ran away with both the half-crown and the change: being indicted for stealing the two shillings and six pennies, Park, J., held that it was larceny, but said, that if he had been indicted for stealing the half-crown, he should have entertained great doubt whether the indictment would lie. Rex v. Williams, 6 Car. & P. 390. Where a clerk at a banker's, by giving a fictitious credit in the books to a customer for a certain amount, and getting the customer's check for that amount, took bank notes out of the till in exchange for the check; the jury having found that he made the false entries of credit in the books, fraudulently, for the purpose of obtaining the money from the banker, the judges held this to be larceny. Rex v. Hammon, R. & R. 221. In Rex v. Hench, R. & R. 163, it appeared that the prisoner had obtained possession of a chest of tea from a warehouse of the East India Company, which had some time before been purchased at one of the Company's sales by Messrs. Layton & Co. teabrokers; the prisoner obtained it by taking the request note out of the box in the Company's warehouses, in which it was placed, taking that note to the permit office and obtaining a permit, and then on producing the permit to the Company's servant at the warehouse, he was allowed to take away the tea it was objected at the trial, that this could not be larceny, the possession of the property having been obtained by means of a regular request note and permit; but upon a reference to the judges, they held it to be larceny, and the prisoner had judgment accordingly. It is not mentioned in this case, whether, according to the regulations of the East India Company, the property in the tea in question passed to Messrs. Layton & Co. before actual delivery; and if that were not the case, there seems to be little in Hench's case to distinguish it from the case of Adams, above mentioned. There may be cases of this description, undoubtedly, in which it may be difficult to say with certainty whether they amount to larceny, or merely to the offence of obtaining goods by false pretences. In such cases, it is always safer and more prudent to indict for the latter offence: the punishment is very nearly the same as for simple larceny; and by this statute (7 & 8 Geo. 4. c. 29.) s. 53. after reciting that "a failure of justice frequently arises from the subtle distinction between larceny and fraud," it is provided that if, upon the trial of any person indicted for obtaining any chattel, money or valuable security under false pretences, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor. Vide post. s. 53.

And the taking must be a felonious taking; that is to say,

it must be done without any bona fide claim of right to the thing taken, and with the intent to convert or dispose of it to the taker's use. If a man take a personal chattel, under a real and bona fide idea that he has a legal right to take it, he never can be deemed guilty of larceny for doing so, however erroneous his idea or claim of right may be; but if he only pretend a claim of right to it, merely for the purpose of getting it into his possession, and well knowing at the time that such claim is without foundation, the taking would be such as to constitute larceny. Also, to render a taking felonious, it must be done with intent to convert or dispose of the property to the party's own use. And, therefore, where, upon an indictment for larceny, it appeared that the prisoner had clandestinely taken away the articles alleged to be stolen, merely for the purpose of inducing a young girl, the owner of them, to call for them, and thereby to give him an opportunity of soliciting her to commit fornication with him the judges held that this was not a felonious taking. Rex v. Richard Dickinson, R. & R. 420. Where upon an indictment for stealing a gun, it appeared that the prosecutor, a gamekeeper, meeting the prisoner, upon a manor, whom he knew to be a poacher, seized him, and he was rescued from him by another; the prisoner immediately wrested the gun in question from the prosecutor, and ran off with it; on the day after, he was heard to say that he would sell it, and it never afterwards was heard of: Vaughan, B., told the jury, that if the prisoner took the gun under an impression that it might be used against him so as to endanger his life, and not with any intent at that time to dispose of it, it was not a felony, and that his afterwards resolving to dispose of it would not make it such; and the jury being of opinion that at the time the prisoner took the gun he had no intention to appropriate it to his own use, acquitted him. Rex v. Halloway, Car. & P. 524. Where the captain of a ship, taken as prize, secreted some of the cargo, and clandestinely removed it from the ship, the majority of the judges seemed to think, that if the prisoner had taken the goods for the purpose of converting them to his own private use, and not for the benefit of the owners, it would be larceny; they came to no formal decision, however, but recommended the prisoner for a free pardon. Rex v. Cornelius Van Muyen, R. & R. 118. But in Rex v. Richard Morfit and another, R & R. 307, where it appeared that the prisoners, who were servants in husbandry to the prosecutor, opened the door of a granary belonging to their master by means of a false key, and took thereout two bushels of beans, for the purpose of giving them to their master's horses, in addition to the quantity usually allowed them: eight of the judges held this to be

:

larceny; and the prisoners had judgment accordingly. And in Rex v. William Cabbage, R. & R. 292, upon an indictment for stealing a horse, where it appeared that the horse in question had been before stolen by one Haworth, who was about to be tried for the offence; and that the prisoner, in order (as he thought) to screen Haworth from conviction, clandestinely took the horse out of the prosecutor's stable, led him to a coal pit and backed him into it, and the horse was killed it was objected at the trial, that this was not a larceny, because the taking appeared not to have been done with an intention to convert the horse to the use of the taker animo furundi et lucri causâ, but seven of the judges held it to be larceny; and six of this majority held that to constitute larceny, it is not essential that the taking should be lucri causâ; if it be fraudulent, and with an intent wholly to deprive the owner of the property, it is sufficient. The felőnious intent, also, must exist at the time of the taking. Upon an indictment for stealing a bill of exchange, it appeared that the bill was drawn in favour of one James Mucklow, and was inclosed in a letter by the drawer, directed to James Mucklow, St. Martin's Lane, Birmingham. There was a person of that name in St. Martin's Lane, the person for whom the letter was intended residing in New Hall Street; but the prisoner being of the same name, and living Bear St. Martin's Lane, the postman gave it to his father for him, and the father gave it to his son, the prisoner: the prisoner, upon opening the letter, must, from its contents, know that it was not intended for him; but he nevertheless applied the bill to his own use: the prisoner being convicted, the judges held the conviction to be wrong, on the ground that it did not appear that the prisoner had any animus furandi when he first received the letter. Rex v. James Mucklow, R. & M. 160.

