secutors, he received an order for six dozen of coffee-pot handles he took the wood from his master's stock, he turned them on their premises and with their machinery; he delivered them, received the price, concealed the transaction, and kept the whole of the money, his own share of it for his labour being only about a third: the prisoner was convicted, but it being doubted whether this was not rather a larceny of the materials, than a case within the meaning of this Act, the matter was referred to the judges, and they unanimously held that the conviction was correct. R. v. Hoggins, R. & Ry. 145. But whether the money embezzled, was really due to the master or not, whether he could have recovered it, or had a right in law to receive it, is immaterial; if the clerk or servant received it for him, or in his name, or on his account, it is sufficient. Resolved by the judges in Beacall's case, 1 Car. & P. 454. And therefore where the prisoner, appointed by overseers of the poor to receive poor-rates, demanded the poor-rate for certain premises of the landlord instead of the tenant (the landlord being in the habit of paying his tenant's rates), and the landlord paid it: the prisoner being indicted for embezzling this sum, and convicted, the judges of the criminal appeal court held that although the overseers could not enforce payment of the sum from the landlord, yet as the defendant had received it on their account, it was within the statute, and the party rightly convicted. R. v. Adey, 19 Law J. 149 m.

4. That he received it by virtue of his employment as such clerk or servant. This depends upon the fact whether he was authorized by his master to receive money, &c., in such a case. Where the lessees of tolls of a turnpike gate, hired the prisoner to collect at a particular gate at weekly wages, and this was his sole employment; upon a particular occasion one of his masters desired him to receive from the collector at another gate the money collected by him, which he did and embezzled it a majority of the judges held, that although the receipt of this money by the prisoner was out of his ordinary employment, yet as he was the servant to the lessees, and in his character of servant to them had submitted to be employed by them to receive the money in question, and had received it by virtue of being so employed, the case was within the statute. R. v. Thomas Smith, R. & Ry. 516. And in another case, where, upon an indictment for embezzling money of the prosecutors, who were carcase butchers, it appeared to be the duty of the prisoner every evening to receive from the porters the money they took in the course of the day for the meat sold, and to pay it over the next morning to the collecting clerk, but he was not expected in the course of his employment to receive money from the customers themselves; the prisoner

however called upon one of his master's customers for the amount of his account, received it, and embezzled it: the judges were of opinion that as the prisoner was entrusted to receive from the porters such monies as they collected from the customers in the course of the day, the receiving of it immediately from the customers, instead of receiving it through the medium of the porters, was such a receipt of money "by virtue of his employment" as the Act meant to protect. R. v. Beechey, R. & Ry. 390. Where by the course of business in the prosecutor's establishment, the customers paid their money to the clerks, the clerks paid it over to the superintendent, and he paid it to the prisoner, whose duty it was to keep an account of the sums so paid to him, and pay them over to the cashiers; they were all servants of the prosecutor; three of the sums which the prisoner had thus received, he embezzled, and being indicted for embezzlement, it was objected that as he had received them from one of his master's clerks, they were his master's money, and on the authority of Murray's case, ante, p. 452, it was not embezzlement, but larceny: but the judges of the criminal appeal court held that it was embezzlement; and they distinguished it from Murray's case, as the prisoner there received the money for a particular purpose and misapplied it, here the prisoner stopped these sums of money on their way to his master, and embezzled them. R. v. Masters, 2 Car. & K. 930. But where the clerk or servant receives money without authority, either direct or to be implied from the nature of his employment, his applying it to his own use will not be an offence within the Act. Therefore where it was proved to be the duty of the prisoner, a butcher's apprentice, to call daily on certain of his master's customers for orders, but it did not appear that he had ever been employed to receive money; and he received from one of the customers the amount of his bill, and embezzled it: being convicted, and his case being referred to the judges, they were of opinion that as it was not proved that the prisoner was ever employed to receive money for his master, and it did not therefore appear that he received the money in question by virtue of his employment, the conviction was wrong. R. v. Mellish, R. & Ry. 80. So, where a customer paid some money to a carrier's warehouse clerk, who was not authorized to receive it, that duty being entrusted to the collecting clerk only, and the warehouse clerk embezzled it, the judges held that he was not a clerk or servant, within the meaning of the Act. R. v. Thorley, Ry. § M. 343. Where the master of a charity school was sent by the treasurer, who was also one of the committee, for fifteen pounds, which the ironmongers' company had given to the charity, but it was not the duty of the schoolmaster to receive money on account of the charity, that being entrusted to the collector only it was holden not only that this was not a receipt by

