was intrusted to receive from the porters who would have collected from the customer, the receiving immediately from the customer instead of mediately through the porter, was such a receipt as the act was intended to protect, and the conviction was held right. (i) It was also decided upon the same statute, that where a servant generally employed by his master to receive sums of one description and at one place only, was employed by him in a particular instance to receive a sum of a different description and at a different place, this latter sum should be considered as received by him by virtue of his employment, because he filled the character of servant, and it was by being employed as servant that he received the money. The lessees of two toll-bars employed the prisoner to collect the tolls at one, and in a particular instance ordered him to receive the money collected by another person at the other; which he received accordingly, and embezzled it. A case being reserved upon the question, whether he received that money by virtue of his employment, Abbott, C. J., Holroyd, J., and Garrow, B., thought he did not, because it was out of the course of his employment to receive that money; but Park, J., Burrough, J., Best, J., Hullock, B., and Bayley, J., thought otherwise, because, though this was out of the ordinary course of his employment, yet as he was servant to the lessees, and in his character of servant to them had submitted to be employed by them to receive this money, and had received it by virtue of his being so employed, the case was within the statute, and the conviction right. (k) Shortly after the 39 Geo. 3. c. 85. was passed, it was ruled, that it was an offence within its provisions for a servant to embezzle money received from a customer of his master's, though the money had been given to the customer by the master in order that it might be paid in the course of business to the servant, for the purpose of trying the servant's honesty. The indictment charged the prisoner, as a servant of one John Gregory, with receiving the sum of seven shillings from one Hannah Morris, for and on account of his master, and afterwards feloniously embezzling the same. On the evidence it appeared that Gregory, who was a potatoe-merchant, having reason to suspect the prisoner of dishonesty, procured Hannah Morris to come to his shop with a marked seven-shilling piece of his own money, there to purchase potatoes, and pay for them with the seven-shilling piece. She came accordingly, bought potatoes to the amount of one shilling and three pence, and paid the marked seven-shilling piece to the prisoner, who gave her out of his own pocket five shillings and ninepence in change, though he might have given the change out of monies belonging to his master which had been left in the counting-house for that purpose. The seven-shilling piece was afterwards found secreted in the prisoner's box. Upon this evidence it was contended, on behalf of the prisoner, that the case was not () Rex v. Beechy, cor. Knowlys, C. S. at the Old Bailey, and before the Judges, Hil. T. 1817, MS. Bayley, J., and Russ. & Ry. 319. (k) Rex v. Smith, Tr. T. 1823, MS. Bayley, J., and Russ. & Ry. 516. Headge's case. In this case it was decided by the twelve Judges, that servant se a creting money which the master had marked and sent by a per his shop, with a view of try ing the honesty of the servant, com fence within that statute. within the act; and that the act applied only to cases where the monies had been paid to the servant by other persons than the master, and not, as in this case, where the monies had come intermediately from the hand of the master: but the court was perfectly satisfied that there was nothing in the objection, and that if a servant received the money, either from the master, or from a third person on the master's account, it was sufficient. (7) The same objection was, however, again taken in a case which occurred some years afterwards, and was submitted to the consideration of the twelve Judges, who were of opinion, that it was not well founded. The prisoner was indicted for embezzling three shillings, the property of his masters, James Clarke and John Gyles. The evidence was, in substance, that Messrs. Clarke and Gyles, whom the prisoner served in the capacity of shopman, having reason to suspect that he embezzled some of the monies son to be used received by him in the shop, one of them, Mr. Gyles, on the day in making a mentioned in the indictment, formed a plan for detecting him. In purchase at pursuance of it, he first took an account of the money at that time in the till, and marked it; and then went to the house of a neighbour where he took three shillings from his pocket, marked them also, and then gave them to his neighbour's servant, one Frances mitted an of- Moxen, who by his desire, and also by the order of her mistress, went with them to the shop of Messrs. Clarke and Gyles, and purchased of the prisoner, who was then serving in the shop, articles exactly amounting to three shillings, and paid for them with the three shillings given her by Mr. Gyles. It was clearly proved that the prisoner embezzled these three shillings. Upon this evidence it was submitted to the court, on the behalf of the prisoner, that as the three marked shillings were the property of the prosecutors, and had been taken out of Mr. Gyles's own pocket for the sole purpose of trying the fidelity of the prisoner, the delivery of them to Frances Moxon had not changed the possession of them, which, it