lar sum from his employer, or to have converted the whole or part of it to his own use, (a) or unless he also deny the receipt of it or the like. (b) It seems also insufficient to prove a general deficiency of account, and that some specific sum must be proved to have been embezzled. (c)

Where the prisoner was indicted as an agent, under 4 & 5 Vic., c. 25 s. 41, for unlawfully keeping and coverting a promissory note to his own use-Held, that the words" or other agent" did not extend the meaning of the previous words "banker, merchant, broker, attorney," but only signified persons the nature of whose occupation was such that chattels, valuable securities, etc. belonging to third persons would, in the usual course of their business, be entrusted to them. (d)

The indictment charged that one M. entrusted to the defendant, then being an agent, a promissory note of one B. for $200, for the special purposes of receiving £6, thereon from A., and that the defendant, contrary to the purpose for which the said note was entrusted to him, did unlawfully negotiate, and convert the same to his own use. It appeared that K. had made the note for A's accommodation, and, A. being indebted to one C. in £6, it was agreed that he should deposit this note with M. to secure the payment. Defendant, by A.'s order, got the note from M., on condition that he should give it up to A. on the £6 being paid; A. afterwards paid this sum to defendant, but the latter kept the note, and sued K. upon it, alleging that he was entitled to do so by some arrange

(a) R. v. Chapman, 1 C. & K. 119, per Williams, J.; R. v. Jones, 7 C. & P. 833, per Bolland, B.; Reg. v. Wolstenholme, 11 Cox, 313, per Brett, J.; but see R. v. Lambert, 2 Cox, 309, per Erle, J.; R. v. Moah, Dears. 626; 25 L. J. (M. C.) 66. (b) Ib.

(c) R. v.

Loyd Jones, 8 C. & P. 288, per Alderson, B.; Reg. v. Cummings, 4 U. C. L. J. 185, per Draper, C. J.

(d) Reg. v. Hynes, 13 U. C. Q. B. 194.

ment with K., which the jury found was not the case and convicted the defendant :-Held, that the conviction could not be sustained, for defendant was not an agent within the meaning of the Con. Stat. Can. c. 92, s. 44, which refers only to general agents of the description specified. (a) These decisions will apply to the 32 & 33 Vic., c. 21 s. 76-7. (b)

The 32 & 33 Vic. c. 21 s. 70, only applies to cases, where the chattel money or valuable security is received from third persons, on account of the master, and not where it is received directly from the master.

The prisoner, being a clerk in the Bank of Upper Canada, was placed in an office, apart from the bank, and entrusted with funds for the purpose of paying, persons having claims upon the Government, which payments were made upon the cheques of the Receiver-General, whose office was in the same building. While so employed, a deficiency was discovered in his accounts, which he at first ascribed to a robbery, but he afterwards confessed that he had lent the moneys entrusted to him, to various friends. It also appeared that, on a certain day, he had received a cheque from the Receiver-General for £1439.15 for coupons on Government debentures held by the bank, and had credited himself in account with that sum, as if paid out by him, on the cheques, making no entry of the coupons thus covering his defici encies by so much, and making it appear that he had paid out the amount of the cheque in cash when he, in fact, had paid nothing. The indictment charged that on, etc., the prisoner being a clerk, then employed in that capacity by the bank, did then and there, in virtue thereof, receive a certain sum, to wit £1439 15s., for and

(a) Reg. v. Armstrong, 20 U. C. Q. B. 245.

(b) See also Hespeler and Shaw, 16 U. C. Q. B. 104; Sandiman v. Breach, B. & C 100.

on account of the said bank, and the said money feloniously did embezzle. The indictment also contained another count, but, the jury having found a general verdict of "guilty of embezzlement," the verdict was attempted to be supported exclusively on the first count; the Court held that the indictment was framed on the Con. Stats. Can. c. 92 s. 42; (a) that the form used was applicable only to that clause of the statute; that, under it the offence consisted in receiving money, etc. from third persons on account of the master or employer, and not in being entrusted with it by the master or employer (which in this particular case was the bank), and as the evidence shewed that the money embezzled was received from the bank, and not from third persons on their account, that the indictment was not supported by the evidence. (b)

There may, however, be an embezzlement by a clerk or servant of money received from, as well as money received for, the master. The difference is, that, in the first case, the offence is a larceny at common law, when not a mere breach of trust, in which event it may be a question whether the misapplication of the money would, strictly speaking, be embezzlement at all. (c) In the second case, the offence, however fraudulent, would not be larceny, or indictable at common law. (d)

Where the prisoner, a bank clerk, was indicted for embezzlement, and the weight of evidence established that the money embezzled was in the actual possession of the bank, at the time of the fraudulent appropriation: -Held, that a conviction for embezzlement could not be

(a) See 32 & 33 Vic., c. 21, s. 70.

