auctioneer that he sold all that the piece of furniture contained with the article itself; and then the abstraction of the contents could not have been felonious. There must therefore be a new trial, and not a nonsuit. But if we assume, as the defendant's case was, that the plaintiff had express notice that he was not to have any title to the contents of the secretary if there happened to be anything in it, and indeed without such express notice, if he had no ground to believe that he had bought the contents, we are all of opinion that there was evidence to make out a case of larceny. It was contended that there was a delivery of the secretary and the money in it to the plaintiff as his own property, which gave him a lawful possession, and that his subsequent misappropriation did not constitute a felony. But it seems to us that, though there was a delivery of the secretary, and a lawful property in it thereby vested in the plaintiff, there was no delivery so as to give a lawful possession of the purse and money. The vendor had no intention to deliver it, nor vendee to receive it; both were ignorant of its existence; and when the plaintiff discovered that there was a secret drawer containing the purse and money, it was a simple case of finding, and the law applicable to all cases of finding applies to this. The old rule, that "if one lose his goods and another find them, though he convert them animo. furandi to his own use, it is no larceny," has undergone in more recent times some limitations; one is, that if the finder knows who the owner of the lost chattel is, or if, from any mark upon it or the circumstances under which it is found, the owner could be reasonably ascertained, then the fraudulent conversion animo furandi constitutes a larceny. * New trial granted. All concurred. Merry v. Green, 7 Mes. & Wels. 623, 10 L. J. m. c. 154, B. 548, C. 217, Mi. 715.

(N. Y. Sup. Ct., 1817.) Same-Trunk Lost from Stage. On trial for larceny of a trunk and contents, found on the highway by defendant, he was convicted. The case arises here on habeas corpus. SPENCER, J. The court below instructed the jury that if the prisoner took the trunk with intention to steal it, they ought to find him guilty, and that in determining that question they had a right to take into consideration the prisoner's subsequent conduct as well as all the circumstances of the case. We assume it as an undisputed fact that the prisoner found the trunk bona fide, and consequently that it had been lost by its proprietor; and we proceed on the ground that if any subsequent embezzlement of the contents of the trunk would make the act a larceny of these articles, that then the conviction is correct. But the court are of opinion that the bona fide finder of a lost article or of a lost trunk containing goods, cannot be guilty of larceny by any subsequent act of his in concealing and appropriating to his own use the article or the contents of the trunk thus found. In Butler's Case in 28 Elizabeth this doctrine is fully established. In that case it was decided that the intent to steal must

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be when it comes to the hands or possession of the party; for if he hath the possession of it once lawfully, though he hath animum furandi afterwards and carry it away, it is no larceny. 3 Inst. 107. # There can be no trespass in taking a chattel found in the highway, and the finder has a right to keep the possession against everyone but the true owner. How then can it be said that a thing found bona fide and of which the finder had a right to take possession, shall be deemed to be taken feloniously in consequence of a subsequent conversion by denying and secreting it, with an intention to appropriate it to the use of the finder? No fraud is practiced on anyone in first acquiring the possession. It, therefore, never can be a question for the jury, how far forth a person who found a chattel intended to find it for the purpose of stealing it. The very nature of the case excludes a premeditated or already formed intention to steal. That depends as matter of fact upon a variety of circumstances, such as the value, the facility of concealment, etc., which are matters of after consideration. Hence, we do not find a single case in the reports of criminal trials, or in the treatises on criminal law, in which it has ever been intimated that a person actually finding a chattel has been held to have stolen it, from the circumstance of denial, concealment, or appropriation. Thompson, C. J., dissented. Prisoner discharged. P. v. Anderson, 14 Johns. 294, 7 Am. Dec. 462, 5 L. 445.