was contended, remained constructively with the prosecutors up to the moment when the embezzlement took place; and therefore that the charge should have been for a larceny at common law, and not for an embezzlement under the statute. The court over-ruled the objection; but, upon the prisoner being found guilty, saved the point for the consideration of the twelve Judges; who were of opinion that the case was clearly within the statute, and the conviction proper. Grose, J., who delivered their opinion, referred to Bull's case, (m) as in point; and said, that from that case it appeared that the present, which was precisely similar in its circumstances, was not a case of larceny at common law, but a breach of trust, and as such within the terms and operation of the statute. (n) The repealed act 39 Geo. 3. c. 85. held not But where the property taken was delivered to the servant by the master himself, it was decided that the case was not within (Whittingham's case, O. B. 1801, (n) Headge's case, O. B. 1809. 2 Leach 1033. Russ. & Ry. 160. It seemed to be the opinion of the Judges that the statute did not apply to cases which are larceny at common law. servant by his master. the repealed statute. Thus, where the evidence was that the pri- to apply where soner received from her master two five pound notes, and the property some taken was deother money to pay amongst other things 57. 3s. to the overseer, livered to the and the overseer proved that she had never paid him, the Judges held a conviction upon these facts to be wrong. (o) In a later case the indictment charged the prisoner with having received and taken into his possession one shilling on account of his master, and embezzling the same; and upon the evidence it appeared, that having two shillings and sixpence of his master's money, to pay on account of his master, he only paid one shilling and sixpence, and converted the other shilling to his own use; upon which the learned Judge directed the jury to acquit the prisoner. (p) case. Counts for larceny at common law, and for bezzlement under the repealed statute 39 Geo. 3. c. have been properly joined in the same in 85., held to dictment. In a case where the prisoner had been convicted at the assizes Johnson's upon the repealed statute 39 Geo. 3. c. 85. and adjudged to be transported for fourteen years, upon an indictment, several counts of which charged him with embezzling bank-notes against the form of the statute, and others with stealing bank-notes in the common form of counts for larceny, it was assigned for error that this was a misjoinder, the counts for embezzlement on the statute and the counts for grand larceny being counts upon which a different judgment ought by law to be given. But the court of King's Bench were of opinion that the counts for embezzlement might well be joined with the counts for larceny, considering that the statute had in fact made the offence of embezzlement described in it a larceny; and that, having so done, it had attached upon it all the properties and consequences attaching upon the crime of larceny. And Lord Ellenborough, C. J., said, "If this were an of"fence of a perfectly different nature, I should have been of opi"nion that the judgment could not have been sustained. But the "act says, that the offender shall be deemed to have feloniously "stolen, which is expressly constituting it a felony, and having so done, the offender must, as in the like cases of felony, pray the "benefit of clergy. But inasmuch as it is larceny, and therefore "liable only to the punishment of seven years' transportation, "this act goes further, and gives power to transport for fourteen "years. The act does not alter the quality of the offence; he is "to be deemed a felon, and as such must pray the benefit of "clergy, just the same as if this enactment for an extended term "of transportation had not been found in the statute. It makes "no alteration in the judgment; the judgment is to pass against "him as a felon; if he does not pray the benefit of clergy, it must "be a judgment of death. And in a variety of cases, though the "punishment be different, yet counts may be joined." And he further added, "Here I think it does not appear that there is a "misjoinder; because both are clergyable felonies; and the de"fendant is liable to the punishment incident to such a felony with "an extension of it to the term of fourteen years." (q) 66 Except as the 48th section of the new act of 7 & 8 Geo. 4. may Indictment (0) Rex v. Eliz. Smith, Hil. T, 1814, MS. Bayley, J., and Russ. & Ry. 267 (p) Peck's case, cor. Park, J., Stafford Sum. Ass. 1817, MS. But it was usual in indictments upon this statute to add a count for larceny at common (q) Rex v. Johnson, 3 M. and S. have otherwise provided, it seems that the indictment ought to contain all the requisites of an indictment for larceny at common law. In a case upon the repealed statute 39 Geo. 3. an indictment was holden to be defective, because it did not expressly aver that the money alleged to have been feloniously stolen taken and carried away by the prisoner was the money of any particular person. The point was reserved for the opinion of the Judges, and was argued before them at considerable length. It was contended, on behalf of the prisoner, in support of the objection, that as the statute had not made the sort of embezzlement therein mentioned eo nomine a distinct and substantive felony, but had only enacted, that the property received into the possession of the servant, and feloniously converted by him, should be considered as having been by such conversion feloniously taken from the possession of the master, the offence still continued a common law larceny; and that consequently an indictment framed upon the statute must contain all the requisites of an indictment for larceny at common law. And in order to shew that it would not be a sufficient answer to the objection, to say that the indictment had followed the words of the statute, several instances were mentioned of indictments upon particular statutes, 1 Edw. 6. c. 12. s. 10. 