a farmer, and was sent on a journey with a wagon and horses, and the hay was placed in the wagon, by direction of the farmer, for the use of the horses. The farmer had lost hay before, and on this occasion caused it to be marked. When Roberts had gone about four miles, Jackson was seen going towards Roberts with a cart, in which the hay was subsequently found. It was contended that the stealing by Roberts was at the time the hay was placed in the cart, and therefore Jackson was a receiver; *but Patteson, J., held that the act of stealing was the delivery of the hay to Jackson. (0)

[*406 A count charged the prisoner with embezzling twenty shillings, and it appeared that the prisoner was a clerk of the prosecutor, and his business was to attend certain markets for the purpose of buying skins and other things for his master, for which it was his duty to pay ready money. Before going to market, the prosecutor was in the habit of giving the prisoner either money or a check on his bankers to defray the expenses of the day, and it was the prisoner's duty either to deliver what goods he had purchased, and to account for the money so received the same evening or the next morning, in a book kept for that purpose. On the 8th of October, 1852, the prisoner having an admitted balance of cash belonging to the prosecutor in his hands of £11 11s. 1d., received a check for £10 from the prosecutor to expend in the course of his employment, which check was cashed by the prisoner. The prisoner entered in his book,

"Richard, 5 sheep, 4s.

£1,"

and debited the prosecutor with this payment to Richard, and with several other sums paid to different butchers, amounting to £13 8s. 4d.; he had not, however, paid Richard any n.oney, but had agreed to pay him for the skins at the end of the quarter.(p) In consequence of the prisoner being back in his accounts, he was to receive no salary from the previous Lady-day. It was objected that the case neither amounted to embezzlement nor larceny; but the sessions held that it amounted to larceny, and, under their direction, the jury found the prisoner guilty of larceny as a servant, but not of embezzlement; and, upon a case reserved, the conviction was held wrong (q) So where on an indictment for larceny as a servant, it appeared that the prisoner was bailiff to the prosecutor, and it was his duty to receive and make payments on his behalf, and an account of these receipts and payments was kept in a book in the prisoner's custody, which was examined by the prosecutor at intervals, and in this book were several entries of payments made to workmen in the employ of the prosecutor. five of which were proved to be 4s. and two others 3s. 6d. more than had in fact been paid; and, upon examining the account, it appeared that there was a balance of £2 due to the prisoner, which the prosecutor paid him. It was objected, that the offence was neither larceny nor embezzlement; the sessions, however, held *that the deduction of the several sums of 4s. and [*407 3s. 6d. amounted to larceny; but, upon a case reserved. it was urged that there was no evidence that the prisoner received any money from his master except the £2. Maule, J., ̈* For aught that appears, the payments may all have been out of his own money." Wightman, J., "The evidence is, that he entered the money as paid

() Reg. v. Roberts, 3 Cox C. C. 74. The direction of the master to put the hay in the wagon, prevented the putting it there from being a trespass.

(p) Two precisely similar transactions, which formed the subject of two other counts, took place on the 13th and 20th of October.

(9) Reg. v. Goodenough, Dears. C. C. 210. There was no argument, and no ground is stated for the decision; but the decision is clearly right; for the only evidence against the prisoner was a false entry, and the only thing received from the prosecutor, on the occasion in question, was a check, and that had been cashed, and there was no evidence that any part of the balance in his hands had ever been money in the hands of the prosecutor. Now, the marginal note is, The evidence showed that the prisoner received at different times several sums of money from the prosecutor for the purpose of purchasing skins. The prisoner obtained the skins on credit, and applied the money to his own use," &c.; held, that the conviction for larceny was wrong. This is a clear misstatement of the facts; and, if the facts were as stated in the marginal note, it is clear the case would have been larceny; nor must it be assumed that the case amounted to embezzlement; for the court came to no decision on that point, and it should seem that the case failed both as to embezzlement and larceny, for want of evidence to prove what money the prisoner misappropriated and whence he received it.

which he had not paid." Jervis, C. J., "And that he did so for the purpose of obtaining thereby a portion of the sun of £2. We are all of opinion that the of fence of which the prisoner was guilty was not larceny, whatever else it may have been."(r)

Upon an indictment for larceny, it appeared that the prisoner, being in the employ of the prosecutors, had been from time to time entrusted by them with money for the purpose of paying the wages of their work-people, and it was his duty to keep an account in a book of the moneys which he so disbursed. This book was produced at the trial, and it was proved to contain three entries made by the prisoner, in each of which he had charged his employers with more money than he had paid on their account. The book had been balanced by the prisoner; but there was no evidence that he had actually accounted with his employers. Wightman, J., stopped the case. The question here is, did the prisoner in fact deliver this account to his employers? True it is that here are certain entries, made by the prisoner, which are incorrect; but they are entries which perhaps he never intended to deliver, or, if he did deliver them, to deliver them with explanations. But this was no accounting; and there must in this case have been an accounting in order to fix the prisoner with larceny." (s)

