[to stores under A's control, and of which he was tenant, though B paid the rent, and was forwarded by A to the customers. A was paid £1 a year salary and a commission. A was B's agent, not his servant.

1

(9.) A was engaged by B to solicit orders. He was to be paid by commission. He was at liberty to apply for orders whenever he thought most convenient, but was not to employ himself for any other person than B. A was not B's servant.

2

(10.) The treasurer of a friendly society under 18 & 18 Vict. c. 63, is not the servant of the trustees of the society, though by sec. 22 he is bound before seven days after being required by the trustees (in whom the money is vested by sec. 18) to account to the trustees.

3

(11.) A parish clerk is not a servant, because he is not under the orders of any particular person.

4

(12.) The chamberlain of the commons of a corporation chosen and sworn in at a court, but whose duty it is to superintend the commons and to receive certain duties which he kept till the end of the year, when his accounts were audited and the balance paid over to his successor, is not a servant, because he holds a distinct office, and is not bound to pay at any time.

(13.) 5 The servant of a trade union may be convicted of the embezzlement of its funds, although some of its rules are void as being in restraint of trade.

6

(14.) The servant of a society, the members of which took an unlawful oath under 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104, cannot be convicted of embezzlement for misappropriating the funds of the society.

1 [R. v. Negus, L. R. 2 C. C. R. 34.

2 R. v. Tyree, L. R. 1 C. C. R. 177. A treasurer would appear, as a rule, to be rather a banker than a servant, but every case depends on its special circumstances. In R. v. Murphy, 4 Cox, C. C. 101, the prisoner was both clerk and treasurer (see the explanation of this case given in R. v. Tyree). In R. v. Welch (1 Den. 199), the circumstances were very similar to those of R. v. Tyree, and Coleridge, J., appears to have been satisfied that the prisoner was a servant, and did not reserve the point. It is singular that this case is not referred to in R. v. Tyree.

3 R. v. Burton, 1 Moody 237, explained in Williams v. Stott, 3 Tyrw. 688; 1 Cr. & M. 675.

4 Williams v. Stott, 3 Tyrw. 688; 1 Cr. & M. 675.

5 R. v. Stainer, L. R. 1 C. C. R. 230. In the argument on this case both sides assumed that if the society was criminal the conviction could not be sustained. Cockburn, C.J., said, "It is unnecessary to consider how far the criminal purposes of a society might affect its title to property." As stolen property may be stolen from the thief who stole it (1 Hale, P. C. 507), the question might deserve consideration if it ever arose. R. v. Hunt, in the next illustration, is in point, but it is only a nisi prius decision.] See Art. 483 note.

[R.v. Hunt, 8 C. & P. 642, by Mirehouse (Com. Serj.), after consulting Bosanquet and Coleridge, JJ.]

1 ARTICLE 384.

THE PROPERTY EMBEZZLED MUST BE THE MASTER'S. [The offence of embezzlement cannot be committed by the appropriation of property which does not belong to the master of the alleged offender, although such property may have been obtained by such alleged offender by the improper use of the property entrusted to him by his master, but property which does belong to the master of the offender may be embezzled, although the offender received it in an irregular way.

Illustrations.

2

(1.) 2 B, the high bailiff of a county court, appointed A a bailiff. By rules of practice it was A's duty to pay over moneys levied by him to the registrar. A received certain money and appropriated it, the money being the money of the registrar and not B's, whose servant (if any one's) A was. This was not embezzlement.

(2.) A railway company contracted with B to deliver the railway's coals in the railway's carts, B finding horses and carmen, but the terms of the contract were such as to make the carmen, after receiving the money, answerable to the railway. A, a carman, received money for coals and appropriated it. This was not embezzlement, as the money was not the money of B, but of the railway company.

4

(3.) A, a bargeman, was forbidden by B, his master, to take a cargo on his barge on part of a particular voyage. A took the cargo, appropriated the freight to himself, and denied the receipt of it when questioned by his master. The person from whom he took the cargo and freight knew of no one in the transaction except A. This was not embezzlement, as the freight did not belong to B.

(4.) 5 A, entrusted with a cheque for B, gets it cashed by a friend, and not, as was the regular course, at a bank, and appropriates the proceeds. This is embezzlement.

1 S. D. Art. 310.

2 [R. v. Glover, L. & C. 466.

3 R. v. Beaumont, Dear. 270. The circumstances of this case are at first sight identical with those of R. v. Thorpe, D. & B. 562, in which the conviction was affirmed; but the special terms of the contract, I suppose, make the difference. It is singular that R. v. Beaumont is not referred to in R. v. Thorpe, otherwise than in a note by the reporter at the end of the case.

4R v. Cullum, L. R. 2 C. C. R. 28.

5 R. v. Gale 46 L. J. (M. C.) 134.]

1 ARTICLE 385.

DISTINCTION BETWEEN EMBEZZLEMENT AND OTHER
KINDS OF THEFT.

[The distinction between the embezzlement by a clerk or servant and other kinds of theft is, that in other kinds of theft the property stolen is taken out of the possession of the owner, whereas, in embezzlement by a clerk or servant the property embezzled is converted by the offender whilst it is in the offender's possession on account of his master and before that possession has been changed into a mere custody.

2

Illustrations.

(1.) A, B's servant, has authority to take orders, but none to send out goods from B's shop. A takes an order for pickles and treacle, enters in his master's book an order for pickles only, takes from the shop and delivers to the customer both pickles and treacle, and keeps the price of the treacle. This is a theft of the treacle, as A had no authority to deliver it, but it is not an embezzlement of the price, as it was not received on B's account, but in fraud.