(b) Reg. v. Cummings, 4 U. C. L. J., 182.

(c) R. v. Hawtin, 7 C. & P. 281; R. v. Tholey, 1 Mool. C. C. 343. See also R. v Peck, 2 Russ. 180; R. v. Smith, R. & R. 267; R. v. Hawkins, 1 Den. 584; R. v. Goodenough, Dears. 210.

(d) Reg. v. Cummings, 4 U. C. L. J. 187, per Macaulag, C. J.

sustained on that evidence, but a conviction for larceny would be right. (a)

The 32 & 33 Vic., c. 21, s. 70, makes the embezzlement felony, of a character previously known to the common law-namely, larceny. It, in effect, makes the act of embezzlement proof of a larceny. (b) Now, by s. 74, persons indicted for embezzlement may be convicted of larceny, and vice versa.

On an indictment under the corresponding English section of the 32 & 33 Vic., c. 21, s. 73, it appeared that the prisoner was a member of a copartnership. It was his duty to receive money for the copartnership, and once a week to render an account, and pay over the gross amount received during the previous week, which was usually received in a number of small sums from day to day. He was indicted for embezzling three different sums, amounting, in the aggregate, to £3, 13s., received into his possession on the 5th, 12th, and 17th days of December, 1870, respectively, being within six months from the first to the last of the said receipts. It appeared, in evidence, that the said aggregate sum was received by ten small payments for the first and second weeks respectively, and eleven small payments in the third week. The counsel for the prisoner objected that this would be admitting evidence of thirty-one different acts of embezzlement upon one indictment, whereas the Statute only permitted evidence to be given of three, within the space of six months, from the first to the last of such acts. On the other side, it was contended that, as it was the prisoner's duty to account once a week only for what he had received during the previous week, there were only three distinct non-accountings, and that

(a) Reg. v. Cummings, 4 U. C. L. J. 185, per Draper, C. J.; R. v. Chapman, C. & K. 119; R. v. Holloway 1 Temp. & M. 40; Reg. v. Hall; Ib. 47. (b) Reg. v. Cummings, supra, 184, per Draper, C. J.

the act of embezzlement was not committed on receipt of the money, but upon the non-accounting and non-payment of it:-Held, that the prisoner might be properly charged with embezzling the weekly aggregates—that three acts of embezzlement of such weekly aggregates, within six months, might be charged and proved under one indictment, and that evidence of the small sums received during each week was admissible, to shew how the weekly aggregates were made up. (a)

But if a man receives a number of small sums, and has to account for each of them separately, only three instances of failure to account can be proved under one indictment. In the above case, the prisoner might have been indicted for embezzling any of the separate small sums received by him. (b)

The 32 & 33 Vic., c. 29, s 25, does not justify an allegation in an indictment of the embezzlement of money when a cheque only has been embezzled, and there is no proof that the prisoner has even cashed it. (c) But if the cheque is turned into money, the prisoner may be indicted for embezzling the money; and, upon such indictment, the embezzlement of the cheque, and conversion of it into money, may be shewn, or the prisoner may be indicted for the embezzlement of the cheque. (d)

In Reg. v. Bullock, (e) it was held, under the facts shewn in the case, that the money was not improperly charged to be the money of the County of Essex, though it was received for the Township of Maidstone, within the county, and was to be accounted for to it by the county; for, from the moment of payment, the county

(a) Reg. v. Balls, L. R 1 C. C. R. 328.

(b) Ib. 332-3, per Cockburn, C. J.

(c) Reg. v. Keena, L. R. 1 C. C. R. 113; 37 L. J. (M. C.) 43. (d) Ib. 114, per Cockburn, C. J.

(e) 19 U. C. Q. B. 513; ante. 320-1.