On an indictment for larceny of divers quantities of yarn against the prisoner and G., it appeared that G. was foreman of the prosecutor, who was a canvass manufacturer, and G. had no authority to sell any yarn, but only to give it out for the purpose of being worked up into canvass at the manufactory. The prisoner had on two occasions sent his servant to the prosecutor's warehouse for yarn, and on the former of these occasions G. had delivered with the yarn an invoice made out in the prosecutor's name. On the latter occasion the prisoner sent two of his men to get yarn, and they found the prisoner and G. at the warehouse, and they carried away, in the presence of the prisoner and G., certain parcels of yarn, which were pointed out to them as the yarn they were to take to the prisoner's premises. No invoice was shown to have passed on this occasion, and it did not appear whether the prisoner was or was not aware that G. had no authority to sell; but when the prisoner was charged with having been concerned with G. in the above transactions, he produced the invoice G. had given him on the first occasion, and stated that, except on that occasion, he had had no dealings with him; and Coltman, J., told the jury that if the prisoner knew that, in the transaction in question, G. was in fact committing a felony, he as well as G. was guilty of a felony, and that, therefore, the question for them to consider was, whether at *the time of the pretended sale by G.,

*408] the prisoner did or did not know that G. was exceeding his authority, and defrauding his employers. Had the transaction been accompanied by an invoice, as it was on the former occasion, it would have been much less suspicious; because the fact of an invoice being given might easily have misled the prisoner, supposing him to have been ignorant of G.'s real authority. But the absence of an invoice altered the case materially. It is a suspicious circumstance for any one to buy goods to a considerable amount from the servant of a tradesman, without having an invoice in the regular way; and where we find, as in this case, that the transaction is afterwards denied, this suspicion is increased.”(t)

On an indictment for larceny as a servant, it appeared that the prisoner lived in the house of the prosecutor, and acted as a nurse to his sick daughter, and had board and lodging in the house, but no wages, the wife of the prosecutor occasionally making her presents of money as a reward for her services. While the prisoner was so residing, the wife of the prosecutor gave her the money charged to have been stolen to pay a coal bill, but instead of doing so the prisoner kept the money, brought back the bill with a forged receipt upon it, and four shillings and sixpence as change. And Coleridge, J., held that the prisoner was not the servant of the prosecutor, but that there was evidence of the larceny.(u)

and

(r) Reg. v. Green, Dears. C. C. 323. The prisoner might have been indicted for obtaining the £2 by false pretences; see Witchell's case, post, False Pretences, p. 625.

(s) Reg. v. Butler, 2 C & K. 340 (61 E. C. L. R.).

(t) Reg. v. Hornby, 1 C. & K. 305 (47 E. C. L. R.). The marginal note to this case in the report is erroneous

(u) Reg. v. Smith, 1 C. & K. 423 (47 E. C. L. R.).

In order to bring a prisoner within the 7 & 8 Geo. 4, c. 29, s. 46, it must be proved that he was the servant of the prosecutor. Upon an indictment charging the prisoner as the servant of the prosecutrix with stealing her purse containing forty sovereigns, it appeared that the prisoner was the driver of a glass coach, which had been hired by the day by the prosecutrix, and that he stole her purse from the coach and it was held that the relation of mistress and servant did not exist between the prosecutrix and the prisoner, and that he could only be convicted of simple larceny.(v)

Although it was doubted whether a person could be the servant of several persons at the same time, it is now settled that he may.(w)

It has also been doubted whether the 7 & 8 Geo. 4, c. 29, s. 46, applied to larceny by a clerk employed in a public office under the crown. The prisoner, who was indicted as a clerk to the queen for stealing her money, and also for embezzlement under the 2 Wm. 4, c. 4, was the first clerk to the collector of customs at the port of Falmouth, and as such it was his duty to receive and place in the collector's box each day moneys received in payment of customs; the facts were clear to prove that he had taken money out of the box. The prisoner was appointed by the commissioners of customs under the 3 & 4 Wm. 4, c. 51. It was objected that the 7 & 8 Geo. 4, c. 29, s. 46, did not extend to public servants. Coleridge, J., “The great doubt I have had is, whether or no the 7 & 8 Geo. 4, c. 29, s. 46 was meant to include public servants of the crown such as the prisoner. It would seem intended to *protect private dealings of the subjects only against their clerks and servants,

aud the terms of the 2 Wm. 4, c. 4, seem to confirm this view of it, by spe- [*409 cially providing for such a case as this."(x)

