title to lost property, and cannot, therefore, be found guilty of larceny. But if property is only mislaid or left in some place of deposit or security, a person fraudulently appropriating it is guilty of larceny, A purchaser at the prisoner's stall left his purse in it. A stranger pointed out the purse to the prisoner, supposing it to be hers, and reproved her for carelessness, when she put it in her pocket, and afterwards concealed it, and on the return of the owner denied all knowledge of it. Upon the indictment for larceny, the jury found that the prisoner took up the purse, knowing it was not her own, and intending at that time to appropriate it to her own use, but that when she took it she did not know who was the owner. Whereupon she was convicted:Held, that the conviction was proper, and that the purse so left was not lost property. (a) But the prisoner must, at the time of finding, have the means of ascertaining who the owner is, or reasonably believe that he can be found, and must also have the intention of appropriating the property to his own use. Upon an indictment for stealing a note, it was found by the jury that the note was lost by the prosecutor and found by the prisoner. There was no evidence that the note had any name or other mark upon it indicating to whom it belonged, nor was there evidence of any other circumstances which would disclose to the prisoner, at the time when he found it, the means of discovering the owner:-Held, that he could not be convicted of larceny, although the jury, being asked whether, at or after the time of finding, he believed that there was not a reasonable probability that the owner could be found, had answered that he did believe the owner could be traced. (b) (a) Reg. v. West, 1 U. C. L. J. 17; Dears. 402; 24 L. J. (M. C.) 4. In order to convict the finder of lost property of larceny, it is essential that there should be evidence of a felonious intention to appropriate the property at the time of finding; and evidence of a subsequent intention is insufficient. Upon the trial of the finder of a purse for larceny, the jury were directed that a felonious intent was necessary in every larceny; but that it might be inferred, from subsequent as well as immediate acts, and that, if they were satisfied that the prisoner heard the landlady of a public-house, where he subsequently went, speaking of the loss, and then did not take measures to make restitution, they might infer a felonious intention :-Held that the direction was wrong, as it was calculated to mislead the jury to suppose that a felonious intent, subsequent to the finding, was sufficient. (a) In this case, it was submitted that the nature of the property was such that the finder could not do otherwise than believe that the owner might be found, and that, having converted it to his own use, under these circumstances, it might be inferred that it was his intention to do so at the time of finding. The inference was disallowed by Pollock, C. B., on considering all the concomitants of the case. A post letter, directed to J. D., containing a Post-Office order, was misdelivered to J. D., one of the prisoners. He took it to W. D., the other prisoner, who read it to him. Upon hearing it read, he said the letter and order were not for him. W. D. advised him, notwithstanding, to keep the letter, and get the money. Both prisoners accordingly applied at the Post-Office, and obtained the money:-Held that a conviction of the prisoners for stealing the order must be set aside. (b) From this case (a) Reg. v. Christopher, 5 U. C. L. J. 143; Bell, 27; 28 L. J. (M. C.) 35. (b) Reg. v. Davies, 2 U. C. L. J. 137; Dears. 640; 25 L. J. M. C. 91. it would seem that the law of larceny, in respect of articles found and appropriated by the finder, after he has ascertained what the article is, and the marks of ownership, is inapplicable to a misdelivered post letter. Now, by the 32 & 33 Vic., c. 21, s. 72, in case of larceny by persons employed in the public service, the property may be laid in Her Majesty, or in the municipality, as the case may be. It has been already stated that every larceny involves a trespass, and that the taking must be animo furandi and invito domini. If the possession of the goods is lawfully obtained, there can be no larceny, nor can there be any larceny if the property in the goods is divested. The property in goods can only pass by a contract, which requires the assent of two minds; but it is of the essence of the offence of larceny that the property be obtained against the will of the owner. If, therefore, the owner intends to part with the property, by virtue of which intention the property would pass, there can be no larceny, however fraudulent the means by which the property is obtained. But if there was a sufficient false pretence, the party might be guilty of obtaining the goods by false pretences. Where the possession is lawfully obtained, a conversion, while it continues, ordinarily amounts to the cognate offence of embezzlement. This rule may be laid down, that when the prosecutor does not intend to part with the right of property in the goods or money taken by the defendant, and, in some cases, does not intend to part with the possession of them until they are paid for, and the defendant fraudulently gets possession of them, contrary to the intention of the owner, intending all the time not to pay for them, then the jury may find the party guilty of larceny. But where the owner voluntarily parts with the possession and property in the goods, and intends to vest them in the defendant, because he relies upon the defendant's promise to pay the money, or bring other property or money in place of those vested in him, then the prisoner cannot be convicted of larceny. (a) The above points may be fully established by reference to decided cases. Where a servant is entrusted with his master's property, with a general or absolute authority to act for his master in his business, and is induced, by fraud, to part with his master's property, the person who is guilty of the fraud, and so obtains the property, is guilty of obtaining it by false pretences, and not of larceny, because, to constitute larceny, there must be a taking against the will of the owner, or of the owner's servant, duly authorized to act generally for the owner. But where a servant has no such general or absolute authority from his master, but is merely entrusted with the possession of his goods for a special or limited purpose, and is tricked out of that possession by fraud, the person who is guilty of the fraud, and so obtains the property, is guilty of larceny, because the servant has no authority to part with the property in the goods, except to fulfil the special purpose for which they were entrusted to him. (b) If the owner intended the property to pass, though he would not so have intended had he known the real facts, that is sufficient to prevent the obtaining another's property from amounting to larceny. Where a servant has an authority co-equal with his master, and sufficient to enable him to pass his master's property, and he parts with it accordingly, such property cannot be said to be stolen, inasmuch as the servant in (a) Reg. v. Bertles, 13 U. C. C. P. 610, per Richards, C. J. tends to part with the property. (a) In such case, it cannot be said to be parted with against the will of the owner. (b) The cashier of a bank is a servant having a general authority to conduct the business of the bank, and to part with its property, on the presentation of a genuine order from a customer; and if he is deceived by a forged order, and parts with the money of the bank, he parts intending to do so with the property in the money; and the person knowingly presenting such forged order is guilty of obtaining the money by false pretences, and not of larceny. (c) The 32 & 33 Vic., c. 21, s. 93, has amended the law on this point. The subtle distinction between these offences, which this Act intended to remedy, was, that if a person, by fraud, induced another to part with the possession only of goods, and converted them to his own use, this was larceny; while, if he induced another, by fraud, to part with the property in the goods, as well as the possession, this was not larceny. (d) The prisoner, with another man, went into the shop of the prosecutrix, and asked for a pennyworth of sweetmeats, for which he put down a florin. The prosecutrix put it into the money drawer, and put down sixpence in silver, and fivepence in copper, in change, which the prisoner took up. The other man said, "You need not have changed," and threw down a penny, which the prisoner took up, and the latter then put down a sixpence in silver, and sixpence in copper, on the counter, saying, "Here, mistress, give me a shilling for this." The prosecutrix took a shilling out of the money drawer, and (a) Reg. v. Prince. L. R. 1 C. C. R. 155, per Blackburn, J. (b) Ib. 154, per Bovill, C. J. (c) Reg. v. Prince, supra. (d) Reg. v. Kilham, L. R. 1 C. C. R. 263, per Bovill, C. J. |