money. The delivery notes, as well as receipted invoices of the coals, were handed to W.'s carmen, and the former were taken to his office to be entered in his books; but the invoices receipted by the company were left with the customer on payment of the amount. The prisoner B. was servant of W., and was employed by him as carman in the delivery of coals pursuant to the said contract, and it was B.'s duty to pay over direct to the clerks of the company any money he might receive for such coals. B. delivered coals to one of the company's customers, and brought the delivery order to the office to be entered. He received for the coals 57. 10s., leaving the receipted invoice with the customer, but converted the money to his own use. He was indicted for embezzlement as servant of W.; but it was held by a majority of the judges that he could not be convicted, as the evidence showed such a privity as to make him the agent of the company in receiving the money, and that the money was not received on account of W., but on account of the company. However, in a subsequent and very similar case (p) a different R. v. Thorpe, decision was arrived at; but R. v. Beaumont was not cited. H. was agent of the Great Northern Railway Company at Huddersfield, for the purpose of carrying out goods to be there delivered by the company, and employed his own servants, and used his own drays and horses, and was answerable to the company for monies collected by his servants for the carriage of goods. The prisoner T. was H.'s servant, and, as such, it was his duty to go out with a dray, to take with him goods, and a delivery-book handed to him by J. E., a clerk in the service of the company, and to deliver the goods according to the directions contained in the delivery-book, and to receive the amount of carriage therein specified as due to the company, and then to account for the sums so received with J. E. On several occasions T. took out goods for the company, and received from the consignees payments for the carriage as in the deliverybook, amounting to 67., which sums were paid to, and received by, him as due to the company; and the receipts were given by T. in the name of the company. T. absconded, and never paid these sums either to J. E., or to his master H., but H. paid up the amount to the company in pursuance of his arrangement. T. was indicted for embezzlement as the servant of H., and convicted, and the conviction was upheld as although T. received the money in the name" of the company, he received it “on account" of H. 66 If the money misappropriated has been received from the Servant master (q), or if it has been in his possession (r), the servant stealing cannot, as we have seen, be convicted of embezzling it, but should ceived from be convicted of larceny, which, as we shall hereafter see, may now master, or (p) R. v. Thorpe, Dears. & B. 562; S. C. 27 L. J., M. C. 264 (1858). This case was not argued by counsel. (q) R. v. Hawkins, 1 Den. C. C. 584; R. v. Beaman, Carr. & M. 595, where a servant, sent with 6s. to buy coals, pocketed one, and was convicted of lar- (r) R. v. Murray, 1 Moo. C. C. money re which has been in his be done, although the prisoner be indicted for embezzlement. In a case(s), however, where it appeared from the evidence that the prosecutors were spinners, and that the prisoner, who was in R. v. Butler, their employ, had been from time to time entrusted by them possession, larceny. But if received from third person, held to be with money for the purpose of paying wages to work people; and the duty of the prisoner was to keep an account in a book of the monies which he so received and disbursed, and the book when produced contained three entries made by the prisoner, in each of which he charged his employers with more money than he had paid on their account, and the book had been balanced by the prisoner; but there was no evidence that he had actually accounted with his employers, Wightman, J., stopped an indictment for larceny, observing that, perhaps the prisoner never intended to deliver this account, or, if he did, to deliver it with explanations; but this was no accounting, and the prisoner was acquitted. But if a tradesman, suspecting his servant's honesty, give marked money to a friend to purchase something at his shop, though mas- and, the servant, instead of putting the money into the till ter's agent, pocket it, this offence will be embezzlement (). If the money embezzle- has been put into the till and is abstracted thence, it is larceny. Where a servant is sent by his master to get change for a So, if servant note, gets it and embezzles the change, he is not liable at common law for stealing that, but should be indicted for embezzlement, as the master never had possession of the change (u). ment. sent to get change embezzle the change. 