death. It was also proved, that Simon Dodd the elder continued to occupy the farm and use the stock as before, considering himself as acting for his grand-children who were still infants, in respect of one moiety; and that he accordingly kept a regular account with them in his books. The prisoner having been convicted, a question was submitted to the consideration of the Judges, whether the property were well laid jointly in the grandfather and grand-children. And the Judges were of opinion that it was well laid; for though in the case of joint traders there was no jus accrescendi, and the remedy survived; yet here it was proved, by the evidence of the grandfather, that he held one moiety for his grand-children; and he might make distribution among them. And some of the Judges also said, that the property might have been laid to be in the grandfather alone, who was in possession of the children's moiety as their agent. The Judges were all of opinion that it was not necessary that the property in the thing taken should be the strict legal property. (1) In another case where the prisoner was indicted for stealing some drapery goods, which were stated in the indictment to be the property of Benjamin Dodge and Sarah Chilcott, widow, it was objected that the property in the goods was misdescribed. The facts, upon which the objection was taken, were that the goods in question had been part of the joint stock in trade of Benjamin Dodge, and one Chilcott, the late husband of Sarah Chilcott, who died a short time only before the theft was committed. He died without a will, leaving Sarah Chilcott and some young children; and no administration of his effects had been granted; but Sarah Chilcott, from the time of his death, acted as a partner, and regularly attended the business of the shop. The goods in question were stolen on the 6th of January, after the death of the husband, who died about the Christmas preceding: and on the 20th of January a division was made of the remaining stock in trade; Sarah Chilcott taking one half, and Benjamin Dodge the other half. Upon these facts it was contended, on the part of the prisoner, that the children, in respect of their interest under the statute of distributions, should have been named with Benjamin Dodge and Sarah Chilcott, as joint proprietors; or that the property should have been alleged to be in the ordinary and surviving partner. But the learned Judge, before whom the prisoner was tried, held that the actual possession in Benjamin Dodge and Sarah Chilcott, as owners, was sufficient; upon which the prisoner was convicted: and the Judges afterwards, upon the case being saved for their consideration, held that the conviction. was right. (m) Gaby's case. The actual possession of the goods by a surviving partner, and the widow of a deceased partner, holden to be a sufficient ownership. game by an A case has been already mentioned, in which, upon an indict- Ownership of ment for stealing pheasants, restrained of their liberty, it appeared in evidence that the prosecutor, in whom the property in the pheasants was laid, was not a qualified person to keep or shoot (1) Scott's case, cor. Chambre, J. Northumberland Sum. Ass. 1801, Mich. T. 1801, 2 East. P. C. c. 16. s. 91. p. 655. Russ. & Ry. 14. VOL. II. M (m) Rex v. Gaby, cor. Chambre, J. Taunton Spr. Ass. 1810. MS. Russ. & Ry. 178. unqualified person. Ownership of treasure wrecks, &c. game; whereupon an objection was taken that he could not have any property in them, or any legal possession, sufficient to support the indictment, and was over-ruled. (n) It is laid down, in some of the books, that larceny cannot be committed of things wherein no person has any determinate protrove, estrays, perty; and, therefore, that the taking away treasure-trove, or waif, or stray, before they have been seized by the persons who have a right thereto, cannot be felony. (o) But it is observed, that there seems to be some incorrectness in the generality of this position; as, although the lord has no determinate property in waifs, treasure-trove, &c. till seizure, the true owner, though unknown, who has lost, or been robbed of the things, has still a property in them. (p) And as to the reason assigned by one writer of these things not being the subject of larceny, namely, the uncertainty of the true owner, (q) it is observed, that it, at least, implies that if the owner be known, larceny may be committed of them. (r) Ownership son of the owner is unknown. But, further, it is well settled that larceny may be committed where the per- by stealing goods, the owner of which is not known: and that it may be stated in the indictment that the things stolen were the goods of a person to the jurors unknown. (s) But upon prosecutions of this kind some proof must be given sufficient to raise a reasonable presumption that the taking was felonious, or invito domino; and Lord Hale, C. J. said that he never would convict any person for stealing the goods cujusdam ignoti, merely because the person would not give an account how he came by them, unless there were due proof made that a felony had been committed of those goods. (t) It is said, therefore, with respect to these cases, that An indictment cannot be sustained for stealing the goods of a person un the true ground upon which persons, so indicted, may, in any instance, claim to be acquitted, when the other facts, necessary to constitute the crime of larceny, appear