An indictment, which alleges that the prisoner, being the servant of the prosecutor, on a certain day and year, stole his property, is sufficient. An indictment charged that Mary Somerton, on the 1st of March, 1827, "being then and there the servant of J. Hellier" on the same day and year, one ring of the said J. H. did steal; and it was objected, first, that there was no positive averment that the prisoner was the servant of J. H.; 2dly, that it was not sufficiently averred that she was his servant at the time she stole the goods; but it was held, 1st, that "being the servant of J. H.," was a description of the person of M. S., and that that was a sufficient allegation that she bore that character; 2dly, that reading and understanding the language used in the indictment as the rest of mankind would understand the same language, if it were used in other instruments, there could be no doubt that it imported that M. S. was the servant of J. H. at the time she stole the property.(y)

An indictment alleged that the prisoner was the servant of Edward Sanders, and whilst such servant stole the money of the said E. Sanders, his master; E. Sanders was the agent of Mrs. Sanders, and the prisoner was her servant, and the money was in the possession of E. Sanders as her agent at the time it was taken. It was objected that the prisoner could not be convicted either of larceny as a servant or of larceny; but the sessions held that the averment of the prisoner being the servant of E. Sanders might be rejected as surplusage, and that he had a special property in the money; and, upon a case reserved, it was held that the conviction was right. Proof of the allegation in the indictment that the prisoner was the servant of E. Sanders, would only be necessary for the purpose of convicting the prisoner of the compound offence; but it was quite unnecessary to support the charge of simple larceny. E. Sanders had a special property in the money as agent of Mrs. Sanders, and therefore the property was well laid in him.(z)

(v) Reg. v. Haydon, 7 C. & P. 445 (32 E. C. L. R.), Patteson, J., and Gurney, B. See Quarman v. Burnett, 6 M. & W. 499.

() Parke, B., in Reg. v. Goodbody, 8 C. & P. 665 (34 E. C. L. R.); Reg. v. Batty, M. C. C. R. 257, post, p. 418.

(z) Reg. v. Lovell, 2 M. & Rob. 236. The prisoner was convicted on the counts for embezzlement, so that it became unnecessary to decide this point.

(y) Rex v. Somerton, 7 B. & C. 463 (14 E. C. L. R.). The indictment was on the 3 Geo. 4, c. 38, s. 2. See Reg. v. Page, 9 C. & P. 756 (38 E. C. L. R.), ante, vol. 1, p. 132; Reg. v. Silversides, 3 Q. B. 406 (43 E. C. L. R.).

(z) Reg. v. Jennings, D. & B. 447.

"As to larceny by clerks or servants," by the 24 & 25 Vict. c. 96, s. 67, “whosoever, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, shall steal any chattel, money, or valuable security belonging to or in the possession or power of his master or employer, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years, and not less than three years, -or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(a)

*410] *By sec. 98,(b) principals in the second degree, and accessories before the fact, are punishable in the same manner as principals in the first degree, and accessories after the fact (except receivers) are liable to imprisonment for any term not exceeding two years. (c)

Upon the trial of any indictment for any offence in this chapter the jury may, under the 14 & 15 Vict. c. 100, s. 9(d), convict the prisoner of an attempt to commit the same, and, thereupon, he may be punished in the same manner as if he had been convicted upon an indictment for such attempt.

