(N. Y. Ct. of App., 1858.) Pig Iron was Sent by Canal-Boat from Albany to Buffalo. On the way the captain of the boat stopped at W. at night and unloaded 100 bars worth $175. He delivered the balance at Buffalo. He was indicted for larceny, tried, and acquitted on the ground that his offense was embezzlement. He was immediately indicted for embezzlement, tried and convicted. On error to the court of appeals the judgment was reversed, on the ground that the offense was larceny, unloading part of the cargo being considered breaking bulk. "It is insisted on the part of the people, that the bailee can commit larceny only where he actually breaks a bale or package; that it is this breaking alone which can determine the privity of contract and render the asportation by carrier a trespass. But this, I think, is too narrow a construction of the rule, and one not sustained by the commentators and adjudications. Any separation of a part from the whole would seem to be as much a trespass as the breaking of a package. This seemed to be conceded upon the argument in regard to grains and things of that kind." Per Pratt, J. Concurring: Seldon, Roosevelt, Harris, and Strong, JJ. Denio and Comstock, JJ., dissented. Nichols v. P., 17 N. Y. 114, Mi. 742n.

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(Eng. C. C. R., 1849.) Benefit of Creditors, was allowed to remain in possession of his factory the same as before the assignment, to finish work on hand, the wages being paid by the trustees; and he removed various machines from the factory nightly, and concealed them in the house of an employee; then the assignees took possession and sold the factory, and the debtor became manager for the purchaser, and little by little returned the machinery to the mill. On indictment for larceny the jury found that he removed the machinery fraudulently, after the assignment, and was not then in custody as agent under the deed. A verdict of guilty was directed on these findings. LORD CAMPBELL, C. J. It is found that he had not the care and custody of the goods as their agent; and that clearly negatives a bailment; and that is the only ground upon which this case could be put. The prisoner, therefore, was in lawful possession of the goods and cannot be convicted of larceny. Conviction quashed. R. v. Pratt, 6 Cox C. C. 373, Dears. 360, 2 C. L. R. 772, 18 Jur. 539, 2 W. R. 497, B. 635, C. 293.

One Who Had Made an Assignment for

(Eng. C. C. R., 1851.) Clothes Peddler. On indictment for larceny it appeared that the prisoner was employed to sell clothes about the country, receive 3s. to the pound for his services, and return any clothes not sold; and that on February 12 he took away a parcel of clothes to sell, and later fraudulently pawned a part of them and converted the rest to his own use; on which the trial judge directed the jury that the original bailment was determined by unlawfully pawning a part of them, and the subsequent appro

priation of the residue was larceny. Was this direction right? O'Brien, for the prisoner: The contract with the prisoner was distinct and separate with regard to each article entrusted to him. The fact of his receiving all the articles at one time was a mere accident, which makes no legal difference in the case; each article had a separate price affixed to it. After he had pawned some of the articles, when was the original bailment of the others determined? LORD CAMPBELL. The case states, that on the 12th of February, he took away a parcel of clothes; we must, therefore, regard the delivery of that parcel as one bailment of all the articles contained in the parcel. O'Brien. The prisoner had authority to break the bulk; the contract imposed on him the necessity of opening it in order to take out each article and deal with it separately. COLERIDGE, J. Why may not there be a single contract embracing several particulars, as for instance, where a carrier is entrusted with various articles to leave at different places, all of which articles are placed in one bag; if he wrongfully deals with any one, is it not a breaking bulk of the whole? O'Brien. The doctrine of breaking bulk turns on there being no authority to open the parcel and deal with any of the articles separately from the rest. ALDERSON, B. If you can make out this to be like the case of a carrier entrusted with several parcels under several distinct contracts, then certainly it is no larceny. LORD CAMPBELL, C. J. I think the conviction was right. The case must be considered as though it was a single bailment. If there had been several bailments, then the wrongful dealing with one of the articles so bailed would not affect the case as to any other article. But it makes no difference that in one parcel there were several articles. The law has resorted to some astuteness to get rid of the difficulties that might arise in the case of a wrongful dealing with one or more of several articles, all of which, when entrusted, had been contained in one bulk. Alderson, B., and Platt, B., concurred. COLERIDGE, J. The fact of different prices being affixed to each article makes no difference in the case. R. v. Poyser, 2 Den. C. C. 233, T. & M. 559, 20 L. J. m. c. 191, 15 Jur. 386, 5 Cox C. C. 241, B. 643, C. 308.

