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THEFT OF PRO- But if the finder proceed at once, or within a very

PERTY IN THE

THIEF.

found

CUSTODY OF THE short period, to appropriate the article, there seems Appropriation of no reason why this should not be held to be theft (1). to own use theft. Such a case resulted in a conviction, where the finder of a watch, on the day after the finding, and without any means being used to discover the owner, offered it in pawn, alleging it to be his own property (2). Again, a woman was convicted of theft, who seeing money fall from the owner's person, took it, and Many specialities denied having it (3). Such cases must depend on special circumstances. The nature of the article, as regards form, value, or liability to perish; the means at the disposal of the finder for discovering the owner, the use made of these means; the time allowed to elapse before the appropriation; the conduct of the accused from which the appropriation is to be inferred; and even the mental qualities and education of the party, are all elements which may be of importance in judging of the intent.

in such cases.

Legal custody does not exclude theft.

Servants in charge of master's property.

Although it may lower the offence of appropriating property from theft to breach of trust or embezzlement, that the owner has given a limited possession of it to the offender, this is not true in every case, and least of all where the bare custody is given for a special purpose, as in the case of servants put in charge of their master's plate, or horses, or goods, or the like (4). If a lodger go from home, leaving a chest

1 It is true that Hume (i. 62) and Alison (i. 360, 361) lay down the contrary, but their opinion, having been expressly overruled as regards the case of the owner being known to the finder, cannot be held authoritative in the matter.

2 Peter Connelly, Glasgow, Sept. 20th 1864 (unreported).—In a subsequent case of Suspension of a Sheriff Court conviction for theft in similar circumstances, the Court, though they quashed the convic

tion in consequence of the loose manner in which the libel was framed, expressed their concurrence in the principle of the above case. M'Laughlin v. Stewart, H.G., June 17th 1865 (unreported).

3 Ann Tunny or Cunningham, H.C., Nov. 22nd 1869; 1 Couper 385.-See also John Waugh, Stirling, April 15th 1873; 2 Couper 424 and 45 S.J. 505 and 10 S.L.R. 391.

4 Hume i. 64, 65, and case of

PERTY IN THE
CUSTODY OF THE
THIEF.

be changed.

in charge of a lodging-house keeper, and he break it THEFT OF PROopen, and abstract the contents, he commits theft (1). Or if a customer give a banknote to a shopkeeper that Money given to payment may be made of a purchase amounting to sixpence or a shilling, and the shopkeeper keep the note, his crime is theft. Nor is it a theft of nineteen shillings, or nineteen and sixpence; it is the note he has stolen, as it was given only to be changed, that the customer might pay his debt (2). Further, a Loan or hiring. thing lent or hired for a specified time and purpose may be stolen by the borrower or hirer; as where a horse hired or lent for a ride (3), or mounted for trial, is carried off (4). If an article be lent for a specific use, and to be returned thereafter, the borrower commits theft if he appropriates it (5), and this whether the hiring or borrowing was a pretence, or whether the intention to appropriate was afterwards formed (6). Pauper selling The rule has even been extended to the case of a poorhouse clothing.

Heartside there, and cases of Gray; and Paterson and Marr in note 1. -i. 67, and cases of Shand: and Fairbairn there.-Alison i. 250, 251. -More ii. 381.

1 Craig . Ponton, H.C., Nov. 16th 1829; 2 S. J. 31.

2 John Mooney, H.C., Nov. 17th 1851; J. Shaw 496 and 24 S. J. 12.

3 Hume i. 69, and case of Marshall there.-Alison i. 259, 260, and cases of Tyrie and Smith there.Will. Barr, Glasgow, May 4th 1832; 5 Deas and Anderson 260.-John Smith, alias Lloyd, alias Shepperd, H.C., Jan. 11th 1830; 2 S. J. 144. -Rob. Hardista, alias Chas. Brookes, July 22nd 1842; Bell's Notes 16.-Hume i. 58, 59, contra.

4 Hume i. 63, and case of Renwick in note a,-i. 68, 69.-Alison i. 263.

5 Jane M'Mahon or M'Graw, Glasgow, April 22d 1863; 4 Irv. 381 and 35 S. J. 459.-In the case of Anthony Sime, H.C., Feb. 25th

1850; Lord Justice Clerk Hope's
MSS., it was objected to a charge
of theft of a hammer, that it had
been lent to the accused, and that
the species facti did not amount to
theft. The objection was repelled.
See also William Rodger, H.C.,
June 8th 1868; 1 Couper 76 and 40
S. J. 522 and 5 S.L.R. 590.

