election petition. § 9. May be withdrawn on certain conditions.

Recognizances.-§ 10. Before presentation of any petition the petitioner to give security by recognizance for £200 for payment of costs. § 11. Sitting member to give security for costs to the amount of £100 before issuing a commission on his behalf to take evidence. § 12. Sureties to justify upon oath for the amount they are bound for. § 13. To be designated by their names, residence and occupation. § 14. Recognizances to be entered into before the Speaker or a justice of the peace. § 15. Money may be deposited instead of giving security. § 16. Petition not to be received unless the Speaker certify by indorsement that the requisite security has been entered into, or amount deposited. The other clauses relate to subsequent proceedings, for which the reader is referred to the act.

Evidence.-By 20 V., c. 23, s. 1, notice to be given by the party intending to contest the election, on ground not appearing on the face of the return, to the member elected within fourteen days after the close of the election, such notice to specify the facts on which he intends to contest the election. § 2. The member elect, within fourteen days after service thereof, shall answer such notice by admission or denial of the facts, setting forth the facts upon which he rests the validity of such election, and he shall not be permitted to give evidence of any other facts or circumstances. § 3. Such answer to be served, within the time limited, by delivering a copy to the party in person, or by leaving the same at his residence with some grown-up person of his family, and proved by affidavit sworn before a justice or commissioner, stating the time, place and manner of service. §4. Either party desirous of taking evidence may apply to the judge of the county court in Upper Canada, residing or having jurisdiction within the electoral division, to take such evidence and the judge shall forthwith appoint the time and place, of which six days' notice shall be given to the opposite party; but such application shall not be received unless made. within six days from the service of the answer of the returned member, or from the expiration of the time allowed for such service: nor unless at the time of such application such contesting party shall produce and file with such judge a copy of his intended petition, and a copy of the said notice, sworn to by the person who served the same, and a copy of the answer, if any, and if no answer, then with an affidavit denying that any answer has been served, together with a recognizance and the affidavit or affidavits of sufficiency on

the part of the sureties required by the election petitions act of 1851 (14, 15 V. c. 1): provided that the application shall be held void if the contesting party shall wilfully omit to file the notice in answer (if any) of the member elected or returned and such application shall not be received on the part of the member who has been declared elected by any such judge, unless made within six days after the service of such answer, nor unless at the time of application the said member shall produce to such judge a copy of the notice served on him, and his answer thereto, together with an affidavit of the service of such answer, and a recognizance and affidavits of the sufficiency of the sureties required by said election petitions act of 1851 from the sitting member. § 5. The recognizance on behalf of the contesting party shall be held to refer to the petition to be presented, of which the copy shall have been filed with the judge as aforesaid, and to no other: and no other or different petition shall be received by the Legislative Assembly; and unless such copy of the intended petition be so filed, the application shall not be deemed validly made, but void. § 6. So soon as the said application shall have been validly made as aforesaid the judge so applied to shall be deemed to all intents and purposes a commissioner for inquiring into, examining and taking evidence upon all the matters of fact and circumstances mentioned in the notice of the contesting party, and the answer (if any) of the returned member, and shall take and cause to be taken by those whom he shall employ as clerks or bailiffs the oath of office in the schedule to the said election petitions act of 1851 contained, varying the words thereof so as to suit the circumstances: and it shall be the duty of the said judges respectively to take upon them the duties imposed by this act, and they shall then have all the powers and rights (including remuneration for their services and the right of appointing deputies to act for them as such judges while engaged in consequence of such application), and shall perform all the duties and be subject to all the liabilities assigned by the said act of 1851 to persons appointed commissioners to take evidence relative to any controverted election, saving only that their powers shall be limited to the questions of fact set forth in the notice and answer (if any) of the parties, and the questions concerning the validity of the recognizance, if it be objected to and the select committee may deal with any such judge as if he had been appointed a commissioner by them. §7. The evidence so taken to be transmitted to the clerk of the Legislative Assembly in the manner prescribed by the said

act of 1851. § 8. The select committee may in the meantime proceed with other matters incident to the contest, or they may adjourn until such evidence be received.

§ 9. Nothing in this act shall prevent the presentation or reception of an election petition containing allegations of bribery or corruption under the special provisions of the 7th § of the said elections act after the time limited for presenting election petitions in other cases shall have expired; or shall be applied to any such petition presented by virtue only of the said section, or shall prevent the application of the 160th § of the said act in any case not provided for in this

act.

For Electoral Divisions, see title "Parliamentary Representation."

EMBEZZLEMENT.

