CHAPTER THE SIXTEENTH. OF LARCENY BY SERVANTS, AND PERSONS WHO HAVE THE CUSTODY OF GOODS AS SERVANTS, AND NOT THE LEGAL POSSESSION. SOME statutes upon this subject were repealed by the 7 & 8 Geo. Offences at 4, c. 27, having been for a long time but little resorted to, as the common law. common law applies to the fraudulent conversion by a servant, to his own use, of the goods of his master. The punishment for a felonious stealing by a servant from his master, is made more severe than in an ordinary case of larceny by the 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. clandestinely selling goods A sheriff's officer clandestinely selling for his own use part of the Eastall's case. goods which he has seized under a writ of fieri facias, is guilty of Sheriff's officer larceny. The prisoner, a sheriff's officer, under a writ of fieri facias against one Bell, seized the goods in Bell's house, amongst which levied. 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 Paradice's value of 100%. the property of the prosecutor. It appeared in evi- case. The dence, that he was foreman and book-keeper to the prosecutor, who prisoner who was employed was a mercer at Devizes, at a yearly salary, and paid and received as a foreman money for him, not living in the house, but going there every day to transact his business. The prosecutor delivered bills to him to the (a) 2 East, P. C. c. 16, s. 14, p. 564, et seq. and the authorities there cited. And see as to a bare charge or custody, ante, p. 21. (b) 2 East, P. C. ibid. Ante, p. 21. and book keeper, not re siding in the house of his master, embezzled a bill of exchange, which he received from his master to be transmitted to a correspon dent, in the usual course of business, and was holden to be larceny. Robinson's case. Bass's case. The prisoner, a servant of the prosecutor, had goods delivered to him by his master amount of 1500%, 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, 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 afterit wards 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) A carter going away with his master's cart was holden to have been guilty of felony. (ƒ) 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 which he sold, 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) to carry to a customer, and converted the money to his own use: and this was holden to be larceny; the possession of the goods not being out of the master by such delivery. In a case where the master of a captured vessel got property from the vessel clandestinely under particular circumstances, it seems to have been held not to amount to larceny. The vessel was Prussian, sent in by a British cruiser, 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 occasionally 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 (d) Ante, p. 59, et seq. (e) Paradice's case, cor. Gould, J., Sarum Lent Ass. 1766. East. T. 1766. post, p. 160. (f) Robinson's case, O. B. 1755. 2 East, P. C. c. 16, s. 15, p. 565. (g) Bass's case, 1 Leach, 251, 524. 2 East, P. C. c. 16, s. 15, p. 566. 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 a pardon. (h) chased a cargo of oats on vant with his loose bulk ; In a case where the prisoner had been convicted for stealing forty Spears's case. bushels of oats, a question, whether the facts amounted to felony, A cornfactor was reserved for the opinion of the Judges. The prosecutors, who having purwere cornfactors, had purchased a cargo of oats on board a ship, lying in the river Thames; and they sent the prisoner, who was employed in their service as a lighterman, with their barge, to one Wilson, a corn-meter, for as much oats, in loose bulk, as the barge would carry. The prisoner proceeded to the ship, and received from Wilson two hundred and twenty quarters of oats in loose bulk, and five quarters in sacks. The five quarters were put into sacks by order of the prisoner; and were afterwards embezzled by him. The question submitted to the Judges was, whether this was felony, as the oats had never been in the possession of the prosecutors; or whether it was not like the case of a servant receiving charge of, or buying, a thing for his master, and never delivering it. And the Judges held that it was larceny in the prisoner; and a taking from to be larceny. the actual possession of the owner, as much as if the oats had been in his granary. (i) of put into sacks, this was holden cornfactors, sent their purchased corn on board a vessel, and barge to receive it in bulk; when who was employed by intend the delivery, separated a part from the rest, while on their servant, The following is a case of a similar nature. The prisoner was in- Abrahat's case. dicted (as in the former case) upon the 24 Geo. 2, c. 45, for stealing The prosefive quarters of oats from a vessel on the navigable river Thames. cutors, being The prosecutors, in whom the property was laid, were cornfactors; and the prisoner was their servant; and had been employed by them many years in superintending the unloading of their corn vessels. The prosecutors had purchased two hundred and forty quarters of oats, on board a Dutch vessel, lying in the river Thames; and while the corn-meters were in the act of unloading the oats from the Dutch vessel into the prosecutors' barge, the prisoner, with another person, came alongside in a boat, handed ten empty sacks on board the Dutch vessel, and desired that the sacks might be filled with oats, and tied, as they were going to be put into an up-country lug-boat. He also desired that the account of the oats, put into the sacks, might be carried to the score, and no separate account be made of them. The whole of the two hundred and forty quarters of oats, excepting 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 em (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 show 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, and contra if he had not. (i) Spear's case, Kingston Spring Ass. 1798. 