challenges, and the Crown has, con- against the peace. Rex v. Rice, 3 sequently, proceeded to try one of such prisoners:-Held, that, upon conviction of such prisoner, judg. ment must follow, although the others have not been tried, and that the possibility of the other prisoners being found not guilty (although such a verdict would be a ground for reversing the judgment), is not a sufficient reason for holding such judgment, and all the legal consequences of such conviction of such prisoner, irregular. Ib. 8. New Trial. East, 581. See Rex v. Kirwan, 2 B. & A. 462; Reg. v. Young, 8 ̊C. & P. 644. If a man writes a letter with intent to provoke a challenge, seals it up and puts it into the post-office in Westminster, addressed to a person in the city of London who receives it there, the writer may be indicted for this offence in the county of Middlesex. Rex v. Williams, 2 Camp. 505-Ellenborough. Where all of several defendants in an indictment for conspiracy are XIII. found guilty, if one of them shews himself entitled to a new trial on grounds not affecting the others, the new trial will nevertheless be granted. Reg. v Gompertz, 9 Q. B. 824; 11 Jur. 204; 16 L. J., Q. B. 121. XII. DUELLING. 66 EMBEZZLEMENT BY CLERKS 1. The Offence, 118. 2. Amounting to Larceny, or Embez zlement, 134. 3. Indictment, 136. 4. Particulars of Charges, 137. 1. The Offence. Statute.]-By 24 & 25 Vict. c. 96, s. 68, "whosoever, being a clerk An endeavour to provoke another" or servant, or being employed for to commit the misdemeanor of send-"the purpose or in the capacity of ing a challenge to fight, is itself a a clerk or servant, shall fraudumisdemeanor indictable, particular-"lently embezzle any chattel, monly where such provocation was given "ey or valuable security, which by a writing containing libellous" shall be delivered to or received, matter, and alleged in the prefatory "or taken into possession by him part of the indictment to have been "for or in the name or on the acdone with intent to do the party bodily harm, and to break the king's peace; the sending such writing being an act done towards procuring the commission of the misdemeanor meant to be accomplished. Rex v. Phillips, 6 East, 464; 2 Smith, 550. count of his master or employer, "or any part thereof, shall be deem"ed to have feloniously stolen the "same from his master or employer, "although such chattel, money or 66 security was not received into the "possession of such master or employer otherwise than by the acIf one kills another in a deliberate "tual possession of his clerk, serduel, under provocation of charges "vant or other person so employed, against his character and conduct," and, being convicted thereof, shall however grievous, it is murder in" be liable, at the discretion of the him, and his second, and therefore "court, to be kept in penal servithe bare incitement to fight, though "tude for any term not exceeding under such provocation, is in itself "fourteen years and not less than a very high misdemeanor, though "five years (27 & 28 Vict. c. 47), no consequence ensues thereon" or to be imprisoned for any term payments in his first book amounting to 251., he entered them in the second book as 351. and, two months after, in accounting with his employer, by these means made his balance 10l. too little, and paid it over accordingly :-Held, that he could not be convicted of embezzlement, without it being shewn that he had received some particular sum on account of his employer, and had converted either the whole or part of that sum to his own use. Reg. v. Chapman, 1 C. & K. 119-Williams. What is.]-Embezzlement necessarily involves secrecy and concealment. If, therefore, instead of denying the appropriation of property, the prisoner, in rendering his account, admits the appropriation, alleging a right in himself, no matter. If a person whose duty it is to rehow unfounded, or setting up an excuse, no matter how frivolous, his offence in taking and keeping is no embezzlement. Reg. v. Norman, Car. & M. 501-Cresswell. It was the duty of a servant authorized to receive money for his employer to account to his employer on the evening of every day for the money received during the day by him for his employer, and to pay over the amount. He received three sums for his employer on three different days, and neither accounted for those sums nor paid them over. He never denied the receipt of them, or tendered any written account in which they were omitted-Held, that, if he wilfully omitted to account for these sums and pay them over on the respective days on which he received them, these were embezzlements, and that such wilful omissions to account and pay over were equivalent to a denial of the receipt of them. Reg. v. Jackson, 1 C. & K. 384-Coleridge. It was the duty of a clerk to receive money for his employer and pay wages out of it, and to 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 his balances to his employer. The clerk having entries of weekly ceive money for his employer, receives money and renders a true account of all the money he has received, he is not guilty of embezzlement if he absconds and does not pay over the money; but, if he had received the money, and had rendered an account in which it was omitted, this would be evidence to shew that he had embezzled the amount. Reg. v. Creed, 1.C. & K. 63-Erskine. The prisoner, having been intrusted by his master with a number of articles of soldiers' clothing for the purpose of selling them, and ten pounds in silver, to enable him to give