REPORTS OF Criminal Law Cases. COURT OF CRIMINAL APPEAL. April 24, 1858. (Before POLLOCK, C.B., WIGHTMAN, WILLES, JJ., REG. v. WALKER. (a) Embezzlement-Servant or agent-7 & 8 Geo. 4, c. 20, s. 17. The prosecutors, manure manufacturers, engaged the prisoner, who kept a refreshment house at B., to get orders, which were supplied from their stores at B. under the prisoner's control. The rent was paid by the prosecutors, and prisoner's duty was to collect money, and pay it over at once; he was also to send weekly accounts of sales and receipts. He was to be paid by commission, and was called agent for the B. district. After some time the prisoner signed a proposal to a guarantee society, which stated that his salary was 11. per year besides commission, and it was proved that the prosecutors had agreed to give this salary of 11. per year. The prisoner was allowed to get in arrear, and was treated as a debtor in respect of such arrears. Having fraudulently returned the names of three persons as owing money to the prosecutors, when the prisoner in fact had received it and appropriated it to his own use, he was indicted for embezzlement : Held, that he was not a servant within the 7 & 8 Geo. 4, c. 29, s. 47, and that he could not be convicted of embezzlement. THE following case was reserved and stated for the opinion of this court by Bramwell, B.: The prisoner was convicted before me, at the last Cheshire assizes, of embezzlement, and sentenced to a year's imprisonment with hard labour. The case was made out, if the prisoner was (a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law. VOL. VIII. B shown to have been a servant within the statute. On this point The prisoner The prosecutors were manure manufacturers. kept a refreshment house at Birkenhead, and the prosecutors while he was so doing, engaged him to get orders for the manure, on which orders, they supplied it from the stores. The prisoner was to collect the money and pay it at once to them; he was also to send them weekly accounts showing what he had sold and what he had received. He was to be paid by a commission. It did not appear that he had undertaken to give any definite quantity of time or labour to the business, but he was to act in a particular district. And in the printed forms given to him on which to make his returns, he was called, "Agent for the Birkenhead District." The evidence of the prosecutor was, "he was to go through the country and see the farmers and get orders, he was to be continually, during the season, among the farmers." The following alteration took place in the mode of dealing, namely, from the 1st of August, 1856, to October 9, 1857, in place of the prosecutors supplying customers on the prisoner's orders, they sent large quantities of manure to stores at Birkenhead, of which they paid the rent; these stores were under the prisoner's control, and from them he supplied the customers whose orders he obtained. This mode of transacting the business partly existed before; and it did not appear but what the first mode, or the mixed mode, might have been resorted to by the prosecutors if they found it convenient. The relations between the parties, evidenced as above mentioned, continued for some time, when the following took place. A proposal was made to a guarantee society to insure the prosecutors in respect of their connection with the prisoner. This proposal was signed by him. It was in a printed form issued by the society, and contained a notice that some amount of salary must be payable, or the society could not insure. The proposal signed by the prisoner stated that his salary was 17. a year, besides commission, which was stated to be estimated at 65l. per annum. The prosecutor swore that at this time he agreed to give the prisoner a salary of 17. a year. The prisoner was allowed to get in arrear, that is to say, he retained in his hands money he acknowledged he had received, and was treated by the prosecutors as a debtor in respect of it. The alleged embezzlement consisted in this, that he fraudulently returned the names of three persons as having had manure without paying for it, when in fact he had received the sums from them. I left to the jury the question whether or no he was a servant within the statute. But entertaining doubts whether there was any evidence that he was, or whether the question was not for me, and if so, whether I ought not to have decided in the prisoner's favour, I have to request the opinion of the Court of Criminal Appeal thereon. REG. v. WALKER. 1958. Servant or agent. M'Intyre, for the prisoner.-The prisoner was not a servant within the meaning of the statute. Here the prosecutors were not in a position to order him to do any particular acts. The evidence showed that he was in the position of an agent or factor. The agreement to pay 17. per annum as salary was merely illusory Embezzlement— to satisfy the guarantee company. The substantial remuneration was by commission. This is somewhat like the case of Reg. v. Goodbody (8 C. & P. 665), where a drover was employed by a grazier to drive eight oxen to London; his instructions were that if he could sell them on the road, he might, and to take those he did not sell on the road to a particular salesman in Smithfield Market, to be sold on the grazier's account. The drover sold two on the road, and sold the remainder in Smithfield Market himself, and received and applied the purchase money to his own use. And it was held that this did not amount to either larceny or embezzlement. [WILLES, J., referred to Rex v. Bayley (2 D. & B. 121), where the prisoner was a delivery clerk employed at a station common to four different railway companies, and had received 5s. for a parcel which came by one of the railways, and accounted only for 3s. in respect of the parcel, keeping back fraudulently the remaining two shillings, and it was held that in an indictment for embezzling the two shillings the prisoner might be described as the servant of the four companies, or as the servant of the committee who managed the station.] The present case differs from that, here the prisoner was strictly an agent and treated as such. He was styled "agent" on the printed papers. Giffard, for the Crown.