It is necessary to go beyond that to render the defendant criminally liable; it is necessary to shew that he knew the man to be a lunatic, and that he received him as such. Parry, Serjt. (Poland with him), for the Crown, was not called upon. COCKBURN, C.J. What I meant to reserve was whether a state of imbecility, arising naturally from the gradual natural decay of the faculties, is lunacy within the statute. We are all of opinion that this case falls within the mischief contemplated by the act, and that the conviction ought to stand. MARTIN, B., WILLES, J., BRAMWELL, B., and BLACKBURN, J. concurred. 1868 THE QUEEN v. SHAW. Conviction affirmed. Attorneys for the Crown: Vandercom, Law, & Payne. 150 CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN MICHAELMAS TERM, XXXII VICTORIA. 1868 Nov. 14. THE QUEEN v. PRINCE. Larceny-False Pretences-Master and Servant-Effect of Distinction between Where a servant is entrusted with his master's property with a general authoray to act for his master in his business, and is induced by fraud to part with his master's property, the person who is guilty of the fraud and so obtains the property, is guilty of obtaining it by false pretences, and not of larceny, because to constitute larceny there must be a taking against the will of the owner, or of the owner's servant duly authorized to act generally for the owner. But where a servant has no such general authority from his master, but is merely entrusted with the possession of his goods for a special purpose, and is tricked out of that possession by fraud, the person who is guilty of the fraud and so obtains the property is guilty of larceny, because the servant has no authority to part with the property in the goods except to fulfil the special purpose for which they were entrusted to him. The cashier of a bank is a servant having a general authority to conduct the business of the bank, and to part with its property on the presentation of a genuine order from a customer; and if he is deceived by a forged order, and parts with the money of the bank, he parts, intending so to do, with the property in the money, and the person knowingly presenting such forged order is guilty of obtaining the money by false pretences, and not of larceny. THE following case was stated by the Common Serjeant:The prisoner was tried before me at the August session of the Central Criminal Court on an indictment charging him, in the first count, with stealing money to the amount of 1007., the property of Henry Allen; in the second count, with receiving the 1868 same, knowing it to have been stolen; and in two other counts the ownership of the money was laid in the London and Westminster THE QUEEN Bank. It appeared in evidence that the prosecutor, Henry Allen, had paid moneys amounting to 9007. into the London and Westminster Bank on a deposit account in his name, and on the 27th of April, 1868, that sum was standing to his credit at that bank. On that day the wife of Henry Allen presented at the bank a forged order purporting to be the order of the said Henry Allen for payment of the deposit, and the cashier at the bank, believing the authority to be genuine, paid to her the deposit and interest in eight bank-notes of 1007. each, and other notes. Among the notes of 1007. was one numbered 72,799, dated the 19th of November, 1867. On the 1st of July, 1868, the wife of Henry Allen left him and his house, and she and the prisoner were shortly afterwards found on board a steamboat at Queenstown on its way from Liverpool to New York, passing as Mr. and Mrs. Prince, Mrs. Allen then having in her possession nearly all the remainder of the notes obtained from the bank. The note for 1007., No. 72,799, was proved to have been paid away by the prisoner in payment for some sheep in May, 1868, and he said he had it from Mrs. Allen. Upon this evidence it was objected by prisoner's counsel that the counts alleging the property to be in Henry Allen must fail, as the note had never been in his possession; and that, as to the other counts, the evidence did not shew any larceny of the note from the bank by the wife, but rather an obtaining by forgery or false pretences by her, and that the receipt by the prisoner from her was not a receipt of stolen property. I held, however, that the forged order presented by the wife was, under the circumstances, a mere mode of committing a larceny against the London and Westminster Bank, and that the prisoner was liable to be convicted on the fourth count. The jury found the prisoner guilty on that count, and I respited judgment, and reserved for the consideration of the Court the question whether the obtaining the note from the bank by Mrs. Allen, under the circumstances stated, was a larceny by her; if not, the conviction must be reversed. v. PRINCE. 