[Crown Case reserved.]

May, 1884.

REGINA V. DE BANKS. Larceny by bailee.

The prisoner was engaged by the owner of a horse to look after it for a few days, with authority to sell it. He sold it for £15. The owner having sent his wife to receive the money the prisoner showed her a check, but refused to hand it over, saying that he would go to the bank to cash it. He came out of the bunk and said they would not cash it. Being again asked to hand it over, he ran away. Held, by Lord Coleridge, C.J., Grove, Field and Smith, JJ., (Stephen, J., dissenting), that the prisoner was rightly convicted of larceny of the £15.

The prisoner was indicted at the Shropshire Quarter Sessions for embezzling the money of his employer. The evidence, so far as it is material to the point reserved, was as follows:-Joseph Tuker, the prosecutor, proved: On the 11th January, I drove a chestnut mare into Chester with prisoner; I left her at Mr. Wild's, a butcher; I engaged the prisoner to look after her. I said to him: "Do the mare well, and I will be here on Wednesday morning and will pay you for your work;" he was to have charge of her till I came; I told him to pay for the keep till I came; I meant him to look after her altogether; I should not have objected to his doing anything else; on Saturday, January 12th, I saw prisoner; I asked him how the mare looked, and he said she was as lame as a cat; he said he had removed her to his father's house; I said I should be at Chester by the first train; I told him the mare should be sold on the Wednesday morning when I went, as she would not do for me; I sent my wife on that morning; I have never receive a farthing from prisoner on account of the

mare.

Annie Suker, wife of prosecutor, proved: I went to Whitchurch on the 16th of January; I saw prisoner in the street; I asked him if he had sold the mare he said he had not; I went with him to Wild's stables; saw mare taken out of the stables into the street; prisoner was riding the mare about the fair; Mr. Foster bought her; prisoner, Mr.

Foster and Arthan went to the Queen's Head together; I was outside the door and watched; I saw Foster give prisoner some money; prisoner came out and showed me a check; he did not give it to me; he said we would go to the bank and get it cashed; I asked him for it several times but he would not part; he told me had sold the mare for £13; he came out of the bank and said they would not cash him the check; I asked him to give it to me, and said I would pay his expenses; he would not do so; I said he must come with me to Whitchurch, and I must have either the money or the mare; I had great difficulty in getting him to the station; at Whitchurch, when we got to the gasworks, he bolted down a little alley which leads to the canal; I ran after him and called, but he did not answer; I have never received any money for the mare.

Joseph Arthan proved the sale of the mare by the prisoner to Foster, and payment of £15 to the prisoner.

Robert Thomas, sergeant of police, proved that the prisoner absconded from Whitchurch on the 18th of January. The prisoner was arrested at Chester on the 31st of January.

The Chairman held there was no evidence to go to the jury of the defendant's employment as a servant, so as to make him guilty of embezzlement. It was then contended, on behalf of the defendant, that there was no evidence of the larceny of £15. The case was left to the jury who found "that the prisoner had authority to sell the mare and converted the money to his own use," and a verdict of "guilty of larceny" was recorded.

The question reserved for the opinion of this court was whether there was any evidence of larceny which could properly have been left to the jury.

No counsel appeared.

LORD COLERIDGE, C.J.-I think this conviction may be supported. There may be considerable room for doubt whether under the circumstances the prisoner was not entrusted as a servant; but we have not now to consider this point, the chairman having ruled otherwise, and the jury not having had the question left to them. The only point remaining is whether there is any evidence of

larceny. I think the effect of the evidence is that the prisoner was there to sell the mare, and receive the money for the prosecutor if he were present, and, if not present, then to sell and hold the money for him or his agent until he should come. I hold that the prisoner was a bailee of the money for the wife, who attended as agent of the prosecutor. She demanded the money, the prisoner refused, and thereupon the case falls directly within the words of the statute.

GROVE, J.-I am not free from doubt as to whether the prisoner was in the position of bailee. Although the evidence is ample that he took the money, yet it is clear that the money was not given to him on behalf of the prosecutor. But I think he is none the less a bailee by reason of his not having received the money directly from the hand of the prosecutor.

