occasionally produce failure of justice in cases in which the statutory exception is not quite co-extensive with the common law rule. These rules we propose to abolish absolutely."-Imp. Comm. Rep.

ANIMALS CAPABLE OF BEING STOLEN.

304. All tame living creatures, whether tame by nature or wild by nature and tamed, shall be capable of being stolen; but tame pigeons shall be capable of being stolen so long only as they are in a dovecote or on their owner's land.

2. All living creatures wild by nature, such as are not commonly found in a condition of natural liberty in Canada, shall, if kept in a state of confinement, be capable of being stolen, not only while they are so confined but after they have escaped from confinement.

3. All other living creatures wild by nature shall, if kept in a state of confinement, be capable of being stolen so long as they remain in confinement or are being actually pursued after escaping therefrom, but no longer.

4. A wild living creature shall be deemed to be in a state of confinement so long as it is in a den, cage or small inclosure, stye or tank, or is otherwise so situated that it cannot escape and that its owner can take possession of it at pleasure.

5. Oysters and oyster brood shall be capable of being stolen when in oyster beds, layings, and fisheries which are the property of any person, and sufficiently marked out or known as such property.

6. Wild creatures in the enjoyment of their natural liberty shall not be capable of being stolen, nor shall the taking of their dead bodies by, or by the orders of, the person who killed them before they are reduced into actual possession by the owner of the land on which they died, be deemed to be theft. 7. Every thing produced by or forming part of any living creature capable of being stolen, shall be capable of being stolen.

As to the stealing of pigeons when away from their owner's land, see post, s. 333.

As to stealing oysters, see post s. 334.

"As to animals, one rule of the existing law is founded on the principle that to steal animals used for food or labour is a crime worthy of death, but that to steal animals kept for pleasure or curiosity is only a civil wrong. The principle has long since been practically abandoned. Sheep stealing is no longer a capital crime, and dog stealing is a statutory offence; but the distinction still gives its form to the law, and occasionally produces results of a very undesirable kind. It has been lately held, for instance, that as a dog is not the subject of larceny at common law, it is not a crime to obtain by false pretenses two CRIM. LAW-22

valuable pointers: R. v. Robinson, Bell, 84. It seems to us that this rule is quite unreasonable, and that all animals which are the subject of property should also be the subject of larceny. This, however, suggests the question, what wild animals are the subject of property, and how long do they continue to be so? This question must be considered in reference to living animals feræ naturæ in the enjoyment of their natural liberty; living animals feræ naturæ escaped from captivity; and pigeons which, singularly enough, form a class by themselves. The existing law upon this subject, is that a wild living animal in the enjoyment of its natural liberty is not the subject of property; but that when dead it becomes the property of the person on whose land it dies, in such a sense that he is entitled to take it from a trespasser, but not in such a sense that the person who took it away, on killing it, is guilty of theft. This is specially important in reference to game. This state of the law we do not propose to alter. As to living animals fera natura in captivity, we think they ought to be capable of being stolen.

"When such an animal escapes from captivity, a distinction appears to us to arise which deserves recognition. If the animal is one which is commonly found in a wild state in this country it seems reasonable that on its escape it should cease to be property.

"A person seeing such an animal in a field may have no reasonable grounds for supposing that it had just escaped from captivity.

"If, however, a man were to fall in with an animal imported as a curiosity, at great expense, from the interior of Africa, he could hardly fail to know that it had escaped from some person to whom it would probably have a considerable money value. We think that a wild animal should, on escaping from confinement, still be the subject of larceny, unless it be one commonly found wild in this country."-Imp. Comm. Rep.

DEFINITION OF THEFT.

305. Theft or stealing is the act of fraudulently and without colour of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen, with intent

(a) to deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest; or

(b) to pledge the same or deposit it as security; or

(c) to part with it under a condition as to its return which the person parting with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time of such taking and conversion.

2. The taking or conversion may be fraudulent, although effected without secrecy or attempt at concealment.

3. It is immaterial whether the thing converted was taken for the purpose of conversion, or whether it was, at the time of the conversion, in the lawful possession of the person converting.

4. Theft is committed when the offender moves the thing or causes it to move or to be moved, or begins to cause it to become moveable, with intent to steal it.

