ordered to drive the cattle to a purchaser and receive the money, which he did, and embezzled it, the judges were unanimously of opinion that the prisoner was a servant within the meaning of the act, and that the conviction was right. Hughes's case, 1 Moo. C. C.

But where a drover was employed by a grazier in the country to drive eight oxen to London, with instructions that if he could sell them on the road he might, and those he did not sell on the road he was to take to a particular salesman in Smithfield, who was to sell them for the grazier; and the drover sold two on the road, and instead of taking the remaining six to the salesman, drove them himself to Smithfield market and sold them there, and received the money and applied it to his own use; it was held by Littledale, J., and Parke, B., (there being separate indictments against the prisoner for larceny and embezzlement,) that he could not be convicted of either offence. Goodbody's case, 8 C. & P. 665.5

It is not necessary that the servant should have been acting in the ordinary course of his employment when he received the money, provided that he was employed by his master to receive the money on that particular occasion. The prisoner was employed to collect the tolls at a particular gate, which was all that he was hired to do; but on one occasion his master ordered him to receive the tolls of another gate, which the prisoner did and embezzled them. Being indicted (under the 39 Geo. 3, c. 85,) for this embezzlement, a doubt arose whether it was by virtue of his employment, and the case was reserved for the opinion of the judges. Abbott, C. J., Holroyd, J., and Garrow, B., thought that the prisoner did not receive the money by virtue of his employment, because it was out of the course of his employment to receive it. But Park, J., Burrough, J., Best, J., Hullock, B., and Bayley, J., thought otherwise; because, although out of the ordinary course of the prisoner's employment, yet as, in the character of servant, he had submitted to be employed to receive the money, the case was within the statute. Thomas Smith's case, Russ. & Ry. 516.h

So although it may not have been part of the servant's duty to receive money, in the capacity in which he was originally hired, yet *if he has been in the [*441 ] habit of receiving money for his master, he was within the statute. Thus, where a man was hired as a journeyman miller, and not as a clerk or accountant, or to collect money, but was in the habit of selling small quantities of meal on his master's account, and of receiving money for them; Richards, C. B., held him to be a servant within the 39 Geo. 3, c. 85, saying, that he had no doubt the statute was intended to comprehend masters and servants of all kinds, whether originally connected in any particular character and capacity or not. Barker's case, Dow. & Ry. N. P. C. 19.

If the servant be intrusted with the receipt of money from particular persons, in the ordinary course of his employment, and receives money from other persons and embezzles it, the case seems to be within the act. The prisoner was employed by the prosecutors in the capacity of clerk, as evening collector, in which character it was his duty to receive every evening, from the porters employed in the business, such money as they had received from the customers in the course of the day; and it was the prisoner's duty to pay over these sums to another clerk the following morning. He was not expected in the course of his employment to receive money from the customers themselves. Having called on a customer for the payment of a bill, he received a check and embezzled it. Being convicted of this offence, the judges, on a case reserved, were of opinion, that the prisoner was in• 1 Eng. C. C.299. 'Id. 370. Eng. C. L. Reps. xxxiv. 575. 1 Eng. C. C. 516. i Eng Com. Law Reps. xvi. 416.

trusted to receive from the porters such moneys as they had collected from the customers in the course of the day, the receiving immediately from the customers, instead of receiving through the medium of the porters, was such a receipt of money "by virtue of his employment" as the act was meant to protect. Breechey's case, Russ. & Ry. 319. So where the prisoner received a sum of money from one of his master's regular customers, and it appeared that it was not part of his duty to receive moneys from those persons, it was ruled by Arabin, S., after consulting Gaselee, J., Alderson, B., and Gurney, B., that this was within the statute. Williams's case, 6 C. & P. 626.1

A female servant is within the statute. Elizabeth Smith's case, Russ & Ry. 267 So likewise is an apprentice. Mellish's case, Russ. & Ry. 80," ante, p. 439. So a clerk or servant to a corporation, although not appointed under the common seal, for he is, notwithstanding, a person employed as a clerk or servant within the statute. Beacall's case, 1 C. & P. 457 ;o 2 Russ. by Grea. 159.(n) And in Williams v. Stott, 1 Crom. & M. 689, it is said by Vaughan, B., that there can be no doubt that the statute would be held to embrace persons employed in the capacity of clerks or servants to corporations.

