PART VIII to pay money to a barrister has no binding effect. (Kennedy v. Broun, 32 L. J. C. P. 137.) As to a counsel's authority to bind his clients, see Swinfen v. Lord Chelmsford, 29 L. J. Ex. 382.

A statement of claim for damages set forth that the plaintiff, being returned for trial on a criminal charge, entered into a special contract with the defendant, who was a barrister and Queen's counsel, to defend at the trial, and attend on each day of the plaintiff's trial, and that the defendant was paid a special fee, larger than the ordinary fee or honorarium paid to counsel for so attending; yet that the defendant neglected to attend the trial after the first day thereof, by reason whereof the plaintiff was convicted, and suffered damage; on demurrer it was held that the statement of claim was bad, as no valid contract can be entered into between counsel and client (Robertson v. Macdonough, 14 Cox C. C. 469): et. per MAY, C. J., "we conceive that the true principal governing cases of this nature is laid down in the case of Kennedy v. Broun, 13 C. B. (N.s.) 677, namely, an advocate and his client are legally and mutually incapable of entering into contracts of hiring with respect to advocacy in litigation, and that this incapacity is reciprocal: no legal contract existing between the parties, neither can sue the other for breach of its supposed terms. Whether the advocate sues the client, as in Kennedy v. Broun, for non-payment of the promised fee, or the client sues the advocate for the non-performance of the promised advocacy, the same principal applies, and neither can succeed. The Court of Common Pleas, in the case referred to, considered that no distinction was created by express or specific contract or agreement between the parties, the principal laid down being absolute, and completely excluding any contract either express or implied between the parties. We entirely concur in that view. The rule we consider an absolute rule, and that it is wholly immaterial whether the fee or honorarium was named by the counsel or the client, or whether the duties were to be performed in an ordinary or an exceptional court."

Counsel are privileged in commenting fairly and bonâ fide on the circumstances of the case, and no action can be maintained against them for so doing. (Hodgson v. Scarlett, 1 B. & Ald. 232; Mackay v. Forde, 5 H. & N. 792; 29 L. J. Ex. 404.)

As to counsel being guilty of a contempt of court, see p. 277.

Rules for Interpretation of Criminal Statutes.

By 7 & 8 Geo. 4, c. 28, s. 14, "wherever this or any other statute relating to any offence, whether punishable upon indict

statutes.

ment or summary conviction, in describing or referring to the CHAP. offence or the subject matter on or with respect to which it XXXVI. shall be committed, or the offender or the party affected or Rules for intended to be affected by the offence, hath used or shall use interprewords importing the singular number or the masculine gender tation of only, yet the statute shall be understood to include several criminal matters as well as 1 matter, and several persons as well as 1 person, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction; and wherever any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate in every case where such body shall be the party aggrieved."

Definition of Time Act.

By 43 & 44 Vict. c. 9 (The Statutes Definition of Time Act, 1880), s. 1, "whenever any expression of time occurs in any Act of Parliament, deed, or other legal instrument, the time referred to shall, unless it is otherwise specifically stated, be held in the case of Great Britain to be Greenwich mean time, and in the case of Ireland, Dublin mean time."

Murder.

Murder has been defined to be the killing any person Definition under the Queen's peace with malice prepense or aforethought, of, &c. either express or implied by law.

Manslaughter is homicide, not under the influence of malice. It is an indictable offence for a person to attempt to kill himself.

Upon the trial of an indictment for murder the accused may be found guilty of manslaughter, because the latter offence is included in the indictment; but upon an indictment for manslaughter, the accused cannot be found guilty of murder, as such offence is not charged in the indictment -the words malice aforethought are not in it.

A British subject may be indicted in England for a murder committed in a foreign country. (Ante, p. 261).

Malice in its proper or legal sense is different from that Meaning sense which it bears in common speech. In common accep- of malice tation it signifies a degree of revenge or a settled anger against a particular person, but this is not the legal sense. Malice in its legal sense denotes a wrongful act done intentionally, without just cause or excuse. (1 Russ. on Crimes, by Prentice, p. 643 n.)

PART VIII

By a

partner.

The Criminal Code Commissioners state in their report, at p. 23, murder is culpable homicide by any act done with malice aforethought. Malice aforethought is a common name for all the following states of mind :-(a) An intent preceding the act to kill or to do serious bodily injury to the person killed or to any other person; (b) knowledge that the act done is likely to produce such consequences, whether coupled with an intention to produce them or not; (c) an intent to commit any felony; (d) an intent to resist an officer of justice in the execution of his duty. Whether (c) is too broadly stated or not is a question open to doubt, but Sir Michael Foster, perhaps the highest authority on the subject, says (p. 258) "A. shooteth at the poultry of B., and by accident killeth a man; if his intention was to steal the poultry, which must be collected from circumstances, it will be murder by reason of that felonious intent; but if it was done wantonly and without that intention, it will be barely manslaughter." The law as stated in (c) is most un

reasonable.

Larceny.

