unless the sums so awarded are sooner paid, the offender shall be imprisoned in any gaol or place of confinement other than a Penitentiary, for any term the Court shall award, not exceeding three months, in addition to the term of imprisonment, if any, to which the offender may be sentenced for the offence.-24-25 Vict., ch. 100, sect. 74, Imp.

Sect. 79.-The Court may, by warrant in writing, order such sum as shall be so awarded to be levied by distress and sale of the goods and chattels of the offender, and paid to the prosecutor, and that the surplus, if any, arising from such sale shall be paid to the owner; and in case such sum shall be so levied, the imprisonment awarded until payment of such sum shall thereupon cease. -24-25 Vict., ch. 100, sect. 75, Imp.

Sect. 80.-Every offence hereby made punishable on summary conviction may be prosecuted in the manner directed by the Act of the present session, intituled: An Act respecting the duties of Justices of the Peace, out of Sessions, in relation to summary convictions and orders, (32-33 Vict., ch. 31), or in such other manner as may be directed in any Act that may be passed for like purposes and all provisions contained in such Acts shall be applicable to such prosecutions in the same manner as if they were incorporated in this Act.

Sect. $1.—This Act shall commence and take effect on the first day of January, one thousand eight hundred and seventy.

LARCENY.

GENERAL REMARKS.

Larceny is the wrongful taking and carrying away of the personal goods of any one from his possession, with a felonious intent to convert them to the use of the offender, without the consent of the owner; 2 East P. C. 553; the word "felonious" showing that there is no colour of right to excuse the act, and the "intent" being to deprive the owner permanently of his property.-Reg. vs. Thurborn, 1 Den. 388; Reg. vs. Guernsey, 1 F. & F. 394; Reg. vs. Holloway, 1 Den. 370; 3 Burn's Justice, 198; 2 Russell, 146, note by Greaves; Reg. vs. Middleton, 12 Cox, 417.

It is not, however, an essential ingredient of the offence that the taking should be for a cause of gain, lucri causà a fraudulent taking, with intent wholly to deprive the owner of his property, or with intent to destroy it is sufficient. But see post, on this question of intent in larceny.

Larceny is either simple, that is, unaccompanied by any other aggravating circumstance, or compound, that is, when it is accompanied by the aggravating circumstances of taking from the house or person, or both.

Larceny was formally divided into grand larceny and petit larceny; but this distinction is now abolished; see post, sect. 2 of the Larceny Act.

By sect. 110 of the said Act, a more severe punishment may be inflicted when the value of the article

stolen is over two hundred dollars, but then, this value must be alleged in the indictment and duly proved on the trial, otherwise the larceny is punishable under section 4 of the said Act.

The requisites of the offence are:

1. The taking.

2. The carrying away.

3. The goods taken.

4. The owner of the goods.

5. The owner's dissent from the taking. 6. The felonious intent in taking.

1. THE TAKING.

To constitute the crime of larceny, there must be a taking or severance of the thing from the actual or constructive possession of the owner; for all felony includes trespass, and every indictment must have the words feloniously took as well as carried away; from whence it follows that, if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away.-1 Hawkins, p. 142.-As in the case of a wife carrying away and converting to her own use the goods of her husband, for husband and wife are one person in law, and, consequently, there can be no taking so as to constitute larceny; 1 Hale, 514, and the same if the husband be jointly interested with others in the property so taken.-R. vs. Willis, 1 Mood. 375.

The taking, however, may be by the hand of another, 2 East P. C. 555; as if the thief procure a child within the age of discretion to steal goods for him, it will be the same as if he had taken them himself, and the taking in such case should be charged to him.-1 Hale, 507.

The possession of the owner may be actual or con

structive; that is, he may have the goods in his manual possession, or they may be in the actual possession of another, and at the same time be constructively in the owner's possession; and they may be his property by virtue of some contract, and yet not have been reduced by him into actual possession; in which case, his possession is constructive, as by placing them under his servant's care to be by him managed for him.

But besides the actual and constructive possession in the owner, who at the same time has the property in him, there is a possession distinct from the actual property, although arising out of an interest in the goods, acquired by contract, as in the case of one who has possession of goods in pledge, or of goods lent, or let. Such an one has a property, as well as possession, concurrent with the absolute property of the real owner, and either defeasible or reducible into an absolute property, according to the terms agreed upon between him and the actual owner.

Either of the above kinds of possession will be sufficient to sustain an indictment of larceny from the absolute owner.-3 Burn's Just. 201.

This part of the law on larceny is laid down as follows in the draft of a Criminal Code for Canada, introduced in the Legislative Assembly, in 1850, by Mr. Justice Badgley, then Attorney-General: "To constitute larceny, a thing must be owned by, or be the general or special property of some one, or belong to him, either by a proprietory or possessory right thereto. A proprietory right is that of one having a general or special property in a thing. A possessory right is that of one having and being entitled to the possession of a thing. One having the authorized custody of or being entrusted

with a thing, so as to be answerable therefor, or for the value thereof, has a possessory right thereto. The actual possession of a thing by any one is the constructive possession of all who have proprietory or possessory rights therein, general or special, absolute or qualified. A proprietory or a possessory right to a thing by one constitutes him the owner thereof as to larceny thereof by another."

As very nice questions frequently arise, as to what will amount to a sufficient taking, where the owner of the chattels has delivered them to the party accused, or to a third person, the subject will be inquired into in the following order.

1. The taking where the owner has delivered the chattels, under a bare charge.

2. The taking where the possession of the goods has been obtained animo furandi.

3. The taking where the possession of the goods has been obtained bona fide without any fraudulent intention in the first instance.

4. The taking where the offender has more than a special property in the goods.-3 Burn's Justice, 201.

1. The taking where the offender has a bare charge. The books notice cases in which, although the manual custody be out of the owner, and delivered by him to another, yet the possession, absolute as well as constructive, is deemed to remain in him, and the possession of the other to be no more than a bare charge.

Upon this difference between a possession and a charge, Lord Coke says: "There is a diversity between a possession and a charge: for, when I deliver goods to a man, he hath the possession of the goods, and may have an action of trespass if they be taken or stolen out of his possession. But my butler, or cook, that in my house