Opinion of the Court, per GROVER, J.

had no title to or interest in them at that time. The exception to this finding presents the question in this court whether it was proved, by unconflicting evidence, that he had any title to the mortgages at that time. Upon this point the evidence showed that, at the time of the assignment by Blydenburg, Bingham had possession of the mortgages, and retained such possession down to the time of the trial; that he had advanced to and paid some money for Blydenburg, the amount of which was somewhat uncertain; that Blydenburg had assigned to him several other mortgages, amounting to a sum less than the money advanced and paid. This was the substance of all the evidence as to Bingham's title or interest in the mortgages. A chose in action may be sold or pledged without writing; and such sale, if otherwise valid, will give a title to the purchaser. But the question in the present case is whether the evidence proved a sale or pledge. The counsel for the appellant insists that proof of an advance of money by Bingham, coupled with proof of his possession of the mortgages, established the fact, either of a purchase of the mortgages by him or their pledge to him as a security for such money and cites Rockwell and others v. Hobby (2 Sandford's Ch.) in support of his position. In that case it was shown that the plaintiff's testator had advanced money to one who held a bond and mortgage against the defendant to its whole amount at defendant's request, which, without being assigned or discharged, were left in the hands of the attorney of the holder and party advancing the money, and was lost. The testator had, at the time of his death, in his possession the deed given to the defendant of the mortgaged premises. There was other evidence tending to show that it was the understanding of the defendant that the testator had a lien upon the mortgaged premises. Held that he was to be regarded as an equitable mortgagee of the premises to the amount of the money advanced. It will be seen that this was a much stronger case for the plaintiff than is that of the defendant, Bingham, in the present. The testator advanced the money, at the request of the defendant, to the holder of

Opinion of the Court, per GROVER, J.

a mortgage upon premises owned by her. The mortgage was not satisfied, and the testator had a right to require an assignment, and hold it as security for the money advanced. This would have been done in the natural course of transacting the business, of which the defendant could have had no ground of complaint. The holder of the mortgage might, in equity, have been compelled to execute an assignment to the testator. It is true that, in the opinion of the court, much weight is given to the possession of the title deed of the defendant by the testator; and cases are cited from the English equity courts, holding that possession of title deeds by a party, coupled with proof of an advance of money by him to the owner, is sufficient evidence to decree an equitable mortgage in favor of such party for the money advanced. In that country, a very common mode of securing a loan of money is by depositing the title deeds of the borrower with the lender for that purpose; and such deposit constitutes a mortgage in equity. But here mortgages are very rarely transferred by an agreement and delivery without writing; and, in the absence of written evidence, there is a presumption against any transfer. In the present case the assignment of the other mortgages by Blydenburg to Bingham shows that, in the transaction of this kind of business, they acted in conformity with the prevalent usage; that when it was their intention to transfer the title an assignment of the mortgages was executed. Under the evidence in this case no legal error was committed by the judge in his finding that Bingham had no title to the mortgages.

The judgment appealed from must be affirmed, with costs. All concur.

Judgment affirmed.

Statement of case.

CHARLES BROOKS, Plaintiff in Error, v. THE PEOPLE OF THE

STATE OF NEW YORK, Defendants in Error.

In order to constitute the crime of robbery in the first degree, as defined by the statute (2 Rev. Stat, 677, § 55), it is not necessary that the one from whose person or in whose presence the property is taken should be the actual owner thereof. As against the robber, he is the owner of all goods in his possession and custody, whereof he is robbed.

(Submitted May 3, 1872; decided May 21, 1872.)

ERROR to the General Term of the Supreme Court in the first judicial department, to review judgment affirming conviction of plaintiff in error of the crime of robbery in the first degree.

The plaintiff in error, together with one John Williamson, was convicted of robbery in the first degree, for taking certain articles of clothing in the presence of Margaret Purcell, against her will, and by putting her in fear of immediate injury. There were two counts in the indictment, one charging the goods to be the property of Margaret, the other that it was the property of John Purcell, her father.

Margaret Purcell was a child eleven years of age, the daughter of John and Sarah Ann Purcell. On the evening of the 7th of April, 1871, the parents left home to attend church, leaving the child Margaret the sole occupant of the apartments. Between nine and ten o'clock, and while the parents were absent, the defendants in the indictment came to the apartments, and while Williamson held a pistol to Margaret's head, threatening to blow her brains out if she moved, the plaintiff in error, Brooks, took from a trunk, in the presence and sight of Margaret, the property described in the indictment. The defendants each took a bundle of the property and left the house together. The child testified that she was in great fear.

