1849. DYKE V. BREWER. ERLE, J.-If this had been a contract with the defendant Brewer to supply him with a certain number of bricks at so much per thousand, that would not make a subsequent partner liable; but this is only that in all future contracts the bricks shall be charged at 28s., ready money. Every order is a new contract. With respect to this partnership not allowing the credit of the firm to be pledged, it is a partnership to carry on a work, and that would give a partner authority to make such contracts as would be proper for the necessary completion of that work; and it will be a question for the jury whether this was not such a contract. Keating declined addressing the jury. ERLE, J., (to the jury).—Where two persons are in part bridge, 3 Q. B. 316, it was held, which is part of the general law of the land. But the same reason does not apply to other partnerships. There is no custom or usage that attornies should be parties to negotiable instruments, nor is it necessary for the purpose of their business. It was urged, that the plaintiff was entitled on the account stated, but the form of the particulars excluded him from that count if the note was not valid." The particulars were as follows: "This action is brought to recover the sum of 5551. due on the promissory note mentioned and set forth in the first count of the declaration herein, with interest thereon from the 14th day of April, 1840, to the day of payment. Above are the particulars of the plaintiff's demand in this action, for the recovery whereof she will avail herself of the whole or any part of the declaration. Dated &c." nership, and one supplies goods necessary for the carrying on of the partnership business, and supplies them to one of the partners for that purpose, and he finds out afterwards that that person has a partner, the other partner is liable. Verdict for the plaintiff. Whateley and W. H. Cooke, for the plaintiff. 1849. DYKE 2. BREWER. NORFOLK SUMMER CIRCUIT, 1848. HUNTINGDON ASSIZES. BEFORE BARON PARKE. REGINA . DAVID THURBORN. LARCENY. The prisoner was indicted for stealing a 10%. - bank note, the property of Samuel Brown, and was found guilty. The learned Baron, considering that the original taking was not felonious, after conferring with Mr. Justice Maule, reserved the point for the opinion of the judges, as stated in the following case, and ordered the prisoner to be discharged on entering into his own recognizance to appear when called upon. July 21st. If a person have been ac finds goods that tually lost, or are reasonably supposed by him to have been lost, and, appropriating them with in tent to take the entire dominion over over them, when he takes really believing, them, that the owner cannot be found, it is not larceny; but if he takes them with the like intent, though lost, or reasonably supposed to be lost, but reasonably believing that the owner can be found, it is larceny. BEFORE POLLOCK, C. B., PARKE, B., PATTESON, J., COLTMAN, J., THE following was the case stated by the learned "The prisoner was tried before me at the last assizes at Huntingdon, for stealing a bank note. "He found the note, which had been accidentally dropped, on the high road. There was no name or mark on it indicating who was the owner, nor were there any circumstances attending the finding which would enable him to discover to whom the note belonged when he picked it up, nor had he any reason to believe that the owner knew where to find it again. "The prisoner meant to appropriate it to his own use after he had picked it up. "The day after, and before he had disposed of it, he was informed that the prosecutor was the owner, and had dropped it accidentally. He then changed it, and appropriated the money taken to his own use. "The jury found that he had reason to believe, and did believe, it to be the prosecutor's property before he thus changed the note. "I directed a verdict of guilty, intimating that I should reserve the case for further consideration. "Upon conferring with my brother Maule, it seemed to us that the original taking was not felonious; and that, in the subsequent disposal of it, there was no taking; and therefore, I declined to pass sentence, and ordered the prisoner to be discharged on entering into his own recognisance to appear when called upon. "I request the advice of the judges. This case was not argued. PARKE, B., now delivered judgment as follows:-A case 1849. REGINA V. THURBORN. was reserved by me at the last Huntingdon Assizes. It was not argued by counsel; but the judges who attended April 30th. at the sitting of this Court after the last Term, namely, the Lord Chief Baron, my brothers Patteson, Rolfe, Coltman, Cresswell, Williams, and myself, gave it much consideration, on account of its importance, and the frequency of the occurrence of cases in some degree similar, in the administration of the criminal law, and the somewhat obscure state of the authorities upon it. [His Lordship stated the case as above.] In order to constitute the crime of larceny, there must be a taking of the chattel of another animo furandi and against the will of the owner. This is not the full definition of larceny, but so much only of it as is necessary to be referred to for the present purpose; and by the term animo furandi is to be understood the intention to take, not a partial or temporary, but the entire dominion over the chattel, without a colour of right. As the rule of law, founded on justice and reason, is, that actus non facit reum nisi mens sit rea, the guilt of the accused must depend on the circumstances as they appear to him, and the crime of larceny cannot be committed, unless the goods taken appear to have an owner, and the party taking must know or believe that the taking is against the will of that owner. In the earliest times it was held, that chattels which were apparently without an owner, “nullius in bonis," could not be the subject of larceny. Staunford, one of the oldest authorities on Criminal Law, who was a judge in the reign of Philip and Mary, says (a), “Treasure trove, wreck of the sea, waif or stray, taken and carried away, is not felony: Quia dominus rerum non apparet, ideo cujus sunt incertum est.' For this he quotes Fitz. Abr. "Coron." pp. 187, 765. These passages are taken from 22 Ass. 99, 22 Edw. 3, and mentions only "treasure trove," "wreck," and "waif;" and Fitzherbert says, the punish(a) Book 1, c. 16. 1849. REGINA น. THURBORN. ment for taking such is not the loss of life or limb. The passage in 3 Inst. 108 goes beyond this. Lord Coke mentions three circumstances as material in larceny: first, the taking must be felonious, which he explains; secondly, it must be an actual taking, which he also explains; thirdly, it is not by trover or finding. He then proceeds as follows: "If one lose his goods, and another find them, though he convert them animo furandi to his own use, it is not larceny, for the first taking is lawful; so if one find treasure trove, or waif, or stray, (here wreck is omitted and stray introduced), and convert them ut supra, it is no larceny, both in respect of the finding, and that dominus rerum non apparet." The only authority given is that before mentioned, 22 Ass. 99; Fitz. Abr. "Coron." 765; 22 Edw. 3. Now treasure trove and waif seem to be subject to a different consideration from goods lost. Treasure trove is properly money supposed to have been hid by some owner since deceased, the secret of the deposit having perished, and therefore belongs to the Crown. As to waif, the original owner loses his right to the property by neglecting to pursue the thief. The very circumstances under which these are assumed to have been taken and converted, shew that they could not be taken from any one, there being no owner. Wreck and stray are not exactly on the same footing as treasure trove and waif. Wreck is not properly so called, if the real owner is known; and it is not forfeited till after a year and a day. The word "estray" is used in the books in different senses, as may be seen in Comyn's Dig. ("Waif," F.), where it is used in the sense of cattle forfeited after being in a manor a year and a day without challenge, after being proclaimed; where the property vests in the Crown or its grantee of estrays; and also of cattle straying in the manor before they are so forfeited. Blackstone (b) defines estrays to be "such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the (b) Vol. 2, p. 519, Stephen's edit. |