Before Pollock, C. B. Patteson, J., Wightman, J., Platt, B., Talfourd, J. R. v. Thristle, 3 Cox C. C. 573, 3 N. Ses. Cas. 702, 2 Car. & K. 842, T. & M. 204, 1 Den. C. C. 502, 19 L. J. m. c. 66, 13 Jur. 1035, B. 633, C. 291.

(Eng. C. C. R., 1853.) Accidentally Taken. In indictment for stealing a whitefaced lamb, it appeared that defendant was driving 29 lambs to market, and was allowed to put them into a pasture with other sheep for the night, and in the morning when he drove them away took the lamb in question with him. The jury found him guilty on instruction that if he discovered the lamb in the flock at any time before he sold it it was larceny to sell this with the other lambs. The jury found that he first discovered the lamb in the flock when it was pointed out to him when he was selling his flock. PARKE, B. The original taking was not lawful, but a trespass, upon which an action in that form might have been founded; but it was not felony, because there was no intention to appropriate. There was, however, a continuing trespass up to the time of appropriation, and at that time, therefore, the felony was committed. Where goods are carried from one county to another they may be laid as taken in the second county, and the difference between this and Leigh's case, as well as the others cited, is that the original taking was no trespass. It was by the implied license of the owner, and the same thing as if he had been intrusted by the prosecutor with the possession of the goods. Pollock, C. B., Williams, Talfourd, and Crompton, JJ., concurred. Conviction affirmed. R. v. Riley, Dears. C. C. 149, 6 Cox. C. C. S8, 22 L. J. m. c. 48, 17 Jur. 189, B. 591, C. 279, Ke. 289.

Where defendant, to

(Minn. Sup. Ct.. 1888.) Proof of Intent. whom rugs are intrusted to sell for cash, or on installments, or to return them within seven days, is to have a commission on the sales, but sells two rugs, and uses the money to leave the state, having sent the balance of the goods to the place to which he went, to a fictitious address, the jury are warranted in convicting him of larceny. S. v. Fisher, 38 Minn. 378, 37 N. W. 948.

§ 142. Cases of Bailees Breaking Bulk, etc.

(Eng. Star Chamber and Exchequer Chamber, 1473.) Carrier Breaking Bulk. Where one has bargained with another to carry certain bales with, etc., and other things to Southampton, he took them and carried them to another place and broke up the bales and took the goods contained therein feloniously, and converted them to his proper use and disposed of them suspiciously; if that "may be called felony or not, that was the case. BRIAN, C. J. I think not, for where he has the possession from the party by a bailing and delivery lawfully, it cannot after be called felony nor

trespass, for no felony can be but with violence and vi et armis, and what he himself has he cannot take with vi et armis nor against the peace; therefore it cannot be felony nor trespass, for he may not have any other action of these goods but action of detinue. HUSSEY, the king's attorney. Felony is to claim feloniously the property without cause to the intent to defraud him in whom the property is, animo furandi, and here notwithstanding the bailment ut supra the property remained in him who bailed them, then this property can be feloniously claimed by him to whom they were bailed as well as by a stranger; therefore it may be felony well enough. THE CHANCELLOR. Felony is according to the intent, and his intent may be felonious as well here as if he had not the possession. MOLINEUX ad idem. A matter lawfully done may be called felony or trespass, according to the intent; sc. if he who did the act do not pursue the cause for which he took the goods, as if a man distrain for damage feasant or rent in arrear and then he sell the goods and kill the beasts, this is tort now where at the beginning it was good. So if a man come into a tavern to drink it is lawful; but if he carry away the piece or do other trespass, then all is bad. So although the taking was lawful in the carrier ut supra, etc., yet when he took the goods to another place ut supra he did not pursue his cause, and so by his act after it may be called felony or trespass, according to the intent. BRIAN, C. J. Where a man does an act out of his own head, it may be a lawful act in one case and in another not, according to his act afterwards—as in the cases which you have put-for there his intent shall be judged according to his act; but where I have goods by your bailment, this taking cannot be made bad after by anything. VAVISOUR. Sir, our case is better than a bailment, for here the things were not delivered to him, but a bargain that he should carry the goods to Southampton ut supra, and then if he took them to carry them thither he took them warrantably; and the case put now upon the matter shows, that is, his demeanor after shows, that he took them as felon and to another intent than to carry them, ut supra, in which case he took them without warrant or cause, for that he did not pursue the cause, and so it is felony. CHOKE, J. I think that where a man has goods in his possession by reason of a bailment he cannot take them feloniously, being in possession; but still it seems here that it is felony, for here the things which were within the bales were not bailed to him, only the bales as an entire thing were bailed ut supra to carry, in which case if he had given the bales or sold them, etc., it is not felony; but when he broke them and took out of them what was within he did that without warrant, as if one bailed a tun of wine to carry; if the bailee sell the tun it is not felony nor trespass; but if he took some out it is felony; and here the twenty pounds were not bailed to him, and peradventure he knew not of them at the time of the bailment. So is it if I bail the key of my chamber to one to guard my chamber, and he take my

