3. As to the person committing it.

To whom the statute extends.

money, without specifying any particular coin or valuable security; spi such allegation, so far as regards the description of the property, s be sustained, if the offender shall be proved to have embezzled a amount, although the particular species of coin or valuable security which such amount was composed shall not be proved; or if he sh be proved to have embezzled any piece of coin or valuable security, any portion of the value thereof, although such piece of coin or val security may have been delivered to him in order that some part of value thereof should be returned to the party delivering the same, such part shall have been returned accordingly."

This act is intended to apply to persons in the ordinary situation clerks or servants and having masters to whom they were accurate for the discharge of the duties of their situation. Per Bag B Williams v. Stott, (1 C. & M. 685). It extends to female servants; v. Smith, R. & R. 267); apprentices; (R. v. Mellish, R. & R. 8), vellers; (R. v. Carr, R. & R. 198); and persons employed by ove (R. v. Squire, R. & R. 349; 2 Stark. Rep. 349, S. C.), as an ext lector of poor-rates, &c.; (R. v. Ward, Gow. 168; and see R. v. R. & R. 402; R. v. Beacall, 1 R. & M. 15); in all which cases be found that the party stood in the situation of a plain and ery servant to his employers, and that the relation of master and existed between them.

Nor is the nature of the wages, (R. v. Mellish, R. & R. duration of the employment, (R. v. Spencer, R. & R. 290), therefore, where the prosecutor, having agreed to let the carry out parcels when he had nothing else to do, for which cutor was to pay him what he pleased, gave him an order to pounds, which he received and embezzled, he was holdene within the meaning of the act. (R. v. Spencer, R. & R. S v. Smith, Id. 516).

But since embezzlement necessarily involves secrecy if the prisoner, in rendering his account, instead of denying the priation of property, admits the appropriation, alleging & self, no matter how unfounded, or setting up an excuse, no ter frivolous, his offence in taking and keeping is no embezzleme v. Norman, 1 C. & M. 501).

So, if a person, whose duty it is to receive money for hist receive money and render a true account of all the money ceived, he is not guilty of embezzlement, if he absconds pay over the money; but if he had received the money and an account in which it was omitted, this would be evide that he had embezzled the amount. (Reg. v. Creed, 10.4 Ep

Erskine, J.)

And where a drover, who was employed to drive two chaser and receive the purchase-money, embezzled it, be

be a servant within the meaning of the act. (R. v. Hin. 11. ;

370).

Where the owner of a colliery employed the prisoner, one of his barges, to carry out and sell coals, and paid him f by allowing him two-thirds of the price for which he s after deducting the price charged at the colliery; it was prisoner was a servant within the meaning of the 39 Geo. I having embezzled the price, he was guilty of larceny wit (R. v. Hartley, R. & R. 139).

The act embraces persons employed in the capacity of clerks to corporations. (Williams v. Stott, 1 C. & M. 689). Fors joint-stock banking company, established under the statute c. 46, was convicted of embezzling the money of the company he was a shareholder or partner in such company; (Reg. C. & M. 525); and the conviction held right by the ju

ty employed as the clerk of a corporation will be within the act,
ugh he was not appointed under their common seal. (R. v. Wellings,
2. & P.457).

But, to bring a case within the act, the relation of master and servant
st exist.
(R. v. Smith, R. & R. 516; R. v. Beechey, R. & R. 319;
v. Mellish, R. & R. 80; Collyer's Stat. 102, n.; R. v. Bakewell, R. &
35; R. v. Thorley, R. & M. 343).

Embezzlement by a man who is neither clerk nor servant, nor in any
ect under the control of the person by whom he is, in a single in-
ce only, requested to receive money, is not within the 47th section
he above act; for he does not come within the description of clerk
ervant, or a person employed for the purpose of or in the capacity of
erk or servant. (R. v. Nettleton, R. & M. 259).

he driver of a glass coach hired for the day is not the servant of the
y hiring it, so as to bring him within the act. (R. v. Haydon, 7 C. &
45. And see Laugher v. Poynter, 5 B. & C. 547).

