to contend that he should have been convicted of the other, we have the less uneasiness in applying it. With regard to the defendant's second position, we see no ground for contending that the detective in his doings was a servant of Sullivan, or that he had not a true possession of the money, if that question were open, which it is not. The only question reserved by the exceptions is whether Sullivan's ownership of the money prevented the defendant's act from being embezzlement. *** Exceptions overruled. C. v. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. Rep. 560, 15 L. R. A. 317, B. 543, F. 299, Mi. 695n.

As to embezzlement in general, see § 152.

§ 131. "Delivered by Mistake."

(Eng. C. C. R., 1827.) Letter Meant for One of Same Name. James Mucklow was convicted of larceny of a bill of exchange sent by mail, addressed to James Mucklow, St. Martin's Lane, Birmingham, near which defendant lived, delivered by the postman to defendant's father, and by him to defendant, who obtained the cash on it. It was intended by the sender for another James Mucklow, then of New Hall St., Birmingham, in payment for goods sold by him to the sender, and a letter was inclosed with the bill. The judges held this conviction wrong, on the ground that it did not appear that the prisoner had any animus furandi when he first received the letter; and a pardon was recommended. R. v. Mucklow, 1 Moody C. C. 160, B. 547.

(Ore. Sup. Ct., 1880.) Defendant Asked Change for $10 GoldPiece. Prosecutor gave him for it what both supposed to be a roll of 10 silver dollars, but what both discovered later were $20 goldpieces. Conviction of larceny, on instruction that conversion and refusal to make restitution on subsequent discovery of the mistake would be larceny, was approved and affirmed. S. v. Ducker, 8 Ore. 394, 34 Am. Rep. 590.

Acc. Wolfstein v. P., 6 Hun, (N. Y.) 121, 34 Am. Rep. 591n, B. 629.

Contra: Cooper v. C., 110 Ky. 123, 60 S. W. 938, 22 Ky. Law R. 1627, 52 L. R. A. 136-n, 96 Am. St. Rep. 426; Fulcher v. S.. 32 Tex. Cr. R 621, 25 S. W. 625.

(Eng. C. C. R., 1885.) Mistake-£1 Loaned for 1s. The prisoner was convicted of larceny on proof that after dark he asked the prosecutor to loan him a shilling till next day, on which prosecutor took from his pocket and delivered to the prisoner a coin, which both supposed to be a shilling, but which was in fact a sovereign; and that when the prisoner afterwards discovered what it was he immediately determined to and did appropriate it, had it changed, and later denied receiving it. SMITH, J. To constitute

the crime of larceny at common law, in my judgment, there must be a taking and carrying away of a chattel against the will of the owner, and at the time of such taking there must exist a felonious

intent in the mind of the taker. If one or both of the above elements be absent, there cannot be larceny at common law. The taking must be under such circumstances as would sustain an action of trespass. If there be a bailment or delivery of the chattel by the owner, inasmuch as, among other reasons, trespass will not lie, it is not larceny at common law. In the present case it seems

