CIRCUIT COURT OF THE UNITED STATES

Fall Circuít.

MASSACHUSETTS, OCTOBER TERM, 1830, AT BOSTON.

BEFORE

Hon. JOSEPH STORY, Associate Judge of the Supreme Court. {Hon. JOHN DAVIS, District Judge.

UNITED STATES vs. HENRY MOULTON.

Money and bank notes and coin are "personal goods," within the meaning of the sixteenth section of the crimes act of 1790, ch. 36, respecting stealing and purloining on the high seas.

INDICTMENT founded on the crimes act of 1790, ch. 36, § 16. It contained several counts. The first alleged, that the defendant, on the high seas, &c., one piece of foreign gold coin, called a sovereign, of the value of $4,60; one other piece of foreign gold coin, called one eighth of a doubloon, of the value of $2,00; one piece of foreign silver coin, called a seven pence half penny, of the value of 12 cents; twelve pieces of foreign silver coin, called Spanish dollars, each of the value of $1,00; one piece of silver coin of the United States, called a half dollar, of the value of 50 cents; twenty-four pieces of foreign silver coin, called quarters of a dollar, each the value of 25 cents; one other piece of foreign silver coin called a nine-pence, of the value of 12 cents; one piece

United States vs. Moulton.

of silver coin of the United States, called a quarter of a dollar, and of the value of 25 cents; one bank bill of the New-Haven Bank, of the denomination of five dollars, and of the value of $5,0); one other bank bill of the State Bank of Boston, of the denomination of three dollars, and of the value of $3,00; one other bank bill of the bank of the United States, of the denomination of five dollars, and of the value of $5,00, of the personal goods of one John L. Bowman, did then and there feloniously take and carry away, with intent to steal and purloin, against the peace &c., and the form of the statute &c. The second count alleged the larceny to be of one piece of gold, of the value of &c.; one piece of silver, of the value &c. ; enumerating the same coin as in the first There were two other counts, one of which was for a larceny of the foreign coin, and the other of the coin of the United States, in the first count mentioned.

count.

The defendant pleaded guilty; and having no counsel, Dunlap, District Attorney, stated to the Court, that there was a question of law open upon the record, how far the coin and bank bills, or either of them, were "personal goods," within the purview of the

statute.

Dunlap argued as follows:

The indictment contains four counts. In the first, the defendant is charged with stealing sundry pieces of coin, and three bank bills; in the second, with stealing sundry pieces of gold and silver not alleging them to be coin or money, of a certain alleged value; in the third, with stealing certain pieces of foreign gold and silver coin; and in the fourth, with stealing certain coin of the United States. In the second, third, and fourth counts, the property described is admitted to be the same as the coin described in the first count. The question is, whether these bank bills and this coin, or either of them, are "personal goods" within the true meaning of the statute of 1790, ch. 36, § 16, which prohibits and punishes the offence of taking and carrying away on the high seas, and in certain specified places under the sole and

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exclusive jurisdiction of the United States, with intent to steal or purloin, the "personal goods of another."

It is admitted, that there are various authorities in the English books; decisions made in favorem vitæ, on account of the anxieties of judges administering the bloody code of Great Britain, to find loops to hang doubts on, and which tend to show that bank notes and money are not goods and chattels in penal statutes. Some of the authorities are to be found referred to and examined in the case of the United States vs. Davis, (ante, 356,) where it was holden, that a larceny of a promissory note, a chose in action, was not within this act of congress, because not the "personal goods of another." To the authorities of Jacob's Law Dictionary, "Goods," "Chattels," Co. Litt. 118; Com. Dig. "Biens"; 2 East P. C. 587-948; 2 Russell on Crimes, 1093, may be added Foster 79, where it is said, that money is not within the act of 10 & 11 W. 3, against privately stealing goods in ware-houses, &c.; 2 Strange, 1133; 3 Chitty on Criminal Law, 946; Dyer's Rep. 5; 1 Leach's Rep. 52; Leigh's & Grime's cases decided in 1764, where it was holden, that dollars or Portugal money, and guineas, being money, were not "goods, wares, and merchandise," within the statute of 24 Geo. 2, ch. 45; 1 Leach, 241; Guy's case decided in 1782, where it was holden, that money is not within the meaning of the words goods and chattels, within the statutes of 3 W. & M., ch. 9, §4; 5 Ann, ch. 31, § 5, and Davidson's case contained in a note to Guy's case to the same effect decided in 1766; 1 Leach, 468, Sadi and Morris's case decided in 1787, where it was holden, that bank notes are not "goods and chattels" within the before mentioned statutes of William & Mary and Ann; 6 Johns. R. 103, where it was holden, that a larceny could not, at common law, be committed of a letter; and Perry vs. Coates & Tr. (9 Mass. R. 537,) where it was holden, that bank notes were not "goods, effects, or credits," within the statute of Massachusetts, respecting foreign attachments. These were the leading

