TAKING, crim. torts. The act of laying hold upon an article, with or without removing the same; a felonious taking is not sufficient without a carrying away, to constitute the crime of larceny. (q. v.) And when the taking has been legal, no subsequent act will make it a crime. 1 Moody, Cr. Cas. 160.
2. The taking is either actual or constructive. The former is when the thief takes, without any pretence of a contract, the property in question.
3. A constructive felonious taking occurs when, under pretence of a contract, the thief obtains the felonious possession of goods; as, when under the pretence of hiring, he had a felonious intention at the time of the pretended contract, to convert the property to his own use. The court of criminal sessions for the city and county of Philadelphia have decided that in the case of a man who found a quantity of lumber, commonly called a raft, floating on the river Delaware and fastened to the shore, and sold it, to another person, at so low a price. as to enable the purchaser to remove it, and did no other act himself, but afterwards the purchaser removed it, that thls was a taking by the thief, and he was actually convicted and sentenced to two years imprisonment in the penitentiary. Hill's case, Aug. Sessions, 1838. It cannot be doubted, says Pothier, Contr. de Vente, n. 271, that by selling and delivering a thing which he knows does not belong to him, the party is guilty of theft.
4. When property is left through inadvertence with a person and he conceals it animo furandi, he is guilty of a felonious taking and may be convicted of larceny. 17 Wend. 460.
5. But when the owner parts with the property willingly, under an agreement that he is never to receive the style indentical property, the taking is not felonious; as, when a person delivered to the defendant a sovereign to get it changed, and the defendant never returned either with the sovereign or the change, this was not larceny. 9 C. & P. 741. See 1 Moody, C. C. 179; Id. 185; 1 Hill. R. 94; 2 Bos. & P. 508; 2 East, P. C. 554; 1 Hawk. c. 33, s. 8; 1 Hale, P. C. 507; 3 Inst. 408; and Carrying away; Finder; Invito Domino; Larceny; Robbery.
6. The wrongful taking of the personal property of another, when in his actual possession, or such taking of the goods of another who, has the right of immediate possession, subject the tort feasor to an action. For example, such wrongful taking will be evidence of a conversion, and an action of trover may be maintained. 2 Saund. 47, h. t.; 3 Willes, 55. Trespass is a concurrent remedy in such a case. 3 Wils. 336. Replevin may be supported by the unlawful taking of a personal chattel. 1 Chit. Pl. 158. Vide Bouv. Inst. Index, h. t.