whom it belonged, nor were there any circumstances attending the finding which would enable him to discover to whom it belonged, and as he had no reason to believe that the owner knew where to find it, the prisoner intended to appropriate it to his own use; on the day after, however, he was informed that it belonged to the prosecutor, who had dropped it accidentally; and afterwards he changed the note, and appropriated the money to his own use: the prisoner being found guilty, the case was reserved for the opinion of the criminal court of appeal; the case was not argued, but after grave consideration, a most elaborate judgment was delivered by Parke, B.: after citing numerous authorities, his lordship said," the result of these authorities is, that 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 appropriate 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 have taken them with a like intent, though lost or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny ;" here "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 be 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 clearly decided; and although 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 the conviction was wrong." R. v. Thurborn, 2 Car. & K. 831. From this decision, which may be considered a safe guide in all these cases hereafter, it appears that a taking, by

finding, in larceny, may be classed under three heads :-First, where upon the finding, the party has no intention to appropriate the thing found to his own use, but on the contrary intends to restore it to the owner if he be found, but afterwards he disposes of it to his own use, either before or even after he knows who the owner is, this is not larceny because there was no animus furandi at the time of the taking; see ante, p. 381:-Secondly, where a man finds 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 then that the owner cannot be found, and he afterwards dispose of them to his own use, either before, or even after, he knows who the owner is, it is not larceny, because the taking, though not exactly innocent, was not punishable, and could not be made the subject of an action of trespass: Thurborn's case, supra :-Thirdly, where a man finds goods that have been actually lost, or are reasonably supposed by him to be lost, and appropriates them with intent to take the entire dominion over them, he at the same time knowing, or reasonably believing that the owner can be found, this is larceny, whether the finder afterwards convert them to his own use or not. Id. Where a gentleman left his trunk in a hackney coach, and the coachman converted it to his own use, this was holden larceny, because he knew where he had taken the gentleman up and set him down. Lamb's case, 2 East, P. C. 664. Where the prisoner, a hackney coachman, was indicted for stealing a box, containing several articles, it appeared that he conveyed the prosecutor, with a number of packages, from the Adelphi to Orchardstreet, where he and a servant took all the packages out, except this box which was under the seat, and being paid his fare he drove off; the prisoner being traced and taken, and the box (by a direction from him) found at a Jew's uncorded, some of the goods taken out, and several papers, particularly two bonds, missing: the jury convicted him, and the majority of the judges held the conviction to be right. Wynne's case, 2 East, P. C. 664, 1 Leach, 460. Where the prosecutor had his hat knocked off in the street, and the prisoner, who had his own hat on his head, took the hat up and went home with it this was holden to be larceny, for the prisoner either saw, or could have instantly found, the owner. R. v. Pope, 6 Car. & P. 346. Where a female servant was indicted for stealing some bank notes in her master's dwelling-house, and it appeared that being questioned about them, she at first denied all knowledge of them, but afterwards said she had found them in the passage of the house: Park, J., held that her not having communicated the fact immediately, to her master, and ascertained whether they were his, were strong evidence of her felonious intent. R. v. Kerr, 8 Car. § P. 176.

Where a man purchased a bureau at a public auction, and afterwards found some money in a secret drawer of it, which he appropriated to his own use: this would have been larceny, inasmuch as he had the means of immediately finding out the owner; but he proved that the auctioneer at the time of the sale said he sold the bureau "with its contents," and the court held that if that were true, it would give him a colourable claim of right, which would prevent the appropriation of the money from being larceny. Merry v. Green et al., 10 Law J. 154 m. 7 Mees. & W.623. Where the prisoner was indicted for stealing a gold chain and eye-glass, and it appeared that the prosecutor's wife lost the articles, whilst walking in the garden adjoining the house, and the prisoner (who was engaged about the premises), and the gardener, were sent to look for them; the prisoner found them, and, without disclosing the fact to the gardener or other person, took them home; on the day after a reward of 21. was offered for them, when the prisoner came forward with them, but refused to give them up until the reward was paid: Rolfe, B., held this to be larceny. R. v. Peters, 1 Car. & K. 245. But where upon an indictment for stealing a watch, the jury found the defendant "not guilty of stealing the watch, but guilty of keeping possession of it in the hope of reward, from the time he first had the watch :" the question whether his thus keeping it was larceny, being reserved for the opinion of the criminal appeal court, the judges held that it was not. R. v. Yorke, 2 Car. & K. 841. So, where a man was indicted for stealing a purse with money in it, and it appeared that he found it in the high road, and, according to his own confession, he poured the money into his hand, threw the purse away, and applied the money to his own use; the purse had been lost by the prosecutor's wife, when going as a passenger by the coach from Cleobury to Bewdley Parke, B., held that although it was clear that the defendant had the intent to appropriate the money to his own use immediately on his finding it, yet as there were no marks on the purse by which he might trace the owner, and as he found it in a place where it might be presumed that the owner would not know it could be found, he was not guilty of larceny. R. v. Mole, 1 Car. & K. 417. See R. v. Reed et ux., Car. & M. 306. See Thurborn's case, ante, p. 388.

