case, Russ. and Ry. 80 (a), ante, p. 394. So a clerk or servant to a corporation, although not appointed under the common seal, for he is, notwithstanding, a person employed as a clerk or servant within the statute. Beacall's case, 1 C. and P. 457 (b). And in Williams v. Stott, 1 Crom. and M. 689, it is said by Vaughan, B., that there can be no doubt that the statute would be held to embrace persons employed in the capacity of clerks or servants to corporations.

A person who is the servant of two persons in partnership is the servant of each within the act. The prisoner was in the employ of Bridson and Ridgway as their book-keeper. While in this situation, he received into his possession the notes in question, being the private property of Bridson, to be deposited in the safe where the money of the firm was usually kept. Being indicted for embezzling these notes, it was objected that he was the servant of the partners, and not of the individuals; but Bayley, J., held that he was the servant of both [each,] and said that it had been decided by the judges, that where a traveller is employed by several houses to receive money, he is the individual servant of each. (Carr's case, Russ. and Ry. 198 (c), post, p. 397.) Leech's case, 3 Stark. 70 (d).

A. being one of several 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 having all the gratuities, as well when A. drove as when the prisoner did so. 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, the book-keeper entering the sum, together with what he had taken himself, in a book and on the way-bill, and he then had to pay over the latter sum to the prisoner, who was to give the two sums to A. The prisoner gave true accounts to the book-keeper, who made true entries, but the prisoner accounted for smaller sums to A., saying that these were all, and paid over to A. such smaller sums. All the proprietors were interested in the money, but A. was the party to receive it, and he was accountable to his co-proprietors. It was held by Patteson, J., that this was embezzlement, and that the prisoner was rightly described in the indictment as the servant of A., and that the money embezzled was properly laid as the money of A. White's case, 8 C. and P. 742 (e).

Proof of being a servant within the statute-wages or payment of servant.] Several cases have occurred in which doubts have arisen whether the party offending could be considered a servant within the meaning of the statute, on account of the manner in which he was remunerated for his services. 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 twothird parts of the price for which he sold the coal, above the price charged [*397] 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

(a) 1 Eng. C. C. So. (6) Eng. Com. L. Rep. xi. 450. (c) 1 Eng. C. C. 198. (d) Eng. Com. L. Rep. xiv. 165. (c) Id. xxxiv. 614.

397

his employment, nor make him less a servant than if he had been paid a certain price per chaldron or per day; 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 became guilty of larceny within the statute. Hartley's case, Russ. and Ry. 139 (a). 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 masters' 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. Hoggin's case, Russ. and Ry.

145 (b).

A partner in a firm contracted to give his clerk one third of his own share in the profits. The other partners knew of and assented to the arrangement. It was held by Chambre, J., that this did not make the clerk a partner, and he was convicted of embezzlement. Holme's case, 2 Lew. C. C. 256. The above learned judge quoted a parallel case on the northern circuit before Wood, B. The prisoner was employed by a Mr. F. as master of a coal-vessel, who sent him with a cargo of coals. The custom of the trade was for the person who superintended the business to receive two-thirds of the freight, and the owner one-third. The prisoner took the whole; whereupon he was indicted for embezzlement, and convicted. It was objected, on his behalf, that he and the owner were joint proprietors of the freight, but a large majority of the judges held the conviction right.

Proof of being a clerk within the statute.] A person who acts as a traveller for various inercantile houses, takes orders, and receives monies for them, and is paid by a commission, is a clerk (but see post,) within the statute. The prisoner was indicted for embezzling the property of his employers, Stanley and Co. He was employed by them and other houses as a traveller, to take orders for goods and 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 and Co. did not allow him any [398] thing for the expenses of his journeys. Having been convicted of embezzling money, the property of Stanley and Co., the judges, on a case reserved, held the conviction right. Carr's case, Russ. and Ry. 198 (c).

But in Goodbody's case, ante, p. 394, 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 was held that a man may be the servant of several at one time (Carr's case,

(a) 1 Eng. C. C. 139. (b) Id. 145. (c) Id. 198.

supra); but I wish to have that question further considered by the judges.'