A person who is the servant of two persons in partnership, is the servant of each within the act (but see post, p. 443.) The prisoner was in the employ of B. and R. as their book-keeper. While in this situation, he received into his possession the notes in question, being the private property of B. to be deposited in the safe where the money of the firm was usually kept. Being indicted for embezzling these notes, it was objected that he was the servant of the partners, and not of the individuals; but Bayley, J., held that he was the servant of both [each,] and said that it had been decided by the judges, that where a traveller is employed by several houses to receive money, he is the individual servant of each. Carr's case, Russ. & Ry. 198, post, p. 443; Leech's case, 3 Stark. 70. A person employed by A. B. [ *442 ] to *sell goods for him at certain wages, may be convicted of embezzlement as the servant of A. B., though at the same time employed by other persons, and for other purposes. Reg. v. Batty, 2 Moo. C. C. 257.

A. being one of several proprietors of a Hereford and Birmingham coach, horsed it from Hereford to Worcester, and employed the prisoner to drive it when he did not drive it himself, the prisoner having all the gratuities, as well when A. drove as when the prisoner did so. It was the prisoner's duty, on each day when he drove, to tell the book-keeper at Malvern how much money he had taken, the bookkeeper entering the sum, together with what he had taken himself, in a book and on the way-bill, and he then had to pay over the latter sum to the prisoner, who was to give the two sums to A. The prisoner gave true accounts to the book-keeper, who made true entries, but the prisoner accounted for smaller sums to A., saying that these were all, and paid over to A. such smaller sums. All the proprietors were interested in the money, but A. was the party to receive it, and he was accountable to his co-proprietors. It was held by Patteson, J., that this was embezzlement, and that the prisoner was rightly described in the indictment as the servant of A., and that the money embezzled was properly laid as the money of A. White's case, 8 C. & P. 742 ; S. C. 2 Moo. C. C. 91.

Proof of being a servant within the statute-wages or payment of servant.] Several cases have occurred in which doubts have arisen whether the party offending could be considered a servant within the meaning of the statute on ac* 1 Eng. C. C. 319. 1 Eng. Com. Law Reps.. xxv. 568. m 1 Eng. C. C. 267. ■ Id. 80. • Eng. Com. Law Reps. xi. 450. P Id. 198.

9 Id. xiv. 165.

Id. xxxiv. 614.

count of the manner in which he was remunerated for his services. The allowance of part of the profit on the goods sold will not prevent the character of servant from arising. The prisoner was employed to take coals from a colliery and sell them, and bring the money to his employer. The mode of paying him was by allowing him two-third parts of the price for which he sold the coal, above the price charged at the colliery. It was objected that the money was the joint property of himself and his employer; and the point was reserved for the judges, who held that the prisoner was a servant within the act. They said that the mode of paying him for his labour did not vary the nature of his employment, nor make him less a servant than if he had been paid a certain price per chaldron or per day; and as to the price at which the coals were charged at the colliery in this instance, that sum he received solely on his master's account as his servant, and by embezzling it became guilty of larceny within the statute. Hartley's case, Russ. & Ry. 139. The prisoner was employed by the prosecutors, who were turners, and was paid according to what he did. It was part of his duty to receive orders for jobs, and to take the necessary materials from his masters' stock to work them up, to deliver out the articles, and to receive the money for them; and then his business was to deliver the whole of the money to his masters, and to receive back at the week's end, a proportion of it for working up the articles. Having executed an order, the prisoner received three shillings, for which he did. not account. Being convicted of embezzling the three shillings, a doubt arose whether this was not a fraudulent concealment of the order, and an embezzlement of the materials; but the judges held the conviction right. Higgins's case, Russ. & Ry. 145.t

