[ening, if he refuses, to tear his mow of corn and level his house; he gives it. This is robbery.

1

(12.) 1 A compels B to give him money, by threatening to accuse A of an infamous crime. This is robbery.

(13.) A rips lead off a church, to the roof of which it is fixed, and carries it away. This is not theft at common law though it is by statute. (14.) A cuts down timber or growing crops and carries them away immediately. This is not theft at common law, though it is by statute. (15.) 3 A, a poacher, kills a number of rabbits, hides them in a ditch on the ground of the owner of the soil on which they were killed, and returns several hours afterwards and carries them away, having all along intended to do so at his convenience. This is not theft.]

3

4

(16.) Against the wall of a passage leading from the street to certain assembly rooms, the lessor of the rooms places an "automatic box" so constructed that upon a penny piece being dropped into a slit of the box and a knob being pushed according to directions inscribed on the box, a cigarette is ejected. A drops into the slit a brass disc instead of a penny, and pushing the knob thereby obtains a cigarette. This is theft.

5 ARTICLE 371.

THEFT BY A SERVANT.-EMBEZZLEMENT.

[Theft may be committed by converting, without the consent of the owner, anything of which the offender has received the custody as the servant of the owner, or in order that the thing may be used by the offender for some special temporary purpose in the presence or under the immediate control of the owner or his servant.

6 When a clerk, or servant, or person employed in the capacity of a clerk or servant, converts anything received by him from another person for his master or employer, he is deemed to have stolen it, but his offence is commonly called embezzlement, and is distinguished from

1 See cases collected in 2 Russ. Cr. 99-104. Some distinctions arise upon this which I do not notice, because this most odious crime is now dealt with specially by statute. See Article 388.

2 See authorities collected 2 Russ. Cr. (5th ed.) 209-10.]

3 R. v. Townley, L. R. 1 C. C. R. 315.]

4 R. v. Hands, 16 Cox C. C. 188.

5 S. D. Art. 297.

[See Chapter xxxv.]

[theft for the purposes and in the manner mentioned in Chapter XXXV.

Illustrations.

(1.) A carter converts to his own use a cart which he is driving for his

master.

2

He commits theft.

(2.) A is employed by B to take pigs to C to be looked at, and to bring them back to B, whether C wishes to buy them or not. A sells the pigs to some one else, and keeps the money. This is theft.

3

(3.) A sheriff's officer, in possession of goods under a writ of fi. fa., sells part of them. This is theft, as such a person is in the position of a servant. (4.) A guest at a tavern carries off a piece of plate set before him to drink from. This is theft, because A had only a permission to use the plate for a special limited purpose.

5 ARTICLE 372.

THEFT BY A FALSE PRETENCE.

Theft may be committed by fraudulently obtaining from the owner a transfer of the possession of a thing, the owner intending to reserve to himself his property therein, and the offender intending, at the time when the possession is obtained, to convert the thing without the owner's consent to such conversion."

Illustrations.

7

(1.) A fraudulently persuades B to allow A to take two silver ewers to shew to A's master, to choose one if he pleased. A sells the ewers and keeps the money. This is theft.

8

(2.) A, by pretending to be B, fraudulently obtains B's goods from C,

a carrier, to whom they were entrusted by B. This is theft, as the carrier transferred the possession only.

1 [Robinson's Case, 2 East, P. C. 565.

2 R. v. Harvey, 9 C. & P. 353.

3 Eastall's Case, 3 Russ Cr. 311.

41 Hale, P. C. 596.]

5 S. D. Art. 298.

[R. v. Hollis, L. R. 12 Q. B. D. 25, is the last case on this subject.

7 R. v. Davenport, 2 Russ. Cr. 147.

8 R. v. Longstreeth, 2 Russ. Cr. 149-50; 1 Moody 137. There are a great number of other

cases to the same effect. R. v. McKale, e.g., L. R. 1 C. C. R. 125.]

[(3.) 1 A fraudulently bargains with B for the purchase by A of goods for ready money, and fraudulently induces B to let A have the goods, pretending that he is then about to pay B the price. A then takes away the goods, and does not pay the price. This is theft, as in such cases the purchaser does not mean to transfer the property till the money is paid.

