Possession by finding. By delivery. * It has been determined that the fortunate finder of any thing valuable has, by virtue of such finding, a title to it against all the world except the owner; therefore, with respect to property so taken, no animus furandi can be implied from a conversion to the use of the taker, except where the real owner is discoverable, and any artful means taken to conceal the discovery from him; but, where the owner is known, or where common enquiry, or reasonable diligence, must have led to a discovery of him, and that is omitted; and more especially, if any artifice be used to prevent such discovery; in such cases the animus furandi is reasonably to be presumed from such concealment accompanied by a conversion to the use of the finder. On the ground of this distinction, the drivers of coaches have been convicted of larceny, for concealing, &c. parcels left by passengers in their respective carriages; + tailors for concealing money, &c. found in clothes entrusted to them for repair; carpenters and cabinet makers for similar practices respecting valuables concealed in chests and cabinets sent to them to be mended; for it is the duty of every man who finds property, to restore it to the owner, if known ; and if not known, to use all due diligence to discover him, on the failure of which alone, such finder can have any legal right to convert treasure here to his own use. Property parted with by voluntary delivery of the owner cannot, prima facie, be the subject of an indictment for larceny, because, as we have seen, a constituent ingredient in this crime is the non-consent of the owner to the transfer. But the modern interpretation of this axiom makes an important distinction between the owner delivering the actual property, and only delivering the possession of that property.§ * Armery v. Delemire, 1 Str. 505. ↑ Lamb's case, 2 East. P. C. c. 16. s. 99.-Wynne's case, Ibid.1 Leach, 415, (in note). Cartwright v. Green, 8 Vez. R. 409. § See Walsh's case, 2 Leach, 1054. & 4 Taunt. 258. & post, Statuteable Larcenies. Thus, a horse was agreed to be purchased for a certain sum, and in pursuance of such agreement was delivered by the owner to the pretended purchaser, who immediately rode away with it without paying the purchase-money agreed upon. In this case, the owner parted voluntarily with the property itself in fulfilment of his (imprudent) contract; and therefore it was holden not to be larceny.* But where one hired a horse of another for the day, and having got possession of it, rode off and sold it, only the qualified possession of the horse was parted with, not the actual property in it, and it was held larceny, there being no doubt but he hired it animus furandi. + So where the hiring was of a carriage for an indefinite time, yet not being returned, and the jury being of opinion that it was hired animus furandi, it was holden larceny; for in this case also the possession only, not the property, was parted with. In the case of a shop-keeper agreeing to sell certain goods to a customer for ready money, sends them to him with a bill of parcel by his servant, who receives for them, instead of the ready money agreed for, two bills of exchange, which bills afterwards turn out to be bad. Though there was no intention to give credit by the tradesman, yet he in fact parted with the property, and this was no larceny in the customer, § though the jury were satisfied that the animus furandi existed when the goods were ordered. But where one ordered goods to be brought to his house from a tradesman's shop to look at, that he might choose part of them, and when brought he did so, and separated what he approved of and laid them by themselves, and then contrived to send the tradesman home for more, under pretence that there were not sufficient variety, and while he was gone for them, the customer ran away with the whole which had been left at his house, it was held by all the judges that there had not been sufficient pass to change * Harvey's case, 1 Leach, 528. + Pear's case, 1 Leach, 253-Patch's case, 1 Leach, 238. § Parker's case, 2 East. P. C. c. 16. the property in the goods, and there being sufficient to infer an original intention to steal the property from the tradesman, it was larceny.* Decisions almost ad infinitum, at least to such an extent, that a work, wherein cases are only admitted in illustration of principles, cannot embrace them, might be adduced in confirmation of the doctrines advanced; but, as the chief difficulty which most commonly attends this class of cases, and generally forms one of the prominent objections taken by counsel, arises out of the nicety necessary to discriminate this species of crime, constructive felony, from that of fraudulently obtaining goods by false pretences: which latter not only comprises a distinct description of offence in point of grammatical, but also of legal, accuracy; this kind of investigation shall be closed by the notice of two cases, extremely similar in their leading features, which, though not perhaps the most recent, or the most authoritative, which might be given, are of recent occurrence, and appear to place the solution of the difficulty in a point of view particularly clear.