thereof, as against any person who cannot show a better title thereto.

1

Illustrations.

(1.) A finds a bezoar stone in the street and shows it to B, a jeweller, to ascertain its value. B keeps it. A has a right to the stone as against B.

(2.) 2 A steals B's watch. C picks A's pocket of the watch. C steals from A.

ARTICLE 309.

TAKING AND CARRYING AWAY.

A thing is said to be taken and carried away when every part of it is moved from that specific portion of space which it occupied before it was moved (although the whole of it may not be moved from the whole of the space which it occupied), and when it is severed from any person or thing to which it was attached in such a manner that the taker has, for however short a time, complete control of it. An animal is said to be taken and driven or led away when it is caused to move from the place where it was before.

Illustrations.

(1.) A removes a parcel from one end of a waggon to another. This is a taking and carrying away.

4

(2.) A lifts a sword partly out of its scabbard. A has taken and carried away the sword.

(3.) 5 A causes a horse to be led out of a stable for him to mount. A has led away the horse.

6

(4.) A, a postman, instead of delivering a letter in due course, or bringing it back in his pouch, which would be his duty if he could not deliver it, puts it in his pocket intending to steal it. This is a taking and carrying away.

1 Armory v. Delamirie, 1722, 1 S. L. C. 385.

2 Founded on 1 Hale, P. C. 507.

3 Coslet's Case, 1782, 1 Lea. 236.

+ R. v. Walsh, 1824, 2 Russ. Cr. 126 (from MS. of Bayley, J.), and 1 Moo. C. C. 14. An odd point would arise if the sword and scabbard were merely twisted round in the place which they occupied before they were touched. I suppose this would not be an asportation.

R. v. Pitman, 1826, 2 C. & P. 423.

R. v. Poynton, 1862, L. & C. 247.

1

(5.) A snatches a diamond earring from a lady's ear, tearing it out of the ear; it drops from his hand into her hair, and is found there by her afterwards. A has taken and carried away the earring.

(6.) 2 Goods are tied to a string, one end of which is fastened to the bottom of a counter. A takes and carries them as far as the string will permit. A has not carried away the goods.

(7.) 3 A has gas-pipes in his house running through a meter, such pipes being his property. In order to prevent the gas from passing through the meter he puts a connecting pipe between the pipe leading to, and the pipe leading from, the meter, and so diverts the gas from its proper course. This is a taking and carrying away of the gas.

ARTICLE 310.

BAILMENT DEFINED.

When one person delivers, or causes to be delivered, to another any movable thing in order that it may be kept for the person making the delivery, or that it may be used, gratuitously or otherwise, by the person to whom the delivery is made, or that it may be kept as a pledge by the person to whom delivery is made, or that it may be carried, or that work may be done upon it by the person to whom delivery is made gratuitously or not, and when it is the intention of the parties that the specific thing so delivered, or the article into which it is to be made shall be delivered either to the person making the delivery or to some other person appointed by him to receive it, the person making the delivery is said to bail the thing delivered, the act of delivery is called a bailment; the person making the delivery is called the bailor; the person to whom it is made is called the bailee.4

1 Lafrier's Case, 1784, 1 Lea. 320; R. v. Simpson, 1854, D. & P. 421. In this case a watch and chain snatched out of one button-hole caught in another.

22 East, P. C. 556.

3 R. v. White, 1853, D. & P. 203.

4 Coggs v. Bernard, 1702, 2 S. L. C. 201, for bailment in general. For the application of the doctrine to criminal law, R. v. Hassell, 1861, L. & C. 58. It seems that a married woman may be a bailee: R. v. Robson, 1861, L. & C. 93. Since the Married Woman's Property Act (33 & 34 Vict. c. 93) it would seem clear that in many cases she can.

ARTICLE 311.

OFFENCES RELATING TO PROPERTY COMMITTED BY AND AGAINST MARRIED WOMEN.