Where a count charged the prisoner with an attempt to steal 45 lbs. of meat of A. Cheeseman, it appeared that Cheeseman was the contractor who supplied meat to a camp, and the course of business was for him each morning to send by his servants meat to the quartermaster-serjeants at the camp, and a soldier from each mess attended. The quartermaster-serjeant had his own scales and weights, and with these he and Cheeseman's servant together weighed out to each soldier in attendance the proper quantity of meat for each mess. The amount of the whole thus delivered was credited to Cheeseman as supplied to the Queen, and the surplus of the meat remaining after all the messes had been supplied was taken away by his servants on his account; the prisoner, his servant, came one day in charge of the meat, and he and the quartermaster serjeant proceeded to weigh out the meat to the different messmen with the quartermaster-serjeant's weights, the prisoner putting the weights in the scale. Before the weighing was complete, one of the messmen brought back his portion, with a complaint that it was short weight. He was desired to wait, and the weighing proceeded till thirty-four messes were weighed, which were supposed to be in the whole 5124 lbs. ; about 60 lbs. of meat remained over, which in the course of business would have been removed by Cheeseman's man. It was discovered, on investigating the complaint, that the 14 lb. weight of the quartermaster-serjeant had been removed, and concealed under a bench, and a false 14 lb. weight had been substituted for it, and used in weighing the thirty-four messes, and all the messes being re-weighed, it was found that the weight delivered was 467 lbs., instead of 5124 lbs., as in the first weighing it appeared to be; and after the true weight was supplied to the different messes, the surplus was about 15 lbs. instead of 60 lbs., as it had appeared to be. The prisoner absconded on the commencement of the investigation. It was objected that there was no overt act so proximately connected with an attempt to steal as to justify a conviction; but the case was left to the jury, who found that the prisoner fraudulently substituted the false for the true weight with intent to cheat; that his intention was to steal the dif ference between the just surplus for which he would have to account to his *411] master and the apparent surplus *remaining after the false weighing, and that nothing remained to be done, on his part, to complete his scheme, except to carry away and dispose of the meat, which he would have done if the fraud had not been detected; and, upon a case reserved, it was urged that nothing was done by the prisoner with reference to stealing the meat; all that he did was to put a false

(a) This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 46, and the 9 Geo. 4, c. 55, §. 39 (1.). The words in italics are taken from the next section in each of those Acts; and their insertion makes this clause and the next coextensive as to the persons to whom they apply. The word "employer" is taken from the 9 Geo. 4, c. 55, s 39 (I.); as to hard labor, &c., see ante, p. 67; as to offences on the sea, see sec. 115, ante p. 331. does not extend to Scotland.

The Act

weight into the scale; but that act was too remote. Secondly, that the property in the meat as soon as it was put in the scale became the property of the Queen. But it was held that the conviction was right. If the prisoner had actually moved away with any part of the meat the larceny would have been complete. The meat was in the prisoner's custody and under his control, He had almost the manual comprehension of it, and had all but begun the asportation. The preparation of the false weight, the placing it in the scale, and the keeping back the surplus meat, were several overt acts, which brought the attempt close to completion; and if the actual transaction has commenced, which would have ended in the offence if not interrupted, there is clearly an attempt to commit the offence. As to the second point, the property was in the vendor until it passed out of him to the vendee by delivery.(e)

*CHAPTER THE NINETEENTH.

OF EMBEZZLEMENT BY CLERKS AND SERVANTS.

[*412

By the 24 & 25 Vict. c. 96, s. 68, (a) “whosoever, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, shall fraudulently embezzle any chattel, money, or valuable security, which shall be delivered to or received or taken into possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money, or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant, or other person so employed, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen years and not less than three years,- or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping."(b)

The words of the former enactments were, "shall by virtue of such employment, receive or take into his possession any chattel, &c., for or in the name or on the account of his master." In the present clause the words "by virtue of such employment" are advisedly omitted in order to enlarge the enactment, and get rid of the decisions on the former enactments. The clause is so framed as to include every case where any chattel, &c., is delivered to, received, or taken possession of by the clerk or servant for or in the name or on account of the master. If therefore a man pay a servant money for his master, the case will be within the statute, though it was neither his duty to receive it, nor had he authority to do so; and it is perfectly just that it should be so; for if my servant receive a thing, which is delivered to him for me, his possession ought to be held to be my possession just as much as if it were in my house, or in my cart. And the effect of this clause is to make the possession of the servant the possession of the master wherever any property comes into his possession within the terms of this clause, so as to make him guilty of embezzlement if he converts it to his own use. (c)1

(e) Reg. v. Cheeseman, L. & C. 140.

(a) The 39 Geo. 3, c. 85; 7 & 8 Geo. 4, c. 29, s. 47; and 9 Geo. 4, c. 55, s. 40 (I.), are repealed.

(b) This clause is framed from the 7 & 8 Geo. 4, c. 29, s. 47, and the 9 Geo. 4, c. 55, 8. 40 (1). As to hard labor, &c., see ante, p. 67. The Act does not extend to Scotland. (c) The case of Rex v. Snowley, 4 C. & P. 390 (19 E. C. L. R.); Crow's case, 1 Lew. 88; Rex v. Thorley, R. & M. C. C. 343; Rex v. Hawtin, 7 C. & P. 281 (32 E. C. L. R.); Rex v. Mellish, R. & R. 80, and similar cases, are consequently no authorities on this clause.

1 See Comm. v. Davis, 104 Mass. 545; State v. Healy, 48 Mo. 531; People v. Stein, 1 Parker C. R. 202; People v. Burr, 41 How. Pr. 293.

VOL. II.-21