Taking as a legal term

The act of grasping a thing, with or without removing it.

TAKING

The act of seizing a thing, with or without removing it; a felonious taking is insufficient without a carrying away to establish larceny. And if the taking was lawful, no later act will turn it into a criminal. Taking might be either real or constructive. The former occurs when a thief steals the item in issue without any pretence of a contract.

A constructive felonious taking occurs when a thief gets felonious possession of things under the pretence of a contract, such as when under the pretence of hiring, he has a felonious purpose to convert the property to his own use at the time of the supposed contract. The court of criminal sessions for the city and county of Philadelphia ruled that in the case of a man who found a quantity of lumber, commonly known as a raft, floating on the Delaware River and fastened to the shore, and sold it to another person at such a low price as to enable the purchaser to remove it, and did no other act himself, but afterwards the purchaser removed it, that this was a taking by the thief, and he was actually convicted and sentenced to two years in prison According to Pothier, the person is guilty of stealing by selling and delivering what he knows does not belong to him.

When property is accidentally left with a person and he hides it animo furandi, he commits a felonious take and may be convicted of theft.

However, if the owner willingly part with the property under the agreement that he will never receive the style indentical property, the taking is not felonious; similarly, if a person delivered a sovereign to the defendant to have it changed, and the defendant never returned with the sovereign or the change, this was not larceny.

The improper taking of another’s personal property while it is in his real possession, or the taking of things from someone who has the right of immediate possession, entitles the tortfeasor to an action. Such improper taking, for example, will be proof of a conversion, and an action of trover may be maintained. In such a circumstance, trespass is a concurrent remedy. The unauthorised taking of a personal chattel may establish replevin.