and it being objected that he should have been indicted in Surrey, where he received the money, the judges held that he was properly indicted in Middlesex; that the denial of the receipt of the money, when the prisoner was called upon by his master to account for it, was the first act from which the jury could with certainty say that the prisoner intended to embezzle it; and that even if it were proved that he had spent the money in Surrey, that would not necessarily have confined the trial of the offence to that county. R. v. W. Taylor, R. & R. 63.

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Before the present statute, it was holden that in all cases of embezzlement, the indictment ought to set out specifically, at least some article of the property embezzled, and that the evidence should support that statement. Therefore, where the indictment stated an embezzlement of "one pound eleven shillings," it was holden insufficient. R. v. Thomas Furneaux, R. & R. 335. R. v. Tyers, R. & R. 402. But by the present statute (s. 48, supra,) except in the case of an embezzlement of a " chattel," that is to say, in all cases where money, bank notes, bills of exchange, and all other securities for money coming within the meaning of "valuable security," according to the 5th section of this act (see ante, p. 287,) are embezzled, it is sufficient to describe them in the indictment as "money," without specifying any particular species of coin or valuable security. Nor is it necessary that the indictment should state the exact amount or value of the thing embezzled where the indictment stated an embezzlement of money to the amount of 8l. 10s., and the proof was of an embezzlement of 4l. 10s., it was holden sufficient. R. v. James Carson, R. & R. 303. But the indictment must state the property 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. John M'Gregor, R. & R. 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 prisoner being indicted for embezzling the monies of "the directors of the poor of the said parishes,"

the judges held the indictment to be wrong; that it should have stated the monies embezzled to have been the monies of the " guardians of the poor," by their corporate name, or of the directors for the time being, by their individual names. R. v. Richard Beacall, R. & M. 15.

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

Also, it is not necessary or usual 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; but 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. S. P., R. v. Hodgson, 3 Car. & P. 422, cor. Vaughan, B.

Evidence.

To maintain this indictment, the prosecutor must prove :1. That the prisoner was "clerk or servant, or person employed for the purpose or in the capacity of clerk or servant," to the prosecutor. A female servant is within the meaning of the act. R. v. Elizabeth Smith, R. & R. 267. So is an apprentice, although under age. R. v. Wm. Mellish, R. & R. 80. And it is not material whether the servant is paid by certain wages, or by a share of the profits arising from his labour. 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, within the meaning of the act. R. v. John Hartley, R. & R. 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 percentage upon the amount of the orders he obtained for them; he did not live with them or act in

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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. William Carr, R. & R. 198; and see R. v. John Hoggins, infra. Where the prisoner was employed by the overseers of 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. v. John Squire, R. & R. 349; and see R. v. Beacall, R. & M. 15, 1 Car. & P. 454, ante, p. 413. 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, on which he was to receive 21. 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. Wm. Spencer, R. & R. 299; and see R. v. Thomas Smith, infra. In a similar case, where the prosecutor had sent the prisoner with a check 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 had on several occasions been sent to receive the amount of checks at the banker's, he was not at the time in question in the prosecutor's employment, but was to receive 6d. for going to the banker's: J. 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 in a case, very shortly before this, 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, R. & M. 370. 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 chapelwardens, the judges held that he could not be deemed the servant of the one or the other. R. v. Burton, R. & M. 237. Where the master of a charity school was

sent by the treasurer, who was also one of the committee, for 15., 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 the judges held that he could not be deemed either clerk or servant to the treasurer or the committee. R. v. Nettleton, R. & M. 259. But although the party be in fact a clerk or servant to the prosecutor, yet if he was not authorized to receive money, &c. on his account, he will not be deemed a clerk or servant within the meaning of the act; and therefore where a customer paid some money to a carrier's warehouseclerk, who was not authorized to receive it, that duty being entrusted to the collecting-clerk only, and the warehouseclerk embezzled it, the judges held that he was not a clerk or servant within the meaning of the act. R. v. Thorley, R. & M.343.

2. That he received or took into his possession the money, &c. for, or in the name, or on the account of his master, by virtue of his employment as such clerk or servant. See s. 47, supra. That he received it, is usually proved by the person who gave 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 way as in larceny; but if the indictment state a receipt and embezzlement of "money" merely, then the prosecutor may give in evidence a receipt of any species of coin, bank notes, bills, &c., or a receipt of a certain amount, without specifying any particular species of coin or valuable security. See s. 48, supra. A variance between the indictment and evidence as to the amount received, is immaterial. See R. v. James Carson, ante, p. 412. According to the statute (s. 47, supra,) the prisoner shall be deemed guilty of the offence, although the "chattel, money, or security, was not received into the possession of such master, otherwise than by the actual possession of his clerk, servant, or other person so employed." 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, and paid him 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, this case did not come within the statute, but was a larceny at common law; but the judges held that this was a case within the statute, and that an indictment for larceny at common law would not lie for it. R. v. William

Brudge, R. & R. 160. See R. v. William Sullens, ante, p. 408. The judges in the last case, also, seemed to be of opimion, that the statute did not apply to cases which amount to larceny at common law. Id. And, therefore, if a clerk or servant, instead of receiving the money, &c. from a third person on account of his master, take it out of his master's stock, &c. he should be indicted for the larceny, either on the 40th section of this statute (see ante, 407), or at common law. And this has since been expressly decided by the judges: where the prisoner, who was clerk to the prosecutor, received from another of his clerks 20s. of the master's money to pay for an advertisement, and he paid only 10s., charged 208, and embezzled the other 10s.: 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, R. & M. 276.

That he received it for, or in the name of, or on the account of, his master, 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 himi: in his character of servant to the prosecutors, 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 ma terials, than a case within the meaning of this act, the matter was referred to the judges; and they unanimously agreed that the conviction was correct. R. v. John Hoggins, R. & R. 145. 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. & R. 267: but no opinion was delivered on the point; the case was decided upon another ground. Whether the money, &c. 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 servant received it for him, and in his name, and on his account. Resolved by the judges, in Beacall's case, 1 Car. & P. 454, and ante, p. 413.