IV. 75, pl. 16;

they did shortly afterwards. This has been settled, so far as precedent can settle it, from very early days, although the principle has been disguised in an arbitrary seeming form. The rule that, if a man abuse an authority given him by the law, he becomes a trespasser ab initio, although now it looks like a rule of substantive law and is limited to a certain class of cases, in its origin was only a rule of evidence by which, when such rules were few and rude, the original intent was presumed conclusively from the subsequent conduct. It seems to have applied to all cases where intent was of importance. Hill, J., in Y. B. 11 Hen. 13 Ed. IV. 9, pl. 5. The Six Carpenters' case, 8 Co. Rep. 146 a, b. See Y. B. 9 Hen. VI. 29, pl. 34. (Compare as to burglary, 1 Hale P. C. 559, 560; Stark. Cr. Pl. 177; 2 East P. C. 509, 510, 514.) This rule was mentioned in the well known case in which it was decided that a carrier breaking bulk is guilty of felony: Y. B. 13 Ed. IV. 9, pl. 5; and in the time of Charles II. even was thought to explain the decision there. J. Kel. 81, 82. It is true that this explanation hardly can be accepted. 2 East P. C. 696. It was repudiated by the judges who decided the case. But seemingly the reason for the repudiation was that at that time the intent of the bailee was supposed to be always immaterial, and that as yet, and indeed as late as Lord Coke and Lord Hale, no exception had been made to the general rule that delivery by the owner prevents a conversion from being felony. Y. B. 13 Ed. IV. 9, pl. 5. See 8 Co. Rep. 146 b; 1 Hale P. C. 504; Y. B. 12 Ed. IV. 8, pl. 20; 21 Ed. IV. 75, 76, pl. 9. Probably the first suggestion that intent can be important when there is a bailment is in J. Kel. 81, 82, just cited, and there are many cases in the past where the intent of the bailee was open to question but was not tried e. g. Raven's case, J. Kel. 24; Tunnard's case, 2 East P. C. 687, 694. Since the law has changed or has been developed, the carrier's case in 13 Ed. IV. 9, sometimes has tended to make confusion. 2 East P. C. 695-698, c. 16, § 115. The rule as to trespass ab initio having been held not to apply to bailments when the intent of the bailee made no difference, still was not applied to them after the intent was held material. In this way it became ossified and took on the appearance of a limited and technical rule of a substantive law. See Esty v. Wilmot, 15 Gray, 168; Smith v. Pierce, 110 Mass. 35, 38. But since it has been settled that the intent may be decisive as to larceny, the less extreme and more rational proposition which led to the technical rule, namely, that the subsequent conduct is some evidence of the original intent, has been acted on frequently in England by leaving the case to the jury when the whole evidence consisted of an ambiguous receipt and a subsequent conversion. J. Kel. 81, 82. Pear's case, 2 East P. C. 685, 687. The King v. Charlewood, 1 Leach (4th ed.) 409; S. C. 2 East P. C. 689. Leigh's case, 2 East P. C. 694; S. C. 1 Leach, (4th ed.) 411 note (a). Armstrong's case, 1 Lewin, 195. Spence's case, 1 Lewin, 197. Rex v. Gilbert, 1 Moody C. C. 185. The

Queen v. Cole, 2 Cox C. C. 340. See also Chisser's case, T. Raym. 275, 276, and 2 East P. C. 697, citing 2 MS. Sum. 233. Cases like those mentioned in 1 Hawk. P. C. Larceny, c. 33, § 10, of a watchmaker stealing a watch delivered to him to clean, and the like, cannot be explained on the ground suggested, that the possession remains in the owner, but it would seem must be accounted for on the same ground as the last. See 2 East P. C. 683, 684, c. 16, § 110.

In the case at bar, the conversion followed hard upon the receipt of the horse, and the inference is not unnatural that the intent existed from the beginning, as it is proved to have existed a very short time afterwards. There is the less cause for anxiety upon the point, in view of the merely technical distinction between larceny and embezzlement. Of course, if the defendants received the horse with felonious intent in Norfolk, and carried it away into Middlesex, they could be indicted in the latter county. Exceptions overruled.