In the case of bailment, the bailee, whilst the bailment subsists, cannot in general be said to commit larceny of the goods bailed, by converting them to his own use; because in such a case there is no felonious taking, the bailee being already in the legal possession of the goods. As for instance, where the prosecutor gave his watch to the prisoner, a watchmaker, to repair, and the prisoner sold it, Vaughan B. held that it was not larceny; if indeed he had obtained it by trick or fraud, it would have been different, but here it had been voluntarily delivered to him. R. v. Levy, 4 Car. & P. 241. Even after the bailment determines, and whilst the goods remain in the possession of the bailee, he cannot be said to commit larceny of them, unless it appear that at the time of the bailment he procured them to be delivered to him with the intent wrongfully to convert them to his own

use; or at least, that he entertained that intent at the time they were delivered to him. Where a man hired a horse for a particular purpose, but the day following, after the purpose for which he borrowed the horse was over, he took the horse in a different direction, and sold it; it appeared that he did not offer the horse for sale, but upon an application being made to him to sell it, he sold it; and the jury found that at the time he bororwed the horse, he had no felonious intention: the judges held that this was not larceny; that if the prisoner had not a felonious intention at the time he took the horse, his subsequent withholding and disposing of it did not constitute a new felonious taking; and that the doctrine laid down in 2 East, P. C. 690, 694, and 2 Russell, 1089, 1090, to the contrary, was not correct. R. v. W. Banks, R. & R. 441. But where it appeared that the prosecutor having hired the prisoner to drive 50 sheep to a fair, the prisoner, instead of driving them towards the fair, drove them in a contrary direction, and sold 10 of them on the very morning he received them; and the jury were of opinion that the prisoner, at the time he received the sheep, intended to convert them to his own use; the judges held this to be larceny. R. v. John Stock, R. & M. 87. Whether a bailee had such intention or not, at the time of the bailment, is for the jury to collect from the particular circumstances of the case. In Banks's case, above mentioned, his not having offered the horse for sale, or indicated any desire to sell it until an application was made to him for that purpose, and his not having sold it until the purpose for which he ostensibly borrowed it was answered, induced the jury to believe, that at the time he borrowed it he had no intention to dispose of it to his own use; but in Stocks's case, his driving the sheep in a contrary direction to that in which he was hired to drive them, and his selling some of them on the very morning he received them, were strong circumstances, from which the jury might fairly presume that he entertained a felonious intention at the moment the sheep were delivered to him. But in a more recent case than these, it has been decided, that in such a case as Stocks's, it is immaterial whether the drover had a felonious intent at the time the sheep, &c. were intrusted to him, as the sheep, although in the actual custody of the drover, were in contemplation of law in possession of the owner, the drover's possession being in law that of the owner. The case was thus: the prisoner, who occasionally acted as drover to the prosecutor, but was not regularly in his service, was hired by the prosecutor at the wages of 3s. a day, to drive some sheep to Grantham fair, and he drove them there accordingly; the prosecutor sold some of them, and sent the prisoner with the rest to Smithfield, desiring him to meet him in London, at a particular place and time; he drove

the sheep to London, but upon a person proposing to buy them from him, he sold them, (without any authority whatever from the prosecutor to do so,) and then absconded with the money: although the jury found that, at the time the prisoner took the sheep into his possession, he had no intention to steal them, the judges held that he was guilty of larceny; for the owner had not parted with the possession, the prisoner's possession being the owner's possession. R. v. M'Namee, R. & M. 368. If a carrier or other bailee open a bale or package of goods intrusted to him, take out part, and dispose of that part to his own use, this is considered such proof of an original felonious intention, that it has always been holden to be larceny; see 3 Inst. 107. 1 Hale, 505. Arch. Sum. 125; although if he dispose of the whole bale or package, without breaking it, it will be deemed a breach of trust only, and not a felony, unless it appeared that he had a felonious intent at the time he received it, as above mentioned. In R. v. Brusier, R. & R. 337, where it appeared that the prosecutor had sent 40 sacks of wheat to the prisoner, a warehouseman and wharfinger, for safe custody; and the prisoner emptied several sacks of the wheat contained in them, which he sold, and then substituted for it other wheat of an inferior quality it was doubted at first whether, as the prisoner had appropriated to his own use the whole of the wheat in each of the sacks which he had emptied, he could be deemed guilty of larceny; but upon the question being referred to the judges, they were unanimously of opinion that taking the whole of the wheat out of a sack, was as much larceny as the taking of a part merely; and the prisoner had judgment accordingly. In another case, upon an indictment against the captain of a ship for larceny, it appeared that the ship, laden with casks of butter, and bound from Waterford to Newhaven, put into Cowes on her way, through stress of weather; most of the casks were stowed in the hold, and battened down, but some were on deck; the prisoner had thirteen of them on deck landed at Cowes, pretending they were his own property; and when he arrived at Newhaven, he informed the consignees that these casks had been thrown overboard: the judges held that this was not larceny ; but it seemed to be admitted at the trial, that if the prisoner had broken bulk by taking the thirteen casks from those which were battened down, he must have been convicted. R. v. Edward Madox, R. & R. 92. Where the prosecutor had sent three trusses of hay to another person by the prisoner's cart, and the prisoner took away one of the trusses, which was afterwards found in his possession, but not broken up, J. Parke, J. held this not to be larceny, as the truss had not been broken up. R. v. Pratley, 5 Car. & P. 533. See also R. v. Fletcher, 4 Car. & P. 545. The rule here men