of their clothes; and the taking, animo furandi, of a thing capable of distinct possession, whether or not it appear that it belonged to any particular person or corporation, seems to bear the characteristic marks of a theft. It is true that if the owner of a chattel has waived and abandoned it, the chattel ceases to be a subject of theft, since it can be no trespass or crime in any one to take, and convert to his own use, a thing, of which the owner has made a gift to any one person who may chance to find it; and in such case it would certainly not be larceny in the finder though he did not know that the article had been waived, but supposed it to be claimed by somebody, whom he intended to deprive of it, for this would, at the most, be only an intention to commit theft, and the doing an act in pursuance of such intention; but that act is not a theft. It would be precisely the same case as if one should take a chattel of his own, supposing it to belong to another, and intending to steal it. As far as intention and the moral character of the act go, this would be equivalent to larceny, but, as it is not so in fact, the law takes no notice of it.

In these two cases no larceny is committed, because the property in the thing belongs to the party who appropriates it to his own use. The cases are not within either the French or our own definitions of theft, since there is no fraudulent or felonious act, and a mere intention, whatever may be its moral character, is not cognizable by the law.

The definition of Bracton is borrowed from the civil law. To determine whether the definition in the French code is varied from that of the civil law by design or not, would require some familiarity with its practical administration. It might be inferred from the code itself, that the variation was intentional, and that the limitation of theft to things belonging to another, was omitted in order to avoid the embarrassment arising on this part of the description of theft in our law; since, if we say that larceny is the taking of a thing, &c., without saying 'of another,' it will avoid the embarrassment arising in the cases already mentioned where it does not very distinctly appear that the thing belongs to any other person. And this is not a merely formal or verbal distinction, for where things have been lawfully appropriated to particular uses, and have ceased to belong either to individuals or the public, there is no reason why the taking of them should

not be held a larceny, and so in fact it was in the cases already mentioned. This deficiency in the definition is, it is true, remedied by construction, but it is desirable that the definition should be such that the cases belonging to this class in the common estimation of men, shall fall easily and naturally within it. We might alter the expression of this characteristic of larceny, by saying it is the taking of a thing that does not belong to the person taking it. But this would not include the case of a man's stealing his own goods, as it is held he may, where they are pledged to another, or another has the right to the possession of them. To avoid both of these objections, some writers define this crime to be the taking of a thing of which the property, possession, or use, belongs to another.' This definition may, perhaps, furnish some materials towards making a better one than those of the books.

Questions are raised, in many of the cases, as to what is a taking — contrectatio — and a too narrow construction, in this respect, has occasioned much discussion, and some inconsistency in the books. One thing is, however, agreed pretty generally, namely, that this contrectatio does not mean merely the touching or handling, and our word taking, in its broad and generally received sense, seems to signify very accurately the kind of getting the control and possession of a thing, which is an essential ingredient in this offence.

On this subject, Mr. Collyer, in his notes on the Criminal Statutes of England, says, 'There must be an actual taking or severance from the possession of the owner, for every larceny includes a trespass; the offence consists of the taking and the carrying away. If the taking be such as does not amount to a trespass, the party carrying away cannot be guilty of a felony.'

Thus it is held, that one joint-tenant or tenant in common of a personal chattel, cannot commit larceny upon it. Upon this principle, and upon what seems to be a very narrow and technical construction of it, it was held that when the goods intended to be stolen, could only be obtained by delivery by the owner's wife, it was not a larceny. Upon the same limited construction

1 In bonis aut adversus bona aliorum committitur furtum, quod est quælibet fraudulosa contrectatio rei alienæ, vel usus, vel possessionis. Van Leeuwen. Lib. 5, c. 29, s. 1.

2 1 H. P. C. 513.

3 Harrison's case, Leach 56.

of taking, and of the necessity of the violation of another's possession, the opinion has been entertained that when a person finds goods, and, being ignorant of the owner, converts them, it is not such a taking as is necessary to constitute this offence,' even though he denies the finding, or secretes them. But it has been held otherwise, if he knows the owner.3

This seems to be too nice a distinction, to make the taking larceny, where the party taking the goods knows whose they are, and a mere trespass where he only knows, not whose they are, but only that they are not his own, and that they probably or undoubtedly, belong to, and are claimed by, somebody else. This distinction is overruled in a number of cases, and certainly ought to be discarded. Thus where a hackney-coachman converted goods accidentally left in the coach, it was held to be larceny, though this was a finding of the goods, that comes nearer to a gift of them to the finder, than a case of finding in the highway. The difficulty and inconsistency in those cases arise from the too narrow and technical construction of what is a taking, the judges being governed by this strait construction in some cases, but in others, perceiving that though the case does not come within this technical definition, yet perceiving that it is so palpably a case of theft, both in intention and in act, according to the general and obvious meaning of the term, and the distinguishing characteristics of the offence, give up the technical rules and definitions in the books, and pronounce the act to be a larceny.

