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wants, and the inquiry is foreign to the duty of a court of chancery, whose aid is sought for collateral purposes. Nor is actual possession necessary to authorize the interference of a court of chancery. If the legislature had actually provided that the locks should be erected in 1830, and not before, can there be any doubt that the company would be entitled to protection from a new company, who were about to deprive them of their franchise ? The true principle seems to be that an existing right is entitled to protection against usurpation or invasion by those who have no rightful claim, but enter wrongfully. In this case the second grant was void, because the two could not exist together. The first company were in possession, in construction of law: the second company acting by a void authority, were wrong-doers. As regarded the proprietors of the soil, themselves, they were merely trespassers. They could not, if their grant was void, which was the decision of the court, ever collect tolls. Were the court authorized, then, in saying that the public had an interest in the continuance of a trespass ? All the cases cited by the learned court, as illustrative of their peculiar views of the subject, differed from this case in a most essential feature.
In the cases of ferries, turnpike-roads, and collieries, there existed a common right to do that which was attempted to be restrained ; and the exercise of that right alone became unlawful, when the higher right was actually enjoyed and its duties performed. All men have a right to cross a river, or carry others with them for hire, by common law, or to travel upon or near a turnpike-road. It would be manifestly wrong to restrain the exercise of the common right, where its exercise is unattended with injury to the proprietors of the ferry or turnpikeroad. A variety of decisions were adduced in argument to show the reluctance of courts of chancery to interfere by injunction, except when the party seeking it was in possession, and the right a clear one.
In the case of Whitchurch v. Hyde, the plaintiffs claimed the right, by prescription, of carrying water in sewers.
Lord Hardwicke refused an injunction, because the plaintiffs had not established their right at law. But it appears by this case that a different rule prevails when the right is founded
1 2 Atkyns, 391.
In Stone v. Mann, the plaintiffs petitioned for an injunction against the defendant, who was in possession, and there was a suit at law depending to test the lawfulness of that possession ; the remedy was adequate at law.
In Browne's case,' a petition for injunction to stay the use of a market was refused till the right should be established at law. Here then was a common right to the market, — defendant in possession, and adequate remedy at law.
Ambler 209, Anonymous. The court refused to stay the working of a colliery, as the defendant was in possession as lessee, the public being interested in the working of the colliery, and there being an adequate remedy at law.
In Attorney General v. Nichol, injunction was refused to prevent the erection of a building which would darken lights, the defendant undertaking to remove any building, which, on a verdict, should be found injurious.
The cases of Hill v. Thompson," and Harmer v. Plum,' were cases of patents; to preserve which, injunctions are never granted, unless the validity of the right is established at law, or they have been in long use.
But in Attorney General v. Richards, an injunction was granted to prevent the erection of docks in Portsmouth harbor, because a purpresture. And in several cases cited in Eden, 158, it was held that the king could not sanction an erection which was a nuisance to individuals. It is apprehended that the erections of the Connecticut River Company were a nuisance and abatable as such, and that the interests of the public in the continuance of the nuisance could not be alleged against the rightful proprietors of the franchise. An injunction was not asked to restrain the exercise of a common right, or to impede the free navigation of the river; but it was sought to prevent an irreparable injury — i. e. irreparable but by an abatement of the nuisance, which was an ouster of the plaintiffs. The defendants were acting under a void authority. They were wrongdoers, and could derive no advantage therefore from the refusal of the court to interfere. If both parties proceeded under the grants to make expensive erections, these would be a nuisance to the public and a waste of property. The court ought to have interfered in mercy to the party which had the weaker title.
1 4 John. Ch. Rep. 21.
4 3 Merivale, 622.
ART. VIII.-LARCENY, ACCOMPANIED BY BREACH OF TRUST. A slight obscurity seems to hang over the law of larceny, accompanied by a breach of trust. Nothing less seems to be implied, in some of the cases, than that a theft is excused by its being accompanied by a breach of trust, for in a number of cases of indictments for larceny, the thief has been acquitted, on the ground that he was entrusted by the owner with the goods or moneys which he stole, and in some of these cases of acquittal, the accused procured the goods by some false pretence, intending at the time to steal them.
