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 17. 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. v. Walker, Dears. & B. C. C. 606.

[*465

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 ex

cursion 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 was under no control and unremunerated, and was therefore not a servant. 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 post, tit. "Larceny."

In R. v. 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,' *then the person employed is a servant." R. v. Turner, 11 Cox, C. C. 551.

*466]

A person who acts as a traveller for various mercantile houses, takes orders and receives moneys for them, and is paid by a commision, 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 that 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, Russ. & 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 [*467 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

the custom of the trade, F. was entitled to one-third of the freight, and the prisoner to two-thirds. The prisoner took the whole and was convicted of embezzlement. A large majority of the judges held the conviction right.

The prisoner was a cashier and collector to commission agents. He was paid partly by salary and partly by a percentage on the profits, but was not to contribute to the losses, and had no control over the management of the business. It was held that he was a servant and not a partner as between himself and his employers, whatever might be the case as between himself and third parties. R. v. M'Donald, 1 L. & C. 85.

The prisoner entered into the following agreement with the prosecutor:-"S. W. agrees to take charge of the glebe land of J. B. C., his wife undertaking the dairy, poultry, etc., at 158. a week till Michaelmas, 1850; and afterwards at a salary of 25l. a year, and a third of the clear annual profit after all the expenses of rent rates, labor, and interest on capital, etc., are paid, on a fair valuation made from Michaelmas to Michaelmas. Three months' notice on either side to be given; at the expiration of which time the cottage to be vacated by S. W., who occupies it as bailiff in addition to his salary." It was held that this agreement created the relation of master and servant, and that the prisoner (S. W.) might be convicted of embezzlement. R. v. Wortley, 2 Den. C. C. 333; 21 L. J., M. C. 44.

A member of a properly certified friendly society, who was duly appointed secretary, receiving a salary and acting as treasurer for the society, but without being elected to that office, received, as treasurer, moneys due from the members, and gave correct receipts, but made false entries in the contribution or cash-book kept by him as secretary, and appropriated the difference. Counsel for the defence contended that it was a mere breach of trust. The prisoner was convicted of embezzlement, and the Court for Crown Cases Reserved held that the conviction was right. R. v. Proud, 1 L. & C. 971. But see R. v. Marsh, 3 F. & F. 523; and see also R. v. Bren, where Martin, B., said that in the case of R. v. Proud the property of the society was vested in trustees (1 L. & C. 346, supra, p. 465). Many of the difficulties as to part owners and sharers in profits would now be avoided by the 31 & 32 Vict. e. 116, s. 1.

What persons are within the statute—persons employed by several. In R. v. Goodbody, 8 C. & P. 665, 34 E. C. L., Parke, B., said, "I am of opinion that a man cannot be the servant of several persons at the same time, but is rather in the character of an agent. There is one case in which it has been held that a man may be servant of several at the same time, but I should like to have that question further considered." The question has been further considered, and the doubt here expressed no longer exists. See infra. In R. v. Leach, 3 Stark. 70, 3 E. C. L., the prisoner was in the employment of B. and R. as their book-keeper; while in this situation he received into his possession certain bank-notes, which were the private property of

B. Being indicted for embezzling the notes as the servant of B., it was objected that he was the servant of the partners and not [*468 of individuals; but Bayley, J., held that he was the servant of each, and the learned judge referred to the case of R. v. Carr, Russ. & Ry. 198, where it was held that a traveller employed by several houses might be indicted for embezzlement as the servant of any one house. In R. v. Batty, 2 Moo. C. C. 257, it was held that a person employed by A. B., to sell goods for him at certain wages might be convicted of embezzlement as the servant of A. B., though at the same time he was employed by other persons for other purposes.

A., being one of the proprietors of a Hereford and Birmingham coach, horsed it from Hereford to Worcester, and employed the prisoner to drive it when he did not drive it himself, the prisoner taking all the gratuities. It was the prisoner's duty on each day when he drove to tell the book-keeper at Malvern how much money he had taken, which the latter entered in a book; and then handed over to the prisoner the amount he had himself received. These two sums it was the duty of the prisoner to deliver to A., who was accountable to his co-proprietors. It was held by Patteson, J., that the prisoner by appropriating the money was guilty of embezzlement, that he was rightly described as a servant of A., and that the money was properly laid as the property of A. R. v. White, 8 C. & P. 742, 34 E. C. L., 2 Moo. C. C. 91.

A railway station was maintained at the joint expense of four companies, out of a fund contributed by them in certain proportions; it was under the general management of a committee of eight persons, selected from the directors of the four companies. This committee appointed and paid all the officers and servants of the station, and, amongst others, the prisoner, who was a delivery clerk, whose duty it was to receive parcels at the station brought by trains belonging to any of the four companies, to deliver them, and receive the payments for carriage and delivery. The money so received it was his duty to pay over to the cashier, who then paid it over to the respective companies entitled thereto. The prisoner appropriated a part of the amount paid to him for the carriage and delivery of a parcel brought to the station by one of the four companies. It was held that the prisoner might be indicted either as the servant of the four companies, or of the eight directors forming the committee. R. v. Bayley, Dears. & B. C. C. 121; 26 L. J., M. Č. 4. See also R. v. Carr, and R. v. Tite, supra, p. 466.

In whose employment. Sometimes there is little doubt that the person indicted is a clerk or servant, or employed in that capacity, but it is difficult to say precisely who his employer is.' This difficulty has frequently arisen with respect to the collectors of poor-rates and persons holding similar situations, and some cases on this subject will be found at p. 463; but the 12 & 13 Vict. c. 103, s. 15, supra, p. 463,

1 The incorporation of the company employing the accused may be shown by parol. State v. Cheek, 63 Mo. 364.