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to me, in the first place, that the coin was not taken against the will of the owner, and if this be so, in my judgment it is sufficient to show that there was no larceny at common law; and secondly, it being conceded that there was no felonious intent in the prisoner when he received the coin, this, in my judgment, is also fatal to the act being larceny at common law. The finder of a chattel may be guilty of larceny at common law; but how does that show that the finder out of a mistake may also be guilty of such a crime? A mistake is not a chattel. The chattel (namely, the coin) in this case never was lost; then how could it be found? In my judgment the argument upon the point for the crown is wholly fallacious and fails. It was further urged for the crown that the present case was covered by authority, and the cases of Cartwright v. Green, 8 Ves. 405 § 132], and Merry v. Green, 7 M. & W. 623 [§ 132], were cited in this behalf. I fail to see that either case is an authority for the point insisted upon by the crown. In my judgment a man who honestly receives a chattel by delivery thereof to him by its true owner cannot be found guilty of larceny at common law, and in my opinion the prisoner in this case is not guilty of that offense. The second point has now to be considered, namely, was he guilty of larceny as a bailee within the true intent of § 3 of 24 & 25 Vict. c. 96? To constitute a person bailee of a chattel there must be a bailment. R. v. Hassall, L. & C. 58, is an express authority to the effect that a person is not a bailee within the statute unless he is under obligation to return the identical chattel deposited with him. In my judgment the prisoner was not a bailee of the sovereign for the reasons above given. I am fully alive to the remark which has been made, that if the present case is not one of larceny, it should be. Whether this remark is well founded or not I do not pause to inquire; but it seems to me that the observations of Bramwell, B., in R. v. Middleton, L. R. 2 C. C. 38 [§ 134], on this head are well worthy of consideration. [Concurring opinions were delivered by Mathew, Field, Manisty, and Stephen, JJ. Day and Wills, * CAVE, J. JJ., also concurred.] * The thief must take the goods into his possession with the intention of depriving the owner of them. If he has got the goods lawfully into his possession before the intention of depriving the owner of them is formed, there is no larceny. Applying that principle to this case, if the prisoner acquired lawful possession of the sovereign when the coin was actually handed to him by the prosecutor, there is no larceny, for at that time the prisoner did not steal the coin; but if he only acquired possession when he discovered the coin to be a sovereign, then he is

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guilty of larceny, for at that time he knew that he had not the consent of the owner to his taking possession of the sovereign as his own, and the taking under those circumstances was a trespass. It is contended that, as the prosecutor gave and the prisoner received the coin under the impression that it was a shilling and not a sovereign, the prosecutor never consented to part with the possession of the sovereign, and consequently there was a taking by the prisoner without his consent; but to my mind, it is impossible to come to the conclusion that at the time when the sovereign was handed to him, the prisoner, who was then under a bona fide mistake as to the coin, can be held to have been guilty of a trespass in taking that which the prosecutor gave him. It seems to me that it would be equally logical to say that the prisoner would have been guilty of a trespass if the prosecutor, intending to slip a shilling into the prisoner's pocket without his knowledge, had by mistake slipped a sovereign in instead of a shilling. The only point which can be made in favor of the prosecution, so far as I can see, is that the prisoner did not actually take possession until he knew what the coin was of which he was taking possession, in which case, as he then determined to deprive the prosecutor of his property, there was a taking possession simultaneously with the formation of that intention. Had the coin been a shilling, it is obvious that the prisoner would have gained the property in and the possession of the coin when it was handed to him by the prosecutor; as there was a mistake as to the identity of the coin no property passed, and the question is whether the possession passed when the coin was handed to the prisoner or when the prisoner first knew that he had got a sovereign and not a shilling. There are four cases which it is important to consider. Here his honor reviewed Cartwright v. Green, § 132; Merry v. Green, § 132; R. v. Mucklow (above, which he discredited); and R. v. Middleton, § 134. In this case, Ashwell did not hold himself out as being willing to assume the responsibilities of a possessor of the coin, whatever its value might be; nor can I infer that at the time of the delivery he agreed to be responsible for the safe custody and return of the sovereign. As therefore he did not at the time of the delivery subject himself to the liabilities of the borrower of a sovereign, so also, I think, that he is not entitled to the privileges attending the lawful possession of a borrowed sovereign. When he discovered that the coin was a sovereign, he was, I thin, bound to elect, as a finder would be, whether he would assume the responsibilities of a possessor; but at the moment when he was in a position to elect, he also determined fraudulently to convert the sovereign to his own use; and I am therefore of opinion that he falls within the principle of R. v. Middleton, L. R. 2 C. C. 45 [§ 134], and was guilty of larceny at common law. For these reasons, I am of opinion that the conviction was right. [Concurring opinions were delivered by Lord Coleridge, C. J., and Denman, J. Grove and Hawkins, JJ., Pollock and Huddleston, BB., also concurred.] R. v. Ashwell, L. R.

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16 Q. B. D. 190, 55 L. J. m. c. 65, 53 L. T. 773, 34 W. R. 297, 16 Cox C. C. 1, 50 J. P. 181, B. 566, Ke. 292, Mi. 751n.

