possession in the common law - HiddenMysteries Information Central

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the realm. We conceive the better opinion to be that the prisoner in the first instance acquired possession as an
excusable trespasser. If this be so, and if it is too late (as we think it is) to argue that an excusable trespasser’s
possession cannot in any case become felonious, the conviction was right.
In a case decided not long afterwards 4 it appears to have been ruled by the Court below, as a general
proposition, that if a man receives property ‘innocently’ and afterwards fraudulently appropriates it, he
commits larceny. Such a ruling is clearly too wide. But it is extremely difficult to discover from the remarks
made by the members of the Court which quashed the conviction what they thought the proper ruling would
have been.
[111]C. In a weighty though not numerous series of modern decisions 1 it is laid down (and this against
innocent third parties) that property does not pass where a person fraudulently gets delivery of chattels as in
right of another person, either by pretending to be that person or by pretending to be authorised by him. The
result is the same whether the impostor pretends in his assumed character to make a contract with an owner in
possession, or pretends to a person holding the goods at the owner’s disposal that he is authorised under a
contract with the owner.
The case of a mistake of person being taken advantage of by a party who had not contrived or contributed
to it occurred in R. v. Middleton. 2 A post-office clerk, on the application of the prisoner, a depositor in the
post-office savings bank, to draw out ten shillings, referred by mistake to a letter of advice concerning some
other depositor and naming a much larger sum. That sum he counted out and laid down, and the prisoner, with
knowledge of the mistake and with intent to steal the money, took it and went away with it. This was decided
to be theft by eleven judges against four, and by seven of those eleven on the broad ground that even if the
clerk were deemed to be in the position of an owner, property or lawful possession did not pass by the
apparent delivery, and the prisoner took as a trespasser. 3
Others 4 upheld the conviction on the ground that the post-office clerk had not authority to pay this money
to the prisoner, and that no property could pass by the mistaken exercise of a supposed authority which did
not exist; one 5 concurred on the ground that there was not a complete [112] manual delivery to the prisoner at
all, but only a placing of the money within his reach, i.e. he was like a dishonest finder.
The dissenting minority, 1 for reasons which they expressed at length in separate judgments, held that there
was no trespass, but a receipt by delivery, the act being within the clerk’s general authority, and his consent
real though erroneous. 2
Here the true view seems to be that the clerk intended to part with the larger sum, but only to the person
showing title under the warrant for that sum; he handed the money to the prisoner as being that person and not
otherwise, and, as the prisoner was not that person, there was not and could not be any receipt according to his
intention. Thus there was no transfer of property or of lawful possession. 3 And so far the knowledge or
intention of the receiver is immaterial. Variations on this case may however occur of such a kind that the
receiver accepts in good faith that which was intended for another person; and then it might have to be
considered whether the true owner was not estopped as against the receiver, or, if not as against him, then as
against innocent purchasers from him. At worst the receiver’s possession would be excusable, as in the case
of mistake in the identity of the thing delivered.
There are two reported cases on misdelivery of post letters which have been thought inconsistent with R. v.
Middleton: 4 the letter was in each case delivered by a servant of the post-office to a person of equivocal or
closely similar name to his [113] for whom the letter was really intended. It was held that in the absence of
4 R. v. Flowers, 1886, 16 Q.B.D. 643. The facts of the case are, to the present writer, not distinguishable from those of Ashwell’s. Indeed they are stronger for a conviction,
for the handing over of a wrong sum of money (in a bag marked with the name of the person who ought to have got it) was the act, not of the owner, but of a clerk with
presumably limited authority, cp. R. v. Middleton, infra.
[111] 1 Kingsford v. Merry, Ex. Ch. 1856, 1 H.&N. 503, 26 L.J. Ex. 83; Hardman v. Booth, 1863, 1 H.&C. 803, 32 L.J. Ex. 105; Cundy v. Lindsay, 1878, 3 App. Ca. 459; see
too Higgons v. Burton, 1857,26 L.J. Ex. 342, and Ex parte Barnett, 1876, 3 Ch. D. 123.
2 1873, L.R. 2 C.C. 38.
3 Cockburn C.J. and Blackburn, Mellor, Lush, Grove, Denman, and Archibald JJ.
4 Bovill C.J. and Keating J., Kelly C.B.
5 Pigott B.
[112] 1 Martin B., Bramwell B., Brett J., Cleasby B.
2 The point was also taken (Cleasby B., at p. 72) that the prisoner was entitled to keep ten shillings out of the larger sum, and therefore did not steal any specific money. But
it was found as a fact that he took the whole animo furandi; what he ought to have done would be, in law, a return of the whole with a re-delivery brevi manu of ten shillings
in his proper right.
3 Hardman v. Booth (note 1, last page) seems really conclusive. It was not cited.
4 R. v. Mucklow, 1827,1 Moo. 160; R. v. Davis, 1856, Dears. 640, 25 L.J.M.C. 91.