, being one of several proprietors of a Hereford and Birmingham
, horsed it from Hereford to Worcester, and employed B. to
it when he did not himself drive it; B. having all the gratuities
ell when A. drove as when B. himself did so. It was the duty of
n each day when he drove, to tell the book-keeper at Malvern how
money he had taken, the book-keeper entering that sum in a
and on the way-bill, together with what he had taken himself, and
en had to pay over the latter to B., who was to give the two sums
B. gave true accounts to the book-keeper, who made true en-
but B. accounted for smaller sums to A., saying that those were
d paid over to A. these smaller sums. All the proprietors were
sted in the money, but A. was the person to receive it, and he was
itable to his co-proprietors:-Held, that this was embezzlement,
at B. was rightly described in the indictment as the servant of A.,
at the money embezzled was properly laid as the money of A.
7. White, 8 C. & P. 742).

ere a society, in consequence of administering to its members an
ul oath, is an unlawful combination and confederacy, under the
7 Geo. III. c. 123; 39 Geo. III. c. 79; 52 Geo. III. c. 104, and 57
II. c. 19; a person charged with embezzlement as clerk and
to such society cannot be convicted. (Reg. v. Hunt, 8 C. & P.

isoner, who had been employed, sometimes as a regular labourer, nes as a roundsman for a day at a time, and had on several occaeen sent to a banker's to receive the amount of checks, was sent Danker's with a check for payment, for which he was to receive not being in the prosecutor's employment at the time he rehe money for the check and embezzled it, and being indicted for bezzlement-Park, J., after consulting Taunton, J., held, that not a clerk or servant within the meaning of the act of Parlia(R. v. Freeman, 5 C. & P. 534).

ved 51. to B., and A. paid to C., a servant of B., who was not zed by B. to receive money for him, though A. supposed that he C. never accounted to B. for the money. It was held, that 3 neither embezzlement nor larceny. (R. v. Hawtin, 7 C. & P.

.v. Crawley, (cited by Alderson, B., in 7 C. & P. 281), a servant, s not authorized to receive money, was standing near a desk in ter's counting-house, and a person who owed money to the masthis servant, supposing that he was authorized to receive money, servant never accounted for the money to his master. This was embezzlement.

k clerk, employed to post into the ledger, and read from the cashank notes from 1007. in value up to 10001., and who, in the course occupation, had, with other clerks, access to a file, upon which

3. As to the person committing it.

3. As to the person committing it.

Nature of offence.

paid notes of every description were filed, and took from that file a pa bank note for 50%. Held, that the prisoner could not be considered a intrusted with the possession of this note, so as to bring him within th 15 Geo. II. c. 13, s. 12. And it was in the same case questioned whe ther a note once cancelled by the bank was within the 15 Geo. ILCE (R. v. Bakewell, R. & R. 35).

The person employed to collect the sacrament money from the municants is not the servant of the minister, churchwardens, et (R. v. Burton, R. & M. 237).

So, where a party had been chosen and sworn in at a court le s by a corporation as chamberlain of certain common arable lands, an duties of the chamberlain (who received no remuneration) were to ar lect monies from the commoners and other persons using the commo lands; to employ the monies so collected in keeping the lands in cir to account at the end of the year to two aldermen of the corpora, and to pay over any balance in his hands to his successors in fi was held, that the plaintiff was not a servant or person employed th capacity of a servant within the above enactment of 7 & 8 Gen. I. 29, as he was not the servant of another, but filled an office of his (Williams v. Stott, 1 C. & M. 675).

Nor is a person holding a situation under the trustees of Greend Hospital, he being a sworn officer, and not an ordinary servant. (A by Bolland, B.)

A servant in the employment of A. and B. is the servant of and if he embezzle the private money of one, he may be in the servant of that individual partner. (R. v. Leech, 3 Stark? So, where a traveller is employed by several houses to recens he is the individual servant of each. (Per Bayley, J., 1b.; Buru & R. 198).

It will be seen, from the above cases, the statute is t to the clerks and servants of persons in trade; it extends t and servants of all persons whatsoever, when employed a money, &c.

