master would come into possession of the horse or the plate as soon as his servant received it from the dealer or the silversmith, just as he remains in possession of the horse or the plate when he gives the custody of it to his groom or his butler. I should also have thought that the servant who appropriated his master's property to his own use, after receiving it from another on his master's account, was, for all purposes, in precisely the same position as the servant who did the same thing after receiving it from his master. The Courts, however, decided otherwise. They have held on many occasions that, though the master's possession continues when he gives the custody of a thing to his servant, it does not begin when the servant receives anything on account of his master; on the contrary, the servant has the possession, as distinguished from the custody, until he does some act which vests the possession in his master, though it may leave the custody in himself. If during that interval he appropriates the thing, he commits embezzlement. If afterwards, theft. The most pointed illustration of this singular doctrine which can be given occurs in the case of R. v. Reed. (1) B. sent. A. his servant, with a cart to fetch coals. A. put the coals into the cart, and on the way home sold some of them and kept the money. A. was convicted of larceny, and the question was whether he ought to have been convicted of embezzlement. It was held that the conviction was right, because though A. had the custody of the cart all along, yet the possession of it and its contents was in B., and though A. had the possession of the coals whilst he was carrying them to the cart, that possession was reduced to a mere custody when they were deposited in the cart, so that A.'s offence was larceny, and not embezzlement, which it would have been if he had misappropriated the coals before they were put into the cart.

The technicalities on this subject appear to me to be altogether superfluous; and I think they might be easily dispensed with, by re-defining the offence of theft, or even by removing the distinction between theft, embezzlement, and false pretences." (2)

306. Theft of Things under Seizure.-Every one commits theft and steals the thing taken or carried away who, whether pretending to be the owner or not, secretly or openly, takes or carries away, or causes to be taken or carried away, without lawful authority, any property under lawful seizure and detention. R.S.C., c. 164, s. 50.

307. Theft of Animals.—Every one commits theft, and steals the creature killed who kills any living creature capable of being stolen with intent to steal the carcase, skin, plumage or any part of such

creature.

Offences against article 306 are punishable under article 356, post, which enacts that the punishment, for stealing in cases in which no punishment is otherwise provided, shall be seven years imprisonment; and ten years if the offender has been previously convicted of theft.

The stealing of cattle is punishable, under article 331, post, by fourteen years imprisonment; and, according to article 307, the same punishment will apply to any one killing cattle with intent to steal the carcase etc, thereof; and the stealing of dogs, birds and domestic animals, etc., will be punishable under article 332, post.

Article 499, clause (B), post, makes it an indictable offence, punishable by fourteen years imprisonment, to wilfully destroy or damage any cattle by killing, maiming, poisoning or wounding.

See remarks under articles 331, and 332, post.

(1) R. v Reed, Dears. 257,

(2) Steph. Dig. Art. 281, and note; Bur. Dig. 531 et seq.

308. Theft by Agent.-Every one commits theft who, having received any money or valuable security or other thing whatsoever, on terms requiring him to account for or pay the same, or the proceeds thereof, or any part of such proceeds, to any other person, though not requiring him to deliver over in specie the identical money, valuable security or other thing received, fraudulently converts the same to his own use, or fraudulently omits to account for or pay the same or any part thereof, or to account for or pay such proceeds or any part thereof, which he was required to account for or pay as aforesaid.

2. Provided, that if it be part of the said terms that the money or other thing received, or the proceeds thereof, shall form an item in a debtor and creditor account between the person receiving the same and the person to whom he is to account for or pay the same, and that such last mentioned person shall rely only on the personal liability of the other as his debtor in respect thereof, the proper entry of such money or proceeds, or any part thereof, in such account, shall be a sufficient accounting for the money or proceeds, or part thereof so entered, and in such case no fraudulent conversion of the amount accounted for shall be deemed to have taken place.

Article 3 (cc) ante defines valuable security as being or including any order exchequer acquittance or other security entitling or evidencing the title of any person to any share or interest in any public stock or fund, or Company's stock or fund etc., [British, foreign, or colonial,] or to any deposit in any savings bank or other bank, and any debenture, deed, bond, bill, note, warrant, order or other security for money or for payment of money, etc., [British foreign or colonial.] and any document of title to land or goods as herein before defined wheresoever such lands or goods are situate, and any stamp or writing which secures or evidences title to or interest in any chattel personal, or any release, receipt, discharge or other instrument, evidencing payment of money, or the delivery of any chattel personal.

