Person em ployed to So, as we have seen, a person employed to carry out coals carry out and and sell them, and who was allowed a portion of the profits for his remuneration, was held, by a majority of the judges, to be a servant within the meaning of the stat. of Geo. 3, although it was contended that he was a partner (0). sell coals, though en titled to part of profit. Servant employed to manufacture from master's materials, though entitled to part of price. Collector of poor-rate employed by overseers. And a servant, who manufactured an article from materials the property of his master for a customer, and who, having received the price, embezzled the whole of it, was held to be within the act, although, by the agreement between him and his master, he was to have at the week's end a proportion of the price for his work (p) And it has been held (q), that a person employed by the overseers to collect the poor-rate was properly described as the servant of the overseers, without mentioning the churchwardens; and he having embezzled a rate collected from B., was held properly convicted under the stat. of Geo. 4. And now, to avoid technical difficulties which had previously arisen (r), it is provided by Act of Parliament (s), "That in respect of any indictment or other criminal proceeding, every collector or assistant overseer appointed under the authority of any order of the Poor Law Commissioners or the Poor Law Board, shall be deemed and taken to be the servant of the inhabitants of the parish whose money or other property he shall be charged to have embezzled or stolen, and shall be so described; and it shall be sufficient to state any such money or property to belong to the inhabitants of such parish, without the names of any such inhabitants being specified.” And a superintendent of county police has been held to be properly described as the clerk and servant of the chief constable, appointed under 2 & 3 Vict. c. 93 (t). In that case it was the superintendent's duty to receive from the constables money received by them, and return to the chief constable a statement of such monies; and to pay the constables' wages weekly. In practice he kept accounts with the men, and set off sums received by them against their wages, the balance struck going over to next account, and so on weekly, no money passing. A constable thus accounted for 21. 3s. 6d., but the superintendent fraudulently omitted that sum in his account with the chief constable, and subsequently denied its receipt. He was, nevertheless, held to have received it constructively, by the mode in which the accounts were kept, and convicted of embezzlement. (o) R. v. Hartley, Russ. & Ry. 139; and cases cited, ante, p. 39. (p) R. v. Huggins, Russ. & Ry. 145. (q) R. v. Adey, 1 Den. C. C. 571; S. C. 4 Cox, C. C. 209. And see R. v. Ward, Gow. N. P. R. 168, the case of an extra collector of poor-rates, paid by a per centage on his collection, who was held to be a servant within 39 Geo. 3, c. 85. (r) R. v. Townsend, 2 C. & K. 168; S. C. 1 Den. C. C. 187. In R. v. Truman, 2 Cox, C. C. 306, a collector of poor-rates was held not to be a servant, but an independent officer. (s) 12 & 13 Vict. c. 103, s. 15. (t) R. v. Baxter, 5 Cox, C. C. 302. to collect But it has been held that the clerk of a chapelry, who was But not peremployed to collect the sacrament money from the communi- son employed cants, was not the servant of the minister, churchwardens, or sacrament poor of the township, in which the chapel was situate (u). money; And that a schoolmaster of a charity school, no part of whose nor schoolduty it was to receive subscriptions, but who, on one occasion, master emwas requested by the treasurer to receive a sum of 15l. on ac- occasion by count of the schools, did not stand in such a relation to the treasurer; treasurer or the committee, as to bring him within the act (x). ployed on one chamberlain commonable lands; And a person, chosen and sworn in at a court-leet held by a nor person corporation, as chamberlain of certain commonable lands, who sworn in as received no remuneration, but whose duties were to collect to collect money from the commoners and others using the commonable money for 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, was held not to be a servant within the meaning of the act (y). mission agent receiv And a similar decision was made in the case of a commission nor a comagent, who was also paid a nominal salary of 11. a year (z). The prisoner kept a refreshment house, and was employed by ing a nominal the prosecutors to get orders for their goods, collect the money, salary. and pay it over. He was paid by commission. He was to go R. v. Walker. about among the farmers to get orders, but no definite time was to be spent in so doing, and he was styled their agent for the district. The prosecutors had a store at B. under the control of the prisoner, who supplied customers from the stores, pursuant to the orders he obtained. In order to obtain the security of a guarantee society for the prisoner's conduct, and in compliance with their regulations, it was arranged that the prosecutors should pay the prisoner 17. a year. The prisoner having got into arrear was treated by the prosecutors as a debtor for the amount. The prisoner fraudulently appropriated money received from customers, and gave a false account. It was held that he could