Punishment

of larceny by servants, &c.

Principals and accessories.

of such embezzlements, and will be considered in the succeeding chapter.

It is only necessary further in this place to notice the 7&8 Geo. 4. c. 29. s. 46. which for the punishment of depredations committed by clerks and servants, in cases not punishable capitally, enacts "that if any clerk or servant shall steal any chattel, money, or "valuable security belonging to or in the possession or power of "his master, every such offender, being convicted thereof, shall be "liable, at the discretion of the court, to be transported beyond "the seas for any term not exceeding fourteen years, nor 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."

The 61st section of the act making principals in the second degree, and accessories before the fact, punishable in the same manner as principals in the first degree, applies to every felony punishable under the act; as does the provision also by which accessories after the fact (except receivers of stolen property) are made liable to imprisonment for any term not exceeding two years. (c).

(c) See the clause ante, 179. Larceny.

CHAPTER THE SEVENTEENTH.

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OF EMBEZZLEMENT BY CLERKS AND SERVANTS.

or servants

money, &c. on
account, and
embezzleing
it, shall be

their masters'

deemed to have felo

THE statute 7 & 8 Geo. 4. c. 29. s. 47. for the punishment of 7 & 8 Geo. 4. embezzlements committed by clerks and servants, declares and c. 29. clerks enacts, "that if any clerk or servant, or any person employed receiving any "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 niously stolen "such chattel, money, or security, was not received into the it. "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."

Distinct acts

of embezzlecharged in the ment may be same indict

ment,

The 48th section of the same statute for preventing the difficulties that have been experienced in the prosecution of the last mentioned offenders enacts "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 par❝ticular coin or valuable security; and such allegation, so far as As to alle"regards the description of the property, shall be sustained, if the gation and "offender shall be proved to have embezzled any amount, although proof of the "the particular species of coin or valuable security of which such bezzled. amount was composed shall not be proved; or if he shall be

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66 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 re"turned accordingly."

These provisions are substituted for the repealed statute 39 Geo. 3. c. 85. and those contained in the 48th section are intended to remove the very considerable difficulties which so often

property em

The statute

similar in its effect to the repealed statute 39

Geo. 3. c. 85.

Cases decided upon the re

39 Geo. 3. c. 85.

prevented a prosecution under the repealed statute from being effectual. The full case upon which the master had arrived at the conclusion of his servant's guilt, and determined to prosecute, could hardly ever be laid before the jury, on account of the rule which forbids evidence to be given of two distinct and independent felonies upon one indictment; it repeatedly occurred that the person from whom the prisoner had received the money could not specify the mode of payment; and it happened not unfrequently that the prisoner had received a piece of coin or a note of a larger amount than the sum which was to be paid on account of his master, and had given change. In the former of these cases the jury often acquitted, from an impression that the prisoner had acted by mistake, and unintentional error; an impression which would have been removed, if the facts upon which the master proceeded could have been fully laid before them; and in the two latter cases the prosecution necessarily failed, as being unsupported by the evidence. It is conceived that a better remedy for these defects would have been applied by making the offence a misdemeanor, as the anomalous averments and evidence introduced, by the 48th section, upon a prosecution for felony, would have been avoided, and the prisoner would have had his full defence by counsel; a privilege which, from the nature of the charge, would, in many cases, be highly beneficial.

This enactment of the 7 & 8 Geo. 4. c. 29. s. 47. like the repealed statute of the 39 Geo. 3. has the effect it should seem of constituting the offence described in it a larceny. It specifies what the circumstances are which shall be sufficient to constitute such offence a larceny, and under which circumstances the offender shall be deemed to have feloniously stolen. First, he must be a clerk or servant; then he must by virtue of his employment receive or take into his possession some chattel, money, &c.; and that must be for or in the name or on the account of his master; and he must fraudulently embezzle the same. But probably this statute like the 39 Geo. 3. would be considered not to apply to cases which amount to larceny at common law. (a) Some of the points decided upon the construction of the repealed statute, may properly be noticed.

It was held that a female servant was within that statute. (b) And that statute was held not to be confined to the clerks and pealed statute servants of persons in trade, but to extend to the clerks and servants of all persons whomsoever, if such clerks and servants were employed to receive money, &c.: so that it was decided by the Judges on the point being reserved for their consideration, that a person employed at a yearly salary under the appellation of accomptant and treasurer to the overseers of a township, and whose duty it was to receive all monies receivable or payable by them, was a clerk and servant within that statute. (c) And a person employed upon commission to travel for orders, and to collect debts, was held to be a clerk within that act, though he was em

(a) Rex v. Headge, Russ. & Ry. 160. post. 209.

(b) Rex v. Elizabeth Smith, Hil. T. 1814, MS. Bayley, J., and Russ. & Ry.

267.

