or articles of any kind belonging to such ship or vessel, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement; and the offender may be indicted and tried either in the county or place in which the offence shall have been committed or in any county or place next adjoining."(b)

Sec. 65. "If any goods, merchandise, or articles of any kind, belonging to any ship or vessel in distress, or wrecked, stranded, or cast on shore, shall be found in the possession of any person, or on the premises of any person with his knowledge, and such person, being taken or summoned before a justice of the peace, shall not satisfy the justice that he came lawfully by the same, then the same shall, by order of the justice, be forthwith delivered over to or for the use of the rightful owner thereof; and the offender shall. on conviction of such offence before the justice, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be *imprisoned and kept to [*380 hard labor, for any term not exceeding six months, or else shall forfeit and pay, over and above the value of the goods, merchandise, or articles, such sum of money not exceeding twenty pounds as to the justice shall seem meet."(c)

Sec. 66. "If any person shall offer or expose for sale any goods, merchandise, or articles whatsoever, which shall have been unlawfully taken, or shall be reasonably suspected so to have been taken, from any ship or vessel in distress, or wrecked, stranded, or cast on shore, in every such case any person to whom the same shall be offered for sale, or any officer of the customs or excise, or peace officer, may lawfully seize the same, and shall with all convenient speed carry the same, or give notice of such seizure, to some justice of the peace; and if the person who shall have offered or exposed the same for sale, being summoned by such justice, shall not appear and satisfy the justice that he came lawfully by such goods. merchandise, or articles, then the same shall, by order of the justice, be forthwith delivered over to or for the use of the rightful owner thereof, upon payment of a reasonable reward (to be ascertained by the justice) to the person who seized the same; and the offender shall, on conviction of such offence by the justice, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labor, for any term not exceeding six months, or else shall forfeit and pay, over and above the value of the goods, merchandise, or articles, such sum of money not exceeding twenty pounds as to the justice shall seem meet."(d) Sec. 103 contains a general provision for the apprehension and discovery of offenders punishable under the Act; and the 105th and following sections regulate the proceedings in respect of summary convictions.

By sec. 98, (e) in cases of felony, principals in the second degree and accessories before the fact are punishable in the same manner as principals in the first degree; and accessories after the fact (except receivers) are on conviction liable to be imprisoned for any term not exceeding two years; and abettors in misdemeanors are liable to be indicted and punished as principal offenders. By s. 98, abettors in offences punishable on summary conviction, are made punishable as principal offenders.(ƒ) In a case upon the 24 Geo. 2, c. 45, the words "goods, wares, and merchandise" were considered as restrained to such goods, &c. as were usually lodged in vessels, or on wharfs or quays.(g) So that where the prisoner was indicted upon that statute for stealing a considerable sum of money out of a ship in port, the case was holden

The

(b) The first part of this clause is taken from the 7 Will. 4, and 1 Vict. c. 87, s. 8. last part from the last part of the 7 & 8 Geo. 4, c. 29, s. 18, and the 9 Geo. 4, c. 55, s. 18 (I.). As to hard labor, &c., see ante, p. 67.

(c) This clause is taken from 7 & 8 Geo. 4, c. 29, s. 19. There was a similar clause in the 14 & 15 Vict. c. 92, s. 4 (I.).

(d) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 20. There was a similar clause in the 14 15 Vict. c. 92, s. 4 (I.).

(e) Ante, p. 67.

(f) As to offences committed on the sea, see sec. 115, ante, p. 331. The Act does not extend to Scotland,

(9) 2 East P. C. c. 16, s. 85, p. 647.

not to be within the statute, though great part of the money consisted of Portugal money not made current by proclamation, but commonly current.(h)

*381] *The luggage of a passenger going by a steamer was within the words goods or merchandise" in the 7 & 8 Geo. 4, c. 29, s. 17. The prisoners were indicted for stealing a portmanteau, two coats, and various other articles, in a vessel upon the navigable river Thames. The property in question was the luggage of a passenger going on board the Columbian steamer from London to Hamburgh; and it was held that the object of the statute was to protect things on board a ship, and that the luggage of a passenger came within the general description of goods.(i)

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 ;(j) 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 24 Geo. 2, c. 45.(k)