309. Theft by holder of power of attorney. -Every one commits theft who, being entrusted, either solely or jointly with any other person, with any power of attorney for the sale, mortgage, pledge or other disposition of any property, real or personal, whether capable of being stolen or not, fraudulently sells, mortgages, pledges or otherwise disposes of the same or any part thereof or fraudulently converts the proceeds of any sale, mortgage, pledge or other disposition of such property, or any part of such proceeds, to some purpose other than that for which he was intrusted with such power of attorney. R.S.C., c. 164, s. 62.

Offences against articles 308, 309 and 310, are punishable by fourteen years, imprisonment under article 320, post; and article 357, post, provides that when, in cases of theft, the value of the article exceeds $200, two years shall be added to the term of imprisonment.

310. Theft by misappropriating proceeds held under direction-— Every one commits theft who, having received, either solely or jointly with any other person, any money or valuable security or any power of attorney for the sale of any property, real or personal, with a direction that such money, or any part thereof, or the proceeds, or

any part of the proceeds of such security, or such property, shall be applied to any purpose or paid to any person specified in such direction, in violation of good faith and contrary to such direction, fraudulently applies to any other purpose or pays to any other person such money or proceeds, or any part thereof.

2. Provided, that where the person receiving such money, security or power of attorney, and the person from whom he receives it, deal with each other on such terms that all money paid to the former would, in the absence of any such direction, be properly treated as an item in a debtor and creditor account between them, this section shall not apply unless such direction is in writing.

Article 3 (v.) defines property as being or including:

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(i.) every kind of real and personal property, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods;

(ii.) not only such property as was originally in the possession or under the control of any person, but also any property into or for which the same has been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise;

(iii.) any postal card, postage stamp or other stamp issued or prepared for issue by the authority of the Parliament of Canada, or of the legislature of any province of Canada, for the payment to the Crown or any corporate body of any fee,, rate or duty, and whether still in the possession of the Crown or of any person or corporation; and such postal card or stamp shall be held to be a chattel, and to be equal in value to the amount of the postage, rate or duty expressed on its face in words or figures or both."

The above articles 308, 309 and 310 are explained by the English Commissioners as follows:

"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 general 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)

We have seen that the distinction between theft and embezzlement is dropped, and that all fraudulent misappropriations of property and breaches of trust are treated as various forms of theft by conversion.

Thefts by clerks, servants, bank, government, and municipal officials, and other employees are punishable, under article 319, post, by fourteen years imprisonment; and criminal breaches of trust by trustees are punishable, under article 363, post, with seven years imprisonment.

The English Commissioners have, opposite to the section corresponding with the above article 310, a marginal reference to the cases of R. v. Cooper, and R. v. Tatlock, which are two out of a number of decisions shewing the necessity for the new provisions of law contained in the three foregoing articles,

In Cooper's case the defendant appears to have been indicted under the 75 and 76 sections of the Imperial Statute 24 & 25 Vict. c. 96. Sec 75 of that act enacts that "whosoever having been entrusted (etc.) as a banker, merchant,

(1) Articles, 308, 309 and 310, of this Code are the equivalents of sections 249, 250 and 251 of the English Draft Code.

broker, attorney, or other agent, with any money or security for the payment of money, with any direction in writing to apply, pay or deliver such money or security, or any part thereof respectively, or the proceeds or any part of the proceeds of such security, for any purpose, or to any person specified in such direction, shall,-in violation of good faith and contrary to the terms of such direction,-in anywise convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, such money, security or proceeds, or any part thereof respectively; and whosoever, having been intrusted, (etc.), as a banker, (etc.), with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, etc.,) without any authority to sell, negotiate, transfer or pledge shall,-in violation of good faith, and contrary to the object or purpose for which such chattel, security or power of attorney shall have been intrusted to him,-sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit or the use or benefit of any person other than the person by whom he shall have been so intrusted, such chattel, (etc.), shall be guilty of a misdemeanor, etc.; "And section 76 enacts that, "whosoever being a banker, merchant, broker, attorney or agent, and being intrusted, either solely or jointly with any other person, with the property of any other person for safe custody, shall, with intent to defraud, sell, negotiate, transfer, pledge or in any manner convert or appropriate the same, or any part thereof, to or for his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, shall be guilty of a misdemeanor," etc.

It appears that the defendant was an attorney, who was employed to raise money on security of property, and, having found a mortgagee willing to make the loan, he prepared the mortgage deed, got it executed by the mortgagor, obtained the money from, and handed over the deed to the mortgagee. He then paid over, to the mortgagor, a portion only of the money, and fraudulently converted the rest of it to his own use. Held,-upon these facts,-that as the defendant was not entrusted with the deed or the money, for safe custody, and, as there was no direction in writing to apply the proceeds of the mortgage deed, and, as the deed could not be said to have been transferred in violation of good faith and contrary to the object or purpose for which it was entrusted to him, the defendant did not come within the 75 and 76 sections of 24-25 Vic., c. 96. (1)

In Tatlock's case, the defendant was indicted, under the second clause of sec. 75 of 24 and 25 Vic., c. 96, for that, being entrusted as a broker with valuable securities for a special purpose, without authority to sell negociate, transfer or pledge them, he unlawfully and contrary to the purpose for which the securities were entrusted, converted to his own use a portion of the proceeds.

