II. III. INJURIES ΤΟ PERSONAL PROPERTY. by false pretences, under colour of a purchase, may be retaken CHAP. III. by the vendor out of the hands of the purchaser or his assignee; (a) and if a vendor discover that the purchaser is insolvent, he may stop them in transitu, (b) a right which he himself must exercise, for a Court of Equity will not interfere to stop goods in transitu. (c) If the goods cannot be retaken without committing or occasioning a breach of the peace, then the remedy is by replevin, (d) or by action of detinue, though taken by force; (e) and sometimes a Court of Equity will compel the delivery of a specific chattel. (f). So an action of trover lies to recover the value of a personal thing illegally taken or detained, (g) or trespass, where the taking was illegal. (h) When the value of the thing taken or the damage done to it does not exceed 57., and the taking or injury does not constitute a felony, punishment, and sometimes compensation, may be obtained summarily before a justice of the peace, (i) and a summary proceeding is also afforded with respect to game. (k) If the original taking were criminal and felonious, (1) the Criminal common law as well as the statute (m) subjects the offender to takings. an indictment for larceny, whenever the goods and chattels or thing taken were in legal contemplation moveable personalty, and not part of the realty, and also valuable, (n) and also when the original taking was not only illegal but also felonious; but if the taking were legal or not felonious, and only the subsequent misapplication of the property was criminal, then at common law no indictment for larceny was sustainable, and that determination occasioned the passing of the statutes to render the embezzlement by servants and others punishable. Thus if a master gave a servant a 51. note to get changed, and the servant absconded with the money, this was not larceny, or punishable at common law, because there was no felonious taking, but under the acts against embezzlement it is now indictable. (0) As to some animals and things of superior value, as horses, cows and sheep, and certain enumerated valuable securities, the larceny was declared capital by statute. (p) (a) 7 Taunt. 59; post. (b) Post. (c) 2 Jac. & W. 349. (d) 2 Stark. 288; 1 Chit. Pl. 188. (e) 1 Chit. Pl. 139. (f) Chit. Eq. Dig. tit. Chattels Persanal, and tit. Estate, IX., et post. (g) 1 Chit. Pl. 176, 177. (h) 3 Wils. 336; 1 Chit. Pl. 197. (i) 7 & 8 G. 4, c. 29, and id. c. 30, s. 24. (k) 1 & 2 W. 4, c. 52, s. 31 to 37. (1) When not so, see an explanatory case, (m) 7 & 8 G. 4, c. 29. The halves of country bank notes, 4 Car. & P. 535. (n) When not, see ante, 95, and Rer v. Searing, Russ. & R. 350. (0) Rex v. Sullens, cor. twelve judges, A.D. 1820, Carr. Cr. L. 318, 319. (p) 7 & 8 G. 4, c. 29, per tot altered as to horses, &c. by 2 & 3 W. 4, c. 62. II. III. INJURIES ΤΟ PERSONAL PROPERTY. CHAP. III. Robbery is punishable capitally with death. (q) Stealing privately from the person is punishable with transportation for life or seven years, or four years' imprisonment. (r) Sacrilege and burglary are punishable capitally with death, (s) and so was housebreaking in the day-time, (t) but the capital punishment of death for the latter, and for stealing horses, cows or sheep, or killing the same with intent to steal them, is now repealed, and the punishment is only transportation for life. (u) The stealing from particular places is by various provisions in the same act rendered penal, with varying punishment; (x) and felonious stealing by tenants, and lodgers, and clerks, and servants and others, are punishable with transportation; (y) and the taking of deer, hares and rabbits, fish, &c. is specially punishable under the 7 & 8 Geo. 4, c. 29.