to shew "actual possession of the situation," and this is sufficiently shewn by proof that the duties or functions are actually discharged by the person alleged to be such servant.

22. The words "moveable property" are intended to include corporeal property

"Moveable property." of every description, except land and things attached to the earth or permanently fastened to any thing which is attached to the earth.

Under the head of immoveable property is included land and things attached to land, that is, things not merely resting by their own weight upon the earth, or temporarily secured to it, but let into or otherwise permanently incorporated with it; for instance, a house the foundation of which is laid in the earth. Things permanently fastened to any thing which is so attached are also included, as the doors, sun-shades, &c., of a house.

All moveable property of every description is included in the words here explained, provided only that it is "corporeal." This word is employed to exclude such property as has no existence, except only in the shape of a claim, or contract, or right to receive money, &c. A man's household furniture is moveable property within this explanation, but when he has sold it, the money due to him by the purchaser is not: nor will the promissory note which he may endorse by way of payment,

be so.

Property is the creation of the civil branch of the law, and although this explanation tells us what is not included under the words "moveable property" for the purpose of the Penal Code, we must seek elsewhere to know what things are the subject of property.

"Wrongful gain" is gain by unlawful means

23.

"Wrongful gain."

titled.

of property to which the person gaining is not legally en

"Wrongful loss" is the loss by unlawful means of property to which the person losing it is legally entitled.

"Wrongful loss."

"Wrongful gain" includes wrongful retention of property. "Wrongful loss" includes the

being wrongfully kept out of

A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.

property.

"Dishonestly."

24. Whoever does any thing with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly.'

The words explained in this and the last preceding section generally occur in the definitions of offences against property and in the penal provisions connected with such offences. All the violations of the rights of property which the Code makes punishable resemble each other in this, that they cause or have some tendency to cause some person, not to have such dominion over property as he is entitled by law to have. Some of these offences do not merely injure or disturb the enjoyment of property by the rightful owner, but transfer it to one who has no right; causing by means of wrongful loss to the sufferer wrongful gain to some other person. Where there is the intention to cause either the wrongful loss of property to the owner, or the wrongful gain of property to another person, the word dishonestly" is used; but not where the intention is merely to cause damage or mischief.

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25. A person is said to do a thing "fraudulently," if he does that thing with intent to defraud, but not

"Fraudulently."

otherwise.

The word is used to denote the intention to deceive or cheat. It does not necessarily mean that the thing done is accom

plished by the use of deceit, artifice, fraud, &c. This word occurs in Sections of the Code which do not always relate to the loss or gain of property.

26. A person is said to have "reason to believe"

"Renson to believe."

not otherwise.

clerk, or servant.

a thing, if he has sufficient cause to believe that thing, but

27. When property is in the possession of a person's Property in possession of wife, wife, clerk, or servant, on account of that person, it is in that person's possession within the meaning of this Code.

Explanation. A person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is a clerk or servant within the meaning of this Section.

One term in the definition of theft (see Chapter XVII.) is an intention to take moveable property out of the possession of a person. Here and in other parts of the Penal Code, possession is an important ingredient. It is scarcely possible to mark with precision by any words, the circumstances which constitute possession, although it may be easy to put cases about which no doubt whatever exists. The object of the framers of the Code in this explanation was to lay down a few rules, in accordance with the general sense of mankind, for the purpose of preventing any difference of opinion from arising in cases likely to occur very often. The possession by the clerk or servant of that which belongs to the master, or of that which, whether it belongs absolutely to his master or to another person, the clerk or servant holds for his master and on his account, is the master's possession.

"Counterfeit."

28. A person is said to "counterfeit," who causes one thing to resemble another thing, intending by means of that resemblance to practise deception, or knowing it to be likely that deception will thereby be practised. Explanation. It is not essential to counterfeiting that the imitation should be exact.

29. The word "document" denotes any matter expressed or described upon any substance by means of letters,

"Document."

figures, or marks, or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

Explanation 1. It is immaterial by what means or upon what substance the letters, figures, or marks are formed, or whether the evidence is intended for, or may be used in, a Court of Justice, or not.

Illustrations.

A writing expressing the terms of a contract, which may be used as evidence of the contract, is a document.

A Cheque upon a Banker is a document.

A Power of Attorney is a document.

A Map or Plan which is intended to be used or which may be used as evidence, is a document.

A writing containing directions or instructions is a document.

Explanation 2. Whatever is expressed by means of letters, figures, or marks as explained by mercantile or other usage, shall be deemed to be expressed by such letters, figures, or marks within the meaning of this Section, although the same may not be actually expressed.

Illustration.

A writes his name on the back of a Bill of Exchange payable to his order. The meaning of the endorsement, as explained by mercantile usage, is that the Bill is to be paid to the holder. The endorsement is a document, and must be construed in the same manner as if the words" pay to the holder" or words to that effect had been written over the signature. 30. The words "valuable security" denote a document which is, or purports to "Valuable security." be, a document whereby any legal right is created, extended, transferred, restricted, extinguished, or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.

Illustration.

A writes his name on the back of a Bill of Exchange. As the effect of this endorsement is to transfer the right to the Bill to any person who may become the lawful holder of it, the endorsement is a able security."

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valu

These words occur in sections relating to a certain class of offences, not against property directly, but affecting the right to property-(see Chapter XVIII. of offences relating to documents, &c.) The words denote a particular class of documents, viz.: such documents as create or extinguish legal rights.

31. The words "a will" denote any testamentary document.

"A Will."

32. In every part of this Code, except where a conWords referring to acts in- trary intention appears from the context, words which refer

clude illegal omissions.

to acts done extend also to illegal omissions.

The following is an illustration of this provision. By Section 84, nothing is an offence which is done by a person of unsound mind. A, a jailor, goes mad and, in consequence of his madness, omits to supply his prisoners with food. The words of the Section "thing done by a person" apply to A's omission, and he has committed no offence.

The Code makes punishable omissions which have caused, which have been intended to cause, or which have been known to be likely to cause a certain evil effect in the same manner as it punishes acts; provided that such omissions were, on other grounds, illegal.* "Illegal" is a word explained by Section 43. 33. The word "act" denotes as well a series of acts as a single act: the word "omission" denotes as well a

"Act."
"Omission."

series of omissions as a single omission.

34. When a criminal act is done by several persons,

Each of several persons liable for an act done by all, in like manner as if done by him alone.

him alone.

each of such persons is liable for that act in the same manner as if the act were done by

The actual doers, who are the persons referred to here, are to be distinguished from those who abet the doing of a thing. The law concerning principal actors is contained in this Section

* See the note to Section 299, post.

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