A person employed by overseers of the poor, under the name of their accountant and treasurer, is a clerk within the statute. The prisoner acted for several years for the overseers of the parish of Leeds, at a yearly salary, under the name of their accountant and treasurer, and as such received and paid all the money receivable or payable on their account, rendering to them a weekly statement, purporting to be an account of monies so received and paid. Having retained a portion of the monies for his own use, he was indicted and convicted of embezzlement; and on a case reserved, the judges were of opinion that he was a clerk and servant within the 39 Geo. 3, c. 85. Squire's case, Russ. and Ry. 349 (a); 2 Stark. 349 (b). So where a person, who acted as clerk to parish officers, at a yearly salary voted by the vestry, was charged with embezzlement, as clerk to such officers, no objection was taken. Tyers's case, Russ. and Ry. 402 (c). And an extra collector of poor-rates, paid out of the parish funds by a per centage, was held by Richardson, J., to be the clerk of the churchwardens and overseers, so as to support an indictment for embezzlement. Ward's case, Gow. 168.

On an indictment against the clerk of a savings' bank, the judges held that he was properly described as clerk to the trustees, although elected by the managers. Jenson's case, 1 Moo. C. C. 434 (d). So on an indictment for embezzlement, 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 servant to the committee of management of the affairs of the parish, though he was elected by the vestrymen of the parish. Callahan's case, 8 C. & P. 154 (e). So it was held by the judges that it was embezzlement in a member of, and secretary to a society, fraudulently to withhold money received from a member to be paid over to the trustees, and that he might be stated to be the clerk and servant of the trustees, and that the money was properly described as their property, although the society was not enrolled, and though the money in the ordinary course ought to have been received by a steward. Hall's case, Moo. C. C. 474 (ƒ).

But where a society in consequence of administering to its members an unlawful oath, was an unlawful combination and confederacy under the statutes 37 Geo. 3, c. 123; 39 Geo. 3, c. 79; 52 Geo. 3, c. 104; [ *399] 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. Hunt's case, 8 C. and P. 642 (g).

Proof of being a person employed for the purpose or in the capacity of a clerk or servant within the statute.] It is sufficient, if it be shown. that the prisoner was a person employed, for the purpose or in the capacity of a clerk or servant. The casually procuring a person to receive a sum of money will not render that person "a person employed for the purpose or in the capacity of a clerk or servant." The prisoner was schoolmaster of a charity-school. His appointment was by a committee,

(a) 1 Eng. C. C. 349. (b) Eng. Com. L. Rep. iii. 378. (c) 1 Eng. C. C. 402. (d) 2 Id. 434. (e) Eng. Com. L. Rep. xxxiv. 334. (ƒ) 2 Eng. C. C. 474. (g) Eng. Com. L. Rep. εχείν. 593.

of which the prosecutor was treasurer. There was a regular collector to receive the subscriptions to the school. The duty of the prisoner was only to teach the scholars. The prosecutor had been accustomed himself to receive a voluntary contribution to the school, but being confined to his bed, he left a written direction for the prisoner to receive it. This was not by order of the committee. The prisoner received, and did not account for the inoney. Being convicted of embezzlement, the judges, on a case reserved, were unanimously of opinion that the conviction was wrong, inasmuch as the prisoner did not stand in such a relation to the prosecutor, or the committee, as to bring him within the act 7 & Geo. 4, c. 29. Nettleton's case, 1 Moody, C. C. 259 (a). So where the prisoner had sometimes been employed by the prosecutor as a regular laborer, and sometimes as a roundsman, for a day at a time, and had been several times sent by him to the bank for money; but, upon the day in question, was not working for the prosecutor, and was sent to the bank for money, receiving sixpence for his trouble; having applied the money to his own use, and being indicted for embezzling, it was held by Park, J., (after conferring with Taunton, J.,) that the prisoner was not a servant of the prosecutor within the meaning of the act of parliament, and that it was no embezzlement. Freeman's case, 5 C. and P. 534 (b). The clerk of a chapelry, who receives the sacrament money, is not the servant either of the curate or of the chapelwardens, or of the poor of the township, so as to render a retaining of part of the money collected by him embezzlement. Burton's case, 1 Moody, C. C. 237 (c). 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 monies from the commoners and other persons using the commonable lands; to employ the monies so received, in keeping the lands in order; to account, at the end of the year, to two aldermen of the corporation; and to pay over any balance in his hands to his successor in office. In an action for accusing this person of felonious embezzlement, it was held by the Court of Exchequer that the plaintiff was not a clerk or servant within the 7 and 8 Geo. 4, c. 29, s. 47. Mr. Baron Bayley said, "It appears to me that the statutory provision was intended to embrace *persons of a very different description [ *400 ] from the plaintiff. From the whole of that provision, it seems to me to have been intended to apply to persons in the ordinary situation of clerks or servants, and having masters to whom they are accountable for the discharge of the duties of their situation. Now, in the present case, is the plaintiff in that situation? and who are his masters? From the evidence, it appears that he was not nominated by the corporation or the commoners, but was appointed to the post of chamberlain at a court-leet. And how can it be said that the corporation or the commoners are his masters, when he does not derive his authority from them?" He then distinguished this case from those of Squires, and Tyers, (ante, p. 398,) and thus proceeded :-" In the present case, I think that the plaintiff does not come within the fair meaning of the statute; he is not the servant of another; he fills an office of his own; he does not receive money in the course of his employment as the mere agent of another; but appears to be entitled, by virtue of his office, to keep the money in his own hands,