(c) Rex v. Squire, York Spr. Ass. 1818, 2 Stark. C. 349., and Russ. & Ry. 349.

ployed by many different houses, on each journey, and paid his own expences out of his commission each journey, and did not live with any of his employers, nor act in any of their countinghouses. In the case in which this point was decided, it appeared that the prisoner was employed by many houses as a traveller to get orders, and to receive debts, and had a commission on such orders and debts; and further, that he paid his own expences, and did not live with any of his employers, or act in any of their counting-houses. Stanley and Co. were amongst his employers. He had embezzled part of the money which he had collected for them, and was indicted under this statute; and the indictment stated that he was employed by Stanley and Co. in the capacity of a clerk, and by virtue of his said employment received, &c. The prisoner having been convicted, a case was reserved, upon which the Judges thought the conviction right. (d) In another case, it was held that a servant employed to carry out goods in his employer's barge, to sell them and to bring back the price came within the statute, by embezzling the money for which the goods sold, although he was to have a certain part of such money for his pay. The prosecutor had a colliery, and barges, and employed the prisoner as captain of one of his barges to carry out and sell coals, and his duty was to bring back the money for which the coals sold, but he was entitled to two-thirds of the difference between such money and the value at the colliery, and duties. He received twenty waggon loads to take down the river to the best market, and he sold them at Gainsborough, at eighteen shillings per chaldron, the value, when he received them, having been fourteen shillings the chaldron. He embezzled the money, but it was urged that he was not a servant within the statute, and that he had a joint interest with the prosecutor in the money he received. A majority of the Judges held that he was a servant within the statute, and that so much of what he received as equalled the value at the colliery, and duties, was received solely for the use of the prosecutor, and that the embezzlement of it was an offence within the statute. (e)

An apprentice, though under the age of eighteen, was held to be within the statute: but it was considered as extending only to such servants as were employed to receive money, and to instances in which they received what they embezzled by virtue of their employment. A butcher's apprentice under eighteen carried a bill for seventeen shillings and ten-pence to a customer, from whom he obtained the money, and embezzled it, but it appeared that he had never been employed to receive money for his master. Upon a case reserved for the purpose of taking the opinion of the Judges whether the act extended to apprentices, the Judges seemed to think that it did, there being no exception, but on the ground that the prisoner was never employed to receive money, and therefore did not receive this by virtue of his employment, the conviction was held wrong. (ƒ)

(d) Rex v. Carr, Mich. T. 1811, MS. Bayley, J., and Russ. & Ry. 198., and Rex v. Leach, 3 Stark. N. P. C. 70.

(e) Rex v. Hartley, Hil. T. 1808, VOL. II.

P

MS. Bayley, J., and Russ. & Ry. 139.

(f) Rex v. Mellish, East. T. 1805, MS. Bayley, J., and Russ. & Ry. 80.

It was however decided that a person was sufficiently a servant within this act, though he was only occasionally employed when he had nothing else to do. And that it was sufficient if he was employed to receive the money he embezzled, though receiving money were not his usual employment; and though it was the only instance in which he was so employed. The prisoner applied to a carrier to give him some employment, and the carrier agreed to let him carry out parcels and go with messages when he had nothing else to do. On the fourth day of his employment, the carrier gave him an order on which he was to receive 21., which money he received and embezzled and the Judges, upon a case reserved, held that his conviction was right. (g)

Where a servant received money for his master for an article made out of his master's materials, and embezzled such money, the offence was held to be within that statute, although the servant made the article, and was to have a given proportion of the price for making it. A turner's man received an order on his master's account for six doxen coffee-pot handles, his business being to receive orders, take the necessary materials from his master's stock, work them up, deliver out the articles, receive the money for them, and pay over the whole money to his master: but at the end of the week he was entitled to receive a proportion of the money back for his work upon the articles. In the present case he had taken the materials from his master's stock, made the coffee-pot handles on his premises, delivered them to the customer, and received the money: but he had concealed the transaction from his master, and kept the money, which was three shillings, and of which his share would have been one shilling. Upon an indictment for embezzling the three shillings, the learned Judge doubted whether it was not rather a fraudulent concealment of the order, and an embezzlement of the master's materials; but upon a case reserved, all the Judges who met thought it was an embezzlement of the money, and that the conviction was right. (h)

Receiving immediately from a customer that which in the ordinary course the servant would have received through the medium of another servant employed to collect from customers was held to be a receipt by virtue of the employment of the servant who so received immediately from the customer, in a case where the servant, being intrusted to receive at home from out-door collectors, received abroad from an out-door customer. The prisoner was servant to a carcase butcher, and part of his business was to receive every evening from the out-door porters the money they had received from customers in the course of the day, and to pay it over to another clerk. He went himself to an out-door customer and received of him at the customer's house 11. 8s. 7d., which he embezzled. A case was saved for the opinion of the Judges, on the ground that this receipt was not within the prisoner's regular trust and employment, but the Judges thought that as the prisoner

(g) Rex v. Spencer, East. T. 1815, MS. Bayley, J., and Russ. & Ry. 299. and sec Rex v. Smith, post. 211.

(h) Rex v. Hoggins, cor. Bayley, J.,

and before nine of the Judges, East. T. 1809, MS. Bayley, J., and Russ. & Ry. 145.