hundred and eighty-eight, was lawfully and generally applied to goods of a particular class, or manufactured by a particular method, to indicate the particular class or method of manufacture of such goods: Provided that where such trade descrip- Proviso. tion includes the name of a place or country, and is calculated to mislead as to the place or country where the goods to which it is applied were actually made or produced, and the goods are not actually made or produced in that place or country, such provisions shall apply unless there is added to the trade description, immediately before or after the name of that place or country, in an equally conspicuous manner with that name, the name of the place or country in which the goods were actually made or produced, with a statement that they were made or produced there. 55-56 V., c. 29, s. 455.

343. The provision of this Part with respect to trading As to stamps shall not apply to any trading stamp issued by a manu- trading stamps. facturer or vendor before the first day of November, one thousand nine hundred and five. 4-5 E. VII., c. 9, s. 2.

Trading stamps.]-See secs. 506-508.

Theft Defined.

344. Every inanimate thing whatever which is the property Things of any person, and which either is or may be made movable, capable of being is capable of being stolen as soon as it becomes movable, although stolen. it is made movable in order to steal it: Provided that nothing growing out of the earth of a value not exceeding twenty-five Proviso. cents shall, except in cases hereinafter provided, be deemed capable of being stolen. 55-56 V., c. 29, s. 303.

Larceny at common law.]-Nothing but personal goods could be the subject of larceny at common law. Archbold Cr. Plead. (1900), 406. Things real or which "savoured of the realty" were excluded, and title deeds could therefore not be the subject of larceny. 1 Hale 510. Nor could bonds, bills of exchange, etc., they being mere choses in action. 1 Hawk., ch. 33, sec. 35; R. v. Watts (1854), Dears. 326. And there could not be a larceny of a corpse, as it was not the subject of property. R. v. Haynes (1614), 12 Co. Rep. 113. But see Code sec. 237, as to improper interference with a dead human body or human remains.

Water supplied by a water company to a consumer and standing in his pipes, might be the subject of larceny at common law. Ferens v. O'Brien (1883), 11 Q.B.D. 21.

There could be no larceny at common law of things which adhere to the freehold, such as corn, grass, trees and the like, or lead or other thing attached to a house. Archbold Cr. Plead. (1900), 406. The severance of them was a mere trespass. Ibid. But if the owner or a stranger severed

Living creatures capable of being

stolen.

Living creatures wild by nature.

Idem.

Idem.

Idem.

Parts of living creatures.

them and another man came and stole them, or if the thief severed them at one time, and after abandoning same came at another time and took them away, it was larceny. R. v. Foley (1889), 17 Cox C.C. 142. But the mere severance by the wrongdoer at one time and the taking away by him at another were not sufficient to constitute larceny unless he had, between the severance and the taking away, intended to abandon his wrongful possession of the article severed. If the wrongdoer did not intend to abandon his possession, but merely left the article concealed on the land after severence, until he could conveniently return and carry it away, then the severance and carrying away were treated as one continuous act although a considerable time may have elapsed between the severance and taking away, and there is no larceny at common law. R. v. Townley (1871), L.R. 1 C.C.R. 315.

Theft under the Code.]-The fraudulent conversion and removal of many things which would not be the subject of larcency at common law is now punishable as theft under secs. 344-388 inclusive.

The subject matter of the offence under sec. 397, i.e., “anything capable of being stolen," is not restricted to things capable of being stolen by the accused, but includes anything which comes within the definition given in sec. 344 of things capable of being stolen. R. v. Goldstaub (1895), 5 Can. Cr. Cas. 357, 10 Man. R. 497.

345. All tame living creatures, whether tame by nature or wild by nature and tamed, shall be capable of being stolen: Provided that tame pigeons shall be capable of being stolen so long only as they are in a dovecot 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. 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.

6. Everything produced by or forming part of any living creature capable of being stolen, shall be capable of being stolen. 55-56 V., c. 29, s. 304.

Larceny of animals.]—Animals feræ naturæ, or wild animals, were not the subject of larceny at common law unless reclaimed, and then only in case they were animals fit for food. 4 Bl. Com. 235, 2 Bishop Cr. Law 683.

