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.

ARTICLE 325.

THEFT BY TAKING ADVANTAGE OF A MISTAKE.

1 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 8l. 16s. 10d., which A takes away. This is theft.

1 R. v. Middleton, 1873, 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 R. v. Ashwell, 1885, 16 Q. B. D. 190, was reserved in consequence of the expression of doubt in the text. Keogh, meaning to lend Ashwell a shilling, put into his hand a coin which at the time each believed to be a shilling. It was a sovereign, and Ashwell found this out an hour afterwards and kept it. The question whether this was larceny or not was twice argued, the last time before fourteen judges, of whom I was one. Seven thought that it was, and seven that it was not larceny, and the result was that the conviction stood. In R. v. Flowers, 1886, 16 Q. B. D. 643, the facts of which appear to me not distinguishable from those in R. v. Ashwell, several of the judges who affirmed the conviction of Ashwell explained that they did not mean by that decision to throw doubt on the rule that an innocent taking succeeded by a fraudulent misappropriation is not larceny. R. v. Ashurell must therefore be regarded as at most an authority for a case precisely similar in all its circumstances, but even this is not clear. No doubt in R. v. Windsor, 1860, 8 H. L. Ca. 369, Lord Campbell treated R. v. Millis as an authority binding on the House, though it was decided in a case of equality of votes by the help of the maxim" præsumitur pro neganti"; but I doubt whether this would apply to R. v. Ashurell. The Court being equally divided no judgment

(2.) 1 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. If he does not discover the mistake at once, but subsequently, it is doubtful whether he commits theft or not.

(3.) 2 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.

3

(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 This is theft.

use.

ARTICLE 326.

THEFT BY BAILEES.

4 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.

5 This article applies to bailments to infants incapable of entering into a contract of bailment by reason of infancy

was given, and therefore the conviction was not quashed, but I do not see what more can be said. The maxim" præsumitur pro neganti," it might surely be argued, would apply, if at all, to the view which negatived Ashwell's guilt. For myself I doubt its application to the case. On the whole there is strong evidence of the correctness of my opinion that the matter is doubtful, and I have accordingly left my statement as it was.

1 Per eight Judges, in R. v. Middleton, 1827, C. C. R. at p. 45.

2 R. v. Mucklow, 1841, 1 Moo. C. C. 160; R. v. Davies, 1856, D. & P. 640.

3 Merry v. Green, 1841, 7 M. & W. 623. There was a question in this case whether the bureau was not sold with its contents. Cartwright v. Green, 1803, 8 Ves. 405, is also 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. This is also the view of Mr. Justice Cave in his judgment in R. v. Ashwell.

24 & 25 Vict. c. 96, s. 3. For an instance of this offence, see R. v. Oxenham, 1876, 46 L. J. (M. C.) 125. For a case in which it was doubtful whether or not there was evidence of a bailment, see R. v. De Banks, 1884, 13 Q. B. D. 29. See also R. v. Ashirell supra.

5 R. v. MacDonald, 1885, 15 Q. B. D. 323.

[and it is submitted to bailments upon a void, and perhaps upon an illegal, consideration].

ARTICLE 327.

BY AND FROM WHOM THEFT MAY BE COMMITTED.

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

1 Theft may be committed by a member of a 2 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.

4 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 (5 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 7 unless the person so assisting commits or intends to commit adultery with the woman, in which case he, but not she (5 unless she

1 31 & 32 Vict. c. 116, s. 1.

2 A co-partnership means an association for profit. A Christian Young Men's Society is not a co-partnership, though its members may be joint beneficial owners. R. v. Robson, 1885, 16 Q. B. D. 140.

3 Roscoe's Crim. Ev. 11th ed. 639. 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 Woman's Property Act 1882). See Article 311.

6 Harrison's Case, 1756, 2 East. P. C. 539.

7 R. v. Avery, 1859, Bell, 150.

8 R. v. Tolfree, 1829, Mood. 243; R. v. Thompson, 1850, 1 Den. 549; R. v. Tollett, 1841, Car. and Mar. 112; R. v. Featherstone, 1854, D. & P. 369; R. v. H. Mutters, 1865, 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 Woman's Property Act 45 and 46 Vict. c. 75, ss. 12, 16.

1

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 28. 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. 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.

A,

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

ARTICLE 328.

5 FINDING GOODS.

A finder of lost goods who converts them commits theft if at the time when he takes possession of them he intends

1 R. v. Fitch, 1857, D. & B. 187. 2 R. v. Avery, 1859, Bell, 153. consent in such a case would be no

I submit that the wife's presence and excuse. See the history of the growth of the doctrine in the note to R. v. Mutters.

3 R. v. Wilkinson, 1821, 2 Russ. Cr. 243, R. & R. 470.

4 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. 1, 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, 1861, L. & C. 77. The same point was decided, as to the property of a friendly society, in R. v. Burgess, 1863, L. & C. 299.

3 Hist. Cr. Law, 170.

to convert them, knowing who the owner is, or having reasonable grounds to believe that he can be found;

Such a conversion is not theft

(a.) if at the time when the finder takes possession of the goods he has not such knowledge or grounds of belie as aforesaid, although he acquires them after taking possession of the goods, and before resolving to convert them; or

(b.) if he does not intend to convert the goods at the time when he takes possession of them, whether he has such knowledge or grounds of belief or not at any time.

If the circumstances are such as to lead the finder reasonably to believe that the owner intended to abandon his property in the goods, the finder is not guilty of theft in converting them.

Illustrations.

(1.) A finds a bank-note, accidentally dropped on the floor of his shop. He picks it up, intending to keep it for himself, whoever the owner may be, believing at the time that the owner could be found. This is theft.

2

(2.) 2 A, a carpenter to whom a bureau was intrusted to mend, finds money in it, the existence of which was obviously unknown to the owner of the bureau. A appropriates the money. This is theft, as A knew to whom the bureau belonged.

(3.) 3 A finds iron in the bottom of a canal, from which the water has been let off, and appropriates it. This is theft, as the fact that the iron was in the canal raised a presumption that it had fallen from a canal boat and that therefore the canal company had a special property in it.

4

(4.) A finds a sovereign in the road, and picks it up, intending to keep it, whoever the owner may be, but not knowing who he is, and having no reason to believe he could be found. This is not theft.

(5.) 5 A finds a bank-note in the road, with no mark upon it, and no circumstance to indicate who is the owner, or that he

1 R. v. Moore, 1861, L. & C. 1.

2 Cartwright v. Green, 1803, 8 Ves. 405; see, too, Merry v. Green, 1841, 7 M. & W. 623.

3 R. v. Rowe, 1859, Bell, C. C. 93. This case was decided on the question of the possession of the canal company, but it illustrates the principle of finding also.

+ R. v. Glyde, 1868, 1 C. C. R. 139. 5 R. v. Thurborn, 1849, 1 Den. 387.