Where the prisoner was indicted for stealing a quantity of deals "in a certain barge on the navigable river Thames," and it appeared that the barge had been brought into Limehouse dock, and there moored; and by the efflux of the tide it was left aground, and in the night the deals were stolen; it was held that the offence laid was not proved within the meaning of the 24 Geo. 2, c. 45, as the evidence proved that the offence was not committed on the navigable river Thames, but upon the banks of one of its creeks.(1)

The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 478, imposes pecuniary penalties on every person who (1) "wrongfully carries away or removes any part of any ship or boat stranded or in danger of being stranded, or otherwise in distress, on or near the shore of any sea or tidal water, or any part of the cargo or apparel thereof, or any wreck, or (2) endeavors in any way to impede or hinder the saving of such ship, boat, cargo, apparel, or wreck, or (3) secretes any wreck, or obliterates, or defaces any marks thereon."

Sec. 479. "If any person takes into any foreign port or place, any ship or boat stranded, derelict, or otherwise in distress on or near the shore of the sea or of any tidal water, situate within the limits of the United Kingdom, or any part of the cargo or apparel thereof, or anything belonging thereto, or any wreck found within such limits as aforesaid, and there sells the same, he shall be guilty of felony, and be subject to penal servitude for a term not exceeding four years.(m)

Upon an indictment for any offence mentioned in this chapter, the jury may, under the 14 & 15 Vict. c. 100, s. 9,(n) convict the prisoner of an attempt to commit the same, and thereupon he may be punished in the same manner as if he had been convicted upon an indictment for such attempt.

(h) Grimes's case, Fost. 79, in the note; 8. P. in Leigh's case, 1 Leach 52.

(i) Rex v. Wright, 7 C. & P. 159 (32 E. C. L. R.), Park, J. A. J., and Alderson, B. (j) But see now the 24 & 25 Vict. c. 96, s. 3, ante, p. 247, which would apply to such

a case.

(k) Rex v. Madox, R. & R. 92; ante, p. 245.

(1) Pike's case, 2 East P. C. c. 16, s. 85, p. 647.

(m) By sec. 520, "for the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed, and every cause of complaint to have arisen, either in the place in which the same actually was committed, or arose, or in any place, in which the offender or person complained against may be."

(n) Ante, vol. 1, p. 1.

*CHAPTER THE EIGHTEENTH.

[*382

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. 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 felonious stealing by a servant from his master, is made more severe than in an ordinary case of larceny by the 24 & 25 Vict. c. 96, 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)1

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.

A sheriff's officer clandestinely selling for his own use part of the goods which he has seized under a writ of fieri facias, is guilty of 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 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.(c)

The prisoner was indicted for stealing a bill of exchange of the value of £100, the property of the prosecutor. It appeared 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 every day to transact his business. The prosecutor delivered bills to him to the amount of £1500, and amongst them the bill in question, with *directions to enclose them in [*383 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 neighborhood, he went to Salisbury, got cash for the bill in question, which

(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. 191.

(b) 2 East P. C. Ibid.; ante, p. 191.

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

1 The taking by the defendant an article delivered to him as a servant, to remove from one room to another, and converting the same to his own use, is larceny: U. S. v. Glew, 4 Wash. C. C. 700. A person employed by a mercantile firm as a salesman in their store, having full control over the goods in the store-room, and the money in the cash drawer, for the purpose of his employment, abstracts a part of the goods and money with a fraudulent intent to convert the same to his own use: held, he is guilty of larceny: Walker v. Comm., 8 Leigh 743.

If a

For other cases of stealing by servants, see Comm. v. Davis, 104 Mass. 548; Comm. v. O'Malley, 97 Ibid. 584; People v. Belden, 37 Cal. 51; State v. Fann, 65 N. C. 317. servant who has the care of a horse, takes him from the stable of his master with intent to run away with him, it is larceny and not embezzlement: People v. Wood, 2 Parker C. R. 22. If a servant appropriates to his own use bank bills obtained by him at a bank, on a check drawn by his master, it is an embezzlement and not a larceny: Comm. v. King, 9 Cush. 284. Evidence which proves an embezzlement under a statute will not sustain a general charge of larceny at common law: Comm. v. King, 9 Cush. 284.

