No. 33, Rupert Street, (whether by mistake or intentionally did not appear); and Davidson, imagining they were for the prisoner, who lodged in his house, delivered them to him, and he converted them to his own use and absconded: he was indicted for stealing goods in the dwelling-house, but it being doubted at first whether these goods were sufficiently under the protection of the house, to constitute a stealing in the dwelling house, within the meaning of the statute, the point was reserved for the opinion of the judges; and they held, that the goods were under the protection of the dwelling-house, and that the conviction therefore was right. R. v. Peter Carrol, Ry. & M. 89.

If you fail to prove the larceny to have been committed in the dwelling-house, within the meaning of the statute, still the prisoner may be convicted of the simple larceny.

7. Indictment for Larceny by Tenants or Lodgers.

If a tenant or lodger steal any chattel, let to be used by him in or with any house or lodging, the indictment may now be "in the common form as for larceny ;" or if he steal any fixture, the indictment may be in the same form, as if he was not a tenant or lodger; and in either case the property may be laid in the owner or person letting to hire. 7 & 8 G. 4, c. 29, s. 45. See the common form of indictment for larceny, ante, p. 156; and the form for stealing a fixture, ante, p. 173.

Felony, punishable in the same manner as simple larceny. 7 & 8 G. 4, c. 29, s. 45. See ante, p. 156.

Evidence.

The evidence may be the same as for common larceny or the stealing of fixtures. respectively, in ordinary cases. See ante, p. 156, 173. The fact of the articles having been let to the prisoner with the house or lodging, and being in his possession under the contract at the time of the stealing, usually appears in evidence; but as this would now be no defence to the indictment, it is little matter whether it appear in evidence or not; and therefore any failure in proof of that part of the case, will be immaterial.

8. Indictment for Larceny by Clerks or Servants.

Berkshire to wit: The jurors for our Lord the King upon their oath present, that before and at the time of the committing of the offence hereinafter [next] mentioned, A. B. late of the parish of

in the county aforesaid, labourer, was clerk [or servant] to one C. D.; and the said A. B., being such clerk to the said C. D. as aforesaid, afterwards and whilst he was such clerk, to wit, on the first day of August, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God,

of the United Kingdom of Great Britain and Ireland King, defender of the faith, with force and arms, at the parish aforesaid, in the county aforesaid, ten pieces of the current gold coin of the realm called sovereigns, of the value of ten pounds, one woollen cloth coat of the value of ten shillings, and one linen shirt of the value of five shillings, [" chattel, money, or valuable security,"] of the monies, goods, and chattels of and belonging to the said C. D., his master aforesaid, then and there being found, feloniously did steal, take and carry away against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. If it be doubtful whether the goods stolen were actually the property of the master, or were merely in his possession or power, at the time of the larceny, add another count thus: And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B. afterwards and whilst he was such clerk to the said C. D. as aforesaid, to wit, on the said first day of August in the year aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, ten other pieces, [&c. as in the first count], in the possession and power of the said C. D., his master as aforesaid, then and there being, feloniously did steal, take and carry away: against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. You may also add a count for larceny at common law, if you think it at all necessary. Or, if there be a doubt whether the offence amount to larceny, in the strict sense of the term, that is to say, whether the property in question ever had been received into the possession of the master, otherwise than by the actual possession of the clerk or servant, add a count for embezzlement, according to the next form.

Felony, transportation for not more than 14 nor less than 7 years; or imprisonment, with or without hard labour, for not more than 3 years, and (if the Court think fit) whipping. 7 & 8 G. 4, c. 29, s. 46.

Evidence.

To maintain this indictment, the prosecutor must prove:

1. That at the time of the larceny, the prisoner was in the service of C. D., as clerk or servant, as stated in the indictment. If he fail to prove this, still the prisoner may be convicted on the third count of the indictment, as for a common larceny.

2. That the prisoner stole the goods, &c. specified in the indictment, or some of them. This is proved in the ordinary way, as directed ante, p. 156. Where upon an indictment for larceny, charging the prisoner in one count with stealing a promissory note for 5l., and in another with stealing silver coin to the value of 5l., it appeared that the prisoner being sent by his masters,

the prosecutors, to get change of a 51. note, got silver for it from a neighbour, but absconded with the silver: being convicted on the second count, the judges held the conviction to be wrong, because the silver had never been in the possession of the masters, except by the hands of the prisoner; they said that he should have been indicted for embezzlement. R. v. Wm. Sullens, Ry. & M. 129. See R. v. Hammon, R. & Ry. 221.

3. That the goods were, at the time, either the property of C. D., or in his possession or power, as stated in the indictment. The value is immaterial.

9. Indictment for Embezzlement by Clerks or Servants.

Same as the form ante, p. 156, to the words] in the county aforesaid, being then and there employed as clerk [" clerk or servant, or any person employed for the purpose or in the capacity of a clerk or servant"] to C. D., did by virtue of such his employment, then and there, and whilst he was so employed as aforesaid, receive and take into his possession certain money to a large amount, to wit, to the amount of ten pounds, [or if it be a chattel, describe it as in larceny, and state its value,] for and in the name and on the account of the said C. D. his master as aforesaid, and the said money then and there fraudulently and feloniously did embezzle and the jurors aforesaid upon their oath aforesaid do say, that the said A. B. then and there, in manner and form aforesaid, the said last-mentioned money, the property of the said C. D. his master, from the said C. D. feloniously did steal, take and carry away against the form of the statute in such case made and provided, and against the peace of our Lord the King, his crown and dignity. As it is permitted by the Act (7 & 8 G. 4, c. 29, s. 48,) to charge the offender with 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: if it be in tended to charge the prisoner thus with other offences, let the second and third counts of the indictment be thus: And the jurors aforesaid upon their oath aforesaid do further present, that the said A. B. afterwards, and within six calendar months from the time of the committing of the said offence in the said first count of this indictment charged and stated, to wit, on the day of in the year aforesaid, at the parish aforesaid, in the county aforesaid, being then and there employed as clerk to the said C. D., did by virtue of such his said last-mentioned employment, then and there, and whilst he was so employed as last aforesaid, receive and take into his possession certain other money to a large amount, to wit, to the amount of ten pounds, for and in the name and on the account of the said C. D., his master as aforesaid, and the said last-mentioned money then and there

