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Woodward's

case.

Property laid in agister of cattle.

Special property. Owner of yard in which a carriage stood.

S. P.

Stealing goods

dence, that the party whose goods they are laid to be, had neither the property nor the possession (and for this purpose the possession of a feme covert or servant is, generally speaking, the possession of the husband or master), the prisoner ought to be acquitted on that indictment. The same rule prevails in the case of goods belonging to a guest (Jane Todd's case, O. B. July, 1711, 2 East's P. C. 653.) stolen at an inn; they may be laid to be the property either of the innkeeper or the guest. So goods stolen from a washerwoman (Packer's case, O. B. April, 1714, 2 East's P. C. 653.) who takes in the linen of other persons to wash, may be laid to be her goods: by Parker C. J., Tracy and Bury Js. For persons of this description have a possessory property, and are answerable to their employers. So an agister has a possession and property against all but the right owner.

In John Woodward's case, Leicester Sum. Ass. 1796, 2 East's P. C. 653., who was indicted for maliciously and feloniously killing two sheep the property of W. Dalton, it was proved that the prosecutor had only taken the sheep in to agist for another. Whereupon it was objected, that the property was not well laid in the agister; and upon reference to the judges in M. T. 1796, one of them doubted at first, because an agister of cattle is not liable for them at all events, like an innkeeper for the goods of his guest. The majority, however, thought the conviction right. But the matter stood over till H. T. 1797, when, upon reference to 4 Inst. 293., shewing that an agister has a possession, and 2 Roll. Abr. 551., that he may maintain trespass against any who takes the beasts; all the judges agreed that the conviction was right.

In a prosecution for stealing a window glass and hammercloth from a carriage, the prosecutor in whom the property was laid, was a coachmaster, who had the care of the carriage, which stood in a coach-house in his yard, when the articles were stolen, and an ob jection that the property should have been laid in the owner of the carriage was overruled. O. B. 1785, Taylor's case, 1 Leach, 350. 2 Russ. 157.

In another case, the prisoner was convicted of stealing a chariot glass from a lady's chariot, which had been placed in a coach-yard at Chelsea while the owner was at Runelagh, and the property was laid in the master of the yard. Statham's case, O. B. 1773, 1 Leach,

357. 2 Russ. 157.

In the case of stealing from ready-furnished lodgings, the prolet with lodg-perty must be laid in the lodger and not in the original owners. ings.

Principle in re

that are in the

Prisoner was indicted for stealing in the house of J. A. goods the property of J. A.; it appeared that J. A. occupied only part of the house, and let out the rest in lodgings, and that the goods stolen were part of the furniture let to a lodger. The judges held the conviction wrong; for that the property ought to have been laid in the lodger, for that J. A. was not entitled to possession, and could not have maintained trespass. R. v. Belstead, C. C. R. 411. acc. R. v. Brunswick, 1 R. & M. 26.

In 2 East's P. C. c. 16. § 90. p. 652., it is stated that "any one spect of goods who has a special property in goods stolen may lay them to be his in an appeal or indictment for larceny, as a bailee, pawnee, lessee for years, carrier, or the like; a fortiori, they may be laid to be the property of the respective owners, and the indictment is good either way.

possession of a lessee;

The like principle is laid down in 2 Russ. 156.: "There is no doubt that there may be a sufficient ownership of the goods stolen in a person who has only a special property in them; and that they may be laid as the goods and chattels of such persons in the indictment. A lessee for years, a bailee, a pawnee, a carrier, and the like, have such special property; and the indictment will be good if it lay the property of the goods either in the real owners, or in the persons having only such special property in them."

lessee.

The law so declared in two text-books of standard authority is unquestionably not reconcileable, in all its parts, with the decisions cited above in R. v. Belstead and R. v. Brunswick. The following clear and succinct observations, which have been allowed to appear in this work, will, it is conceived, be deemed valuable in pointing out the true legal distinctions which govern cases of this nature: "If the owner parts with the right of possession for a time, so as They must be to be deprived of the legal power to resume the possession during laid as the prothat time, and the goods are stolen during that time, they cannot perty of the be described as the goods of such owner; but if the owner parts with nothing but the actual possession, and has a right to resume the possession when he thinks fit, the goods may be described either as his goods, or his bailee's. In the latter case he does not for an instant part with the general right of possession; he confers a qualified right only, which he may put an end to when he will; in the former case, he parts with the whole right of possession for the time. The bailee for safe custody, the carrier, the tailor, the pawnee, have never more than a partial right; the owner may resume the goods, on satisfying their lien, when he will. The agister is in the same situation, and the decision as to him, in R. v. Woodward, only is, that the cattle may be described as his, not that they must. The ground of decision in R. v. Belstead and R. v. Brunswick was, that the owner had parted with the right of possession for the time, he had nothing but a reversionary interest, and could not have brought trespass." MS. observations of Bayley B.

