only be necessary in this place to state the evidence with regard to the latter head.

Proof that some person was put in bodily fear.] Some doubt existed with regard to the interpretation of the words "being put in fear," under the repealed statutes, but the correct opinion appeared to be, that though it was necessary that some person in the house should be put in fear by the offenders, yet it was not essential that the larceny should be committed in the presence of that person. 2 East, P. C. 633. 2 Russell, 49.

Whether or not it was necessary under the former statutes (and the words of the 7 and 8 Geo. 4, c. 29, were the same) to prove the actual sensation of fear felt by any person in the house, or whether if any person in the house was conscious of the fact at the time of the robbery, the fact itself raised the implication of fear from the reasonable grounds existing, for it did not appear to be any where settled. See 2 East, P. C. 634, 635. According to Mr. East, the practice was to require proof of the actual fear excited by the fact, when committed out of the presence of the party, so as not to amount to a robbery at common law. But he added, that certainly if the person in whose presence the thing was taken, was not conscious of the fact at the time, the case would not fall within the act. 2 East, P. C. 634, 635.

Now by the 7 Wm. 4 and 1 Vict. c. 90, s. 3, the nature of the acts are defined by which fear is to be excited, and in order to make out the of fence, it must be proved that some person, then being in the house, was put in bodily fear, by the use of some menace or threat. See supra.

Upon an indictment for stealing in a dwelling-house, some persons therein being put in fear, the prisoner may be convicted of the simple larceny. Etherington's case, 2 Leach, 673.

*BREAKING AND ENTERING A BUILDING WITHIN THE CURTILAGE. [*391]

A distinction having been created by the 13th section of the 7 & 8 Geo. 4, c. 29, (ante, p. 326,) between such buildings within the curtilage, as have a communication between themselves and the dwelling-house, either immediate or by means of a covered and inclosed passage, and such buildings as have not; the latter species of buildings are protected by a separate enactment.

By the 7 & 8 Geo. 4, c. 29, s. 14, it is enacted" that if any person shall break and enter any building, and steal therein any chattel, money, or valuable security, such building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof, according to the provision hereinbefore mentioned (s. 13, vide ante, p. 326,) every such offender being convicted thereof, either upon an indictment for the same offence, or upon an indictment for burglary, house-breaking, or stealing to the value of 5l. in a dwelling-house, containing a separate count for such offence [shall be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding three years, and if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment."]

Now by the 7 Wm. 4, and 1 Vict. c. 90, s. 2, so much of the above

section as relates to the punishment of persons convicted of the offence therein specified, is repealed, and it is enacted, that every person convieted after the commencement of this act, of any such offence, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, or to be imprisoned for any term not exceeding three years. By s. 3, hard labor and solitary confinement may be awarded, in cases of imprisonment, see ante, p. 384.

The 7 Wm. 4 and 1 Vict. c. 90, contains no express provision, with respect to accessaries, and it may be a question how far the 7 & 8 Geo. 4, c. 29, s. 61, ante, p. 206, is still applicable, as in terms it extends only to felonies punishable under that act, and so much of the act as relates to the punishment of (inter alia) the above offence, is now repealed.

It has been observed, upon the 7 & 8 Geo. 4, c. 29, s. 14, that, specifying as it does, in express terms, a building within the curtilage of a dwelling-house, it appears not to apply to many of those buildings and out-houses, which although not within any common inclosure or curtilage, were deemed by the old law of burglary parcel of the dwelling-house, from their adjoining such dwelling-house, and being in the same occupation. 2 Russell, 55. To this it may be added, that the enactment likewise does not seem to extend to those buildings, which being within the curtilage, yet not communicating with the dwelling-house internally, [ *392] are still held to be parcel of the dwelling-house, as in several of the cases already mentioned. Vide ante, p. 311.

Upon an indictment framed upon this enactment, the prosecutor must prove; 1st, a breaking and entering, as in burglary; 2d, a stealing within the building; 3d, that the building comes within the statute, viz. that it is a building, within the curtilage of a dwelling-house, occupied therewith, and not being part of such dwelling-house, according to the 13th section of the same statute (ante, p. 326,) and, as above suggested, it should also appear that the building is not part of the dwelling-house, according to the rules of the common law.

For the 15th sect. of the 7 & 8 Geo. 4, c. 39, relating to breaking and entering shops, &c., see title, Shop.

Statute 7 & 8 Geo. 4, c. 29.] The offence of embezzlement, by clerks and servants, was provided for by the statute 39 Geo. 3. c. 85; but that

statute is now repealed, and the substance of it re-enacted by 7 & 8 Geo.. 4, c. 29.