*A partner in a firm contracted to give his clerk one-third of his own [*443 ] share in the profits. The other partners knew of and assented to the arrangement. It was held by Chambre, J., that this did not make the clerk a partner, and he was convicted of embezzlement. Holmes's case, 2 Lew. C. C. 256. The above learned judge quoted a parallel case on the northern circuit before Wood, B. The prisoner was employed by a Mr. F. as master of a coal-vessel, who sent him with a cargo of coals. The custom of the trade was for the person who superintended the business to receive two-thirds of the freight, and the owner one-third. The prisoner took the whole; whereupon he was indicted for embezzlement, and convicted. It was objected, on his behalf, that he and the owner were joint proprietors of the freight, but a large majority of the judges held the conviction right..

Proof of being a clerk, within the statute.] A person who acts as a traveller for various mercantile houses, takes orders, and receives money for them, and is paid by a commission, is a clerk, (but see post) within the statute. The prisoner was indicted for embezzling the property of his employers, Stanley & Co. He was employed by them and other houses as a traveller, to take orders for goods and collect money for them from their customers. He did not live in the house with them. He was paid by a commission of five per cent. on all goods sold, whether he received the price or not, provided they proved good debts. He had also a commission upon all orders that came by letter, whether from him or not. He was not employed as a clerk in the counting-house, nor in any other way than as above stated. Stanley & Co. did not allow him any thing for the expenses of his journeys. Having been convicted of embezzling money, the property of Stanley

& Co., the judges, on a case reserved, held the conviction right. Carr's case, Russ. & Ry. 198"

But in Goodbody's case, ante, p. 440, Parke, B., said, "I am of opinion that a man cannot be the servant of several persons at the same time, but is rather in the character of an agent. There is one case in which it was held that a man may be the servant of several at one time (Carr's case, supra; and see R. v. Batty, ante, p. 442;) but I wish to have that question further considered by the judges."

A person employed by overseers of the poor under the name of their accountant and treasurer, is a clerk within the statute. The prisoner acted for several years for the overseers of the parish of Leeds, at a yearly salary, under the name of their accountant and treasurer, and as such received and paid all the money receivable or payable on their account, rendering to them a weekly statement, purporting to be an account of moneys so received and paid. Having retained a portion of the moneys for his own use, he was indicted and convicted of embezzlement; and on a case reserved, the judges were of opinion that he was a clerk and servant within the 39 Geo. 3, c. 85. Squires's case, Russ & Ry. 349; 2 Stark. 349. So where a person who acted as clerk to parish officers, at a yearly salary voted by the vestry, was charged with embezzlement, as clerk to such officers, no objection was taken. Tyers's case, Russ. & Ry. 402.* And an extra collector of poor rates paid out of the parish funds by a per centage, was held by Richardson, [*444] J., to be the clerk of the churchwardens and overseers, *so as to support an indictment for embezzlement. Ward's case, Gow, 168.

W

On an indictment against the clerk of a savings' bank, the judges held that he was properly described as a clerk to the trustees, although elected by the managers. Jenson's case, 1 Moo. C. C. 434. So on an indictment for embezzlement, a collector of poor and other rates in the parish of St. Paul, Covent-garden, was held by Vaughan and Patteson, JJ., to be rightly described under a local act (10) Geo. 4, c. xlviii.) as servant to the committee of management of the parish, though he was elected by the vestrymen of the parish. Callahan's case, 8 C. & P. 154. So it was held by the judges that it was embezzlement in a member of, and secretary to a society, fraudulently to withhold money received from a member to be paid over to the trustees, and that he might be stated to be the clerk and servant to the trustees, and that the money was properly described as their property, although the society was not enrolled, and though the money in the ordinary course ought to have been received by a steward. Hall's case, 1 Moo. C. C. 474. So it is embezzlement in the clerk of a friendly society fraudulently to withhold the rents of a house collected in the course of his duty as clerk; and he may be laid to be the clerk or servant of the trustees to whom the house was conveyed, if appointed, either by them or the society. It is no defence that the business of the society has not been conducted according to the statute. Reg. v. Miller, 2 Moo. C. C. 249.