No wasting or consuming of goods is within the act, however mis (1 Hawk. c. 33, s. 14).

The embezzlement must be of a chattel, money, or valosher
received by the prisoner by virtue of his employment. Ther
A. was employed to lead a stallion, and he was to charge
and not take less than 20s., he received a sum of 6s. for the c
a mare, which he did not account for. Park, J., afte mitig
with Littledale, J., held this no embezzlement, as this sum
ceived by virtue of his employment. (R. v. Snowley, 4C. & P.BA
see R. v. Price, M. & M. C. N. P. 21).

And at the trial of an indictment for embezzlement, it is
to prove the general deficiency in account, some specific su
proved to have been embezzled: in like manner as in larceny
ticular article must be proved to have been stolen. (R. v. P
P. 288, per Alderson).

To constitute the offence, the defendant must have received
&c., for, or in the name of, or on account of, his master. Da
money received by the defendant from the master himself, ir
pose of paying it to a third person, is not within the meg
act. (R. v. Peck, 2 Russ. 213; R. v. Smith, R. & M. 267) S
is money which is constructively in the possession of the
the hands of any other clerk. (R. v. Murray, R. & M. 26; 1Ch
146).

In R. v. Whittingham, (2 Leach, 912), it was held, that offence within the 39 Geo. III. c. 85, for a servant to embe received from a customer of his master's, though the money given to the customer by the master, in order that it might

the course of business to the servant, for the purpose of trying the servant's honesty.

So, in R. v. Headge, (2 Leach, 1033, R. & R. 160, S. C.), it was decided, that a servant secreting money which the master had marked and sent by a friend, to make a purchase at his shop, with a view of trying the honesty of his servant, was guilty of an embezzlement within 39 Geo. III. c. 85, and not of a larceny at common law. (See also R. v. Bazeley, 2 Leach, 841; ante, 1089).

If a servant, immediately on receiving a sum for his master, enter a smaller in his master's books, and ultimately account to his master for the smaller sum only, he may be considered as embezzling the difference at the time he made the entry. And it will not alter the case, though he received other sums for his master on the same day, and in paying them and the smaller sum to his master together, he might give his master every piece of money or note he received at the time he made the false entry. (R. v. Hall, 3 Stark. C. N. P. 67; R. & R. 463, S. C.) Where the defendant received and paid sums to a large amount, for his master, and kept a cash account of them, which he balanced every quarter, it was holden by Garrow, B., that it was not sufficient to prove that there appeared by this cash-book to be a large balance due to the prosecutor, in the hands of the defendant, unaccounted for, even though accompanied with a confession that he had appropriated some of the money in his hands to his own use; but that it was incumbent upon the prosecutor to select and prove some distinct and specific act of receipt and embezzlement. (R. v. Hebb, 2 Russ. 1244).

A., a servant of B., was sent to receive rent due to B. A. received it, and immediately went off with it to Ireland:-Held, that A.'s thus eaving her place, and going off to Ireland, was evidence from which the jury might infer that A. intended to embezzle the money. (R. v. Williams, 7 C. & P. 338).

If a servant receive money for his master, for an article made of his master's materials, it will be within the 39 Geo. III. c. 35, if he embezzle it, though he made the article, and was to have a given proportion of the price for making it. (R. v. Hoggin, R. & R. 145).

If a steward receive money by virtue of his employment, and embezzle it, he is guilty of a felony, although his employers would be wrong-doers in receiving it. (R. v. Beacall, 1 C. & P. 454).

3. As to the

person committing it.

With regard to the venue, it has been held, that, where the property Indictment. comes into the prisoner's possession in one county, and he denies the receipt of it, or refuses to account for it in another, the venue should be laid in the latter county, because, until such denial or refusal, the offence cannot be considered complete. (R. v. Taylor, R. & R. 63). In one case, however, the venue, though laid in the former county, was, under particular circumstances, held correct. (R. v. Hobson, R. & R. 56).

