missed from the warehouse and the pepper on A was not otherwise identified than by being shewn to be similar to that in the warehouse.

would prove nothing. The finding of a lost will ten years after its loss, locked up in the strong box of a careful person deeply interested in its temporary concealment, and peculiarly jealous of his strong box, would prove a great deal. Between these extremes there may be infinite degrees in the weight of such evidence.

CHAPTER XXXVI.

1EMBEZZLEMENT BY CLERKS AND SERVANTS.

ARTICLE 309.

EMBEZZLEMENT BY CLERKS AND SERVANTS-WHO ARE SERVANTS.

2 WHEN a clerk or servant, or person employed in the capacity of a clerk or servant, commits theft by converting any chattel, money, or valuable security delivered to or received, or taken into possession by him for or in the name or on account 3 of his master or employer, his offence is called embezzlement.

Such a conversion is not a criminal offence (except in the cases hereinafter specially provided for) unless the person who converts stands to the owner of the property converted in the relation of a clerk or servant, or person employed in the capacity of a clerk or servant.

It is a question for a jury whether a person accused of embezzlement is a clerk or servant or not.

5

A clerk or servant is a person bound either by an express contract of service or by conduct implying such a contract to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such clerk or servant to transact.

A man may be a clerk or servant

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although he was appointed or elected to the employment in respect of which he is a clerk or servant by some other person than the master whose orders he is bound to obey;

1 3 Hist. Cr. Law, 151-6. Cf. Draft Code, ss. 249, 250, 258.

2 Founded on 24 & 25 Vict. c. 96, s. 68, See Art. 325 (h.).

3 For an instance in which money was received in the name of one person and on the account of another, see R. v. Thorpe, D. & B. 562.

4

Bramwell, B., doubted as to this in Walker's Case, D. & B. 602; but see R. v. Negus, L. R. 2 C. C. R. 34; R. v. Tite, L. & C. 33 ; R. v. May, L. & C. 13. 5 R. v. Negus, L. R. 2 C. C. R. 37 (judgment of Blackburn, J.); R. v. Tite, L. & C. 33.

• R. v. Foulkes, L. R. 2 C. C. R. 152.

7 Illustration (1).

1although he is paid for his services by a commission or share in the profits of a business;

2 although he is a member of any co-partnership, or is one of two or more beneficial owners of the 3 property embezzled ;

although he is the clerk or servant of more masters than

one;

5 although he acts as clerk or servant only occasionally, or only on the particular occasion on which his offence is committed.

But an agent or other person who undertakes to transact business for another, without undertaking to obey his orders, is not necessarily a servant

because he receives a salary, or

because he has undertaken not to accept employment of a similar kind from any one else, or

because he is under a duty (statutory or otherwise) to account for money or other property received by him.

It seems that in order that a clerk or servant may be within the meaning of this Article it is necessary that the objects of his service should not be criminal, but a man may be such a clerk or servant although the objects of his service are in part illegal as being contrary to public policy.

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Illustrations.

(1.) A, elected collector of rates by the vestry of a parish, and having to obey a committee of management, is the servant of the committee of management.

(2.) A was cashier and collector to B at a salary of £150 a year, besides 12 per cent. on the profits of the business. A was not to be responsible for losses and had no control over the management of the business. A was servant to B.

1 Illustrations (2) and (3).

2 31 & 32 Vict. c. 116, s. 1.

3 "Money, goods, or effects, bills, notes, securities, or other property."

4 Illustration (3).

5 Illustration (4).

• Illustrations (6)—(9).

↑ R. v. Callahan, 8 C. & P. 154. See now 12 & 13 Vict. c. 103, s. 15, which applies also to assistant overseers; R. v. Carpenter, L. R. 2 C. C. R. 29; and see R. v. Person, 1 Moo. C. C. 434.

M'Donald's Case, L. & C. 85.

(3.) 1A took orders for B and collected money for him according to a journey book given to him by B, shewing the sums to be received and the persons from whom they were due. A was paid by a commission. A was clerk to B, though he was principally employed by C, D, and others.

2

(4.) A was employed by B to go on messages when A had nothing else to do, and B was to give A whatever B chose. A was B's servant.

3

(5.) 3 A, a drover, was employed by B, a farmer, on one single occasion to drive a cow and calf to a person to whom they were sold, and to bring back the money. A was B's servant.

