money paid by the purchaser was that of the owner, and, the prisoner having appropriated it to his own use, they would be justified in finding embezzlement.

Sec. 70 of the Acts of 1869, cap. 21, is borrowed from the English statute. They had a previous English statute, somewhat different. It had the words "shall by virtue of such employment," &c. When Topple received the money, having disobeyed the order, and having received a check, it was a sale by the man Topple himself, and he then was not in the employ of Hamilton and was not receiving money for him. He may have been receiving money under false pretences, or he may have committed a larceny. But he was not Hamilton's servant.

The order was; "Please give the bearer a check for $120, payable to our order if the horse is suitabie, and oblige, T. F. Hamilton." He sold the horse himself and gave a receipt in his own name, "Isaac Topple." Milner received a message from Hamilton, upon which he said he would have nothing to do with the horse, but afterwards bought him from Topple. He took the risk and paid for the horse as Topple's horse. The money was never Hamilton's money. It must be considered a sale by Topple himself, perhaps in fraud of the owner, perhaps a larceny. 2 L. R., C. C. R., 28; 9 C. & P., 27; Stevens' Dig., N. B., 124.

Shannon, Q. C., contra.-The questions for the Court resolve themselves into these,-was the prisoner the servant of Hamilton, and did he as the servant of Hamilton receive the money in question. Stephens' Dig. of Crim. Law, 231, Art. 297, Art. 309. The jury have passed upon the question whether the prisoner was a servant, and have found that he was. Stephens' Dig., Cr. L., 242, 243. Hamilton employed Topple for the particular purpose of selling the horse. L. R., 2 C. C. R., 150; Queen v. Gale, L. J. R., 1877, 133; Stephens' Dig., Cr. L., Art. 311; Archbold's Crim. Ev., 475.

Graham, in reply, comments on the cases already cited. The case relied on by Mr. Shannon, Queen v. Gale, was on a check. The prisoner there changed a check and retained the money. Here the prisoner sold a horse, which was a very different case. The sale by Hamilton was for a check to be

received. The sale actually made was unauthorized. The horse remained the property of Hamilton, and the money was the money of Milner, and the only indictment that would lie would be for obtaining money under false pretences, i. e., money of Milner. The sale was unauthorized further, being for a different price from that authorized by Hamilton, and the payment being in money instead of a check, as ordered by Hamilton. There is no evidence of conversion of the money.

JAMES, J., now, (February 1st, 1879,) delivered the judgment of the Court:

The prisoner was tried and found guilty at the last spring sittings at Halifax before the Chief Justice, for embezzlement of a sum of $125.25 received by him as the servant of one Thomas F. Hamilton. The case comes before us on the question reserved by the Chief Justice, "whether, under the facts, he ought to be convicted and punished as for an embezzlement."

The prosecutor, Hamilton, owned a horse which he boarded at Brown's stables. The prisoner was not employed as the servant of Hamilton except on the present occasion. In the forcnoon of the 24th December, 1877, Hamilton sent the prisoner with a horse to Capt. Milner, with whom he had had some previous negotiation, with the following order: "E. C. Milner, Esq., Please give bearer cheque for $120 payable to our order if horse has suited, and oblige, yours, etc., Hamilton & Co."

The prisoner took the horse to Capt. Milner who did not take the horse owing to a small difference as to the price; and the prisoner brought back the horse, saying to Hamilton that Milner had no cheque. In the afternoon of the same day Milner sent his servant to Hamilton with a tender of $118.50 as the price of the horse, which Hamilton refused. Between 5 and 6 o'clock the same evening, without any authority or permission from Hamilton, prisoner returned to Capt. Milner and undertook to sell him the horse, alleging it to be his own property, or that he had a right to dispose of it; and Milner purchased it from him and paid him the price, viz., $120, and $1.25 in addition, for one-half of the veterinary surgeon's fee, Topple giving his own receipt therefor. Milner also paid him

for the horse's maintenance until the next day, when he sent his groom and took the horse from the stable, and retained it until the 27th; when Hamilton, who, having learned on the 26th that the horse had been taken, sent to Milner for the price, and then learned that Topple had received the money. This money the prisoner took to his own use. He did not inform Hamilton that he had got it, or account for it in any way.

The learned Chief Justice directed the jury that "if they were of opinion that the prisoner had been employed only on this occasion by the owner of the horse to sell him, that the money paid to him by the purchaser was the money of Hamilton, the owner, and that if the prisoner had appropriated it to his own use they would be justified in convicting him;" and he reserved the points of law.

It was contended on behalf of the prisoner that he was not in fact, or in law, the servant of Hamilton in this transaction, and therefore his selling the horse and receiving the money was entirely unauthorized, and the money received by him was not the money of Hamilton, but of Milner, and the offence not embezzlement. The cases cited were Queen v. Cullum, 2 C. C. R., 28; Fisher's Digest, 1873, p. 102; 9 C. & P., 27; Stevens' N. B. Dig, 124. Shannon, Q. C., for the Crown, cited Stephens' Crim. Dig., p. 231-2, Art. 297, and cases; Queen v. Negus, L. R., 2 C. C., R., 34; Stephens' Crim. Dig., p. 242, Art. 309; Queen v. Foulkes, 2 C. C. R., 150; Queen v. Gale, 46 Law Journal Rep., (1877,) 134; Arch. Crim. Ev., 475.

