Page:Harvard Law Review Volume 12.djvu/445

425 NOTES. 425 and to prevent a party suing from succeeding if part of his obligations are illegal when he must perform precedently. But in the principal case the obligation is at most in part valueless, and by the rules above con- sidered partial worthlessness is immaterial. Bishop v. Palmer, 146 Mass. 469. However, in the principal case the plaintiff's promise seems not conditional but independent, and, if so, its unenforceability, even if it amounted to illegality, would not vitiate the contract or invalidate the defendant's obligation. Tishell v. Gray, 31 Vroom, 5. To consider the final ground relied upon by the court: When a promise is unenforceable by the Statute of Frauds does failure of con- sideration result? A void promise would cause failure of consideration, but this promise is voidable only; the court is in error when it considers it essential to the liability of the party sought to be charged that there be mutuality of obligation. Justice v. Lang, 42 N. Y. 493. Consideration alone is requisite, and by the rules above discussed valid consideration is seen to exist in the present case. It seems, then, impossible to support the decision reached. Venue and Jurisdiction in Larceny. — It is everywhere the law that, where a thief steals property in one county and is found in another with the goods in his possession, he may be indicted in either, but not in both. State v. Williams, 47 S. W. Rep. 891 (Mo.), is no exception to this rule. The defendant stole a steer in Texas County and brought it with him into Pulaski County, where he was indicted for larceny. The court held that the venue was properly laid in Pulaski County on the ground that each transportation of the stolen property by the thief was a new caption. Though the reasoning of the court is questionable, it reaches a sound result. In different counties there is the same law and the same punishment. There is but one offence against a single sovereignty. Venue being a merely formal matter, a thief may be indicted for convenience sake in any county which he enters with the stolen property without prejudice to himself. The decision in the present case, then, may well have been reached without recourse to the fiction of continuing trespass, even if such a doctrine is sound. The principle of continuing larceny is truly tested when the thief is indicted in a jurisdiction into which he has carried goods stolen in an- other. The English courts have always disclaimed jurisdiction when the original taking was in another sovereignty. Regina v. Carr, 15 Cox C. C. 131 n. In the United States the authorites are divided. Commonwealth V. Holder, 9 Gray, 7, proceeding on the analogy of the rule adopted where property is stolen and carried from county to county, decides that the thief may be indicted in whatever State he enters with the goods. Lee V. State, 64 Ga. 203, declares, on the other hand, that there is but one oTence which exists only at the place where the original trespass occurred. Larceny is the taking and carrying away of the personal property of another animo furandi. The act of taking is the essence of the crime. It is evi- dent that, after possession is once complete and continuous in the thief, no subsequent act of his can constitute a new caption from the custody of the true owner. Yet the doctrine of Commonwealth v. Holder and kindred cases can rest on no other principle than that every act of posses- sion by the defendant, subsequent to the original change of custody, is