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under that statute something more than this was required, as will be seen presently, p. 470.
General cases. As to when the relation which is required by* the Btatute is created, it has been held that a female servant is within the statute; R. v Smith, Russ. & Ry. 267; so, likewise, is an apprentice; R. v. Mellish, Russ. & Ry. 80.
Officer not servant. The clerk or servant of a corporation, although not appointed under the common seal, is a servant within the statute. R. ».Beacall, 1 C. & P. 457, 12 E. C. L.; 2 Russ. Cri. 343, 5th ed.; Williams v. Stott, 1 Cromp. & M. 689. The clerk of a chapelry, who receives the sacrament money, is not the servant either of the curate, or of the chapel-wardens, or of the poor of the township, within the meaning of the act. R. v. Burton, 1 Moo. C. C. 237. The schoolmaster of a charity was held not to be the servant of the treasurer or committee. R. v. Nettleton, 1 Moo. C. C. 259. A person was chosen and sworn in at a court leet held by a corporation, as chamberlain of certain commonable lands. The duties of the chamberlain, who received no remuneration, were to collect moneys from the commoners and other persons using the commonable lands, to employ the moneys so received in keeping the common in order, and to account for the balance at the end of the year to two members of the corporation. *The Court of Exchequer held that this person was not within r*4gg the statute. Williams v. Stott, ubi supra.
A person employed by the overseers of the poor under the name of their accountant and treasurer is a clerk within the statute. Thus, where the prisoner had acted for many years for the overseers of the parish of Leeds, at a yearly salary, under the name of their accountant and treasurer, and as such had received and paid all the money receivable or payable on their account, rendering to them a weekly statement, purporting to be an account of moneys so received and paid, he was held to be rightly convicted of embezzlement. R. v. Squire, Russ. & Ry. 349; 2 Stark. 394, 3 E. C. L. So a person who acted as clerk to parish officers at a yearly salary, voted by the vestry, was convicted of embezzlement. R. v. Tyers, Russ. & Ry. 402. And an extra collector of poor-rates, paid out of the parish funds, by a percentage, was held by Richardson, J., to be a clerk of the churchwardens and overseers, so as to support an indictment for embezzlement. R. v. Ward, Gow. 168. The law on this subject is simplified by the 12 & 13 Vict. c. 103, s. 15, which, after reciting that difficulty had arisen in cases of larceny or embezzlement as to the proper description of the office of collectors of poor-rates and assistant-overseers, enacts that "in respect of any indictment or other criminal proceeding, every collector or assistant-overseer appointed under the authority of any order of the poor-law commissioners, or the poorlaw board, shall be deemed and taken to be the servant of the inhabitants of the parish whose money or other property he shall be charged to have embezzled or stolen, and shall be so described; and it shall be sufficient to state any such money or property to belong to the inhabitants of such parish, without the names of any such inhabitants being specified." See R. v. Carpenter, L. R, 1 C. C. R. 29; 35 L. J., M. C. 169? A similar provision is contained in some local acts. An underbailiff of a county court is not the servant of the high-bailiff, though employed by him to make levies by virtue of the processes of the court. R. v. Glover, L. & C. 466; 33 L. J., M. C. 169.
In R. v. Tongue, 30 L. J., M. C. 49, the secretary of a money club, hired at a salary, was held to be within the old statute.
The treasurer of a friendly society cannot be indicted for embezzlement, because he is an accountable officer and not a servant. By the Friendly Societies Act, 18 & 19 Vict. c. 63 (now repealed, but there is a similar provision in the 38 & 39 Vict. c. 60, s. 16), the moneys of the society were vested in trustees. The treasurer received no salary, and had to give security upon which the trustees were empowered to sue. He had to account to the trustees when required, and to pay over the balance. R. v. Tyree, L. R., 1 C. C. R. 177; 38 L. J., M. C. 58.
Servant of illegal society. Where a society, in consequence of administering to its members an unlawful oath, was .an unlawful combination and confederacy under the statutes of 37 Geo. 3, c. 123; 39 Geo. 3, c. 79; 52 Geo. 3, c. 104; and 57 Geo. 3, c. 19; it was held by Mirehouse, C. S. (after consulting Bosanquet and Coleridge, JJ.), that a person charged with embezzlement as clerk and servant to such society could not be convicted. R. v. Hunt, 8 C. & P. 642, 34 E. C. L. And see Milligan v. Wedge, infra. But where a society is legal, though some of its rules are void as being in restraint of trade, *<KU1 *'ne servan* of the society may be convicted of embezzlement. *D4-I R. v. Stainer, L. R., 1 C. C. R. 230; 39 L. J., M. C. 54; and as to trade unions, it is now enacted by the 34 & 35 Vict. c. 31 s. 2, that the purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise, or s. 3, so as to render void or voidable any agreement or trust, and see post, tit. " Larceny."