† The prisoner was indicted for feloniously stealing, &c. divers quantities of bacon, cheese, &c. &c. and the material facts of the case were as follow. A woman professing herself to be the wife of one William Jones, went to a cheesemonger's shop, and agreed for two sides of bacon, several cheeses, some casks of butter, and other articles, and directed them to be sent to a small shop which she said her husband had taken for a retail trade in a distant part of the town; she desired that "they might be sent thither at a particular time in the evening, when her husband would be at home, and he would pay the person that brought them." The cheese * Sharpless's and Greatrix's case, East. P. C. c. 16. They were both commitments from the public office Worship Street, and were vigorously contested, as well at the time of commitment, as at that of trial. It should be observed, that they are not introduced as authorities, properly so denominated, but merely as occurrences aptly illustrative of the subject under consideration. monger sent the articles, as much in quantity as a man could take on a truck, by his porter at the hour appointed, with an accompanying written bill of parcels, and a verbal order not to take any paper in payment for them but Bank of England notes. When the porter arrived at the street, he had some difficulty in finding the shop, and made many fruitless inquiries for the name of Jones, but could hear of no such person being there: he was about to return, when the woman who had ordered the articles came up to him, and pretended to be looking for him, in consequence of his being past his time, and that her husband was in haste to go out to an appointment. He answered that "he had been some time looking about for her shop, but could not find it, and could not by inquiry make out any such name in the street." She said that she did not wonder at that, for they had only been in the house a day or two, and were strangers in that part of the town, but she would show him the way. She then led him to a place, not indeed far distant, but by no means answering the description she had given when she ordered the articles. When they arrived at the shop, there was no one in it but a boy, having the appearance of an apprentice, who immediately said, "My master was tired of waiting for you, and is gone to meet a man who is to pay him some money at the public house at the corner of the street; and desires you will go there to receive the pay for the bacon and cheese." The porter not suspecting any fraud, and observing that the public house was in sight, set down his load in the shop, and went with the woman to the public house mentioned. As they were going into the house, they met a man in the passage who accosted the woman with "Are you come for your husband, Mrs. Jones? to which the woman replied in the affirmative. He then said, "He is just gone, and bade me tell you to follow him to the public house in the next street, which is that the person frequents who is to pay him his money." The woman and the porter accordingly proceeded to the public house described. It was now getting dusk, and as soon as they arrived at the house in question, the woman went in first, and ran quick through the house into a yard behind it, which has a com munication by means of a gate, with another street. The porter, after a few moments' deliberation, ran into the yard after her, but no trace of her appearing, he suspected some imposition, and went back to the shop where he had left the goods. The door was shut, and on inquiry, he learned that the boy whom he had left there, and a man answering the description of him whom he had met in the passage of the first public house, had left the shop a short time before, loaded with goods answering the description of those which he had himself set down in the shop. With very little exertion he burst open the door, where he found nothing in it but a counter, and that made of the shutters belonging to the shop window, and only nailed together in the slightest manner, being supported at one end on the window sill, and at the other on an old barrel. He moreover discovered that a man answering the description of the man whom he had met in the public house, but calling himself by a different name from that of Jones, had hired the room only in the morning of that day, and was wholly unknown in the neighbourhood, but had deposited a week's rent. She was not seen again till many weeks after the transaction, and then was making a similar attempt in another place. At the time of trial, numerous objections were taken, but the only ones which especially apply in this place, were that, even assuming that the woman was a guilty party, she was only guilty of a fraud in obtaining goods under false pretences, and therefore it was no felony; and also, that there was a complete voluntary unconditional delivery of the property by the cheesemonger's servant on behalf of his master, in confidence of future payment. The court and jury however decided, that there was evidence sufficient in the circumstances altogether to show the animus furandi at the time the prisoner ordered the goods, and that, though the possession was parted with by the folly of the porter, the property was not changed, and the prisoner was convicted.* * See 2 East. P. C. c. 16. s. 12. note (a), and Wilkins's case, 1 Leach, 520. |