8 Eliz. c. 4. 22 Car. 2. c. 5. 3 & 4 W. & M. c. 9. s. 1. 10 & 11 W. & M. c. 23. s. 1. 12 Ann. c. 7. and 24 Geo. 2. c. 45. relating to the stealing of particular goods, or stealing goods under certain circumstances, all of which pursue the same form as to the requisite parts of larceny at common law. On the part of the crown it was argued, that the statute in question made the embezzling by servants, in the manner stated, a substantive felony, which before was only a misdemeanor, or breach of trust, for which the master had a civil remedy. That it was therefore sufficient to follow the words of the act, as in other instances where new offences were created; which differed from indictments on statutes merely ousting the offender from clergy in cases which were before larcenies at common law. That the legislature, in this instance, meant to include cases where, from the property being, as it were, in transitu, it was difficult to ascertain in whom it was at the time of the offence committed; and that it therefore intended to relieve the prosecutor from the necessity of laying it to be in any particular person. That at any rate no technical form of words was necessary in charging a thing to be the property of another; and that here enough was stated, to shew that it was not the prisoner's own property, being charged to have been received by him on account of his masters; which was tantamount to an allegation of their having a special property in it. It appears that the Judges at first doubted much upon this case, but that ultimately a majority of them were of opinion that the indictment was defective, as it did not aver that the money alleged to have been stolen was the money of the prosecutors; that the statute made the offence a larceny, and made the possession of the servant, under such circumstances, the possession of the master. (r) (r) M'Gregor's case, O. B. 1801. Feb. 1802. 2 Leach 932. 3 Bos. and Pul. 106. 2 East, P. C. c. 16. s. 18. p. 576. Russ. & Ry. 23. embezzled. The 48th section of the new statute enacts" that except where Allegation as "the offence shall relate to any chattel, it shall be sufficient in to the property "the indictment to allege the embezzlement to be of money without "specifying any particular coin or valuable security; and that "such allegation, so far as regards the description of the pro"perty, 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 com"posed shall not be proved." (s) This is one of the enactments intended to prevent the difficulties experienced in the prosecution of offenders under the repealed statute of the 39 Geo. 3. Under that statute it had been holden that if the evidence did not shew that the prisoner embezzled some part of the property specified the case against him could not be established. An indictment stated that the prisoner received 17. 2s. 6d. in monies numbered, and 67. in one-pound notes, and embezzled part thereof, namely fifteen shillings and seven-pence in monies numbered, and one 17. note: the evidence was that he received at the same time much other money, and many other notes, but that instead of giving credit for 71. 2s. 6d., he only gave credit for 57. 6s. 10d. Upon a case reserved, the Judges held, that as he might have paid over the whole of what he received for the 71. 2s. 6d., and have taken the 17. 15s. 7d. from the other monies he received, he was improperly convicted, there being nothing to shew that he had stolen any part of that money which he was charged with stealing. (u) But it was also holden upon that statute, that if a servant immediately on receiving a sum for his master entered a smaller sum in his master's books, and ultimately accounted to his master for the smaller sum only, he might be considered as embezzling the difference at the time he made the entry; at least that the jury might so find. And that it would not alter the case if he received other sums for his master on the same day, and in paying those and the smaller sum to his master together, he might have given his master every piece of money, or every note he had received at the time he made the false entry. The prisoner received for his master from Mrs. W. eighteen one-pound notes, and immediately entered in his master's books 127. only in the course of the day he received, for his master, 1047. more, and after that time paid him 1167. The indictment charged him with embezzling six of the notes which he received from Mrs. W., and it was urged on his behalf, at the trial, that he might have paid over in the 1167. every one of the notes which he (s) See the section, ante, p. 207. (u) Rex v. Tyers, Mich. T. 1819. MS. Bayley, J., and Russ. & Ry. 402. The notes had been in the master's possession, who took them and placed them on a heap with others before the prisoner, and this objection was made by the prisoner's counsel, and seemed to be acquiesced in, and the case confined to the 17. 28. 6d. only which was in silver. It also appeared that the prisoner at first gave credit for the |