3. He must fraudulently embezzle the same, or some part thereof (x). Embezzlement may be defined as the fraudulent retention of personal property of any kind belonging to another, whilst in the course of passing to the possession of the owner. It is not (s) R. v. Butler, 2 Carr. & K. 340. Where a servant, who was employed by her mistress to pay bills, received from her money to pay a bill of a cheesemonger named Sadler, and brought back the bill with the words 66 paid Sadler," on it, which she herself had written, having pocketed the money, she was convicted of forgery, R. v. Houseman, 8 C. & P. 180. (1) R. v. Headge, Russ. & Ry. 160; S. C. nom. R. v. Hedges, 2 Leach, 1033. In that case it is said, "It seems to be the opinion of the judges that the stat. 39 Geo. 3, c. 85, did not apply to cases which are larceny at common law." In Russ. on Crimes, vol. ii. p. 168, it is said that the enactment of the stat. Geo. 4, like that of the stat. Geo. 3, has the effect, it should seem, of constituting the offence described in it a larceny. R. v. Hedges was followed in R. v. Gill, 1 Dears. C. C. 289; S. C. 23 L. J., M. C. 50. (u) R. v. Sullens, 1 Moo. C. C. 129; R. v. Thomas, 9 C. & P. 741; R. v. Reynolds, 2 Cox, C. C. 170. If he steal the note it is larceny, as he only had the custody, not the possession of that, Bass's Case, ante, p. 286; R. v. Atkinson, 1 Leach, C. C. 302; and see R. v. Walsh, Russ. & Ry. 215; S. C. 4 Taunt. 258; 2 Leach, C. C. 1054; R. v. Goode, Carr. & M. 582; R. v. Smith, 1 Carr. & K. 423; R. v. Johnson, 21 L. J., M. C. 32; S. C. 2 Den. C. C. 310. (x) The embezzlement need not take place whilst servant, if the receipt were whilst servant, R. v. Lovell, 2 M. & Rob. 236. account must be shown. R. v. Smith, sufficient, however, in support of a charge of embezzlement, to prove a mere receipt and non-payment over of money that is a mere matter of account. A positive refusal to account must be Refusal to shown (y). Thus, where (z) a man gave money to his servant to pay taxes, and the only evidence of embezzlement was that the collector had never received the money, it was held that the servant could not be convicted of embezzlement. So, R. v. Hodgwhere (a) the clerk to the proprietors of a coach, whose duty it was to receive money for passengers, &c., enter the sums in a book, and remit the money weekly to his employers, duly charged himself in his book with all sums received, but did not remit the money to his employers, as he ought to have done, it was held that he could not be convicted of embezzlement. son. count no em And in R. v. Jones (b) it was held that a clerk who had Mere omismerely omitted to enter in his book a sum of money which he sion to achad received could not be convicted of embezzlement, as it did bezzlement. not appear that he had denied the receipt of it, or gave any false account respecting it. count, em But if he had rendered an account, in which the sums re- Aliter, of acceived were omitted, that would be evidence of embezzle- count containing omisment (c). And it was held by Coleridge, J. (d), that a baker's sion. servant, whose duty it was, on the evening of every day, to Wilful omisrender an account of all the monies received during the day for sion to achis master, and immediately pay over the amount, having wil- bezzlement. fully omitted to account, might be convicted of embezzlement, as such an omission was equivalent to a denial of the receipt of the money. And where (e) a female servant was sent to receive Leaving rent due to her master, received the rent and went off to Ire- situation and absconding. (y) In addition to the cases cited in the text in support of this position, the case of R. v. Taylor, 3 B. & P. 596, may be referred to. In that case it was held that the offence was completed in the county in which the clerk refused to account; and, accordingly, that he might be indicted and tried in that county, though he received the money in another county. Now he may be indicted in either, 7 Geo. 4, c. 64, s. 12; and see R. v. Hobson, Russ. & R. 56; R. v. Murdock, 21 L. J., M. C. 22; S. C. 2 Den. C. C. 298. (z) R. v. Smith, Russ. & Ry. 267. (a) R. v. Hodgson, 3 C. & P. 422; but see R. v. Jackson, 1 C. & K. 384, post. And see R. v. Hebb, 2 Russ. 1242, where Garrow, B., held that a clerk could not be convicted of embezzlement from whose books it appeared that he had received more than he had paid away. See also (b) 7 C. & P. 833; and see (c) R. v. Creed, 1 Carr. & K. 63. See R. v. Butler, 2 C. & K. 340, ante, p. 308, a case where a servant had made up his account, but had never delivered it; and it was held no accounting. (d) R. v. Jackson, 1 Carr. & K. 384. In R. v. Wortley, 21 L. J., M. C. 44, Lord Campbell said "There are many authorities which show that the denial of the receipt of the money by the prisoner constituted an embezzleinent." (e) R. v. Williams, 7 C. & P. 338. R. v. Wil liams. Entry in one accounting where duty to enter in several. land, it was held, by the same learned judge, that the circumstance of her quitting her place and going off to Ireland was evidence from which a jury might infer that she intended to appropriate the money, and she was found guilty. So in a case (f) in which it appeared to be the duty of L., the book not an prisoner, to receive remittances from customers for his master, to enter the amounts received in a cash book, to furnish an extract from the cash book to the cashier, also to enter the amount to his master's credit in a banker's book, and to pay the amount, R. v. Lister. with others, from time to time into the bank, and also to enter each amount in his master's ledger to the credit of the customer who paid it. Having received a sum of money from a customer, L. did not enter it in the cash book, or in the extract furnished to the cashier, or in the banker's book, or pay the amount into the bank for his master, but he did enter it in the ledger to the credit of the customer. He was nevertheless held to have been rightly