Goods taken under fi. fa. ownership continues in perwhom writ son against issued.

Where goods taken under a fi. fa. are stolen, they may be laid as the goods of the party against whom the writ issued; for though they are in custodia legis, the original owner continues to have a property in them until they are sold; and the sheriff is accountable to him for the goods so seized. A sheriff's officer seized goods under a fi. fa. against J. S., and afterwards stole part of them; the indictment described them as the goods of J. S., and it was objected, that they ought to have been described as the goods of the sheriff; but the point being saved, the judges held that, notwithstanding the seizure, the general property lay in J. S., as the loss would fall upon him if they did not go to liquidate the debt, and that the debt continued. M. T. 1822, R. v. Eastall, 2 Russ. 158. But if it appear in evidence that the party, whose goods they Servant or feme are laid to be, had neither the property nor the possession, as is covert. usually the case of a feme covert or servant, who have in their custody the goods of the husband or master, the prisoner ought to be acquitted. 2 East's P. C. c. 16. § 90. pp. 652, 653.

Rex v. Thomas Hutchinson and Joseph Boffey, C. C. R. 412. The prisoners were tried before Richardson J., at Stafford Lent Ass. 1820. Hutchinson was convicted of stealing, and Boffey of receiving, scienter, &c., a quantity of brass, which in the first count was laid to be the property of Thomas Penn, and 20 other persons

The goods in a dissenting chaPel vested in be described as the goods of a

trustees, cannot

servant, who

has merely the care of the chapel and

things in it, to clean and keep

in order, though

he has the key of the chapel, and no other person, but the minister, has any other.

Case of special property in a servant.

Property laid in stage coach

man.

Property laid in owner,

though in pos

session of an

agent.

There must be

therein named, and in the second count, to be the property of Samuel Evans. The property stolen formed the brass chandelier and sconces (not fixed to the freehold) of a chapel of protestant dissenters, and the persons named in the first count were the trustees of the chapel; but the prosecutors were not prepared to prove the trust deed whereby they were appointed, nor that all of them had acted in the trust or management, some of them residing at a distance. Samuel Evans, in whom the property was laid in the second count, stated that he was servant to the managers, and had a salary of 51. a-year. That he for many years had had the care of the chapel, and of the things in it to clean and keep in order. That he kept the keys, and that no person except himself had a key of the chapel, but the minister had a key of the vestry, through which he could enter the chapel. The trustees had no key. The witness received his orders sometimes from the trustees and sometimes from the minister. No one resided in the chapel. On case, the judges thought the property could not be considered as Evans's, and therefore that the conviction was wrong. E. T. 1820.

Yet there are some cases where a kind of special property has been considered to exist in the servant; as where the master disguised himself and robbed his servant, with intent to charge the hundred. 2 East's P. C. c. 16. § 5. p. 558. and § 90. p. 654.

Rex v. Deakin and Smith, O. B. April 1800, cor. Grose J. 2 Leach, 875. 2 East's P. C. 653. James Deakin and William Smith were indicted for stealing spoons and other articles, laid in the second count (on which alone they were convicted), to be the property of one Markham. The goods had been sent by a tradesman in London to Mr. Broderick at Spalding, by the Spalding coach, and were stolen by the prisoners at Pondersend, out of the boot behind the coach. The question was, whether they were properly laid to be the property of Markham, who was not the owner but only the driver of the coach, there being no contract between him and the proprietors, that he should be liable for any thing stolen, and it not appearing that he had been guilty of any laches. The case being referred to the judges, it stood over for some time, but finally the conviction was holden right, the coachman having the possession and a special property in the goods committed to his charge.

Property may be laid as belonging to the real owner, though it never was actually in his possession, but in the possession of his agent only. Turner, as agent for Nash, sent up by his direction some notes to Morgan, another of Nash's agents; and Morgan, as agent to Nash, sent them by the coach to one Walker in Worcestershire, to pay workmen there; and the prisoner stole them from the coach. The indictment described them as the property of Nash, and after conviction all the judges were of opinion that the property was well laid. R. v. Remnant, C. C. R. 136.

But aliter, where the person, in whom the property is laid, has either actual or had neither the actual nor constructive possession of it.

constructive

possession.

Thus, where Paul had ordered a hat of Beer, and the prisoner sent for it in Paul's name and got it, and was indicted for stealing Paul's hat, the judges held that the property could not be said to be in Paul. E. T. 1807, R. v. Adams, C. C. R. 225. See

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Clothes and other necessaries provided for children by their Necessaries for parents, are often laid to be the property of the parents, especially children; good either while the children are of tender age; but it is holden good either way as the proway. At the sessions at the O. B. after E. T. 1701, Tracy and perty of them Turton Js., and Lovell Recorder, doubted whether the property or of their of a gold chain, which was taken from a child's neck, who had parents. worn it for four years, ought not to be laid to be in the father. But Tanner, who had been an ancient clerk of the court, said, that it had always been usual to lay it to be the goods of the child in such case, and that many indictments which had laid them to be the property of the father had been ordered to be altered by the judges. 2 East's P. C. 654. 12 Rep. 113. 2 Russ. 160.