The property taken was articles of clothing, etc., purchased by John Purcell for his wife.

Opinion of the Court, per PECKHAM, J.

William F. Kintsing for the plaintiff in error. The child in charge of the goods had no property in them, and, therefore, the evidence would not support the indictment. (Regina v. Green, 37 E. L. &. Q., Ct. of Crim. Aps; Rex v. Hutchinson, 1 Russ & Ryan; 2 East, P. C., 652, 653; Stat. 3 W. & M., chap. 9, § 1; Hite v. The State, 9 Yerger, 198; People v. Bennett, 37 N. Y., 117.) To constitute robbery, under the statute, the property must be taken from the person or in the presence of the owner. (3 R. S., 5th ed., 956.) The property was the separate property of the mother, and should have been laid as such. (Ackley v. Tarbox, 31 N. Y.) Where a person is convicted, and an indispensable element is wanting, there being no proof in the case of its existence, the court will review on writ of error, although no valid exception was taken. (McCann v. The People, 6 Parker's Cr. R., 629; Davis v. Spencer, 24 N. Y., 390; Hilliard on New Trials, 353, § 36.)

John R. Fellows for the defendants in error. A party in possession of a chattel is, to all intents, the legal owner, except as to the rightful owner, and especially as against any wrong-doer or criminal trespasser. (Rex v. Deakin, 2 Leach, 4th ed., 862; People v. Bennett, 37 N. Y., 117, and cases therein cited; State v. Addington, 1 Bailey, 310; 3 R. S., 5th ed., 956, § 57.) The age of the person in possession of the goods cannot be material. (People v. Kendall, 25 Wend.)

PECKHAM, J. The prisoner was indicted for robbery in the first degree, in feloniously taking property of complainant's daughter from her person by violence. The second count charged it to be the property of her father. The testimony showed that the girl's parents lived on the third floor of a house, and upon this occasion left the house in the girl's sole charge, and in their absence this robbery was committed by putting this girl in bodily fear.

Under the facts disclosed, the father, and not the mother, was the owner, though the things had been purchased with

Opinion of the Court, per PECKHAM, J.

his money for the mother. (Crane v. Williams 7 Gray, 337; McCormick v. Penn. Cen. R. R., Ante, p. 303.) It is insisted that the daughter is not the owner, and hence, the indictment cannot be sustained. The statute defines robbery in the first degree as follows: "Every person who shall be convicted of feloniously taking the personal property of another from his person or in his presence and against his will, by violence to his person, or by putting such person in fear of some immediate injury to his person, shall be adjudged guilty of robbery in the first degree." (2 R. S., 677, § 55.)

By reference to the notes of the revisors, it seems it was not their intention to alter the common law as to the ownership of the property taken. They say it is "defined according to 2 East, ch. 16, §§ 125, 129; the material ingredient in this offence being that it is done against the will, by violence or by fear of immediate injury." (5 R. S., Edm. ed., 548.) But there is nothing in the definition in East that requires the property taken to belong to the person robbed.

The elementary writers generally insert no such requirement. (1 Hale Pl. Cr., 532; 4 Blac. Com., 241; 2 Russ. on Cr., 4th ed., 98, p. in mar., 867; Hawk., 95, ch. 34.)

Lord CoкE defines it to be a "felonious taking away of a man's goods from his person; and it is called robbery because the goods are taken, as it were, de la robe. But sometimes it is taken in a larger sense." (Co. Litt., 288, a.)

This is not a careful definition, as it omits all idea of force or violence, or of putting in fear in the taking. The subject is not there discussed, and the definition is a simple definition of larceny from the person. By the common law, robbery is larceny from the person or in his presence, accompanied by violence or by putting in fear. (See the writers before cited; 1 Leach Cr., 4th ed., 195; Com. v. Clifford, 8 Cush., 215; 2 Russ. on Cr., 101, 4th ed.)

No case is referred to; and I have found none requiring that the property taken should belong to the person robbed.

On the contrary, in a late case, a prisoner was indicted for robbing one of another's property, and no objection on that