The ownership will not be divested

owner by an intermediate tortious tak

ing.

:

Co. lightermen to enter it for exportation, and carry it to the ship. Exportation exempts it from duty, which is two shillings and sixpence per pound. Marsh and Co. entered it accordingly, and gave bond to the crown for its exportation, and sent it by their lighter to the ship and on the way to the ship, W. Marsden, J. Marsden, and Wilkinson, who had charge of the lighter, took out the nux vomica, and substituted cinders and rubbish, the object being to get the nux vomica duty free. The indictment was against J. Marsden and Wilkinson for stealing the goods of Marsh and Co., and upon a case reserved, four of the Judges, Richardson, Burrough, Wood, and Graham, doubted whether this were larceny, because there was no intent to cheat Marsh and Co., or to charge them, but the intent was to cheat the crown, but seven Judges, (Best, J., being absent,) held it a larceny, on the grounds that Marsh and Co. had a right to the possession until the goods reached the ship, and had an interest in that possession, and that the intent to deprive them of that possession wrongfully, and against their will, was a felonious intent as against them, because it exposed them to a suit upon their bond, and that even if there had been no intent as against them, the intent to cheat the crown was in the opinion of most of the seven Judges sufficient to make it a larceny. (1)

The real owner of goods will not be deprived either of the proIf, perty or possession in law of them by a felonious taking. from the true therefore, A. steal the goods of B., and afterwards C. steal the same goods from A., in such case C. is a felon, both as to A. and as to B., and he may be indicted for stealing the goods of B. (m) Upon this subject Gould, J., in delivering the opinion of the twelve Judges in a modern case, said, "It is a rule of law equally "well known and established that the possession of the true owner cannot be divested by a tortious taking; and therefore if "a person unlawfully take my goods, and a second person take "them again from him, I may, if the goods were feloniously "taken, indict such second person for the theft, and allege in the "indictment, that the goods are my property: because these acts "of theft do not change the possession of the true owner." And he further stated it to be his opinion that the doctrine would also hold where the goods are taken from the possession of the true owner by means of fraud: as otherwise a man might derive an advantage from his own wrong. (n)

Ownership sufficient where there

But a distinction is taken in the following case. If A. steals the horse of B., and afterwards delivers it to C. who was no party to the first stealing, and C. rides away with it animo furandi, yet C. is no felon to B.: because, though the horse was stolen from B., yet it was stolen by A., and not by C., for C. did not take it; neither is he a felon to A., for he had it by his delivery. (0)

There is no doubt that there may be a sufficient ownership of the goods stolen in a person who has only a special property in

(1) Rex v. Wilkinson and others, Mich. T. 1821, MS. Bayley, J., and Russ. & Ry. 470.

(m) 1 Hale 507. 2 East. P. C. c. 16.

s. 90. p. 654.

(n) By Gould, J., O. B. 1790, in Wilkins's case, 1 Leach 582, 523.

(0) Hale 507.

them; and that they may be laid as the goods and chattels of such
in the indictment. A lessee for years, a bailee, a pawnee,
person
a carrier, and the like, have such special property; and the in-
dictinent will be good, if it lay the property of the goods, either
in the real owners, or in the persons having only such special
property in them. (p) So where goods belonging to a guest at an
inn are stolen, they may be laid to be the property either of the
innkeeper or the guest. (q) And linen stolen from a washer-
woman, by whom it was taken in to wash in the course of her
business, may be laid as her goods. (r) In cases of this kind it is
considered that the parties have a possessory property; being
answerable to their employers, and being capable of maintaining an
appeal of robbery or larceny, and having restitution. (s)

It has also been holden, that an agister of cattle has such a special property in them that they may be laid as his goods in the indictment. When this case was referred to the Judges, after the conviction of the prisoner, there was at first some doubt upon the point: one of the Judges observing that an agister of cattle is not liable for them at all events, like an innkeeper for the goods of his guest; but ultimately all the Judges agreed that the conviction was right. (t)

