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REG.

MACDONALD.

1885.

system.

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 ?]
Because the terms upon which he was in possession of the
furniture were embodied in a contract. In Jennings v. Rundall
8 T. R. 335) it was held that a plaintiff could not convert an
action founded on contract into a tort so as to charge an infant
defendant. [SMITH, J.-If an infant sells goods trover will lie,
but not an action for their non-delivery.] If the prisoner has
committed anything, surely it has been a breach of contract. He
had a special property in the furniture and had the lawful
possession of it, he could therefore have maintained an action of
trover in respect of it. [Wills, J.—But when he sold the goods
he put an end to the bailment by his wrongful act, which was an
act inconsistent with the bailment. The relationship between
the parties was nevertheless one of bailment, and therefore could
not found criminal proceedings. The instalments due having
been paid, the prisoner had a special property in the furniture.
[DAY, J.-I do not think that he was bound by the contract; he
was a simple bailee and bound to give up the goods intrusted to
him.] In Reg v. Wilson (49 L. J. 13, M. C.) which was a prose-
cution of an infant under the Debtors Act, it was held that the
infant's contracts being void under the Infants' Relief Act 1874,
he could not be convicted under the Debtors Act. [WILLS, J.-
That case failed because the infant could have no creditors. In
order to convict of larceny it is necessary that there should have
been a fraudulent intention at the time of delivery. In Reg. v.
Matthews (28 L. T. Rep. N. S. 645) it was held that a conviction
of larceny could not be sustained where it was found that at the
time of finding cattle on his land the prisoner did not intend to
steal them, but that the intention came on him afterwards.
[Cave, J.—There was no condition annexed to delivery there. A
condition will prevent the obtaining legal possession. Here,
although the contract is not enforceable, it nevertheless shows
the condition upon which the furniture was delivered, and it
shows that trover would have lain, and though the price could
not have been recovered from the infant, the goods themselves
could.] The only evidence of the manner in which the prisoner
became possessed of the goods is the contract, that contract being,
by the Infants' Relief Act, void, cannot be evidence, and there is
therefore no evidence of larceny by the prisoner when a bailee of
this furniture.

McKellar, on behalf of the Crown, was not called upon.
Lord COLERIDGE, C.J.-I am of opinion that this conviction

REG.

MACDONALD.

1885.

system.

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.
(Before Field and MANISTY, JJ.)

DANIEL v. WHITFIELD. (a)
Baker-Sale and delivery of bread-Loaves sold and weighed at

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 deliveredby

the appellant as a bakerfor 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.

THIS

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

DANIEL

V. WHITFIELD.

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

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