SECTION IV (continued).

(c) DELIVERY BY MISTAKE.

REGINA v. MIDDLETON.

CROWN CASE RESERVED. 1873.

[Reported Law Reports, 2 Crown Cases Reserved, 38.]

CASE stated by the Common Sergeant of London.

At the session of the Central Criminal Court held on Monday, the 23d of September, 1872, George Middleton was tried for feloniously stealing certain money to the amount of £8 16s. 10d. of the moneys of the Postmaster-General.

The ownership of the money was laid in other counts in the Queen and in the mistress of the local post-office.

It was proved by the evidence that the prisoner was a depositor in a post-office savings-bank, in which a sum of 11s. stood to his credit.

In accordance with the practice of the bank, he duly gave notice to withdraw 10s., stating in such notice the number of his depositor's book, the name of the post-office, and the amount to be withdrawn.

A warrant for 10s. was duly issued to the prisoner, and a letter of advice was duly sent to the post-office at Notting Hill to pay the prisoner 10s. He presented himself at that post-office and handed in his depositor's book and the warrant to the clerk, who, instead of referring to the proper letter of advice for 10s., referred by mistake to another letter of advice for £8 16s. 10d., and placed upon the counter a £5 note, three sovereigns, a half-sovereign, and silver and copper, amounting altogether to £8 16s. 10d. The clerk entered the amount paid, viz., £8 168. 10d. in the prisoner's depositor's book and stamped it, and the prisoner took up the money and went away.

The mistake was afterwards discovered, and the prisoner was brought back, and upon his being asked for his depositor's book, said he had burnt it. Other evidence of the prisoner having had the money was given.

It was objected by counsel for the prisoner that there was no larceny, because the clerk parted with the property and intended to do so, and because the prisoner did not get possession by any fraud or trick.

The jury found that the prisoner had the animus furandi at the moment of taking the money from the counter, and that he knew the money to be the money of the Postmaster-General when he took it up.

A verdict of guilty was recorded, and the learned Common Sergeant reserved for the opinion of the Court for Crown Cases Reserved the question whether under the circumstances above disclosed the prisoner was properly found guilty of larceny.

Nov. 23, 1872. The Court [Kelly, C. B. Martin, B., Brett, Grove, and Quain, JJ.] reserved the case for the opinion of all the judges.

Jan. 25, 1873. The case was argued before Cockburn, C. J., Bovill, C. J., Kelly, C. B., Martin, Bramwell, Pigott, and Cleasby, BB., Blackburn, Keating, Mellor, Brett, Lush, Grove, Quain, Denman, and Archibald, JJ.

No counsel appeared for the prisoner.

Sir J. D. Coleridge, A. G. (Metcalfe and Slade with him), for the prosecution.

The arguments and the cases cited sufficiently appear from the judgments.

Jan. 28. PER CURIAM. The majority of the judges think that the conviction ought to be affirmed, for reasons to be stated hereafter. June 7. The following judgments were delivered : BOVILL, C. J., read the judgment of Cockburn, C. J., Blackburn, Mellor, Lush, Grove, Denman, and Archibald, JJ., as follows: 1

We agree that according to the decided cases it is no felony at common law to steal goods if the goods were already lawfully in the pos

1 Part of this opinion is omitted.

session of the thief; and that, therefore, at common law a bailee of goods, or a person who finds goods lost, and not knowing or having the means of knowing whose they were, takes possession of them, is not guilty of larceny if he subsequently, with full knowledge and felonious intention, converts them to his own use.

It is, to say the least, very doubtful whether this doctrine is either wise or just; and the legislature, in the case of bailees, have by statute enacted that bailees stealing goods, &c., shall be guilty of larceny, without reference to the subtle exceptions engrafted by the cases on the old law. But in such a case as the present there is no statute applicable, and we have to apply the common law.

