A.D. 1878. which savours of real property; all records and documents whatever, whether public or private; all animals (except wild animals in the enjoyment of their natural liberty, as to the stealing of which the law shall remain unaffected by this Act), fish in a state of confinement; and oysters and oyster brood in oyster beds, layings, 5 and fisheries sufficiently marked out as the property of any person; but it does not include anything under the value of one shilling which is part of, or fixed to, or growing out of the land, except trees, saplings, shrubs, and underwood cultivated for food for man or beast, or for medicine, or for distilling, or for dyeing, or for 10 or in the course of any manufacture, or growing in any garden, orchard, pleasure ground, or nursery ground, or within the curtilage of any dwelling house.

An intent to misappropriate is an intent unlawfully, fraudulently, and without any claim of right, founded either on a mistake of fact or on a mistake of law, to deprive the owner permanently of a thing capable of being stolen, by any of the means stated in the definitions herein-after contained of theft, criminal breach of trust, or 20 obtaining property by a false pretence.

The purpose of the offender as to the way in which the thing appropriated is to be disposed of is immaterial.

An intention that the owner shall under any circumstances whatever be permanently deprived of anything is an intention to mis- 25 appropriate within the meaning of this section, although it may be accompanied by an intention to restore the misappropriated property to the owner.

A person who consigns, deposits, transfers, or delivers anything which does not belong to him to any person other than the owner 30 by way of a pledge, lien, or security for advances made before or at the time when the security is given, or to be made afterwards, intends, within the meaning of this section, to deprive the owner permanently of the thing so dealt with although he may intend to redeem it at the time when he so deals with it; but he does 35 not intend to do so fraudulently or without a claim of right if at the time of giving the security he was a factor or agent for the owner of the goods, and if the amount for which he gave the security did not exceed the amount which was or which he honestly believed to be due to him from his principal together with the amount of any 40 bill of exchange drawn upon him by or on account of the principal.

SECTION 189.

THEFT DEFINED.

Theft is-

The act of taking with intent to misappropriate, and without the 5 consent of the owner, or with his consent in the case herein-after specified, anything capable of being stolen of which the offender is not in possession when he takes it, whether any other person is or is not in possession of it.

The act of taking is complete as soon as the thing taken is either 10 caused to move by the offender or touched with intent to move it by any part of his body or by any instrument.

Taking with the consent of the owner is a taking within the meaning of this section, if the owner's consent thereto is obtained by fraud, and if the owner intended to transfer the possession only 15 of the thing taken.

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Every person who is in possession of or who has the custody of anything is for the purposes of this section the owner of that thing as against every person who cannot show a better title to the possession of it.

Everyone who destroys, cancels, or obliterates any document for any fraudulent purpose steals that document.

Everyone who kills any animal or bird with intent to steal the carcase, skin, plumage, or any part of the animal or bird, steals that animal or bird.

SECTION 190.

CRIMINAL BREACH OF TRUST DEFINED.

Criminal breach of trust is the act of converting to the use of the offender or any other person with intent to misappropriate, anything of which at the time of such conversion the offender is 30 in possession, or of which he has the custody on account of another person, such conversion being made without the consent of that person, or with his consent obtained by fraud.

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SECTION 191.

POSSESSION ON ACCOUNT OF ANOTHER.

Everyone is in possession or has the custody of a thing on account of another person within the meaning of the last section, when he is the bailee of that thing for that person, or if it is his duty to keep it for any person, or to give it, or to account for it, or for the

A.D. 1878.

A.D. 1878. proceeds or any part of the proceeds of it, or to transfer it, or the proceeds or any part of the proceeds of it, to any person, or to dispose of it in any manner whatever for any person or according to any person's directions, or if it is the proceeds or part of the proceeds of anything, or was taken in exchange for or made out of 5 anything with respect to which he was under any such obligation.

The word "proceeds" in this section includes coins and all negotiable instruments and valuable securities used as coin received in exchange for other coins, negotiable instruments, and valuable securities, whatever number of such exchanges may have taken place 10 between the receipt of the first-mentioned and the receipt of the last-mentioned coins, negotiable instruments, or valuable securities.

A person who by reason of the fact that he has received any coin, negotiable instrument, or valuable security, is under a legal obligation to pay or give either that coin, negotiable instrument, or valuable 15 security, or some other coin, negotiable instrument, or valuable security, either of the same or of a different value, to some other person, and who omits to give to that person both the first and the secondly mentioned coin, negotiable instrument, or valuable security, may commit a criminal breach of trust by such omission, although 20 the first-mentioned coin, negotiable instrument, or valuable security may have been his own property, as against the person to whom he was under the obligation aforesaid.

