170 THEFT AND EEMOVAL OP ANIMALS. 



with by the owner in the beginning. So, it has been held 

 that where a man hired to drive cattle sells them, it is larceny, 

 he being a servant, though a general drover.^® But doubt 

 was thrown on this case in a later one, where it was held that 

 a drover of pigs was a bailee and not a servant, and conse- 

 quently not guilty of larceny where his intent was subsequent 

 to the bailment.^® 



Taking a horse found astray upon the taker's land with the 

 intention of concealing it until the owner should offer a re- 

 ward and of then returning it for the sake of the reward, or 

 with the intention of inducing the owner to sell it astray for 

 less than its value, has been held to be larceny.^** The con- 

 trary has been held in Texas.^^ But in a later case it was 

 more correctly laid down that if the original intent was to 

 appropriate the animal if no reward was offered, then the 

 taking was larceny ; otherwise, if even in that event, the taker 

 intended finally to return the horse.^^ 



Where one furtively and fraudulently took a mule and killed 

 it for revenge and not for gain, he was held indictable for 

 larceny.^^ The doctrine of lucri causa is one, however, which 

 it is out of place to discuss here on general grounds.^* 



Where the taking of the animal is in good faith, even 

 though wrongful, this is not larceny. Thus, where the seller 

 of a horse recovered possession of it on the failure of the pur- 

 chaser to pay, title being contingent on payment, and the 

 latter re-took the animal in the night, believing he was en- 

 titled to do so, this was held not to be larceny f^ so, where one 

 openly took an unbranded yearling under claim that the 



" Rex V. McNamee, i M. C. C. 368. And see Reg. v. Jackson, 2 id. 32. 



'' Reg. V. Hey, T. & M. 209. 



'° Com. V. Mason, 105 Mass. 163, citing Reg. v. O'Donnell, 7 Cox. 



c. c. 337. 



'^ Micheaux v. State, 30 Tex. App. 660. 



'^ Dunn V. State, 34 Tex. Cr. 257. 



'' Warden v. State, 60 Miss. 638. And see Delk v. State, 64 id. 77. 



" See Whart. Crim. Law §§ 895, etc. 



" State V. Thompson, 95 N. C. 596. 