(z) It will be obvious that as the law allows resistance of attempt to take by means not criminal, so it ought to and does permit resistance when the taking would be criminal. (a) But with respect to recaption it is not so, for in many cases of felonious takings the owner cannot retake his property, or have restitution, until after he has performed his duty to the public, by prosecuting the offender to conviction or acquittal, after which the Court will award restitution, unless where a negociable security has got into the hands of a bonâ fide holder for value. (b) In general, however, the owner may retake the thing stolen, unless sold in market overt, (c) and a pawnbroker's shop is not a market overt to prevent such recaption, and trover always lies against a pawnbroker after demand by the owner, (d) and before the above act, in case of a sale in market overt, still after the owner had prosecuted the felon, he was entitled to retake or recover from the person then in possession. (e) With respect to horses, there is a peculiar law under the statute 2 & 3 Ph. & M. c. 7, and 31 Eliz. c. 12, by which, unless there has been a sale in market overt, with all the precautions required by the acts, the owner may retake or sue at any time; (ƒ) but after a regular sale, pursuant to the acts, the owner cannot maintain trover until after conviction; (g) and although the law thus allows a person in certain cases to retake, yet it is illegal and (q) 7 & 8 G. 4, c. 29, s. 6. (s) Id. s. 10, 11. (t) Id. s. 12. (u) 2 & 3 W. 4, c. 62. (x) 7 & 8 G. 4, c. 29, s. 12; see next (y) 7 & 8 G. 4, c. 29, s. 45, 46. (a) 3 Bla. C. 4, note 3; 1 Mood. & M. 107. (b) 7 & 8 G. 4, c. 29, s. 57. (c) 2 Bla. 449; Burn's J., Horses, II. (d) 2 Stra. 1187; 1 Stark. R. 472; 2 Campb. 336; 1 Wils. 8; 2 Bla. C. 440. (e) 2 T. R. 750. (f) Id. s. 5; Burn's J., Horses, II.; 2 Bla. C. 451. (g) 2 Car. & P. 41, 43. II. III, INJURIES ΤΟ PERSONAL PROPERTY. punishable to advertise a reward for the return of the thing CHAP. III. stolen without asking questions, or otherwise stipulating not to prosecute. (h) In cases of horses feloniously stolen, justices have express power to afford summary relief, (¿) but that power is confined to horses stolen, and does not apply when they have been obtained by false pretence, (k) nor do the statutes extend to other chattels whereof felony may be committed at common law. Other statutes provide summary punishment, with power, in some cases, to award satisfaction for criminal takings and injuries to several things, of which larceny or felony could not have been committed at common law, as hares and rabbits, dogs, and beasts, and birds usually confined, pigeons, fish, certain trees and shrubs, wood fences, posts and rails, fruit, roots, vegetables, the taking of which did not constitute larceny at common law, but in all which cases justices now have summary jurisdiction. (/) In cases of felonious takings in general, the remedy by action, as already observed, is suspended until after conviction or acquittal of the supposed offender; (m) but in the instance of horses, the civil action of detinue or replevin is expressly reserved, unless there has been a regular sale in market overt, (n) and it is expressly provided that when the taking of any chattel or thing is only a misdemeanor, as taking wills and writings, being evidence of title to an estate, the power to prosecute for the criminal offence and punishment shall not prevent, lessen, or impeach any remedy at law or in equity for the private injury. (0) An illegal taking by embezzlement or breach of trust was not Embezzlement. at common law punishable; but now, if a clerk or servant, when employed as such, shall, by virtue of such employment, embezzle any chattel, money, or valuable security, he is to be deemed to have feloniously stolen the same; (p) and if a banker, merchant, factor, broker, attorney, or other agent, embezzle money, or securities for money entrusted to them, they are respectively guilty of an indictable misdemeanor; (q) but it is expressly provided that that enactment shall not affect trustees or mortgagees, or extend to bankers disposing of any lien ; (r) and it is expressly enacted that those provisions as to all such agents shall not lessen any civil remedy which the party aggrieved would otherwise have. (s) So that a prosecution and also an action might be sustained at the same time against the II. III. INJURIES ΤΟ PERSONAL CHAP. III. agent and his sureties. But these provisions only apply to embezzlements in case of a regular employment in the capacities enumerated, and do not extend to a person gratuitously engaging, on a particular occasion, to procure the discount of a bill, not being in any business within which such an employment regularly falls; for, per Lord Tenterden, it is true that for certain purposes a friend is an agent, but it was intended to confine the operation of the statute to persons acting in discharge of their functions. (t) False