It is not proposed to go into a very elaborate disquisition of this subject, but merely to pursue the inquiry far enough to present the defect, or at least, the particular subject of the obscurity, in question. To do this we will go back to the definitions of larceny, of which there are not a few, for the purpose of ascertaining the precise meaning of the term. Bracton says, it is, contrectatio rei alienæ, fraudulenter, cum animo furandi, invito illo domino cujus res illa fuerit. If we render this into English, excepting the animo furandi, it will be, as we understand it, as follows: Larceny is a fraudulent taking of the personal chattel of another, against his will, animo furandi. if we render the animo furandi into English, the definition will then read, that larceny is the taking of another's property with the design of stealing it, which is much the same as to say it is taking with a design of committing a larceny, and so making the definition approach too nearly to one consisting merely of a synonymous word. The animus furandi has, accordingly, in some definitions, been rendered, with an intent to convert the goods to his own use. But the other part, the fraudulenter, has been also altered, and rendered, in Mr. Justice Grose's definition,' feloniously. This again brings us back nearly to the use of a synonymous expression, for feloniously is here equivalent to thievishly. So that we at last come only to the result, that larceny is the thievishly taking of another’s goods, or stealing them.
1 Hammond's case, 2 Leach, 1189.
It would, however, be nothing remarkable, if it were found that no definition can be made which will convey precisely the meaning attached to the word, since this is true in respect to many other words. But we must still take care that an imperfect definition does not lead to an erroneous construction of the acts of men, and bring under the description of larceny those which do not belong to it, or exclude those which do. It happens,
in respect to this crime, that the definition is of great importance, since the statutes use the words larceny, theft, and stealing, leaving, and very properly too, the meaning of these expressions to be ascertained aliunde. If the plan of the French criminal code be adopted, and the laws against larceny be commenced with a definition, very little elucidation will thereby be given to the subject, unless the legislators happen to hit upon a very fortunate definition. To take the law in question, for an example, the French code begins by defining vol, or theft; by saying, Quiconque sustrait fraudulentment une chose qui ne lui appartient pas, est coupable de vol; that is, whoever fraudulently takes [or takes away, abstracts, or conveys away) a thing which does not belong to him, is guilty of larceny. This definition differs from those in our own books, since it comprehends the stealing of shrouds and the materials of coffins, and things which have no particular owner, whereas our definitions, which limit theft to the taking of what belongs to another, would literally exclude such articles. To get over this defect, the judges resort to the supposition that the shroud and coffin belong to the personal representatives of the deceased, and so the stealing of them comes within the definition. But this does not seem to remedy the difficulty entirely, for it is a maxim of the common law, that every theft includes a trespass, that is, the violation of an owner's possession. Now if the law permits a man to make a provision in his will for his own burial, or if his personal representatives, or his friends, or the public, make such provision, it will hardly be contended that the articles devoted to this purpose remain, in all cases, in the possession of any person living, or that any one has any right to take them from the tomb or
grave, and sell them. On the contrary, the law provides a punishment for so doing. There is, then, no possession, or right of possession, to be violated, and so no basis for a trespass. It may be contended that only the use of these articles is devoted to these purposes as long as any part of the body remains, and that on its being entirely consumed, the right of reclaiming and repossessing them, revives to the personal representatives of the person who supplied them.
But this right is a very slender ground for a trespass, and in case of a mummy, it would certainly be none at all, since it will last as long as the coffin and grave clothes, however durable the materials may be, of which they are made. It then admits of a doubt, perhaps, whether the French definition is not better than ours; still it seems to be a question whether it is not better to leave the interpretation to the court, rather than attempt to settle it by the law, since it is just as easy to settle what theft means in a law, as what is meant by a legislative definition of it. The French definition would include finding, were it not excluded by the qualification fraudulently or feloniously; but as one of these, or some equivalent word, is an essential part of a definition of larceny, this seems to be no defect.
All the definitions of theft confine it to the taking of something which may have the character of property, and be capable of being possessed. This notion was carried so far, that, by the common law, the taking, animo furandi, of bonds, bills, notes, &c., was not larceny. The statute of 2 Geo. II. c. has remedied this defect. The ground of this doctrine was, that these were mere evidence of debt, title, &c., and not of themselves property, except to their value as paper or parchment, which was held to be one of the minima which the law does not notice. Upon this principle it has been held in New York that the taking of a mere letter, animo furandi, as far as it could be so taken, is not a larceny. It, however, borders perhaps upon extreme nicety, to say nothing short of a chattel which has a market value can be a subject of theft; it seems to be sufficient that it be a thing capable of being possessed, and which a person may have a right to possess to the exclusion of others, and certainly people in general think they have as good a right to the exclusive possession of the letters they receive, as
1 Payne v. The People of New York, 6 Johns. R. 103.