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[ship, or by one of two or more beneficial owners of any money, goods, effects, bills, notes, securities, or other property, to the prejudice of the other co-partners or beneficial owners.

1

Theft may be committed by a member of a corporation to the prejudice of that corporation upon a thing which is the property of the corporation.

2 A married woman cannot commit theft upon things belonging to her husband.

If any other person assists a married woman in dealing with things belonging to her husband in a manner which would amount to theft in the case of other persons, 3 such dealing is not theft unless the person so assisting commits or intends to commit adultery with the woman in which case he, but not she, commits theft. But this exception does not apply to the case of an adulterer or person intending to commit adultery, who assists a married woman to carry away her own wearing apparel only from her husband.

7 It is doubtful whether the mere presence and consent of a married woman on an occasion when some person deals with her husband's goods in a way which would

L. R. 16 Q. P D. 140.] In R. v. Lowenbruck, 18 L. C. J. 212, Ramsay, J., expressed the opinion that an indictment for larceny or embezzlement would not lie against a partner under 32 & 33 Vict. (D.) c. 21, s. 38 (R. S. C. c. 164, s. 58). The opinion however does not appear to be well founded. See Tasch. Can. Crim. Acts 405, and cases there cited. R. v. Smith, 11 Cox, C. C. 511; R. v. Balls, 12 Cox, C. C. 96; R. v. Butterworth, 12 Cox. C. C. 132; R. v. Rudge, 13 Cox, C. C. 17.

1 [Roscoe's Crim. Ev. 8th ed. 652. This is Mr. Roscoe's inference from 1 Hale, P. C. 513, and appears to be correct.

21 Hale, P. C. 514.] See 45 & 46 Vict. c. 75, s. 12.

3 [Harrison's Case, 2 East. P. C. 55?.

4 R. v. Avery, Bell. 150.

R. v. Tolfree, 1 Mood. 243; R. v. Thompson, 1 Den. 549; R. v. Tollett, Car. & Mar. 112; R. v. Featherstone. Dear. 369; R. v. J. Mutters, L. & C. 511. A note to this case, 516-19, collects and reviews all the authorities on the subject. These cases were all decided before the Married Women's Property Act, 45 & 46 Vict. c. 75, ss. 12, 16.

R. v. Fitch, D. & B. 187.

7 R. v. Avery, Bell, C. C. 153. I submit that the wife's presence and consent in such a case would be no excuse. See the history of the growth of the doctrine in note to R. v. Mutters.]

[otherwise amount to theft excuses such person if he acts as a principal in the matter, and not as her assistant.

1

Illustrations.

(1.) A bails goods to B for exportation, upon which A would become entitled to an exemption from a duty on the goods of 2s. 6d. a pound. B gives a bond to the Crown for exportation, and sends the goods in his barge to a ship to be exported. A, to get the goods duty free, takes them from B's barge. A has stolen the goods from B, and it seems it would have been larceny if no bond had been given by B.

(2.) 2 A gives his servant goods to carry to a certain place. A then disguises himself and robs his servant in order to charge the hundred with the robbery. This is robbery.

3 ARTICLE 376.

4 FINDING GOODS.

A finder of lost goods who converts them commits theft if at the time when he takes possession of them he intends to convert them, knowing who the owner is, or having reasonable grounds to believe that he can be found;

Such a conversion is not theft,

(a.) if at the time when the finder takes possession of the goods he has not such knowledge or grounds of belief as aforesaid, although he acquires them after taking possession of the goods, and before resolving to convert them; or

(b.) if he does not intend to convert the goods at the time when he takes possession of them, whether he has

1 [R. v. Wilkinson, 2 Russ. Cr. 243.

2 Foster, 123-4. I have not met with any case in which a man has been convicted of theft for stealing a pledge (his own property) from a pawnbroker; but no doubt such an act would be theft. Before 31 & 32 Vict. c. 116, s. 2, a case occurred in which a part owner was convicted of stealing money from another part owner, in whose special custody it was, and who was solely responsible for its safety, the money being the property of a co-operative store; R. v. Webster, L. & C. 77. The same point was decided, as to the property of a friendly society in R. v. Burgess, L. & C. 299.]

3 S. D. Art. 302.

4 [3 Hist. Cr. Law, 170.]

[such knowledge or grounds of belief or not at any time.

If the circumstances are such as to lead the finder reasonably to believe that the owner intended to abandon his property in the goods, the finder is not guilty of theft in converting them.

Illustrations.

(1.) 1 A finds a bank note, accidently dropped on the floor of his shop. He picks it up, intending to keep it for himself, whoever the owner might be, believing at the time that the owner could be found. This is theft.

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(2.) A, a carpenter, to whom a bureau was entrusted to mend, finds money in it, the existence of which was obviously unknown to the owner of the bureau. A appropriates the money. This is theft, as A knew to whom the bureau belonged.

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(3.) 3 A finds iron in the bottom of a canal, from which the water had been let off, and appropriates it. This is theft, as the fact that the iron was in the canal raised a presumption that it had fallen from a canal boat and that therefore the canal company had a special property in it.

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(4.) A finds a sovereign in the road, and picks it up, intending to keep it, whoever the owner might be, but not knowing who he was, and having no reason to believe he could be found. This is not theft.

(5.) 5 A finds a bank note in the road, with no mark upon it, and no circumstance to indicate who was the owner, or that he might be found. Next day he hears who the owner is, and after that changes the note and keeps the money. This is not theft.

