not be deemed the servant of either. R. v. Burton, R. & M. 237. Where the master of a charity school was sent by the treasurer, who was also one of the committee, for 15l. which the Ironmongers' Company had given to the charity, and he received and embezzled the money; but it was not the duty of the schoolmaster to receive money on account of the charity, that being entrusted to the collector only: the judges held that he could not be deemed clerk or servant either to the treasurer or the committee. R. v. Nettleton, Ry. & M. 259. And even where the party is in fact clerk or servant to the prosecutor, yet if he was not authorized to receive money, &c. on his account, he will not be deemed a clerk or servant within the meaning of the statute; and therefore where a customer paid some money to a carrier's warehouse clerk, who was not authorized to receive it, that duty being entrusted to the collecting clerk only, and the warehouse-clerk embezzled it: the judges held that he was not a clerk or servant within the meaning of the Act. R. v. Thorley, Ry. & M. 343.

2. That he received or took into his possession the money, &c. for or in the name or on the account of his master, by virtue of his employment as such clerk or servant. That he received it, is usually proved by the person who gave it to him, or by his own admission. If chattels be specified in the indictment as having been received by the prisoner, the things described, or part of them, must be proved in the same way as in larceny ; but if the indictment state a receipt and embezzlement of "money" merely, then the prosecutor may give in evidence a receipt of any species of coin, bank notes, bills, &c. or a receipt of a certain amount, without specifying any particular species of coin or valuable security. See 7 & 8 G. 4, c. 29, s. 48, ante, p. 179. And a variance between the indictment and evidence as to the amount received, is immaterial. R. v. Carson, R. & Ry. 303. According to the statute, (s. 47,) the prisoner shall be deemed guilty of the offence, although the "chattel, money, or security was not received into the possession of such master, otherwise than by the actual possession of his clerk or servant, or other person so employed." Where the prosecutor gave marked money to a friend, with directions to buy some article with it at the prosecutor's shop; and he accordingly bought the article from the prisoner, who was the prosecutor's shopmau, and paid him with the marked money, which the prisoner received and embezzled: it was objected for the prisoner, that as the money had been in the possession of the master, and might be considered as the master's at the time that the prisoner received it, this case did not come within the statute, but was a larceny at common law; but the judges held it to be a case within the statute, and that an indictment at common law would

not lie for it. R. v. Wm. Headge, R. & Ry. 160. The judges in the last case, also, seemed to be of opinion that the statute did not apply to the cases which amount to larceny at common law. Id. And, therefore, if a clerk or servant, instead of receiving the money, &c. from a third person on account of his master, take it out of his master's stock, &c. he should be indicted for the larceny. As for instance, where the prisoner, who was clerk to the prosecutor, received from another of his clerks 20s. of his master's money to pay for an advertisement, and he paid only 10s., charged 20s., and appropriated the other 10s. to his own use: the judges held that he could not be convicted for this, as for embezzlement, as the money had been in the prosecutor's possession by the hands of his other clerk. R. v. Murray, Ry. & M. 276.

That he received it for, or in the name of, or on the account of, his master, the jury may infer from the circumstances of the case. Upon an indictment for embezzlement, it appeared that the prisoner worked for the prosecutors, who were turners; that it was part of his duty to receive orders for jobs, to take the materials from his master's stock and work them up, to deliver out the articles and receive the money for them, and to pay the whole of the money received to his masters; and every week he received for his labour a certain proportion of the money received for the articles made by him: in his character of servant to the prosecutors, he received an order for six dozen of coffee-pot handles, he took the wood from his masters' stock, he turned the handles on their premises and used their machinery, he delivered them, received the price, concealed the transaction, and kept the whole of the money, his own share of it being only about a third: the prisoner was convicted; but it being doubted whether this was not rather a larceny of the materials, than a case within the meaning of this Act, the matter was submitted to the judges; and they unanimously agreed that the conviction was correct. R. v. John Hoggins, R. & Ry. 145. Whether the case of a servant receiving money from the master, and embezzling it, be within the meaning of the Act, was a question submitted to the judges in R. v. Elizabeth Smith, R. & Ry. 267; but no opinion was delivered upon it, the case being decided upon another ground. Whether the money, &c. embezzled was really due to the master or not, whether he could have recovered it, or had a right in law to receive it, is immaterial, if the servant received it for him, and in his name, and on his account. Resolved by the judges, in Beacall's case, 1 Car. & P. 454.

That he received it by virtue of his employment as clerk or servant, or person employed in that capacity, may also be inferred from the circumstances of the case, and from the evidence given as to the nature of his employment. Where the lessees of the tolls of a turnpike road, hired the prisoner to collect at a

particular gate, at weekly wages, and this was his sole employment; on a particular occasion, one of his masters desired him to receive from a collector at another gate the money collected by him, which he did, and embezzled it: a majority of the judges held, that although the receipt of this money by the prisoner was out of his ordinary 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 the money in question, and had received it by virtue of his being so employed, the case was within the statute. R. v. Thomas Smith, R. & Ry. 516. And in another case, where, upon an indictment for embezzling money of the prosecutors, who were carcass butchers, it appeared to be the duty of the prisoner every evening to receive from the porters the money they received in the course of the day for the meat sold, and to pay it over the next morning to the collecting clerk, but he was not expected in the course of his employment to receive money from the customers themselves; the prisoner called upon one of his master's customers for the amount of his account, received it, and embezzled it and the judges were of opinion, that as the prisoner was entrusted to receive from the porters such monies as they collected from the customers in the course of the day, the receiving of it immediately from the customers, instead of receiving it through the medium of the porters, was such a receipt of money "by virtue of his employment," as the Act meant to protect. R.v. Wm. Beechey, R. & R. 319. But where it was proved to be the duty of the prisoner, a butcher's apprentice, to call daily on certain of his master's customers for orders, but it did not appear that he had ever been employed to receive money; and he received from one of the customers the amount of his bill, and embezzled it: being convicted, and his case being referred to the judges, they were of opinion, that as it was not proved that the prisoner was ever employed to receive money for his master, and it did not therefore appear that he received the money in question by virtue of his employment, the conviction was wrong. R. v. Wm. Mellish, R. & Ry. 80. So, where a customer paid some money to a carrier's warehouse clerk, who was not authorized to receive it, that duty being entrusted to the collecting clerk only, and the warehouse clerk embezzled it, the judges held that it was not a case within the statute. R. v. Thorley, Ry. & M. 343.

