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an answer to a plea of infancy, which both in law and equity is a defence to any proceeding on the contract. Granted that equity may compel the infant to make restitution, but that at once converts the action from an action on the contract to one in
tort.” Though you can bring an action for tort against an infant, Larceny by bailee-Con
it is otherwise where the tort is concerned with a contract. trart by infant In Burnard v. Haggis (32 L. J. 191, C. P.) there was an in- Ilire and dependent tort. (CAVE, J.-Why is the prisoner here not guilty purchase
of a crime, although he obtained the furniture under a contract ?]
McKellar, on behalf of the Crown, was not called upon.
must be affirmed. The prisoner was indicted for larceny as a bailee. I am not sure that the whole argument has not been upon an irrelevant point, for it is doubtful whether the words “as bailee are rendered necesssary by the Act, sect. 3 of which enacts that: “Whosoever, being a bailee of any chattel, money,
Larceny by or valuable security, shall fraudulently take or convert the same bailee-Conto his own use or the use of any person other than the owner tract by infant thereof, although he shall not break bulk or otherwise determine – Hire and
purchase the bailment, shall be guilty of larceny, and may be convicted thereof upon an indictment for larceny." I will
assume, however, that the words “as bailee” are material, and that being so, it is said, on behalf of the prisoner, that he cannot be convicted under such an indictment, because he obtained the goods in respect of wbich he was indicted, on a contract which is void ; that since, by reason of his infancy, he could not enter into a contract, he could not be guilty of larceny as a bailee. Now, a contract certainly does arise out of a bailment; but, on the other hand, a bailment is " a delivery of goods in trust, upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee as soon as the purpose of the bailment shall be answered :” (2 Kent's Com. 559.) Bailment is then completed by delivery; it is a delivery of goods in trust. Here the goods were delivered under circumstances which created a special property in them, and, while that special property existed, the prisoner, if he abused that special property, is guilty of larceny under the statute. The Act was passed to provide against this kind of crime. In my opinion the prisoner, though a minor, has been guilty of this offence because he had a property under the
bailment separate from any contract. CAVE, J.-I am also of opinion that this conviction must be supported. Bailment is a delivery of goods upon a condition, and, though in the case of an infant a contract cannot be implied, the delivery upon condition nevertheless exists. In my opinion the delivery on condition creates a property in the goods as against the world until the condition is fulfilled, and the infant can maintain an action even if the real owner of the goods disturbs him in the possession of that property. The law recognises a special property such as that created by the delivery of the furniture in the present case, and in my opinion the prisoner is a bailee, and though he cannot be liable in an action of contract, he is within the mischief of the Act, and the conviction was therefore, in my opinion, right. DAY, Smith, and WILL, JJ. concurred.
Conviction affirmed. (a) Solicitors for the prosecution, Ford, Lloyd, Bartlett, and Michelmore.
Solicitors for the prisoner, Hamlyn and Hutchins. (a) A doubt having been expressed by one of the learned judges who formed the court when the above decision in Reg. v. Macdonald was given, as to the correctness of the decision, the case was re-argued upon the 20th June, 1885, before a Court composed
QUEEN'S BENCH DIVISION.
Tuesday, June 23, 1885.
DANIEL v. WHITFIELD. (a)
shop in customer's presence-Delivered at customer's house by baker's cart at customer's request-Cart not provided with beam and scales, 8c.-6 & 7 Will. 4, c. 37-Sect. 7-Bread “ carried
out and delivered for sale.” Bread, bought by a customer at a baker's shop, and then and there
weighed in the customer's presence, was afterwards, at the customer's request and to oblige her, sent by the baker in his cart, with other goods purchased by the customer, to her house three miles off, where it was delivered by the baker's man, the cart not being provided with beam and scales with proper weights as directed by sect. 7 of the 6 & 7 Will. 4, c. 37. The justices having convicted the baker of an offence under sect. 7 in carrying out and delivering bread from a cart not provided with beam
and scales, &c. Held, that the bread was not "carried out and delivered” by
the appellant as a baker“ for sale,” but for the convenience and at the request of the customer, the sale and weighing having taken place at the shop, and therefore no offence had been com
mitted under sect. 7. Robinson v. Cliffe (1 Ex. Div. 294; 34 L. T. Rep. N. S. 680)
and Ridgway v. Ward (15 Cox C. C. 603; 51 L. T. Rep. N. S. 704 ; 14 Q. B. Div. 110) distinguished. 'HIS was a case stated by three justices of the peace for the
county of Monmouth under the 20 & 21 Vict. c. 43, on the application in writing of the appellant, who was dissatisfied with of the following judges, viz. : Lord Coleridge, C.J., Grove and Denman, JJ., Pollock, B. Field, J., Huddleston, B., Manisty, Hawkins, Mathow, Cave, Day, Smith, and Wills, JJ. Previously to the commencement of the argument Lord Coleridge, C.J. said that the court did not intend to sit as a court of appeal from the Court of Criminal Appeal as composed on the 9th May, but were about to sit, because of the doubt already referred to, in order to consider, with the assistance of the learned counsel engaged in the case, the soundness of the judgment delivered by that court; and did not intend by any judgment they might give to affect the record of that judgment. After hearing an elaborate argument on the part of both the counsel for the prisoner and the counsel for the prosecution, the learned judges retired to consider their judgment; and upon returning into court Lord Coleridge, C.J. announced that the majority of the judges were of opinion that the conviction had been rightly upheld on the previous occasion. (a) Reported by HENRY LEIGH, Esq., Barrister-at-Law.
the determination of the said justices upon the question of law DANIEL which arose before them as hereinafter stated.
