quently disposed of the wheat. It was held to be larceny of the wheat. a So, also, a person who takes animo furandi, from a post-office clerk, a larger sum than he is entitled to, he knowing the money not to be his, is guilty of larceny. a1 But it is otherwise when absolute property is transferred by an agent or bailee having power so to do. This being the case, as the cashier of a bank has authority, arising from the nature of his employment, to pay the money of the bank to persons presenting genuine orders, and to judge of their genuineness, it is not larceny but false pretence to obtain money on a forged check from such cáshier. b It has been stated that when consent was given to transfer of property (as distinguished from possession), larceny cannot be maintained. It is otherwise, however, when to the assignment of property consent is not given. Thus where the defendant acted as auctioneer at a mock auction, and knocked down some cloth for 268. to B., who had not bid for it, as the defendant knew, and B. refused to take the cloth or pay for it; upon which the defendant refused to allow her to leave the room unless she paid. Ultimately she paid the 268. to the defendant and took the cloth. She paid the 268. because she was afraid. The defendant was indicted for, and convicted of, feloniously stealing these 268.: It was held by the English judges in banc that the conviction was right, because, if the force used to B. made the taking a robbery, larceny was included in that crime; if the force was not sufficient to constitute a robbery, the taking of the money nevertheless amounted to larceny, as B. paid the money to the defendant against her will, and because she was afraid. c It was held, also, that, under the circumstances, it was not necessary that the jury should be asked whether B. paid the money against her will, as from the evidence it was clear that there could have been no doubt in the minds of the jury that the money was so paid. d The prisoners, pretending that one of them was a sea captain, and a Frenchman unable to speak English, offered to the prose a R. v. Robins, 29 Eng. Law & Eq. Rep. 544; 6 Cox C. C. 420; Dears. C. C. 418. See ante, § 1774. a1 R. v. Middleton, 12 Cox, 260; (1872), by a majority of the judges; and see R. v. Oliver, 4 Taunt. 274. b R. v. Prince, 1 L. R. C. C. 150; 11 Cox C. C. 193. c R. v. McGrath, 1 L. R. C. C. 205; 18 W. R. 119; 37 L. J. M. C. 7. d Ibid. See post, § 1856. cutrix a dress for sale at 258., saying that if she would give that price for it, she should have another dress, which was produced, worth 128., into the bargain. The prosecutrix agreed to this, and took a sovereign and a shilling from her pocket. Whilst she was holding the money, one of the prisoners opened her hand and took it out, though not forcibly. He then declined to take the other 48., but laid down the dress first produced, and refused to let the prosecutrix have the other. The dress proved to be of little value. It was held that the prisoners were properly convicted of larceny. e Perhaps under the same category may be ranked the following case: The defendant went into a shop and asked to buy the chattel, and was referred by the clerk to the shopkeeper, who refused to let him have it except upon his father's order; and he afterwards, without having obtained such order, and in the absence of the shopkeeper, asked to see the chattel, and it was shown him by the clerk, and he took it from the counter, told the clerk that he had made it all right with the shopkeeper, and carried away the chattel.f § 1852. (d.) Did the owner part with the property absolutely, or merely with possession? This, as has been seen, is the crucial question in cases of this class. g In solving it, the following adjudications will be found of use. First may here be noticed cases where money is given to be changed. If the money be given to a servant, and he steals it, this is larceny, for he has but a bare charge, and the possession is his master's. h If the money is given to a money changer, or an agent representing a money changer, even under fraudulent representations from the donee, then the owner loses his property and larceny fails. If, however, the possession only is parted with, larceny may be maintained. Thus when a check is given to a servant by his master to be handed to a third party, and the servant appropriates the check, this is larceny; k but if the check be given to the defendant absolutely, as agent for a creditor, to e R. v. Morgan, 29 Eng. Law & Eq. 543; Dears. C. C. 395; 6 Cox C. C. 408. ƒ Com. v. Wilde, 5 Gray (Mass.), 83. g See fully ante, § 1802 a. j h Ante, § 1846 c. i R. v. Coleman, 2 East P. C. 672. j Ante, § 1802 a. k R. v. Metcalf, 1 M. C. C. 433. whom it is to be handed, the property passes out of the master, and larceny cannot be maintained. 7 - Distinction in this respect between mere servant and bailee. If a mere servant appropriates money given to him for a specific purpose, it is not necessary to prove an original fraudulent intent, as his possession is that of his master. m If, however, a bailee who has a special possession of his own so convert it, it is necessary, in order to convict, to prove fraud on his part on the owner, by which fraud he obtained such special possession. n The defendant, by false pretences, induced a tradesman to send by his servant goods of the value of 28. 