
    Commonwealth versus Israel Morse.
    The bailee of a sheriff, who has received of him personal chattels attached, and given an accountable receipt for the same, with a promise to redeliver them to the sheriff on demand, has no such property in such chattels as will support an indictment for the stealing thereof from such bailee, as his chattels.
    The defendant was indicted for stealing an ox, the property of which was alleged in the indictment to have been in one Cromwell Leonard.
    
    At the trial, which was had before Wilde, J., at the last October term in the county of Bristol, it was in evidence that the general property in the ox was in one Olive Morse ; that, the day before it was taken away by the defendant, it was attached by one of the deputy sheriffs of the county of Bristol as the property of the said Olive Morse, at the suit of the said Cromwell Leonard, and delivered by the deputy sheriff to the said Leonard, who gave to the deputy sheriff his receipt for the same, thereby promising to be accountable for the ox, and to redeliver the same on demand; and * that the ox was taken by the defendant from the said Leonard’s barn-yard.
    The judge instructed the jury that this was evidence of a special property in Leonard, sufficient to support the indictment; and they thereupon found him guilty. The judge ordered the cause to stand continued; that, if this direction to the jury should, in the opinion of the full Court, be deemed incorrect, the verdict might be set aside.
    
      Whitman, for the defendant,
    argued that Leonard had no property in the ox. The general property was in Olive Morse; the special property in the deputy sheriff. Judgment upon this indictment would be no bar to a prosecution for stealing the same ox from the general owner.
    
      The Solicitor-General
    
    said the indictment was pursuant to universal practice. He thought, too, that Leonard, having the lawful custody of the ox, and being answerable for its safe keeping, the verdict might be maintained.
   Parker, C. J.,

delivered the opinion of the Court. The indictment alleges that the article stolen was of the goods and chattels of Cromwell Leonard. The evidence proved that the only interest which Leonard had in it was derived from the custody which he had undertaken for a deputy sheriff, who had attached the ox as the property of Olive Morse. The question presented by the motion for a new trial is, whether the allegation in the indictment, of property in Leonard, is sufficiently maintained by this evidence.

That the allegation is material, has not been questioned ; and it appears by the books on criminal law, that in all indictments for larceny, the articles alleged to be stolen must be averred to be “ of the goods and chattels ” of the right owner, if known; or of the goods and chattels cujusdam ignoti, which form of indictment contains an implied averment that the owner is not known.

By the same books, it will appear that the averment will be made out by proving that the goods stolen *were either the general or special property of the person averred to be the owner. But the averment, being material, must be proved in order to support the indictment.

The only question, then, is, whether the report of the case by the judge shows that the ox stolen was of the goods and chattels, or, in other words, was the property, of Cromivell Leonard. It was not his property absolutely, for he had nothing but the possession, not claiming any title to it. The special property was in the deputy sheriff who made the attachment. There is no third species of property. Leonard, therefore, was the mere servant of the deputy sheriff, to keep the property attached for him; having no legal interest in it, and no right to maintain an action for it, if taken out of his custody, as was decided in the cases of Ludden vs. Leavitt, and Warren vs. Leland.

It follows that the evidence at the trial was not sufficient to support the indictment. The verdict must be set aside, and a new-trial granted, 
      
       2 H. H. P. C. 182. — Cro. Eliz. 490, Long’s case.
     
      
       9 Mass. Rep. 104.
     
      
      
        Ibid. 265.
     
      
      
         [The above decision is clearly wrong.— See the note to Ludden vs. Leavitt, 9 Mass. Rep. 4th ed. p. 102. — One may be guilty of larceny of his own goods from a bailee or servant; (2 Russ. Crim. Law, 155,156,157. — Rez vs. Bransbyy Russ, & Ry. 478. — Rex vs. Wilkinson, Russ. & Ry. 470;) and the indictment may allege the property to be in the servant or bailee.—2 Russ. 155, note (h). — 2 East. P. C. c. 16, § 90, p. 164. —Ed.]
     