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(Eng. C. C. R., 1849.) The Prisoner Found a Bank-note on the Highway and Picked it up Intending to Use it. As he meant to appropriate it when he first saw it, he was convicted of larceny, though there was nothing on the note to indicate who the owner was, and the prisoner knew of no means of finding him. PARKE, B. The rule of law on this subject seems to be, that if a man find goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not larceny. But if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. * # It would probably be presumed that the taker would examine the chattel as an honest man ought to do, at the time of taking it, and if he did not restore it to the owner, the jury might conclude that he took it, when he took complete possession of it, animo furandi. The mere taking it up to look at it would not be a taking possession of the chattel. To apply these rules to the present case: the first taking did not amount to larceny, because the note was really lost, and there was no mark on it or other circumstance to indicate then who was the owner, or that he might be found, nor any evidence to rebut the presumption that would arise from the finding of the note as proved, that he believed the owner could not be found, and therefore the original taking was not felonious; and

if the prisoner had changed the note or otherwise disposed of it before notice of the title of the real owner, he clearly would not have been punishable; but after the prisoner was in possession of the note, the owner became known to him, and he then appropriated it animo furandi, and the point to be decided is whether that was a felony. Upon this question we have felt considerable doubt. If he had taken the chattel innocently, and afterwards appropriated it without knowledge of the ownership, it would not have been larceny; nor would it, we think, if he had done so, knowing who was the owner, for he had the lawful possession in both cases, and the conversion would not have been a trespass in either. But here the original taking was not innocent in one sense, and the question is does that make a difference? We think not; it was dispunishable as we have already decided, and though the possession was accompanied by a dishonest intent, it was still a lawful possession and good against all but the real owner, and the subsequent conversion was not therefore a trespass in this case more than the others, and consequently no larceny. We therefore think that the conviction was wrong. R. v. Thurborn, 1 Den. C. C. 387, T. & M. 67, 2 Car. & K. 831, 13 Jur. 499, 18 L. J. m. c. 140, B. 551, 2 B. & H. 18, C. 332, Ke. 276, Mi. 720; s. c. sub. nom. R. v. Wood, 3 Cox C. C. 453.

(Eng. C. C. R., 1851.) Same-Marked with Owner's Name. Mr. Collis lost a £50 note of the bank of England marked "Mrs. Collis. There were few if any others of that name in the city, and he was well known. He immediately notified the police, and circulated hand-bills, offering a reward for return of the note. Two days later (Monday) the prisoner inquired of the police if there was not a reward offered for the return of a lost note, said he kept shop and might have it presented to him, asked if the number were known, and promised to give notice if he learned of it; later the same day he inquired of another shopkeeper if the finder would be justified. in keeping the note, and was told he would not; still later the same day he passed the note for 50 sovereigns in gold, and when apprehended gave inconsistent explanations as to where he got the gold found with him, and finally said he took the note in change from a tall stranger. The judge directed the jury that if the prisoner knew the owner or reasonably believed he could be found at the time when he first resolved to appropriate the note to his own use-to exercise complete dominion over it--he was guilty of larceny, as there was no evidence of any other person having the note after it was lost. Verdict, guilty. LORD CAMPBELL, C. J. I am of opinion that this conviction cannot be supported. Larceny supposes a taking animo furandi. There must always be a taking; but in the present case it is quite consistent with the direction of the learned Recorder that the prisoner might be guilty of larceny though, when he took possession of it, with a full knowledge of the nature of the chattel, he honestly intended to return it to the owner whensoever he should

be found; because he puts it that the important question is, at what time the prisoner first resolved to appropriate it to his own use. But when was the taking? It is said that whenever he changed his mind, and formed the dishonest purpose of appropriating the note to his own use, that then he took it constructively from the possession of the owner; but that dishonest purpose may have first come into his mind when he was lying in bed at a distance of many miles from the place where the note was. It seems to me that that operation of the mind cannot be considered a taking, and that, as there was no taking except the original taking, which might have been lawful, the conviction must be reversed. It is unnecessary to go into authorities upon this subject, after the elaborate judgment of my brother Parke in Thurborn's case. The other judges concurred. Conviction quashed. R. v. Preston, 5 Cox C. C. 390, 2 Den. C. C. 353, T. & M. 641, 21 L. J. m. c. 41, 11 Jur. 109, B. 557, 2 B. & H. 25-n, 8 Eng. L. & Eq. 589.

