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. R. S. C. c. 164,, 8. 61, et seq. (Amended). 24-25 V. c. 96, s. 75 et seq. (Imp.).

"Valuable security" defined, R. 3; see post, under s. 310, and R. v. Barnett, 17 O. R. 649.

THEFT BY PERSON HOLDING POWER OF ATTORNEY.

309. Every one commits theft who, being intrusted, 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. (Amended). 24-25 V. c. 96, s. 77, (Imp.).

See under next section.

THEFT OF PROCEEDS UNDER DIRECTION.

310. 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. R. S. C. c. 164, s. 60. (Amended).

66

There is under this code no embezzlement" as a distinct offence: see Imp. Commissioners' Report under s. 305, p. 339, ante.

"Valuable security" defined, s. 3.

Punishment under three next preceding sections: ss. 320, 357, post. What was embezzlement is now theft purely and simply.

Under 8. 310 the direction need not be in writing (except as per proviso) as it was needed to be in s. 60 of the repealed statute. But the power of attorney mentioned in 8. 309 must be in writing: R. v. Chouinard, 4 Q. L. R. 220; and the power of attorney mentioned in s. 810 would have also to be in writing. As to who is an agent: see R. v. Cosser, 13 Cox, 187; R. v. Cronmire, 16 Cox, 42.

The indictment under these three sections may be drawn in the usual short form for simple theft but care must be taken at the trial that the evidence brings the facts within the statute: R. v. Haigh, 7 Cox, 403. Special indictments may be in the following forms:

that A. B. on

Indictment under s. 308.did receive from C. D., a sum of one thousand dollars, the property of the said C. D. on terms requiring him the said A. B. to pay the said sum of one thousand dollars to one M. N. and that the said A. B. afterwards, in violation of good faith and contrary to his obligation, fraudulently did convert the said sum to his own use and benefit and did thereby steal the same.

Indictment under s. 309.

that A. B. on

being intrusted by C. D. with a power of attorney for the sale of a certain piece of land having afterwards sold the same did fraudulently convert the proceeds of the said sale, to wit, the sum of to some purpose other than that for which he was intrusted with such power of attorney by unlawfully applying the said proceeds to his own use and benefit, and did thereby steal the said proceeds, to wit, the said sum of

that A. B. on

Indictment under s. 309.—did give a power of attorney and thereby intrust to C. D., one hundred bales of cotton, of the value of four thousand dollars, for the purpose of selling the same, and that the

said C. D. afterwards, contrary to and without the authority of the said A. B., for his own benefit, and in violation of good faith, unlawfully did deposit the said cotton with E. F. of as and by way of a pledge, lien and security, for a sum of money, to wit, four hundred dollars, by the said C. D., then borrowed and received of and from the said E. F., and that the said C. D. did thereby steal the said one hundred bales of cotton of the goods and chattels of the said A. B.

that A. B. on

Indictment under s. 310.— did intrust C. D. with a certain large sum of money, to wit, the sum of four hundred dollars, with a direction to the said C. D. to pay the said sum of money to a certain person specified in the said direction, and that the said C. D. afterwards, to wit, on in violation of good faith and contrary to the terms of such direction, fraudulently did convert to his own use and benefit the said sum of money so to him intrusted as aforesaid, and that the said C. D. thereby did steal the said money of the goods and chattels of the said A. B. (A count should be added stating particularly to whom the money was to be paid).

See R. v. Cooper, 12 Cox, 600; R. v. Tatlock, 13 Cox, 328; R. v. Fullagar, 14 Cox, 370; R. v. Brownlow, 14 Cox, 216; Ex parte Piot, 15 Cox, 208; R. v. Bowerman, 17 Cox, 151, (1891) 1 Q. B. 112, Warb. Lead. Cas. 177: Ex parte Bellencoutre, 17 Cox, 253, [1891] 2 Q. B. 122.

The changes in the law introduced by this code must not be lost sight of in the reference to these cases. All criminal breaches of common law trusts are now either theft under the preceding sections, or punishable under s. 363, post, and the distinctions of larceny by bailees, or embezzlements or frauds by agents, bankers, factors, attornies, etc., are superseded. The imperfections in the English law alluded to by the Judges in Ex parte Bellencoutre, 17 Cox, 253, [1891] 2 Q. B. 122, have now been removed in Canada.

THEFT BY CO-OWNER.

311. 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. S. C. c. 164, s. 58. (Amended). 31-32 V. c. 116, s. 1, (Imp.).

See R. v. Robson, Warb. Lead. Cas. 139.

Indictment.

that on

at

Thomas Butterworth, of was a member of a certain co-partnership, to wit, a certain co-partnership carrying on the business of and trading as waste dealer, and which said. co-partnership was constituted and consisted of the said Thomas Butterworth and of John Joseph Lee, trading as aforesaid; and, thereupon, the said Thomas Butterworth, at aforesaid, during the continuance of the said co-partnership, and then being a member of the same as aforesaid, to wit, on the day and year aforesaid, eleven bags of cotton waste of the property of the said co-partnership unlawfully did steal: R. v. Butterworth, 12 Cox, 132.

See R. v. Balls, 12 Cox, 96, for an indictment against a partner for embezzlement, now theft, of partnership property; also, R. v. Blackburn, 11 Cox, 157.

A partner, at common law, may be guilty of larceny of the partnership's property; so may a man be guilty of larceny of his own goods: R. v.. Webster, L. & C. 77; R. v. Burgess, L. & C. 299; R. v. Moody, L. & C. 173; that is when the property is stolen from another person in whose custody it is, and who is responsible for it. See also, R. v. Diprose, 11 Cox, 185, and R. v. Rudge, 13 Cox, 17.

CONCEALING Gold or Silver WITH INTENT, ETC.

312. 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

Not in the Imperial Statute.

Punishment under s. 356, post.

Indictment inay be as for simple theft: ss. 611, 613. As to search warrant, s. 571.

HUSBAND AND WIFE. (New).

313. No husband shall be convicted of stealing, during co-habitation, the property of his wife, and no wife shall be convicted of stealing, during cohabitation, the property of her husband; but while they are living apart from each other either shall be guilty of theft if he or she fraudulently takes or converts anything which is, by law, the property of the other in a manner which, in any other person, would amount to theft.

2. Every one commits theft who, while a husband and wife are living together, knowingly

(a) assists either of them in dealing with anything which is the property of the other in a manner which would amount to theft if they were not married; or

(b) receives from either of them anything, the property of the other, obtained from that other by such dealing as aforesaid.

"By the present law a husband or wife cannot steal from his wife or her husband, even if they are living apart, although by recent legislation the wife is capable of possessing separate property.

"So long as co-habitation continues this seems reasonable, but when married persons are separated, and have separate property, it seems to us to follow that the wrongful taking of it should be theft. This section is also framed so as to put an end to an unmeaning distinction, by which it is a criminal offence in an adulterer to receive from his paramour the goods of her husband, but no offence in any one else to receive such goods from the wife."-Imp. Comm. Rep.