§ 143. "To Deprive the Owner of His Property."

(Eng. C. C. R., 1816.) Taking to Feed to Prosecutor's Horses. On indictment for stealing two bushels of beans from defendant's employer, the jury found that they were taken from the prosecutor's granary, by means of a false key, to feed to his teams in care of defendants. A verdict of guilty was directed, but the question was reserved for the opinion of the judges, because several different decisions on similar facts had been rendered in assizes. Eleven judges met to consider this case. Eight of the judges held that this was felony; that the purpose to which the prisoners intended to

apply the beans did not vary the case. It was, however, alleged by some of the judges that the additional quantity of beans would diminish the work of the men who had to look after the horses, so that the master not only lost his beans, or had them applied to the injury of the horses, but the men's labor was lessened, so that the lucri causa, to give themselves ease, was an ingredient in the case. Graham, B., Wood, B., and Dallas, J., thought this not a felony, and that the conviction was wrong. R. v. Morfit, Russell & R. 307, B. 683, 1 B. & H. 438-n, C. 345.

(Eng. C. C. R., 1846.) Same. On indictment and trial for larceny it appeared that the prisoners took 5 sacks of oats from the barn floor in the presence of the thrasher and secreted them in the loft, intending to give them to their master's horses, they being employed as carter and carter's boy, but not being answerable at all for the condition or appearance of the horses. The jury found that they took the oats with intent to give them to their master's horses, and without any intent of applying them for their private benefit. The learned judge reserved the case for the opinion of the judges on the point whether the prisoners were guilty of larceny. R. v. Morfit and another, Russ. & Ry. 307 [above]; R. v. Cabbage, Russ. & Ry. 292 [§ 145]. Lord Denman, C. J., Tindal, C. J., Parke, B., Patteson, J., Williams, J., Coltman, J., Rolfe, B., Wightman, J., Cresswell, J., Erle, J., and Platt, B., met to consider this case. The greater part of the judges present appeared to think that this was larceny, because the prisoners took the oats knowingly against the will of the owner, and without color of title or of authority, with intent, not to take temporary possession merely and then abandon it (which would not be larceny), but to take the entire dominion over them, and that it made no difference that the taking was not lucri causa, or that the object of the prisoners was to apply the things stolen in a way which was against the wish of the owner but might be beneficial to him. But all agreed that they were bound by the previous decisions to hold this to be larceny, though several of them expressed a doubt if they should have so decided if the matter were res integra. Erle, J., and Platt, B., were of a different opinion; they thought that the former decision proceeded in the opinion of some of the judges on the supposition that the prisoners would gain by the taking, which was negatived in this case. R. v. Privett, 1 Den. C. C. 193, 2 C. & K. 114, 2 Cox C. C. 40, 1 B. & H. 440n, C. 349, Mi. 814.

(Eng. Central Crim. Ct., 1846.) For Reward. Property was temporarily deposited by the owner in a public room, and was taken away by the prisoner for the purpose of exacting a reward for its restoration, the jury being of the opinion that he would not have restored it without such reward. It was held to be larceny. R. v. Spurgeon, 2 Cox Cr. Cas. 102, B. 685.

(Eng. C. C. R., 1862.) Same. POLLOCK, C. B. In this case the prisoner was convicted of stealing a check. He took the check away from a boy who found it, and did not immediately give information to the owner, but withheld it in the expectation of getting a reward. The taking of the check from the finder was not a felonious taking, and the merely withholding it in the expectation of a reward was not a larceny. The rest of the court concurring. Conviction quashed. R. v. Gardner, 9 Cox C. C. 253, L. & C. 243, 32 L. J. m. c. 35, 11 W. R. 96, 7 L. T. 471, 8 Jur. n. s. 1217, B. 686, C. 365. Followed: S. v. Arkle, 116 N. Car. 1017, 21 S. E. 408.