FIELD, J.-I agree, but not without some hesitation, that this conviction ought to be affirmed. The question is whether there was reasonable evidence that the prisoner was a bailee. It is important to note that the sale was for cash, that there had been no previous dealings between the parties, and that the prisoner was not a horse-dealer or agent who might probably be justified in mixing the money received with his own, as has been held in the case of a stock-broker charged with a similar offence.

STEPHEN, J.-I am sorry to be obliged to differ from the rest of the court, but this difference is due to the interpretation I place upon the facts rather than upon the application to them of any principle of law. I think the present case is governed by the case of Regina v. Hassall, 1 W. R. 708, L. & C. 58, where it was held that one who receives

money, with no obligation to return the identical coins, is not a bailee of such coins within the 24 and 25 Vic. c. 96, sec. 3, under which the present prisoner has been convicted. Here there is nothing to show that the prisoner was bound to return the coins received for the horse, it was not so understood by the parties, and, in fact, the evidence negatives this view. The prisoner was authorized to sell the horse in the ordinary manner, and, if the check was part of the price paid, the wife raised no objection to his cash

ing it. If he had got it cashed at the bank no objection would have been raised, and the prosecutor would have been satisfied whether he got the check or the proceeds. If so, it cannot be said that there was any obligation on the prisoner to hand over the specific coins received.

I may mention also that under section 72 of the same statute, which permits a convic tion for larceny under an indictment for embezzlement, as was done in the present case, there is no power to convict of larceny as a bailee; but I do not in any way base my judgment upon this, because I think simple larceny includes larceny by a bailee.

A. L. SMITH, J.-The difference of opinion between the members of the court arises more upon a question of fact than of law. Upon the evidence before us I agree with the majority of the court that the prisoner was rightly convicted as a bailee of the money demanded of him by the wife of the prose

cutor.

If

Conviction affirmed.

NEW YORK SUPREME COURT,

GENERAL TERM, OCTOBER 1884. HAYES V. NEW YORK CENTRAL R. Co. Railroad-Passenger's ticket.

a passenger on a railroad train mislays his ticket, and acting in good faith fails to find it, until after the conductor rings the bell for the purpose of stopping the train and ejecting him; in an action against the carrier to recover damages for an unlawful ejection under such circumstances,

Held, that the omission to find and surrender

the ticket or pay his fare before the bell rang is not equivalent to a refusal to do so. Held, further, that the passenger is entitled to a

reasonable opportunity to find his ticket if he can, and in default to pay his fare, and it is a question of fact for the jury to deter mine whether or not such reasonable oppor tunity was allowed.

Appeal from judgment entered upon a nonsuit directed at Oneida Circuit, May, 1884, and from an order denying a motion for a new trial on the minutes. The action is brought to recover damages for ejecting plaintiff from the train on its passage from

Utica to Rome on the morning of September 11, 1881. At the close of the evidence the defendant moved for a nonsuit which motion was granted and plaintiff excepted.

MERWIN, J. Concededly the plaintiff had a ticket from Utica to Rome, that he had purchased the afternoon before. As to what occurred just prior to his ejection, there is a conflict of evidence. On the part of plaintiff, there was evidence tending to show that as the conductor came along and asked the plaintiff for his ticket he tried to find it and couldn't; told the conductor he had one and would find it in a minute; felt through his pockets, said to the conductor, you go through the train and by the time you come back I will find my ticket, if I don't, I have money to pay my fare;" that the conductor said, "find your ticket or get off the train ;" that the plaintiff said, "maybe you better put me off this train;" that then the conductor pulled the bell-rope to stop the train; that before it fully stopped the plaintiff found | his ticket and offered it to the conductor who refused to take it and put the plaintiff off. On the part of the defendant the conductor testified that the plaintiff was in the next to the last car; that as he came along he asked him for his ticket; that the plaintiff found what was apparently a ticket and the occurrence then proceeded as follows: "I asked him for his ticket: he said he would not give it to me until he got to Rome; I said if you don't give me that ticket I will have to put you off; he said, I won't give it to you; I said, very well, I will have to stop the train and put you off; I then rang up the train, the train stopped at once, then I told him to get out; he got up and walked out down on the ground, then he wanted me to take the ticket and I refused; I told him I had stopped the train to put him off and I wouldn't carry him; I didn't stop that train for any purpose except to have him get off; the ules are, ring up the train and put off a man who don't show his ticket or pay his fare."

