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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'Donala, 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 15s. a week till Michaelmas, 1850; and afterwards at a salary of 25£ 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. c. 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. c. 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 th<e 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; Avhile in this situation he received into his possession certain bank-note^ 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 r*4(>Q of individuals; but Bayley, J., held that he was the servant of L 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. C. 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.1 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 lie 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.
simplifies the case so far as these persons are concerned. Before the passing of that act, a collector of poor and other rates in the parish of St. Paul, Covent Garden, was held by Vaughan and Patteson, JJ., to be rightly described under a local act (10 Geo. 4, c. lxviii.) as in the employ of the committee of management of the affairs of the parish, though he was elected by the vestrymen of the parish. R. v. Callahan, 8 C. & P. 154, 34 E. C. L. But an assistant overseer, appointed and paid by the guardians of a union, was held not to be the servant of the overseers. R. v. Townsend, 1 Den. C. C. 167. On *4PQl *an indictment against the clerk of a savings' bank, the judges -I held that he was properly described as clerk of the trustees, although elected by the managers. R. v. Jenson, 1 Moo. C. C. 434. So it was held that the secretary of a society appointed by the society generally, might be described as the servant of the trustees. R. v. Hall, 1 Moo. C. C. 474. And the clerk of a friendly society may be described as the servant of the trustees. R. v. Miller, 2 Moo. C. C. 249. See 38 & 39 Vict. c. 60.
In R. v. Beaumont, Dears. C. C. 270; 23 L. J., M. C. 54, it appeared that one W. had engaged with a railway company to find horses and carmen to deliver the company's coals, and that he or his carmen should deliver to the company's manager all the money received from the customers. The delivery notes were entered by W. in his book, and the receipted invoices given to the customers. The prisoner was one of W.'s carmen, whose duty it was to pay over directly to the manager the money which he received from the customers. No account of money so received and paid was kept between W. and the company. It was held by a majority of the Court of Criminal Appeal that the prisoner was the servant of the company and not of W., and that the money was received by him on their account and not on the account of W., and that consequently an indictment against the prisoner, as the servant of W., for embezzling money as received in that capacity, could not be supported. A somewhat similar case was that of R. v. Thorpe, Dears. & B. C. C. 562. There C. H. was agent for a railway company for delivering goods, under a contract very similar to the last, but the points of difference, though minute, were important; because here the court thought that an indictment against the prisoner, as servant of C. H., for embezzling money received from one of the persons to whom goods were delivered under a contract could be sustained. The chief point of difference between the two contracts appears to be that in the latter case the master was liable to account to the railway company for the money received by his carmen; in the former not.
In R. v. Foulkes, L. R., 2 C. C. 150; 44 L. J., M. C. 65, the prisoner's father was clerk to a local board, and held other appointments. The prisoner lived with his father, and assisted him in his office and in the business of the board. In his father's absence the prisoner acted for him at the meetings of the board, and when present he assisted him. The prisoner was not appointed or paid by the board, and there was no evidence that he received any salary from his father.
The board having occasion to raise a loan on mortgage, the prisoner managed the business for his father, and at his father's office received the money from the mortgagees, and appropriated a part of it to his own use. It was held, that there was evidence that the prisoner was a clerk or servant to his father, or employed as a clerk or servant by him, aud was guilty of embezzlement.
There is also a civil case which is frequently referred to on this subject. In Quarman v. Burnett, 6 M. & W. 499, the owners of a carriage were in the habit of hiring horses from the same person to draw it for a day or for a drive; the owner of the horses provided a driver, who was always the same person, he being a regular coachman in the employment of the owner of the horses; the coachman was paid by the owners of the carriage a fixed sum for each drive, and provided by them with a livery, which he left at the house at the end of each drive. It was held that this coachman was not the servant of the *owners of the carriage so as to make them liable for an injury caused by his negligence. L
Upon this part of the law compare also the cases in the last heading.
