BEG.

v.

COELIIO.

1861.

At the close of the case for the prosecutionGiffard contended, "the instrument, the subject of this indictment, is not an undertaking for the payment of money within the statute. The 4 Geo. 4 & I Will. 4, c. 66, s. 3, is the Act under which the indictment is framed, and it was never intended to apply to. Forgery. any idle document that a person may choose to put forth. Here is a bare undertaking to pay certain moneys, of no value in point of law because no consideration appears. If it were a genuine document it would be of no use by the Statute of Frauds."

Metcalfe, referred to Reg. v. Reid (2 Moody, C.C. 62).

Giffard.-There the consideration is expressed. Here there is nothing to indicate any consideration.

Metcalfe. The Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, in the 3rd section, declares that "no special promise to be made by any person after the passing of this Act, to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document." This undertaking was made since the passing of this act, and is good at law.

Giffard.-My argument goes to the state of the law at the time of the passing the act of 1 Will. 4. That act contemplated an undertaking that should be binding at the time of the passing of that act.

The RECORDER.-No; it contemplates a document that should be binding. The 19 & 20 Vict. c. 97 makes this undertaking a valid one, and I think it is properly the subject of this indictment.

Guilty.

COURT OF CRIMINAL APPEAL.

Saturday, November 9, 1861.

(Before POLLOCK, C.B., WIGHTMAN and WILLIAMS, JJ., and MARTIN and CHANNELL, BB.)

REG. v. DONALD M'DONALD. (a)

Embezzlement-Servant or partner-Share of profits.

Previous to 1855 the prisoner was in the prosecutor's service as cashier and collector, and another person, W., as salesman. In that year the prisoner and W. applied each for an increase of salary, and in the end the prosecutors agreed to allow each of them 12 per cent. on the profits, in addition to their salaries, and if there was no profit in any year, neither the prisoner nor W. were to contribute anything towards the loss, but were to receive their salaries only. The prisoner and W. from time to time, instead of receiving their shares of profits at the end of the year, allowed portions of them to remain in the hands of the prosecutors at 7 per cent. :

Held, that the prisoner was a servant of the prosecutors, liable to be convicted of embezzlement, within the meaning of the 7 & 8 Geo. 4, c. 29,

s. 47.

CASE

ASE reserved for the opinion of this Court by the Recorder of the borough of Manchester.

At the quarter sessions for the city of Manchester, holden before me, on Monday, the 24th June, 1861, Donald M'Donald was tried and convicted on an indictment for embezzling three several sums of 6637. 3s., 4491. 5s. 6d., and 1827. 6s., the property of Joshua Lord and another, his masters.

The prosecutors, Joshua Lord and Richard Smith, carried on business as manufacturers at Bacup, under the style of James Smith and Sons, but there were no other partners than the two above named; they also carried on business in Birchin-lane, Manchester, as commission agents in cotton, cloth and yarn. At their establishment in Birchin-lane they sold their own goods manufactured at Bacup, and other persons also consigned goods to them to sell, and they themselves bought goods to sell again there.

(a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

The prisoner was in their service in the Manchester business as cashier and collector, and a person of the name of Edward Williamson was their salesman.

REG.

บ.

DONALD

M'DONALD.

1861.

partner.

In 1855, the prisoner and Williamson having held their respective situations in the service of the prosecutors for about seven years, applied to have their salaries, which were 150%. a-year each, Embezzlement increased. This was not at once acceded to, but in the end the -Servant or prosecutors agreed to allow the prisoner and Williamson each 12 per cent. on the profits, in addition to their salaries; and it was stipulated that if the concern should be a losing one in any year, neither the prisoner nor Williamson were to contribute anything towards the loss, but that in that event they would have to be content with their salaries.

None of these parties intended to alter, nor up to the time of the prisoner's apprehension on this charge, did any of them suppose that they had altered by this arrangement the relation of master and servant, which had previously existed between the prosecutors and the prisoner and Williamson.

After this arrangement the prisoner and Williamson continued to discharge the same duties, and to hold the same positions they had respectively done before, and neither of them had any control over the management of the business.