upon the evidence, seems to be a want of the proper proof that the taking was felonious, or invito domino, and not the want of any property in the true owner, who, by losing his goods, does not lose his property in them until seizure by some other person having a right to seize in such cases. (u) It should be well observed, however, with respect to prosecutions for stealing goods of a person unknown, that an indictment, alleging the goods to be the property of a person unknown, will be improper if the owner be really known; and that in such case the known, if it prisoner must be discharged of the indictment so framed, and tried upon a new one for stealing the goods of the owner by name. (x) In a case where the prisoner was charged with stealing a box of goods from a stage-coach, one of the counts of the indictment, which stated the box to be the property of persons unknown, was appear that the owner is really known. rejected by the court, on the ground that where it was in the power of a pleader to state a legal proprietor, as in this case, by laying the property to be in the persons from whom and to whom the goods were sent, it was improper to lay the property as belonging to persons unknown. (y) And the same principle is stated to have been acted upon in a case where the indictment charged the prisoner as an accessory before the fact to a larceny, and it appeared, from the opening of the case by the counsel for the prosecution, that the grand jury had found the bill upon the evidence of the thief, who was about to be called as a witness to establish the guilt of the prisoner, upon which the learned Judge interposed, and directed an acquittal. (z) It is said that where felony has been committed by stealing the goods of a person unknown, the king shall have the goods. (a) The property in the bells, books, or other goods, belonging to a church, has been already spoken of: (b) and we have seen that there can be no property in a dead corpse. (c) If, however, a shroud be stolen from a corpse, it may be laid to be the property of the executors, or whoever else buried the deceased; but not as the property of the deceased himself. (d) And a case is mentioned where several persons were convicted of larceny, in stealing leaden coffins out of the vaults of a church; the coffins being laid as the goods of the executors. (e) If the personal representatives of the deceased cannot be ascertained, or even, as it seems, if it appear probable, from the time which has elapsed since the death, that it might be a matter of some difficulty to ascertain them, it will be sufficient to lay such goods as the property of "a person un"known." In a case where the prisoner was indicted for stealing a leaden coffin, the property of a person unknown, it was objected that, though the coffin had lain in the ground near sixty years, yet, as the same family, of which the deceased had been a member, remained on the spot, and as it did not appear that any enquiry whatever had been made to ascertain the personal representative, there was a want of reasonable diligence in the prosecutor; but it was ruled to be sufficient after so many years had passed. (f) In the same case it was also ruled that a count, laying the coffin as the property of certain persons being the then churchwardens, could not be supported. (g) If a man die intestate, and the goods of the deceased be stolen before administration committed, such goods shall be supposed to be the goods of the ordinary; but if a man die, having made a will and appointed an executor, the goods shall be supposed to be (y) Rex v. Deakin and Smith, 2 Leach 862, ante, p. 158. (z) Walker's case, cor. Le Blanc, J. Gloucester Sum. Ass. 1812. 3 Campb. 264. And see also as to the statement of the principal felon being unknown in the indictment against a receiver of stolen goods, post Chap. Of Receiving Stolen Goods. (a) 1 Hawk. P. C. c. 33. s. 44. East. P. C. c. 16. s. 88. p. 651. (b) Ante, Chap. on Sacrilege. 2 Ownership of goods belonging to a church, and of shrouds or coffins in which corpses are deposited. Of the ownership of the goods of a deceased person. Of the owner of corporations and trustees. the goods of the executor, even before probate is granted to him. (h) Neither the ordinary, nor an executor, nor administrator, need shew their title specially, it being founded on their own possession; in which case a general indictment lies without naming themselves ordinary, executor, or administrator. (i) Property vested in a body of persons ought not to be laid as ship of goods the property of that body, unless such body is incorporated, but should be described as belonging to the individuals (or some of them, 7 Geo. 4. c. 64.) who constitute such body. The statute 7 Geo. 4. c. 64. s. 20., has however enacted that judgment shall not be stayed or reversed on the ground that any person or persons, mentioned in an indictment or information, is or are designated by a name of office or other descriptive appellation, instead of his, her, or their proper name or names. (k) This statute does not, however, apply to objections taken upon demurrer. In a case which occurred upon a statute 17 Geo. 3. c. 17. it was decided, that where an act of parliament gives a corporate capacity and a corporate name to any body of persons, and vests property in them, such property must be stated in the indictment to belong to them in their corporate name, and not in the names of the