or persons, or corporation, in different counts in such indictment; and any variance in the latter case, between the statement in the indictment and the evidence adduced, may be amended at the trial, and if no owner be proved the indictment may be amended by laying the property in the Queen.

These clauses are not in the English Act.

Sect. 36 can only apply to indictments under sections 31 and 32; there are no indictments under the three next preceding sections.

FRAUD ON PARTNERS.

Sect. 37.-Whosoever, with intent to defraud his copartner, co-adventurer, joint tenant or tenant in common, in any claim or in any share or interest in any claim, secretly keeps back or conceals any gold or silver found in or upon or taken from such claim, is guilty of felony, and shall be liable to be punished in the same manner as in the case of simple larcency. (Not in the English Act. See ante, sect. 4, as to punishment for simple larceny, and pest, sects. 110 and 122.

LARCENY BY PARTNERS.

Sect. 38.-Whosoever, being a member of any copartnership owning any money or other property, or being one of two or more beneficial owners of any money or other property, steals, embezzles or unlawfully converts the same or any part thereof to his own use, or that of any person other than the owner, shall be liable to be dealt with, tried, convicted and punished as if he had not been or were not a member of such co-partnership, or one of such beneficial owners.-31-32 Vict., ch. 116, sect. 1,

The English clause reads thus: "If any person, being

a member of any co-partnership, or being one of two or more beneficial owners of any money, goods or effects, bills, notes, securities, or other property, shall steal or embezzle any such money, goods or effects, bills, notes, securities or other property, of or belonging to any such co-partnership, 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."

A partner stole goods belonging to the firm, and rendered himself liable to be dealt with as a felon under the 31-32 Vict., ch. 116, sect. 1, (the present clause), and sold the same to the prisoner who knew of their having been stolen: held, that the prisoner could not be convicted on an indictment for feloniously receiving, under the 24-25 Vict., ch. 96, sect. 91, (sect. 100 of our Larceny Act), but might have been convicted as an accessory after the fact under the 24-25 Vict., ch. 94, sect. 3, (31 Vict., ch. 72 of our Statutes) on an indictment properly framed.-Reg. vs. Smith, 11 Cox, 511.

An indictment framed upon the 31-32 Vict., ch. 116, sect. 1, alleged that B. was a member of a co-partnership consisting of B. and L., and that B., then being a member of the same, eleven bags of cotton waste, the property of the said co-partnership, feloniously did steal, take and carry away: held, that the indictment was not bad for introducing the word "feloniously."-Reg. vs. Butterworth, 12 Cox, 132. In this case, Cottingham, for the prisoner, said: "The indictment is bad because it does not follow the words of the Statute. That enactment creates a new offence, one which did not exist at common law; it does not say that the offence shall be a felony, and the indictment is bad for using the word

"feloniously." There are offences of stealing, which are not felonies, such as dog stealing." Lush, J., said: "If the offence created by this section is not a felony, what is it?" And the Court, without calling upon the counsel for the prosecution, affirmed the conviction, holding the objection not arguable.

Indictment.-The Jurors for Our Lady the Queen, upon their oath present, that on .... at...... Thomas Butterworth, of.... was a member of a certain co-partnership, to wit, a certain co-partnership carrying on the business of and trading as waste dealer, and which said co-partnership was constituted and consisted of the said Thomas Butterworth and of John Joseph Lee, trading as aforesaid; and thereupon, the said Thomas Butterworth, at...... aforesaid, during the continuance of the said copartnership, and then being a member of the same as aforesaid, to wit, on the day and year aforesaid, eleven bags of cotton waste of the property of the said co-partnership feloniously did steal, take and carry away, against the form of the Statute in such case made and provided, and against the peace of Our said Lady the Queen, her crown and dignity.-Reg. vs. Butterworth,

supra.

See Reg. vs. Ball, 12 Cox, 96, for an indictment against a partner for embezzlement of partnership property; also Reg. vs. Blackburn, 11 Cox, 157; in these two cases the defendants were indicted under this section.

The importance of the decision, given by Mr. Justice Ramsay, in April last, upon the interpretation of this clause (38 of the Larceny Act) is a sufficient excuse for inserting it here, though Canadian cases are not generally referred to in these notes:

Court of Queen's Bench, Crown side. Montreal, 13th April, 1874. Regina vs. John Lowenbruck. Ramsay, J:

"The prisoner is indicted for stealing money, the property of the partnership of which he is a partner, under sect. 38 of the Larceny Act of 1869. If it was the intention of the Legislature to overthrow the whole order of ideas as to the subject of larceny and embezzlement, they should have proceeded with a little more care than they have done in this section. This would have a double good effect. First the reducing the thing proposed to precise words would have the effect of making the proposition clear to the mind of the proposer; and secondly, it would warn the public what it is necessary to avoid. The Act really says that if the joint owner steals or embezzles any money or other property of which he is joint owner" he shall be liable to be dealt with, tried, convicted and punished, as if he had not been or were not a member of such co-partnership, or one of such beneficial owners." But, he cannot steal or embezzle it; therefore, the indictment for stealing or embezzling must fail. This is sufficient for me to say to determine the present case; but there is another category. If any such joint owner unlawfully converts the same, he shall be liable to be dealt with, tried, convicted and punished, as if he had not been or were not a member of such co-partnership, or one of such beneficial owners. At worst, he is only in the position of one unlawfully converting. How far is that indictable? Section 99, it is said, will meet the difficulty; but, on looking closely at that section, it will be seen that its object is to meet the case of larceny being laid·in the indictment, and the obtention by false pretences, only, being proved. The indictment could not have been laid, or the case for the Crown been more satisfactorily proved, but the prosecution must fail, because the section of the Statute could not be applied. To have had the effect

sought to be given to it, the Statute should have stated that the unlawful conversion of the partnership property should be deemed to be larceny. But if the Act had been drawn in that form, it can hardly be supposed it would have passed. Such a law would destroy any tangible distinction between guilt and innocence, for partners are every hour of the day found unlawfully converting the partnership property, if their Acts were strictly examined. The simple unlawful conversion of the property of another is not indictable, and it should not be made indietable."

On the first category, provided for by this section, the English and Canadian Statutes are in the same terms, and since 1868, that the Statute is in operation in England, it has been, there, thought sufficiently to say that a partner who steals partnership property is guilty of larceny. Of course the taking must be felonious, and accompanied by the necessary circumstances, and have the ingredients required to constitute it a larceny. See the English cases, cited ante. And a partner, at common law, may be guilty of larceny of the partnership's property: so may a man be guilty of larceny of his own goods, Regina vs. Webster, L. & C. 77; Regina vs. Burgess, L. & C. 299; Regina vs. Moody, L. & C. 173: of course, that is when the property is stolen from another person in whose custody it is, and who is responsible for it. See also, Bovill's (C. J.) opinion in Reg. vs. Diprose, 11 Cox, 185.

As to the second category provided for by this section the words of the Statute do not seem to mean that all unlawful conversions by a partner of partnership property will be indictable, but only that, when the converting would be a misdemeanor in any other case, the fact that the property is partnership property, will not alter