at common law, by their being severed and immediately removed. Thus it is no larceny to dig and carry away minerals from the earth; to pull down and carry away any part of a building; to cut, gather, and take corn and fruit, or to fell trees, although most of these acts have been made punishable by statutes to be noticed hereafter. (q) But if any of these things be first severed from the land, and at another time removed, though the severance was by the offender himself, so that the severance and the removal cannot be regarded as one continued act, the removal will be a larceny. Thus, if coal or lead be raised from a mine in the day time, and laid on the surface of the ground at the mouth of the pit, and be carried away at night by the same party; or if corn be cut, or fruit gathered, or timber felled, at one time, and after an interval be carried away, without such a continued presence of the thief as to make the taking and carrying away one continued act; (r) or if a copper be severed from the brickwork in which it is set during the day time, and is carried off at night by the same party, (s) these will be larcenies.

4. The things must be taken from the possession of From whose posanother;-not always, indeed, from the actual possession, session. but from the legal and constructive possession;—for if a party lawfully acquires the possession of goods, and afterwards fraudulently appropriates them to his own use, he is not guilty of felony. (t) Thus, if a man find goods, and convert them to his own use, he will not be guilty of larceny, unless they are in some place where the owner may be presumed to have deposited them, or the true owner is or may be known, and some artifice is employed to conceal them from his search, in which cases the animus furandi is reasonably to be inferred. Thus the driver of a hackney coach, taking a parcel left in the carriage, and unpacking it with a view to appropriate its contents; and a tailor concealing money found in clothes sent to him to repair, are guilty of larceny. (u) There are two classes of cases under this head, in which the question of larceny or no larceny may arise ;-first, where the owner has been induced voluntarily to part with the actual custody of property to a wrong-doer, in which case the offence may

Distinction be

and swindling.

be, according to circumstances, either larceny or false pretence; second, where property has been delivered to a bailee for a special purpose, who afterwards appropriates it to his own use, in which case the offence may be either larceny or breach of trust, made punishable as embezzlement by statute.

On the first class of cases, it is a universal rule that tween larceny where the ownership of goods is absolutely parted with, though in consequence of fraudulent misrepresentation, no felony is committed. (v) But where the owner has parted with the mere possession of property, and has been induced to give it up by fraud, involving at the time an intent to steal, the subsequent conversion will render a larceny complete.

Thus, where a horse was agreed to be purchased for a certain sum, and in pursuance of such agreement was delivered by the owner to the pretended purchaser, who immediately rode away with it without paying the purchasemoney agreed upon. In this case the owner parted voluntarily with the property itself in fulfilment of his imprudent contract, and therefore it was holden not to be larceny. (w)

But where one hired a horse of another for the day, and having got possession of it, rode off, and sold it, only the qualified possession of the horse was parted with, not the actual property in it, and it was held larceny, there being no doubt but he hired it with intent to steal.(x) So where the hiring was of a carriage for an indefinite time, which was not returned, the jury being of opinion that it was hired with intent to steal, it was holden larceny ; (y) for in this case also the mere possession, not the property was gone from the owner.

Where a shopkeeper, agreeing to sell certain goods to a customer for ready money, sent them to him with a bill of parcels by his servant, who received for them, instead of the ready money agreed for, two bills of exchange, which bills afterwards turned out to be worthless, though there was no intention to give credit by the tradesman, yet he in fact parted with the property, and this was no larceny in the customer, though the jury were satisfied

(v) The King v. Adams, Russ. and Ry. 225.

(w) The King v. Harvey, 1 Leach, 528,

(x) The King v. Pear, 1 Leach, 253; The King v. Patch, 1 Leach, 238.

(y) The King v. Semple, 1 Leach, 420.

that the animus furandi existed when the goods were ordered. (z)

Where one ordered goods to be brought to his house from a tradesman's shop to look at, that he might choose part of them, and when brought he did so, and separated what he approved of and laid them by themselves, and then contrived to send the tradesman home for more, under pretence that there were not sufficient variety, and while he was gone for them, the customer ran away with the whole which had been left at his house, it was held by all the judges that there had not been sufficient done to change the property in the goods, and there being evidence of an original intention to steal the property from the tradesman, it was larceny. (a)

A great number of decisions have taken place on the distinction between this species of larceny and fraudulently obtaining goods by false pretences, which would greatly exceed the limits of this work; but two cases, which seem to illustrate the principal, will suffice. (b)

A prisoner was indicted for feloniously stealing divers articles, and the material facts of the case were as follow:

66

A women professing herself to be the wife of one William Jones, went to a cheesemonger's shop, and agreed for two sides of bacon, several cheeses, some casks of butter, and other articles, and directed them to be sent to a small shop which she said her husband had taken for a retail trade in a distant part of the town; she desired that they might be sent thither at a particular time in the evening, when her husband would be at home, and he would pay the person that brought them." The cheesemonger sent the articles, as much in quantity as a man could take on a truck, by his porter at the hour appointed, with an accompanying written bill of parcels, and a verbal order not to take any paper in payment for them but Bank of England notes. When the porter arrived at the street, he had some difficulty in finding the shop, and made many fruitless enquiries for the name of Jones, but could hear of no such person being there: he was about to return, when

The King v. Parker, 2 East, P. C. c. 16.