It is necessary to state specifically in the indictment some article embezzled. (R. v. Furneaux, R. & R. 335; R. v. Flower, 8 D. & R. 512; R. v. Tyers, R. & R. 402). But except where the offence relates to a chattel, (which must be described as in an indictment for larceny), it is sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security. (7 & 8 Geo. IV. c. 29, 8. 48, ante, 1121).

The exact value of the property embezzled need not be stated. (R. v. Carson, R. & R. 303. See Collyer's Stat. 101).

It is not sufficient to follow the words of the statute; but there must be a positive allegation, that the money embezzled was the property of the prosecutor, as in other cases of larceny. (R. v. M'Gregor, Old Bailey, September, 1801, 3 B. & P. 106; 2 East's P. C. 576; 2 Leach, 932; R. & R. 23, S. C.; R. v. Beacall, R. & M. 15).

The indictment ought, it should seem, to state that the party charged

3. As to the person committing it.

Bankers, attornies, agents, &c., dis

was "employed to receive money," &c. (See 3 Chit. C. L. 982, n. (m); ! Russ. 208; R. v. Somerton, 7 B. & Cres. 463).

The indictment need not state the name of the person from whom the money embezzled was received. (R. v. Beacall and Wellings, 1 C. & P. 454). But as this may operate as a hardship upon the prisoner, th judge before whom he is to be tried will, upon application, order tr prosecutor to furnish the prisoner with a particular of the charge. (E Bootyman, 5 C. & P. 300; R. v. Hodgson, 3 C. & P. 422).

With respect to that part of the stat. 7 & 8 Geo. IV. c. 29,4 which relates to receiving money where change was given, and then accounting for the balance, the practice at the Old Bailey before th act was, in one count to charge the prisoner with embezzling the sum, and in another with embezzling the amount of the balance. (C C. L. 324).

In an indictment for embezzlement, a collector of poor and other sta in the parish of St. Paul's, Covent Garden, was held to be rightly scribed under the 10 Geo. IV. c. 68, as servant to the committee of nagement of the affairs of that parish, though he was elected by vestrymen of the parish. (R. v. Callahan, 8 C. & P. 154, per Vagin and Patteson, Js.)

An indictment for embezzlement, which charges in one count within six calendar months the prisoner received three sums, lai day to the receipt of each, and that, "on the several days aforesai prisoner embezzled these sums, is bad, because it does not shew that sums were embezzled within six months of each other; and this tion ought to be taken on demurrer. (Reg. v. Purchase, 1 Car.— Patteson).

Quare, whether three acts of embezzlement can be chan count in an indictment; but the correct course is to put of embezzlement into a separate count. (16.)

In a case of embezzlement, if the prisoner demurs to the in and the demurrer be decided against him, he may still plead re felony and take his trial. (1b.)

The 7 & 8 Geo. IV. c. 29, s. 48, we have seen, ante, 111, three distinct acts of embezzlement within six months to be cha the same indictment. Each embezzlement should be stated in rate count.

A count for simple larceny may be joined with a count for ment, under the present statute, and it is in most cases advisable it, because if the money &c. embezzled was in the possessi master, the offence would be larceny only at common law. At law, the judgments for larceny and embezzlement were the in the one case, averted by benefit of clergy; in the other, milder punishment inflicted by the statute. As the judgments offences were strictly the same, a count for larceny, and embezzlement, might well be joined in the same indictment v. Johnson, 3 M. & Sel. 563). Nor is there any difference stat. 7 & 8 Geo. IV. c. 29, for, though benefit of clergy is now by 7 & 8 Geo. IV. c. 28, s. 6, yet it is provided, that nothing contained shall prevent the joinder, in any indictment, of which might have been joined before the passing of that act tit. "Clergy, Benefit of," Vol. I.; Collyer's Statutes, 102, note

(d). Embezzlement by Bankers, Attornies, Agents, & We have already seen, (ante, 1094, 1095), that, in general, a pa party ass ing goods under a trust, cannot be guilty of larceny at commen

(a) R. v. Walsh, (R. & R. 215; 4 Taunt. 258; 2 Leach, 1054, S. C.) The prisoner received a check from Sir

T. P. to buy Exchequer billi ried it to the banker's, got the embezzled part. He was