The correct distinction is that if the

owner parts with the possession only, meaning to re

for one John Paul, upon which the prisoner said, that he lived next door to him; and he then asked when Paul was to come for his hat, and was told he was to come that afternoon in half an hour or an hour. The prisoner then went away, saying, he would send his brother's wife for his own hat. Soon after he went away, he met a boy, whom (though he did not know him) he asked if he was going to Ilminster; and, upon the boy saying that he was going thither, he asked him if he knew Robert Beer, and said that John Paul had sent him to Beer's for his hat, but that as he owed Beer for a hat himself, which he had not money to pay for, he did not like to go. And he then asked the boy (to whom he had promised something for his trouble) to take the message from Paul, and bring Paul's hat to him (the prisoner). He further told the boy not to go into Beer's shop, in case Paul (whom he described by his person and a peculiarity of dress) should happen to be there. The prisoner then accompanied the boy part of the way, after which the boy proceeded alone to Beer's, delivered his message, and received the hat; which, after carrying it part of the way for the prisoner, by his desire, the prisoner received from him, and said he would take it himself to Paul. Upon the fraud being discovered shortly afterwards, the prisoner was apprehended with the hat in his possession. It was objected, on the part of the prisoner, that these facts did not establish a case of larceny: and that the indictment should have been upon the statute for obtaining goods by false pretences. And the jury having found the prisoner guilty, the question was reserved for the opinion of the Judges, who decided that the offence did not amount to a felony; the owner having parted with his property in the hat. (2)

The correct distinction in cases of this description seems to be that if by means of any trick or artifice the owner of property is induced to part with the possession only, still meaning to retain the right of property, the taking by such means will amount to larceny; but if the owner part with, not only the possession of the goods, but the tain the right of right of property in them also, the offence of the party obtaining them will not be larceny, but the offence of obtaining goods by false pretences. One Davenport was indicted for stealing two silver cream ewers; he had formerly been servant to a gentleman, who dealt with the prosecutor, and after he left his service he called at the prosecutor's west, pos- shop, and said his master (meaning the gentleman whose service he

property, the offence is larceny; but if the owner part not only with the session, but

the right of property, it is not larceny.

had left wanted a silver cream ewer, desired the prosecutor to give it to him, and to put it down to his master's account: the prosecutor gave him two ewers in order that his master might select that, which he liked best; he took both and sold them: the prosecutor stated that he did not charge his customer with these ewers, nor did he intend to charge him with either, until he had ascertained which he would have chosen; it was held that as the prosecutor had parted with the possession only and not the right of property, the offence was larceny; but if he had sent but one ewer, and charged the customer with it, it would have been otherwise. (a) So where a prisoner went to a shop and said that Mrs. Downing wanted some shawls to

(z) Adams's case, cor. Chambre, J., Taunton Spring Ass. 1812, MS. And it seems that the judges thought the second count out of the question, as Paul never

had possession of the hat.

(a) Rex v. Davenport, Newcastle Spring Ass. 1826, Bayley, J. Archb. Peel's Acts, 4.

look at, and the prosecutor gave her five shawls, and she pawned two of them the same evening and the others were found in her lodgings, it was admitted by the learned Judge, who tried the case, that as the property in the shawls would continue in the prosecutor until the selection was made, it was larceny if Mrs. Downing did not send for them. (b)

broker's ser

receiving a

this is not

If a pawnbroker's servant, who has a general authority from his If a pawnmaster to act in his business, delivers up a pledge to the pawner, on receiving a parcel from the pawner, which he supposes contains valua- vant, having a general authobles, which he has just seen in the pawner's possession, the receipt of rity, deliver up the pledges by the pawner is not larceny. Upon an indictment for steal- a pledge on ing a diamond brooch and various other articles, one Burgess, who was parcel he bein the employ of the prosecutor, a pawnbroker, and who had a general lieves to conauthority to manage his business, stated that the prisoner came to his tain valuables, master's shop, and produced duplicates of property previously pledged, larceny. to the amount of 341. which was the property laid in the indictment, and desired it to be brought up and a light, as he had some diamonds to seal; he then produced a small packet of diamonds, which he desired Burgess to look at, and to advance the most he could upon them. Burgess looked at them and agreed to advance 1607. on them, and at the request of the prisoner handed them over to him to seal up, which the prisoner did in his presence, and then returned a packet, which Burgess believed to be the one containing the diamonds, it resembling it in every respect. Burgess put it in his pocket, and then handed over to the prisoner the property laid in the indictment, and 1247. in money for the diamonds, which he supposed he had got. The packet so deposited when afterwards opened was found to contain coloured stones of the value of 46. Burgess stated also that he had no authority from his master to lend money, except upon pledges of an equivalent value; and that when he delivered the money, and also the property stated in the indictment, he supposed he had an equivalent for them in the diamonds in his pocket; and that when he delivered the goods in the indictment he parted with them entirely, thinking the diamonds left with him were of sufficient value to cover the value of them and the cash advanced; and that before he parted with them he had received the parcel containing, as he supposed, the diamonds, and that he had before examined the genuine diamonds, and might then have detained them, but as the prisoner said they might go through the hands of a second person and be changed, he handed the genuine diamonds back to the prisoner for the special purpose only of being sealed. Mr. Serjeant Arabin was inclined to think that as the property was parted with by Burgess absolutely under the impression that the prisoner had returned him the parcel containing the diamonds, the prisoner's offence did not amount to felony; and, upon a case reserved, the Judges were unanimous that the case was not larceny, because the servant, who had a general authority from the master, parted with the property and ownership, not merely with the possession. (c)