(4.) 2 A fraudulently obtains goods and money from a shopkeeper by pretending to give him diamonds for them. This is not theft, as the shopkeeper means to transfer the property in the goods.

3

(5.) A fraudulently induces B to give her ten sovereigns to conjure with, promising to bring back the ten sovereigns and £170, to which A says B is entitled. A carries off the ten sovereigns. If the ten sovereigns were to be returned, this is theft. If not, it is not theft, but is obtaining money by false pretences.

(6.) A, B's wife, by a forged order gets money standing to 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.]

(7.) 5 A at a race meeting makes a bet with B, the money for which B backs a particular horse being deposited with A, who obtains possession thereof fraudulently, never intending to repay it in any event, while B parts with the money with the intention that in the event of the horse winning it is to be repaid to him. This is theft, as there is no contract by which the property in the money can pass.

6

(8.) A, for the purpose of keeping up a false pretence that he is the owner of certain land, of which he has the title, by the promise that the same will be immediately returned, induces B, who has purchased from the real owner, to hand him, on the delivery of the deed at the solicitor's office, certain moneys and notes purporting to represent the consideration expressed in the deed. A at the time intends to keep, and does keep, the moneys and notes. A commits theft.

7 ARTICLE 373.

THEFT BY TAKING ADVANTAGE OF A MISTAKE.

[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

1 [Four cases to this effect are stated in 2 Russ. Cr. 157-9.

2 R. v. Bunce, 1 F. & F. 523. The offence would be obtaining goods by false pretences. 3 R. v. Bunce, 1 F. & F. 523.

4 R. v. Prince, L. R. 1 C. C. R. 154.]

5 R. v. Buchmaster, L. R. 20 Q. B. D. 182.

R. v. Ewing, 21 U. C. Q. B. 523.

7 S. D. Art. 299.

8 [R. v. Middleton, L. R. 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.]

[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.

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

3

(2.) 3 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.

4

(3.) 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. (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 use. This is theft.

5

1 [R. v. Ashwell (L. R. 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 out this 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 (L. R. 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 lar ceny. R. v. Ashwell 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 A. G. v. Windsor (8 H. L. C. 363) 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 66 præsumitur pro neganti"; but I doubt whether this would apply to R. v. Ashwell. The Court being equally divided no judgment 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.

2 R. v. Middleton, L. R. 2 C. C. R. 38.

3 Per eight Judges in R. v. Middleton, L. R. 2 C. C. R. at p. 45.

4 R. v. Mucklow, 1 Mood. C. C. 160; R. v. Davies, Dear. 640.

5 Merry v. Green, 7 M. & W. 623. There was a question in this case whether the bureau]

1 ARTICLE 374.

THEFT BY BAILEES.

2 [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.

3 This Article applies to bailments to infants incapable of entering into a contract of bailment by reason of infancy (and it is submitted to bailments upon a void, and perhaps upon an illegal, consideration.)

4 ARTICLE 375.

BY AND FROM WHOM THEFT MAY BE COMMITTED.

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

5

6

Theft may be committed by a member of a co-partner

[was not sold with its contents. Cartwright v. Green, 8 Ves. 405, is almost 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.]

1 S. D. Art 300.

2 R. S. C. c. 164, s. 4; [24 & 25 Vict. c. 96, s. 3. For a recent instance of this offence, see Rv. Oxenham, 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, L. R. 13 Q. B. D. 29. See also R. v. Ashwell;] R. v. Wynn, 16 Cox C. C. 231; R. v. Tweedy, 23 U. C. Q. B. 120; R. v. Stewart, 43 U. C. Q. B. 574; R. v. Lebœuf, 9 L. C. J. 245; Gould v. Cowan, 17 L. C. R. 46. A deposited money with B, "en attendant le paiement qu'il pourrait faire d'une même somme à "C." B did not pay C, but appropriated the money to his own use. Held, that he did not commit theft, not being bound to pay the same pieces of money, but a similar sum to C; R. v. Berthiaume, 3 M. L. R. 143.

3 [R. v. Mac Donald, L. R. 15 Q. B. D. 323.]

4 S. D. Art. 301.

5 R. S. C. c. 164, s. 58. 31 & 32 Vict. c. 116. s. 1.

6 [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,