not be convicted of embezzlement, as he was not the servant of the prosecutors, but rather their agent. bailee. R. v. Gibbs. Again, a carrier, exclusively employed between glove sewers Nor a carrier and the manufacturers, has been held (a) not to be the servant who was a of either, but a bailee. A. and B. were two among other sewers of gloves residing at C., the manufacturers residing at D. The prisoner was a carrier residing at C., and was exclusively employed between the glove sewers at C. and the manufacturers at D. The sewers were not known to the manufacturers, but when a sewer wanted work, the prisoner gave her name and a number to the manufacturers, and received from them unsewn gloves for her to sew. Each sewer, having her number, sent (u) R. v. Burton, 1 Moo. C. C. 237. It does not appear from the report who had the appointment of the clerk. (x) R. v. Nettleton, 1 Moo. C. C. 259. (y) Williams v. Stott, 1 Cr. & M. 675; S. C. 3 Tyrwh. (z) R. v. Walker, 27 L. J., M. C. 207; S. C. 1 Dears. & B. C. C. 600; 4 Jurist, N. S. 465. (a) R. v. Gibbs, Dears. C. C. 445. He would now be indicted under 20 & 21 Vict. c. 54, s. 4, as a fraudulent bailee. Servant receiving money without autho not within the act. back by the prisoner the gloves when sewn, with her name pinned to the parcel. These parcels the prisoner delivered to the manufacturers, and if the parcels were found correct, he received the total amount due to the sewers in one sum, and fresh parcels of unsewn gloves. His duty then was to deliver to each sewer her fresh work, and also the money due to her, deducting his charge. If any work was missing the manufacturer looked to the sewer if found, but if not, to the prisoner for it. The prisoner, according to the course above stated, took out numbers for A. and B., and having received money for both of them from the manufacturers, denied the receipt of it, and applied it to his own use. It was held that he was not the servant of either A. or B., but merely a bailee, and was only guilty of a breath of trust, not of embezzlement. 2. He must, by virtue of such employment (b), receive or take into his possession some chattel, money or valuable security, for or in the name or on account of his master. If a servant, who has no authority (c) to do so, receive money on account of his master, and appropriate it, he will be held not to have received it by virtue of his employment, and cannot be rity to do so, convicted of embezzlement. Therefore, where (d) a butcher's apprentice, whose duty it was to go round for orders for meat, but who was never employed to collect debts, on one occasion R. v. Mellish. got a customer, on whom he called, to pay him a bill, and pocketed the money; it was held, by all the judges, that he could not be convicted of embezzlement, as it did not appear, by the evidence, that he was ever employed to receive money for his master, or received the money in question by virtue of R. v. Thorley. his employment. This decision was followed in R. v. Thorley (e). In that case the prisoner was servant of B. and Sons, carriers, who had a warehouse at Birmingham, his employment was to look up goods to be carried by his master's waggons, but he had no authority to receive money, all monies being collected by a collecting clerk. On one occasion, a debtor of B. and Sons went into their counting-house, part of the warehouse at Birmingham, to pay a debt, and seeing the prisoner standing at the desk, with some books near him, supposing him to be a clerk authorized to receive money, paid him the money, for which he gave a receipt in the name of B. and Sons. The prisoner pocketed the money. But it was held, that as he had (b) If the servant be engaged, or his duties defined by a written instrument, that of course must be produced, and parol evidence is not admissible to show the terms of hiring or duties unless notice to produce has been given, R. v. Clapton, 3 Cox, C. C. 126, where Patteson, J., said he remembered two or three unreported cases tried at Warwick, one before Coleridge, J., in which it was held that under such circumstances the agree ment must be produced. (c) Authority to the customer to pay to the servant would be sufficient, R. v. Aston, 2 C. & K. 413. (d) R. v. Mellish, Russ. & Ry. 80. (e) 1 Moo. C. C. 343. Semble, this is the case cited by Alderson, B., as R. v. Crawley, in R. v. Hawtin, 7 C. & P. 281. See Barrett v. Deere, Mood. & M. 200, and other cases, ante, p. 159. no authority to receive it, the case was not within the stat. of Geo. 4. And a similar decision was made in R. v. Haw- R. v. Hawtin. tin (f), where it was also held, that a servant, who, although not authorized to receive money for his master, did so, and pocketed it, could not be convicted of larceny of his master's money, as it had never been in his possession; and not of larceny of the money of the person paying the bill, as he had entirely parted with the property of it. ley. Upon similar principles it has been held (g), that a person R. v. Snowhired to lead a stallion round the country, for which he was to charge for each mare 30s., and not take less than 20s., could not be convicted of embezzlement, although it was proved that he had not accounted for a sum of 6s., which was the whole charge he had made on one occasion for covering a mare, as it was his duty to take not less than 20s., and this sum of 6s. was