which, in a few minutes, the box was missed; but the prisoner and the coach were quite gone; and it was not till several days had elapsed, and after hand bills had been dispersed and advertisements inserted in the public prints, offering a reward to any person who should bring home the box, that the prisoner was apprehended. The box was then found at the house of a Jew, to which the prisoner said he had taken it: but it was uncorded, the hasps of it were forced off, and it contained only a part of the property which was in it when it was lost, the two bonds and several of the articles mentioned in the indictment, having been taken away. The case was left to the jury, to consider whether they were satisfied that the prisoner had uncorded the box, not merely from a natural, though idle curiosity, but with an intention to embezzle some part of its contents; and they were of opinion that he uncorded the box and destroyed the papers with an intent to embezzle the goods found in the box. They accordingly found him guilty; and the case being reserved for the consideration of the twelve judges, a majority of them were of opinion that the conviction was proper. () Another case of a larceny by a hackney coachman of a parcel Sears's case. left in his coach may be here mentioned, though the circumstances of it appear to have left but little room for the defence that the prisoner obtained the goods by finding. The prisoner was indicted for stealing a parcel of calico, and other articles the property of Sarah Dixon. The prosecutrix hired him to drive her from her house to a linendraper's shop, where she purchased the articles named in the indictment; which were tied up in a parcel, and put into the coach. The prisoner then drove the prosecutrix back to her house; and, on getting out of the coach, she ordered him to give the parcel to her servant; but this he neglected to do. The prosecutrix went into the parlour of her house; but returned very shortly to the street-door and paid the coachman his fare; upon which he drove away. Upon the loss of the things being discovered, they were advertised, and a reward offered to any person who should restore them; but without effect. A few days afterwards the prosecutrix met the prisoner; but he denied all knowledge of her person, or of the things, or of his ever having had such a fare, and said that he had only driven the coach two days. The parcel, however, was traced to the prisoner's possession, and it appeared that it had been opened, and three yards taken off from the piece of calico. The prisoner in his defence acknowledged that he had driven the prosecutrix from her house to the linendraper's and back again; but he denied that she ever desired him to deliver the parcel to her servant. Upon this evidence the prisoner was convicted. (k) found by the The doctrine as to a felonious taking of goods, which have been Cases of bankfound by the party, was further confirmed in two more recent cases. notes, &c. In the first of these cases it appeared that a pocket-book containing prisoners, and bank-notes had been found by the prisoner in the highway, and converted to afterwards converted by him to his own use. Upon which Law- their own use, rence, J., observed, that if the party finding property in such manner knows the owner of it, or if there be any mark upon it by which the owner can be ascertained, and the party, instead of restoring the (j) Wynne's case, O. B. 1786, cor. Eyre, B., and East. T. 1786. 1 Leach, 413. 2 East, P. C. c. 16, s. 99, p. 664. (k) Sears's case, cor. Ashhurst, J., Old Bailey. 1789. I Leach, 415, note (b). Money found in the house a servant. property, converts it to his own use, such conversion will constitute a felonious taking. (7) And in the subsequent case the two prisoners (father and son) were convicted of stealing a bill of exchange, upon evidence of their having found and converted it to their own use, by endeavouring to negociate it. Gibbs, J., stated to the jury, that it was the duty of every man who found the property of another to use all diligence to find the owner, and not to conceal the property, (which was actually stealing it,) and appropriate it to his own use. (m) And in a recent case, a very learned judge said, "Suppose a person finds a cheque in the street, and, in the first instance, takes it up merely to see what it is; if afterwards he cashes it, and appropriates the money to his own use, that is a felony, though he is a mere finder till he looks at it." (n) Where upon an indictment for stealing a hat, it appeared that the prosecutor, having his hat knocked off by some one, the prisoner, who had his own hat on his head, picked up the prosecutor's hat, and carried it home; Park, J. A. J., said, in summing up, " If a person picks up a thing, when he knows that he can immediately find the owner, and instead of restoring it to the owner, he converts it to his own use, this is felony." (o) If a servant find money in his master's house, it is his duty to inquire of his master whether it is his money, and, if instead of of a master by doing so, he converts the money to his own use, he is guilty of larceny. Upon an indictment for stealing four 57. notes in the dwelling-house of her master, it appeared that the prisoner when asked by her master what she had done with the money, at first said, she had not seen it, but afterwards said, she found the notes in the passage of the house; and it was contended that, if that statement was true, the prisoner was not guilty of felony, as their being in the passage, would not necessarily lead to the conclusion that the notes were her master's property, and she might have supposed that they were dropped