But if a servant has only authority to deliver property to one person, If a servant

(b) Rex v. Savage, 5 C. & P. 143, and MS. C. S. G. Patteson, J. Mrs. Downing being too ill to attend, the prisoner was acquitted, because it was assumed that Mrs. Downing did send her, and that she received

the shawls properly, and that it afterwards
entered into her mind to convert them to her
own use, and at that time she had the
pos-
session of them.

(c) Rex v. Jackson, R. & M. C. C. R. 119.

have only

authority to

deliver to one person, and

another ob. tains the delivery to himself by fraud, it is larceny.

Walsh's case.
Held under

circumstances

that as there was no fraud used to induce the prosecutor to deliver a check, there

was no larceny

and another person obtains it from such servant by falsely representing himself as the person to whom the property is to be delivered, it is larceny. Upon an indictment for stealing three chests of tea, the property of S. T. and his partners, it appeared that Messrs. T. & Co. were carriers, and that on the 8th of November, 1825, three chests of tea arrived at their warehouse, directed "J. Creighton, Tewkesbury." About a month before this the prisoner, calling himself Langston, had called several times at the office inquiring for teas, and asking if any had arrived for him. The last time he had called was about a week before the time in question, and he desired the porter of Messrs. T. & Co., when any came to take it to his (prisoner's) house. When the tea in question arrived it was taken by the porter to the prisoner's house, but he was from home, and the tea was taken back to the warehouse. On the Wednesday following the prisoner went to the porter's house and asked him if he had any tea for him; he told him he did not know, that he had three chests marked " J. Creighton," and said he did not know whether they were for the prisoner or not, as he did not know a person of the name of Creighton. The prisoner said they were his, and that he had an invoice which specified the same; that they had spelt his name wrong by putting a C. instead of an L., but he did not produce any invoice. The carriage amounted to 18s. 9d., for which, and the porterage, the prisoner paid 1.; the porter, by the prisoner's desire, fetched the goods and delivered them to the prisoner at his own house. On the Saturday following, J. Creighton applied to Messrs. T. and Co.'s office for the goods in question, which were afterwards found in the prisoner's possession. The jury found the prisoner guilty, and said they were of opinion that when the prisoner inquired at the waggon office for teas, he intended to obtain property not his own, and when he obtained the goods in question he knew they were not his property, and intended to steal them; and upon a case reserved the Judges held that the conviction was right on the ground that the ownership of the goods was not parted with, the carrier's servant having no authority to part with the ownership to the prisoner, and the taking was, therefore, larceny. (d)

In a case by which a great deal of interest was excited, the prisoner was charged in the first count of the indictment with stealing the particular twenty-two bank-notes, of the value of a thousand pounds each, and one bank-note of the value of two hundred pounds, the property of Sir Thomas Plumer; and, in several additional counts, with stealing a written instrument, which, in some of them, was called "a bill of exchange" for the payment of 22,200%, and in others, "a warrant for payment of money." The following facts were proved in support of the charge. The prosecutor, Sir Thomas Plumer, having contracted, in July, 1811, for the purchase of a large estate, shortly afterwards consulted the prisoner, who was a stock-broker of eminence, and who had long been employed in that capacity by the prosecutor, as to the most advantageous time to sell out stock, so as to be prepared with the purchase-money about the ensuing Michaelmas. The price of stock was then very low, and the prisoner advised that the sale might be delayed as long as possible, which recommendation was adopted by the prosecutor, who requested the prisoner to apprize him from

of the check, although the prisoner in

tended to misapply the proceeds before he received

the check, and did misapply them accord

ingly. And as

(d) Rex v. Longstreeth, R. & M. C. C. R. 137.