convicted of embezzlement, and it was also held that the making the entry in the ledger did not exempt him from punish Promise to omission to do so, no em ment. But where a servant, having received money admitted the account, but receipt, and promised to account, but did not do so, it was held by Erskine, J. (g), that he could not be convicted of embezzlebezzlement. ment. In that case, the collector of a water company, as was R. v. Creed. his practice, gave the turncock three receipts for water rate, desiring him to receive the amounts. He received the money, and when asked, admitted that he had done so, and said he would pay it over on Monday, but absconded. Claim of bezzlement. And where (h) the master of a coal ship retained part of the right no em- freight received for carriage of coals, claiming a right to do so according to a recognized custom between owners and captains in the course of business, Cresswell, J., held that he could not be convicted of embezzlement. R. v. Nor man. Embezzle specific sum must be proved. In support of an indictment for embezzlement, it is, in gement of some neral, necessary to prove that some specific sum has been embezzled. But, in one case, that rule appears to have been relaxed (i). In that case the prisoner was cashier in a bank. R. v. Grove. His duty was to take charge of the cash, and when any payment was made into the bank, in money and paper, the course was for him to hand over the paper to a clerk, and to enter the cash received in a book, kept by himself, called "the moneybook." It was also his duty, at the close of each day, to see that the cash in hand agreed with "the money-book," and to strike a balance denoting the sum in cash which he bad in his charge, and which ought to have been kept either in a drawer in the counter, of which he had the key, or in a box in the (f) R. v. Lister, 26 L. J., M. C. 26; S. C. 1 Dears. & Bell, C. C. 118. In R. v. Betts, 1 Bell, C. C. 90, it was held that a miller's foreman, who had authority to sell flour and enter the sale in a book, could not be convicted of larceny of some flour which he sold without entering the sale in a book, but should have been indicted for embezzlement of the money received for it. (g) R. v. Creed, 1 Carr. & K. 63. (h) R. v. Norman, Carr. & M. 501. (i) R. v. Grove, 7 C. & P. 635; S. C. 1 Moo. C. C. 447. 66 banking-house, of which also he had the key. One day the cash in the money-book, at the close of business, was 1,762, which was duly carried forward, and formed the first item in the next day's account. On the latter day, at the close of business, the prisoner made the balance in the money-book 1,3097., which amount he ought to have in one or other of the abovenamed places of deposit. Upon examination, however, it was found that, instead of 1,3097., the prisoner had only 345l., leaving a deficiency of 9647. The prisoner, who admitted that he was short about 9007., was indicted for embezzling to a large amount, to wit, 500l." The only witness against the money prisoner was the partner in the bank, who discovered the delinquency, and who could not say when the money had been purloined, from what persons it had been received, what sort of money had been abstracted, or whether from the till, or upon the receipt from customers. The jury found the prisoner guilty of embezzlement to the amount charged, and, after argument and considerable doubt, eight judges, against seven, held that there was sufficient evidence to go to the jury of the prisoner having received certain monies on a particular day, and for them to find that he embezzled the sum mentioned in the indictment. However, in a subsequent case (k), where a shopman was in- R. v. Jones. dicted for embezzlement, and the counsel for the prosecution offered to prove that there was a deficiency in the prisoner's accounts, but said that there was no proof of the embezzlement of any particular sum, and cited R. v. Grove, Alderson, B., directed an acquittal, saying, that "whatever difference of opinion there might be in the case of R. v. Grove, proceeded more upon the peculiar facts of that case than upon the law. It is not sufficient to prove, at the trial, a general deficiency in account. Some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen." And again, in a case (7) where it was the duty of a clerk and R. v. Chaptraveller to receive money for his employer, pay wages out of man. it, and make entries of all monies received and paid in a book, and to enter the weekly totals of receipts and payments in another book, upon which last book he, from time to time, paid over balances to his employer. The clerk, having entries in the first book amounting to 251., entered them in the second as 351., and two months afterwards, in accounting with his master, made his balance 107. too little by these means, and paid it over accordingly. On this evidence he was indicted for embezzling the 107., but Williams, J., asked the counsel for the prosecution, "Can you show any precise sum received by the prisoner, on account of his master, and the whole or part of that very sum appropriated by him to his own use?" And, in the absence of such evidence, directed an acquittal. (k) R. v. Jones, 8 C. & P. 288. Of this case it may be remarked that Alderson, B., was one of the seven dissentient judges in R. v. Grove, and in Grove's Case there was an admission, which in (1) R. v. Chapman, 1 Carr. & |