by some person, who had come to the house. Park, J. A. J., "It is suggested that this is not a felony, because, the prisoner might have found the notes in the passage. What passage? Why the passage of her master's house. What, if I drop a ring, is my servant to take it away?" After referring to the case before Mr. J. Lawrence, (p) the learned judge proceeded, "In the present case, there was no necessity for the prisoner to keep the property till it was advertised; for, as she found it in her master's passage, she should have ascertained whether it was her master's; at least she should have asked him that question." (q) (1) Anon. cor. Lawrence, J., Stafford Sum. Ass. 1804, MS. (m) Rex v. James, and Barnabas Walters, cor. Gibbs, J., Warwick Sum. Ass. 1812. (n) Per Parke, B., Merry v. Green, (0) Rex v. Pope, 6 C. & P. 346. (9) Reg. v. Kerr, 8 C. & P. 176, Park, taking he had or had not a design to deprive the owner altogether of his property." But this position seems open to considerable doubt, as it entirely omits any reference to the question upon which cases of this kind seem in some instances to have been decided, namely, whether at the time the chattel was found the prisoner knew or had the means of ascertaining to whom it belonged. The case of Merry v. Green, infra, is a strong authority to shew that the conduct of the party at the time of the finding, however strongly indicative of a fraudulent and felonious intent is not alone sufficient to make the conversion of the property to his own use a felony. C. S. G. a bureau A singular case occurred at no very distant period, of a conver- Conversion of sion, with a felonious intent, of a large sum of money found in a large sum a of money, bureau, which had been delivered to a carpenter, for the purpose with a felonious of being repaired. The point arose in the Court of Chancery upon intent, which the following facts. Ann Cartwright died possessed of the bureau, was found in in a secret part of which she had concealed nine hundred guineas delivered to a in specie. After her death, Richard Cartwright, her personal repre- carpenter to sentative, lent the bureau to his brother Henry; who took it to the be repaired. East Indies and brought it back, without the contents of it being discovered. It was then sold to a person named Dick for three guineas, who delivered it to one Green a carpenter, for the purpose of repairing it. Green employed a person named Hillingworth who found out the money. Hillingworth received only a guinea for his trouble; but, in consequence of his discovery, the whole sum of nine hundred guineas was secreted by Green, by Green's wife, and by one E. Sharpe, and converted to their own use. On these suggestions, Cartwright, the personal representative of the original owner of the bureau, filed a bill of discovery against Green and his wife, and Mrs. Sharpe; in which bill Dick joined, but did not claim any of the money on his own account; and the defendants demurred to the bill on the ground that an answer to the discovery sought might subject them to criminal punishment. After the argument upon this demurrer, the Lord Chancellor said, that the real question was, whether the bill charged a felony, and that the distinctions upon that point were so extremely nice, that he should not trust himself to say anything upon them until he had seen all the cases, and consulted some of the judges. Some time afterwards his Lordship delivered his opinion, and said "I have looked into the books, and have talked with some of the Judges and others; and I have not found in any one person a doubt that this is a felony. To constitute felony, there must, of necessity be a felonious taking. Breach of trust will not do. But from all the cases in Hawkins, there is no doubt that this bureau being delivered to Green, for no other purpose than to repair, if he broke open any part which it was not necessary to touch for the purpose of repair, with an intention to take and appropriate to his own use what he should find, that is a felonious taking, within the principle of all the modern cases; as not being warranted by the purpose for which it was delivered. If a pocket-book containing bank notes were left in the pocket of a coat sent to be mended, and the tailor took the pocket-book out of the pocket, and the notes out of the pocket-book, there is not the least doubt that it is a felony. So, if the pocketbook was left in a hackney coach, if ten people were in the coach in the course of the day, and the coachman did not know to which of them it belonged, he acquires it by finding it certainly; but not being entrusted with it for the purpose of opening it, that is felony, according to the modern cases. There is a vast number of other cases. Those with whom I have conversed upon this point, who are of very high authority, have no doubt upon it." (r) Where a person purchased at a public auction a bureau, in which Where money he afterwards discovered, in a secret drawer, a purse containing found in the money, which he appropriated to his own use, and at the time of of a bureau, (r) Cartwright v. Green, 8 Ves. 405. 