Recent possession of stolen property is evidence either that the person in possession stole it, or that he received it knowing it to be stolen, according to the circumstances of the particular case. Where a prisoner was found in recent possession of stolen property, of which he could give no satisfactory account, and where, from the circumstances, it might reasonably be inferred that he was not the thief, it was held that there was evidence for the jury tha the received the property knowing it to have been stolen. (1) And where a woman was charged with stealing and also for receiving, and the evidence consisted of the fact of the stolen property having been found concealed on her person at ten o'clock in the morning after the night on which it was stolen, and of her having made two contradictory statements as to how she became in possession of it, and the jury acquitted her of larceny but convicted her of receiving, the evidence was held sufficient to sustain the conviction. (2)

315. Receiving stolen post letter or post letter bag.-Every one is guilty of an indictable offence and liable to five years' imprisonment who receives or retains in his possession, any post letter, post letter bag, or any chattel, money or valuable security, parcel or other thing, the stealing whereof is hereby declared to be an indictable offence, knowing the same to have been stolen. R.S.C., c. 35, s. 84.

Article 4, ante, gives to the expressions "post-letter," and "post-letter bag," the meanings assigned to them by the Post Office Act, which meanings will be found on page 7, ante.

Article 624, post, provides that, in the case of any offence in relation to a postletter or a post-letter bag or other mailable matter, chattel, money or valuable security sent by post, the property thereof may in the indictment be laid in the Postmaster-General.

See articles 627, 715, 716, and 717, and comments thereon, under article 314, at p. 292, ante.

The articles relating to punishments for stealing a post-letter, a post-letter bag, or for stealing any chattel, money, or valuable security therein, etc., are 326, 327, and 328.

316. Receiving property obtained by offence punishable sum. marily. Every one who receives or retains in his possession anything, knowing the same to be unlawfully obtained, the stealing of which is punishable, on summary conviction, either for every offence, or for the first and second offence only, is guilty of an offence and liable, on summary conviction, for every first, second or subsequent offence of receiving, to the same punishment as if he were guilty of a first, second or subsequent offence of stealing the same. c. 164, s. 84.

R.S.C.,

317. When receiving is complete.-The act of receiving anything unlawfully obtained is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of or control over such thing, or aids in concealing or disposing of it.

See comments and cases on p. 293, ante.

(1) R. v. Langmead, L. & C. 427.

(2) R. v. McMahon, 13 Cox, (C.C.R. Irish), 275.

318. Receiving after restoration to owner. When the thing unlawfully obtained has been restored to the owner, or when a legal title to the thing so obtained has been acquired by any person, a subsequent receiving thereof shall not be an offence although the receiver may know that the thing had previously been dishonestly obtained.

See cases on p. 295, ante.

Article 836 provides that the court may, for the loss of any property, which a person may have suffered through any offence, award him a money compensation, in the shape of a judgment debt against the offender. This applies to theft, receiving, and malicious injuries to property, etc.

Article 837 provides, that wherever a prisoner has been convicted either summarily or otherwise, of theft, or receiving, etc., a person who has innocently bought and paid the prisoner for the property may be reimbursed out of any money found upon and belonging to the prisoner.

The first and second paragraphs of Article 838 provide that property stolen or criminally obtained may, at the trial of the offender, be ordered to be restored to the owner; and the two remaining paragraphs of that article further provide, as follows;

"If it appears, before any award or order is made, that any valuable security has been bona fide paid or discharged by any person liable to the payment thereof, or being a negotiable instrument, has been bona fide taken or received by transfer or delivery, by any person, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had, by any indictable offence, been stolen, or if it appears that the property stolen has been transferred to an innocent purchaser for value who has acquired a lawful title thereto, the court or tribunal shall not award or order the restitution of such security or property.

PART XX V I.

"4. Nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker or other agent intrusted with the possession of goods or documents of title to goods, for any indictable offence under sections three hundred and twenty or three hundred and sixty three of this Act."

PUNISHMENT OF THEFT AND OFFENCES RESEMBLING
THEFT COMMITTED BY PARTICULAR PERSONS
IN RESPECT OF PARTICULAR THINGS
IN PARTICULAR PLACES.

319. Clerks and Servants.—Every one is guilty of an indictable offence and liable to fourteen years' imprisonment, who

(a) being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, steals anything belonging to or in the possession of his master or employer: or

(b.) being a cashier, assistant cashier, manager, officer, clerk or servant of any bank, or savings bank, steals any bond, obligation, bill obligatory or of credit, or other bill or note, or any security for money, or any money or effects of such bank or lodged or deposited with any such bank;

(c.) being employed in the service of Her Majesty, or of the Government of Canada or the Government of any province of Canada, or of any municipality, steals anything in his possession by virtue of his employment. R.S.C., c. 164, ss. 51, 52, 53, 54 and 59.