goods within this chamber, it is felony; for they were not bailed to him.

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It was then moved that the case ought to be determined at common law; but the chancellor seems to have thought otherwise, for the complainant was a merchant stranger, whose case ought to be judged by the law of nature in chancery and without the delay of trial by jury. The matter was afterwards argued before the judges in the exchequer chamber. And there it was holden by all but NEDHAM, J., that where goods are bailed to a man he cannot take them feloniously; but Nedham held the contrary, for he might take them feloniously as well as another; and he said it had been held that a man can take his own goods feloniously, as if I bail goods to a man to keep and I come privily, intending to recover damages against him in detinue, and I take the goods privily, it is felony. And it was holden that where a man has possession and that determines, he can then be felon of the things, as if I bail goods to one to carry to my house and he bring them to my house and then take them thereout, it is felony, for his possession is determined when they were in my house; but if a taverner serve a man with a piece, and he take it away, it is felony, for he had not possession of this piece, for it was put on the table but to serve him to drink. And so is it of my butler or cook in my house; they are but ministers to serve me, and if they carry it away it is felony; for they had not possession, but the possession was all the while in me; but otherwise peradventure if it were bailed to the servants so that they are in possession of it. LAICON, J. I think there is a diversity between bailment of goods and a bargain to take and carry, for by the bailment he has delivery of possession; but by the bargain he has no possession till he take them, and this taking is lawful if he takes them to carry, but if he take them to another intent than to carry them, so that he do not pursue his cause, I think that shall be called felony well enough. BRIAN, C. J. I think that it is all one, a bargain to carry them and a bailment; for in both cases he has authority of the same person in whom the property was, so that it cannot be called felony. M. 2 E. III., in an indictment "felonice abduxit unum equum" is bad, but it should be cepit; so in eyre at Nott., 8 E. III.; and in this case the taking cannot be feloniously, for that he had the lawful possession; so then the breaking the bales is not felony, vide 4 E. II. in trespass, for that plaintiff had bought a tun of wine of defendant, and while it was in defendant's guard defendant came with force and arms and broke the tun and carried away parcel of the wine and filled up the tun with water. And for that it appeared he had possession before, the writ, being vi et armis, was challenged; and yet it was held well; and he pleaded not guilty, and then the justices reported to the chancellor in council that the opinion of the most of them was that it was felony. * [This is generally known as the Carrier's Case; may be found in blackletter in Y. B., Easter, 13 Edw.

4, f. 9, pl. 5; and this translation is from Pollock & Wright, Possession 134; also given in B. 638, C. 297, Ke. 223, Mi. 734.]

"This has always appeared an extraordinary decision, as, to all common apprehension, theft of the whole thing bailed must determine the bailment quite as much as a theft of part of it. I think it obvious from the report that the decision was a compromise intended to propitiate the chancellor and perhaps the king. This required a deviation from the common law, which was accordingly made, but was as slight as the judges could make it. They would have liked to hold that where the original taking was lawful, no subsequent dealing with the property could be felonious. The chancellor, who seems to have had regard rather to the position of the owner of the goods than to the criminality of the carrier, seems to have wished to make the matter turn upon the moral character of the act of misappropriation. The judges resorted to the expedient of treating the breaking bulk as a new taking. They thus preserved the common-law definition of theft but qualified it by an obscure distinction resting on no definite principle." 3 Stephen's Hist. Crim. Law of Eng. 139. This and the other cases under this section are reviewed by Holmes, J., in C. v. Ryan, § 130.