This rule respecting what is a taking and a violation of another's possession, is the most perplexing in cases of trust. There seems, indeed, to be an inherent difficulty in distinguishing a larceny from a mere breach of trust. The moral character and degree of the offence, is not a criterion, for wherever the distinction is made, still some breaches of trust will, in the common sense and opinion of mankind, and ought to be by the law, considered more criminal than a simple larceny; but it would be an abuse of language, and might introduce great perplexity,

13 Ins. 108; 1 Hawk. P. C. c. 33, s. 2.

2 1 H. P. C. 506.

38 Ves. 405; 2 Leach, 952.

4 Rex v. Wynne, Leach, 460; Rex. v. Sears, id. 463; Rex v. Lamb, 2 E. P. C. 664.

to confound them. Still, it ought not to be considered a palliation of an offence which is, in its essential characteristics, larceny, merely because it is accompanied by a breach of trust. The current of decisions, seems to set towards this conclusion. When the trust is very slight, as in the case of servants who steal articles entrusted in some degree to their care, and so where a mere keeper of goods, having no lien upon them or interest in them, converts them, it has been held, without any scruple, to be larceny. So where a servant of one who has a special property in the goods, as the driver of a common carrier's team, converts them, the same decision has been given.' These are cases of breach of trust, but they are held to be not the less larcenies on this account.

But where the party converting the goods is rightfully in possession of them, and has some special property in them, he is held, in some of the cases, to be a thief, in others a mere debtor, or rather merely liable in damage to the owner to the amount of the value. The general doctrine laid down in the books, is, that a party obtaining the possession of goods lawfully, as upon trust, or in any manner whereby he acquires a special property in them, cannot afterwards be guilty of a felony, unless by some new and distinct act of taking, as by severing a part of the goods from the rest, with intent to convert them to his own use, he thereby determines the privity of the bailment, and the special property thereby conferred upon him; in which case he is as much guilty of a trespass against the virtual possession of the owner by such second taking, as if the act had been done by a mere stranger.' The books make some exceptions to this rule, but the decisions are inconsistent, and not reducible to any one principle. The distinctions in some of the cases, as to what is a taking, are quite frivolous. Thus it is said, that if a common carrier, animo furandi, converts a whole load or a whole package of goods, entrusted to him for transportation, it is merely a breach of trust, and he only makes himself liable to the owner in damages, but if he separates some of them from the rest, and converts a part only, he is a thief, for here is a taking.' Mr. Russell, in his work on crimes, says that this distinction has been objected to as frivolous, and makes some attempt at a vindication, on the ground that a larceny must include a trespass;

1 Commonwealth v. Brown, 4 Mass. R. 580.

2 Collyer's Criminal Statutes, tit. Larceny; 2 E. P. C. 554.

that there must be a taking; and Mr. Collyer says the distinction ceases where an act is done by which the privity of contract is determined, &c. But the distinction is so palpably frivolous, and absurd, that a vindication of it only makes the law ridiculous. It has been accordingly held, in Massachusetts, that where the carrier employed another, who gave the goods to be carried to a third, who converted the whole, though part at one time and part at another, it was larceny.' As far as the authority of this decision goes, it tends to rescue the law from the same sort of absurdity which Buckingham burlesqued in the line of tragic poetry, 'my wound is great because it is so small.' But it is not distinctly decided in this case, that the converting of the whole of the goods at once, is a larceny.

The distinctions are so nice upon this matter of taking, that a separation of the goods, as taking them down from a shelf, and putting them in a bundle to carry away, or the extracting a part of them from a bale, was held to satisfy the law as to what constitutes a taking; but the setting a bale on end, with the intent of stealing it, was held not to be a taking sufficient to constitute theft; it did not amount to the contrectatio of the civilians.

It has been held in England' that it was not larceny in the master and owner of a vessel who converted some entire packages of goods, because he did not break the packages, and there was not the taking which is necessary in order to constitute theft. The doctrine of that case has been departed from in Massachusetts, where the carrier's converting one entire package was held to be larceny.3

In these cases of the conversion of goods by the party to whom they are entrusted, the law is not chargeable with adopting the principle that the trust excuses the offence, but the effect is the same as if that were the doctrine explicitly adopted. We observe, we believe, in all the cases we have noticed, and all of them agree in this respect, that wherever, in the case of entrusted goods, the court can find a technical taking, they consider it a larceny. But the doctrine having crept in, that if the party has a lien or special property, there cannot be such a taking, these two conflicting doctrines perplex the decisions.

1 Dame v. Baldwin, 8 Mass. R. 508.

2 Rex v. Madox, R. & R. 92.

3 Commonwealth v. Brown, 4 Mass. R. 580.