not received by him by virtue of his employment, but contrary to his duty. So where (h) A. was employed only as town traveller and col- R. v. Wilson. lector to go round and take orders from customers, and enter them in the books, and receive the money for the goods supplied in consequence; but he had no authority whatever to take or direct the delivery of goods from the shop. A customer having ordered two articles of A. he entered only one in the order book, but B., the prosecutor's carman, delivered both to the customer. An invoice was made out by the prosecutor for the first article, amounting to 6s. 6d., and B. entered the second article as 4s. 6d. A. afterwards received from the customer the whole 11s., but only accounted to the prosecutor for 6s. 6d. It was held that this was not embezzlement, but larceny, as A. did not receive the 48. 6d. for and on account of his master, but contrary to and in breach of his duty towards that master; and A. was acquitted. Upon similar principles it had been held (i), that a servant R. v. Harris. authorized to grind corn, brought with a ticket, could not be convicted of embezzlement for pocketing money received for grinding corn brought without a ticket. But if a person be employed only on one occasion to receive Servant emmoney, if, acting at that time in the capacity of a servant, he played to rereceive money and misappropriate it, it will be embezzlement, though only (f) 7 C. & P. 281, Alderson, B. (g) R. v. Snowley, 4 C. & P. 390. Of the authority of this case, however, Patteson, J., after consulting Lord Wensleydale, expressed great doubts in R. v. Aston, 2 C. & K. 413. In that case a brewer's drayman, who was authorized to sell porter at 9s. 6d. a dozen, sold some at 6s., saying he would call again for the money. His master having heard of it, told the purchaser he might pay the drayman when he called. He did so, and the dray- (h) R. v. Wilson, 9 C. & P. 27. ceive money, on one occasion. Spencer's And servant authorized to receive money from a particular class of customers, who received money from within the act. Beechey's Case. Thus, where (k) a person employed by a carrier was on one occasion directed by his employer to receive a sum of 21., which he did receive, but misappropriated, he was held rightly convicted of embezzlement. And where a servant was authorized to receive money from a particular class of customers, but received and appropriated money from others, it was held that he might be convicted of embezzlement (1). And so (m) a clerk, who was employed as evening collector to a carcase butcher, in which capacity it was his duty to receive another class, every evening from the porters employed in the business such inonies as they received from customers in the course of the day, and pay the amount over to M. (another clerk), but who was not expected in the course of his employment to receive money from customers themselves, having called on some debtors of his master, and received from them a cheque which he embezzled, was held to have received it "by virtue of his employment," within the meaning of the act of Geo. 3. And a similar R. v. Smith. decision was made in the case of a toll-collector (n), who on one occasion was ordered to receive a debt due to his employers, which he received and embezzled, "because though this was out of the ordinary course of the prisoner's employment, yet as he was servant to H. and J., and in his character of servant to them had submitted to be employed by them to receive the note and monies, and had received them by virtue of his being so employed, the case was within the statute." Contractor's carman em bezzling contractor's money. mont. In the following case (o) it was held that a contractor's carman, receiving money for the contractee, could not be convicted upon an indictment which charged him with embezzling money belonging to the contractor. The prosecutor W., had contracted R. v. Beau with the Great Northern Railway Company to find and provide them with necessary horses and carmen for the purpose of conveying and delivering to the customers of the company the coals of the company in their own waggons, and that he or his carmen should, day by day, duly account for and deliver to the company's coal-manager all monies received from customers in payment for coals so delivered. By the contract the carmen were to obey the orders of the company's coal-manager in all things connected with the carrying and delivery of coal and receipt and payment of (k) Spencer's Case, Russ. & Ry. 299, ante, p. 301; and see R. v. Hughes, 1 Moo. C. C. 370, ante, p. 300; and R. v. Smith, post; R. v. Stanbury, 2 Cox, C. C. 272; R. v. Winnall, 5 Cox, C. C. 326. (1) R. v. Williams, 6 C. & P. 626. From that report it does not appear that the prisoner was authorized to receive money at all. But in R. v. Hawtin, 7 C. & P. 281, Alderson, B., puts the decision on the ground stated in the text. (m) R. v. Beechey, Russ. & Ry. 319; but see R. v. Thorley, Moo. C. C. 343. (n) R. v. Smith, Russ. & Ry. 516. But in Crow's Case, 1 Lew. 88 (2 Russ. on Cr. 178), which was precisely similar, Lord Wensleydale directed an acquittal, observing that he had never approved of the decision in R. v. Smith. (o) R. v. Beaumont, Dears. C. C. 270; S. C. 23 L. J., M. C. 54 (1854). This case was twice argued on account of a difference of opinion among the judges. |