money of D's paid by C to A is in A's possession, and not merely in his custody. 4 ARTICLE 307. SPECIAL OWNER. Every person to whom the general owner of a movable. thing has given a right to the possession as against the general owner is said to be the special owner thereof, or to have a special property therein, and such special property is not divested if the special owner parts with the possession under a mistake. ARTICLE 308. POSSESSOR SPECIAL OWNER AS AGAINST STRANGER. Every person who has obtained by any means the possession of any movable thing is deemed to be the special owner 1 R. v. Cooke, 1871, 1 C. C. R. 295; and see R. v. Robins, 1854, Dear. 418. 2 R. v. H. Thompson, 1862, L. & C. 233. 3 R. v. Masters, 1848, 1 Den. C. C. 332. Mr. Greaves disapproves of this decision, and thinks that in such a case the money would be in the master's possession as soon as the first servant received it on his account. R. v. Murray, 1830, Moo. C. C. 276, perhaps favours this view, but the whole doctrine of possession is so arbitrary and unreal that it is hard to say that one view is better or worse than another. + R. v. Vincent, 1852, 2 Den. 464. |