virtue of his employment, but that he was neither clerk nor servant to the treasurer or the committee. R. v. Nettleton, Ry. & M. 259.

5. That he embezzled the money, &c., received by him, or some part of it. The usual evidence given of the embezzlement is, that having received the money, &c., he denied the receipt of it, or did not account to his master for it when he ought, or accounted for other monies received by him at the same time or after, and not for it, or rendered a false account, or practised some other deceit in order to prevent detection from which the jury may fairly infer that the defendant either actually disposed of the money, &c., to his own use, or withheld it from his master with intent to do so, and to defraud the master of it,-which seems to be the meaning of the word embezzle. The words in the repealed Act upon this subject were-" embezzle, secrete, or make away with ;" the words secrete or make away with" are omitted in this statute, as meaning, I presume, the same thing as the word "embezzle." For it is clear that if a clerk render a true account, but claim to withhold the sum in question, alleging a right to do so, or merely fail to pay it over, this will not be embezzlement. Where the captain of a ship received freight for 215 tons of culm, and accounted with the owner of the ship, his master, for 210 tons only; in fact, the culm was weighed into the ship as 210 tons, and weighed out as 215, and the captain claimed the freight on the difference, as being entitled to it by a custom of the trade: Cresswell, J., held that this was not embezzlement. R. v. Norman, 1 Car. & K. 501. So, where the prisoner charged himself in his master's books with money received by him, but did not pay it over to the master, Vaughan, B., held this not to be embezzlement. R. v. Hodgson, 3 Car. & P. 422. So, where the prisoner was entrusted to receive several sums for water rate, and being asked by the collector whether he had received them, said that he had, and would pay them over on the following Monday, but instead of doing so he absconded: Erskine, J., held, that as he had accounted, his not paying the money over was not embezzlement. R. v. Creed, 1 Car. & K. 63. But where it appeared that the prisoner, who was coachman of a stage coach, had to account for monies received by him from passengers, to the book-keeper at one stage, and had to pay over the monies to his master; and on one particular occasion he rendered an account of the true sums to the book-keeper, and they were entered in the books accordingly, but he paid to his master a less sum, as being all that he had received: Patteson, J., held this to be embezzlement. R. v. White, 8 Car. & P. 742. But if a clerk or servant, entrusted to receive a sum of money, receive it, and abscond, without ac

