THE LARCENY ACT, 1868.

31-2 V. 116.

An Act to amend the Law relating to Larceny and Embezzlement. [31st July, 1868.

The name of this statute is fixed by 59-60 V. 14, The Short Titles Act, 1896.

S. 1.

any Member of more ship guilty

co-partner

of convert

effects, ing to his

own use, &c.

shall property

of co-partnership

liable to be

tried as if

1. If any person, being a member of co-partnership, or being one of two or beneficial owners of any money, goods, or bills, notes, securities, or other property, steal or embezzle any such money, goods, or effects, bills, notes, securities, or other property of or not such belonging to any such copartnership or to such joint beneficial owners, every such person shall be liable to be dealt with, tried, convicted, and punished for the same as if such person had not been or was not a member of such co-partnership or one of such beneficial owners.

"At common law a co-owner could not steal property from his other co-owners. This was altered in 1868* by 31-2 V. 116, commonly called Mr. Russell Gurney's Act. It was passed in consequence of cases occurring in which trade

* "1867" is a misprint. The Act was sometimes called "The Recorder's" (e.g., Reg. v. Blackburn, 11 Cox, p. 161), as Mr. Russell Gurney, at whose instance it was passed, was Recorder of London.

member.

8. 1.

unions had been robbed with impunity by persons in their employment, who were also members of the body, and so co-owners of its funds " (3 Stephen, History of the Criminal Law, p. 159). Such* being its origin, it is the more remarkable that the prisoner in Reg. v. Stainer, in 1870 (L. R. 1 C. C. R. 230; 11 Cox, 483; 39 L. J. M. C. 54), was indicted, not under this Act, which was not even mentioned, but, apparently, under 32-3 V. 61. See p. 119.

The offence was substantially the same as that alleged in Reg. v. Blackburn in 1868 (11 Cox, 157), which counsel said was the first prosecution under Russell Gurney's Act.

As the Act of 1869 (32-3 V.61) is no longer in force (see p. 119), Reg. v. Stainer is dealt with here. The prisoner was a local secretary and member of the "Power Loom Carpet Weavers' Mutual Defence and Provident Association of Kidderminster and Stourport"; neither the original nor the revised rules of the society were enrolled or certified under the Friendly Societies Acts. It was in respect of money received by the prisoner as local secretary that he was charged at Quarter Sessions with embezzlement. For the defence it was contended that the society was established, in part at least, for an illegal object, and for this purpose certain rules were relied upon, and it was urged that an acquittal should be directed. This objection was overruled and the prisoner was found guilty. In stating a case, the chairman referred seriatim to the rules impugned, and added that the society had occasionally contributed to the support of men on strike, otherwise there was no evidence that the funds were used for any illegal purpose. The Court for Crown Cases Reserved (Cockburn, C. J., Byles and Keating, JJ., Pigott and Cleasby, BB.) was unanimously of opinion that the conviction was right. Cockburn, C. J., said: "In this society there is nothing criminal either in its purposes or its operation. Its primary objects are laudable. There are, however, one or two rules with reference to the seeking of employment and other matters which would come within the purposes of a trades union.” * But see Introduction, p. 7.

Referring to 32-3 V. 61 (see p. 119), his Lordship added,
"This statute is, however, at all events an indication of the
intention of the Legislature that trades unions shall have rights
of property which are to be protected by the criminal law,
I think, therefore, that it is clear that societies such as this
are not criminal, because the Legislature could never have
intended that a criminal society should have the benefit of
the Friendly Societies Act. It is absurd to suppose that it
was intended that these societies should be able to prosecute
before justices those who had embezzled their money, and
yet should not be able to indict a criminal at the Assizes.
The recent statute is equivalent to a declaration by the Legis-
lature that societies having rules in restraint of trade have no
defect on that account in their title to property in proceed-
ings in criminal law." Byles, J., said: "Some of the objects
of this society may be unlawful, as being in restraint of trade
and so void, but the objects are not criminal." Keating, J.,
said:
"The only illegality suggested in this case is the object
of one or two rules which are in restraint of trade. It may
be impossible to enforce these rules as being illegal, in the
sense of being void, but are they within the criminal law?
Is the illegality such as to deprive the funds of the society
of the protection given by the criminal law? I think not."
Cleasby, B., said: "The foundation of the argument against
the conviction is, that this society could have no servants.
I think this is not the law."