I have examined all these cases, but, under the view which I take of the facts, most of them are inapplicable. This case is distinguishable from most of them by the circumstance that the service of the prisoner to Hamilton had terminated. Not being in Hamilton's employ, as his clerk or servant, he was simply sent as a messenger to convey the horse and the order to Capt. Milner, and bring back a cheque payable to Hamilton's order, if Milner decided to keep the horse. He took the horse and brought it back, and there his whole service ended. His going to Milner and bargaining away the horse to him afterwards was unauthorized, and therefore did not transfer the property to Milner; nor was the money which

he received the property of Hamilton, but of Milner, and therefore it was not embezzled from Hamilton. Hamilton, the only witness on this point, expressly denies having given any authority to the prisoner to interfere with the transaction after he brought the horse back, and none of the cases go the length of holding the offence to be embezzlement, when the relation of clerk or servant did not exist. Whether the prisoner was guilty of the offence of obtaining money under false pretences from Capt. Milner, it would be out of place to comment on here, as we are informed that there is an indictment pending against him for that offence, and the proper time to discuss that question will be on the trial of that indictment. I am of opinion that the verdict should be set aside.

MCDONALD, J.-After the terms of sale proposed by Hamilton were declined by Milner, the latter refused to purchase the horse in question on any terms, as the property of Hamilton; but, the defendant having represented that the horse was his own, Milner agreed to purchase the animal as the defendant's property. He did not purchase upon the terms proposed by Hamilton, and the defendant had no authority to sell otherwise. The money was paid not for the use of Hamilton but for that of the defendant. Under these facts I do not think that the property passed to Milner, who voluntarily returned the horse to the rightful owner, Hamilton. If he had refused to do so, could Hamilton have recovered possession in an action at law? I think he could; and, if so, the money said to have been embezzled never was Hamilton's money at all--and it follows that the prisoner cannot be punished for embezzling that money as the money of Hamilton.

WOODWORTH v. BORDEN.

A PETITION against the return of the respondent headed "in the Election Court; Contro-. verted Elections Act, 1874, &c.," was filed in the office of Martin I. Wilkins, as clerk of the Court, and served upon the respondent by the petitioner. The rules adopted by the Court prescribed that the petition should be filed with the clerk of the Election Court, and the act, by section 40, required the petition and notice, "with a copy of the deposit receipt to be served as nearly as may be in the manner in which a writ of summons is served in civil matters." Respondent denied that any copy of the deposit receipt had been served upon him and was contradicted by the petitioner's affidavit. Mr. Wilkins' appointment was made by a record substantially in these terms; "Record of the proceedings of the Supreme Court of Nova Scotia as constituted a court for the trial of controverted elections by 37th Vict., c. 10, entitled, &c. The Court opened and organized, present, &c. The Court appointed the prothonotary Martin 1. Wilkins to be clerk of the Court under the provisions of the statute in that behalf.

Held, that the act,-the Controverted Elections Act of 1874,-was not ultr avires, that, although the petition would have been more properly headed in the Supreme Court, the heading "in the Election Court," foll ved by the words, "the Controverted Elections' Act, 1874," was unobjectionable, (or, per SIR WM. YOUNG, if objectionable, the objection was completely cured by the rule of the Court discountenancing merely formal objections,) that the petition had been filled with the proper officer and could not, as respondent contended, have been properly filed with the clerk of the Election Court organized under the statute of 1873, as that Court was defunct; that the service of the petition was bad, as it should have been made by the Sheriff, and that the burden of proof of the service of the deposit receipt rested upon petitioner, and had not been made out to the satisfaction of the Court; that these defects were not remedied by the rule as to merely formal objections, and had not been waived by the respondent; and that no circumstances had been shown to justify the enlargement of the time for servicз, even assuming that the Court had the power to enlarge it after the expiration of the time for service limited by the rules.

The petition was set aside without costs, as petitioner had succeeded on nearly all of the eighteen grounds taken against him in the rule nisi, and the two grounds on which he had failed came fairly under the head of new points of practice.

THIS was an election petition against the return of the respondent, the sitting member. A rule nisi was granted by JAMES, J., to set aside the petition and service on eighteen grounds, the most important of which were substantially as follows:-That the petition should have been filed with the Clerk of the Election Court, who, it was contended, was Mr. Russell, the Clerk of the Court organized under the Act of 1873; that the Dominion Parliament could not prescribe procedure for a Civil Court of this Province; that the petition should have been entitled "in the Supreme Court," and not "in the Election Court" that the petition had not been filed with the proper officer, Mr. Wilkins, the Clerk, not having been legally appointed; that the petition had not been properly served, not having been served by the Sheriff, but by the petitioner himself; that no copy of the deposit receipt had been served on the respondent, and that the Parliament of Canada had no power to create an Election Court.