(14.) A cuts down timber or growing crops and carries them away immediately. This is not theft at common law though it is by statute.

(15.) 2A, a poacher, kills a number of rabbits, hides them in a ditch on the ground of the owner of the soil on which they were killed, and returns several hours afterwards and carries them away, having all along intended to do so at his convenience. This is not theft.

Theft may be committed by converting, without the consent of the owner, anything of which the offender has received the custody as the servant of the owner, or in order that the thing may be used by the offender for some special temporary purpose in the presence or under the immediate control of the owner or his servant.

3 When a clerk, or servant, or person employed in the capacity of a clerk or servant, converts anything received by him from another person for his master or employer, he is deemed to have stolen it, but his offence is commonly called embezzlement, and is distinguished from theft for the purposes and in the manner mentioned in Chapter XXXVI.

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Illustrations.

·(1.) A carter converts to his own use a cart which he is driving for his master. He commits theft.

(2.) 5 A is employed by B to take pigs to C to be looked at, and to bring them back to B, whether C wishes to buy them or not. A sells the pigs to some one else, and keeps the money. This is theft.

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(3.) A sheriff's officer, in possession of goods under a writ of fi. fa., sells part of them. This is theft, as such a person is in the position of a

servant.

(4.) A guest at a tavern carries off a piece of plate set before him to drink from. This is theft, because A had only a permission to use the plate for a special limited purpose.

1 See authorities collected 2 Russ. Cr. (5th ed.) 209-10.

2 R. v. Townley, L. R. 1 C. C. R. 315.

3 See Chapter xxxvi.

4 Robinson's Case, 2 East, P. C. 565.

5 R. v. Harvey, 9 C. & P. 353.

Rushall's Case, 2 Russ. Cr, 382.

71 Hale, P. C. 506.

ARTICLE 298.

THEFT BY A FALSE PRETENCE.

Theft may be committed by fraudulently obtaining from the owner a transfer of the possession of a thing, the owner intending to reserve to himself his property therein, and the offender intending, at the time when the possession is obtained, to convert the thing without the owner's consent to such conversion.

Illustrations.

(1.) 1 A fraudulently persuades B to allow A to take two silver ewers to shew to A's master, to choose one if he pleased. A sells the ewers and keeps the money. This is theft.

(2.) 2 A, by pretending to be B, fraudulently obtains B's goods from C, a carrier, to whom they were entrusted by B. This is theft, as the carrier transferred the possession only.

(3.) A fraudulently bargains with B for the purchase by A of goods for ready money, and fraudulently induces B to let A have the goods, pretending that he is then about to pay B the price. A then takes away the goods, and does not pay the price. This is theft, as in such cases the purchaser does not mean to transfer the property till the money is paid.

(4.) A fraudulently obtains goods and money from a shopkeeper by pretending to give him diamonds for them. This is not theft, as the shopkeeper means to transfer the property in the goods.

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(5.) A fraudulently induces B to give her ten sovereigns to conjure with, promising to bring back the ten sovereigns and 1707., to which A says B is entitled. A carries off the ten sovereigns. If the ten sovereigns were to be returned, this is theft. If not, it is not theft, but is obtaining money by false pretences.

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(6.) A, B's wife, by a forged order gets money standing to B's credit at B's bankers. This is not theft from the bankers, as the cashier had a general authority to part with the banker's money, and meant to do so.

1 R. v. Davenport, 2 Russ. Cr. 201.

R. v. Longsheith, 2 Russ. Cr. 203; R. & M. 137. There are a great number of other cases to the same effect. R. v. Mackall, e.g., L. R. 1 C. C. R. 125. 3 Four cases to this effect are stated in 2 Russ. Cr. 209-11.

R. v. Bunce, 1 F. & F. 523.

pretences.

5 R. v. Bunce, 1 F. & F. 523.

The offence would be obtaining goods by false

R. v. Prince, L. R. 1 C. C. R. 154.

ARTICLE 299.

THEFT BY TAKING ADVANTAGE OF A MISTAKE.

Theft may be committed by converting property which the general or special owner has given to the offender under a mistake which the offender has not caused, but which he knows to be such at the time when it is made, and of which he fraudulently takes advantage.

But it is doubtful whether it is theft fraudulently to convert property given to the person converting it under a mistake of which that person was not aware when he received it.

1

Illustrations.

(1.) A having to receive ten shillings from a post-office savings bank, produces to the clerk a warrant for that amount. The clerk referring by mistake to another letter of advice, puts on the counter 87. 16s. 10d., which A takes away. This is theft.

(2.) 2 A gives a cabman a sovereign for a shilling. The cabman, seeing that it is a sovereign, keeps it. This is theft of the sovereign.

(3.) A receives a letter containing a cheque. The letter is addressed, and the cheque is payable, to another person of the same name as A. A receives the letter innocently, but, on discovering the mistake made, converts the cheque to his own use. This is not theft.

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(4.) A buys a bureau at a public auction, and finds in it property not intended to be sold, which he converts to his own use. This is theft.

