most, amount to evidence that he did not, when he made them, intend to convert the money; and yet he might have converted it before, or might do so afterwards. If he were proved to have converted it before he made the entries, the offence would be complete, and no entry afterwards made could alter it. So, on the other hand, if he made no entries or false entries but actually paid the money to his master, he would be innocent." See R. v. Guelder, Bell, 284, and Brett's, J., remarks in R. v. Walstenholme, 11 Cox, 313; R. v. Jackson, 1 C. & K. 384. The fact of not paying over monies received by a servant is proof of embezzlement, even if no precise time can be fixed at which it was his duty to pay them over, if his not accounting for them is found to have been done fraudulently.-R. v. Welch, 1 Den. 199; R. v. Wortley, 2 Den. 333.

In R. v. Grove, 1 Moo. C. C. 447, a majority of the judges (eight against seven) are reported to have held that an indictment for embezzlement might be supported by proof of a general deficiency of monies that ought to be forthcoming, without showing any particular sum received and not accounted for. See, also, R. v. Lambert, 2 Cox, 309; R. v. Moah, Dears, 626. But in R. v. Jones, 8 C. & P. 288, where, upon an indictment for embezzlement, it was opened that proof of a general deficiency in the prisoner's accounts would be given, but none of the appropriation of a specific sum, Anderson, B., said: "Whatever difference of opinion there might be in R. v. Grove, (ubi supra) that proceeded more upon the particular facts of that case than upon the law; it is not sufficient to prove at the trial a general deficiency in account; some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen. See, also,

R. v. Chapman, 1 C. & K. 119, 2 Russ. 460, and R. v. Wolstenholme, 11 Cox, 313.

A conductor of a tramway car was charged with embezzling three shillings. It was proved that on a certain journey there were fifteen threepenny fares, and twenty-five twopenny fares, and the conductor was seen to give tickets to each fare and to receive money from each, but what sum did not appear. He made out a way bill for the journey debiting himself with only nine threepenny fares and sixteen twopenny fares. The mode of accounting was to deliver the way bills for each journey to a clerk, and to hand in all the money received during each day on the following morning. The prisoner's money should have been £3 1s. 9d., according to his way bills for the day, but he paid in only £3 0s. 8d. Held, that there was sufficient evidence of the receipt of seven shillings and eleven pence, the total amount of fares of the particular journey, and of the embezzlement of three shillings, part thereof.-R. v. King, 12 Cox, 73.

Where the indictment contains only one count, charging the receipt of a gross sum on a particular day, and it appears in evidence that the money was received in different sums on different days, the prosecutor will be put to his election, and must confine himself to one sum and one day.-R. v. Williams, 6 C. & P. 626.

The prisoner, not having been in the employment of the prosecutor, was sent by him to one Milner with a horse as to which Milner and the prosecutor, who owned the horse, had had some negotiations, with an order to Milner to give the bearer a cheque if the horse suited. On account of a difference as to the price the horse was not taken and the prisoner brought him back. Afterwards the prisoner, without any authority from the owner, took the horse to

Milner and sold it as his own property, or professing to have a right to dispose of it, and received the money, giving a receipt in his own name.

Held, that a conviction for embezzlement could not be sustained as the prisoner, when he received the money, did not receive it as a servant or clerk but sold the horse as his own and received the money to his own use.-The Queen v. Topple, 3 R. & C. (N, S.) 566.

Upon the trial for any offence, mentioned in these sections, the jury may convict of an attempt to commit the same, under sec. 183 of the Procedure Act, if the evidence warrants it.

On a trial for embezzlement, held, that evidence of a general deficiency having been given, the conviction was right, though it was not proved that a particular sum coming from a particular person on a particular occasion, was embezzled by the prisoner.-R. v. Glass, 1 L. N. 41. But a general deficiency alone is not sufficient.-R. v. Glass, Ramsay's App. Cas. 186-195.

53. Every one who, being employed in the public service of Her Majesty, or of the Lieutenant Governor or government of any Province of Canada, or of any municipality, steals any chattel, money or valuable security belonging to or in the possession or power of Her Majesty, or of such Lieutenant Governor, government or municipality, or intrusted to or received or taken into possession by him by virtue of his employment, is guilty of felony, and liable to fourteen years' imprisonment.-32-33 V., c. 21, s. 71. 24-25 V., c. 96, s. 69, Imp.