For the definition of municipality, see article 3 (p), ante. p. 4. Clause (a) of Article 319 corresponds with sec. 67 of 24-25 Vict, c. 96.

It is not necessary that the goods stolen should be the property of the master, in order to punish the offender under this clause. The words are "belonging to or in the possession of the master.

With reference to clause (b), the thing alleged to be stolen by a cashier or other officer or employee of a bank, may be either, anything belonging to the bank or anything lodged or deposited with such bank.

In the case of a government employee or of an employee of any municipality, the theft must be of something in his possession by virtue of his employment, in order to be punishable under article 319, clause (c).

The main distinction between theft, by a clerk or other employee, and embezzlement seems to have been that, in order to be embezzled, the money, etc., in question must not at the time of its misappropriation by the employee have reached the master's own possession; because if it had once reached the master's possession, either actually or constructively the servant's offence would, at common law, have been larceny. (1)

For instance, where the defendant's duty was to place, every night, in his employers, safe, in an office where he conducted his employer's business, (though this office was in his own house), the monies received by him on their account and not used during the day, it was held, that, by placing the money there, the defendant determined his own exclusive possession of it and that by afterwards taking some of it out of the safe, animos furandi, he was guilty of larceny. (2)

On the other hand, where the clerk and head manager of an insurance company, having, in the course of their business, received from the managers of branch offices, several cheques payable to his own order, which it was his duty to endorse and hand over to the company's cashier, but which he endorsed and cashed, appropriating the proceeds to his own use, it was held to be embezzlement. (3)

This distinction was, for all practical purposes, rendered immaterial in prosecutions against clerks and servants, by the passing of special legislation, enacting, that, a defendant, indicted for embezzlement, might, if the facts adduced in evidence, disclosed a larceny, be convicted of the latter offence, and vice versa. But, as we have already seen, the distinction is now swept away, entirely and embezzlement, is simply treated as one of a number of ways of committing theft. (See articles, 304, 305 and 310, ante, and comments thereunder). If the defendant cannot be shewn to be the clerk or servant of the prosecutor, he may, instead of being convicted, as such, under article 319, be convicted of the theft, without regard to any capacity in which he was acting

(1) R. v. Goodenough, Dears 210; R. v. Peck, 2 Russ. 180; R. v. Smith, R. & R. 267; R. v. Hawkins, I Den. 584.

when he committed it, and according to the nature or description of the thing stolen, he may be punished under the particular article of the code applicable thereto; or, if it be something for which no punishment is otherwise provided, he will be punishable under artice 356, post.

It is provided, by article 626, post, that any number of distinct charges of theft, not exceeding three, alleged to have been committed within six months from the first to the last of such offences, may be tried at one and the same time

Although the distinction between theft and embezzlement has been completely removed, questions may still arise, in prosecutions for theft, as they formerly did in cases of embezzlement, as to whether the defendant is a clerk or servant or other employee, within the terms of, and punishable under, article 319. It has been held that the question of, whether the defendant is or is not a clerk or servant, is one of fact for the jury; (1) and there are, upon the question, many English cases, which will be in point, inasmuch as the English statute, upon which these cases have arisen, is, although it relates to embezzlement, to the same effect, as, and almost in the very language of clause (a) of our article 319, in its reference to clerks and servants. The words of the English Act are "whosoever being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant." (2)

A female servant is within the meaning of the enactment. (3) And so is an apprentice, although under age. (4)

A son, who lives with his father and performs for him duties usually performed by a clerk, has been held to be "employed for the purpose or in the capacity of a clerk or servant," within the meaning of the law, although he received no salary, and although there was no contract binding him to go on doing these duties. (5)

A person who was employed as accountant and treasurer to overseers of the poor and whose duty it was to receive and pay out monies coming to and going out from such overseers, was held to be a clerk or servant, within the statute. (6)

A collector of poor and other rates, within the parish of St. Paul, Covent Garden, was held to be rightly described as servant to the committee of management of the affairs of the parish; although he was elected by the vestrymen of the parish; (7) and an assistant overseer elected by the parishioners who fix his duties and salary was held rightly described, as the servant of the inhabitants of the parish, in an indictment charging him with embezzling monies collected by him for the poor-rate. (8)

A clerk of a savings bank was held to be properly described as a clerk to the trustees, though elected by the managers. (9) Such a clerk is now covered, in common with all bank cashiers, managers, officers, clerks or servants, by the express terms of clause (b.) of the above article 319.

