interpreted as creating a new offence distinct from ordinary theft; and a great number of cases involving considerations technical and subtle to the last degree have been decided on various points connected with it; and it was found necessary for the legislature to interfere further in order to prevent many failures of justice.

"Clerks and servants, however, formed only one class of persons who had opportunities of committing breaches of trust for which the common law provided no punishment. Bankers, merchants, brokers, solicitors, factors and other agents might and did commit similar offences; and another great exception in the rule of the common law was made to include such cases.

"These enactments are elaborate and intricate, and present special difficulties of their own. The existing law will be found in 24-25 Vict., c. 96. ss. 75 and following. (1) The first Act on the subject was passed in the reign of George III.

"The case of bailees, singularly enough, remained unprovided for after the rest and a carrier stealing a parcel entrusted to him for carriage committed no crime till the fraudulent conversion of chattels, money and valuable securities by bailees was made larceny, by 20-21 Vict., c. 54. (See now 24-25 Vict., c. 96, s. 3.) (2)

The common law rule,-though thus nearly eaten up by exceptions, still survives as to all persons who come innocently into possession of the property of others, otherwise than as clerks, servants, bankers, merchants, brokers, solicitors, factors, and other agents and bailees. The case of the finder of goods, already referred to, furnishes an instance.

"This state of the law is, obviously, most objectionable, not only on account of its extreme intricacy and technicality, but also because the numerous.exceptions made to the common law rule are inconsistent with the principle on which that rule depends.

"We have therefore defined theft in such a manner as to put wrongful taking and all other means of fraudulent misappropriation on the same footing.

"The definition, properly expounded and qualified, will, we think, be found to embrace every act which, in common language, would be regarded as theft, and it will avoid all the technicalities referred to as arising out of the common law rules, as well as out of the intricate and somewhat arbitrary legislation, the course of which we have sketched above.

"The provisions of the Bill on this subject differed considerably,in language, from those of the Draft Code; but they were framed with the same objects, and would have effected the same objects in another way. The Bill treated theft, criminal breach of trust, and obtaining money by false pretences as three ways of committing one· offence termed 'fraudulent misappropriation.' 'These were so defined

(1) R.S.C. c. 164, ss. 59-76. (2) R.S.C. c. 164, s. 4.

that they would have covered the same ground as theft, false pretences and criminal breach of trust as defined by the Draft Code; but many things, which, according to the Draft Code, are theft, would according to the Bill have been criminal breaches of trust.

"The Draft Code defines the offence of obtaining property by false pretences substantially in accordance with the present law, and criminal breach of trust' is retained as a distinct offence. The other cases of 'fraudulent misappropriation' are denominated 'theft.'

C

"The crimes of obtaining goods, money, or credit by false pretences, and of criminal breach of trust are, in point of mischief and moral guilt, much the same as theft, but, from their nature they require separate clauses to define them.

"The crime of embezzlement, wherever the subject matter of it is a chattel or other thing which is to be handed over in specie, will come within the definition of theft; but where the subject matter is not to be handed over in specie, but may be accounted for by handing over an equivalent, it requires separate provisions, which will be found in sections 249, 250, and 251. (1)

"It is essential to all these offences that there should be the animus furandi,-that guilty intention which makes the difference between a trespass and a theft." Eng. Commrs' Rep.

305. Theft Defined.-Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent

(a.) to deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; or

(b.) to pledge the same or deposit it as security; or

(c.) to part with it under a condition as to its return which the person parting with it may be unable to perform; or

(d.) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking and conversion.

2. The taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment.

3. It is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person converting.

4. Theft is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it.

5. Provided, that no factor or agent shall be guilty of theft by

(!) The equivalents of these sections 249. 250, and 251, of the English Draft Code are articles 308, 309, and 310, post.

pledging or giving a lien on any goods or document of title to goods. intrusted to him for the purpose of sale or otherwise, for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving a lien on the same, together with the amount of any bill of exchange accepted by him for or on account of his principal.

6. Provided, that if any servant, contrary to the orders of his master, takes from his possession any food for the purpose of giving the same or having the same given to any horse or other animal belonging to or in the possession of his master, the servant so offending shall not, by reason thereof, be guilty of theft. R.S.C., c. 164, s. 66.