3. That he embezzled the money, &c. received by him, or some part thereof. The usual evidence given of the embezzlement is, that having received the money, &c. he denied the receipt of it, or did not account to his master for it when he ought, or accounted for other monies received by him at the same time or after, and not for it; from which the jury may fairly infer that the prisoner either actually disposed of the money to his own use,

"'em

or withheld it from his master, with the intent so to dispose of it, which seems to be the meaning of the word "embezzle." The words in the former statute upon this subject, were, bezzle, secrete, or make away with;" the words "secrete or make away with" are omitted in the present statute, as meaning, I presume, the same thing with the word "embezzle." Where it was proved that the prosecutor had given 5l. 8s. to the prisoner, his housekeeper, to pay the overseer of the poor for poor-rates, and that the overseer had never received that or any other sum from the prisoner: the judges held that this was not sufficient evidence of the prisoner having embezzled the money; the fact of not having paid the money over to the collector, was not evidence of actual embezzlement, it only negatived the application of the money in the manner directed. R. v. Elizabeth Smith, R. & Ry. 267. So, where the prisoner charged himself in his master's books with money received by him, but did not pay it over to the master, Vaughan, B. held this not to be embezzlement. R. v. Hodgson, 3 Cur. & P. 422. Where the prisoner, a clerk to the prosecutors, received on their account a sum of 18/. in one pound notes, and entered in their books the sum of 12. only; he also received on the same day the sum of 1041. 2s. and entered that correctly; and in the evening he accounted with the prosecutors for 116. 2s. only: being indicted for embezzling 6l., the difference between the 187. received, and the 12. accounted for, it was objected on his behalf, that the 116. paid by him to the prosecutors might have included every one of the notes of which the sum of 181. consisted, and if so, he could not be considered as having embezzled any of those notes; he was however convicted, but the point was reserved for the opinion of the judges; and a great majority of the judges held that the conviction was right, and that he was guilty of an embezzlement from the time of his making a false entry. R. v. John Hall, R. & R. 463. The difficulty suggested in this case, of proving an embezzlement of the identical notes or coin received by the offender, is now however wholly obviated by the 48th section of the present statute, as already mentioned, ante, p. 179.

10. Indictment for obtaining Goods, &c. by false pretences. Same as the form ante, p. 156, to the words] in the county aforesaid, unlawfully did falsely pretend to C. D., that [he, the said A. B. was sent to him the said C. D. by E. F. one of his neighbours to request the loan of five pounds, and that he the said E. F. would repay the same to him the said C. D. on the next following day;] by which said false pretence, the said A. B. then and there unlawfully did obtain from the said C. D. [five pieces of the current gold coin of the realm called sovereigns,] of the monies, goods, and chattels of him the said C. D., with intent

then and there to cheat and defraud the said C. D. of the same: whereas, in truth and in fact [he the said A. B. was not sent to him the said C. D. by the said F. F., to request the loan of five pounds, or any other sum of money; and whereas in truth and in fact the said E. F. did not say, or send the said A. B. to the said C. D. to say, that he would repay the same to him the said C. D. on the next following day,] as he the said A. B. did then and there so falsely pretend to the said C. D. as aforesaid to the great damage of the said C. D., to the evil example of all others in the like case offending, 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. See 1 Arch. P. A. 428. The indictment must specify the pretences, R. v. Munos, 2 Str. 1127. R. v. Mason, 2 T. R. 581, and must negative them by special averment, R. v. Perrot, 2 M. & S. 379, as in the above precedent.

Misdemeanor, transportation for 7 years; or fine, or imprisonment, with or without hard labour, or both. 7 & 8 G. 4, c. 29, s. 53.

Evidence.

To maintain this indictment, the prosecutor must prove:

1. The pretence.-It must be a statement of some pretended existing fact, and made for the purpose of inducing the prosecutor to part with his property. Where four were indicted for falsely pretending that one of them had made a bet with a colonel at Bath of 500 guineas, that another of them would run ten miles within the hour, and thereby obtaining 20 guineas from the prosecutor as part of the pretended stakes: it was objected that as the pretended bet related to a future event, it was not within the Act; but the Court held otherwise: it was also objected, that the indictment was not sufficiently certain, merely stating "a colonel at Bath," without naming him; but the Court held it sufficient, for probably he was not named by the defendants: it was also objected that the person alone who actually uttered the false pretences could be convicted, and that the others ought to have been acquitted; but the Court held that as all were present, and acting in the deceit, they were all equally guilty. Young et al. v. Rex in error, 3 T. R. 98. But where a man induced a butcher to send him meat, upon pretence that he would pay for it on delivery: the judges held that this was not a pretence within the meaning of the statute; it was merely a promise for future conduct. R. v. Moses Goodhall, R. & Ry. 461. So, where the prisoner, a parish pauper, being urged by the overseer to go to work, excused himself by saying that he had no shoes, and the overseer therefore gave him a pair; whereas, in fact, he had at that time two pair of shoes which he had before obtained from the parish: the judges held that