The mode by which the defendant is paid or receives remuneration for his services is immaterial. If he is a clerk or servant or is employed for the purpose or in the capacity of a clerk or servant, he is within the law.

A.,-who was employed as a master of a barge, to carry out and sell coals, and was allowed, as remuneration for his labor, a portion of the profits, after

(1) R. v. Negus, L. R., 2 C.C.R. 34; 42 L. J. (M. C.) 62.

(2) 24 & 25 Vict, c. 96, sec. 68.

(3) R. v. Smith, R. & R. 267.

(4) R. v. Mellish R. & R. 80.

(5) R. v. Foulkes, L. R. 2 C.C.R. 150: 44 L. J. (M. C.) 65.

(6) R. v. Squire, R. & R. 349; R. v. Townsend, 1 Den. 167; 2 C. & K. 168; R.

v. Adey, 1 Den. 578; 19 L. J. M. C.) 149.

(7) R. v. Callahan, 8 C. & P. 154.

(8) R. v. Carpenter, L. R.. 1 C.C.R., 29: 35 L. J. (M. C) 169.

(9) R v. Jenson, 1 Moo. C. C., 434.

deducting the price of the coals at the colliery,-took a quantity of coals, sold them, received the price, and absconded with the money. Held by a majority of the judges that he was a servant within the meaning of the English statute. (1)

A. was employed as a traveller by B., the prosecutor, to take orders and collect money; his remuneration being a percentage upon the orders he got; he paying his own expenses; he did this not only for B., but was employed by other persons also. Held that he was a clerk to B., within the meaning of the act. (2)

Where the cashier of a firm had, besides a salary, a percentage on the profits of the firm's business, but was not liable for the firm's losses, and had no control over the management of the business, it was held that he might be indicted, as a servant, for embezzling the firm's monies. (3)

The distinction to be drawn between a clerk or servant, and an agent, seems, according to the cases, to be this: for instance, a commercial traveller, whether paid by commission or salary, who is under orders to go here and there, or is bound to devote the whole or, at least,some portion of his time to the service of his employer, is a clerk or servant, or person employed for the purpose or in the capacity of a clerk or servant; but a person who is not under orders to go here and there, and who is not bound to devote any portion of his time to the service of his principal, but who may get business for his principals in consideration of a commission, or abstain from getting business for them, as he chooses, is not such a clerk or servant. Thus where A. was employed by B. to solicit orders and collect moneys, for which work he was paid by commission, he being at liberty to get orders when and where he pleased, but to be exclusively in the employ of B. and to give the whole of his time to B's service, he was held to be B's servant. (4) And A. would still have been B's servant if he was a traveller under orders to go here and there, even although he might have been at liberty to obtain orders for other persons besides B., and so was not bound to devote all his time to B's service. (5) But where A. was employed by B., and C., as their agent for the sale of coals on commission, and to collect monies in connexion with his orders, but was at liberty to dispose of his time as he thought best, and to get or abstain from getting orders as he might choose, he was held not to be a clerk or servant within the statute. (6)

The test whether a person is a clerk or servant of his alleged master is-Was he under the control of and bound to obey his alleged master? And where A. was employed to sclicit orders for B. and was to be paid a commission on the sums received through his means, and he was at liberty to apply for orders whenever he thought most convenient, but was not to employ himself for any other persons than B., it was held that these facts did not shew him to be a clerk or servant. (7)

The distinction between this last case and R. v. Bailey, (supra), is that in R. v. Bailey the prisoner was under the prosecutor's control, having to devote his whole time to the service, while, in R. v. Negus, although the prisoner was not to employ himself for any other persons than the prosecutor, he might go away to amuse himself whenever he liked. (8).

A. and B. employed C., who carried on an independent business as an accountant and debt collector, to collect certain debts for them at a commission on the amount received, the time and mode of collecting the debts being in C's

(1) R. v. Hartley, R. & R. 139.

(2) R. v. Carr, R. & R. 198; R. v. Hoggins, R. & R. 145; R. v. Tite, L. & C. 29; 30 L. J. (M. C.) 142. See also, R. v. Turner, 11 Cox, 551.

(3) R. v. Macdonald, L. & C. 85; 31 L. J. (M. C.) 67.

(4) R. v Bailey, 12 Cox, C. C. R. 56.

(5) R. v. Tite, supra.

(6) R. v. Bowers, L. R., 1 C. C. R. 41; 35 L. J. (M. C,) 206; R. v. Maybe, 11 Cox, 150; R. v. Marshall, 11 Cox, 490.

(7) R. v. Negus, L. R., 2 C. C. R. 34; 42 L. J. (M. C) 62.

(8) See Rem. of Bovill. C. J., and Blackburn, J., L. R, (C. C. R.) 35.