Employed for single act. The prisoner was a carrier whose only employment was to carry unsewed gloves from a glove manufacturer at A. to glove sewers who resided at B., to carry them back when sewed, and to receive the money for the work and pay it to the glove sewers, deducting his charge. On several occasions he appropriated the money which he received on behalf of the sewers. It was held , that he was not the servant of the sewers so as to be guilty of embezzlement; that his offence was a breach of trust, being a mere bailee of the money. R. v. Gibbs, Dears. C. C. 445; 24 L. J., M. C. 63. Where the relation of master and servant arises, it is immaterial that the sum embezzled was obtained in the conduct of a single transaction out of the ordinary course of service. R. v. Smith, R. & R. 516, R. v. Tongue, infra, and R. v. Spencer, R. & R. 299, and it is to be observed that the words "by virtue of his employment" are omitted in the statute now in force. See infra, p. 470. But where the prisoner's real employment was to get orders on commission, and his employer himself got an order and asked the prisoner to get the money for that particular order, which he did and appropriated it, Russell Gurney, Recorder, ruled that the prisoner was a mere volunteer. R. v. Mayle, 11 Cox, C. C. 150.
When a drover keeping cattle for a farmer at Smithfield was ordered to drive the cattle to a purchaser and receive the money, which he did, and appropriated it, the judges were unanimously of opinion that he was a servant within the meaning of the act. R. v. Hughes, 1 Moo. C. C. 370. But in Milligan v. Wedge, 12 Ad. & El. 737, 40 E. C. L., where the buyer of a bullock employed a licensed drover to drive it from Smithfield to his slaughter-house, and it appeared by the laws of the city of London that it was unlawful to employ any other than a licensed drover, Coleridge, J., on a question raised as to the liability of the owner of the bullock for negligence in driving it, held that no relation of master and servant was created between him and the drover. In the same case it appeared that the drover had intrusted the bullock to the care of a boy, not a licensed drover, and it was held that he also was not the servant of the owner.
Agent not servant. The prosecutors, who were manure manufacturers, engaged the prisoner, who kept a refreshment house at B., to get orders which they supplied from their stores. The prisoner was to collect the money, and pay it at once to them, and send a weekly account, and was called agent for the B. district. Subsequently the prosecutors sent large quantities of manure to stores at B., which were under the control of the prisoner, who took them in his own name and paid the rent. The prisoner supplied orders from these stores, but the first-mentioned mode of supplying orders was not abandoned. The prisoner received a salary of 11. per annum besides commission. It was held that the relation was one of principal and *agent, and that the prisoner was not guilty of embezzlement. r-:Mcr; R. v. Walker, Dears. & B. C. C. 606. L 4b0
In R. v. May, 1 L. & C. 13; 30 L. J., M. C. 81, the prosecutors had told the prisoner that they would not appoint him as their agent, but that for all business he did for them they would pay him a commission. It does not appear that he transacted business on more than two occasions for the prosecutors, and the court held that the prisoner could not be convicted of embezzlement under the statute. There was here, it is true, the additional circumstance that, even if the prisoner had been a clerk or servant, he was not employed to receive money, and Williams, J., said, in R. v. Tite, infra, p. 466, that this circumstance influenced his judgment, but without that circumstance the case seems a clear one.
The prisoner was a member of a friendly society, and one of a joint committee appointed by his own and another society to manage an excursion of the members by railway. He was to sell the tickets, and to pay over the money received to another person, but he was to have no remuneration. He fraudulently appropriated the money, and was held to be wrongly convicted of embezzlement. The case of R. v. May was cited for the prisoner, and it was contended that the prisoner wa; under no control and unrcmunerated, and was therefore not a servaut. The case appears, however, to have been decided partly upon the ground that the prisoner was a joint owner of the tickets and of the money to arise from the sale of them. R. v. Bren, 1 L. & C. 346; 33 L. J., M. C. 59; and in this view of the case the 31 & 32 Vict. c. 116, s. 1, would apply; see as to this infra; and see pod, tit. "Larceny."