(Mass. Sup. Judicial Ct., 1870.) Taking a Horse while Trespassing upon the Taker's Premises, with intent to conceal it until the owner should offer a reward for its return, and then to return it and claim the reward, or with intent to induce the owner to sell it astray for less than its value, was held to be larceny. MORTON, J., said: We think that when a person takes property of another, with intent to deprive the owner of a portion of the property taken, or of its value, such intent is felonious and the taking is larceny. The jury must have found, under the instructions given them, that the defendant took the horse with intent to conceal and retain it until he could obtain a reward from the owner, or until he could effect a purchase from him at a price less than its real value. The intent, in either contingency, was to deprive the owner of, and appropriate to his own use, a portion of the value of the property. We are of opinion that, upon principle and the weight of the authorities, the taking with such intent was larceny. * Exceptions overruled. C. v. Mason, 105 Mass. 163, 7 Am. Rep. 507.

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(Ohio Sup. Ct., 1877.) Taking Horses to Hold for Reward. Molosh, Richie, and Berry were convicted of grand larceny, Berry appeals. BOYNTON, J. * That the two geldings were wrongfully taken from the owner without his consent, concealed and secreted in the woods some three miles distant, for the purpose of securing a reward which the parties to the transaction expected would be offered for their return, and that the result contemplated was accomplished by their return and a receipt of the reward, in the meantime offered, are facts clearly proved. They are almost a necessary result of the verdict. The claim of the plaintiff in error was, and his position now is, not that such taking with such intent was not shown, but that such taking with such intent was not larceny or horse stealing under the statute.

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The court held, in effect, and so advised the jury, that if the geldings were wrongfully taken without the consent of the owner, with intent to conceal and secrete them, until a reward was offered for their return, and for the purpose of obtaining such reward, such taking was larceny. The request refused embodied the converse of this

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"There

proposition. We think the instruction was right. must be an intention to deprive the owner wholly of his property.' R. v. Holloway, 1 Den. C. C. 370 [below]. The contention of the plaintiff is, that the facts established at the trial did not bring the case within the rule thus stated, inasmuch as there was no intention to deprive the owner wholly or permanently of his property. In an exact sense, it is not true that an intent to appropriate permanently the property taken is a necessary ingredient in the crime of larceny, if by permanent appropriation is meant keeping the specific property from the possession of the owner. If the geldings taken in the case at bar, had been disguised, returned, and sold to the owner in pursuance of a purpose formed when they were taken, that the transaction would have constituted larceny cannot be doubted. Yet, in respect to the fraudulent character of the transaction, or in point of moral obliquity, it would be difficult to distinguish it from the case here made. The only possible difference in the two cases is, that in the one there would be an intent to convert the whole value of the property, and in the other only a part. But in this case there was an utter absence of intention to restore the property unless money was paid for its restoration. There was no evidence tending to show a purpose to return the property unless a reward was offered therefor. A return, at all events, was not designed. Affirmed. Berry v. S., 31 Ohio St. 219, 27 Am.

Rep. 506, F. 291.

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Acc. Dunn v. S., 34 Tex. Cr. R. 257, 30 S. W. 227, 53 Am. St. Rep. 714.

To Get False Credit for Work.

On indict

(Eng. C. C. R., 1849.) ment for stealing 120 dressed skins, it was shown and found by the jury, that the defendant was a skin-dresser in a tannery, was paid for his work by the piece, secretly entered the house where dressed skins were kept, and removed the skins mentioned in the indictment, intending to put them with the skins dressed by him and get credit as if he had dressed them. On this the jury were directed to find the prisoner guilty, and the question was reserved for the judges to consider whether the conviction was right. All the five judges called to hear the case held that the conviction must be reversed, because the defendant had no intention to deprive the owner of the skins permanently nor take them entirely from the owner's possession. R. v. Holloway, 3 Cox 241, 1 Den. C. C. 370, T. & M. 40. 2 Car. & K. 942, 13 Jur. 86, 18 L. J. m. c. 60, 3 New Sess. Cas. 410, B. 692, C. 263, Ke. 285.

(Ala. Sup. Ct., 1887.) Same. On indictment for burglary it appeared that defendants were hired to pick cotton at so much per 100 pounds, and broke into the cotton-house where the seed cotton was stored, and carried a quantity of cotton to the field, intending, not to deprive the owner of it, but to get paid for picking it. They were convicted, and on appeal the conviction was affirmed. "We