Amongst the payments which the prisoner as such cashier had to make, were the wages and salaries of servants (the weekly payments were called wages, monthly payments salaries), and in his account he credited himself every month with the payment of his own salary amongst the rest, as he had done before.

At the end of the first year after the arrangement, prosecutors proposed to prisoner and Williamson to leave with them a portion of the profits they had then to receive, and that the prosecutors would allow them 7 per cent. upon it. This was as an inducement to them to save their money, but they both then declined doing so at that time. At the end of the next year, they each left 701. with the prosecutors, they agreeing to pay them 7 per cent. for it, the men being at liberty to draw it out at any time if they thought they could lay it out to more advantage. It was afterwards increased, and at the time of this trial the prisoner and Williamson had each 1207. in the hands of the prosecutors, for which they were entitled to receive 7 per cent. as long as it remained there. Seven per cent. was the interest with which the prosecutors debited the concern on the capital employed by them in it.

There never was in any one year an actual loss to the concern. But in 1860 a great many bad debts were made; and at the stocktaking at the end of that year the profits were very trifling indeed; and the prosecutors, in consideration of that, made to each of their men, the prisoner and Williamson, a present in addition to their salaries.

On these facts the Jury were of opinion that the prisoner was a servant within the meaning of the statute, and found him guilty,

12

REG.

v.

DONALD M.DONALD.

1861.

Embezzlement

CRIMINAL LAW CASES.

and I sentenced him to be imprisoned and kept to hard labour in the gaol of the city of Manchester for eighteen months.

The question for the opinion of the Court is, whether the jury were warranted, on the above-stated facts, in finding that the prisoner was a servant within the meaning of the statute.

If the Court should be of opinion that they were, the verdict -Servant or and sentence to stand; if otherwise, both to be set aside. Ro. B. ARMSTRONG, Recorder of Manchester.

partner.

No counsel appeared for the prisoner.

Hopwood for the prosecution, referred to Harrington v. Churchward (29 L. J. Ch. 521), where it was held that C. having contracted with the Government for the conveyance of mails by sea, agreed with II. to employ him as superintendent of the engineering department during the existence of the contract, at a fixed salary payable quarterly, and in addition thereto, a sum equivalent to 10l. per cent. on the profits, this was a contract of hiring and service, and not a partnership.

By the COURT.-The prisoner was not a partner with the prosecutors, and was properly convicted. Conviction affirmed.

COURT OF CRIMINAL APPEAL.

Saturday, November 9, 1861.

(Before POLLOCK, C.B., WIGHTMAN and WILLIAMS, JJ. MARTIN and CHANNELL, BB.)

REG. v. WILLIAM WEBSTER. (a)

Friendly society-Larceny by member-Ownership of propertyTrustees--Bailee.

H., a member of a friendly society, was in possession of a shop where goods were sold for the benefit of the society. Each member partook of the profit, and was subject to the loss arising from the shop. H. had the sole management, and was answerable for the safety of all the property and money coming to his possession in the course of the management. The prisoner, also a member of the society, assisted in the shop without salary, and was indicted for stealing some marked money which H. had placed in the till. The money was laid in the indictment as belonging to H.:

Held, that the money was properly laid in the indictment as belonging to H., and that the prisoner, although a member of the society, could be convicted of larceny.

CASE reserved for the opinion of this Court by the Chairman

of the West Riding Sessions, held at Sheffield.

William Webster was indicted at the West Riding of Yorkshire Spring intermediate sessions, held at Sheffield, on the 22nd May, 1861, for stealing, on the 11th of May, at Ecclesfield, three sovereigns and one half sovereign, the property of Samuel Fox and others.

It was proved on the trial that James Holt was in possession of a shop, where goods were sold for the benefit of a society called the "Stockbridge Band of Hope Co-operative Industrial Society."

Each member of the society partook of the profit, and was subject to the loss arising from the shop. Holt (being himself a member) had the sole management, and was answerable for the safety of all the property and money coming to his possession in the course of such management. The prisoner, also a member of the society, assisted in the shop without salary.

(a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law.