change, sailed in a ship for the coast of Africa, having, before his departure, written to his master to say that he would send the account together with a remittance, from Madeira :-Held, that he could not be convicted of embezzlement, having received the goods from his master himself, and not from another for and on account of his master; but that he might have been convicted of larceny. Reg. v. Hawkins, 1 Den. C. C. 584; T. & M. 328; 14 Jur. 513. The prisoner had as a servant, in the course of his duty, received from a fellow-servant money paid to that servant for his master by another servant, who had received it from the customers. It was the duty of the prisoner, after such receipt, to hand the money to another servant (the cashier) of his master, but instead of handing it over, he fraudulently retained it :-Held, that this was embezzlement. Reg. v. Masters, 1 Den. C. C. 332; T. &. M. 1; 2 C. & K. 930; 3 New Sess. Cas. 326; 12 Jur. 942; 18 L. J., M. C. 2; 3 Cox, C. C. 178. and deliver to the company's coal manager all monies received in payment for coals so delivered. The delivery notes, as well as receipted invoices of the coals, were handed to the carmen of the prosecutor, and the former were taken to his office, but the invoices receipted by the company were left with the customers on payment of the amount. The prisoner was the servant of the prosecutor, employed as his carman in the delivery of coals pursuant to the contract, and it was his duty to pay over direct to the clerks of the company such monies as he might receive for coals. He 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, which sum he converted to his own use. He was convicted of embezzling the monies of the prosecutor, who had contracted with the company-Held, that there was such privity between the prisoner and the company as to make the prisoner the agent of the company in receiving the money, and that such money was not received for or on account of the The prisoner was employed to superintend the grinding of corn at the mill of a county gaol. It was his duty to direct any person bringing grain to be ground at the mill to obtain a ticket at the porter's lodge. This ticket was his order for grinding the grain so brought to him, and it would have been a breach of his duty to have ground any grain without a ticket. Having ground the corn, he was to receive the money, and hand it over to the governor of the gaol. The prisoner had received money from different persons, whose corn he had ground without the production of a ticket, and appropriated it to his own use: -Held, that he had not received the money on account of his master, and was not therefore guilty of embezzlement. Reg. v. Harris, Dears. C. C. 344; 2 C. L. R. 464; 18 Jur. 408; 23 L. J., M. C. 110; 6 Cox, C. C. 363. The prosecutor gave some mark-prosecutor, but for and on account ed money to J. W. to expend at his of the company, and that he was (the prosecutor's) shop, for the pur- wrongly convicted of embezzling pose of detecting a servant, of whom the prosecutor's money. Reg. v. the master had suspicions. The ser- Beaumont, Dears. C. Č. 270; 2 C. vant was convicted of embezzling a L. R. 614; 18 Jur. 159; 23 L. J., portion of the marked money:- M. C. 54; 6 Cox, C. C. 269. Held, that the conviction was right. Reg. v. Gill, Dears. C. C. 289; 18 Jur. 70; 23 L. J., M. C. 50; 6 Cox, C. C. 295. A. was a carrier, residing at Somerton and going from that place to Stoke and back, employed, however, only between the glove sewers The prosecutor had contracted at Somerton and the manufacturers with a railway company for finding at Stoke, in carrying the gloves and providing them with necessary from and to the one and the other. horses and carmen for the purpose The manufacturers knew nothing of of conveying and delivering to the the sewers, but A. gave the name customers of the company the coals of and took out a number for any of the company in their own wag-woman desiring to be employed, regons, and that he or his carmen ceived unsewn gloves from the should day by day duly account for ufacturers, and conveyed them to man the women at Somerton, taking | sums of money which he had reback the gloves when finished, and ceived for and on account of his receiving the amount due to the master, and appropriated them to women for their work. The man- his own use:-Held, that he was ufacturers looked to the women for properly convicted of embezzlethe work; but if any were missing, ment, although Michaelmas was and the women not found, they the time agreed upon when a valuheld the prisoner accountable for ation was to take place, and the it. In accordance with this course profits were to be ascertained. Reg. of proceeding, A. received sewn v. Wortley, T. & M. 636; 2 Den. gloves from two of the women, de- C. C. 333; 5 Cox, C. C. 382; 15 livered them to the manufacturers, Jur. 1137; 21 L. J., M. C. 44. and received the amount due for the work, but fraudulently applied the money so received to his own use. He was tried for and convicted of, embezzling the money of the two women :-Held, that the relation of master and servant did not subsist, but A. was a mere trustee, and was only guilty of a breach of trust, and not of embezzlement, and therefore the conviction was wrong. Reg. v. Gibbs, Dears. C. C. 445; 1 Jur., N. S. 118; 24 L. J., M. C. 62; 6 Cox, C. C. 455. An instrument in the following form is a contract for service by a labourer, and not a contract of partnership:-"S. W. engages to take charge of the glebe land of the Rev. A. B., his wife undertaking the dairy and poultry, at 158. a week, till Michaelmas, 1850, and afterwards at a salary of 251. a year, and a third of the clear annual profits, after all the expenses of rent, rate, labour and interest on capital, &c., are paid, on a fair valuation, made from Michaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which the cottage to be vacated by S. W., who occupies it as bailiff, in addition to his salary. -March 12th, 1850.