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 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 so that of a carrier intrusted to carry goods. (d) But the pri soner 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 of opinion 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. 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 publichouse 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, on a case reserved, 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 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 bulkhead had been broken to get at part of such property. But Chambre, J., doubted whether this regaining the possession of what had belonged to the master's *384] 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) 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 prosecutors [who were 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 Wilson, a cornmeter, for as much oats as the barge would carry, and which were to be brought in bulk. 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 bringing, a thing for his master, but never delivering it. And the judges held that it was larceny in the prisoner;

(d) Ante, p. 243, et seq.

(e) Paradice's case, 2 East P. C. c. 16. s. 15, p. 565, and cited by Gould, J., in Wilkins' case, 1 Leach 523. See Rex v. Metcalf, post, p. 395.

(f) Robinson's case, 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.

(h) Rex v. Vanmuyer, MS., Bayley, J., and R. & R. 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.

and a taking from the actual possession of the owner, as much as if the oats had been in his granary.(i)

On an indictment against the prisoner for stealing coals the property of Newton, his master, it appeared that Newton directed the prisoner, his servant, to go to a station with his cart for ten cwt. of coals, and to bring the coals to his house; and the prisoner accordingly went to the station with the prosecutor's cart, and received from the wharfinger of the Medway Company, with whom the prosecutor dealt, ten cwt. of coals, which were put in the cart; and part of which the prisoner fraudulently disposed of from the cart. It was objected that the possession of the coals had never been in Newton; but the court held that there was a constructive possession in the master; and, upon a case reserved, it was held that the prisoner was properly convicted of larceny. Lord Campbell, C. J.: "There can be no doubt that, in such a case, the goods must have been in the actual or constructive possession of the master, and that if the master had not otherwise the possession of them than by the bare receipt of his servant, upon the delivery of another for the master's use, although as against third persons this is in law a receipt of the goods by the master, yet, in respect of the servant himself, this will not support a charge of larceny; because as to him there was no tortious *taking in the first instance, [*385 and consequently no trespass. Therefore if there had been here a quantity of coals delivered to the prisoner for the prosecutor, and the prisoner, having remained in personal possession of them, as by carrying them on his back in a bag, without anything having been done to determine his original exclusive possession, had converted them animo furandi, he would have been guilty of embezzlement, and not of larceny. But if the servant has done anything which determines his original exclusive possession of the goods, so that the master thereby comes constructively into possession, and the servant afterwards converts them animo furandi, he is guilty of larceny, and not merely of a breach of trust at common law, or of embezzlement under the statute On this supposition he subsequently takes the goods tortiously in converting them, and commits a trespass. We have, therefore, to consider whether the exclusive possession of the coals continued with the prisoner down to the time of the conversion. I am of opinion that this exclusive possession was determined when the coals were deposited in the prosecutor's cart, in the same manner as if they had been deposited in the prosecutor's cellar, of which the prisoner had the charge.(j) The prosecutor was undoubtedly in possession of the cart at the time when the coals were deposited in it, and if the prisoner carried off the cart animo furandi, he would have been guilty of larceny.(k) There seems considerable difficulty in contending that if the master was in possession of the cart, he was not in possession of the coals which it contained, the coals being his property and deposited there by his orders for his use. It was argued that the goods received by a servant remain in the exclusive possession of the servant till they have reached their ultimate destination, but no definition of "ultimate destination," when so used, could be given. It was admitted that the master's constructive possession would begin before the coals were deposited in the cellar, when the cart containing the coals had stopped at his door, and even when it had entered his gate. But I consider the point of time to be regarded is that when the coals were deposited in the cart. Thenceforth the prisoner has only the custody or the charge of the coals, as a butler has of his master's plate, or a groom of his master's horse. To this conclusion I should have come upon principle, and I think that

(i) Spear's case, 2 Leach 825; 2 East P. C. c. 16, s. 16, p. 568. See in Reg. v. Reed, Dears. C. C., at p. 263, a copy of this case from the Black Book, which omits the parts between brackets in the text, and referred to Dy. 5, and 1 Show. 52. 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 taken from the master's possession as much as if it had been from the master's granary.

(j) There is no statement in the case that warrants the position that the coals had ever been in the prisoner's possession at all; but it is said by counsel, p. 174, "The coals were in sacks, and then placed in the master's cart:' but it is not stated whose the sacks were, or who placed them in the cart. If they were placed in the cart by the vendor's men, they clearly never were in the prisoner's possession.

(4) Robinson's case, ante, p. 383.