1 Every married woman, whether married before, on, or after 1st January, 1883, has in her own name, against all persons whomsoever, including her husband, the same remedies and redress by way of criminal proceedings for the protection and security of her own separate property as if such property belonged to her as a feme sole, provided that no criminal proceeding can be taken by any wife against her husband by virtue of the Married Woman's Property Act 1882, while they are living together as to or concerning any property claimed by her, nor while they are living apart as to or concerning any act done by the husband while they were living together concerning property claimed by the wife, unless such property has been wrongfully taken by the husband when leaving or deserting, or about to leave or desert his wife.

2 A wife doing any act with respect to the property of her husband which, if done by the husband with respect to property of the wife, would make the husband liable to criminal proceedings by the wife, under this article is in like manner liable to criminal proceedings by her husband.

145 & 46 Vict. c. 75, s 12.

2 Ibid. s. 16 (see Article 327 below).

CHAPTER XXXV

1 THINGS CAPABLE OR NOT OF BEING STOLEN.

ARTICLE 312.

THINGS CAPABLE OF BEING STOLEN.

THINGS are or not capable of being stolen according to the provisions contained in this chapter.

2

ARTICLE 313.

MOVABLE THINGS-LAND-THINGS FIXED TO LAND.

All movable things are capable of being stolen, whether they are naturally movable or whether they were, before being severed therefrom, a part of, or built upon, or growing out of, or fixed in a permanent manner to, the soil of the earth.

The soil of the earth itself cannot be stolen, by removing landmarks, building so as to make permanent encroachments, or other means of the same kind.

Things growing out of, built upon, permanently attached to, or forming part of the soil, cannot be stolen whilst they continue to be so attached to it or to form part of it, or by the act of severance, 3 except in the cases provided for in Articles 352 and 353 (c) to (g).

ARTICLE 314.

TITLE-DEEDS AND CHOSES IN ACTION.

* Documents which in any way relate to the title to real property, and documents which constitute evidence of any

13 Hist. Cr. Law, ch. xxix. pp. 121-176.

2 2 Russ. Cr. 209-210.

3 See also Article 322, para. (3).

42 Russ. Cr. 217-219.

right of action against any person, are not capable of being stolen, unless they fall within the terms of Article 349 or the first paragraph of Article 354; but documents of title to chattels and tokens which represent them are capable of being stolen.

Illustrations.

(1.)1 An unstamped written agreement for building cottages under which work has been and is being carried on is not capable of being stolen.

(2.) 2 A pawnbroker's ticket is capable of being stolen.

4

3

ARTICLE 315.

WATER-GAS-ELECTRICITY.

Running or standing water is not capable of being stolen unless [it seems] it is stored in pipes or reservoirs for the purpose of sale or use, in which case it is capable of being stolen, although money penalties are provided for an improper use of it.

5 Gas is capable of being stolen.

2 R. v. Morrison, 1859, Bell, C. C. 158. It has been held that a railway ticket is capable of being stolen: R. v. Boulton, 1849, 1 Den. 508. In R. v. Kilham, 1870, 1 C. C. R. 261, it is said that "the reasons for this decision do not very clearly appear." It is, indeed, very hard to reconcile the decision with the established principle as to "choses in action," for what is a railway ticket except evidence of a contract by the railway to carry the holder?

3 Water is a movable wandering thing, and must of necessity continue common by the law of nature, so that I can only have a temporary transient usufructuary property therein " (Blackstone, 1 Steph. Com. 170-171, 11th ed.) As to water in standpipes, see Ferens v. O'Brien, 1883, 11 Q. B. D. 21.

4 Would a man who drew a pail of water out of a reservoir covering many acres be guilty of theft? Hardly, I should think.

5 R. v. Firth, 1869, L. R. 1 C. C. R. 172; R. v. White, 1853, D. & P. 203.

645 & 46 Vict. c. 56, s. 23, and see Art. 353 (h).