1743. WAITE'S CASE. (1) Vide post. The King v. Pares, contra. session of all the bonds, yet he had not possession of any part, and therefore could not separate those mentioned in the indictment from the rest; and certainly the ancient cases afford a distinction upon this point: for it is said, that if a carrier break open the package, and sell part of the goods, he is guilty of felony. Dalton, c. 102. 1 Hawk. c. 33. s. 5. But in that case, the thing committed to his care is single and entire; in the present case, each bond is distinct and separate. The property must be taken from the possession of the owner. If a man deliver or lend a horse to another, and he rides away with it, it is not felony. Co. Pl. Crown, 107. Butler's Case, and 1 Hale, 504. This is a case common in all the Books, and we rely strongly upon it. Suppose a man go to an inn-keeper under pretence of chaffering for a horse, and when he has got upon his back rides away with it, this is not felony. 1 Hale, 504. 667. Summary, 61 (1). This law is confirmed by 21 Hen. VIII. c. 7. which makes it felony in a servant to take a horse without the leave of his master, and ride away with it, 3 Hen. VII. 126. 1 Hale, 505.; for this proves, that it would not be so considered in the case of a common person. The prisoner was as much entrusted with these India Bonds by the Directors of the Bank, as the Governor and Company themselves were by the Court of Chancery. They always remained with the prisoner, and he by his receipt is liable and answerable. But his misapplication of them cannot be construed felony; for no man can be guilty of stealing that which he has in his own possession; and it is clear from his receipt, that he did not come by them tortiously. They See Rex v. were legally in his custody; he was trustee to the Company Bazeley, acfor their amount, and is answerable in a civil action for their value. Suppose for a moment that a body corporate could be guilty of felony, and that the Directors had embezzled these bonds, Could they have been charged criminally for such an act? Certainly not; but they would have been obliged to make satisfaction to the suitor to whom they might eventually belong: and, upon what solid ground, in this case, can any distinction be made with respect to cordant, post. 1743. WAITE'S CASE. (1) This Case Vide post, Rex v. Bazeley, contra. persons? The prisoner had a special property in the bonds, and might have maintained trover to recover them. They came to his possession by actual, and not constructive delivery only; and it has lately been determined by the King's Bench, upon a special verdict out of this Court, that stealing Chancery Records, by taking them out of the office, and selling them, is not felony (1). But if these arguments, founded on the doctrines of the Common Law, should be thought lame or impotent, there is, subsequent to the period at which this offence is charged to have been committed, a legislative declaration of the law decisive in favour of the prisoner; for by 15 Geo. II. c. 13. s. 12. it is enacted, "That if any officer or servant of the Bank of England, being entrusted with any note, bill, dividend, warrant, "bond, deed, or any security, money, or other effects belonging to the said Company, or having any of the said "securities lodged or deposited with the said Company, or "with him, as an officer or servant of the said Company, "shall secrete, embezzle, or run away with the same, or "with any part thereof, he shall suffer death without benefit "of clergy." This clause clearly proves, that the offence with which the prisoner is charged was not before a felony; and as the Act has passed long since the time laid in the indictment, and does not contain any retrospective words to give it an ex post facto operation, we humbly conclude that the prisoner must be discharged. 66 66 SIR JOHN STRANGE, Knt. Solicitor-General, Mr. BOOTLE, and Mr. PURCHAS, on the part of the Crown. By the sta tute 12 Geo. I. c. 32. the Bank of England are made expressly liable for these bonds, after the certificate has been given by the Cashier, as the Act directs. In the present case the bonds were carried from the Court of Chancery to the Bank, and as that corporation must have proper servants to transact the different branches of their very extensive and important concerns, the prisoner at the bar was the proper person to receive them from the Accountant-General. The moment the prisoner received them, that moment they came into the possession of the Bank, and not into the legal pos 1743. WAITE'S CASE. session of the prisoner (a). The receipt which he gave for them proves that it was not for himself; for it expresses, that they were received for the Governor and Company of the Bank of England; and it is immaterial whether the bonds are under their own lock and key, or under the lock and key of their servants and Cashiers; for in consideration of law the property is in the possession of the Bank. His receipt See Lord Kenwill not entitle the suitors to call upon him for the money, C.J. Evre's yon's and L. for it is virtually the receipt of the Company. It is said, observations on this point, that a man cannot steal from himself, and if it be taken ab2 East, 573, stractedly, the assertion is certainly true; but it is equally 574. certain that a man may commit a felony of what he has in his own possession. The case in Lord Hale, 504, 505. will prove this: A carrier receives goods to carry to Dover, and he carries them away, it is no felony; but if, having carried them to the place appointed, he afterward secretly take them away animo furandi, it is felony; for the possession which was imparted to him from the owner being determined by the delivery, his subsequent taking is in all respects the same as if it had been done by a stranger. 