The phrase "without color of right," forming part of the above definition of theft, seems to be intended to take the place of the word feloniously which in connection with the definition of larceny is usually said to mean "without color of right." (1)

From the definition itself, and from the explanations given by the Royal Commissioners in their report upon the subject, it will be seen, that, theft is no longer restricted to what, under the common law, constituted the offence of stealing or larceny,-the principal ingredient which was as we have seen the physical asportation or taking or carrying away of personal property out of the possession and against the will of the owner,-but that it is extended to and inade to cover all other means of fraudulent misappropriation; so, that, theft, as a general term, will now include every thing and every act amounting to larceny under the common law, as one of the different ways in which the offence of theft may be committed. But whether the act be a taking of the thing out of the owner's possession or a conversion of it while in the offender's lawful possession, the essence of the offence will still be the intent with which the act is done. For instance, if A. were to place his horse and cart opposite to B's door, and B., not wishing to have them there. were to lay hold of the horse and lead it away, and leave it and the cart at a short distance from where it originally stood, there would be a taking by B. of the horse and cart into his temporary possession, but no conversion and no intent to deprive A. of his property, B's intent being merely to remove the horse and cart from opposite to B's door, (where they were in A's possession), to another place away from B's door, where they still remain in A's possession.

If the sheep of A. stray into the flock of B., and B. not knowing it, drive them home along with his own flock, and shear them, this is no theft; but it would be otherwise if B. did any act for the purpose of concealing the sheep of A.; for that would indicate that he knew them to be the sheep of another. (2)

If, under color of having a claim for arrears of rent, A. distrains the cattle of B. his tenant, this may amount to a civil wrong,-a trespass, for instance under the common law of England as to civil matters,- bu no theft. (3)

If A. having done work upon an article, returns it to B. the owner, and then, on a dispute arising between them as to the price to be paid for the work, A. takes and carries off the article against B's will, honestly intending to hold it as security for the amount which is alleged to be due to him, this is no theft, although in fact it turn out that there was nothing due to him. (4) The facts in that case were these; A. had been instructed by B's wife to repair an umbrella. After the repairs were finished, and it had been returned to B's wife, a dispute arose as to the bargain made. A. thereupon carried away the umbrella as

(1) R. v. Thurborn, 1 Den. 388; 2 C. & K. 831; 18 L. J. (M. C.) 140; R. ·v Guernsey, 1 F. & F. 394.

(2) Hale, 506.

(3) 1 Hale, 509.

(4) R. v. Wade, 11 Cox 549.

security for the amount alleged by him to be due for repairing it. Blackburn, J., left it to the jury to say whether the taking was an honest assertion of right, or only a colorable pretence to obtain possession of the umbrella. Verdict, not guilty.

A. and B. took two horses out of C's stable at night without his leave, and, having ridden them a distance of about thirty miles, left them at an inn desiring care to be taken of them and saying that they should return in three hours, A. and B. were taken the same day at a distance of fourteen miles from the inn walking in a direction from it. The jury returned a verdict of guilty, but at the same time found specially that A. and B. meant merely to ride the horses the thirty miles and to leave them there without an intention to return them or otherwise dispose of them. Ten of the judges held that this was no larceny as there was no intention in the prisoners to change the property or make it their own. (1)

Where the servant of a tanner took out of his master's warehouse dressed skins of leather with intent to bring them in and charge them as his own work (which they were not), and to get paid by the master for them, it was held no larceny. (2)

A., was supplied by B., his master with pig iron to put into a furnace to be melted, he, A., being paid according to the weight of the metal which ran out of the furnace into bars. A., put in other iron belonging to B., whereby the weight of the melted iron being thus increased he gained a larger remuneration. Held, that if A., did this with the felonious intent of converting the iron to a purpose for his own profit it was larceny. (3)

A., took away goods belonging to B., a young woman for the mere purpose of inducing her to call upon him for them, so that he might have an opportunity of soliciting her to commit fornication with him. Held not to be a felonious taking. (4)

Where a person stole some goods and also took a horse, to enable him to get off more conveniently with the goods but not to steal it, it was held not to be a felonious stealing of the horse. (5)

A., met B., whom A., knew to be a poacher and seized him; B., being rescued, seized A's gun and ran away with it, and was subsequently heard to say that he would sell it, and the gun was never afterwards heard of. Vaughan B., upon an indictment for stealing the gun told the jury that it would not be larceny if B., took the gun under an impression then on his mind that it might be used by A., so as to endanger his B's life, and not with an intention of disposing of it, although he might afterwards have determined to dispose of it. The jury found that B., had no intention to dispose of the gun at the time he took it, and acquitted him. (6) This would now be theft by conversion under the above article 305.