54. Every one who, being employed in the public service of Her Majesty, or of the Lieutenant Governor, or government of any Province in Canada, or of any municipality, and intrusted, by virtue of such employment, with the receipt, custody, management or control of any chattel, money or valuable security, embezzles any chattel, money or valuable security, intrusted to or taken into possession by him by virtue of his employment, or any part thereof, or in any manner fraudulently applies or disposes of the same, or any part thereof, to his own use or benefit, or for any purpose whatsoever

BB

except for the public service, or for the service of such Lieutenant Governor, government or municipality, feloniously steals the same from Her Majesty, or from such municipality, and is liable to fourteen years' imprisonment.-32-33 V., c. 21, s. 72, part. 24-25 V., c. 96, s. 70, Imp.

55. Every one who, being employed in the public service of Her Majesty, or of the Lieutenant Governor, or government of any Province of Canada, or of any municipality, and intrusted by virtue of such employment with the keeping, receipt, custody, management or control of any chattel, money, valuable security, book, paper, account or document, refuses or fails to deliver up the same to any one authorized to demand it, is guilty of a fraudulent embezzlement thereof, and liable to fourteen years' imprisonment;

2. Nothing herein shall affect any remedy of Her Majesty, of the municipality, or of any person against the offender or his sureties, or other person, nor shall the conviction of such offender be receivable in evidence in any suit or action against him.-41 V., c. 7, s. 70, part. C. S. C. c. 16, s. 40, part. 29-30 V. (Can.), c. 51, s. 157, part.

any

See sec. 16 of Procedure Act, post, for venue in cases under the three preceding sections.

Where the registrar and treasurer of the late Trinity House was charged with embezzling a portion of the fund known as "The Decayed Pilots Fund." Held, that this was an embezzlement of moneys the property of "Our Lady the Queen."-R. v. David, 17 L. C. J. 310. (under sec. 54 of the Larceny Act.) See R. v. Graham, 13 Cox, 57.

These clauses have the effect of extending sections 51 and 52, as to larceny and embezzlement by clerks or servants, to public and municipal officers, and the remarks under the said sections, ante, may be applied here. Indictment under sect. 53.-...

.........

on .........

at

being then employed in the public service of Her Majesty, to wit, being then and there....... one ........ belonging to Her Majesty, feloniously did steal, take and carry away, against the form .........-3 Burn, 319.

This form has not the word "feloniously" in 3 Burn, loc. cit.

Indictment under sec. 54.....

.... being employed in the public service of Her Majesty, and being entrusted, by virtue of such employment, with the receipt, custody, management and control of a certain valuable security, to wit,......... did then and there, whilst he was so employed as aforesaid, receive and take into his possession the said valuable security, and the said valuable security then fraudulently and feloniously did embezzle; and so the jurors aforesaid, upon their oath aforesaid do say, that,.......... (defendant) in manner and form aforesaid, the said valuable security, the property of Her Majesty, from Her Majesty, feloniously did steal, take and carry away, against the form......... 3 Burn, 319. A second count laying what particular office the defendant held may be added.

Evidence of acting in the capacity of an officer employed by the crown is sufficient to support an indictment; and the appointment need not be regularly proved.—R. v. Townsend, C. & M. 178; R. v. Borrett, 6 C. & P. 124. Proof of a general deficiency in account would probably not be sufficient; the embezzlement of a specific sum would have to be proved. See cases under sec. 52.

Sec. 126 of the Procedure Act contains an enactment as to the form of indictment under these three clauses.

56. Every one who steals, or unlawfully or maliciously, either by violence or stealth, takes from any person having the lawful custody thereof, or from its lawful place of deposit for the time being, or aids, counsels or assists in so stealing or taking any writ of election, or any return to a writ of election, or any indenture, poll-book, voters' list, certificate, affidavit or report, or any document or paper made, prepared or drawn out according to or for the requirements of any law in regard to provincial, municipal or civic elections, is guilty of a