A Treatise on Criminal Law as Applicable to the Dominion of Canada

c. 11, and 24 & 25 Vic., c. 96, s. 100. only confers this jurisdiction on the Court before whom the felon has been convicted. Where, therefore, a person had been convicted of house-breaking and larceny before the Central Criminal Court, the Court of Queen's Bench has no power to award a writ of restitution of the proceeds of the lar ceny. (a)

Embezzlement.-This offence is defined to be the act of appropriating to himself that which is received by one person in trust for another. (b) But in this large sense it was not criminal at common law, nor has it been rendered so by statute. The Legislature, however, has from time to time specified different classes of cases, all coming within the meaning of the term embezzlement in the above sense, which it has declared to be criminal. (c)

Embezzlement, in its usual acceptation, imports the reception of money belonging to the master or employer of him who receives it in the course of his duty, and the fraudulent appropriation of that money before it gets into the possession of the master. (d) Embezzlement as a substantive felony, was not an offence known to the common law. (e)

Where, on an indictment against the treasurer of a county, for embezzling the sum of £9. 14s. 10d. received for taxes, it appeared that the defendant received the money in October, 1858, and resigned in February, 1859, when his books were taken from him by the warden, although the usual time for making up his accounts with the County had not arrived. This sum was not entered in his books

(a) Reg. v. Ld. Mayor, London, L. R. 4 Q. B. 371. See now 32 & 33 Vic. c. 21, s. 113.

(b) Reg. v. Cummings, 4 U. C. L. J. 183, per Blake, Ch.

(d) Ferris v. Irwin, 10 U. C. C. P. 117, per Draper, C. J. (e) Reg. v. Cummings, supra, 184, per Draper, C. J.

as received, nor was there any entry of other moneys received for taxes at a later date, but, after his books had been taken, he sent in a list of moneys received including this, although before he did so it had been stated in a newspaper that this and other payments were not accounted for. There was no proof that he was indebted to the County on the whole of his accounts, and it was shewn that he claimed they were in his debt, and that the question was pending before arbitrators to whom several civil suits between himself and the Council had been referred. The jury, having found the defendant guilty :-Held, that the evidence did not warrant the conviction. (a)

An officer of a friendly society, some of whose rules were in restraint of trade, having embezzled their money, it was held that societies having such rules are, under the 32 & 33 Vic, c. 61, entitled to the protection of the criminal law for their funds, and, consequently, that the officer might properly be convicted of embezzlement, in the same manner as if he had embezzled the money of any person not acting in restraint of trade. (b)

Where a married woman was adjudicated a bankrupt on her own petition, in which she described herself as a widow, and was afterwards convicted under the 24 & 25 Vic., c. 134, s. 221, of having embezzled her property :Held, that the conviction was wrong, as the property was her husband's. (c)

It has been held that a school trustee having money in his hands, not as secretary and treasurer of a board or in any official capacity, could not, either under the 51st or 56th section of the Con. Stats. Can., c. 92, embezzle such money, his duty as trustee not requiring or authorizing

(a) Reg. v. Bullock, 19 U. C. Q. B. 513.

(b) Reg. v. Stainer, L. R. 1 C. C. R. 230; 39 L. J. (M. C.) 54. (c) Reg. v. Robinson, L. R. 1 C. C. R. 80; 36 L. J. (M. C. 78.

him to receive it, and he not receiving it as part of his duty or employment as servant, clerk or employee of some superior. (a) Now, however, by the 32 & 33 Vic, c. 21, s. 70, it is not necessary that the money should be received "by virtue of such employment."

In an indictment for embezzling money, the property of a trustee of a savings bank, it is not enough to shew that the trustee merely acted as such on one occasion, without producing direct evidence of his appointment as such trustee. (b)

A person, who is employed to get orders for goods, and to receive payment for them, but who is at liberty to get the orders and receive the money where and when he thinks proper, being paid by commission on the goods sold, is not a clerk or servant within the meaning of the 24 & 25 Vic., c. 96, s. 68. (c) But the conclusion to be drawn from the cases appears to be that a commercial traveller, whether paid by commission or salary, who is under orders to go here and there is a clerk or servant, within the meaning of the statute. (d)

A. was treasurer of a friendly society whose rules directed that all the moneys of the society should be paid to the treasurer, and that he should make no payments except on an order signed by the secretary and countersigned by the chairman or a trustee, and that he should give security. By another rule all the moneys of the society were vested in trustees. A. was a member of the society but received no payment for filling the office of treasurer :- Held, on an indictment against A., as clerk and servant of the trustees of the society, for embezzling money which he had received as treasurer, that he was

(a) Ferris v. Irwin, 10 U. C. C. P. 116.