A., to screen B., an accomplice who was indicted for horse stealing broke into C's stable where the horse was and took it away and backed it into a coal-pit and killed it. It was contended at the trial that this was not larceny because the taking was not with an intention to convert the horse to the use of the taker, A., animo furandi et lucri causá. A majority of seven judges held it to be larceny, and six of that majority were of opinion that to constitute larceny it was not essential that the property should be taken lucri causá, if it be fraudulent and with intent to wholly deprive the owner of the property; but

(1) R. v. Philips, 2 East P. C. 662, 663.

(2) R. v. Holloway 1 Den. 370; 2 C. & K. 942; 18 L. J. (M. C.) 60; R. v. Poole Dears. & B. 345; 27 L. J. (M. C.) 53. (3) R. v. Richards, 1 C. & K. 532. (4) R. v. Dickinson, R. & R. 420. (5) R. v. Crump, 1 C. & P. 658. (6) R. V. Holloway 5 C. P. 524.

some of the majority even thought that the object A., had in view was a benefit, and that therefore the taking was lucri causá. (1)

The prisoners, who were farm servants, opened the granary of their master by means of a false key, and took thereout two bushels of beans to give to their master's horses, in addition to the quantity usually allowed. This was held by a majority of the judges to be larceny it was said by some of the judges that the additional quantity of beans would diminish the work of the men who had to look after the horses, and that, therefore, the lucri causá, to give themselves ease, was an ingredient in the offence. (2) Cases of this kind are now expressly excepted: it being declared by subsection 6 of the above article 305 that if any servant, against his master's orders, takes from the master's possession any food to give to any of the master's horses or other animals such servant shall be guilty of no offence.

The Imperial Statute, 26 and 27 Vict., c. 103, s. 1, enacts in effect that, if any servant contrary to his master's orders gives any food belonging to the master to any of the master's horses or other animals, the servant shall not be guilty of felony, but shall be liable to summary conviction and three months imprisonment or a fine not exceeding £5.

Under subsection 4 of article 305 theft by taking is committed as soon as the offender moves the thing, or causes it to move or to be moved, or begins to cause it to become movable, with intent to steal it.

This is somewhat similar, though perhaps a little wider, than the common law rule under which a bare removal of the thing was sufficient to make it larceny. (3) For instance, if a man were leading another's horse out of a field and were apprehended while doing so, or if a guest stealing goods in an inn had removed them from his chamber downstairs, it was, under the common law, a sufficient taking to constitute larceny. (4)

Where a thief intending to steal some plate took it out of a chest in which it was and laid it down upon the floor, but was surprised before he could make off with it, it was held a sufficient taking: (5) and where, with the intention of stealing a cask of wine, the thief removed it from the head to the tail of the wagon upon which it lay, it was also held sufficient. (6)

A. drew a book from B's inside pocket, so that the book was about an inch from the top of the pocket, when B. suddenly put up his hand, upon which, while the book was still about B's person, A. let go his hold of the book and it fell back into B's pocket. Held. a sufficient asportation to constitute larceny. (7)

The transfer, by a letter-carrier, of a letter from his pouch to his pocket was held a sufficient asportation. (8)

Where the thief was unable to carry off the goods on account of their being attached by a string on the counter, (9) or to carry off a purse on account of some keys attached to the strings of it getting entangled in the owner's pocket,(10) it was held in these cases that there was not a sufficient carrying away to constitute larceny, but that to render the asportation complete in such cases

(1) R. v. Cabbage, R. & R. 292

(2) R. v. Morlitt, R. & R. 307; See R. v. Gruncell, 9 C. & P. 365; R. v. Handley C. & Mar. 547; R. v. Privett, 1 Den. 193; 2 C. & K. 114.

(3) 4 Bl. Com. 231.

(4) 3 Inst. 108, 109.

(5) R. v. Simpson, Kel. 31; 1 Hawk., c. 33, s. 25.

(6) R. v. Walsh, 1 Moo. C. C. 14

(7) R. v. Thompson, 1 Moo C. C. 78.

(8) R. v. Poynton, L. & C 247; 32 L. J. (M. C.) 29.

(9) Anon, 2 East, P. C. 556.

(10) R. v. Wilkinson, 1 Hale, 508.