farmer, and who had endorsed the bill to Minor, intended at the time he so uttered it to take up and pay the bill when it arrived at maturity. No such intention however, if it existed, was ever communicated to Minor.

Philips for the prisoner urged to the jury, that the existence of such an intention, if they believed it, was ground upon which they might properly negative the intention to defraud Samuel Minor as charged in the indictment; and a case was cited to the learned Judge at the bar (not reported), in which Lord Abinger at the previous Assizes for Shrewsbury had so decided.

In summing up the case, the learned Baron told the jury (after consulting Mr Baron Gurney), that if they were satisfied that the prisoner uttered the bill in payment of a debt due to Samuel Minor knowing at the time he so uttered it that it was a forgery, and meaning that Samuel Minor should believe it to be genuine, they were bound to infer that he intended to defraud Samuel Minor.

The prisoner was found guilty, and sentenced to be transported for life.

The learned Baron thought it proper, from respect to the opinion of Lord Abinger, to state a case for the opinion of the Judges, in order to know if the rule laid down by him in his summing up to the jury was

correct.

In Easter term, 1838, Lord Denman, C.J., Tindal, C.J., Lord Abinger, C.B., Parke, J., Littledale, J., Parke, B., Bolland, B., Bosanquet, J., Alderson, B., Patteson, J., Coleridge, J., Coltman, J., met, and having considered this case, were unanimously of opinion that the conviction was right.

[Or even though the money obtained by the fraud was legally due to the forger.]

REGINA v. WILSON.

LIVERPOOL ASSIZES. 1847.

2 CARRINGTON AND KIRWAN 527; 1 DENISON 284.

The indictment charged that the prisoner did feloniously forge a certain warrant and order for the payment of money, which said warrant and order for the payment of money was as follows, that is to say

"No.

Liverpool, Dec. 8th, 1847.

or

"To the Cashiers of the Liverpool Borough Bank. Pay Bearer, Two Hundred and Fifty Pounds.

"£250.

with intent to defraud one John M'Nicoll.

JOHN M'NICOLL & Co."

It appeared that the prisoner was the clerk of John M'Nicoll, and that a bill for £156. 98. 9d., for which Mr M'Nicoll was bound to provide, falling due on the 8th of December, Mr M 'Nicoll on that day signed a blank cheque, with the signature "John M'Nicoll & Co.,” and gave it to the prisoner, directing him to fill the cheque up with the correct amount due on the bill (which was to be ascertained by reference to the bill book), and the expenses (which would amount to about ten shillings), and after receiving the amount at the Liverpool Borough Bank, to pay it over to a Mr Williamson, in order that the bill might be taken up. Instead of doing so, the prisoner filled up the cheque with the amount of £250, which sum he immediately received at the Bank, and without paying any part of the money over to Mr Williamson, retained the whole of it in his own possession, in satisfaction of a claim for salary which he alleged to be due to him, and in support of which he gave some evidence, but which his master on his cross-examination entirely denied to be due. On the day after the receipt of the money on the cheque, he sent in an account of his claim, giving his master credit for the sum received on the cheque....

Edward James, for prisoner, objected....., that as the signature to the cheque was the genuine signature of M'Nicoll, and as the prisoner was entrusted to fill it up for a specified sum, the filling it up for a different sum, though it was a breach of trust, could not be considered as a forgery. COLTMAN, J. I think, on the authority of the cases of Regina v. Minter Hart, and Regina v. Bateman, that this is a forgery.

E. James further contended, that there was no proof of an intention to defraud M'Nicoll, but only to obtain from him a sum of money which the prisoner might honestly have supposed to be due to him.

With reference to this point,

COLTMAN, J. (in summing up), told the jury if they were satisfied that the prisoner was authorised only to fill up the cheque for the amount of the bill and expenses, and to pay the proceeds to Williamson, and that he filled it up for a larger sum, and applied the money when received to his own purposes, that was evidence for their consideration of an intention to defraud Mr M'Nicoll, as alleged in the indictment.

Verdict-Guilty.

COLTMAN, J., reserved the case for the opinion of the fifteen Judges.

On argument before the Judges, in the following term.

Brett, for prisoner, submitted...that this case was distinguishable from the cases of Rex v. Minter Hart' and Regina v. Bateman2, as the prisoner in the present case had, to some extent, a discretion which did not exist in the case of Minter Hart, and which was the ground on which it was in that case held that the prisoner had committed a forgery. With respect to the intent to defraud, it appeared that the prisoner had a bonâ fide claim on the prosecutor for the larger amount; and if he really had such a claim, or bonâ fide believed that he had, that would entirely do away with any imputation of an intent to defraud.