6 John Smith, H.C., March 12th 1838; 2 Swin. 28. (Lord Meadowbank's and Lord Moncrieff's opinions). In the case of Janet Lawrie, H.C., Feb. 25th 1849, the facts were that the accused went to a shop, and on being shown an article of dress, took it away, saying she would show it to her sister, for whom she said she was buying it. She did not return, but pawned the article. The Lord Justice Clerk Hope's MSS. contains the following note- "Lorimer question is "whether offence is theft. Court "held it was theft."

THEFT OF PRO-
PERTY IN THE

THIEF.

livery.

shipmasters.

pauper selling clothes served out to be worn while the CUSTODY OF THE wearer was in the poorhouse, they being expressly given to be worn while she continued an inmate (1). Servant selling It would now probably be held theft if a servant were to sell his livery, given him on the footing that it was to be returned when he left the service (2). If a Porters, carriers, porter run off with luggage (3), or shipmasters (4), or carriers (5), appropriate goods put into their custody for conveyance, the crime committed is theft. And the Servant sent with same holds if a servant take a coat which he has been ordered to convey to a tailor's for repair (6); or appropriate the contents of a parcel given him to deliver (7); or a groom ride off with, and sell a horse which he has been directed to take out for exercise, or to exhibit in a market (8).

article.

Money entrusted for immediate delivery.

A servant commits theft if he appropriate money given him to be immediately delivered in forma specifica to a particular person, or to be paid into Servant sent for bank (9). If a servant be sent with a banknote to get change (10), or a bill be given him that he may cash it, and bring back the proceeds to his master, or

cash or change.

1 Elizabeth Anderson, Aberdeen,
April 21st 1858; 3 Irv. 65.-John
Martin, H.C., Dec. 8th 1873; 2
Couper 501.

2 Hume i. 60, contra.-Alison i.
355, contra.-More ii. 388, 389.

3 Hume i. 63.-Alison i. 252.i. 263.Alex. Mackay, H.C., Dec. 27th 1826; Syme 53.

4 Jas. Dalziel, Dumfries, April 8th and Sept. 29th 1842; 1 Broun 217 and 425.-Philip Kneen, H.C., June 28th 1858; 3 Irv. 161.

5 Hume i. 58, 59, contra.-Alison i. 253, 254, case of Glen there.-i. 262. Jas. Mitchell, H. C., May 25th 1829; Shaw 220 and Bell's Notes 10.

6 Janet Drummond, July 12th 1832; Bell's Notes 14.

7 Daniel or Donald Macdonald, July 16th 1829; Bell's Notes 15.

8 Rob. Nicolson, H.C., June

20th 1842; 1 Broun 370 and Bell's Notes 14.

9 Hume i. 65, 66.-Alison i. 254, 255.-Daniel A. Murray and Rob. Tait, Nov. 30th 1829; Shaw 225 and Bell's Notes 15 and 2 S. J. 64. -Duncan Mackintosh, H.C., Feb. 2d 1835; 13 Shaw's Session Cases 1168 and Bell's Notes 15 and 7 S. J. 195.- David Field, H.C., Jan. 22nd 1838; 2 Swin. 24 and Bell's Notes 16. Thos. Paterson, H.C., July 22nd 1840; 2 Swin. 521 and Bell's Notes 16.-In Lord Wood's MSS. the following note occurs to the case of Jas. Simpson, Glasgow, Sept. 27th 1847, who pled guilty to theft -"got large sums from employer to pay accounts, and appropriated them." (See Indict., Adv. Lib. Coll.)

10 Rob. Michie, HC., Jan 28th 1839; 2Swin. 319 and Bell's Notes 13.

PERTY IN THE

THIEF.

pay them to a particular party in forma specifica, he THEFT OF PROcommits theft if he carry off the money (1). Where CUSTODY OF THE the accused was sent with a deposit receipt to get payment of a portion of the sum contained in it, and a new receipt for the balance, and kept the sum handed to him at the bank, and also the new receipt, it was observed by the Court ex proprio motu that the charge of theft was undoubtedly relevant (2). A Postman. postman who keeps letters given to him for delivery commits theft (3).

