But the indictment must state the thing embezzled to be the property of the master. Where the indictment stated that the prisoner, being clerk to the prosecutors, received a certain sum on their account, and embezzled it, concluding in the usual way, that he stole the money "from the said masters and employers of him the said" prisoner, on whose account he had so received the same, but it did not state expressly whose property the money was: the judges held this to be insufficient, and that the indictment should have stated the money to be the property of some person, namely, the master, as in common cases of larceny. R. v. M'Gregor, R. & Ry. 23. Where, by a local Act certain inhabitants of seven parishes were incorporated by the name of “the guardians of the poor" of those parishes, twelve directors were to be appointed out of the guardians, and the property of the corporation was vested in "the directors for the time being," who were to execute the powers of the Act: the prisoners being indicted for embezzling money of "the directors of the poor of the said parishes," the judges held the indictment to be wrong; that it should have stated it to be the money of the guardians by their corporate name, or of the directors by their individual names. R. v. Beacall, Ry. & M. 15. See ante, p. 82.

It is not actually necessary that the indictment should state that the defendant "feloniously" embezzled the property, if the conclusion of the indictment state that he feloniously stole it. R. v. Crighton, R. & Ry. 62. It is usual, however, and more prudent, to use the word "feloniously' in both places.

Also, it is not usual or necessary to state from whom the money was received. Where an objection on this ground was taken to an indictment in arrest of judgment, the question was reserved for the opinion of the judges; and they were unanimously of opinion that the indictment was sufficient. R. v. Beacall, 1 Car. & P. 454. But as this may in some cases operate as a hardship upon the prisoner, in not disclosing to him sufficiently the offence or offences with which he is charged, the judge, before whom the prisoner is to be tried, will, upon application, order the prosecutor to furnish the prisoner with the particulars of the charge. R. v. Bootyman, 5 Car. & P. 300, cor. Littledale, J. R. v. Hodgson, 3 Car. & P. 422, S. P. cor. Vaughan, B.

Felony; transportation for not more than fourteen years, nor less than seven ;-or imprisonment [with or without hard labour, s. 4], for not more than three years, and, if a male, to be once, twice, or thrice publicly or privately whipped, if the court shall think fit. 7 & 8 G. 4, c. 29, ss. 47, 46.

Evidence.

The offence, as defined by the statute, is thus "If any clerk, or servant, or any person employed for the purpose or in the capacity of a clerk or servant,-shall by virtue of such employment,-receive or take into his possession-any chattel, money, or valuable security,-for or in the name or on account of his master,-and shall fraudulently embezzle the same or any part thereof." To maintain this indictment, therefore, the prosecutor must prove

1. That the prisoner was "clerk or servant, or person employed for the purpose or in the capacity of a clerk or servant "to the prosecutor, at the time of the receipt and embezzlement. A female servant is within the meaning of the Act. R. v. Elizabeth Smith, R. & Ry. 267. So is an apprentice, although under age. R. v. Mellish, R. & Ry. 80. So is a farm bailiff. R. v. Wortley, 15 Shaw's J. P. 785. Where a man was employed by a township, as their accountant and treasurer, and he received and paid all money receivable or payable on their account; in the course of which employment he received a sum of money on account of the overseers, and embezzled it; the judges held that he was a clerk and servant within the meaning of the Act. R. v. Squire, R. & Ry. 349. So, a treasurer to the guardians of the poor of a parish, appointed by them by virtue of a local Act, has been holden to be a servant of the guardians. R. v. Welch, 2 Car. & K. 296. So is a collector of poor-rate, appointed by overseers, a servant of the overseers. R. v. Adey, 19 Law J. 149 m. And see R. v. Callahan, 8 Car. & P. 154. But where a man was appointed assistant-overseer of a district comprising several townships, by the guardians of the union, by order of the poor-law commissioners, and his duty was to assist the overseers of the different townships, and he was paid a salary by the guardians; he received sums for poor-rate from ratepayers in the township of F. (one of the townships in the district), and it was his duty to have paid them into a banker's, to the credit of the overseers of that township, but he embezzled them being indicted, the judges held that he could not be convicted on the count stating him to be servant of the overseers, for he was appointed and paid by the guardians; and that he could not be convicted on a count stating him to be a servant of the guardians, for it was not their money he embezzled. R. v. Townsend, 2 Car. & K. 168. So, where the clerk of a chapelry was indicted for embezzling money collected by him from the communicants on Sacrament Sunday, and which was for the relief of the poor, the indictment stating him in one count to be the servant of the clergyman, and in another of the church