Now, we find that it has been often decided that where the true owner did part with the physical possession of a chattel to the prisoner, and therefore in one sense the taking of the possession was not against his will, yet if it was proved that the prisoner from the beginning had the intent to steal, and with that intent obtained the possession, it is sufficient taking. We are not concerned at present to inquire whether originally the judges ought to have introduced a distinction of this sort, or ought to have left it to the legislature to correct the mischievous narrowness of the common law, but only whether this distinction is not now established, and we think it is. The cases on the subject are collected in Russell on Crimes, 4th ed. vol. 2, p. 207; perhaps those that most clearly raise the point are Rex v. Davenport, 2 Russell on Crimes, 4th ed. at p. 201, and Rex v. Savage, 5 C. & P. 143, 2 Russell on Crimes, 4th ed. at p. 201.

In the present case the finding of the jury, that the prisoner, at the moment of taking the money, had the animus furandi and was aware of the mistake, puts an end to all objection arising from the fact that the clerk meant to part with the possession of the money.

On the second question, namely, whether, assuming that the clerk was to be considered as having all the authority of the owner, the intention of the clerk (such as it was) to part with the property prevents this from being larceny, there is more difficulty, and there is, in fact, a serious difference of opinion, though the majority, as already stated, think the conviction right. The reasons which lead us to this conclusion are as follows: At common law the property in personal goods passes by a bargain and sale for consideration, or a gift of them accompanied by delivery; and it is clear from the very nature of the thing that an intention to pass the property is essential both to a sale and to a gift. But it is not at all true that an intention to pass the property, even though accompanied by a delivery, is of itself equivalent to either a sale or a gift. We will presently explain more fully what we mean, and how this is material. Now, it is established that where a bargain between the owner of the chattel has been made with another, by which the property is transferred to the other, the property actually passes, though the bargain has been induced by fraud. The law is thus stated in the judgment of the Exchequer Chamber in Clough v. London and

Northwestern Ry. Co., Law Rep. 7 Ex. 26, at pp. 34, 35, where it is said, "We agree completely with what is stated by all the judges below, that the property in the goods passed from the London Pianoforte Co. to Adams by the contract of sale; the fact that the contract was induced by fraud did not render the contract void, or prevent the property from passing, but merely gave the party defrauded a right, on discovering the fraud, to elect whether he would continue to treat the contract as binding, or would disaffirm the contract and resume his property. . . . We think that so long as he has made no election, he retains the right to determine it either way, subject to this, that if in the interval, whilst he is deliberating, an innocent third party has acquired an interest in the property, or if, in consequence of his delay, the position even of the wrong-doer is affected, it will preclude him from exercising his right to rescind."

It follows obviously from this that no conversion or dealing with the goods, before the election is determined, can amount to a stealing of the vendor's goods; for they had become the goods of the purchaser, and still remained so when the supposed act of theft was committed. There are, accordingly, many cases, of which the most recent is Reg. v. Prince, Law Rep. 1 C. C. 150, which decide that in such a case the guilty party must be indicted for obtaining the goods by false pretences, and cannot be convicted of larceny. In that case, however, the money was paid to the holder of a forged check payable to bearer, and therefore vested in the holder, subject to the right of the bank to divest the property.

In the present case the property still remains that of the PostmasterGeneral, and never did vest in the prisoner at all. There was no contract to render it his which required to be rescinded; there was no gift of it to him, for there was no intention to give it to him or to any one. It was simply a handing it over by a pure mistake, and no property passed. As this was money, we cannot test the case by seeing whether an innocent purchaser could have held the property. But let us suppose that a purchaser of beans goes to the warehouse of a merchant with a genuine order for so many bushels of beans, to be selected from the bulk and so become the property of the vendee, and that by some strange blunder the merchant delivers to him an equal bulk of coffee. If that coffee was sold (not in market overt) by the recipient to a third person, could he retain it against the merchant, on the ground that he had bought it from one who had the property in the coffee, though subject to be divested? We do not remember any case in which such a point has arisen, but surely there can be no doubt he could not; and that on the principle enunciated by Lord Abinger, in Chanter v. Hopkins, 4 M. & W. at p. 404, when he says: If a man offers to buy peas of another, and he sends him beans, he does not perform his contract, but that is not a warranty; there is no warranty that he should sell him peas; the contract is to sell peas, and if he sends him anything else in their stead, it is a non-performance of it."

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