## Facts

- George Middleton had 11 shillings credited in a Post Office Savings Bank account and requested a withdrawal of 10 shillings.
- A postal clerk mistakenly placed £8 16s 10d on the counter, recorded that amount in Middleton’s depositor’s book, and stamped the book.
- Middleton took the entire sum and left.
- After the error was discovered, Middleton said he had burned his depositor’s book.
- The jury found that, at the moment he took the money, Middleton knew the sum exceeded what he was entitled to and knew the excess belonged to the Postmaster-General, and he intended to appropriate it.

## Issues

1. Whether knowingly taking and keeping an overpayment made by mistake, without fraud or trick to procure payment, can satisfy the “taking without consent” element of common-law larceny.
2. Whether the clerk’s voluntary delivery, made under a mistake as to amount, prevents a larceny conviction when the recipient forms felonious intent at the moment of receipt.

## Decision

- The Court for Crown Cases Reserved affirmed the larceny conviction.
- The court held that taking an overpayment, with knowledge of the mistake and intent to appropriate the excess at the moment of taking, constitutes larceny.
- The absence of fraud or misrepresentation by the recipient did not preclude larceny where the excess was taken with felonious intent.

## Legal Principles

- Common-law larceny requires a wrongful taking and carrying away of another’s personal property, without color of right, with intent to permanently deprive, and without the owner’s consent.
- An owner’s apparent consent to transfer can be treated as ineffective as to the excess when payment is made under a mistake of amount and the recipient knows of the mistake at receipt.
- Knowledge and intent must coincide with the taking: if the recipient knows the money is not his and intends to appropriate it when he takes it, the felonious taking is complete then.
- The case addresses mistaken overpayment rather than fraud-based obtaining; liability rests on exploiting a known mistake at the moment of taking.

## Conclusion

The court upheld Middleton’s larceny conviction because, although the money was voluntarily handed over by mistake, Middleton knowingly took the excess with intent to steal at the moment of receipt, making the taking of the excess “without consent” for purposes of common-law larceny.


R. v. Middleton, L.R. 2 C.C.R. 38 (C.C.C.R. 1873)