(Eng. King's Bench, 1633.) If a Man Says to a Miller, who keeps a mill, thou hast stolen three pecks of meal, an action lies; for, although, the corn was delivered to him to grind, yet, if he steal the meal it is felony, being taken from the rest. Conviction affirmed. Langley v. Bradshaw, 1 Roll. Abr. 73, pl. 16, Mi. 737.

(Eng. C. C. R., 1805.) Captain Stealing from Cargo. On indictment under 24 Geo. 2, c. 45, for stealing at W. Cowes 6 casks and 1,000 pounds of butter, value £20, from a sloop at that port of entry, contrary to the statute, and on a second count for grand larceny; it appeared that the butter was part of a cargo of 280 firkins shipped on board the sloop of which defendant was captain, billed from Waterford in Ireland to Shoreham and elsewhere in England; that defendant met foul weather, was beaten from his path, and touched at Cowes in course for new sails; that the butter was delivered by the mate to the sail-maker's men at night on the captain's written order, being taken hap-hazard from the firkins standing on the halfdecks; and that the captain explained the shortage to the consignees, by saying he had been compelled by foul weather to throw it overboard. On the argument it was contended: 1. That no larceny had been committed; 2. That the case was not within the statute, because the ship was his own. As to the first the judge thought that taking the firkins from the half-decks where they were originally stowed was breaking bulk; and as the prisoner went into Cowes without necessity, the case was compared to those wherein it had been held that it was felony in a carrier to take goods aside from their course and embezzle them. As to the second objection he thought the vessel belonged to the freighter for the voyage, and the offense was aggravated by the owner being in charge and stealing the goods in his care. The whole case was left to the jury, who found the prisoner guilty. On case reserved, the judges were of opinion that it was not larceny; and, if it were, it was not a capital offense within the statute, 24 G. 2, c. 45. R. v. Madox, Russell & R. 92, B. 641, C. 301, Mi. 738.

(Mass. Sup. Judicial Ct., 1823.) Miller Adulterating Grist. On indictment for larceny of three tons of barilla, defendant was con

victed on proof that prosecutor's servant took barilla to the mill of defendant to grind, brought back a mixture of three parts barilla and one part plaster of Paris, a cheaper substance; that defendant demanded and received the pay for the grinding; and by other circumstances. The court instructed the jury that if the defendant took from the parcel of barilla any quantity with intent to convert it to his own use, introducing an inferior article to conceal the fraud, he was guilty of larceny. PUTNAM, J. The jury have found that the defendant took the goods with an intent to steal them; and the verdict is well warranted, if at the time the defendant took them, they were not lawfully in his possession with the consent of the owner, according to a subsisting special contract, in consequence of an original delivery obtained without fraud. If that was the case, the inference which the counsel for the defendant drew would follow, that such a taking would not be felony but a mere breach of trust, for which a civil action would lie, but concerning which the public have no right to inquire by indictment. The counsel for the defendant have referred us to 13 Ed. IV., fol. 9, as the authority upon this point. ** It is referred to as the foundation upon which many subsequent decisions rest. It will be perceived that here may be found the distinctions which are recognized in the text books upon this subject. Thus, if the party obtain the delivery of the goods originally without an intent to steal, a subsequent conversion of them to his own use while the contract subsisted would not be felony; but if the original intent was to steal, and the means used to obtain the delivery were merely colorable, a taking under such circumstances would be felony. So if the goods were delivered originally upon a special contract, which is determined by the fraudulent act of him to whom they were delivered, or by the completion of the contract, a taking animo furandi afterwards should be adjudged to be felony. In the case at bar,

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the goods came lawfully into the hands of the defendant by the delivery of the owner. If he is to be convicted, it must be on the ground that he took the goods as a felon after the special contract was determined. Hawkins observes (bk. i. c. 33, § 4) that such possession of a part distinct from the whole was gained by wrong and not delivered by the owner; and also, that it was obtained basely, fraudulently, and clandestinely. This remark is peculiarly applicable to the case at bar; for there is no evidence that the owner intended to divest himself of his property by the delivering of it to the defendant. The defendant did not pursue the purpose for which it was delivered to him, but separated a part from the rest, for his own use, without pretense of title; and by that act the contract was determined. From thenceforward the legal possession was in the owner, and a taking of the part so fraudulently separated from the rest, animo furandi, must be considered as larceny. Exceptions overruled. C. v. James, 1 Pick. 375, B. 645, 2 B. & H. 139-n, C. 304.