notes which

under the par

the notes never

was vested

time to time of the variations that might occur in the state of the to a charge of market. The prosecutor was not called upon to prepare the purchase- stealing the money by the time which was first mentioned, as the title to the es- were the protate was not then completed; but in the month of October, having ceeds of the reason to believe that the deeds would be ready on or before the check, held ensuing Christmas-day, he communicated that circumstance to the ticular circumprisoner, and consulted him as to the expediency of disposing of the stances that stock immediately, or letting it remain until the money should be the property in wanted; when the prisoner again advised him to delay the sale. On the 25th of November, the prisoner stated to the prosecutor that he in the prosethen apprehended a fall in the price of stock, and apprized him that cutor. the transfer-books at the Bank would shut on the 3rd December; and soon afterwards he became extremely urgent with the prosecutor to dispose of his stock immediately, writing to him, and frequently calling upon him for the purpose of giving such advice, and stating, as the reason for his importunity a probable fall in the price of stock. The prosecutor was influenced by these representations, and also by the concurrent opinion of a commercial gentleman whom he consulted on the subject; and, on Thursday, the 28th November, gave the prisoner a power to sell out a quantity of stock, which, on the ensuing morning, he contracted to sell for the sum of 21,700% The prosecutor went on the next morning into the city, with the intention of finishing the business; but the prisoner stated that some previous notice must be given to the purchaser to be ready with the money, in consequence of which the prosecutor appointed Wednesday, the 4th December, for making the transfer. On that day the prosecutor attended and transferred the stock, and expressly ordered the prisoner immediately to invest the proceeds in Exchequer bills, and lodge them on his account at his bankers, Messrs. Gosling and Co. in Fleet-street; but the prisoner told him that it was then too late to procure Exchequer bills to such an amount; which the prosecutor supposed to be true (though in fact it was not), and therefore left him to receive the 21,7001. of the purchaser, desiring that he would pay it into his banker's the same day, which he promised to do, saying at the same time, that he would call on the prosecutor the next morning, and get his check for such sum as he might choose to have laid out in Exchequer bills. The prisoner accordingly received the 21,700%., paid it into his own bankers, Robarts and Co.'s; and on the same day paid into Gosling and Co.'s his own check on Robarts and Co. for 21,500% on the prosecutor's account. On the following morning, Thursday, the 5th December, he called on the prosecutor, and received from him a check, (the instrument mentioned in the indictment) on Gosling and Co.'s, for 22,200%. The prosecutor directed him to go to Gosling's and get the money for it, telling him that it was for the precise and express purpose, and for no other purpose whatever, of laying it out in Exchequer bills; which the prisoner positively promised he would do, and either pay the bills into Gosling and Co.'s, or bring them to the prosecutor by four o'clock on the same day. Nothing was said as to what was to be done with the money in case Exchequer bills could not be purchased. The prisoner then went to Gosling and Co.'s with the check, and there received for it 22,200% in twenty-two bank-notes of 1,000 each, and one bank-note of 2001.; and on the same day he purchased with part of that money 6,500l. Exchequer bills, which he lodged at Gos

ling and Co.'s on the prosecutor's account, and took a receipt for them. At about half-past four o'clock on the same day, the prisoner called on the prosecutor, and produced the receipt for the Exchequer bills, and stated that he had paid the remainder of the money into Gosling and Co.'s, as he had contracted with Coutts and Co. for Exchequer bills to the amount of 15,000l., but that one of the partners of the house of Coutts and Co. was at that time absent from London, had the bills locked up in a drawer, and would not return to deliver them until the following Saturday, the 7th December, on which day the prisoner said, he would call again for the prosecutor's check for that amount, and lodge the Exchequer bills for which he had so contracted at Gosling and Co.'s on the prosecutor's account. The prosecutor did not examine the papers delivered to him by the prisoner, during the time the prisoner was with him; but, upon looking at them after he was gone away, he was surprised to find that there was only a receipt for the Exchequer bills, and no receipt for the residue of the money. This circumstance caused suspicion, and an inquiry was almost immediately made, when it was ascertained that the prisoner had, on the afternoon of that same day, set out for Falmouth in the mail coach, in which he had previously secured a place in a fictitious name; and that he had left a note, addressed to the prosecutor, with his clerk, dated on Saturday, the 7th December, and stating that the business respecting Coutts' Exchequer bills could not be finished until the following Monday. This note he had desired might not be delivered till the Saturday. It appeared also that, for some time before he absconded, the prisoner had been labouring under great pecuniary embarrassments, and had meditated an emigration to America; and that about the 29th of November he had applied to an American broker to procure for him American stock to the amount of 11,000l., and stock nearly to that amount was accordingly bought for him, and paid for by him, on the Thursday, the 5th of December, with eleven of the same bank-notes of 1,000l. each, which he had received for the prosecutor's check: and it further appeared, that several others of the 1,000%. notes so received for the prosecutor's check, had been paid away by him to different persons on his own account. It was proved also, that on the same day, Thursday, the 5th December, he paid to a dealer in foreign coin, 300% for doubloons, which he had contracted for three days before, and which were delivered to him on that day. And further, that he left his country-house at Hackney early on the same morning, in a stage coach, and brought with him a travelling portmanteau of linen and a drab great coat, which he had contrived to pack up without the knowledge of his family; that he provided himself with some stockings, night caps, and gloves, at a hosier's in Threadneedle-street, to whom he said that he was going out of town for a few days; and that, after having procured the foreign coin and American securities, he absconded by means of the Falmouth mail. When the route which he had taken was discovered, he was speedily pursued and apprehended at Falmouth, as he was about to get on board a packet for Lisbon, to which place he acknowledged that he intended to go in the first instance, and afterwards take an opportunity of getting to America. On being told the charge made against him, he delivered up the 11,000. American bank shares, and the bag of doubloons.