5. Provided, that no factor or agent shall be guilty of theft by pledging or giving a lien on any goods or document of title to goods intrusted to him for the purpose of sale or otherwise, for any sum of money not greater than the amount due to him from his principal at the time of pledging or giving a lien on the same, together with the amount of any bill of exchange accepted by him for or on account of his principal.

6. Provided, that if any servant, contrary to the orders of his master, takes from his possession any food for the purpose of giving the same or having the same given to any horse or other animal belonging to or in the possession of his master, the servant so offending shall not, by reason thereof, be guilty of theft. R. S. C. c. 164, s. 63.

The words in italics "fraudulently and without colour of right, converting to the use of any person," have the effect of abolishing the distinction between embezzlement and larceny. By that definition the gist of the offence of theft is now a fraudulent conversion, and not an unlawful taking : 3 Stephen's Hist. 166. The word "temporarily" is new, and was not in the English draft. It may have been inserted so as to include the enactment of s. 85 R. S. C. c. 164, but is nevertheless wrong. S-s. 6 (new) is a partial re-enactment of 26 & 27 V. c. 103, (Imp.), by which the case of R. v. Mortit, R. & R. 307, is not now law in England.

"Technicalities of more importance connected with the taking are those which have led to the distinction between theft and embezzlement. The immediate consequence of the doctrine that a wrongful taking is of the essence of theft is, that if a person obtains possession of a thing innocently, and afterwards. fraudulently misappropriates it, he is guilty of no offence. This doctrine has been qualified by a number of statutory exceptions,

each of which has been attended with difficulties of its own. We have therefore defined theft in such a manner as to put wrongful taking and all other means of fraudulent misappropriation on the same footing. The definition properly expounded and qualified will, we think, be found to embrace every act which in common language would be regarded as theft, and it will avoid all the technicalities referred to as arising out of the common law rules, as well as out of the intricate and somewhat arbitrary legislation on the subject.

"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 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 ss. 249, 250 & 251 (ss. 308, 309, 310, post). It is essential to all of these offences that there should be the animus furandi, that guilty intention which makes the difference between a trespass and a theft."-Imp. Comm. Rep.

THEFT OF THINGS UNDER Seizure.

306. 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. Punishment, s. 356, post.

The words "and whether with or without force and violence" were in the repealed clause.

Bishop, 2 Cr. L. 790, says: "If one, therefore, has transferred to another a special property in goods, retaining in himself the general ownership, or, if the law has made such transfer, he commits larceny by taking them with felonious intent."

So if a man steal his goods in custodia legis. But "if the goods stolen were the general property of the defendant, who took them from the possession of one to whose care they had been committed, as, for instance, from an officer seizing them on an execution against the defendant, it must be shown that the latter knew of the execution and seizure;

otherwise the required intent does not appear. The presumption, in the absence of such knowledge, would be, that he took the goods, supposing he had the right so to do": 2 Bishop, Cr. Proc. 749.

Section 212, c. 32, R. S. C. contains an enactment in a similar sense as to goods seized by the customs officers.

KILLING ANIMALS TO STEAL CARCASES, ETC.

307. 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. R. S. C. c. 164, s. 8. (Amended). 24-25 V. c. 96, s. 11. (Imp.).

Punishment, s. 356, post.

The repealed section applied to "animals" instead of "living creatures."

Indictment.

one sheep of the goods

and chattels of I. N. unlawfully did steal.

Cutting off part of a sheep, in this instance the leg, while it is alive, with intent to steal it, will support an indictment for killing with intent to steal, if the cutting off must occasion the sheep's death: R. v. Clay, R. & R. 387.

So on the trial of an indictment for killing a ewe with intent to steal the carcase, it appeared that the prisoner wounded the ewe by cutting her throat, and was then interrupted by the prosecutor, and the ewe died of the wounds two days after. It was found by the jury who convicted the prisoner that he intended to steal the carcase of the ewe. The court held the conviction right: R. v. Sutton, 8 C. & P. 291. It is immaterial whether the intent was to steal the whole or part only of the carcase: R. v. Williams, 1 Moo. 107.

Any one killing cattle with intent to steal the carcase, should be indicted under s. 499, post.

THEFT BY AGENT.

308. 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