Every person who as a trustee, whether solely or jointly with any other person, is in possession of anything capable of being stolen, 25 is in possession of it within the meaning of the last section on account of the person who then is or afterwards is to be beneficially interested therein, whether such person is in existence or not.

Provided that no vendor of anything not paid for in whole or in part, and left in his possession or under his control by the pur- 30 chaser, shall be deemed to be in possession thereof on account of the purchaser within the meaning of the last section, only because the property therein has passed to the purchaser.

Every person who is in possession of any document of title giving him power over any property for any person is in possession of the 35 property over which such document of title gives him such power within the meaning of this section.

Every director, member, or public officer of any body corporate or public company who has the possession, custody, or control over any of the property of such body corporate or public company is 40 in possession thereof on account of such body corporate or company within the meaning of this section.

SECTION 192.

OBTAINING PROPERTY BY FALSE PRETENCES.

Obtaining property by a false pretence is obtaining, with intent to misappropriate it, anything capable of being stolen from any person 5 by persuading him to transfer such property as he may have in it to the offender, or to any other person, by a false pretence that some fact exists or existed which does not or did not in truth exist. Provided that it is not an obtaining of property by false pretences to persuade any person to transfer his proprietary rights in such pro10 perty, either by a promise not intended to be performed, or by such untrue commendation or depreciation of a thing to be sold as is usual between sellers and buyers.

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SECTION 193.

FRAUDULENT MISAPPROPRIATION DEFINED.

Every one who commits theft or criminal breach of trust, or who obtains property by any false pretence, is guilty of an indictable offence called fraudulent misappropriation, punishable in the manner herein-after provided for.

SECTION 194.

SAVING AS TO CERTAIN OFFENCES.

No one who commits any offence herein-after specifically defined shall be deemed to have committed fraudulent misappropriation thereby, although such act may fall within the definition of that offence herein-before contained.

FRAUDULENT MISAPPROPRIATION BY GENERAL OWNERS, CORPORATORS,
CO-OWNERS, OR TRUSTEES.

The general owner of a thing in which another person has a special property, a person having a special property in a thing of which 30 another is the general owner, any one of several joint owners or copartowners of a thing, and a person having the legal estate in anything in which another person is beneficially interested may commit the offence of fraudulent misappropriation in respect of that thing and as against the special owner, the general owner, the other joint- • 35 owners or co-partowners, or the person beneficially interested respectively, by dealing with it in such a way and with such an intent as would amount to that offence if the offender had no interest in the thing.

A.D. 1878.

AD. 187 8.

SECTION 196.

HUSBAND AND WIFE.

No act done by a husband or wife with reference to the property of his wife or her husband shall be fraudulent misappropriation, but every person shall be deemed to commit fraudulent misappropriation 5 who knowingly assists any wife or husband in dealing with any property of her husband or his wife in a manner which would amount to that offence if the parties were not married, or who knowingly receives from either any property so dealt with.

A person who finds and misappropriates lost property does not misappropriate it fraudulently if at the time of such misappropriation he believes in good faith and on reasonable grounds, either that the owner of the property cannot be found without an amount of trouble 15 or expense out of proportion to the value of the property, or that the owner intended to abandon his proprietary rights therein.

SECTION 198.

RULE OF EVIDENCE.

When a person is charged with criminal breach of trust in respect 20 of property for which he was bound from time to time to account to the owner, and when it is proved that he has accounted for a smaller quantity of property than he was accountable for, he may, if he fails to account for the missing property, be convicted if it is proved that he must have fraudulently misappropriated some property, although 25 there is no evidence of his having fraudulently misappropriated any particular thing.

SECTION 199.

PUNISHMENT OF FRAUDULENT MISAPPROPRIATION.

Everyone who commits fraudulent misappropriation shall be guilty 30 of an indictable offence, and shall upon conviction thereof be liable to the following punishments; that is to say,

(a.) Every such offender shall be liable to penal servitude for life if the thing misappropriated is alone or together with other things misappropriated at the same time worth £500 or upwards,

Or if it is the will, codicil, or other testamentary instrument relating to any kind of property whatever, of any person, either living or dead. (b.) Every such offender shall be liable to penal servitude for fourteen years—

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If the thing misappropriated is alone or together with other things 40 misappropriated at the same time worth £100 or upwards, but not worth £500, or