We have seen that where the master and owner of a ship took some of the goods delivered to him to carry, it was held not to be larceny, as he did not take the goods out of their package: and it was also held that even if under the circumstances it had amounted to larceny, it would not have been an offence within the repealed statute of the 24 Geo. 2. (c) (c) Rex v. Madox, Mich. T. 1805. Russ. & Ry. 92. Ante, p. 135. CHAPTER THE SIXTEENTH. OF LARCENY BY SERVANTS, AND PERSONS WHO HAVE THE SOME statutes upon this subject were repealed by the 7 & 8 Geo. 4. c. 27. having been for a long time but little resorted to, as the common law applies to the fraudulent conversion by a servant, to his own use, of the goods of his master. The punishment for a Offences at felonious stealing by a servant from his master, is made more severe than in an ordinary case of larceny by 7 & 8 Geo. 4. c. 29. which will be more fully mentioned at the close of this Chapter. The clear maxim of the common law established by a variety of cases, is, that where a party has only the bare charge or custody of the goods of another, the legal possession remains in the owner; and the party may be guilty of trespass and larceny in fraudulently converting the same to his own use. (a) And this rule appears to hold universally in the case of servants, whose possession of their master's goods, by their delivery or permission, is the possession of the master himself. (b) In support of this maxim of the common law here laid down, it will be proper to cite some of the more modern cases in which it has been recognized. common law. Sheriff's of A sheriff's officer clandestinely selling for his own use part of Eastall's case. the goods which he has seized under a writ of fieri facias, is guilty ficer clandesof larceny. The prisoner, a sheriff's officer, under a writ of fieri tinely selling facias against one Bell, seized the goods in Bell's house, amongst goods levied. which were some engravings in a locked closet. He removed a bead from the door of that closet, took out the engravings, and sold them for his own use. Upon an indictment against him for larceny, it was urged that this was a breach of trust only; but upon the point being saved, the Judges held it a larceny; on the ground that the officer had the custody of the goods only, like a servant, and not the legal possession: and the conviction was held to be right. (c) The prisoner was indicted for stealing a bill of exchange of the value of 100%. the property of the prosecutor. It appeared in evidence, that he was foreman and book-keeper to the prosecutor, who was a mercer at Devizes, at a yearly salary, and paid and received money for him, not living in the house, but going there (a) 2 East. P. C. c. 16. s. 14. p. 564, et sequ. and the authorities there cited. And see as to a bare charge or custody, ante, 106, 107. (b) 2 East. P. C. ibid. Ante, 107. Paradice's e case. The prisoner who was employed as a foreman and book-keeper, not residing in the house of his master, embezzled a bill of exchange, which he received from his mas ter to be transmitted to ent, in the usual course every day to transact his business. The prosecutor delivered bills to him to the amount of 1,500l., and amongst them the bill in question, with directions to enclose them in different covers, and send them by that day's post, as he had often sent bills before, to his correspondent in London, as cash to be carried to the credit of the prosecutor's account. The prisoner did not send the bills as he was directed; and the next day, having obtained the prosecutor's leave to go to visit some relations in the neighbourhood, a correspond- he went to Salisbury, got cash for the bill in question, which had been indorsed by the prosecutor, and was also indorsed by the prisoner, and then went off; but was afterwards apprehended at Exeter, with part of the bills and the money. It was contended on behalf of the prisoner at the trial, that the prosecutor, having delivered the bills to him, had thereby parted with the possession of them, so that the prisoner could not be guilty of felony in taking them away; and the case was resembled to that of a carrier intrusted to carry goods. (d) But the prisoner was convicted; and judgment was respited, in order to take the opinion of the Judges, whether the case amounted to felony, or was only a breach of trust. They were all of opinion (with the exception of Lord Camden, who was absent,) that the case amounted to larceny; upon the principle that the possession still continued in the master. (e) and it was holden to be larceny. Robinson's case. Bass's case. The prisoner, who