The nonsuit was granted apparently upon the theory that as according to the plaintiff's evidence, the ticket was not produced and tendered before the bell was actually rung therefore the conductor was justified in putting the plaintiff off.

The counsel for defendant claims that the omission to produce the ticket was equivalent to a refusal, and brings the case within Hibbard v. N. Y. & E. R. Co., 15 N. Y. 455. In that case the plaintiff had a ticket from Hornellsville to Scio; had shown it to the conductor once, and then, afterward and after the train had passed another station, was asked to show it again and refused and was put off. It was held at Circuit that he was not bound to show it again: but the Court of Appeals held that he was, and that a rule to that effect was reasonable, and reversed the judgment.

In O'Brien v. N. Y. C. & H. R. R. Co., 80 N. Y. 236, it is said by Rapallo, J., that if in consequence of the fractious refusal of a passenger to pay the full fare the company has a right to demand, the train is stopped for the sole purpose of putting him off, he is not entitled to insist on continuing his trip on paying the fare, but may be removed from the train. If, however, the stoppage is at a station, a tender before removal would answer. Guy v. N. Y., O. & W. R. Co., 30 Hun, 399; Pease v. D. L. & W. R. Co., 16 W. Dig. 266.

In Maples v. N. Y. & N. H. R. Co., 38 Conn. 558, the rule is laid down that a passenger whose ticket is mislaid is entitled to a reasonable time to find it.

In Railroad Co. v. Garrett, 8 Lea (Tenn.), 438, it was held that a passenger who gets upon a train in good faith, in ignorance of the fact that a tax certificate would not pay his fare, having no intention to impose upon the carrier, cannot be treated as a mere trespasser, but on failure or refusal to pay his fare after request and after reasonable opportunity allowed to comply, he may be ejected, but if before eviction another person offer to pay the fare the carrier is bound to receive it and convey the passenger. The offer in that case was after the bell was rung to stop the train. In the present case if the ticket of the plaintiff was mislaid and he in good faith was trying to find it, he was entitled to a reasonable time to enable him to do so, if he could, and if in case of failure to find it after such reasonable opportunity he was willing and ready to pay his fare, the conductor had no right to put him off. Whether

or not the plaintiff was allowed such reasonable opportunity to find his ticket or pay his fare was, upon the evidence on the part of plaintiff, a question of fact to be determined by the jury. If so the nonsuit was improperly granted.

A question is made by the appellant that the removal was not at or near any dwelling house. This is not set up in the complaint, and no point was apparently made about it at the trial. It does not seem important to consider it here.

The judgment should be reversed and nonsuit set aside and new trial granted, costs to

abide the event.

Hardin, P. J., and Follett, J., concur.

CANADA GAZETTE NOTICES. Parliament is called for the dispatch of business, on Thursday, January 29, 1885.

The Royal Canadian Insurance Company gives notice of an application for authority to reduce its capital stock to $500,000, each share to be $25, of which $20 paid up and $5 subject to be called in, and to amend its charter otherwise.

Les Fidèles Compagnes de Jésus, of district of Saskatchewan, are applying for an act of incorporation.

The Tecumseh Insurance Company will apply to revive its Act of Incorporation, 45 Vict. c. 105.

The Brantford, Waterloo and Lake Erie Railway Company will apply for an act of incorporation.

The Hamilton Provident and Loan Society asks for a declaratory act as to powers, and for other purposes.

The Pension Fund Society of the Bank of Montreal asks for an act of incorporation.

An Act is sought to incorporate a company to build and maintain a bridge across the St. John River, at or near Fredericton, N. B.

The City of Toronto applies for an act to regulate the use of the esplanade by railway companies, &c.

themselves, and nobody else having the control, and leaving the possession where it was, does not invalidate the policy; but the introduction of a new partner, with an investiture of an interest in him which he did not have before, does invalidate the policy. Cir. Ct., D. Minnesota, June 26th, 1884. Drennen v. London Assurance Corp. Opinion by Miller, J. (20 Fed. Rep. 657.)

LIABILITY OF A TELEGRAPH COMPANY.