In R. t>. Bowers, L. R. 1, C. C. R. 41; 35 L. J., M. C. 206, however, it was held that a person who is employed to get orders for goods and to receive payment for them, but who is at liberty to get the orders and receive the money where and when he thinks proper, and to dispose of his time as he thinks best, being paid by a commission on the goods sold, is not a clerk or servant. In that case the prisoner had first received a salary and a commission under a written agreement. He then engaged in trade on his own account, and a subsequent agreement was come to by which the salary was stopped and the commission continued; and it was said by the court that after that day he was not under the daily orders and control of his employers. The above case was confirmed in R. v. Negus, L. R. 2 C. C. 34; 42 L. J., M. C. 62; see also R. v. Hall, 13 Cox, C. C. 149.
Where the prosecutor said, "I paid the prisoner commission but no salary; he was not obliged to be at my office at any particular time, excepting on Friday and Saturday to account for what money he had received for me; I did not give the prisoner directions to go to any particular place for orders; he went where he pleased," it was held that he was not a clerk or servant. R. v. Marshall, 11 Cox, C. C. 490, C. C. R. But where the prisoner was bound by the terms of his agreement "diligently to employ himself in going from town to town and soliciting orders," he was ruled by Lush, J., to be a clerk or servant. That learned judge, in remarkably clear language, thus states the law: "If a person says to another carrying on an independent trade, 'If you get any orders for me I will pay you a commission,' and that person receives money and applies it to his own use, he is not a 'clerk or servant;' but if a man says 'I employ you and will pay you, not by salary, but by commission/ **hen the person employed is a servant" R. v. Turner, 11 4bbJ Cox, C. C. 551.
A person who acts as a traveller for various mercantile houses, takes orders and receives moneys for them, and is paid by a oommision, is clerk within the statute. The prisoner was indicted for embezzling the property of his employers, Stanley & Co. He was employed by them and other houses as a traveller, to take orders for goods, and to collect money for them from their customers. He did not live in the house with them. He was paid by a commission of five per cent, on all goods sold, whether he received the price or not, provided they proved good debts. He had also a commission upon all orders tliat came by letter, whether from him or not He was not employed as a clerk in the counting-house, nor in any other way than as above stated. Stanley & Co. did not allow him anything for the expenses of his journeys. Having been convicted of embezzling money, the property of Stanley & Co., the judges, on a case reserved, held the conviction right. R. v. Carr, Rugs. & Ry. 198. This decision is affirmed by R. v. Tite, 1 L. & C. 29; 30 L. J., M. C. 142.
Part owners and sharers in profits. In R. v. Atkinson, 2 Moo. C. C. 278, it was held that a clerk to a joint-stock banking company, established under 7 Geo. 4, c. 46, might be convicted of embezzling the money of the company, notwithstanding that he was a shareholder.
The allowance of part of the profit on the goods sold will not prevent the character of servant from arising. The prisoner was employed to take coals from a colliery and sell them, and bring the money to his employer. The mode of paying him was by allowing him two-third parts of the price for which he sold the coal, above the price charged at the colliery. It was objected that the money was the joint property of himself and his employer; and the point was reserved for the judges, who held that the prisoner was a servant within the act. They said that the mode of paying him for his labor did not vary the nature of his employment, nor make him less a servant than if he had been paid a certain price per chaldron or per diem; and as to the price at which the coals were charged at the colliery in this instance, that sum he received solely on his master's account as his servant, and by embezzling it he became guilty of larceny within the statute. R. v. Hartley, Russ. & Ry. 139. See also R. v. Wortley, infra. The prisoner was employed by the prosecutors, who were turners, and was paid according to what he did. It was part of his duty to receive orders for jobs, and to take the necessary materials from his master's stock to work them up, to deliver out the articles, and to receive the money for them; and then his business was to deliver the whole of the money to his masters, and to receive back, at the week's end, a proportion of it for working up the articles. Having executed an order, the prisoner received three shillings, for which he did not account. Being convicted of embezzling the three shillings, a doubt arose whether this was not a fraudulent concealment of the order, and an embezzlement of the materials; but the judges held the conviction right. R. v. Higgins, Russ. & Ry. 145. A partner in a firm, with the consent of the other partners, contracted to give his clerk one-third of his own share of the profits; it was held by Chambre, J., that he might be convicted *of embezzlement. R. v. Holmes, 2 Lew. C. C. 256. The r*4fi7 learned judge quoted on this occasion a case on the northern >circuit, before Wood, B., in which the prisoner had been sent by one F., the owner of a coal vessel, with a cargo of coals. According to