But where a society in consequence of administering to its members an unlawful oath was an unlawful combination and confederacy under the statutes 37 Geo. 3, c. 123; 39 Geo. 3, c. 79; 58 Geo. 3, c. 104; and 57 Geo. 3, c. 19; it was held by Mirehouse, C. S., (after consulting Bosanquet and Coleridge, JJ.,) that a person charged with embezzlement as clerk and servant to such society could not be convicted. Hunt's case, 8 C. & P. 642.b

Eng. C. C. 198. ✓ 2 Id. 434.

▾ Id. 349. W Eng. C. L. Reps. iii. 378.
Eng. C. L. Reps. xxxiv. 334.

*1 Eng. C. C. 402. 1 Eng. C. C. 474.

b Eng. Com. Law. Reps. xxxiv. 593.

d

Proof of being a person employed for the purpose or in the capacity of a clerk or servant within the statute.] It is sufficient, if it be shown that the prisoner was a person employed, for the purpose or in the capacity of a clerk or servant. The casually procuring a person to receive a sum of money will not render that person "a person employed for the purpose, or in the capacity of a clerk or servant." The prisoner was schoolmaster of a charity-school. His appointment was by a committee, of which the prosecutor was treasurer; there was a regular collector to receive the subscriptions to the school. The duty of the prisoner was only to teach the scholars. The prosecutor had been accustomed himself to receive a voluntary contribution to the school, but being confined to his bed, he left a written direction for the prisoner to receive it. This was not the order of the committee. The prisoner received, and did not account for the money. Being convicted of embezzlement, the judges, on a case reserved, were unanimously of opinion that the conviction was wrong, inasmuch as the prisoner did not stand in such a relation to the prosecutor, or the committee, as to bring him within the act 7 and 8 Geo. 4, c. 29. Nettleton's case, 1 Moody, C. C. 259. So where the prisoner had sometimes been employed by the prosecutor as a regular labourer, and sometimes as a roundsman, for a day at a time, and had been sent *several times by him [ *445 ] to the bank for money; but, upon the day in question, was not working for the prosecutor, and was sent to the bank for money, receiving sixpence for his trouble; having applied the money to his own use, and being indicted for embezzling it, it was held by Park, J., (after conferring with Taunton, J.,) that the prisoner was not a servant of the prosecutor within the meaning of the act of parliament, and that it was no embezzlement. Freeman's case, 5 C. & P. 534. The clerk of a chapelry, who receives the sacrament money, is not the servant either of the curate or of the chapelwardens, or of the poor of the township, so as to render a retaining of part of the money collected by him embezzlement. Burton's case, 1 Moody, C. C. 237. A person was chosen and sworn in, at a court-leet held by a corporation, as chamberlain of certain commonable lands. The duties of the chamberlain (who received no remuneration,) was to collect moneys from the commoners and other persons using the commonable lands; to employ the money so received in keeping the lands in order; to account, at the end of the year to two aldermen of the corporation; and to pay over any balance in his hands to his successor in office. In an action for accusing this person of felonious embezzlement, it was held by the court of Exchequer that the plaintiff was not a clerk or servant within the 7 and 8 Geo. 4, c. 29, s. 47. Mr. Baron Bayley said, "It appears to me that the statutory provision was intended to embrace persons of a very different description from the plaintiff. From the whole of that provision, it seems to me to have been intended to apply to persons in the ordinary situation of clerks or servants, and having masters to whom they are accountable for the discharge of the duties of their situation. Now, in the present case, is the plaintiff in that situation? And who are his masters? From the evidence, it appears that he was not nominated by the corporation or commoners, but was appointed to the post of chamberlain at a courtleet. And how can it be said that the corporation or the commoners are his masters, when he does not derive his authority from them?" He then distinguished this case from that of Squires and Tyres, (ante, p. 443,) and thus proceeded: In the present case, I think that the plaintiff does not come within the fair meaning of the statute; he is not the servant of another; he fills an office of his own; he does not receive money in the course of his employment as the mere Eng. C. L. Reps. xxiv. 444. 2 Eng. C. C. 237.

2 Eng. C. C. 259.