(a) The King v. Sharpless, 2 East, P. C. c. 16.

(b) They were both commitments from the public office, Worshipstreet, and were vigorously contested, as well at the time of commitment, as at that of trial. It should be observed, that they are not introduced as authorities, properly so denominated, but merely as occurrences aptly illustrative of the subject under consideration.

K

the woman who had ordered the articles came up to him, and pretended to be looking for him, in consequence of his being past his time, and that her husband was in haste to go out to an appointment. He answered that "he had been some time looking about for her shop, but could not find it, and could not by enquiry make out any such name in the street." She said that she did not wonder at that, for they had only been in the house a day or two, and were strangers in that part of the town, but she would show him the way. She then led him to a place, not indeed far distant, but by no means answering the description she had given when she ordered the articles. When they arrived at the shop, there was no one in it but a boy, having the appearance of an apprentice, who immediately said, "My master was tired of waiting for you, and is gone to meet a man who is to pay him some money at the public house at the corner of the street; and desires. you will go there to receive the pay for the bacon and cheese." The porter not suspecting any fraud, and observing that the public house was in sight, set down his load in the shop, and went with the woman to the publichouse mentioned. As they were going into the house, they met a man in the passage who accosted the woman with "Are you come for your husband, Mrs. Jones?" to which the woman replied in the affirmative. He then said, "He is just gone, and bade me tell you to follow him to the public house in the next street, which is that the person frequents who is to pay him his money." The woman and the porter accordingly proceeded to the public house described. It was now getting dusk, and as soon as they arrived at the house in question, the woman went in first, and ran quick through the house into a yard behind it, which has a communication by means of a gate, with another street. porter, after a few moments' deliberation, ran into the yard after her, but no trace of her appearing, he suspected some imposition, and went back to the shop where he had left the goods. The door was shut, and on enquiry, he learned that the boy whom he had left there, and a man answering the description of him whom he had met in the passage of the first public house, had left the shop a short time before, loaded with goods answering the description of those which he had himself set down in the shop. With very little exertion he burst open the door, where he found nothing in it but a counter, and that made of the shutters belonging to the shop window, and only nailed together in the slightest manner, being supported at one end on the window sill, and at the other on an old barrel.

The

He moreover discovered that a man answering the description of the man whom he had met in the public house, but calling himself by a different name from that of Jones, had hired the room only in the morning of that day, and was wholly unknown in the neighbourhood, but had deposited a week's rent. She was not seen again till many weeks after the transaction, and then was making a similar attempt in another place. At the time of trial numerous objections were taken, but the only ones which especially apply in this place, were that, even assuming that the woman was a guilty party, she was only guilty of a fraud in obtaining goods under false pretences, and therefore it was no felony; and also that there was a complete voluntary unconditional delivery of the property by the cheesemonger's servant on behalf of his master, in confidence of future payment. The court and jury, however, decided that there was evidence sufficient in the circumstances altogether to show the animus furandi at the time the prisoner ordered the goods, and that, though the possession was parted with by the folly of the porter, the property was not changed, and the prisoner was convicted.(c)

The other was a case occurring within the same week, and differing from the last only in that particular feature of discrimination under immediate consideration. The prisoner, a female, took a room in a street leading out of Smithfield, and dealt in a very small way in tea, sugar, and candles. She paid her way, as the phrase is, for several weeks. The offence in question arose in the following way-She went to a shop in Clerkenwell and inquired the prices of candles and other articles; on being satisfied, she observed, that she did not want any just then, but she should do hereafter, for she dealt in those articles, and had hitherto bought of M. B., a great chandler in Smithfield, but her customers did not like his candles. She supposed, however, if M. B. gave her a character for punctuality, they, the traders in Clerkenwell, would serve her and give her a month's credit. They assented to the conditions, knowing M. B. particularly well. A few days after, she returned with a written passage book, of debtor and creditor account, purporting to be an account of goods delivered, and of monies paid by her to the house of M. B. and to have been settled from time to time by persons

in

(c) See 2 East, P. C. c. 16. s. 12. note (a); and the King v. Wilkins, 1 Leach, 520.