counting for it, this is clearly embezzlement. R. v. Sarah Williams, 7 Car. & P. 338. So, where a servant, authorized to receive money, and whose duty it was to account every evening for what he so received, received three sums for his employer on different days, and neither accounted for them nor paid them over, and it appeared that this must have been wilfully done: Coleridge, J., held, that if this were done wilfully, it was embezzlement, although the servant never denied the receipt of these sums, nor rendered any account in which they were omitted; R. v. Jackson, 1 Car. & K. 384; for here there was concealment and fraud, both essential ingredients in the offence of embezzlement. So, where a servant does not account for a particular sum received by him, but accounts for other sums received by him at the same time or afterwards, this is strong evidence of embezzlement. R. v. Hall, R. & Ry. 463. But the mere omission to account for the receipt of a particular sum, particularly in a long account and of great extent, will not of itself amount to embezzlement, if not accompanied by other circumstances, such as a denial of the receipt of the money or the like, showing the omission to be wilful; for otherwise the omission might arise from mere carelessness. R. v. Jones, 7 Car. & P. 833. So, where it was proved that the prosecutor had given 57. 88. to the prisoner, his housekeeper, to pay to the overseer of the poor for poor-rates, and that the overseer never received that or any other sum from the prisoner: the judges held that this was not sufficient evidence of the prisoner's having embezzled the money; the fact of not having paid the money over to the collector, was not evidence of actual embezzlement, it only negatived the application of the money in the manner directed. R. v. Elizabeth Smith, R. & Ry. 267. But if a clerk or servant receive money for his master, and deny the receipt of it, this is clearly embezzlement. R. v. Hobson, R. & Ry. 56. R. v. Taylor, R. & Ry. 63. Where the prisoner, a brewer's drayman, was sent out with porter for the customers, and also with an extra quantity of bottled porter which he was authorized to sell at 9s. 6d. per dozen; he in fact sold a dozen for 68., but did not receive the price at that time; the brewer hearing of this, desired the purchaser to pay the prisoner when he should call for payment, and he did so, and the prisoner being questioned about this afterwards by his master, denied it: Patteson, J., after conferring with Parke, B., held this to be embezzlement. R. v. Aston, 2 Car. § K. 413. It was objected in this last case, that as the prisoner had sold under the price limited, it could not be said that he received the 6s. by virtue of his employment; but it was holden that the master, by calling on the purchaser, and desiring him to pay the sum agreed upon, he was bound by the payment and could not demand more, and so confirmed the sale made by

the prisoner. Id. So, the rendering of false accounts, by means of which a clerk or servant retains for himself a portion of the property which he should have handed over to his master, is in general deemed pregnant proof of embezzlement. In one case, indeed, where it appeared that the prisoner was clerk and traveller to the prosecutor, and his duty was to receive the money from the customers, to pay the wages and other outgoings out of it, and to enter these payments first in a small book, and to carry their weekly total into a larger book, which contained the general debtor and creditor account between the prisoner and his master, and the balance being struck from time to time, was either paid by the prisoner, or carried forward; in the instance from which the prosecution arose, the week's amount of outgoings, which in the small book amounted to 251., was carried into the larger book as 351., and this appeared to be written on an erasure; in the month following the account, comprising this entry, was settled, and the balance carried over, and in two months afterwards, the account was again balanced, and the balance paid by the prisoner to the prosecutor: Williams, J., asked if it could be shown that the whole or any part of any precise sum received by the prisoner for his master had been embezzled by him, and being answered in the negative, said that in the absence of such evidence the prosecution could not be sustained. R. v. Chapman, 1 Car. & K. 119. But in many cases such evidence, from the very nature of the clerk's employment, as for instance that of cashier in a banking house, or the like, cannot be given. Where a banker's cashier was indicted for embezzlement, and it appeared that it was his duty to put all sums received by him into a box or till, of which he kept the key, and to enter them in the money book; at the end of each day he balanced the book, and the balance formed the first item in his account on the following day; the master having a suspicion of him, examined his money book, according to which there ought then to be 1,3007. in the till and box, but on examination they in fact contained but a sum of 3457., he having applied the rest to his own use, but when, or in what sums, or from whom the particular monies embezzled were received, did not appear: the judges at the central criminal court held this to be within the statute, and the prisoner was convicted; R. v. Grove, 7 Car. & P. 635; and the case being afterwards considered by the judges, eight of them held the conviction to be right, and seven were of a contrary opinion. Id. Ry. & M. 447. But where in a subsequent case, the only evidence which could be given was that of a general deficiency in the prisoner's account, Alderson, B., held it not to be sufficient; and said that the difference in opinion in Grove's case arose more from the peculiar facts of that case, than from any doubt upon the law. R. v. Lloyd Jones,