3. Identity of the goods and ownership.] If the goods stolen have been found, they ought to be produced, and identified as the property stolen. They ought also to be proved to be the property of the prosecutor, as mentioned in the indictment, or that they were in his possession as bailee. Where the stealing has been from a bailee, it is in general necessary that the bailee should appear as a witness, to prove that he did not give the prisoner leave to take the goods. See R. v. Yend

and Haines, 6 Car. & P. 176, ante, p. 370. And when stolen from the owner, it is prudent at least, in most cases, that he should attend as a witness, for the same reason, whether he were examined before a magistrate or not. If the goods have been stolen from a thief, they may be laid and proved to the property of the real owner. 1 Hawk. c. 43, s. 13. If there be any variance between the proof and the indictment as to the ownership, however, the court may order the indictment to be amended. 14 & 15 Vict. c. 100, s. 1.

2. Larceny of Valuable Securities, &c.

Stealing Securities for the Payment of Money.

Indictment.

The jurors for our Lady the Queen, upon their

day of

one

to wit. Soath present, that A. B., on the in the year of our Lord feloniously did steal, take, and carry away [one bill of exchange for the payment of promissory note for the payment of- -, and one order for the payment of money, to wit, for the payment of -, the property of C. D., the said several sums of money payable and secured by and upon the said bill, note and order respectively, being then due and unsatisfied to the said C. D.: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

Felony, punishable as if it were a chattel of the same value. See 7 & 8 G. 4, c. 29, s. 5, infra.

66

By stat. 14 & 15 Vict. c. 100, s. 5, in an indictment for stealing "any instrument," it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac-simile thereof, or otherwise describing the same or the value thereof. From this it would seem sufficient to describe the securities mentioned in the indictment as 66 9966 one bill of exchange," one promissory note," or one order for the payment of money," without stating the amount, &c. But this I fear is not so. By stat. 7 & 8 G. 4, c. 29, s. 5, (being the section on which this indictment is framed) if any person shall steal any tally, order, or other security whatsoever, entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of this kingdom or of Great Britain or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, or to

any deposit in any savings' bank—or shall steal any debenture, deed, bond, bill, note, warrant, order or other security whatsoever for money or for the payment of money, whether of this kingdom or of any foreign state,—or shall steal any warrant or order for the delivery or transfer of any goods or valuable thing: every such offender shall be deemed guilty of felony, of the same nature and in the same degree and punishable in the same manner, as if he had stolen any chattel of the like value with the share, interest, or deposit to which the security so stolen may relate,—or with the money due on the security so stolen, or secured thereby and remaining unsatisfied,—or with the value of the goods or other valuable thing mentioned in the warrant or order: and each of the several documents hereinbefore enumerated, shall throughout this Act be deemed for every purpose to be included under and denoted by the words "valuable security." So that to show that the stealing of a bill, note or cheque is punishable within this Act, it is necessary to show that some amount of money is due upon it, or secured by it and remaining unsatisfied. And that is not done by merely stating it to be a bond, bill of exchange, promissory note, or order for money or the payment of money, for it may have been paid. See R. v. Clarke, infra.

A note of the bank of England or other bank may be described as money;" 14 & 15 Vict. c. 100, s. 18, ante, p. 90; but then it should seem that the indictment must conclude contra formam statuti," for stealing such a note was no offence at common law. 1 Hawk. c. 33, s. 35.

Evidence.

To maintain this indictment, the prosecutor must prove

1. A larceny of the bill, note, or order, as in ordinary cases of simple larceny at common law, see ante p. 371,369. Upon an indictment for stealing a certain warrant for the payment of 22,000l., and bank notes to the same amount, it appeared that Sir Thomas Plomer, the prosecutor, had given a cheque upon his banker for 22,000l. to Walsh, the prisoner, for the purpose of purchasing exchequer bills for him to that amount; the prisoner received the amount of the cheque in bank notes, and absconded with them; but being apprehended and tried, the jury, being of opinion that the prisoner before he received the cheque, had formed the design of converting the money to his own use, found him guilty: but upon a reference of the case to the judges, they were of opinion that this was not a larceny ;-not of the cheque, because the prisoner had used no fraud or contrivance to induce the prosecutor to give it to him, and also because, being the prosecutor's own cheque, and of no