In a case where, upon an indictment for stealing a windowglass and hammer-cloth from a carriage, it appeared that the prosecutor, in whom the property was laid, was a coachmaster, and had the care of the carriage, which stood in a coach-house in his yard, at the time the articles were stolen from it; an objection that the property should have been laid in the owner of the carriage was overruled. (u) And a case was at the same time referred to by the court in which a prisoner was convicted of stealing a chariot glass from a lady's chariot which had been put up at a coach-yard at Chelsea, while the owner of it was at Ranelagh ; and the property was laid to be in the master of the yard, where the chariot had been put up. (x)

is only a special property

in the goods.

where the custodia legis.

goods were in

If goods seized under a writ of fieri facias are stolen, they may Ownership be described as the goods of the party against whom the writ issued, for, though they are in custodid legis, the original owner continues to have a property in them until they are sold: if he pays the debt he is entitled to have them returned, and his debt to the plaintiff in the suit continues undiminished, until the goods seized are applied to its liquidation. And the sheriff is accountable to the original owner for the goods so seized. A sheriff's officer seized goods under a writ of fieri facias against J. S., and after

Ownership, where the goods are in

the custody of

servants.

Deakin's case. Where a box was stolen

from a stage

wards stole part thereof. The indictment against him described the goods as the goods of J. S., upon which it was objected that they were no longer the goods of J. S., and should have been described as the goods of the sheriff: but, upon the point being saved, the Judges held that notwithstanding the seizure, the general property remained in J. S., as the loss would fall upon him if they did not go to liquidate the debt, that the seizure left the debt as it was, and that the whole debt continued until the goods were applied towards its discharge. (y)

But the indictment will not be sustainable if it appear in evidence that the party in whom the goods are laid had neither the property nor the possession of them; as is usually the case of a feme covert or servant, who have in their custody the goods of the husband or master. (s) In a late case it was decided that the goods in a dissenting chapel vested in trustees could not be described as the goods of a servant who had merely the care of the chapel, and the things in it, to clean and keep them in order, though he had the key of the chapel, and no person except the minister had any other key. The indictment was for stealing the chandelier and sconces of a dissenting chapel vested in trustees: and the things were described as the property of the trustees, and also of one Evans. The evidence as to the property of the trustees failed, and it appeared that Evans was servant to the trustees, and had the care of the chapel and the things in it, for the purpose of cleaning and keeping them in order, and that he had the only keys, except that the minister had a key of the vestry, from whence he could enter the chapel. Upon Upon a case reserved, the Judges were of opinion that the property could not be considered as the property of Evans. (a) But though, generally speaking, the possession of the servant is the possession of the master, (b) yet there are some cases where a kind of special property has been considered to exist in the servant. Respecting the case lately mentioned, of a master delivering money to his servant to carry to a certain place, and then robbing his servant on the road, a learned writer observes, "I see no objection to laying the pro"perty of the goods in the servant; for though, in general, it may "be said that he has no property in them, as against his master, "although he has against every other person; yet having a clear "right to defend his possession against A.'s unlawful demand, "the special property still remains in the servant. But a taking "from the servant of the money or goods of his master, in his presence, by putting in fear, is a taking from the master, and "the offender may be indicted for robbing him." (c)

66

The question concerning the sort of possession, or special property, which a servant may have in the goods of his master, was much discussed in a modern case, where a stage-coach having

(y) Rex v. Eastall, Mich. T. 1822. MS. Bayley, J.

(z) 2 East. P. C. c. 16. s. 90. p. 652, 653.

(a) Rex v. Hutchinson, East. T. 1820. MS. Bayley, J., and Russ. & Ry. 412.

(b) Post, Chap. XVII. On Larceny, &c. by Servants. And ante, 106, et seq. as to the distinction between a bare charge and a possession of goods delivered.

(c) 2 East. P. C. c. 16. s. 90. p. 654. ante, 155.

holden that it

been robbed of a box containing a variety of articles, it became coach on its material to determine whether the goods so stolen could be laid as journey, it was the property of the coachman. There were three counts in the might be laid indictment: but one of them which laid the property in the as the property coach-proprietors failed on account of a variance; another, which of the coach. laid the property in persons unknown, was rejected by the court as improper in this case; and the case, therefore, necessarily proceeded upon the remaining count, which laid the property in the coachman. It appeared in evidence, that the box was delivered by the servant of a tradesman in London to the book-keeper at the inn from which the coach set off, who called it over amongst other things in the way-bill, and delivered it to a porter, who put it into the coach; and that the coachman, in whom the property was laid, drove the coach to a place about thirty-eight miles from London, during which journey the box was stolen from the coach by the prisoners. It also appeared, that the proprietors of the coach never called upon the coachman to make good any losses, except when they happened by his neglect; and that for goods stolen privately from the coach they never expected any compensation from the driver.