(6.) * A, the master of a charity school, on one particular occasion consents to get a subscription to the funds of the school, at the request of the treasurer of the committee of management by which A was appointed, and which managed the school. It was no part of A's duty as master to collect any subscriptions. In getting the subscription A was not the servant of B.

(7.) A, a drover, is employed by B, a grazier, to drive oxen to London, to sell them on the road, if possible, and to take those remaining unsold to a salesman in Smithfield. A is not B's servant.

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(8.) * B engaged A, who kept a refreshment house at Birkenhead, to get orders for manure manufactured by B. A was not bound to give any definite amount of time or labour to the purpose. The manure was sent to stores under A's control, and of which he was tenant, though B paid the rent, and was forwarded by A to the customers. A was paid £1 a year salary and a commission. A was B's agent, not his servant.

(9.) A was engaged by B to solicit orders. He was to be paid by commission. He was at liberty to apply for orders whenever he thought most convenient, but was not to employ himself for any other person than B. A was not B's servant.

(10.) The treasurer of a friendly society under 18 & 19 Vict. c. 63, is

1 R. v. Carr, R. & R. 198. A doubt was expressed as to this last point referred to in this illustration in R. v. Goodbody, 8 C. & P. 665; but R. v. Batty, 2 Moo. C. C. 257, and R. v. Tite, L. & C. 29, uphold R. v. Carr and recognise the principle that a man may be servant to several persons at once.

2 R. v. Spencer, R. & R. 299.

3 R. v. Hughes, Moo. C. C. 370.

R. v. Nettleton, 1 Moo. C. C. 259.

5 R. v. Goodbody, 8 C. & P. 665. The difference between this case and R. v. Hughes in Illustration (5) lies in the power of sale.

R. v. Walker, D. & B. 600.

1 R. v. Negus, L. R. 2 C. C. R. 34.

8 R. v. Tyree, L. R. 1 C. C. R. 177. A treasurer would appear, as a rule, to be rather a banker than a servant, but every case depends on its special circumstances. In R. v. Murphy, 4 Cox, C. C. 101, the prisoner was both clerk and treasurer (see the explanation of this case given in R. v. Tyree). In R. v. Welch (1 Den. 199), the circumstances were very similar to those of R. v. Tyree, and Coleridge, J., appears to have been satisfied that the prisoner was a servant, and did not reserve the point. It is singular that this case is not referred to in R. v. Tyree.

not the servant of the trustees of the society, though by sect. 22 he is bound before seven days after being required by the trustees (in whom the money is vested by sect. 18) to account to the trustees.

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(11.) A parish clerk is not a servant, because he is not under the orders of any particular person.

(12.) The chamberlain of the commons of a corporation chosen and sworn in at a court, but whose duty it is to superintend the commons, and to receive certain duties which he kept till the end of the year, when his accounts were audited and the balance paid over to his successor, is not a servant, because he holds a distinct office, and is not bound to pay at any time.

(13.) The servant of a trade union may be convicted of the embezzlement of its funds, although some of its rules are void as being in restraint of trade.

(14.) The servant of a society, the members of which took an unlawful oath under 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104, cannot be convicted of embezzlement for misappropriating the funds of the society.

ARTICLE 310.

THE PROPERTY EMBEZZLED MUST BE THE MASTER'S. The offence of embezzlement cannot be committed by the appropriation of property which does not belong to the master of the alleged offender, although such property may have been obtained by such alleged offender by the improper use of the property entrusted to him by his master, but property which does belong to the master of the offender may be embezzled, although the offender received it in an irregular way.

Illustrations.

(1.) B, the high bailiff of a county court, appointed A a bailiff. By rules of practice it was A's duty to pay over moneys levied by him to the

1 R. v. Burton, M. C. C. R. 237, explained in Williams v. Stott, 3 Tyrw. 688; 1 Car. & M. 675.

2 Williams v. Stott, 3 Tyrw. 688; 1 Car. & M. 675.

3 R. v. Stainer, L. R. 1 C. C. R. 230. In the argument on this case both sides assumed that if the society was criminal the conviction could not be sustained. Cockburn, C.J., said, "It is unnecessary to consider how far the criminal purposes of a society might affect its title to property." As stolen property may be stolen from the thief who stole it (1 Hale, P. C. 507), the question might deserve consideration if it ever arose. R. v. Hunt, in the next illustration, is in point, but it is only a nisi prius decision.

4

R. v. Hunt, 8 C. & P. 642, by Mirehouse (Com. Serj.), after consulting Bosanquet and Coleridge, JJ.

5 R. v. Glover, L. & C. 466.