(Eng. C. C. R., 1854.) Purse on Shop Counter Taken by Keeper. JERVIS, C. J. The question is whether, under the circumstances stated in this case, the prisoner was properly convicted of larceny, and we are all of opinion that she was properly convicted. The prisoner keeps a stall in the Leicester market. The prosecutor went to that stall, left his purse there, and went away. The purse was pointed out to the prisoner by another person, and she then put it in her pocket, and treated it as her own, and on the prosecutor returning to the stall and asking for the purse, she denied all knowledge of it. Two questions were left to the jury: First, did the prisoner take the purse knowing that it was not her own, and intending to appropriate it to her own use? This the jury said she did. Secondly, did the prisoner then know who was the owner of the purse? This the jury said she did not. If there had been any evidence that the purse and its contents were lost property, properly so speaking, and the jury had so found, the jury ought further to have been asked whether the prisoner had reasonable means of finding the owner, or reasonably believed that the owner could not be found; but there is in this case no reason for supposing that the property was lost at all, or that the prisoner thought it was lost. On the contrary, the owner, having left it at the stall, would naturally return there for it when he missed it. There is a clear distinction between property lost and property merely mislaid, put down, and left by mistake, as in this case, under circumstances which would enable the owner to know the place where he had left it, and to which he would naturally return for it. The question as to possession by finding, therefore, does not arise. The other learned judges concurred. Conviction affirmed. R. v. West, Dears. C. C. 402, 3 C. L. R. 86, 24 L. J. m. c. 4. 18 Jur. 1031, 3 W. R. 21, 6 Cox C. C. 415, B. 561.

Acc. P. v. McGarren, 17 Wend. (N. Y.) 460.

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(Va. Sup. Ct. of App., 1855.) Lost Bank-note. Hunt was indicted for stealing a $20 bank-note. The court instructed the jury that if they believed from the evidence that the owner lost the note and it was afterwards found in the possession of Hunt they ought to find him guilty unless his possession was explained. ALLEN, P. * To constitute larceny of the kind set out in the indictment, there must be a taking animo furandi, and against the will of the owner. ** If the original possession of it was an innocent one, no subsequent change of his mind, or resolution to appropriate it to his own use, would amount to a larceny. The mere possession of goods which had been actually lost does not furnish any conclusive or prima facie proof of guilt; of itself, it does not raise the suspicion of guilt. The most honest man may be found in possession of a chattel proved to have been actually lost, but holding it with the intention of restoring it to the owner; and yet, according to the terms of this instruction, the mere possession under such circumstances raises the presumption of guilt, unless he can explain by testimony how his possession was acquired. Reversed. Hunt v. C., 13 Gratt. 757, 70 Am. Dec. 443, F. 284.

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(Mass. Sup. Judicial Ct., 1874.) Defendant Found a Traveling Bag on the highway, shortly after it was dropped by the owner, took the contents, and hid the bag in the woods some distance from where it was found. On this he was convicted of larceny. He excepted to the instruction of the court to the jury that he was guilty, if when he found it, he feloniously intended to appropriate it to his own use, and then knew or had reasonable means of ascertaining who the owner was. GRAY, C. J. The rulings and instructions at the trial were quite as favorable to the defendant as the great weight, if not the unanimous concurrence, of the cases cited on either side at the argument would warrant. The finder of lost goods may lawfully take them into his possession, and if he does so without any felonious intent at that time, a subsequent conversion of them to his own use, by whatever intent that conversion is accompanied, will not constitute larceny. But if, at the time of first taking them into his possession, he has a felonious intent to appropriate them to his own use and to deprive the owner of them, and then knows or has the reasonable means of knowing or ascertaining, by marks on the goods or otherwise, who the owner is, he may be found guilty of larceny. * ** Exceptions overruled. C. v. Titus, 116 Mass. 42, 17 Am. Rep. 138, B. 563.

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Acc. Lamb v. S., 40 Neb. 312, 58 N. W. 963, a stray sow found in pasture; Stepp v. S., Tex. Cr. R. 349, 20 S. W. 753, a watch of departing bride found at depot.

$133. "Fraud."

(Eng. C. C. R., 1573.) Replevined. A came to the sheriff and said B had taken his horse, and he prayed replevin; and by replevin