fraudulently and feloniously did embezzle: And so, "&c. as in the first count, to the end. It may sometimes be prudent, under circumstances, to add a count for larceny by the prisoner as clerk or servant to the prosecutor, and a count for simple larceny. See the note at the end of the indictment, ante, p. 178.

The venue must be laid in the county in which the embezzlement took place, if that be known. But in the absence of express evidence upon the subject, the venue may be laid, either in the county where the prisoner received the money, or (perhaps more properly) in the county in which he ought to have accounted for it to his master, and did not. 1 Arch. P. A. 411. and see the cases there cited.

Formerly the money, &c. embezzled must have been described specifically, as in larceny; but by 7 & 8 G. 4, c. 29, s. 48, except in the case of an embezzlement of a " chattel," that is to say, in all cases where money, bank notes, bills of exchange, and all other securities for money coming under the denomination of "valuable securities," (see Id. s. 5,) are embezzled, it is sufficient to describe them in the indictment as "money," without stating any particular species of coin or valuable security. Nor is it necessary to state the exact amount or value of the thing embezzled. Nor is it necessary or usual to state from whom the money was received. Also, it is not actually necessary that the indictment should state that the prisoner "feloniously" embezzled the property, if the conclusion of the indictment state that he feloniously" stole it. R. v. Crighton, R. & Ry. 62. It is usual, however, and more prudent, to use the word "feloniously" in both places.

Felony, transportation for not more than 14 nor less than 7 years; or imprisonment, with or without hard labour, for not more than 3 years, and (if the Court think fit) whipping. 7 & 8 G. 4, c. 29, s. 47.

Evidence.

To prove this indictment, the prosecutor must prove⚫ 1. That the prisoner was clerk or servant, or person employed for the purpose or in the capacity of clerk or servant" to the prosecutor. A female servant is within the meaning of the Act. R. v. Elizabeth Smith, K. & Ry. 267. So is an apprentice, although under age. R. v. Wm. Mellish, R. & Ry. 80. And it is not material whether the servant is paid by certain wages, or by a share of the profits arising from his labour. And therefore where, upon an indictment for embezzlement, it appeared that the prisoner was employed by the prosecutor, as master of one of his ships, to take coals from his colliery and sell them, and he was to have a certain portion of the profits (after deducting the price of the coals at the colliery), for his labour; he took cargo of coals, sold them, received the price, and absconde

with it: a majority of the judges held that he was a servant, within the meaning of the Act. R. v. John Hartley, R. & Ry. 139. So, where the prisoner was employed by the prosecutors as traveller, to take orders for goods and collect money for them from their customers, and was paid by a per centage upon the amount of the orders he obtained for them; he did not live with them, or act in their counting-house; he paid his own expenses on his journies, and he was employed as traveller by several other houses besides: the judges held that he was a clerk to the prosecutor, within the meaning of the Act. R. v. Wm. Carr, R. & Ry. 198. and see R. v. Hoggins, infra. Where the prisoner was employed by the overseers of a township, as their accountant and treasurer, and he received and paid all money receivable or payable on their account; in the course of which employment he received a sum of money on account of the overseers, and embezzled it: the judges held that he was a clerk and servant within the meaning of the Act. R. v. John Squire, R. & Ry. 349. and see R. v. Beacall, Ry. & M. 15. It is immaterial whether the employment be permanent, or occasional only. And therefore where a farmer, having beasts at Smithfield, of which the prisoner had the keeping as drover, sent the prisoner to deliver a cow to a purchaser and to receive the money for it, and the prisoner received and embezzled it: the judges held that the prisoner was a servant within the Act. R. v. Hughes, Ry. & M. 370. So, where it appeared that the prisoner had applied to the prosecutor for employment, who agreed to let him carry out parcels and go of messages when he should have nothing else to do, for which the prosecutor was to pay him what he should think fit; the prosecutor gave him an order, on which he was to receive 27. for him; he received it and embezzled it: the judges held him to be a servant to the prosecutor, within the meaning of the Act. R. v. Wm. Spencer, R. & Ry. 299 and see R. v. Thomas Smith, infra. But, in a similar case, where the prosecutor had sent the prisoner with a check to a banker's for payment, and he received the money and embezzled it, it appeared that although the prisoner had been employed by the prosecutor, sometimes as a regular labourer, sometimes as a roundsman for a day at a time, and had on several occasions been sent to receive the amount of checks at the banker's, he was not at the time in question in the prosecutor's employment, but was to receive 6d. for going to the banker's: Parke, J. (after consulting Taunton, J.) held that he was not a clerk or servant within the meaning of the Act. R. v. Freeman, 5 Car. & P. 534. So, where the clerk of a chapelry was indicted for embezzling money collected by him from the communicants on Sacrament Sunday, and which was for the relief of the poor; and the indictment stated him in one count to be the servant of the clergyman, and in another of the chapel-wardens: the judges held that he could