1868 V. PRINCE. Collins, for the prisoner. The conviction is for receiving a 1007. THE QUEEN note stolen by Mrs. Allen from the London and Westminster Bank, but Mrs. Allen's conduct did not amount to stealing; it was an obtaining money by false pretences; for, first, the cashier had power to part with the property in, and possession of, the money of the bank; and, secondly, he did part with both as regards this note, believing the order presented to him to be genuine. In Story on Agency, s. 115, p. 118, 6th ed., the duties of cashiers are stated, and where payment is made to a bonâ fide holder on a forged order the payment cannot be recalled, for the cashier is bound to know the genuine paper of the bank: United States Bank v. Bank of Georgia. (1) Money had and received will not lie by a banker against a person who has received money of the bank through a cashier's mistake: Chambers v. Miller. (2) These cases shew that a cashier can part with his master's property, and divest his master of it. The cashier's duty is to decide on the genuineness of a cheque. If he decides wrongly, and pays money on a forged cheque, he still acts within the scope of his authority. Believing the cheque in question to be genuine, he intended to part with the property in the note, and he did so part with it to Mrs. Allen. The bank is identified with its cashier, and having voluntarily parted with its own money, and not merely with the possession of it, the act of Mrs. Allen is not larceny, because one of the material elements of that offence is absent, viz., a taking against the will of the owner. Reg. v. Jackson (3) is on all fours with this case. There the servant of a pawnbroker, who had a general authority from his master to act in his business, delivered up a pledge to the pawner of it, believing he was receiving in exchange a parcel of diamonds. The parcel contained worthless stones; but the servant having entirely parted with the pledge under a mistake, it was held that the pledger could not be convicted of larceny. Reg. v. 'Adams (4), Reg. v. Atkinson (5), are also in point. In 1 Hale's Pleas of the Crown, p. 506, it is said: "If A. comes to B., and by a false message or token receives money of him, and carries it away, it is no felony:" Reg. v. Parks (6); (1) 10 Wheaton, 333. (4) 1 Den. C. C. 38. 1868 V. PRINCE. Reg. v. Barnes (1); Reg. v. Essex. (2) The cashier here did not merely part with the possession of the note; he parted with the THE QUEEN property in it also. The prisoner might have been convicted of receiving property obtained by false pretences: 24 & 25 Vict. c. 96, s. 95. But he cannot be convicted under the indictment as it stands. Poland, for the Crown. The cashier had no power to part with the property in the note. Reg. v. Adams (3) is not in point, because there the person who parted with the goods was the owner himself. [BLACKBURN, J. The three cases which press most against you are Reg. v. Jackson (4), Reg. v. Barnes (1), and Reg. v. Essex. (2) Unless you can distinguish those cases, the present is decided by authority.] It is impossible almost to distinguish those cases, but there are several other cases at variance with them. This case must be decided by deciding between conflicting authorities. In Reg. v. Atkinson (5), cited for the prisoner, the delivery was by the owner. Reg. v. Jackson (4) is difficult to distinguish; but the question. in every case is, whether the person who parts with goods had authority to divest the owner of the property. [BOVILL, C.J. The cashiers of a bank are the only persons authorized to part with the money of the bank. They have full authority to decide on the genuineness of any signature presented to them, and, if they believe it genuine, to pay over money accordingly.] It is submitted that it makes no difference whether a cashier has to judge of a signature or not; at any rate, he has no authority to part with money improperly which is not his, but the bank's: Rex v. Longstreeth. (6) [BLACKBURN, J. There the servant had no authority to deal with the property in the goods, but merely with the possession.] A carrier, as a bailee, is responsible for property entrusted to him. Why should not his servant have the same extent of authority and the same discretion as a bank clerk? (1) 2 Den. C. C. 59. (2) Dears, & B. C. C. 371. (4) 1 Mood. C. C. 119. (5) 2 East, P. C. 673. |