There could be no larceny of the following at common law, although reclaimed-dogs, cats, ferrets, squirrels, parrots, singing birds. 2 Bishop Cr. Law 684. Or of ferrets, though tame and saleable. R. v. Searing (1818), R. & R. 250.

Birds, bees and silkworms, kept respectively for food, labour or profit, were the subjects of larceny as well as their produce. 2 Russ. Cr., 5th ed., 233.

The taking of tame pigeons from a dovecote might be larceny at common law. R. v. Cheafor (1851), 2 Den. 361. Section 345, specially declares that they shall constitute the subjects of theft so long only as they are in a dovecote, or on their owner's land.

346. Oysters and oyster brood shall be capable of being Oysters. stolen when in oyster beds, layings, or fisheries which are the property of any person, and sufficiently marked out or known as such property. 55-56 V., c. 29, s. 304.

347. Theft or stealing is the act of fraudulently and with- Theft out colour of right taking, or fraudulently and without colour defined. 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 re-
stored in the condition in which it was at the time of such
taking and conversion.

2. Theft is committed when the offender moves the thing Time when or causes it to move or to be moved, or begins to cause it to theft. become movable, with intent to steal it.

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

4. It is immaterial whether the thing converted was taken Purpose of for the purpose of conversion, or whether it was, at the time taking. of the conversion, in the lawful possession of the person converting. 55-56 V., c. 29, s. 305.

Intent to steal.]-The present statutory definition of theft as contained in sections 347 and 348 of the Code is mainly a declaration of the common law.

In Archbold's Criminal Pleading, 22nd ed., pages 409 and 410, it is said that in all cases of larceny, the questions whether the defendant took the goods knowingly or by mistake whether he took them bonâ fide under a claim of right, or otherwise-and whether he took them with an intent to return them to the owner, or fraudulently, with an intent to deprive the owner of them altogether, and to appropriate or convert them to his own use are questions entirely for the consideration of the jury, to be determined by them upon a view of the particular facts of the case. R. v. Farnborough, [1895] 2 Q.B. 484, 64 L.J. (M.C.) 270.

If a man having done work upon a chattel, returns it to the owner, and, a dispute afterwards arising between him and the owner as to the price to be paid for the work, he seizes and carries off the chattel, against the will of the owner honestly intending to hold it as a security for the amount which he alleges to be due to him, this is no felony, although, in fact, nothing may be due to him. R. v. Wade, 11 Cox 549, Blackburn, J.

Where the defendant was supplied by his master with pig-iron to be put into a furnace to be melted, being paid according to the weight of the metal which ran out of the furnace into bars, and he put in also other iron belonging to his master, whereby the weight of the melted iron, being thus increased, he gained a larger renumeration, it was held that if he did this with the felonious intent of converting the iron to a purpose for his own profit, it was a larceny. R. v. Richards, 1 C. & K. 532. So, the secreting and destroying of a post letter in the hope of suppressing inquiries supposed by the defendant to be made in it respecting her character, was held to be larceny. R. v. Jones, 1 Den. 188; 2 C. & K. 236.

Theft and larceny.]-Larceny at common law is the wrongful or fraudulent taking and carrying away the personal goods of another from any place with a felonious intent to convert them to the taker's own use and make them permanently his own property without the consent of the owner. 2 East. P.C. 553. The intent referred to was one to deprive the owner permanently, and not only temporarily, of his property and without colour of right to excuse the act. R. v. Thurborn (1849), 1 Den. 388, 2 C. & K. 831; R. v. Guernsey (1858), 1 F. & F. 394. Sub-section (a), supra, extends the common law doctrine so as to include a taking with intent to temporarily deprive the owner. And where one of the tenants in common of a personal chattel carried away and disposed of it, this was held not to be larceny at common law. 1 Hale 513. Theft under the Code may be committed by one of several joint owners, tenants in common or partners of or in anything capable of being stolen (sec. 344), against the other persons interested therein (sec. 352); or by the directors of a corporation against the corporation, or by the members of an unincorporated society, if the purposes of the society be lawful, against such society. Section 352.