Persons in the Queen's service. The prisoner was, with the sanction of the treasury, employed by the inspector of prisons, who was authorized to receive the contributions of parents towards the maintenance of their children committed to reformatory and industrial schools, as his agent, to collect and take proceedings for the recovery of such contributions under 29 & 30 Vict. cc. 117, 118, which authorizes the appointment of an agent. While the prisoner was so employed he received and misappropriated moneys, the contributions of parents, ordered by magistrates, under the above statutes, to be paid for the maintenance of their children in the schools; these moneys being by virtue of the same statutes the property of the treasury. It was held that the prisoner was, while so employed, in the public service of the Queen, and could be convicted of embezzlement under 24 & 25 Vict. c. 96, s. 70. E. v. Graham, 13 Cox, C. C. E. 57.
For or in the name or on the account of his master. Frequently there has been no doubt that the prisoner is a clerk or servant, but he has been held not liable to be convicted, because the money which he has appropriated was not received, in the words of the 7 & 8 Geo. 4, c. 29, s. 47, "by virtue of his employment." In the present statute (24 & 25 Vict. c. 96, s. 68) the words "by virtue of his employment" are omitted, although they occur in section 70 with respect to persons in the public service and the police. Mr. Greaves says that these words were advisedly omitted in order to enlarge the enactment, and to get rid of some of the following decisions: Greaves' Crim. Stat. p. 117. E. v. Thorley, 1 Moo. C. C. 353. E. v. Mellish, Euss. ■% Ey. 80. E. v. Snowley, 4 C. & P. 390,19 E. C. L., per Parke, B. v. Harris, 1 Dears. C. C. 334; 23 L. J., M. C. 110. E. v. Goodxiy, 8 C. & P. 665, 34 E. C. L., and others. It has, however, been held not to be necessary, even under the repealed statute, that the servant should have been acting in the ordinary course of his employment when he received the money, provided that he was employed by his master to receive the money on that particular occasion. The prisoner was employed to collect the tolls at a particular gate, which was all that he was hired to do; but on one occasion his master ordered him to receive the tolls of another gate, which the prisoner did, and embezzled them. Being indicted (under the repealed statute 39 Geo. 3, c. So) for his embezzlement, a doubt arose whether it was by virtue of his employment, and the case was reserved for the opinion of the judges. Abbott, C. J., Holroyd, J., and Garrow, B., thought that the prisoner did not receive the money by virtue of his employment, because it was out of the course of his employment to receive it. But Park, Burrough, Best, and Bayley, JJ., and Hullock, B., thought otherwise; because, although out of the ordinary course of the prisoner's employment, yet as, in the character of servant, he had submitted to be employed to receive the money, the case was within the statute. R. v. Smith, Russ. & Ry. 516. See ante, p. 464.
So although it may not have been part of the servant's duty to receive money, in the capacity in which he was originally hired, yet * 1 *if he has been in the habit of receiving money for his master, J he is within the statute. Thus, where a man was hired as a journeyman miller, and not as a clerk or accountant, or to collect money, but was in the habit of selling small quantities of meal on his master's account, and of receiving money for them, Richards, C. B., held him to be a servant within the repealed statute 39 Geo. 3, c. 85, saying that he had no doubt the statute was intended to comprehend masters and servants of all kinds, whether originally connected in any particular character and capacity or not. R. v. Barker, Dow & Ry. N. P. C. 19.
Where the prisoner was intrusted to receive from certain porters such moneys as they had collected from the customers in the course of the day, the receiving immediately from the customers, instead of receiving through the medium of the porters, was held such a receipt of money by "virtue of his employment," as the act was meant to protect. R. v. Beechy, Russ. & Ry. 319. Upon the same principle, where a person employed by a carrier was directed by his employer to receive a sum of 21., which he did receive and embezzled, on a case reserved, the judges were of opinion that he was rightly convicted of embezzlement. R. v. Spencer, Russ. & Ry. 299. So where 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 embezzled it, the judges were unanimously of opinion that the prisoner was a servant within the meaning of the act, and that the conviction was right. R. v. Hughes, 1 Moo. C. C. 370. In R. v. Tongue, 30 L. J., M. C. 49, the Court of Criminal Appeal held, affirming the above principle, that the employment to receive money was sufficient, though it was not the prisoner's usual duty to receive money. And see R. v. Hastie, 1 L. & C. 269; 32 L. J., M. C. 63.