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and Defendant, with a statement, in the margin, of the amount of the sum claimed, no such cause really existing: on an indictment against A., for feloniously causing to be delivered to B., a paper purporting to be a copy of a certain process of the County Court of L.-Held, that the document above mentioned was a notice to produce documents, etc., between party and party, and not a process of the Court, nor did it purport to be so. (a)

B. being indebted to A., A. obtained a blank form for Plaintiff's instructions to issue County Court suminons. This he filled up with particulars of the names and addresses of himself and B., as plaintiff and defendant, and of the nature and amount of the claim, and, without any authority, signed it in the name of the Registrar, endorsing also a notice, signed also by A. in the name of the Registrar, and without his authority, that unless the amount claimed were paid by B. on a certain day, an execution warrant would issue against him. This paper he delivered to B., with intent thereby to obtain payment of his debt:-Held, (b) that this was "an acting, or professing to act, under false colour, and pretence of process of the County Court," within the meaning of 9 & 10 Vic., c. 95, s. 57. (c)

Having treated specifically of the offences of larceny, embezzlement, and the obtaining of money by false pretences, we proceed to point out the distinctions between them. It is of the essence of the offence of larceny that the property be taken against the will of the owner. (d) If taken by the consent of the owner, for instance, if he intends to part with the property, no larceny will be committed.

(a) Reg. v. Castle, 4 U. C. L. J. 73; Dears. & B. 363; 27 L. J. (M. C.) 70. (b) Affirming Reg. v. Evans, supra.

(c) Reg. v. Richmond, 5 U. C. L. J. 237; Bell 142.

(d) Reg. v. Prince, L. R. 1 C. C. R. 154, per Bovill, C. J.

In false pretences the property is obtained with the consent of the owner, the latter intending to part with his property. (a) The crime is constituted by the pretence that something has taken place, which, in fact, has not taken place. (b) It, therefore, necessarily differs from larceny, in the fact the property in the chattel passes to the person obtaining it, and it may, though perhaps not necessarily, differ from larceny in this, that the owner is induced to voluntarily part with his property, in consequence of some false pretence of an existing fact, made by the person obtaining the chattel. But the crime of obtaining money by false pretences is similar to larceny in this, that, in both offences, there must be an intention to deprive the owner wholly of his property in the chattel. (c)

Embezzlement consists in obtaining the lawful possession of goods, etc., without fraud or any false pretence, as upon a contract, or with the consent of the owner, in the ordinary course of duty or employment, or independently of such employment, and subsequently converting the goods, with a felonious intent to deprive the owner of his property therein. It differs from larceny in this, that the possession of the goods, etc., is lawfully obtained, in the first instance without the ingredient of trespass, and the conversion takes place while the privity of contract exists between the parties. The acquisition of lawful possession, in the first instance, is the constituent feature of this offence, and, according to the doctrines of the common law, no larceny could be committed by a bailee or other person whose original title was lawful, until the privity of contract was determined. A carrier could not be convicted of larceny unless he

(a) See White v. Garden, 10 C. B. 927, per Talfourd, J.
(b) Reg. v. M'Grath, L. R. 1 C. C. R. 209, per Kelly, C. B.
(c) See Reg. v. Kilham, L. R. 1 C. C. R. 261, ante p. 337.

"broke bulk," and the reason was that the act of "breaking bulk" was an act of trespass in the carrier, by which the privity of contract was determined. Now, however, the carrier is guilty of larceny, although he do not break bulk or otherwise determine the bailment. (a)

The distinction between larceny and embezzlement may be illustrated by the case of a clerk or servant, whose duty it is to receive money for, or on account of, his master. An appropriation before the money, etc., comes into the actual possession of the master, as if a clerk in a shop, on receiving money, puts it into his pocket before putting it into the till, would be embezzlement. (b) But if the money is put in the till, or otherwise becomes actually in the master's possession before appropriation, and is, in the act of appropriation, taken out of the possession of the master, this is larceny at common law.