The New York Superior Court, in the recent case of Milliken v. The Western Union Telegraph Co., decided an interesting question relative to the obligations existing on the part of a telegraph company towards the receiver of a message. The plaintiff in this case, a broker in plays, sued the defendant for damages resulting from loss of sale of a play, from the failure of defendant, through mere carelessness and negligence, as alleged, to deliver a cable message sent to plaintiff from Paris, which defendant had agreed to deliver, but had declined to receive pay in advance, proffered by plaintiff. The defendant demurred to the complaint, claiming that the receiver of a message could not hold a telegraph company liable to him ex contractu other than upon the contract entered into between the company and the sender of the message.

In rendering its opinion the Court said: "Giving to the facts alleged in the complaint, and admitted by the demurrer, the consideration most favorable to the plaintiff, and giving full weight and every reasonable intendment and inference in support of his action, I am yet unable to find any contract between him and the defendants, or any privity between them, or any special duty or obligation on their part to him, or any consideration moving from the plaintiff to the defendant sufficient to support a contract between them, for the breach of which a right in him to recover damages from the defen

RECENT U. S. DECISIONS.

GENERAL NOTES.

The Legal News (Montreal) sends us the first number of The Montreal Law Reports," a new series, to be published in connection with that journal, contain

and Court of Queen's Bench. The number is very Albany Law Journal. handsomely printed, and apparently well edited.

The Legal News.

VOL. VII. DECEMBER 27, 1884.

SENECAL & HATTON.

The decision of the Court of Appeal upon one part of this case is of considerable importance. The defendant, Senecal, retained in his possession, without any legal right to do so, certain railway bonds. Apart from the questions of fact (as to which the Court of Appeal confirmed the decision of Mr. Justice Torrance, 6 L.N. 220), a question of law arose as to the alternative to which the defendant should be condemned in default of his giving up the bonds. The plaintiff by his action asked for the bonds, or their value at par. The Court below adopted this view (more especially as it was difficult on the evidence to fix the precise value), but the Court of Appeal has varied the judgment in this respect, and held that the defendant

should be condemned in the alternative

merely to pay the actual or market value of the bonds as established in evidence. By the formal judgment in appeal the value assigned to the bonds (25 per cent.) is said to be the value at the time the defendant got them. Another question involved in the case is of some interest, but no reference was made to it in the judgment. Coupons were attached to the bonds, falling due every six months, and representing six per cent. interest on the par value of the bonds, the capital of which is only payable at the expiration of twenty years. Mr. Justice Torrance allowed interest on each coupon as it became due, without requiring proof of demand of payment. This ruling was supported by decisions of the Supreme Court of the United States (see 6 L.N. 385, where the cases are cited). It is also in accordance with the unanimous judgment of the Court of Review in Desrosiers v. The Montreal, Portland & Boston Railway Co. (6 L.N. 388). The form given to the judgment in appeal made it unnecessary to pass upon this question, because, instead of valuing the coupons separately, the judgment allows interest upon the valuation of

EX PARTE PERRY.

A few words may suffice for the present by Way of appendix to the report in Ex parte Perry, 7 L. N. 330. Dr. Vallée, who was Rose Lynam, might safely be liberated if named expert, reported that the patient, placed in the care of some one other than her

husband. Mr. Justice Jetté thereupon ordered the assembly of a family council to advise as to the appointment of a guardian. The majority of the council recommended that she be placed in the charge of the Lady Superior superintending Longue Pointe Asylum. As this would be leaving matters precisely as they were before, the learned judge overruled the advice of the majority and adopted that given by two of the friends, viz, that she be placed in the care of Mr. Alfred Perry.

THE SALVATION ARMY IN MONTREAL.

The religious enthusiasts known by this title have at length put in an appearance in Montreal, but upon their attempting to walk through the street playing tambourines, they were promptly arrested by the police and taken before the Recorder. The case was argued at great length, and with much ability, and the Recorder, in an elaborate judg ment, ruled that the prisoners must be discharged, as the evidence did not support the complaint, which was to the effect that the accused were employing a device, noise and performance tending to the collection of persons in a public place, to the obstruction of the same. The Recorder ruled that on the evidence it appeared the intention of the defendants was to bring people to church,. and not to gather them in the street and obstruct the same.