2 Leach, 952. secret drawer was appropriated to his own use by the purchaser of the bureau, held that if the purchaser knew that the bureau and not its contents were sold to reasonable both the bureau and its con tents. the sale no person knew that the bureau contained anything whatever, it was held that if the buyer had express notice that the bureau alone, and not its contents, if any, was sold to him; or if he had no reason to believe that anything more than the bureau itself was sold, the abstraction of the money was a felonious taking, and he was guilty of larceny in appropriating it to his own use: but that if he had reasonable ground for believing that he bought the bureau with its contents, if any, he had a colourable right to the property, and it was not larceny. To trespass for false imprisonment, the defendants pleaded that the plaintiff stole a purse containing money, the property of one Tunnicliffe, and that they gave him in charge to a peace officer to be taken before a magistrate to be examined concerning the premises. (s) At the trial it appeared that at a sale by public auction, in October, the plaintiff purchased at the sum of 17. 6s. an old secretary or bureau, the property of Tunnicliffe: the plaintiff kept the bureau in his house, and on the 18th of November following, Garland, a carpenter's apprentice, while doing some repairs at the bureau, remarked to the plaintiff that he thought there were some secret drawers in it, and touching a spring he pulled out a drawer, which contained some writings; the plaintiff then discovered another drawer, in which was a purse containing several sovereigns and other coins, and under the purse a quantity of banknotes. Of this property the plaintiff took possession, and telling Garland that the notes were bad, he opened the purse, and gave him one of the sovereigns, at the same time charging him to keep the matter secret. Garland being interrogated by his parents how he came in possession of the sovereign, the transaction transpired; and it being subsequently discovered that the plaintiff had appropriated the money to his own use, falsely alleging that he had never had possession of a great portion of it, the defendants went with a police officer to the plaintiff's house, took him into custody, and conveyed him before a magistrate on a charge of felony, when he was discharged, the magistrate doubting whether a charge of felony could be supported. A witness stated that after the bureau was sold some one of the bystanders observed that the plaintiff might have bought something more than the bureau, as one of the drawers would not open, upon which the auctioneer said, "so much the better for the buyer; I have sold it with its contents." The auctioneer, however, stated that there was one drawer which would not open, and that what he said was, "that is of no consequence, I have sold the secretary, but not its contents." It did not appear that any person knew that the bureau contained anything whatever. Tindal, C. J., told the jury that as the property had been delivered to the plaintiff, as the purchaser, he thought there had been no felonious taking, and left to them the question of damages only, reserving leave for the defendant to move to enter a nonsuit; and after argument, and time taken to consider, the following luminous judgment was delivered by Parke, B., My Lord Chief Justice thought in this case that, even assuming the facts, of which evidence was given by the defendants to be true, the taking of the purse and abstracting its contents was not a larceny, and that is the question which he reserved for the opinion of the Court, giving leave to move to enter a nonsuit. After hearing the argument, 66 (s) The replication was de injuria. we have come to the conclusion that, if the defendants' case was true, there was sufficient evidence of a larceny by the plaintiff; but we cannot direct a nonsuit, because a fact was deposed to on the part of the plaintiff, which ought to have been left to the jury, and which, if believed by them, would have given a colourable right to him to the contents of the secretary, as well as to the secretary itself; viz., the declaration of the 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 defendants' 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 the 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, 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," (s) has undergone in more recent times some limitations; one is, that if the finder knows who the owner of If the finder the lost chattel is, or if, from any mark upon it, or the circumstances knows the under which it is found, the owner could be reasonably ascertained, owner, or from then the fraudulent conversion, animo furandi, constitutes a lar- the chattel, or ceny. (t) Under this head, fall the cases where the finder of a pocket-book with bank-notes in it, with a name on them, converts them animo furandi; or a hackney coachman, who abstracts the found, the contents of a parcel which has been left in his coach by a passenger, owner can be whom he could easily ascertain; or a tailor who finds and applies nece to his own use, a pocket-book, in a coat sent to him to repair by the fraudulent a customer whom he must know: all these have been held to be conversion is a larceny. cases of larceny, and the present is an instance of the same kind, and not distinguishable from them. It is said that the offence cannot be larceny unless the taking would be a trespass, and that is true; but, if the finder from the circumstances of the case must have known who was the owner, and instead of keeping the chattel for him, means from the first to appropriate it to his own use, he does not acquire it by a rightful title, and the true owner might maintain trespass, and it seems also from Wynne's case, (u) that if, under the (s) 3 Inst. 108. (t) Ante, p. 13 and 14. (u) Ante, p. 13. This position is at variance with the following case, and with 2 East, P. C., p. 665, and does not seem fairly deducible from Wynne's case, as there the prisoner must have known the box was put in the coach, and as he assisted in taking VOL. II. C out the luggage, his leaving it behind was any mark on the circumstances under which it is reasonably |