But these distinctions are not of such practical importance as formerly, for, in either of the above cases, whether the indictment were framed for larceny or embezzlement, the defendant might be convicted of the offence proved in evidence, (c) and a person indicted for obtaining money by false pretences may be convicted of that offence, although the facts proved also shew a larceny. (d)

Receiving Stolen Goods.—This offence was punishable at common law only as a misdemeanor, even when the principal had been found guilty of felony in stealing the goods, (e) and the mere receipt of stolen goods did not, at common law, constitute the receiver an accessory, but

(a) See 32 & 33 Vic. c. 21, s. 3.

(b) R. v. Bull, 2 Leach, 841; R. v. Bayeley, 2 Leach, 835; R. v. Sullens, 1 Mood. C. C. 129; R. v. Walsh, R. & R. 218; Reg. v. Masters, 1 Den. 332; 2 ̊C. & K. 930; 18 L. J. (M. C.) 2.

(c) See 32 & 33 Vic. c. 21. s. 74.

(d) 32 & 33 Vic. c 21, s. 93.

(e) 2 Russ. Cr. 542.

was a misdemeanor, punishable by fine and imprisonment, (a) unless he likewise received and harboured the thief. (b)

There must be a stealing of goods, and the stealing must be a crime, either at common law or by statute, before a party is liable to be convicted of receiving. (c) Accordingly, it has been held in England, that where A. and B. were in partnership, and B. stole the partnership goods, and disposed of them to the prisoner, who received them, knowing them to have been so stolen. conviction of the prisoner, under the 24 & 25 Vic., c. 96, s. 91, could not be sustained, for the stealing was not a crime, either at common law or under the said Act, although it was a felony, within the 31 & 32 Vic., c. 116, s. 1. (d)

This latter statute renders the stealing of partnership property felony, and is identical with the 32 & 33 Vic., c. 21, s. 38, but it is a distinct Act from the 24 & 25 Vic., c. 96, and the ground of the decision in the above case was, that the stealing of partnership property was not felony, by virtue of the 24 & 25 Vic., c. 96, upon which the indictment was framed. Section 91 uses the words "by virtue of this Act," and the stealing was not a crime by virtue of this latter Act, but by virtue of the former ; consequently the offence was excluded by the express language of the statute. It is apprehended that with us, notwithstanding this case, a person may be convicted under the 32 & 33 Vic., c. 21, s. 100, for receiving goods which have been stolen, or converted by a partner, in violation of the provisions of s. 38, for the stealing would be a crime" by virtue of this Act," within the language of s. 100.

(a) 2 Russ. Cr. 554.

(b) Reg. v. Smith, L. R. 1 C. C. R. 270, per Bovill, C. J.

(c) Reg. v. Smith, L. R. 1 C. C. R. 266; 39 L. J. (M. C.) 112. (d) Ib.

A conviction of the principal for embezzlement is sufficient to warrant a conviction of the receiver, by virtue of the express words of s. 100 of the 32 & 33 Vic., c. 21. (a)

It is quite clear that the goods must be stolen, or, at all events, the stealing, taking, extorting, embezzling, and otherwise disposing thereof, must amount to felony, either at common law or by virtue of the statute.

Where four thieves stole goods from the custody of a railway company, and afterwards sent them in a parcel, by the same company's line, addressed to the prisoner. During the transit the theft was discovered, and on the arrival of the parcel at the station for its delivery, a policeman in the employ of the company opened it, and then returned it to the porter, whose duty it was to deliver it, with instructions to keep it until further notice. On the following day the policeman directed the porter to take the parcel to its address, where it was received by the prisoner, who was afterwards convicted of receiving the goods, knowing them to be stolen. Upon an indictment, which laid the property in the goods in the railway company :-Held, (b) that the goods had got back into the possession of the owner, so as to be no longer stolen goods, and that the conviction, on that ground, was wrong. (c)

There must be a receipt of stolen goods. Thus where stolen goods were found in the pocket of the thief by the owner, who sent for a policeman. The policeman took the goods, and the three went together towards the shop of A., where the thief had previously sold stolen goods. When near it, the policeman gave back the goods to the

(a) Reg. v. Frampton, Dears. & B. 585; 27 L. J. (M. C.) 229; Arch. Cr. Pldg. 436.

(b) By Martin, B., and Keating and Lush, JJ.; dissentientibus, Erle, C. J., and Mellor, J.

(c) Reg. v. Schmidt, L. R. 1 C. C. R. 15; 35 L. J. (M. C.) 94.

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