By stat. 4 & 5 V., c. 25, § 39, if any clerk or servant, or any person employed for the purpose or in the capacity of a clerk or servant, shall by virtue of such employment receive or take into his possession any chattel, money, or valuable security for, or in the name, or on the account of his master, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, money or security was not received into the possession of such master otherwise than by the actual possession of his clerk, servant, or other person so employed; and every offender, upon conviction, shall be liable, at the discretion of the court, to any of the punishments which the court may award, as in said act mentioned. § 40. Any number of distinct acts of embezzlement not exceeding three, committed within six calendar months, may be charged in the indictment; and except in the case of chattels, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security. § 41. If any money or security for the payment of money shall be intrusted to any banker, merchant, broker, attorney or other agent, with any direction in writing to apply the same, or the proceeds of such security, for any purpose specified in such direction, and he shall in violation of good faith, contrary to the purpose so specified, in anywise convert the same, or any part thereof to his own use or benefit, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned at hard labour in the provincial penitentiary for any term not less than seven years, or imprisoned in any other prison or place of

confinement for any term not exceeding two years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award. And if any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of this province, or of the United Kingdom of Great Britain and Ireland, or of Great Britain, or of Ireland, or of any British colony, or foreign state or colony, or in any fund of any body corporate, company, or society, shall be intrusted to any banker, merchant, broker, attorney or other agent, for safe custody or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, and he shall in violation of good faith, and contrary to the object or purpose for which the same shall have been intrusted to him, sell, negotiate, transfer, pledge, or in any manner convert the same or the proceeds thereof to his own use, every such offender shall be guilty of a misdemeanor, and upon conviction shall be liable, at the discretion of the court, to any of the punishments which the court may award, as therein before mentioned. § 42. This act not to affect any trustee in or under any instrument whatever, or any mortgagee of real or personal property; nor restrain any banker, merchant, broker, or attorney or other agent, from receiving any money due and payable by virtue of any valuable security, according to the tenor and effect thereof; nor from selling, transferring, or otherwise disposing of any securities or effects in his possession, upon which he shall have any lien or claim, entitling him to do so: unless such sale or transfer shall extend to more than what shall be requisite for satisfying such lien, claim or demand. § 43. If any factor or agent intrusted with any goods or merchandise for sale, or with any bill of lading, warehouse keeper's or wharfinger's certificate, or warrant or order for delivery of goods or merchandise, shall for his own benefit and in violation of good faith, deposit or pledge the same or any of them as a security for any money or negotiable instrument, borrowed or received by such factor or agent, at or before the time of making such deposit or pledge, or intended to be thereafter borrowed or received, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned at hard labour in the provincial penitentiary for any term not less than seven years, or imprisoned in any other prison or place of confinement for any term not exceeding two years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award; but no such factor or agent shall be liable to any

prosecution for depositing or pledging any such goods or merchandise or any of the said documents, in case the same shall not be made a security for or subject to the payment of a greater sum than the amount justly due and owing to such factor or agent from his principal, together with the amount of any bill of exchange drawn by or on account of such principal, and accepted by such factor or agent. § 44. This act not to deprive the party aggrieved of any remedy at law or in equity; nor shall the conviction of any offender be evidence against him; nor shall any accused party be convicted upon any evidence disclosed by him in any court of law or equity, or before commissioners of bankruptcy.

By 18 V., c. 92, it is provided that if any person indicted for embezzlement as a clerk, servant or person employed in that capacity shall be proved to have taken the property in any manner as to amount in law to larceny, he may be found guilty of larceny and punished accordingly and so vice versa upon an indictment for larceny the defendant may be found guilty of embezzlement according to the facts and punished accordingly.

See also Bank of Upper Canada Amendment Act, 19 & 20 V., c. 121, § 40, which makes it felony for any cashier, assistant cashier, manager, clerk or servant of said bank to secrete, embezzle or abscond with any bond, bill or note, or any security for money or any moneys or effects of said bank, or other parties deposited with said bank. § 41. Punishment therefor imprisonment in the provincial penitentiary for any term not less than two years, or in any other gaol for a lesser term.

Form of Indictment for Embezzlement pursuant to
18 V., c. 92.

County of

to wit.

The jurors for our lady the Queen upon their oath present that A. B. on the day of in the year of our Lord one thousand eight hundred and at in the county of being a servant (or clerk) then employed in that capacity by one C. D. did then and there in virtue thereof receive a certain sum of money, to wit, to the amount of for and on account of the said C. D., and the said money did feloniously embezzle.

EMBRACERY.

Is an attempt to influence a jury corruptedly to one side by promises, persuasions, entreaties, money, entertainments and the like. The punishment for the person embracing is by fine and imprisonment; and for the juror so embraced,