perty 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.

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. 16 (see Article 301, below).

CHAPTER XXXIV.

'THINGS CAPABLE OR NOT OF BEING STOLEN.

ARTICLE 286,

THINGS CAPABLE OF BEING STOLEN.

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

ARTICLE 287.

MOVEABLE THINGS-LAND-THINGS FIXED TO LAND.

2All moveable things are capable of being stolen, whether they are naturally moveable 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 326, 327 (c), (d), (e), and 328 (h), (i), (k), (l).

ARTICLE 288.

TITLE-DEEDS AND CHOSES IN ACTION.

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

right of action against any person, are not capable of being stolen, unless they fall within the terms of Article 323 or 327 (a); 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.

ARTICLE 289.

WATER-GAS-ELECTRICITY.

3 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.

4 Gas is capable of being stolen.

5 Electricity is capable of being stolen.

ARTICLE 290.

TAME ANIMALS AND WILD ANIMALS IN CAPTIVITY.

6

(a.) The following animals are capable of being stolen at common law:

1 R. v. Watts, Dear. 326.

2 R. v. Morrison, Bell, C. C. 158. It has been held that a railway ticket is capable of being stolen: R. v. Boulton, 1 Den. 508. In R. v. Kilham (L. R. 1 C. C. R. 264) 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 moveable 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. 173, 5th ed.). There are decisions as to stealing water from pipes, but I cannot find them. One or two, which I think were not reported, have within the last few years been given at the Leeds Assizes.

↑ R. v. Firth, L. R. 1 C. C. R. 172; R. v. White, Dear. 283. 545 & 46 Vict. c. 56, s. 23, and see Art. 327 (g).

62 Russ. Cr. 253-4 (5th ed.)

Tame animals, whether originally wild or not, birds, bees, and silkworms kept respectively for food, labour, or profit, their young and their produce;

Hawks kept for sport;

1

Wild animals in a state of captivity kept for food or profit, but not wild animals kept in a state of captivity for curiosity.

(b.) The following animals are the subject of larceny by statute:

2 Dogs, birds, beasts, and other animals ordinarily kept in a state of confinement, or for any domestic purpose.

(c.) 3 Animals of a base nature are not capable of being stolen either at common law or by statute unless they are ordinarily kept in a state of confinement, or for any domestic purpose, in which case they are the subjects of larceny by

statute.

An animal capable of being stolen, whatever may be its nature, does not cease to be capable of being stolen because it is permitted at certain times to wander abroad.

Illustrations.

(1.) The milk of a cow, the wool on a sheep's back, honey in a hive, are the subjects of larceny at common law.

5

(2.) Young partridges or pheasants reared under a domestic fowl are regarded as tame, and as such are the subjects of larceny at common law till they become wild.

6

(3.) Deer in a paddock, rabbits in a hutch, are the subjects of larceny at

1 2 Russ. Cr. 238 (5th ed.)

See Article 328.

2 24 & 25 Vict. c. 96, ss. 18 and 21. 3 Coke, 3rd Inst. 108, 9; 2 Russ. Cr. 278-82. Ferrets, so far as I know, are the only animals to which (c) has been applied in modern times. In R. v. Searing, R. & R. 350, "It appeared in evidence that ferrets are valuable animals, and those in question were sold by the prisoner for 9s. The judges were of opinion (in 1818) that ferrets though tame and saleable could not be the subject of larceny." I know not whether a ferret would fall within (b) or not. It is necessary to mark the distinction between animals which are the subject of larceny at common law and those which are the subject of larceny by statute, because it is recognised in several statutes. See Articles 328 (d) and (ƒ) and 329.

42 Russ. Cr. 233-4 (5th ed.)

5 R. v. Shickle, L. R. 1 C. C. R. 158; R. v. Cory, 10 Cox, C. C. 23. 62 Russ. Cr. 233-4, 238 (5th ed.)

common law. Bears or monkeys kept in dens are the subjects of larceny by statute.

(4.) 1 Young partridges reared under a common hen do not cease, so long as they are practically under the dominion of their owner, to be the subjects of larceny at common law because they are allowed to wander abroad. (5.) 2 Pigeons in a dovecot are the subjects of larceny at common law although they are allowed to fly about.

ARTICLE 291.

WILD ANIMALS LIVING AND DEAD.

3 Living wild animals in the enjoyment of their natural liberty, whether they have escaped from confinement or not, are not capable of being stolen although they may be game, and although it may be an offence to pursue or kill them; but the dead body of such an animal is capable of being stolen, and it becomes the property of the person on whose ground the animal dies.5

ARTICLE 292.

DEAD BODIES.

The dead body of a human being is not capable of being stolen.

ARTICLE 293.

THINGS ABANDONED.

7 Things of which the ownership has been abandoned are not capable of being stolen.

1 R. v. Shickle, L. R. 1 C. C. R. 158.

2 R. v. Cheafor, 2 Den. 361. It has not, however, been decided that pigeons can be stolen whilst actually flying about apparently at liberty. suppose the question would turn on the knowledge of the offender that the pigeons were tame. 32 Russ. Cr. 236 (5th ed.)

4 See Chapter XLII. Oysters are the subject of larceny by statute; see Art. 327 (f), but they can hardly be called "living wild animals."

5 Blades v. Higgs, 11 H. L. C. 621; 34 L. J. (C.P.) 286. But see R. v. Townley, L. R. 1 C. C. R. 315, and Article 296, 3rd paragraph.

6 R. v. Raynes, 2 East, P. C. 652. Can skeletons and anatomical preparations of parts of dead bodies, or which formerly formed parts of bodies when living, be stolen ?-teeth, for instance, intended to be used as false teeth.

72 East, P. C. 606-7.