1 R. v. Middleton, L. R. 2 C. C. R. 38. Perhaps "by knowingly accepting with intent to convert" would be a more accurate way of expressing the effect of this

case.

2 Per eight Judges, in R. v. Middleton, L. R. 2 C. C. R. at p. 45.

3 R. v. Mucklow, 1 Mood. C. C. 160; R. v. Davies, Dear. 640.

Merry v. Green, 7 M. & W. 623. There was a question in this case whether the bureau was not sold with its contents. Cartwright v. Green, 8 Ves. 405, is almost precisely similar. I am unable to distinguish these cases from those on which Illustration (3) is founded. It is remarkable that in the judgments, and apparently in the argument (which is not reported), in R. v. Middleton, no notice is taken of any of these cases, nor are the cases about the bureaus referred to in R. v. Davies, which was decided, without argument, solely on the authority of R. v. Mucklow. Cartwright v. Green is not referred to in R. v. Mucklow, which was decided before Merry v. Green. Merry v. Green does not refer to R. v. Mucklow. The result is that the cases appear to contradict each other.

ARTICLE 300.

THEFT BY BAILEES.

1 Theft may be committed by the conversion by a bailee of the thing bailed, but this does not extend to any offence. punishable on summary conviction.

ARTICLE 301.

BY AND FROM WHOM THEFT MAY BE COMMITTED.

Theft may be committed by a general owner to the prejudice of a special owner upon a chattel in which both general and special ownership exist.

2 Theft may be committed by a member of a co-partnership, or by one of two or more beneficial owners of any money, goods, effects, bills, notes, securities, or other property, to the prejudice of the other co-partners or beneficial

Owners,

3 Theft may be committed by a member of a corporation to the prejudice of that corporation upon a thing which is the property of the corporation.

A married woman cannot (5 so long as she lives with her husband) commit theft upon things belonging to her husband. If any other person assists a married woman ( living with her husband) in dealing with things belonging to her husband in a manner which would amount to theft in the case of other persons, such dealing is not theft unless the person so assisting commits or intends to commit adultery with the woman, in which case he, but not she, 5 (unless she

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124 & 25 Vict. c. 96, s. 4. For a recent instance of this offence, see R. v. Oxenham, 46 L. J. (M. C.) 125.

231 & 32 Vict. c. 116, s. 1.

3 Roscoe's Crim. Ev. 8th ed. 652. This is Mr. Roscoe's inference from Hale, P. C. 513, and appears to be correct.

41 Hale, P. C. 514.

5 These parentheses seem to be required since 45 & 46 Vict. c. 75, s. 12 (The Married Women's Property Act, 1882). See Article 285A.

6 Harrison's Case, 2 East. P. C. 539.

7 R. v. Avery, Bell, 150.

R. v. Tolfree, Mood. 243; R. v. Thompson, 1 Den. 549; R. v. Tollett, Car. &

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intends to desert her husband) commits theft. But this exception does not apply to the case of an adulterer or person intending to commit adultery, who assists a married woman to carry away her own wearing apparel only from her husband.

2 It is doubtful whether the mere presence and consent of a married woman on an occasion when some person deals with her husband's goods in a way which would otherwise amount to theft excuses such person if he acts as a principal in the matter, and not as her assistant.

Illustrations.

(1.) A bails goods to B for exportation, upon which A would become entitled to an exemption from a duty on the goods of 2s. 6d. a pound. B gives a bond to the Crown for exportation, and sends the goods in his barge to a ship to be exported. A, to get the goods duty free, takes them from B's barge. A has stolen the goods from B, and it seems it would have been larceny if no bond had been given by B.

(2.) A gives his servant goods to carry to a certain place. A then disgutses himself and robs his servant in order to charge the hundred with the robbery. This is robbery.

A finder of lost goods who converts them commits theft,

Mar. 112; R. v. Featherstone, Dear. 369; R. v. H. Mutters, L. & C. 511. A note to this case, 516-19, collects and reviews all the authorities on the subject. These cases were all decided before the Married Women's Property Act, 45 & 46 Vict. c. 75, ss. 12, 16.

1 R. v. Fitch, D. & B. 187.

2 R. v. Avery, Bell, C. C. 153. I submit that the wife's presence and consent in such a case would be no excuse. See the history of the growth of the doctrine in

the note to R. v. Mutters.

3 R. v. Wilkinson, 2 Russ. Cr. 286.

Foster, 123-4. I have not met with any case in which a man has been convicted of theft for stealing a pledge (his own property) from a pawnbroker; but no doubt such an act would be theft. Before 31 & 32 Vict. c. 116, s. 2, a case occurred in which a part owner was convicted of stealing money from another part owner, in whose special custody it was, and who was solely responsible for its safety, the money being the property of a co-operative store: R. v. Webster, L. & C. 77. The same point was decided, as to the property of a friendly society, in R. v. Burgess, L. & C. 299.

53 Hist. Cr. Law, 170.