Larceny has been defined to be the wrongful or fraudulent taking and carrying away by any person of the mere personal goods of another, from any place, with a felonious intent, to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner. (2 Russ. on Crimes, 124.) But since this definition was given the law has been much altered; a bailee of goods may now be guilty of larceny (24 & 25 Vict. c. 96, s. 3), and so may a partner or joint owner. (31 & 32 Vict. c. 116.)

By 31 & 32 Vict. c. 116, after reciting it is expedient to provide for the better security of the property of co-partnership and other joint beneficial owners against offences by part owners thereof, and further to amend the law relating to embezzlement, it is enacted: Sect. 1. "If any person being a member of any co-partnership, or being one of two or more beneficial owners of any money, goods or effects. bills, notes, securities, or other property, shall steal or embezzle any such money, goods or effects, bills, notes, securities, or other property of or belonging to any such copartnership, or to such joint beneficial owners, every such person shall be liable to be dealt with, tried, convicted, and punished for the same as if such person had not been or was not a member of such co-partnership or one of such beneficial owners." (2 Russ. on Crimes, 239.)

By the 24 & 25 Vict. c. 96, s. 3, "Whosoever, being a bailee of any chattel, money, or valuable security, shall fraudulently take or convert the same to his own use or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be convicted thereof upon an indictment for larceny; but this section shall not extend to any offence punishable on summary conviction." (2 Russ. on Crimes 135.)

In general, a person who receives money on behalf of another does not thereby become a bailee of it, as he is not, in general, bound to pay over the particular money received. (2 Russ. on Crimes, 136.)

A person who receives a bill of exchange for the purpose of getting it discounted and handing the proceeds over to another, and instead of getting it discounted endorses it as his own to a creditor, in payment of his account, intending to pass the property in the bill absolutely to the creditor, is a bailee of a valuable security, and guilty of a fraudulent conversion of the same to his own use within the meaning of 24 & 25 Vict. c. 96, s. 3. (R. v. Oxenham, 46 L. J. M. C. 125.)

In Reg. v. Denmour, 8 Cox C. C. 440, the prisoners, who were husband and wife, were indicted for larceny as bailees of clothes. The prosecutrix had gone to their house, and they offered to take care of her clothes, and she accepted their offer. Two days afterwards she demanded her clothes, and it turned out that some of them had been sold and some pawned by the wife alone; and MARTIN, B., held that a wife could not be bailee, and directed an acquittal. It is submitted that this decision cannot be supported, and that a married woman may be a bailee within the meaning of the Act of Parliament. Bail, it is said, is derived from the French word bailler,-to put into the hand, to deliver up-no contract is necessary to constitute a person a bailee, and a married woman would be liable in a civil action for tort if she fraudulently and wrongfully converted to her own use goods given to her to take charge of. This point is one of importance as it often occurs in practice;-husband and wife are often indicted, and the latter often convicted, for fraudulently converting the furniture of furnished lodgings occupied by them. (See R. v. Robson, L. & C. 93.)

On an indictment for larceny as a bailee, it appeared that the prisoner borrowed a coat from the prosecutor, with whom he lodged, for a day, and returned it. Three days afterwards he took it without the prosecutor's permission,

CHAP.

XXXVI.

By a

bailee.

PART VIII and was seen wearing it by him, and he again gave him permission to wear it for the day. Some few days afterwards he left the town and was found wearing the coat on board a ship bound for Australia. MARTIN, B., stopped the case, stating that, in his opinion, there was no evidence of a conversion. (R. v. Jackson, 9 Cox C. C. 505.)

Difference between

and

possession.

This case in all probability is incorrectly reported. Surely, the fact of the man taking the coat on board a ship bound for Australia was evidence to go to the jury that he fraudulently took or converted the same to his own use. Would not such fact if there had been no bailment, have been evidence to prove that he stole the coat? Was there not evidence to show that the prisoner intended permanently to deprive the owner of his coat ? (See R. v. Weeks, 10 Cox C. C. 224.)

The law makes a difference between custody and possession, which it is still sometimes necessary to bear in mind— custody it is a pity that such nice distinctions exist in the criminal law. The rule of the common law is, that where a party has only the bare charge or custody of the goods of another, the legal possession remains in the owner; and the party may be guilty of larceny in fraudulently converting the same to his own use. And this rule applies in the case of a servant entrusted with goods in the possession of his master. Thus, if a servant be sent with a package of his master's goods for the purpose of delivering them to a customer, and he, instead of so doing, fraudulently appropriates them to his own use, he is guilty of larceny at common law, as the possession of the goods remained in the master at the time of the appropriation. (See 2 Russ. on Crimes, 310.)

Grand and petit larceny.

The

Larceny was, by the common law, divided into grand larceny and petit larceny. Grand larceny was, where the goods were above the value of 12d., and petit larceny, where the goods stolen were of the value of 12d. or under. nature of the offence was the same in both, but the punishment was different. The punishment of grand larceny (which was a clergyable felony) was death, but petit larceny was not so punished. The distinction between grand larceny and petit larceny was abolished by 7 & 8 Geo. 4, c. 29, s. 2;. and by the 24 & 25 Vict. c. 96, s. 2, every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the 21st day of June, 1827; and every court whose power as to the trial of larceny was before that time limited to petty