was a servant and porter in the general employ of the prosecutor, goods de livered to him by his master to carry to a customer, which he sold, and converted the money to his own use: and this was holden to be larceny; the possession of the goods not being out of such delivery. A carter going away with his master's cart was holden to have been guilty of felony. (f) The prisoner was convicted of stealing gauze of the value of eighty pounds, the property of the prosecutor: and the case was referred to the consideration of the twelve Judges, upon the following facts. The prisoner was servant and porter in the general employ of the prosecutor, who was a gauze-weaver, and was sent with a package of goods from his master's house, with directions to deliver them to a customer at a particular place. In his way he met two men, who invited him into a public-house to drink with them, and then persuaded him to open the package, and sell the goods to a person whom one of the men brought in; which he accordingly did, by taking them out of the package, putting them into the man's bag, and receiving to his own use, part of the money for which they were sold. All the Judges held this to be felony, on the ground that the possession of the goods still remained in the master. (g) In a case where the master of a captured vessel got property from the vessel clandestinely under particular circumstances, it the master by seems to have been held not to amount to larceny. The vessel was Prussian, sent in by a British cruizer, and at first ordered to be restored, but afterwards, hostilities breaking out with Prussia, condemned as prize to the king, as having been taken before hostilities. The captain of the vessel lodged on shore, but went oc (d) Ante, 134, et sequ. (e) Paradice's case, cor. Gould, J., Sarum Lent Ass. 1766. East. T. 1766. 2 East. P. C. c. 16. s. 15. p. 565., and cited by Gould, J., in Wilkins' case, 1 Leach 523, 524. (f) Robinson's case, O. B. 1755. 2 East. P. C. c. 16. s. 15. p. 565. (g) Bass's case, 1 Leach 251, 523, 524. 2 East. P. C.. c. 16. s. 15. p. 566. Spears's case. A cornfactor chased a cargo having pur casionally to the ship; the shipkeeper, who was appointed when the ship was brought in, kept the keys of the hatches, and two custom-house officers and nine of the original crew remained on board. The property in question was secretly conveyed from the ship, and found at the master's, or at a place to which he had sent it, and it appeared that a bulk-head had been broken to get at part of such property. But the learned Judge before whom the prisoner was tried, doubted whether this regaining the possession of what had belonged to the master's owners, and had been entrusted to his care, amounted to a larceny, and saved the point. And ultimately the prisoner was recommended for pardon. (h) In a case where the prisoner had been convicted for stealing forty bushels of oats, a question, whether the facts amounted to felony, was reserved for the opinion of the Judges. The prose cutors, who were cornfactors, had purchased a cargo of oats on of oats on board a ship, lying in the river Thames; and they sent the pri- board a ship, soner, who was employed in their service as a lighterman, with vant with his their barge, to one Wilson, a corn-meter, for as much oats, in barge to reloose bulk, as the barge would carry. The prisoner proceeded to ceive part of the ship, and received from Wilson two hundred and twenty quar- loose bulk ; ters of oats in loose bulk, and five quarters in sacks. The five and the serquarters were put into sacks by order of the prisoner; and were some of them afterwards embezzled by him. The question submitted to the to be put into Judges was, whether this was felony, as the oats had never been sacks, which in the possession of the prosecutors; or whether it was not like the he afterwards case of a servant receiving charge of, or buying, a thing for his this was hold. master, and never delivering it. And the Judges held that it was en to be larlarceny in the prisoner; and a taking from the actual possession ceny: of the owner, as much as if the oats had been in his granary. (i) sent his ser the oats in vant ordered embezzled : corn on board a vessel, and The following is a case of a similar nature. The prisoner was Abrahat's indicted (as in the former case) upon the statute, 24 Geo. 2. c. 45. case. The prosecufor stealing five quarters of oats from a vessel on the navigable tors, being river Thames. The prosecutors, in whom the property was laid, cornfactors, were cornfactors; and the prisoner was their servant; and had purchased been employed by them many years