individual members. The prisoners were indicted for cutting down in the night-time trees growing on Enfield Chase; and the indictment contained two counts, the first laying the property in the trees as belonging "to Joseph Brown, George Cook, and "William Sedcole, then being the churchwardens of Enfield "aforesaid ;" and the second laying the property as belonging and not in the to Joseph Brown, George Cook, and William Sedcole, they the Where a sta- dividuals, and rate name, names of the individual members. "said Joseph Brown, George Cook, and William Sedcole, then "being the churchwardens of the parish church of Enfield, in the "county of Middlesex." It appeared that by the statute 17 Geo.3. c. 17. (which was passed for the purpose of dividing Enfield Chase) the allotment of land from which the trees were taken, was vested in the "churchwardens of Enfield for the time being," and their successors for ever in trust, &c.; but that by a subsequent section of the statute the churchwardens were incorporated by the name of "The Churchwardens of the parish church of Enfield in the "county of Middlesex." And the counsel for the prisoner submitted that the indictment was defective in laying the property in the trees as belonging to the individual members composing the corporation by their private names, instead of laying the property as belonging to the corporation by their public name. On the part of the Crown it was contended, that the private names might be expunged as surplusage. The court held the objection to be fatal, and said, "The indict"ment would have been clearly right, if the first clause of the act "of parliament which vests the property in the churchwardens for "the time being had stood single. But the clause which gives "the churchwardens a corporate capacity, and a corporate name, "puts an end to the question; for where any description of men (h) 1 Hale 514. 2 East. P. C. c. 16. s. 89. p. 652. (k) See the section more fully stated, post. 172. (i) I Hale 514. "are directed by law to act in a corporate capacity, their natural “and individual capacity, as to all matters respecting the subject "of their incorporation, is totally extinct. The present indict"ment describes the trees to be the property of certain individuals, "by their names; but the act of parliament shews the property "to be in the corporation. If an action were brought in the pri"vate names of the present prosecutors, for any matter relating "to their public capacity, they must unavoidably be non-suited; "and, à fortiori, it must be erroneous in a criminal prosecution. "But it is said that the private names may be expunged as sur"plusage. In the first count, supposing them expunged, the re"maining description would be the churchwardens of Enfield,' "which is not the name of the corporation; and therefore that "count would still be wrong. In the second count, it is true, the "corporate name is used; but the property is not laid to be in "the corporation of that name, it is laid to be in the private persons, and the public name is used merely as a description of "those persons. The prisoners must therefore be discharged on "this indictment." () 66 66 But where property was vested in certain trustees, under an act of parliament, who were not incorporated, nor had any public name given to them collectively, it was holden that the property should have been laid in the indictment as belonging to them in their individual names. This point was decided in a case where the prisoners were indicted for stealing lead, which had been affixed to a work-house of the poor of a certain place, called the "Old "Artillery Ground;" and, the property was laid as belonging to "the Trustees of the poor of the Old Artillery Ground." It appeared that by the 14 Geo. 3. c. 30., certain persons were appointed trustees of the work-house in question, and that all fixtures, furniture, &c. were vested in them; and that the act also contained this clause," and the said trustees are hereby empowered to prefer, or order the preferring of any bill or bills of indictment against any person or persons, who shall steal, take, or carry away any, or any part of such things; and the monies and "things which shall be so stolen, taken, or carried away, "shall in every such indictment be laid, and deemed, and "taken to be the property of the Trustees of the Poor of the Old "Artillery Ground. And every indictment so preferred shall be "held good in law, to all intents and purposes." The question having been raised, whether the indictment had well laid the property as belonging to "the Trustees of the Poor of the Old Ar"tillery Ground" the court held that it had not; for as the act of parliament had not incorporated the trustees, and by that means given them collectively a public name, the property should have been laid as belonging to A., B., C., &c., by their proper names, and the words "Trustees of the poor of the Old Artillery Ground" subjoined, as a description of the capacity in which they were authorised by the legislatue to act. (m) The point is therefore settled, that property vested in a body of (1) Rex v. Patrick and Pepper, O. B. 1783, 1 Leach 253. P. C. c. 22. s. 7. p. 1059. 2 East. (m) Rex v. Sherrington and Bulkey, O. B. 1789, 1 Leach 513. But where property is tees not incorporated, nor having a vested in trus public name collectively, th dictment in their individual names. it should be laid in the in Sherrington's case. |