Cf. Lindley, L. J.'s judgment in Swaine v. Wilson. See p. 63. Reg. v. Stainer was approved in Reg. v. Tankard in 1893 (1894, 1 Q. B. 548; 63 L. J. M. C. 61; 17 Cox, 719), where the indictment was drawn under this Act (1868). "The prisoner was the treasurer and a member of a trading club which was an unregistered association of more than twenty persons, such as is prohibited from being formed by sect. 4 of the Companies Act, 1862," and was convicted of embezzlemeut. The Court for Crown Cases Reserved (Coleridge, L. C. J., Mathew, Grantham, Lawrance and Collins, JJ.) unanimously confirmed the conviction. "There are," said

S. 1.

Ss. 1, 2. Coleridge, L. C. J., "a number of persons who join themselves together, not for any criminal purpose, but their joining together is not legalised. It is true that they have no legal existence as a company, association, or co-partnership, but they are none the less beneficial owners of property. In the indictment, the property was properly laid in the prisoner, W. Jackson, and others, as beneficial owners. It does not follow that because the club had no legal existence as a company, association or co-partnership, the members had no legal existence as beneficial owners of property. It is untrue to say that they are not beneficial owners in fact. It has been decided in Reg. v. Stainer, before trade unions were legalised, that where the property was laid in an association' in the nature of a trade union, it did not follow that a person could not be convicted of stealing or embezzling their property because the association did not in all respects conform to the law, and the grounds of that decision apply here. It seems to me that the case for the prisoner is gone the moment his counsel is obliged to admit that if his contention be good, the property belonged to nobody and could, so to speak, be scrambled for. It would be a very strong thing to hold that an association not expressly sanctioned by law, yet not criminal, is incapable of holding any property at all." In Reg. v. Robson, in 1885 (15 Cox, 772), the meaning of co-partnership" in this section was discussed. The Court for Crown Cases Reserved (Coleridge, L. C. J., Denman, Field, Hawkins and Wills, JJ.) was unanimously of opinion that the term, in modern usage, is confined to societies formed for gain, and the conviction of the prisoner, a member of a Young Men's Christian Association, for embezzling their money,on an indictment under this section as 66 a member of a co-partnership," was quashed. It seems that if he had been indicted as one of several joint beneficial owners, it could have been sustained. 2. All the provisions of the Act passed in the Vict. c. 126, session of Parliament held in the eighteenth and nineteenth years of Her present Majesty's reign,

"Co-partnership."

Provisions

of 18 & 19

extended to embezzlement by clerks or

servants.

66

intituled An Act for diminishing Expense and Delay Ss. 2, 3. in the administration of Criminal Justice in certain Cases, shall extend and be applicable to the offence of embezzlement by clerks or servants, or persons employed for the purpose or in the capacity of clerks or servants, and the said Act shall henceforth be read as if the said offence of embezzlement had been included therein.

Most of this Act is repealed, in so far as it relates to England, by 42-3 V. 49. It still applies to Ireland.

3. This Act shall not extend to Scotland.

Extent of
Act.

THE TRADES UNIONS FUNDS PROTECTION
ACT, 1869.

32-3 V. 61.

This Act* expired in 1871; it is therefore not worth while to set it out. For the circumstances in which it was passed, see the Annual Register for 1869, p. 176.]

* "It is presumed that even before this statute a trades union might have maintained an action against an officer who had misappropriated their funds, for money had and received to their use (cf. Tenant v. Elliott, 1 B. & P. 3)." Jolly, Contracts in Restraint of Trade, p. 50. This is an interesting speculation. Criminal proceedings had failed in Hornby v. Close and Farrer v. Close. See p. 48 and p. 51.