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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 *an indictment against the clerk of a savings' bank, the judges *469] 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 described as the servant of the trustees. R. v. Miller, 2 Moo. C. C. 249. See 38 & 39 Vict. c. 60.

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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 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, and 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 [*470 caused by his negligence.

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. R. v. Graham, 13 Cox, C. C. R. 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. R. v. Thorley, 1 Moo. C. C. 353. R. v. Mellish, Russ.

Ry. 80. R. 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. R. v. Gooddy, 8 C. & P. 665, 34 E. C. L., and others.

It has, however, been held not to be necessary, even under the re

pealed 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. 85) 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 *if he has been in the habit of receiving money for his master, *471] 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. see R. v. Hastie, 1 L. & C. 269; 32 L. J., M. C. 63.

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In all the above cases the money was received "for or in the name or on the account of" the master, which are the words contained in the present section, p. 459; and although it is no longer necessary to show that the money was received "by virtue of the employment,' yet it is essential to show that the money was the master's property; and where a servant, contrary to express orders, and not for, or on account of his master, but by using his master's barge for his own advantage, earned money by a charge for freight, it was held that such money was not received by him on account of his master, and was in no sense his master's property, and therefore he could not be convicted of embezzlement in keeping it. R. v. Cullum, L. R. 2 C. C. 28; 42 L. J., M. C. 64. In R. v. Gale, 2 Q. B. D. 141; 46 L. J., M. C, 134, the prisoner's duty was to get cheques cashed at the bank but instead of doing so, he got a friend to give him cash for two cheques and then appropriated the money. He was charged with embezzlement, not of the cheques, but of the money, and it was held that he had received the money for and on account of his master. In R. v. Read, 3 Q. B. D. 131; 47 L. J., M. C. 50, a gamekeeper killed rabbits on his master's land without authority, and sold them; it was held that he did not receive them "for or on account of his master." See this case next page.1

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Nature of the offence of embezzlement. Embezzlement is only a species of larceny. It is in every respect a precisely similar crime to that which is committed by a servant who receives property from his master, and appropriates it. This is larceny, because the possession of *the master continues in law until the wrongful appropriation [*472 by the servant takes place. The case which was held not to be larceny was that of a banker's clerk who received money from a customer and appropriated it, and the reason given was that, as the employer had never had possession of the money, he had never been wrongfully deprived of the possession of it, which was a necessary ingredient in the crime of larceny. R. v. Bazeley, 2 East, P. C. 571. The effect of the repealed statute 39 Geo. 3, c. 85, which was passed in consequence of this decision, was to make the master's possession commence from the moment that his property came into the servant's hands, and see now the present statute, s. 68, supra, p. 458. In R. v. Read, 3 Q. B. D. 131; 47 L. J., M. C. 50, where a gamekeeper wrongfully captured and killed wild rabbits in his master's woods, and sold them, it was attempted to bring the offence within the embezzlement statute, but the Court of Crown Cases Reserved, held that the rabbits could not be said to have been taken into possession by him "on account of his master," within 24 & 25 Vict. c. 96, s. 68. The argument of counsel turned principally upon the question whether the master had ever had possession of the rabbits.

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So where one is employed to sell upon commission, the money received therefor is not on account of his master," and he cannot be convicted of embezzlement in keeping it. Carter v. State, 53 Ga. 526. Contra, where the commissions are paid by the employer and the agent is not authorized to deduct them from the proceeds of sales. Commonwealth v. Smith, 129 Mass. 104.

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Distinction between larceny and embezzlement. It seems hardly necessary after the passing of the 24 & 25 Vict. c. 96, s. 68, supra, p. 458, to keep up the distinction between larceny and embezzlement, especially as, if the principle of the possession of the servant being the possession of the master had been interpreted with the same latitude in criminal and civil cases, for which there seems to be no reason to the contrary, that statute would have been altogether unnecessary. By the 24 & 25 Vict. c. 96, s. 72 (supra, p. 460), where a person is indicted for embezzlement, he is not to be acquitted altogether, if the offence turns out to be larceny, but he may be found not guilty of embezzlement and guilty of larceny. And vice versa on an indictment for larceny. But this does not enable a jury to find a prisoner guilty of larceny on facts which amount to embezzlement; R. v. Garbutt, Dears. & B. C. C. 166; 26 L. J., M. C. 47; so that even now the distinction must still be observed. What the distinction is, is obvious enough from the account of the origin of embezzlement as a separate offence in the last section. In R. v. Masters, 1 Den. C. C. 332, it was held that where money was received on account of his master by one servant, and by him handed to another in due course of business, and the latter appropriated it, that this was embezzlement, as the master had clearly never had possession by the first servant any more than by the second. So where the servant was sent by his master to get change for a 5l. note, which he did, and then appropriated the change to his own use, it was held that as the master had never had possession of the change, this was embezzlement, and not larceny. R. v. Sullen, 1 Moo. C. C. 129. The prosecutors suspecting the prisoner, desired a neighbor to go to their shop and purchase some articles, and pay for them with some marked money which they supplied for the purpose. This was done, and the prisoner appropriated the money. It was contended that this was larceny and not embezzlement, as the money was in law always in the master's possession. But the prisoner was convicted of embezzlement, and the conviction held right. R. v. Hedge, Russ. & Ry. 162; 2 Leach, 1033; and this case was followed in R. v. Gill, 1 Dears, C. C. 289; 23 L. J., M. C. 50. See also infra, tit. "Larceny."

*Proof of embezzlement. The first possession being lawful, *473] the act of embezzlement consists in a mere act of the mind without any outward and visible trespass as in many cases of larceny, and in all crimes of violence. That this mental act of fraudulent appropriation has taken place has to be inferred from the conduct of the prisoner, or from his own admissions. The case of R. v. Smith,

1 On the trial of a tax collector for embezzlement, the books of the ComptrollerGeneral properly certified are admissible to show that the collector has failed to pay over the taxes collected by him. Shivers r. State, 53 Ga. 149. To sustain an indictment for embezzlement, there must be proof, first, that the person charged wis in the employ of the prosecutor; second, that he obtained the money by virtue of his employment; third, that he has converted it or concealed it with the intent to convert it. Pullam v. State, 78 Ala. 31. It is not embezzlement for an agent to refuse to pay the money of a principal on demand, unless the person demanding it has authority so to

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