There must not only have been at common law a taking but also an asportation or carrying away; but a bare removal from the place in which the thief found the goods, though he did not make off with them, was a sufficient carrying away. 4 Bl. Com. 231. Sub-section 2, supra, makes the offence of theft complete 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.

The abandonment of the term "larceny" in Canadian jurisprudence on the enactment of the Criminal Code of Canada subsequent to an extradition convention including such offence, does not affect the liability to extradition of a person charged with what was larceny at common law and is by the Criminal Code still an offence in Canada under the name of "theft" or "stealing." Re Gross (1898), 2 Can. Cr. Cas. 67 Ont.).

"Special property or interest."]-The appropriation, for purposes of loading and shipment, of a railway car intended by the railway company for another person who had a prior statutory right to be supplied with a car, is not a fraudulent taking or conversion of the car from such other person under Code sec. 347, if the latter had not received notice from the railway company that the car had been assigned to him. An applicant for a railway car under the Manitoba Grain Act (Can.) does not acquire a temporary "special property or interest" in the car within Code sec. 347 (la) until he is informed of its assignment to him. The King v. McElroy, 11 Can. Cr. Cas. 34.

Pledge of goods by factor or agent.]—See sec. 348.

Servant feeding animals.]—See sec. 348.

Proof of ownership.]-To prove a right of property in a representative capacity such as administratrix parol evidence of a son of the person alleged to be administratrix that she was so in fact is insufficient. R. v. Jackson (1869), 19 U.C.C.P. 280.

A prisoner may be indicted for stealing the property of some persons unknown, if facts be proved from which the jury may fairly presume that the goods were stolen, but not if it appear that the owner is really known or might easily have been discovered. 2 Russell Crim., 6th ed., 296.

It is not essential that direct proof of loss be given if the quantity of goods in a warehouse or shop is so great as to prevent the prosecutor knowing whether any part be missing. Presumptive evidence in support of such fact is admissible, as that the prisoner threw down the articles when stopped on coming out of one of the rooms, and said, "I hope you will not be hard with me." R. v. Burton (1854), 23 L.J.M.C. 52; R. v. Wright (1858), 30 L.T. Rep. 292; R. v. Mockford (1868), 11 Cox 16; 32 J.P. 133.

This section, in defining theft, does not limit the offence to the mere stealing of the right of ownership, but extends to the stealing of any special right of property or interest in it. R. v. Tessier (1900), 5 Can. Cr. Cas. 73, 78 (Que.).

Fraudulent conversion by bailee, etc.]—Before the Code it has been held that money was property of which a person could be a bailee so as to make him guilty of theft if he appropriated it to his own use; R. v. Massey (1863), 13 U.C.C.P. 484; but the bailment must have been for the re-delivery of the identical money and not merely its equivalent in currency. R. v. Hoare (1859), 1 F. & F. 647; R. v. Garrett (1860), 2 F. & F. 14. See now sec. 355 by which, subject to a proviso as to what shall be deemed an accounting, the fraudulent conversion is now made theft although the party in default was not required to deliver over in specie the identical money.

Conversion of lost chattel by finder.]-The innocent receipt of a chattel coupled with its subsequent fraudulent appropriation was not a larceny at common law. R. v. Ashwell (1885), 16 Q.B.D. 190; but is covered by the statutory definition contained in this section. It is no longer material whether the fraudulent conversion was concurrent with the taking or occurred subsequently. Sub-section 4, supra.

If a man finds goods that have been actually lost, or are reasonably supposed by him to have been lost, and appropriates them with intent to take the entire dominion over them, really believing when he takes them that the owner cannot be found, it is not theft; but if he takes them with like intent though lost or reasonably supposed to be lost but reasonably believing that the owner can be found, it is theft. R. v. Thurborn (1849), 1 Den. 388, 2 C. & K. 831; R. v. Shea (1856), 7 Cox C.C. 147.

19-CRIM. CODE.