in superintending the unloading of their corn vessels. The prosecutors had purchased two sent their hundred and forty quarters of oats, on board a Dutch vessel, lying barge to rein the river Thames; and while the corn-meters were in the act bulk; when of unloading the oats from the Dutch vessel into the prosecutors' their servant, barge, the prisoner, with another person, came alongside in a ployed by boat, handed ten empty sacks on board the Dutch vessel, and de- them to supersired that the sacks might be filled with oats, and tied, as they intend the dewere going to be put into an up-country lug-boat. He also delivery, sepasired that the account of the oats, put into the sacks, might be from the rest, (h) Rex v. Vanmuyer, cor. Chambre, J., and before the Judges in Mich. T. 1806. MS. Bayley, J., and Russ. & Ry.118. In MS. Bayley, J., it is observed that there was no evidence to shew that the Master took the property for himself in opposition to the intention of his owners: and that most of the Judges seemed to think it would have been larceny if he had, (i) Spears's case, Kingston Spr. ceive it in who was em a part while on carried to the score, and no separate account be made of them. board the ves- The whole of the two hundred and forty quarters of oats, ex sel, and em bezzled it : and it was holden to be larceny. Larceny of sheep by a person hired to drive them to a certain tending to convert them to his own cepting the five quarters put into the sacks by the prisoner's desire, were loaded, in loose bulk, into the prosecutors' barge. After the sacks were filled, a person, by the prisoner's direction, took them away from the vessel to a place where they were delivered to the person who purchased them of the prisoner. The prisoner had never been employed by the prosecutors to sell corn for them; nor was he authorized so to do. Upon these facts the jury found the prisoner guilty; and, the case being saved for the opinion of the Judges, they were of opinion that the conviction was right. (k) It is observed that in this case there appears to have been a tort committed by the servant in the very act of the taking; that the property of his masters in the corn was complete before the delivery to him; and that, after the purchase of it in the vessel, they had a lawful and exclusive possession of it as against all the world, but the owner of the vessel. () Where property which the prosecutors had bought was weighed out in the presence of their clerk, and delivered to their carter's servant to cart, who let other persons take away the cart, and dispose of the property for his benefit jointly with that of the other persons, the carter's servant, as well as the other persons, was held to be guilty of larceny at common law. The prosecutors contracted for some barilla lying at the London docks; their clerk went to see it weighed, and after having been weighed in his presence, it was delivered to one of the prisoners, Harding, a carman's man, to cart. By contrivance between Harding and the other prisoners, he left the cart on his way to the prosecutor's, and the others drove it away and disposed of the barilla. The learned Judge told the jury that if Harding was to receive any benefit from the disposition he was equally guilty with the other prisoners; and the jury found all the prisoners guilty; and upon the point being saved, whether as the barilla was delivered to Harding to cart, the taking amounted to a larceny, the Judges held that it did. (m) It is larceny if a person, hired for the special purpose of driving sheep to a fair, convert them to his own use; having an intention of doing so at the time of receiving them from the owner. The prosecutor saw the prisoner at Bristol fair on a Thursday, place, and in- and hired him to drive fifty sheep for him to Bradford fair, and he was to meet the prosecutor on the following Sunday evening, with the sheep, at the turnpike-gate nearest to Bradford. The use at the time prisoner had no authority to sell the sheep; he was merely to drive them to Bradford, and for doing so to receive 2s. 6d. per day. He did not come to the turnpike-gate on the Sunday, nor to Bradford fair, which was held on the following day. The prosecutor afterwards found forty of his sheep in a field at a place quite in an opposite direction to Bradford; and it appeared that he received them from the owner, (k) Abrahat's case, Surrey Spr. Ass. 1798. 2 Leach 824. 2 East. P. C. c. 16. s. 16. p. 569. (7) 2 East. P. C. c. 16. s. 16. p. 570. (m) Rex v. Harding and others, tried before Lawrence, J., and considered by the Judges Hil. T. 1807. MS. Bayley, J., and Russ. & Ry. 125. |