10d. to a particular house, with the change for a crown piece. On the way he met the servant, and induced him to part with the goods and change a crown piece, which afterwards was found to be bad. Both the tradesman and servant swore that the latter had no authority to part with the goods or change without receiving the crown piece in payment, though the former admitted that he intended to sell the goods, and never expected them back again. It was held that the offence amounted to larceny. And so where the defendant obtained money from the prosecutrix on the pretence of buying with it a railway ticket for her and returning the change.p § 1853. But when the owner intends at the time to part with the property, the case is different. q For although fraudulent means may be used to induce him to part with it, yet he delivers the possession absolutely, and the purchaser receives the possession for the express purpose of doing with the goods what he pleases. The owner is not deceived by the manner in which the possession is taken. It is his intent that the possession should never return to him. r Thus, when a special verdict found that one M. D. Lewer, in the month of October, 1825, went several times to the store of Davis & Oakford, and by various false and fraudulent pretences did procure from the said Davis 1 R. v. Essex, Dears. & B. C. C. 371; 7 Cox C. C. 384. m See ante, § 1841-3; and see R. v. Goode, C. & M. 582; R. v. Beaman, C. & M. 595; R. v. Metcalf, 1 M. C. C. 433; Com. v. Yerkes, 12 Cox C. C. 208. n Ante, § 1846-9; R. v. Warren, 10 Cox C. C. 359. o R. v. Small, 8 C. & P. 46. p R. v. Thompson, Leigh & C. 225. q Ennis v. State, 3 (Greene) Iowa, 67; Welsh v. People, 17 Ill. 339. Ante, § 1774, 1779, 1850. r Wilson v. State, 1 Porter, 118. & Oakford sundry dry goods belonging to them, of the total value of two hundred and ninety-six dollars and fifty-five cents; that he falsely represented to the said Davis & Oakford that he was the agent for his brother, E. Lewer, of Morristown, New Jersey, for whom he wished to purchase goods; that he subsequently laid off some of the goods, falsely pretending that they were for the said E. Lewer, which goods were charged by the said Davis & Oakford to the aforesaid E. Lewer, and the receipt of Davis & Oakford given as from the said E. Lewer, and the goods, when packed, marked with E. Lewer, Morristown, New Jersey; that he subsequently exhibited to the said Davis & Oakford a letter, which he said was written by the said E. Lewer to him, purporting that E. Lewer had transmitted to the said M. D. Lewer the sum of three hundred and fifty dollars, to pay for the goods which the said E. Lewer had authorized the said M. D. Lewer to purchase for him, and that the said M. D. Lewer had the bill for the same made in the name of E. Lewer, and told the said Davis & Oakford that he had deposited the above sum of three hundred and fifty dollars in the Southwark Bank of the county of Philadelphia, whereas it appeared that no such person as E. Lewer existed, and that no money had been transmitted or deposited in bank; but that the letter was forged and false, and written by the said M. D. Lewer himself, with the intent and for the purpose of defrauding the said Davis & Oakford, and obtaining fraudulently the possession of their property; and further, that the said M. D. Leweg fraudulently delivered to the said Davis & Oakford, after bank hours, a false check drawn on the Southwark Bank in the county of Philadelphia, for the sum of three hundred and fifty dollars, for which the said Davis & Oakford gave their receipt to E. Lewer, and the said check being for more money than the value of the said goods amounted to, the balance was delivered to the said M. D. Lewer by the said Davis & Oakford; that the said M. D. Lewer had no money in the said bank, and had never kept any account there; that by this series of false and fraudulent pretences he did unlawfully and dishonestly obtain possession of the goods of the said Davis & Oakford, with the premeditated design and intent wilfully to defraud and cheat them of their property, and without any intention of ever returning the same to the rightful And that having thus fraudulently obtained possession owners. - of the said goods, he eloped from the city of Philadelphia, and went to New York, taking the said goods with him, where he was afterwards arrested with the said goods in his possession. The jury also found the said M. D. Lewer to have perpetrated all the acts herein enumerated, with a deliberate, premeditated design and intention to defraud the said Davis & Oakford; and having found the facts, they submitted the question of law to the decision of the court. It was held by the supreme court of Pennsylvania, after elaborate argument, that as the property had been delivered absolutely from the prosecutors to the defendant, and as the latter had received possession for the express purpose of doing with it what he pleased, the offence was not larceny. 8 § 1854. In other words, to repeat the proposition already enunciated, when the transaction is made to assume the form of a sale, unless it comes within the statute as to false pretences, the fraudulent vendee is shielded from the charge of taking, in a criminal sense, though it is otherwise in respect to the civil remedy.t § 1855. (e.) Sale, to bar larceny, must be complete. — Thus where the defendant, having bargained for goods, for which, by the custom of trade, the price should have been paid before they were taken away, took them without the consent of the owner, and at the time he bargained for them did not intend to pay for them, but meant to get them into his own possession and dispose of them for his own benefit, this was ruled to be larceny.u Where the defendant put goods into his cart upon the express condition that they should be paid for before they were taken out of the cart, and then took them out of the cart without paying for them, and converted them, his intention being from the beginning to get the goods by fraud, larceny was in like manner held to be proved. v Where A. received goods from B. (who was the servant of C.), under color of a pretended sale, it was held that the fact of his having received such goods with knowledge that B. had no authority to sell, and that he was, in fact, defrauding his master, 8 Com. v. Lewer, 15 Serg. & R. 93. t Cary v. Hotailing, 1 Hill N. Y. R. 311; R. v. Wilson, 8 C. & P. 114; 2 East's P. C. 685. Ante, § 1850. u R. v. Gilbert, 1 Moody C. C. 185. v R. v. Pratt, 1 Mood. C. C. 250. |