It appears that the defendant was an insurance broker, and, as such, had effected, for the prosecutor, some insurances on a ship; that, the ship having been lost, the prosecutor sent the policies and other documents, necessary to recover from the insurers the amount of the loss, to the defendant, who subsequently, on two different days, received cheques for the amounts of two policies; that the cheques were payable to the defendant's order, and he paid them into his own bank, to his own credit. The defendant did not pay over to the prosecutor any of the money so received by him, but gave various excuses for not doing so; and he afterwards filed a petition, for liquidation of his own affairs, in bankruptcy; his balance at his bankers, being then much less than the amount received by him on the policies. The defendant was convicted on these facts; but it was held that the conviction was wrong, on the following grounds:by Cockburn, C. J., on the ground, that, even assuming that the defendant could have been properly convicted if there had been evidence that he received the moneys with the intention of embezzling them, he could not at any rate be convicted in the absence of such evidence and in the absence of any finding to that effect; by Kelly, C. B., and Pollock, B., on the ground that in the absence

(1) R. v. Cooper, L. R., 2 C. C. R. 123; 43 L. J. (M. C.) 89.

of evidence of the previous course of dealing between the parties and of what the duty of the prisoner was as to handing over or accounting for the money received, the conviction could not be upheld; and by Bramwell, Amphlett and Field, J. J., on the ground that the second branch of the 24 and 25 Vic., c. 96, sec. 75, applied only to the case of an agent, who,-being entrusted with securities, without authority to obtain money upon them,-wrongfully appropriates the securities, or wrongfully obtains money upon them and appropriates the money. (1)

These sections 75 and 76 of the above mentioned Imperial statute,-which are the same in effect as secs. 60 and 61, R. S. C. c. 164 (now repealed),-relate expressly to bankers, merchants, brokers, attorneys, and agents; and to bring an offender within the provisions thereof it appears, according to the above cases, to have been necessary, that in connection with one of the clauses, there must have been a dealing with the entrusted money, etc., against the terms of some written direction, that in relation to another clause there must have been a selling, etc., without any authority to do so, and that in regard to the third clause the entrusted money must have been delivered to the banker, etc., for safe custody, in the absence of the essentials necessary to convict under the other clauses.

The law is now framed, in articles 308, 309 and 310, so as to apply not only to bankers, merchants, brokers, attorneys and agents, but to all persons whomsoever, and so that it shall not be essential (especially in connection with articles 308 and 310) that the direction, if any, should be in writing, nor that the conversion or other wrongful dealing must in order to be theft, be against some direction in writing; but that if there is no direction in writing it shall be sufficient to shew that the conversion or other wrongful dealing was against a verbal direction.

311. Theft by owners, co-owners, partners, etc.-Theft may be committed by the owner of anything capable of being stolen against a person having a special property or interest therein, or by a person having a special property or interest therein against the owner thereof, or by a lessee against his reversioner, or by one of several joint owners, tenants in common, or partners of or in any such thing against the other persons interested therein, or by the directors, public officers or members of a public company, or body corporate, or of an unincorporated body or society associated together for any lawful purpose, against such public company or body corporate or unincorporated body or society. R.SC., c. 164, s. 58.

See article 356, post, as to punishment.

312. Concealing gold or silver with intent to defraud partner in mining claim.—Every one commits theft who, with intent to defraud his co-partner, co-adventurer, joint tenant or tenant in common, in any mining claim, or in any share or interest in any such claim, secretly keeps back or conceals any gold or silver found in or upon or taken from such claim. R.S.C., c. 164, s. 31.

See article 354, post, as to punishment.

See article 571, post, which authorizes the issuing of search warrants to search for gold, etc, alleged to be concealed.

(1) R. v. Tatlock, 2 Q. B. D., 157; 46 L. J. (M. C.) 7. See also, R. v. White, 4 C. & P. 46; R. v. Newman, 8 Q. B. D. 706; 51 L. J. (M. C.), 87; R. v. Cosser, 13 Cox, 187; R. v. Brownlow, 14 Cox, C. C. R. 216; R. v. Bredin, 15 Cox, 412; R. V.

Portugal, 16 Q. B. D. 487; R. v. Berthiaume, 10 L. N. 365.