-The prisoner was a servant within the meaning of the statute. Every servant is an agent in one sense. It is not requisite that a person should be bound to obey every lawful order of another to constitute him a servant under the statute. Here the prisoner's duty was to get orders, receive the moneys due, and pay them over at once to the prosecutors. [WIGHTMAN, J.-Every factor does that.] The question is, whether he was bound to do it by the contract of service. [BYLES, J.-There was no particular time which the prisoner was bound to serve the prosecutors. BRAMWELL, B.-Had the prosecutors a right to say not only what was to be done, but when and how it should be done?] A person employed upon commission to travel for orders and to collect debts, has been held to be a clerk within the 39 Geo. 3, c. 85 (embezzlement), though he was employed by many different houses on each journey, and paid his own expenses out of his commission on each journey, and did not live with any of his employers nor act in any of their counting-houses: (Rex v. Carr, Russ. & Ry. 198.) So in Reg. v. Wortley (2 Den. C. C. 333), where the prisoner was held to be guilty of embezzlement, the facts were if anything more special than in the present case. The prisoner there agreed with the prosecutor to take charge of certain glebe land, his wife to manage the dairy, poultry, &c. at 15s. per week till Michaelmas 1850, and afterwards at 25l. a year, and a third of the clear annual profit, after all expenses of rent, REG. v. WALKER. 1858. Embezzlement Serrant or agent. rate, labour, and interest on capital, &c., are paid on a fair valuation made from Michaelmas to Michaelmas. The prisoner in accounting with the wife of the prosecutor, as he was accustomed to do, on the 4th of October, denied the receipt of two sums which he had received and appropriated them to his own use, and it was held that this amounted to embezzlement, although Michaelmas was the time agreed upon when a valuation was to be made, and the profits were to be ascertained. The jury have found the prisoner guilty, and the question now is, was there any evidence to support that finding? [WIGHTMAN, J.-Suppose a publican employed for purposes of this kind, would he be a servant?] He might or might not, according to the facts. In R. v. Bayley it was held that a person might be servant to more masters than one. Besides, by the alteration of the terms between the prosecutors and the prisoner, a new contract of master and servant was created, and a salary agreed upon. [WIGHTMAN, J.-The salary was obviously only for getting the insurance effected.] Why, may not, if parties please, expressly contract that the relation of master and servant shall exist between them? The prisoner's case is similar to that of a mercantile traveller, who has been held to be a servant within the statute. The prisoner was bound to furnish accounts. [BYLES, J.-So is a factor; the law implies that contract for him.] In Rex v. Ward (Gow's. N. P. 168), it was held that an extra collector of poor rates, his remuneration being a per centage on his collections, was a servant or clerk within the 39 Geo. 3, c. 85; and Reg. v. Callahan (8 Car. & P. 154), is a decision to the same effect. M'Intyre, in reply.-In Reg. v. Wortley, there was an express contract to serve. In Reg. v. Carr, the prisoner had no authority over the goods. Here, too, there was a debtor and creditor account between the prosecutor and prisoner. Cur, adv. vult. May 1.-JUDGMENT. POLLOCK, C. B.-We are of opinion that the evidence in this case did not establish that the prisoner was the servant of the prosecutors, and that the relation shown to have existed between them was rather that of principal and agent. We therefore think this conviction ought to be quashed. WIGHTMAN, J., concurred. WILLES, J., dubitante. BYLES, J., concurred with the Lord Chief Baron. BRAMWELL, B.-I concur in the opinion that the conviction must be quashed; but I think the former decisions, which I cannot take upon myself to say were wrong, rather favour the conviction. Conviction quashed. COURT OF CRIMINAL APPEAL. May 1, 1858. (Before POLLOCK, C.B., WIGHTMAN, WILLES, JJ., REG. v. WALTER HOOK. (a) Perjury-Evidence of the falsity-Confirmation. The prisoner, a policeman, on the hearing of an information laid by him against a publican for keeping his house open after lawful hours, swore that he knew nothing of the matter except what he had been told, and that he did not see any person leave the house after eleven on the night in question. Perjury was assigned on the last allegation, and to prove the falsity it was proved that several persons did leave the house after eleven, and the magistrates' clerk who took the information proved that the prisoner on laying it, said that he had caught the publican, and that he had seen four men leave his house after eleven on the night in question, mentioning one of the four by name, he being one of those shown to have left that night after eleven. Two other witnesses proved that the prisoner made similar statements to them. It was also proved that the defendant, on the hearing of the information had acknowledged that he offered to smash the case for 30s. And other evidence was given, showing that the prisoner had intended to get, and did get, money from the publican to settle the case: THE Held, that this was sufficient confirmatory evidence to support a conviction. HE following case was reserved and stated by Bramwell, B.: The prisoner was convicted of perjury before me at the last assizes at Chester. He was a policeman, and laid an information against a publican for keeping open his house after lawful hours on the Fast-day. When called as a witness on the hearing of the information, he swore he knew nothing of the matter except what he had been told, by another person, and that he "did not see any person leave the defendant's house after eleven" on the night in question. Perjury was assigned on this last allegation. It was material to show it was false, and the following evidence was given:-The clerk to the magistrates who took the information (a) Reported by JOHN THOMPSON, Esq., Barrister-at-Law. |