pretences. Obtaining by threats. Another criminal mode of illegally taking goods from the possession of the owner is by a false pretence. This so far invalidates the sale, that re-caption by the owner, even by stratagem, is legal; (u) and an action of trover, or case, or assumpsit against the deceiver may, in general, be sustained. (v) The act is only punishable criminally as a misdemeanor by statute; (w) or, if several concur, they may be indicted for a conspiracy at common law. (x) A representation that the party could or would do a particular act, as that he could or would get a bill discounted, though he knew he could not, is not a false pretence within this act, but rather a breach of promise, and the false pretence must be of the existence of some fact; (y) nor is a false warranty without conspiracy indictable, (≈) or the obtaining money upon a second sale or mortgage, concealing the prior incumbrance, indictable. (a) A false pretence being only a misdemeanor, the criminal punishment does not affect the right to proceed by a civil action of replevin, detinue or trover. The obtaining personal property by threats is, in some cases, by the criminal law, punishable capitally. At common law the extorting money by threat or duress is indictable. (b) An assault, with intent to rob, or menacing, or by force demanding any property, with intent to steal, is felony punishable with transportation for life, or not less than seven years, or imprisonment for not exceeding four years, and whipping, if a male. (c) Any menace or threat to impute an infamous crime, with intent to extort, and thereby succeeding in extorting any chattel, is indictable as robbery, and punishable with death. (d) Sending a letter or writing, demanding with menaces any chattel, money, (t) Rex v. Prince, Mood. & M. 21; 2 Car. & P. 517. (u) 1 Bar. & C. 514; 2 D. & R. 755; 7 Taunt. 59. (v) 1 Stark. 20; 9 B. & Cres. 59. (w) 7 & 8 Geo. 4, c. 29, s. 53; even against a minor, Burn's J., Cheat, I. For obtaining enlisting money, 10 Geo. 4, c. 6. (x) 3 T. R. 98; 3 D. & R. 611; but not at common law, unless there was a II. III. INJURIES ΤΟ or valuable security, or threatening to accuse of certain offences, CHAP. III. with intent to extort, is felony punishable with transportation for life, or seven years, or imprisonment for four years, and whipping, if a male. (e) Threats to destroy corn, hay, or straw, are also indictable. (ƒ) PERSONAL Illegal detentions, where the taking was legal, may be by 2. Illegal deten civil or criminal means. The former may be remedied by recap- tions. tion when wrongfully detained by a person who ought to restore the thing to the owner, (g) or by replevin, (h) or by action of detinue; (i) or sometimes by summons, as under the Pawnbrokers' Act, or statutes relating to servants detaining materials they have had to work upon, or by bill in equity for specific restoration of the chattel, as in the case of an heir-loom, &c. (k), or to recover compensation by action of trover, () or by seizure for a heriot, (m) or for tolls, (n), or by distress where rent, or poorrate, or highway-rate, is not paid. (o) The criminal proceedings may be those in case of embezzlement, which we have before noticed. (p) not criminal. The injuries to personal property by damaging it whilst in 3. Illegal dathe possession of the owner or a bailee, or of the wrong-doer maging. himself, are of a civil or criminal nature. Those of a civil Civil injuries nature may be all injurious acts committed either forcibly or otherwise, and which render the chattel less valuable; and they may be committed by bailees or others having the legal possession, and constitute either breaches of express or implied contract, or torts independent of contract, and in which the remedy by action may be framed accordingly; (g) or they may be committed by third persons not having the legal or any possession, and when the remedy by action may be either trespass or case, according to the nature of the injury, as whether it were direct and immediate, and with force, in fact, or implied by law, or only consequential, or not even with implied force, and whether a nonfeazance, misfeazance, or malfeazance; and the remedy may also depend on the question whether the owner had an immediate right to the possession of the chattel, or whether his bailee had the right of possession, or his interest |