The case was afterwards considered by the fifteen Judges, who held the conviction right. They agreed that whether he had a claim to the alleged amount of salary or not, there was no shadow of authority thereby given to draw a cheque for a larger sum than his master had expressly authorised; and the drawing a cheque to a larger amount, fraudulently, was forgery.

SECTION X.

LARCENY.

CHAPTER 1. TAKING.

[There must be a Taking, i.e. a change of Possession.]

KING'S BENCH. 1584.

ANONYMOUS.

DALTON 493.

A man cutteth my girdle privily, my purse hanging thereat, and the purse and the girdle fall to the ground; but he did not take them up (for that he was espied). This is no felony; for that the thief never had an actual possession thereof, severed from my person. But if he had holden the purse in his hand, and then cut the girdle (although it had fallen to the ground, and that he took it up no more), then had it been felony; (if there had been above twelve pence in the purse). 1 1 Moody, 486. 2 1 Cox, 186.

For then he had it once in his possession. But these secret and privy takings from my person, are no robbery; for he neither assaulted me, nor put me in any fear.

And in antient time, the offender only lost his right thumb. See Fitz. Cor. 434.

[An insufficient (and also fraudulent) Taking.]

THE KING v. SHARPLESS AND GREATRIX.

CROWN CASE RESERVED.

1772.

LEACH 92.

At the Old Bailey in May Session, 1772, John Sharpless and Samuel Greatrix were convicted before Mr Justice GOULD, present Mr Baron ADAMS, of stealing six pair of silk stockings, the property of Owen Hudson. But a doubt arising whether the offence was not rather a fraud than a felony, the judgment was respited, and the question referred to the consideration of the Judges upon the following case.

Case. On the 14th of March, 1772, Samuel Greatrix, in the character of servant to John Sharpless, left a note at the shop of Mr Owen Hudson, a hosier in Bridge-street, Westminster, desiring that he would send an assortment of silk stockings to his master's lodgings, at the Red Lamp in Queen-square. The hosier took a variety of silk stockings according to the direction. Greatrix opened the door to him, and introduced him into a parlour, where Sharpless was sitting in a dressing-gown, his hair just dressed, and rather more powder all over his face than there was any necessity for. Mr Hudson unfolded his wares, and Sharpless looked out three pair of coloured and three pair of white silk stockings, the price of which, Mr Hudson told him, was 148. a pair. Sharpless then desired Hudson to fetch some silk pieces for breeches, and some black silk stockings with French clocks. Hudson hung the six pair of stockings which Sharpless had looked out, on the back of a chair, and went home for the other goods; but no positive agreement had taken place respecting the stockings. During Hudson's absence, Sharpless and Greatrix decamped with the six pair of stockings, which were proved to have been afterwards pawned by Sharpless and one Dunbar (an accomplice in some other transactions of the same kind for which the prisoners were indicted).

THE JUDGES were of opinion, That the conviction was right. For the whole of the prisoners' conduct manifested an original and preconcerted design to obtain a tortious possession of the property; the verdict of the jury imports that in their belief the evil intention preceded the leaving of the goods. But (independent of their verdict) there does not appear a sufficient delivery to change the possession.

[A thief may take even by the act of the owner's own agent.]

REX v. PITMAN.

GLOUCESTER ASSIZES. 1826.

2 CARRINGTON AND PAYNE 423.

The prisoner was indicted for stealing a mare, the property of Jonathan Blanch.

It was proved that the prisoner came to the George Inn, at Sodbury, on the fair day, and directed the ostler to bring out his horse. The ostler said he did not know which it was. The prisoner went into the stable, and pointing to the mare, said "That is my horse; saddle him." The ostler did so, and the prisoner tried to mount the mare in the inn yard; but from the noise made by some music, the mare would not stand still. The prisoner then directed the ostler to lead the mare out of the yard for him to mount. The ostler led the mare out; and before the prisoner had time to mount her, a person who knew the mare came up, and the prisoner was secured.

Watson, for the prisoner, objected that this was not a felonious taking by the prisoner, as the mare was never in his possession. It all along remained in the possession of the ostler, who never parted with it; and if the mare was never in the possession of the prisoner, he could not be guilty of stealing it.

GARROW, B. If the prisoner caused the mare to be brought out of the stable, intending to steal her; and the animal being disturbed by the music, the ostler led her out of the yard, for his accommodation and by his procurement, that is a sufficient taking to constitute a felony.

The defence was that the prisoner was drunk, and took the mare by mistake; and the jury, on that ground, found him

Not guilty.