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authorities and cases in favour of the defendant and in support of the doubt, whether money and bank notes were "personal goods within a penal statute.

It would be contended on the part of the United States with great confidence, that money and bank notes are "personal goods." Some aid might be derived from recurring to the various definitions of larceny, and it would be found, that the most ancient and modern definitions were the most broad and sensible. In Bracton, Lib. 3, ch. 32, it is said, "quod furtum est secundum leges contractatio rei alienæ fraudulenta, cum animo furando," the word is "rei," the most extensive in its signification; and the only word in the definition which shows, that it must be even personal property is the barbarous word "contractatio," a word, it is believed, unknown in the Latin language, implying that the thing stolen must be something which can be removed or taken and carried away. In the third Institute, 107, it is true, the definition is more strict, and the offence of larceny is described to be the "felonious and fraudulent taking and carrying away, by any man or woman, of the meer personal goods of another." In 2 East P. C. ch. 16, § 2, the same expression, "mere personal goods," is preserved in the definition of larceny. But in a recent case, Hammond's case, 2 Leach, 1089, a definition of larceny is given by Grose J. more conformable to the ancient definition in Bracton," the felonious taking of the property of another." Under the word "rei" in Bracton, and the word " property" in the modern definition, it would seem, that money and bank notes were included.

Money and bank notes are "personal goods." Things personal, according to 2 Black. Comm. ch. 24, are things moveable, or which may be carried about with and attendant upon a man's person. Certainly, money and bank notes are of this description of property, and indeed money is expressly mentioned in this description, by Blackstone. A chose in action is said to be a thing not in occupation or enjoyment, but merely "a bare right,"

United States vs. Moulton.

to be recovered by an action; hence its name. But neither money, nor bank notes good and current, which are the representatives of specie, are choses in action. In form a bank note is a chose in action, and when dishonoured, it becomes the evidence of a right of action, a document for a debt; and the case in 9 Mass. R. 537, was of dishonoured bank notes.

The suspicion of the necessity of a law-suit to enforce the payment of a bank note would destroy its currency, which is its essence, and gives it its character of money. While therefore it circulates, it is as money, and Lord Mansfield lays it down decidedly, in the case of Miller vs. Race, (1 Burr. 457, 459,) that bank notes are "not securities, nor documents for debts," but money" and "cash."

Money does not fall within the reason of the rule, why choses in action are not considered goods and chattels, so as to be the subject of larceny. The reason of that rule is said to be, because choses in action have no intrinsic value, and so far has this notion been carried, that the intrinsic value of the parchments on which they have been written, and even of the box containing them, has been disregarded. 2 Str. 1188; 3 Inst. 109; 2 Russell, 1112; 2 East P. C. 591; Hawkins, B. 1, ch. 25, § 33. But there is an intrinsic value in the metal, of which the money is made, without reference to the "form and pressure," which makes it coin. Ancient medals are not now money, yet they were once so; (Priestley's Lectures on History, -Lect. 6;) and in an indictment, would now be described as goods and chattels. Another reason is assigned in Hawkins, in the passage already cited for the rule, that choses in action are not, at common law, the subject of larceny, as goods and chattels, because, being of no intrinsic value, and "of no manner of use to any but the owner, they are not supposed to be so much in danger of being stolen, and therefore need not to be provided for in so strict a manner." Surely, gold and silver coin, and current bank notes, are not within the reason of this rule, and cessante ratione cessat ipsa lex.