wardens: the judges held that he could not be deemed the servant of one or the other. R. v. Burton, Ry. & M. 237. And it is not material whether the servant be paid by certain wages, or by a per centage on the receipts, or by a share of the profits arising from his labour. Where, upon an indictment for embezzlement, it appeared that the prisoner was employed by the prosecutor as master of one of his ships, to take coals from his colliery and sell them, and he was to have a certain proportion of the profits, after deducting the price of the coals at the colliery, for his labour; he took a cargo of coals, sold them, received the price, and absconded with it: a majority of the judges held that he was a servant of the prosecutor, within the meaning of the Act. R. v. Hartley, R. & Ry. 139. So, where the prisoner was employed by the prosecutors as traveller, to take orders for goods and collect money for them from their customers, and was paid by a per centage upon the amount of the orders he obtained; he did not live with them or act in their counting house; he paid his own expenses on his journies, and he was employed as traveller by several other houses besides: the judges held that he was a clerk to the prosecutors, within the meaning of the Act. R. v. Carr, R. & Ry. 198. So where the collector of a poor-rate was paid by a per centage on the rates, and it was objected that he was therefore no clerk or servant within the meaning of the Act,Richardson, J., over-ruled the objection. R. v. Ward, Gowo, 168. It is immaterial, also, whether the employment be permanent, or occasional only, or even confined merely to the particular instance. Where it appeared that the prisoner had applied to the prosecutor for employment, who agreed to let him carry out parcels, and go of messages when he should have nothing else to do, for which the prosecutor was to pay him what he should think fit; the prosecutor gave him an order, to receive the sum of two pounds for him; he received it and embezzled it: the judges held him to be a servant to the prosecutor, within the meaning of the Act. R. v. Spencer, R. & Ry. 299. So, where it appeared that a farmer, having beasts at Smithfield, of which the prisoner had the keeping as drover, sent the prisoner to deliver a cow to a purchaser, and to receive the money, and the prisoner received and embezzled it the judges held that the prisoner was a servant within the meaning of the Act. R. v. Hughes, Ry. & M. 370. In a case previously decided, where the prosecutor had sent the prisoner with a cheque to a banker's for payment, and he received the money and embezzled it, it appeared that although the prisoner had been employed by the prosecutor, sometimes as a regular labourer, sometimes as a roundsman for a day at a time, and on several occasions had been sent to receive the amount of cheques from the banker's, he was not at the time in question in the prosecutor's employment, but was to re

ceive sixpence for going to the banker's: Parke, J., (after consulting Taunton, J.,) held that he was not a clerk or servant within the meaning of the Act. R. v. Freeman, 5 Car. § P. 534. But see Good's case, ante, p. 444.

Where a man is the clerk or servant of partners, he is deemed the clerk and servant of all and of each of the partners; and if he receive money for or on the private account of any one of them, and embezzle it, he may be indicted under this statute. R. v. Leach, 3 Stark. N. P. C. 70. The clerk of a joint stock company, is the clerk and servant of the directors who appoint him; and where such a clerk, having the care and custody of the cheques paid and cancelled by the company's banker, embezzled one of them, and was charged in the indictment as having embezzled a piece of paper the property of the company, and convicted, the court held that he was properly convicted, although he himself was a shareholder in the company. R. v. Watts, 19 Law J. 192 m. R. v. Atkinson, Car. & M. 525. The clerk of a corporate body, of the guardians of a poor-law union for instance, is a clerk within the meaning of this statute, whether duly appointed or not. R. v. Beacall, 1 Car. & P. 457. A clerk to a savings' bank, may be charged as clerk to the trustees, though appointed by the managers. R. v. Jenson, Ry. & M. 434. So the clerk of a benefit society may be charged as the clerk and servant of the trustees. R. v. Hall, Ry. & M. 474.

2. That he received the money, &c., or took it into his possession. That he received it, is usually proved by the person who paid it to him, or by his own admission. If chattels be specified in the indictment as having been received by the prisoner, the things described, or part of them, must be proved in the same manner as in larceny; but if the indictment state a receipt and embezzlement of money, you may give in evidence any species of coin, or any such valuable security as is mentioned ante, pp. 391, 392, or you may prove a certain amount in money or securities, although you are not able to prove of what coin or of what valuable securities it consisted. See ante, p. 447. According to the statute, (s. 47), the prisoner shall be deemed guilty of the offence, "although the chattel, money, or valuable security was not received into the possession of such master, otherwise than by the actual possession of his clerk or servant, or other person so employed." But where the prosecutor gave marked money to a friend, with directions to buy some article with it at the prosecutor's shop; and he accordingly bought the article from the prisoner, who was the prosecutor's shopman, with the marked money, which the prisoner received and embezzled: it was objected for the prisoner, that as the money had been in the possession

of the master, and might be considered as the master's at the time that the prisoner received it, the case did not come within the statute, but was a larceny at common law; but the judges held it to be a case within the statute, and that an indictment for larceny at common law would not lie for it. R. v. Headge, R. & Ry. 160. Whether the case of a servant receiving money from the master, and embezzling it, be within the meaning of the Act, was a question submitted to the judges in R. v. Elizabeth Smith, R. & Ry. 267; but no opinion was delivered upon it, the case being decided upon another ground. In Headge's case, above mentioned, the judges seemed to be of opinion that the statute did not apply to cases which amount to a larceny at common law. And therefore if a servant or clerk take money or goods, &c., out of his master's stock, he should be indicted for larceny, not embezzlement. And in a subsequent case, this was expressly decided by the judges: where the prisoner, who was clerk to the prosecutor, received from another of his clerks twenty shillings of the master's money to pay for an advertisement, and he paid only ten shillings, charged twenty shillings, and embezzled the other ten shillings: the judges held that he could not be convicted of embezzlement, as the money had been in the prosecutor's possession by the hands of his other clerk. R. v. Murray, Ry. & M. 276. But now, by stat. 14 & 15 Vict. c. 100, s. 13, "if, upon the trial of any person indicted for embezzlement as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant, it shall be proved that he took the property in question in such a manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of embezzlement, but is guilty of simple larceny, or of larceny as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant, as the case may be ; and thereupon such person shall be liable to be punished in the same manner, as if he had been convicted upon an indictment for such larceny."

3. That he received the money, &c., for, or in the name of, or on account of his master. This the jury may infer from the circumstances of the case. Upon an indictment for embezzlement, it appeared that the prisoner worked for the prosecutors, who were turners; that it was part of his duty to receive orders for jobs, to take the materials from his master's stock and work them up, to deliver out the articles and receive the money for them, and to pay the whole of the money received to his masters; and every week he received for his labour, a certain proportion of the money received for the articles made by him: in his character of servant to the pro