13 Edw. IV. 9. Co. P. C. 107. So in the present case, the moment the bonds are deposited in the vault, that moment the prisoner's possession, if ever he had any, ends. If a carrier in his journey unpack goods, and take any thing out of a case, box, or pack, it will be a felonious taking, for he had no authority to separate the goods; his authority was to receive the bundle entire, and to deliver it entire, at such a place. Vide 21 Hen. VII. pl. 14. Let us compare the cases: Twenty India bonds are delivered at one time to the prisoner, and he converts three of them to his own use; Is he not in the same case with the carrier who takes part of the goods out a parcel, and does not deliver them to the party they are for? Is not this evidence to the Jury of a felonious taking? The Gentlemen have put a case, that if a man go to an inn to hire a horse, and get upon its back, and ride away with it, it is not felony; but this is not law, for of 1743. WAITE'S CASE. 3 Hen. 7. 12. 21 Hen. 7. 14. B. Cor. 58. 137. S. P. C. 25. 1 Hale, 505. 66 66 66 65 the horse is not lent in this case, and therefore it must be felony (1). There is a difference between having the care of goods and the legal possession of them. In the present case the prisoner had the care of the bonds, but not the (1) Vide the King v. Pares, legal possession, and it cannot now be controverted, that post. those who have a bare charge only, may be guilty of felony. Serjeant Hawkins, in his Pleas of the Crown, Book 1. c. 33. s. 6. says, "That one who has the bare charge, or the spe"cial care of goods, but not the possession of them; as a shepherd who looks after sheep, or a butler who takes care of plate, or a servant who keeps the key of my cham"ber, or a guest who has a piece of plate set before him at an inn, may be guilty of felony in fraudulently taking away the same; for in all these cases the offence may as properly come under the word cepit; the injury to the owner is as great, and the fraud as secret, and the vil"lany more base than if it had been done by a stranger." The circumstances under which the prisoner had the management of these bonds, prove that he had a bare charge only, much more forcibly than the cases of either the butler, the shepherd, the servant, or the guest; for the bonds remain in the custody of the Cashier only until the Directors go down to put them into the vault, and then the Cashier attends to lock them up in the sight of the Directors. But suppose, from the circumstance of the Cashier keeping the key of the chest, it should be considered as a sort of mixed possession, the construction of law is, that the true possession is in him who is the owner or master of the goods (2). If an apprentice, says Lord Hale, 506. embezzle his master's goods or money out of his shop, he is guilty of felony, notwithstanding the possession which he has by a licence to sell. The charge which the prisoner had in these bonds was only for the special purpose of receiving the interest; he is the hand only to convey them to the proper repository, and from thence to receive the interest, and be again deposited as occasion may require. There is a case made use of by Lord Dyer, fölio 5. "That if a master deliver to a servant one-and-twenty shillings in silver, to change into (2) Sec Hud son v. Hudson, Latch. 66 gold, or to buy leather to make shoes, and he runs away "with the gold or the leather, it is felony, because the "money was delivered for a particular purpose." So in this case, these bonds were delivered to Mr. Waite for the particular purpose of depositing them in the chest, and receiving the interest; not to sell them, and convert their produce to his own use. The statute of 15 Geo. II. c. 13. s. 12. has been adduced to prove that the prisoner's offence is not felony by the Common Law. If he were one of the description of persons whose acts of infidelity the Legislature have thereby made felonious, and the statute could be considered as introductory of a new law, the argument would certainly be conclusive; but we contend that this man had not that sort of trust, against the breach of which the Legislature intended to guard; and there are many statutes which are made to put an end to fancied doubts. This statute only takes away, sub modo, the benefit of clergy from the offence of larceny, in the same manner as the 1 Jac. I. c. 8. takes away clergy from a particular kind of manslaughter; but it has never been doubted but that the mode of killing therein mentioned was manslaughter before the Act. The 12 Anne, c. 7. removes the benefit of clergy from larceny in a dwelling-house to the value of 40s. but it was undoubtedly a felony to steal to that amount, either within or out of a dwelling-house, before that Act. p. 3. 1743. WAITE'S CASE. THE COURT were clearly of opinion, That the prisoner's See Hassel's Case, ante, offence was not felony before the 15 Geo. II. c. 13. s. 12. (a) and they offered Mr. Solicitor General A SPECIAL VerDICT; but the Counsel for the prosecution candidly acknow (a) The reason assigned for the opinion of the Court was that "the bonds were received by Waite, and were never put into the cellar as is usual: so that the possession was always in him, and the Bank had no possession but what was the possession of Waite, till they were brought down and placed in the chest in the cellar as usual; and DENNISON J. said, that though this might be such a possession in the Bank whereon they might maintain a civil action, yet there was a great difference between such a possession and a possession whereon to found a criminal prosecution." 2 East, 571. |