The rule is not confined to the case where the ser- Shopman. vant acts as a messenger. It applies where a servant acts as salesman on the premises, and under the eye of the employer,-not as an agent bound to account, but as the hand of the master. A shopman who appropriates the goods in the shop, or money paid to him by customers, commits theft (4). And the prin- Bank teller. ciple has even been extended to the teller of a bank, his duty being merely to receive and pay money for the bank, and within the bank premises, the money never being in his possession at all, but in the possession of the bank (5). It would even appear that a Servant sent to servant would be guilty of theft, if he were sent with article. a particular article to market, for the purpose of selling it, and bringing the price to his master, and he kept the money (6); or if he were sent with an article to pawn, and appropriated the amount advanced (7), there. Tho. E. Pearse, Nov. 19th 1832; Bell's Notes 10.

1 David Stewart, Perth, April 14th 1830; 5 Deas and Anderson 149. Samuel Farquharson, H.C., Nov. 11th 1830; Bell's Notes 12.

2 David Stewart, Perth, April 14th 1830; 5 Deas and Anderson 149.

3 Hume i. 67, and case of Mackay there, and cases of Lawrie : and Oliver in note 3.

4 Hume i. 65, case of Gray in note i.-Alison i. 251, and cases of Chalmers and Murray and Tait

5 Rob. Smith and Jas. Wishart, H.C., May 18th 1842; 1 Broun 342 and Bell's Notes 11.-See also Ronald Gordon, H.C., Dec. 21st 1846; Ark. 196 and 201 note.Hume i. 61, contra.

6 Watt v. Home, H.C., Dec 8th 1851; J. Shaw 519 (Lord Wood's opinion).

7 Daniel Fraser, H.C., June 3d 1850; J. Shaw 365 (Lord Justice Clerk Hope's charge).

sell or pledge

THEFT OF PRO-
PERTY IN THE

CUSTODY OF THE effect.

THIEF.

tradesman to

make up or repair.

although there has been no positive judgment to this Such a decision would carry the doctrine of specific purpose and limited custody very far, there being in such cases at least a limited control and administration on the part of the servant. Still, the servant's duty being, not like that of an agent, to retain the money, and account for it at some convenient time, but immediately to return and hand it over, it may be reasonable to hold his act to be theftuous. Article given to The principle of specific purpose and limited custody is extended to the case of an article being given to a tradesman, that he may perform some operation upon it, and return it (1). It is theft if a watchmaker take a watch given him to repair (2); or a tailor appropriate cloth given him to make into a coat (3); or a weaver carry off yarn which has been given him to Question whether be woven (4). It has not been decided whether it would be theft if the tailor had made the coat, or the weaver had made the web, before the appropriation, but it would probably be held to be so (5). If a journeyman tailor receive cloth from his master to make a coat, and after making it, carry it off, he is undoubtedly guilty of stealing the coat; and in the case supposed of the owner of a piece of cloth giving it to a tailor to be made up, the tailor is just the servant of his employer, as the journeyman tailor is the servant of the master-tailor (6).

theft after article made up.

1 Alison i. 359, 360, contra.

2 Geo. Brown, H.C., July 3d 1839; 2 Swin. 394 and Bell's Notes 9. By this case the previous case of Robert Sutherland, H.C., March 21st 1836; 1 Swin. 162 and Bell's Notes 9, is overruled.

3 Elizabeth Anderson, Aberdeen, April 21st 1858; 3 Irv. 65 (Lord Ardmillan's charge).

4 Watt v. Home, H.C., Dec. 8th 1851; J. Shaw 519 and 24 S. J. 65 and 1 Stuart 125.

5 See Watt v. Home, supra

(Lord Justice Clerk Hope's and Lord Wood's opinions).

6 There are only two cases in which this point seems to have been directly raised by the libel, viz. :Richard Gibbons, Glasgow, Sept. 1856; Indictment, Adv. Lib. Coll., where a person got materials to make up shirts, and after making the shirts appropriated them: and Will. Hay, H.C., Feb. 4th 1861; Indictment, Adv. Lib. Coll., where a miller, who had got grain to grind, appropriated the flour which

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