WIJTFIELD. The appellant was convicted before the said justices on the 13th day of December, 1884, on an information which charged,
1885. " for that he on the 6th day of December inst., at the parish of
Sale of bread Trevethen, did convey, carry out, and deliver bread for sale in a – Baker not certain cart without being provided with a beam and scales with provided with
scales-Loaves proper weights, in order that the bread sold might be weighed by
sold and the purchaser thereof, contrary to the statute 6 & 7 Will. 4, weighed at c. 37, s. 7."
shop. The following facts were proved before the said justices on the hearing of the information :
The appellant, Joho Daniel, is a grocer and provision dealer carrying on business at his shop at Pontypool and Abersychan. On Saturday, the 6th day of December, one Mary Ann Smith, a customer of the appellant's, called at appellant's shop and purchased three loaves of bread, which were weighed by the appellant in her presence, and she requested the appellant to oblige her by sending them to her house with other goods which she had purchased.
Police constable Thomas O'Donnell, on Saturday, 6th day of December, saw a man named William Evans delivering bread at the house of the said Mary Ann Smith (who resides about three miles from Pontypool) from a cart belonging to the said appellant, and it was admitted on the part of the appellant that there were no beam and scales with the cart.
It was contended on the part of the appellant that the bread was not offered for sale from the cart; that the cart was not kept for the sale of bread; and that the bread had been sold in the shop and weighed by the appellant himself, who handed the bread to the purchaser.
By sect. 6 of the 6 & 7 Will. 4, c. 38, it is enacted that, Every baker or seller of bread shall cause to be fixed in some conspicuous part of his, her, or their shop, on or near the counter, a beam and scales with proper weights or other sufficient balance, in order that all bread there sold may from time to time be weighed in the presence of the purchaser or purchasers thereof.
By sect. 7 of the same statute it is enacted that,
Every baker or seller of bread, and every journeyman, servant, or othor person employed by such baker or seller of bread, who shall convey and carry out bread for sale in and from any cart or other carriage shall be provided with, and shall constantly carry in such cart or other carriage a correct beam and scales with proper weights or other sufficient balance, in order that all bread sold by every such baker or seller of bread, or by bis, her, or their journeyman, servant, or other person, may from time to time be weigbed in the presence of the purchaser or purchasers thereof. And in case any such baker or seller of bread, or his or their journeyman, &c., shall at any time carry out or deliver any bread without being provided with such beam and scales, &c., then and in every such case every such baker shall for every such offence forfeit and pay any sum not exceeding 51.
The justices were satisfied that the bread was sold at the shop to the purchaser, but they were not satisfied that the bread was delivered to the purchaser at the shop, but were of opinion that the bread was delivered at the house; and they decided therefore
that, under the above section, the not having the beam and scales in the cart at the time of the delivery of the bread was an offence
within the meaning of the statute, and they accordingly convicted 1885. the defendant in a penalty of ten shillings.
If the said decision of the justices is right, the conviction is to Sale of bread - Baker not
stand; but if otherwise, the summons is to be dismissed. provided with 1. T. Lawrence (with whom were Jelf, Q.C., and Acland), for scales Loaves the appellant, contended that the transaction between the appellant and
(the baker) and the customer at the shop, where the bread was shop. weighed in the customer's presence, constituteda complete contract
of sale and delivery, and that there was therefore nothing more to be done by the baker in the matter under the statute 6 & 7 Will. 4, c. 37, the terms and requisitions of which had been fully complied with. He cited Robinson v. Cliffe (34 L. T. Rep. N. S. 689; L. Rep. 1 Ex. Div. 294 ; 45 L. J. 119, M. C.); and Ridgway v. Ward (15 Cox C. C. 603; 51 L. T. Rep. N. S. 704 ; 51 L. J. 20, M. C.; 14 Q. B. Div. 110); and submitted that the justices in the present case had decided erroneously, and the conviction must therefore be quashed.
Mattinson, for the respondent, contra, supported the conviction, and urged that the sale and weighing of the bread in the shop was not sufficient. The statute required that the bread should be weighed on delivery, which took place here from the baker's cart, which ought to have been furnished with beam and scales with proper weights; the object of the Act being to insure to the customers the delivery of bread of full weight. There were passages in the judgment of Lord Bramwell (then Bramwell, J.) in Robinson v. Cliffe (ubi sup.), and in that of Grove, J. in Ridgway v. Ward (ubi sup.), which were against the appellant, and in favour of the respondent.
FIELD, J.-A question, which has been discussed and decided in more than one case already, is again raised in the present case, namely, under what circumstances a baker is by law bound to carry a beam and scales with proper weights in his bread cart. The question arises under 6 & 7 Will
. 4, c. 37, an Act the object of which was to prevent a baker from delivering short weight bread to his customers, and to provide a means which should operate as an efficient check upon the baker in that respect, and at the same time should prevent the possibility of a dispute with regard to the weight of the bread between him and his customers. The provisions of sect. 6 of the Act apply, and have reference to the sale and delivery and weighing of bread in the baker's shop, whilst sect. 7 deals with and provides for the more general cases of bread being ordered at the shop and then delivered by the baker from house to house. A good deal of controversy has taken place with regard to the meaning of the words “carry out for sale” in sect. 7, which enacts that every baker or seller of bread and every journeyman, &c., employed by such baker or seller of bread, who shall convey and carry out bread for sale in and from any cart, &c., shall constantly carry in such cart a