The jury having found the prisoners guilty, the case was saved for the consideration of the Judges; and, after it had been ably argued, a majority of the Judges were of opinion that the property was well laid to be in the driver. Hotham, B., who delivered their opinion, said, that the material question was, whether the driver had the possession of the goods, or only the bare charge of them; but that the case was not open to that distinction: for although, as against his employers the masters of the coach, the mere driver can only have the bare charge of the property committed to him, and not the legal possession of it, which remains in the coach-masters; yet, as against all the rest of the world, he must be considered to have such a special property therein, as will support a count charging them as his goods; for he has in fact the possession of and controul over them; and they are entrusted to his custody and disposal during the journey. And the learned Judge further observed, that the inconvenience would be great indeed, if the law were otherwise: as the difficulties and mistakes which must unavoidably arise in seeking after all the persons concerned as proprietors of a stage-coach, for the purpose of prosecuting an indictment of this nature, would be endless and insurmountable. That the law, therefore, on 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. (e)

Property may be laid as belonging to the real owner though it never was actually in his possession but in the possession of his agent only; as in the following case. Turner as agent for Nash sent up notes to Morgan another of Nash's agents, and Morgan

(e) Rex v. Deakin and Smith, O. B. 1800, 2 Leach 875, 876. 2 East. P. C. c. 16. s. 90. p. 653.

Ownership of
the cloaths,
&c. of child-
ren.

Scott's case. Property of sheep laid jointly in a grandfather and grandchildren.

as agent for Nash sent them by the coach directed to Walker: and the prisoner stole them from the coach. The indictment having described them as Nash's, it was urged that they could not be so described because Nash never had them except by the hands of his agents; but all the Judges thought they had been rightly described, and held the conviction right. (f) But the property cannot be laid in a man who has never had either actual or constructive possession, except as far as it resulted from the possession of the thief and of persons acting under him. Thus where Paul had ordered a hat of Beer and the prisoner sent for it in Paul's name and got it, and was indicted for stealing Paul's hat, the Judges held that the property could not be said to be in Paul.(g)

Cloaths, and other necessaries provided for children by their parents, are often laid to be the property of the parents, especially while the children are of tender age; but it is holden good either way. (h) There are cases, however, of exclusive property in the children. Thus, in a case where the prisoner was charged with stealing wearing apparel, the property of John Wilson, and it appeared in evidence that the wearing apparel had been furnished by John Wilson to his son George, and that the son was nineteen years of age and bound apprentice to his father, who had covenanted to find him in clothing; the court held that the indictment was defective, and that the wearing apparel was exclusively the property of the son, who had been furnished with it in pursuance of the condition of the indentures. (i) And in a case which occurred at the Old Bailey above a century ago, upon the court doubting 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, an ancient clerk of the 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. (k)

In a case where the prisoner was indicted for sheep-stealing, the property was laid in Simon Dodd the elder, Simon Dodd the younger, and several other persons of the same name. The evidence was, that Simon Dodd the elder, and a son of his, who afterwards died, took a farm on their joint concern, and kept a stock of sheep, which was their joint property, upon it; that the son died intestate about five years ago, leaving a widow, who died soon after him, and several children (being the Simon Dodd the younger and the other persons named in the indictment); that no division was ever made of the stock; and that it was from the same stock that all the sheep upon the farm at the time of the felony committed were bred; some before and some after the son's

(f) Rex v. Remnant, Mich. T. 1807, MS. Bayley, J., and Russ. & Ry. 136. (g) Rex v. Adams, East. T. 1812, MS. Bayley, J., and Russ. & Ry. 225. (h) 2 East. P. C. c. 16. s. 91. p. 654. 12 Rep. 113.

(i) Forsgate's case, O. B. 1787, 1

Leach 463.

(k) Anon. O. B. 1701, 2 East. P. C. c. 16. s. 91. p. 654. 1 Leach 464. note (a). If apparel be put upon a boy, this is a gift in the law; for the boy hath capacity to take it. Haynes's case, 12 Rep. 113.