2 Leach, 825. 2 East, P. C. c. 16, s. 16, p. 568. The ground of the determination mentioned by Heath, J., in Walsh's case, 4 Taunt. 276, was that the corn was in the prosecutor's barge, and it was a taking from the master's possession as much as if it had been from the master's granary. them to super board the vessel, and embezzled it: holden to be and it was larceny. Money in possession of the master by the hands of a clerk. Larceny of sheep by a person hired to drive them to a certain place, and intending to ployed 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. (7) 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. [Upon an indictment for larceny of barilla, laid in one count as the property of J. Bryant, in another as that of the prosecutors, it appeared that] 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, [in the cart of Bryant, who was his master]. By contrivance between Harding and the other prisoners, he left the cart on his way to the prosecutors', 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, [whether the goods were considered as the property of the prosecutors or of Bryant.] (m) So if money has been in the possession of the master by the hands of one of his clerks, and another of his clerks receives it from such clerk and embezzles it, this is larceny. The prisoner was a clerk in the employ of A. and received 31. of A.'s money from another clerk, that he might pay for inserting an advertisement, &c. He paid 10s. and charged A. 20s., fraudulently keeping back the difference; and, upon a case reserved, it was held that this was not embezzlement, because A. had had possession of the money by the hands of the other clerk. (n) 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, 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 (k) Abrahat's case, Surrey Spring Ass. (1) 2 East, P. C. c. 16, s. 16, p. 570. before Lawrence, J., and considered by the Judges, Hil. T. 1807, MS. Bayley, J., and Russ. & Ry. 125. I have inserted the words between brackets from Russ. & Ry., as they seem to me important to be added. C. S. G. (n) Rex v. Murray, R. & M. C. C. R. 276. 5 C. & P. 145. Ergo, it was larceny. C. S. G. at the time turnpike-gate nearest to Bradford. The prisoner had no authority convert them to sell the sheep; he was merely to drive them to Bradford, and for to his own use doing so to receive 2s. 6d. per day. He did not come to the turn- he received pike-gate on the Sunday, nor to Bradford fair, which was held on them from the the following day. The prosecutor afterwards found forty of his sheep owner. in a field at a place quite in an opposite direction to Bradford; and it appeared that the prisoner had sold the remaining ten of the fifty on the same morning on which he had received them from the prosecutor, and had never gone at all towards Bradford. He never was a servant of the prosecutor, but had occasionally been employed to drive sheep for him. Though he had no authority to sell, he represented to the person who purchased the ten sheep of him, that he had such authority, and that he had frequently sold cattle for the prosecutor, and that he had sold thirty ewes for him that morning. Upon this evidence the jury found the prisoner guilty, and in answer to a question put by the learned Judge, they said they were of opinion that the prisoner at the time he received the sheep intended to convert them to his own use, and not to drive them to Bradford. The prisoner had no counsel; but a doubt occurred to the learned Judge whether, as the delivery to the prisoner was not at his desire, or at his request, he being hired by the owner to take charge of them for a special purpose, his not carrying that purpose into execution, but converting them to his own use, and intending so to do (as found by the jury) at the moment of receiving them from the owner, amounted to felony: and he therefore respited the sentence, in order to take the opinion of the Judges upon the point. After considering the case, the Judges were unanimously of opinion that the conviction was right. (0) hired to drive it is larceny, they were de livered to him. So if a person is hired by the day to drive cattle to a particular If a person place, and has no authority to sell them, if he sell them, he is guilty cattle to a parof larceny, although at the time he took them into his possession he ticular place had no intention to steal them, but such intention came into his dispose of them mind afterwards. Upon an indictment for stealing 118 sheep it to his own use, appeared that the prosecutor had employed the prisoner in his service although he as a drover off and on for nearly five years, but not as a regular had no intent servant. He was a general drover, and agreed with the prosecutor so to do when for three shillings a day. The prosecutor gave the prisoner orders and money to bring 119 sheep from Grantham to Smithfield market. The prisoner had no authority from the prosecutor to sell the sheep. When the prosecutor came to Smithfield he found 118 of his sheep in the possession of different salesmen, into whose hands they had been put by one Shelton, who had purchased them of the prisoner, who said they were his own. The jury found that the prisoner did not intend to steal the sheep at the time he took them into his possession. And, upon a case reserved, the Judges were unanimously of opinion that as the owner parted with the custody only, and not with the possession, the prisoner's possession was the owner's and that the conviction was therefore right. (p) And a similar decision was come to where the prisoner was hired to take a heifer to a particular place for a certain sum, although he was not hired by the day, or for any particular time. Upon an indictment for stealing a heifer it (o) Rex v. Stock, cor. Park, J., Taunton Lent Ass. 1825, and East. T. 1825. R. & M. C. C. R. 87. (p) Rex v. M'Namee, R. & M. C. C. R. 368. |