3

(2.) A, a clerk to a navy tailor, goes on board a man-of-war with clothes delivered to him by his master to sell to the marine artillerymen on board. He afterwards enters as a seaman on another ship, carrying off the clothes. A commits theft, and not embezzlement.

4

(3.) A, the manager of a branch bank, has in his office a safe, the property of the bank, and of which the bank manager keeps the key at the head office. A's duty is to put money received during the day into this safe. He takes part of it out of the safe and applies it to his own purposes. This is theft, and not embezzlement.

(4.) 5 A's duty is to get bills accepted and discounted for his master. A having got a bill accepted for his master, lays it with other bills on his master's desk. He then takes it from his master's desk, gets it cashed, and appropriates the money. This is theft.

1 S. D. Art. 311.

2 [R. v. Wilson, 9 C. & P. 27. The prisoner having been indicted for embezzlement escaped.

3 R. v. Hawkins, 1 Den. C. C. 584.

4 R. v. Wright, D. & B. 431.] R. v. Hennessy, 35 U. C. Q. B. 603.

5 [Chipchase's Case, 2 Lea. 699.]

1

[(5.) A receives from his master B, dock warrants enabling him to get property from the docks, and is induced by B to carry the property to London. A on the road appropriates part of the property. This is theft.

(6.) 2 A, B's servant, is sent by B to fetch 240 quarters of oats, which B has purchased, and which are lying on a vessel in the Thames. Whilst the oats are being measured into B's barge, A causes five quarters to be put up in sacks and set aside, the rest being loose. A then sells the sacks of oats for his own benefit from the vessel, and before they were put into the barge. This is theft.

4

(7.) A, B's servant, gets plate for his master from a silversmith, puts it in B's plate-chest, and then takes it out and appropriates it. This is theft. (If he appropriates it before he puts it into the plate-chest, he commits embezzlement.)

(8.) 6 A, B's servant, receives from C, a fellow-servant, £3 of B's money, and appropriates 10s. to his own use. This is not embezzlement (but is theft).

7

(9.) A, a banker's clerk, whose business it is to receive notes over the counter and put them in a drawer, receives a note for £100 from the servant of a customer, and appropriates it to himself without putting it into the drawer. This is not theft at common law, but is embezzlement.

9

8 ARTICLE 386.

EVIDENCE AS TO EMBEZZLEMENT.

The inference that a prisoner has embezzled property by fraudulently converting it to his own use, may be drawn from the fact that he has not paid the money or delivered the property in due course to the owner; or

1 [R. v. Norval, 1 Cox, C. C. 95; 2 Russ. Cr. 313.

2 Abraham's Case, 2 East, P. C. 569.

32 Russ. Cr. 314.

* Per Coleridge, J., in R. v. Watts, 2 Den. 14.

5 A dictum of Wilde, C.J., in R. v. Watts seems to say the opposite, but if this were so, the whole distinction between embezzlement and theft would be taken away (as no doubt it ought to be as a matter of common sense). See Mr. Greaves' remarks on Wilde, C.J.'s dictum and on the whole case of R. v. Watts, 2 Russ. Cr. (4 ed.) 399, notes (b) and (c). 6 R. v. Murray, 2 Russ. Cr. (5th ed.) 314; 5 C. & P. 145; 1 Moody, 276.

Bazeley's Case, 2 Lea. 835; 2 East, P. C. 571. This case occasioned the passing of the 39 Geo. 3, c. 85, now re-enacted in substance by 24 & 25 Vict. c. 96, s. 68.] R. S. C. c. 164, s. 52.

8 S. D. Art. 312.

[These facts are the common evidence of embezzlement given in every instance, and require no illustration. That the non-payment is only by way of delay, the false accounting a mistake, &c., are common topics of defence.] R. v. Cummings, 16 U. C. Q. B. 15.

[from the fact that he has not accounted for the money or other property which he has received; or

from the fact that he has falsely accounted for it; or from the fact that he has absconded; or

1

from the fact that upon the examination of his accounts there appeared a general deficiency unaccounted for;

2 but none of these facts constitutes in itself the offence of embezzlement, nor is the fact that the alleged offender rendered a correct account of the money or other property entrusted to him inconsistent with his having 3 embezzled it.]

3

1 [R. v. Grove, 1 Moody, 447; 2 Russ. Cr. 377. The authority of this case, decided by eight judges to seven, has been doubted. See R. v. Moah, Dear. 626, 639; see, too, R. v. Lambert, 2 Cox, C. C. 309; R. v. Lloyd Jones, 8 C. & P. 288; R. v. Chapman, 1 C. & K. 119 R. v. King, 12 Cox, C. C. 73 ;] R. v. Glass, 1 L. N. 41.

2 [R. v. Hodgson, 3 C. & P. 422; R. v. Winnall, 5 Cox, C. C. 326. Mr. Greaves' note on this case disapproves of the summing-up of Erle, J., on what appears to me to be a misconception of its purport. Mr. Greaves' view that the fraudulent conversion constitutes the offence, and that everything else is only evidence of it is obviously correct; but I think that Erle, J., did not mean to say anything inconsistent with this. Wilful false accounting is now a substantive offence. See 38 & 39 Vict. c. 24, s. 2, and S. D. Article

352.

3 R. v. Guelder, Bell, C. C. 284; R. v. Lister, D. & B. 118.]