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[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; and the person to whom it is made is called the bailee. ']

1[Coggs v. Bernard, 1 Sm. L. C. 201, for bailment in general. For the application of the doctrine to criminal law, R. v. Hassall, L & C. 58. It seems that a married woman may be a bailee; R. v. Robson, L. & C. 93. Since the Married Women's Property Act (33 & 34 Vict. c. 93) it would seem clear that in many cases she can.] See also 45 & 46 Vict. c. 75, ss. 12, 16.

CHAPTER XXXIII.

1 THINGS CAPABLE OR NOT OF BEING STOLEN.

2 ARTICLE 360.

THINGS CAPABLE OF BEING STOLEN.

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

4

3 ARTICLE 361.

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, except in the cases provided for in Articles 410, 411, 412, 413, 416, 418, 419 and 433.

6 ARTICLE 362.

TITLE-DEEDS AND CHOSES IN ACTION.

7 Documents which in any way relate to the title of

1 [3 Hist. Cr. Law, ch. xxviii. pp. 121-176.]

2 S. D. Art. 286.

3 S. D. Art. 287.

4 [2 Russ. Cr. 209-17.

5 See also Article 370, para. (3).]

6S. D. Art. 288.

7 [2 Russ. Cr. 217-33.]

[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 398 or 400; but documents of title to chattels and tokens which represent them are capable of being stolen.

1

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.

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5

3 ARTICLE 363.

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.

7

Gas is capable of being stolen.

Electricity is capable of being stolen.

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?] See Art. 406.

3 S. D. Art. 289.

4["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. 173, 5th ed.). As to water in standpipes, see Ferens v. O'Brien, L. R. 11 Q. B. D. 21.

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

R. v. Firth, L. R. 1 C. C. R. 172; R. v. White, Dear. 203.

745 & 46 Vict. c. 56, s. 23, and see S. D. Art. 327 (f).] It will be observed that this proposition rests upon a statute not in force in Canada, and it may be questioned if it would be maintained in the absence of a statute.

1 ARTICLE 364.

TAME ANIMALS AND WILD ANIMALS IN CAPTIVITY.

2

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

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

Hawks kept for sport;

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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:

* Dogs, birds, beasts, and other animals ordinarily kept in a state of confinement, or for any domestic purpose (or for any lawful purpose of profit or advantage).

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(c.) 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, (or for any lawful purpose of profit or advantage) in which case they are the subjects of larceny by statute.

5 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.

1 S. D. Art. 290.

2 [2 Russ. Cr. 233-4 (5th ed.).

82 Russ. Cr. 238 (5th ed.).]

4R. S. C. c. 164, s. 9. 24 & 25 Vict. c. 96, ss. 18 and 21. The words in parentheses are not in the English Act. See Articles 408, 409 and Article 381.

5 [Coke, 3rd Inst. 108-9; 2 Russ. Cr. 233-9. 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 recognized in several statutes. See Articles 408, 409.]

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.

(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.

(3.) 3 Deer in a paddock, rabbits in a hutch, are the subjects of larceny at common law. Bears or monkeys kept in dens are the subjects of larceny by statute.

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(4.) 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.) 5 Pigeons in a dovecot are the subjects of larceny at common law although they are allowed to fly about.

6 ARTICLE 365.

WILD ANIMALS LIVING AND DEAD.

7 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."

8

1 [2 Russ. Cr. 233-4 (5th ed.).

2 R. v. Shickle, L. R. 1 C. C. R. 158; R. v. Cory, 10 Cox. C. C. 23.

32 Russ. Cr. 233-1, 238 (5th ed.).

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

5 R. v. Cheafor, 2 Den. 361. It has not, however, been decided that pigeons can be stolen whilst actually flying about apparently at liberty. I suppose the question would turn on the knowledge of the offender that the pigeons were tame.]

S. D. Art. 291.

7 [2 Russ. Cr. 236 (5th ed.).

8 Oysters are the subject of larceny by statute; see Art. 410; but they can hardly be called "living wild animals."

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 Art. 370, third paragraph.]

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