By the 47th section of the latter statute it is enacted, for the punishment of embezzlements committed by clerks and servants, "that if any clerk or servant, or any persons employed for the purpose or in the capacity of a clerk or servant, shall, by virtue of such employment, receive or take into his possession any chattel, money, or valuable security for, or in the name, or on the account of, his master, and shall fraudulently embezzle the same, or any part thereof, every such offender shall be deemed to have feloniously *stolen the same from his master, although such [ *393 ] chattel, money, or security was not received into the possession of such master, otherwise than by the actual possession of his clerk, servant, or other person so employed, and every such offender being convicted thereof, shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned." (Sec. 46, transportation for not exceeding fourteen years, nor less than seven, or imprisonment for not exceeding three years, and if a male, whipping, see post, title Larceny.)

Hard labor and solitary confinement may be added, in cases of imprisonment by the 7 & 8 Geo. 4, c. 29, s. 4, qualified by the 7 Wm. 4 and I Vict. c. 90, s. 5, ante, p. 333.

And by the 7 & 8 Geo. 4, c. 29, s. 48, for preventing the difficulties that have been experienced, in the prosecution of the last-mentioned offenders, it is enacted, " that it shall be lawful to charge in the indictment and proceed against the offender for any number of distinct acts of embezzlement, not exceeding three, which may have been committed by him, against the same master, within the space of six calendar months from the first to the last of such acts; and in every such indictment, except where the offence shall relate to any chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved; or if he shall be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him, in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly.”

Upon a prosecution under this statute, the prosecutor must prove; 1st, that the prisoner was a clerk or servant, or a person employed for the purpose in the capacity of a clerk or servant, and that by virtue of such employment he received the money, &c.; 2d, that he received or took into his possession some chattel, money, or valuable security for or on account of his master; and 3d, that he fraudulently embezzled the same, or some part thereof.

Proof of being a servant—what servants are within the act.] It is not every person who is employed as a servant, that comes within the provisions of the statute as to embezzlement; it must be in the course of the servant's employment to receive money, in order to render him liable. Thus, the servant of a carrier employed to look after the goods, but not

intrusted with the receipt of money, is not within the statute. Thorley's case, 1 Moody, C. C. 343 (a). The prisoner was an apprentice to a butcher, and his duty was to carry out the meat, but he had never been employed to receive money. Having delivered a bill for meat to one of [*394] his master's customers, he embezzled the amount. Being convicted of the embezzlement, the judges, on a case reserved, held the conviction wrong, on the ground that it did not appear, by the evidence, that the prisoner was employed to receive money for his master, or received the money in question by virtue of his employment. It seemed to be the opinion of the judges that an apprentice was a servant, within the meaning of the act. Mellish's case, Russ. and Ry. 80 (b).

Where the prisoner was employed to lead a stallion, with authority to charge and receive a fixed sum, but not less, and he received a less sum and embezzled it, this was holden not to be within the statute, because the money was not received by virtue of his employment. Snowley's case, 4 C. and P. 300 (c). So where a servant, who was not authorized to receive money, was standing near a desk in his master's counting-house, and a person who owed money to the master paid it to the servant, supposing that he was authorized to receive money, and the servant never accounted for the money to his master; this was held no embezzlement. Crawley's case, cited by Alderson, B., in Hawtin's case, infra. So where A. owed the prosecutor 57., and paid it to the prisoner, who was the prosecutor's servant, supposing him authorized to receive it, which he was not, and the prisoner never accounted to his master for the money; Alderson, B., held, that this was not embezzlement. Hawtin's case, 7 C. and P. 281 (d).

But it is sufficient if he was employed only upon the one occasion in question to receive money, if acting at that time in the capacity of a servant so employed. Thus, a person employed by a carrier was directed by his employer to receive a sum of 21., which he did receive and embezzled ; and on a case reserved, the judges were of opinion that he was rightly convicted of embezzlement. Spencer's case, Russ. and Ry. 299 (e). So where a drover, keeping cattle for a farmer at Smithfield, was 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 Moody, C. C. 370 (ƒ).

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. and P. 665 (g).

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

(a) 1 Eng. C. C. 343. (b) 1 Ibid. 80. (c) Eng. Com. L. Rep. xix. 436. (d) Id. xxxii. 510. (e) 1 Eng. C. C. 299. (f) 2 Ibid. 370. (g) Eng. Com. L. Rep. xxxiv. 575.

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 stat. 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. and

Ry. 516 (a).

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 habit of receiving money for his master, he is 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. and Ry. N. P. C. 19 (b).

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 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 as the prisoner was intrusted to receive from the porters such monies 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 meant to protect. Beechey's case, Russ. and Ry. 319 (c). 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 monies 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. and P. 626 (d).

*A female servant is within the statute. Elizabeth Smith's [ *396 ] case, Russ. and Ry. 267 (e). So likewise is an apprentice. Mellish's

(a) 1 Eng. C. Č. 516. (b) Eng. Com. L. Rep. xvi. 416. (c) 1 Eng. C. C. 319. (d) Eng. Com. L. Rep. xxv. 568. (6) 1 Eng. C. C. 267.