(6.) 6 A finds a bank note in the road with the owner's name upon it, and takes it, intending at the time to return it to the owner, but afterwards changes his mind and keeps it for himself. This is not theft.

(7.) A finds an apple, which appears to have been thrown away in

1 [R. v. Moore, L. & C. 1.

2 Cartwright v. Green, 8 Ves. 405; see, too, Merry v. Green, 7 M. & W. 623.

3 R. v. Rowe, Bell, C. C. 93. This case was decided on the question of the possession of the canal company, but it illustrates the principle as to finding also.

4 R. v. Glyde, L. R. 1 C. C. R. 139.

5 R. v. Thurborn, 1 Den. 387.

• Preston's Case, 2 Den. 353. The illustration does not represent the actual facts in Preston's Case, but a state of facts which the Court said might have existed and upon which the jury might have convicted him under the terms in which the very able judge who tried the case (the late M. D. Hill, Recorder of Birmingham) directed them.

7 Per Rolfe, B., in R. v. Peters, 1 C. & K. 245; and see the summing up of Cockburn, C. J., in R. v. Glyde, L. R. 1 C. C. R. 140-1. In some of the cases on this subject a distinction is taken between property absolutely lost, and property only mislaid; see R. v. West, Dear. 402. It would appear, however, that the only real difference is that in the latter]

[a road, and eats it.

If

reasonably believed that the apple had been

abandoned by its owner, this is not theft.

1 ARTICLE 377.

CONVERSION AFTER A TAKING AMOUNTING TO TRESPASS.

If a person takes into his custody any chattel belonging to any other person in a way which constitutes an actionable wrong to that person and afterwards converts it, he commits theft, although he may not have intended to convert it when he took it into his custody.

Illustrations.

(1.) 2 A, having a flock of lambs in a field, drives them out, and negligently drives away with them a lamb belonging to B which happened to be there. At the time of driving away the lamb A does not intend to convert it, but afterwards, on discovering what had happened, he sells the lamb and keeps the money. This is theft.

3

(2.) A takes home B's umbrella from a club by mistake, and having afterwards found out that it is B's, converts it. A commits theft.

4 ARTICLE 378.

CONVERSION AFTER INNOCENT TAKING.

If a person innocently in any way not referred to in any of the preceding Articles, has the possession of any chattel, and converts such chattel, he does not commit theft, although such chattel may have been entrusted to him by the owner, or may be the proceeds of something which was entrusted to him by the owner for the owner's

[case the finder must know that the owner may be found. The distinction was useful as a step towards modifying the generality of the rule laid down by the old text writers: see e.g. 1 Hawkins, P. C. 142. "One who finds such goods as I have lost and converts them to his own use, animo furandi, is no felon."]

1 S. D. Art. 303.

2 [R. v. Riley, Dear. 149.

& Per Pollock, C.B., and Parke, B.. in Riley's Case, p. 156; see the question of Martin, B., in Preston's Case. 2 Den. 359.]

4S. D. Art. 301.

[benefit, or for the benefit of some person other than the person so entrusted, unless such conversion falls within the provisions of Chapter XL. or Article 383.

1

Illustrations.

(1.) A assigns his goods by deed to trustees for the benefit of his creditors. The trustees do not take possession, but leave A's possession undisturbed. A makes away with the goods, intending to deprive his creditors of them. This is not theft.

(2.) 2 B's house being on fire, A takes B's goods to A's house for protection, B acquiescing as to some of them. A's intention at the time is to keep them for B, but A afterwards changes his mind and converts them. This is not theft.

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(3.) B gives his broker A a cheque to buy Exchequer bills. A buys Exchequer bills for B with part of the proceeds of the cheque and absconds with the rest. This is not theft.

(4.) B, a boy unable to read, finds a cheque and gives it to A, asking A to tell him what it is. A, on various false pretences, withholds it from B in hopes of getting a reward from the owner. A has not stolen the cheque.

(5.) 5 A, the acting treasurer of a local Church Missionary Society, whose duty it is to deposit or invest the moneys received by him on account of the society, converts them. This is not theft.

(6.) A is the treasurer of a money club, the nature of which is that certain persons deposit a weekly sum and are liable to fines in default. Loans might be made on interest to the members at A's discretion. The total amount, including interest on the loans, but subject to small deductions, to be divided amongst the members at the end of the year. A converts the balance in his hands at the end of the year. This is not theft.

1 [R. v. Pratt, Dear. 360.

2 Leigh's Case, 2 East, P. C. 694-5. This case seems to shew that if A were to find a bank note for £1000, which he knew to be B's, and were to take it up intending to give it to B, and were afterwards to be tempted to go to a gaming house and were there to stake and lose it, he would not commit theft, and I believe that such is the law.

3 Walsh's Case, 2 Lea. 1054. Walsh's Case was the occasion of the first of a series of statutes now represented by 24 & 25 Vict, c. 96, ss. 75, 79. See chapter XL.

4 R. v. v. Gardner, L. & C. 243.

R. v. Gavett, 8 Cox, C.C. 368, and 2 Russ. Cr. 136-7. This would not even now be an offence. As the offender had not to pay over or return the specific coins entrusted to him, he was not a bailee; and as there was no express trust of the money created by an instrument in writing, he was not within the fraudulent trustee clauses of the Larceny Act.

• Nor is it any offence at all. R. v. Hassall, L. & C. 58.] See Art. 483.

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