(Eng. C. C. R., 1886.) Overpaid by Mistake. Case reserved on verdict of guilty of larceny directed by the recorder, on proof that defendant was a workman in a factory, and found the pay in his envelope short, whereon he made complaint, and in the adjustment he was accidentally given the envelope of another workman, who was also seeking adjustment, and on the jury finding specially that when the prisoner received the last envelope he did not know it did not belong to him, but having received it innocently, he afterwards. discovered the error and fraudulently appropriated the money. HAWKINS, J. The old rule of law was not questioned by any of the judges in R. v. Ashwell [above]. This case is altogether different, for here the recorder told the jury that if the prisoner received the 7s. 111⁄2d. innocently, and afterwards appropriated it to his own use, he was guilty of larceny. It is perfectly clear to me that that direction could not be right, and that the learned recorder misapprehended the rule of law. [Coleridge, C. J., Manisty, Day, and Grantham, JJ., gave concurring opinions.] Conviction quashed. R. v. Flowers, 16 Q. B. D. 643, 16 Cox C. C. 33, 55 L. J. m. c. 179, 54 L. T. 547, 34 W. R. 367, 50 J. P. 648, B. 574, C. 229.

§ 132. "Finding Lost Property."

LORD COKE says, "If one lose his goods and another find them, though he convert them 'animo furandi,' to his own use, it is not larceny, for the first taking is lawful. So if one find treasure trove, or waif, or stray, and convert them ut supra, it is no larceny, both in respect of the finding, and also for that 'dominus rerum non apparet. "3d Inst. 108. The only authority given is Fitz. Abr. Corone 187, 265, 22 Ass. 99, 22 Ed. III.

LORD HALE says: "If A find the purse of B in the highway and takes it and carries it away, and hath all the circumstances that may prove it to be done animo furandi, as denying it or secreting it, yet it is not felony. The like in case of taking of a wreck or treasure trove, or a waif or stray." 1 Hale P. C. 506.

(Eng. Ct. of Chancery, 1802.) Money Found in Bureau Received to Mend. This was a bill for discovery in aid of a suit at law by plaintiff against defendants, and stated that Ann Cartwright died possessed of a bureau, in a secret part of which she had concealed 900 guineas in specie; that after her death Richard Cartwright, her personal representative, let the bureau to his brother, Henry, who took it to the East Indies and brought it back, the contents remaining still undiscovered; it was then sold to Dick for three

guineas, who delivered it to the defendant Green, a carpenter, for the purpose of repairing it. Green employed a person named Hillingworth, who found out the money and received a guinea for his trouble, and the whole sum of 900 guineas was possessed by the three defendants, Green, his wife, and Elizabeth Sharpe, who secreted and converted it to their own use. Defendants demurred, because the discovery might subject them to a criminal prosecution. LORD CHANCELLOR [ELDON]. This case involves a very delicate consideration in equity, for, whatever was the old doctrine as to larceny, distinctions have been taken in late cases, which make it frequently the subject of very nice consideration whether the taking is a trespass or only a breach of trust. 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, this bureau being delivered to the defendant for no other purpose than repair, if he broke open any part which it was not necessary to touch for the purpose of repair but 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 was 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 is a felony. So, if the pocket-book 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 intrusted with it for the purpose of opening it; and that is a felony according to the modern Demurrer allowed. Cartwright v. Green, 8 Ves.

cases.

405, C. 214.

(Eng. Exchequer, 1841.) Money Found in a Bureau Bought. Trespass for assault and false imprisonment. Pleas: 1, not guilty; and, 2, that plaintiff had stolen a purse filled with coin, for which defendants caused him to be taken by a peace officer. On the trial it appeared that plaintiff bought an old secretary at auction sale for £1, 6s., that he afterwards found the purse and money in a secret drawer of the secretary, and he claimed that the sale was with contents if any. The trial judge told the jury that as the property was delivered to the plaintiff as purchaser, there was no felonious taking, left them to assess the damages, and they found for plaintiff, £50. Motion for new trial or nonsuit. PARKE, B. ** * 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 colorable right to him to the contents of the secretary as well as to the secretary itself; viz., the declaration of the