(a) 2 Eng. C. C. 259. (b) Eng. Com. L. Rep. xxiv. 444. (c) 2 Eng. C. C. 237.

until the end of the year for which he is appointed." Williams v. Stott, 1 Crom. and Mee. 675.

Proof of the chattel, money, &c. embezzled.] The chattel, money, or valuable security embezzled by the prisoner must be such as has not come to the possession of his master; if it has come to his possession, the of fence is larceny, and not embezzlement. The prisoner received a sum of money from her master to pay his taxes and poor-rates, but did not pay the same; being indicted and convicted of having embezzled the money, on a case reserved, the judges held the conviction wrong. Elizabeth Smith's case, Russ. and Ry. 267 (a); 2 Russell, 213. In a later case, the indictment charged the prisoner with having received and taken into his possession one shilling on account of his master, and embezzled the same; and upon the evidence, it appeared, that having 2s. 6d. of his master's money, to pay an account of his master, he only paid one shilling and sixpence, and converted the other shilling to his own use; upon which, Park, J., directed to the jury to acquit the prisoner. Peck's case, 2 Russell, 213. The prisoner, a clerk in the employment of A. received from another clerk £3 of A.'s money, that he might (amongst other things,) pay for inserting an advertisement in the gazette. The prisoner paid 10s. for the insertion, and charged 20s. for the same, fraudulently keeping back the difference. The prisoner having been convicted of embezzlement, on a case reserved, the judges thought the offence not within the statute, because A. had had possession of the money, by the hands of his other clerk, and they thereupon held the conviction wrong. John Murray's case, 1 Moody, C. C. 276 (b); 5 C. and P. 145 (c). As to property coming to the possession of the master, see also Bazeley's case, 2 Leach, 835; 2 East, P. C. 571.

But where a servant, who was sent by his master to get change for a [*401 ] 5l. note, appropriated the change to his own use, it was held *by the judges, that as the master never had possession of the change, but by the hands of the prisoner, this was embezzlement and not larceny. Sullen's case, 1 Moody, C. C. 129 (d); see ante, p. 393.

In the following case, although the money had been in the possession of the master, and was at the time, in construction of law, still in his possession, the offence was, notwithstanding, held to be embezzlement. The prosecutors suspecting that the prisoner, their servant, had embezzled their money, desired a neighbor to go to their shop and purchase some articles, and they supplied him with three shillings of their own money, which they had marked for the purpose. The neighbor went to the shop, bought the articles, and paid the prisoner for them with the three shillings, which he embezzled. It was contended for the prisoner, that the money was already in the master's possession, and that the offence, therefore, was not embezzlement. The prisoner being convicted, on a case reserved, the judges held the conviction right, on the authority of Bull's case, (2 Leach, 841, 2,) in which the judges, upon similar facts, held that a common law indictment could not be supported, and it seemed to be the opinion of the judges that the statute did not apply to cases which are larceny at common law. Hedge's case, Russ. and Ry. 160 (e); 2 Leach, 1033. See also Whittingham's case, 2 Leach, 912.

(a) 1 Eng. C. C. 267. (b) 2 Id. 276. (c) Eng. Com. L. Rep. xxiv. 247. (d) 2 Eng. C. C. 129. (e) 1 Id. 160.