(b) Reg. v. Essex, 4 U. C. L. J. 73; Dears. & B. 371; 27 L. J. (M. C.) 20. (c) Reg. v. Bowers, L. R. 1 C. C. R. 41; 35 L. J. (M. C.) 206.

(d) Arch. Cr. Pidg. 448; Reg. v. Mayle, 11 Cox, 150; Reg. v. Marshall, 11 Cox, 490.

not the clerk or servant of the trustees within the meaning of the above clause. (a)

Prior to the passing of the 32 & 33 Vic., c. 21, s. 38, a person who had an interest in any money or other property, as the secretary of a society or a partner or bene. ficial owner, could not be convicted on an indictment charging him with embezzling the money, as the servant of one of the others interested, "and another or others," pursuant to c. 29, s. 17, for the "others" would have comprised himself, and so the indictment would, in fact, have. charged him with embezzling his own money, as his own servant. (b) By the above statute this difficulty is now obviated.

The prisoner being the secretary of a money club regulated by rules, which, as well as the practice of the club, were stated in the case, was directed by the club to sue upon a joint promissory note, the property of the club, or get better security, and the note was handed to him by W., the treasurer, who was not a member of the club, and who, at the same time, desired that his name should not be used in legal proceedings. The prisoner indorsed W.'s name on the note, employed an attorney who issued a writ, and, in consequence of the action, the money was paid to the prisoner by one of the joint makers, which he fraudulently withheld from the club, and appropriated. The duties of the prisoner stated, in the rules of the club, comprised duties cognate to that of receiving money for the club, but not expressly that duty :—Held, that the prisoner had received the money as servant, for the use of the club, and that he was properly convicted of embezzlement:-Held, also that the employment to receive money was sufficient, though receiving money

(a) Reg. v. Tyree, L. R. 1 C. C. R. 177; 38 L. J. (M. C.) 58.

(b) See Reg. v. Diprose, 11 Cox, 185; Reg. v. Taffs, 4 Cox, 169; Reg. v. Bren, L. & C. 346; 33 L. J. (M. C.) 59; Arch. Cr. Pldg. 449.

was not the prisoner's usual employment, and it was the only instance in which he was so employed. (a)

A" charter master," who received a certain sum for every ton of coal he raised, was also allowed to sell coal for his employer, the owner of the colliery. It was the prisoner's duty to pay over the gross money received on such sales, and he was subsequently allowed a poundage thereon. The prisoner having converted money received for coal to his own use, and neglected to account for it: -Held, that, although the sale of the coal was not compulsory, he was servant to the colliery, so as to support an indictment for embezzlement. (b)

A person engaged by a manufacturer as a commercial traveller, to be paid by commissions, with liberty to take orders for others, is a servant. (c)

It is no defence to an indictment for embezzlement, that the prisoner intended to return the money fraudu lently appropriated. (d)

A conviction for embezzlement has been supported, though it appeared that the prisoner entered the sum appropriated in his master's ledger. (e) Where a person receives money, and pays it away and omits to credit it as received, but charges it as paid away, for the fraudulent purpose of concealing an appropriation by him of that amount to his own purposes, or to purposes other than those within the scope of his authority or duty, this is evidence from which a jury may infer an embezzlement by him of that sum. (ƒ)

It seems a person cannot be convicted of embezzlement, unless he is shewn to have received some particu

(a) Reg. v. Tongue, 8 U. C. L. J. 55; Bell, 289; 30 L. J. (M. C.) 49.

(b) Reg. v. Thomas, 1 U. C. L. J. 37; 6 Cox, C. C. 403.

(d) Reg. v. Cummings, 4 U. C. L. J. 189, per Spragge, V. C.

(e) Reg v. Lister, 3 U. C. L. J. 18; Dears. & B. 119; 26 L. J. (M. C.) 26.

(f) Reg. v. Cummings, 4 U. C. L. J. 185, per Draper, C. J.; R. v. Groves, I Mood. C. C. 447.

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