But where the prisoner was charged with stealing wearing apparel, and it was laid as the property of J. W., it appeared it was the clothes of G. W., aged nineteen, who was bound apprentice to his father J. W., and that J. W. had covenanted to find his son in clothing; under these circumstances it was held, that the indictment was bad, and that the clothes were exclusively the property of the son. Forsgate's case, O. B. 1787, 1 Leach, 463. 2 Russ. 160.

Where the father contracted to furnish

clothes to his son, an infant.

partner and in

partner.

In a prosecution for stealing sheep, they were laid to be the Property laid property of S. D. and eight other persons, being his grandchildren. in surviving It appeared, that many years before S. D. and his son held a fat children farm together, and that the flock was their joint concern. The of deceased son, and also the son's wife died, leaving eight children, after which S. D. continued to use the stock as before, considering himself as acting, in respect of one moiety, for his grandchildren, who were infants. After conviction, the judges held, that the property was well described; and that it was not necessary that the property of the thing taken should be the strict legal property. R. v. Scott, C. C. R. 13. 2 Russ. 160.

It has been held, that the property in reclaimed pheasants might be laid in a person who was not qualified to keep or kill game. R. v. Jones. See ante, and 2 Russ. 161.

and the widow

Game in possession of an unqualified person. R. v. Eleanor Gaby, C. C. R. 178. The prisoner was tried and Gaby's case. convicted before Chambre J., at Taunton Lent Ass. 1810, for The actual posgrand larceny, in stealing some drapery goods, the property of session of the Benjamin Dodge and Sarah Chilcott, widow. It was objected, goods by a surthat the indictment had misdescribed the property by alleging viving partner, it to be in Benjamin Dodge and Sarah Chilcott, concerning which of a deceased the evidence was, that the goods had been part of the joint stock partner, holden in trade of the said Benjamin Dodge and Chilcott, the late to be a sufficient husband of the said Sarah Chilcott, and were so at the time of ownership. Chilcott's death, which happened three or four days before Christmas last. He died, as the witness Dodge understood, without a will, leaving his said widow and some young children, and no administration had been granted of his effects. But the widow, from the death of her husband, acted as partner, and regularly attended the business of the shop. The goods mentioned in the indictment were stolen on the 6th of January, and on the 20th of the same month a division was made of the remaining stock, the widow taking one half, and Dodge the other half. 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 the other two as joint proprietors, or that the pro

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Waifs, wreck, &c.

Property aban. doned.

Ownership where the per

son of the

owner is unknown.

An indictment

cannot be sustained for steal

a person un

known, if it

appear that the owner is really

known.

perty should have been alleged to be in the Ordinary and the surviving partner. But the learned judge held, that the actual possession in Benjamin Dodge and Sarah Chilcott, as owners, was sufficient, upon which the prisoner was convicted; and the judges, on case, held the property well laid, and therefore the conviction right.

It is generally said that larceny cannot be committed of that wherein none have any determinate property, as of treasure-trove, waifs, &c. till seized. The same was said of wreck; but now the legislature have protected the owners of property in this state against the plunderers of it. And indeed there seems to be some incorrectness in the generality of the position with respect to the other things mentioned. As to waifs, treasure-trove, &c. the lord has no determinate property in them till seizure; but the true owner, though unknown, who has lost or been robbed of the things themselves, has still a property in them. 1 Haw. c. 33. $ 24. 1 Hale, 510. 2 East's P. C. 606. 2 Russ. 1138. Also 1 & 2 G. 4. c. 75. § 12. 15. 22, 23. See tit. Treck.

Where indeed the circumstances of the case furnish a presumption of an intended dereliction of such property on the part of the owner, there no larceny can be committed before seizure by the lord, because the taking is not invito domino.

It is well settled that larceny may be committed 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. 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 Ld. 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. See 2 Russ. 162. 1 Hale, 512. 2 Hale, 290. It is said, therefore, 2 East's P. C. 651., with respect to these cases, that 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.

:

Walker's case, Glouc. Sum. Ass. 1812, 3 Campb. 264. 2 East's P. C. 651. It should be well observed, however, with respect to ing the goods of 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 prisoner must be discharged of the indictment so framed, and tried upon a new one for stealing the goods of the owner by name. This principle was acted upon in a case, where the indictment charged the prisoner as an accessary before the fact to a larceny; and stated, that "a certain person to the jurors unknown," committed the larceny; and that the prisoner procured the said " person unknown' to commit it; 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

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