—(Signed) A. B., S. W.”—The prisoner was directed to account, and was in the habit of accounting, with the wife of the prosecutor. On the 4th October, the prisoner, in accounting with her, denied the receipt of two The prisoner was convicted of embezzlement. It was his duty to receive remittances from the customers of his masters, to enter them to the credit of such customers in a day or cash-book, and to enter the whole amount received by him on the credit side of a banker's deposit account, and to pay in the amount to the credit of the prosecutors with their bankers; and it was his duty afterwards to post the amounts in a ledger, which contained the accounts of the different customers. The prisoner received a remittance, which he appropriated to his own use; he made an entry of this amount in the ledger to the credit of the customer, but he made no entry of its receipt :-Held, that the conviction was right, as the entry made in the ledger did not exempt the prisoner from the operation of the 47th section of the 7 & 8 Geo. 4, c. 29. Reg. v. Lister, Dears. & B. C. C. 118; 2 Jur., N. S. 1124; 26 L. J., M. C. 26. A. was indicted for embezzling H.'s goods, and for larceny of H.'s goods; B. for receiving goods, the property of H., knowing them to have been stolen. A. was found guilty of embezzling only, and B. for feloniously receiving:- Held, that the conviction of B. was right, for 7 & 8 Geo. 4, c. 29, s. 47, enacts, that every person who has embezzled within the meaning of that section "shall be deemed to have feloniously stolen from his master," and that being so, B.'s offence was properly described in the count for receiving. Reg. v. Frampton, 8 Cox, C. C. 16; 4 Jur., N. S. 566. By Clerks and Servants.]-A. gave his clerk 57., out of which he was to pay for an advertisement; he paid 17. but told A. he had paid 21. Os., 6d., and accounted with A. accordingly-Held, no embezzlement. Rex v. Murray, 5 C. & P. 145, n.; 1 M. C. C. 276. A clerk who received six bank notes on his master's account, in payment of a particular debt, made a false entry in his master's book, with a fraudulent intent to conceal the payment of that sum, but afterwards paid to the master the identical notes which he had received, applying them, in his account, to another debt received by him for his master-Held, that he was guilty of embezzlement, in respect of these six notes. Rex v. Hall, 3 Stark. 67-Bayley. It is felony for the confidential clerk of a merchant to take a bill of exchange, unindorsed, from the bill box, and convert it to his own use, although he was in the habit of transacting the cash concerns of the house from week to week; for, as it had not been delivered to him for such purpose by his employer, it is a tortious taking from the possession of the master. Rex v. Chipchase, 2 Leach, C. C. 699; 2 East, P. C. 567. It was the duty of a clerk to receive monies daily at N., to enter all such monies so received in a book, and to remit the amount weekly to L. His entries were all correct, and admitted the receipt of all the monies; but he did not remit them to L., as was his duty :Held, no embezzlement. Rex v. Hodgson, 3 C. & P. 422-Vaughan. A person employed upon commission to travel for orders and collect debts, was clerk within 39 Geo. 3, c. 85, and might have been indicted for embezzlement, although he was employed by many different houses on each journey, and paid his own expenses out of his commission on each journey, and did not live with any of his employers, nor act in any of their countinghouses. Rex v. Carr, R. & R. Č. C. 198. A banker's clerk taking money from the till, intending to embezzle it, is guilty of felony, although the cheque of a customer is left in lieu of it, if that customer has really no cash in the banker's hands, though both he and the banker may suppose he has, and if the cheque is drawn by the customer, not to pledge his own credit with the bank, or draw out money of his own, but to draw out money the prisoner falsely pretends to have in his name. Rex v. Hammon, R. & R. C. C. 221; 2 Leach, C. C. 1083; 4 Taunt. 304. A person received 77. 2s. 6d. in his capacity of clerk to overseers of a parish, and made an entry in a book of the receipt of that sum accordingly, and placed the money with other sums in his possession; the entry of 71. 2s. 6d. was afterwards erased, and 57. 6s. 10 d. substituted for it, and the prisoner only accounted to the parish officers for 57. 6s. 10d. On an indictment for embezzling 17. 158. 7d., and conviction thereon :-Held, that as the prisoner might have paid over the whole of what he received for the 77. 12s. 6d., and have taken the 17. 158. 7d. from other monies he received, he was improperly convicted. Rex v. Tyers, R. & R. C. C. 402. If a clerk receives money from his master to pay away on his master's account, and he states in his accounts that one of the payments was to a greater amount than it really was, this will be no embezzlement. Rex v. Murray, 5 C. & P. 145; 1 M. C. C. 276. A person whose duty it is to obtain orders when and where he likes, and to forward them to his |