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As to larceny or embezzlement by clerks, servants, or persons in the public service: 67. Whosoever, being a clerk or servant, or being Larceny by
clerks or 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 labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.
Note. This clause is taken from the 7 & 8 Geo. 4, c. 29, s. 46, and the 9 Geo. 4, c. 55, s. 39 (I.).
The words in Italics are taken from the next
The word "employer" is taken from the 9
As to hard labour, &c., see ante, p. 5.
Mr. Davis (Cr. L. 69) says “this provision does not create
any new offence, but only increases the punishment." Now it does not increase the punishment, and it does extend the former clauses to all cases included by the words in italics, and (as far as it relates to England) by the word “employer.”
clerks or servants.
68. Whosoever, being a clerk or servant, or being Embezzleemployed for the purpose or in the capacity of a ment by 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 thereaf shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding fourteen
and not less than three years,—or to be imprisoned for any term not exceeding two years with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.
Note. This clause is framed from the 7 & 8 Geo. 4, c. 29, s. 47, and the 9 Geo. 4, c. 55, s. 40 (T.).
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. The cases of Rex v. Snowley ; 4 C.
& P. 390; Crow's case, 1 Lew. 88; Rex v. Thorley, R. & M. C. C. 343; Rex v. Hawtin, 7 C. & P. 281; Rex v. Mellish, R. & R. 80, and similar cases, are consequently no authorities on this clause. These cases and the words of the former and present clauses were brought before the select Committee of the Lords, and they unanimously agreed that the law ought to be altered, and that the present clause did alter it effectually. Mr. Welsby (Jerv. Arch. 384) notices the omission of the words “by virtue of his employment," but retains the same statement as in the former editions, that it must appear that the defendant received the money by virtue of his employment. He gives no reason, however, for that assertion, and only refers to the cases which were decided on those very words in the old clause which are now omitted, and to Rex v. Prince, M. & M. 21; 2 C. & P. 517; which has no bearing whatever on any clause as to embezzlement by servants ; for it was an indictment against the defendant under the 52 Geo. 3, c. 63 (repealed by the 7 & 8 Geo. 4, c. 27), for unlawfully applying to his own use a bill of exchange deposited with him as agent for the owners, and Lord Tenterden, C. J., held, on the particular words of that statute, that though for certain purposes a friend was an agent, he was not such an agent as the Legislature had in view in that Act. There can be no doubt, therefore, that none of the cases cited supports the position in question, and it is clear that the omission of the words in question, and the change in the terms in this clause, render it no longer necessary to prove that the property was received by the defendant by virtue of his employment; in other words that it is no longer necessary to prove that the defendant had authority to receive it. In Reg. v. Moah, Dears C. C. 639, Martin, B., said, “I protest against the idea that when an Act of Parliament is made as clear as words can make it, you are to cite as authorities as to its construction, and as a guide to us as to its interpretation, cases decided years and years
before upon another statute;" and well may the learned Baron's protest be extended to this case, where the present clause has been expressly framed in order to get rid of the decisions on the former clause. Mr. Davis (Cr. L. 70) rightly says that “this omission avoids this technical distinction ;” but he adds, “still it must be the master's money which is received by the servant, and not money wrongfully received by the servant by means of false pretences or otherwise.” This is plainly incorrect. A.'s servant goes to B., who owes A. £10, and falsely states that A. has sent him for the money, whereon B. pays him the money. This case is clearly within the clause; for the money is “ delivered to and received and taken into possession by him for and in the name and on the account of his master," so that the case comes within every one of the categories of the clause, and if it came within any one it would suffice; in fact, no case can be put where property is delivered to a servant for his master that does not come within the clause, and it is perfectly immaterial what the moving cause of the delivery was.
The word "employer" is taken from the 9 Geo. 4, c. 55, s. 40 (I.). In Ireland, on an indictment under the 9 Geo. 4, c. 55, s. 40, for embezzlement by the prisoner of certain money which he had received as clerk of a notary, it appeared that until six P.m. each day the prisoner acted as the receiver of a bank, and after that as clerk of the notary to the bank, when he was employed in collecting bills, &c. A person having bills in the bank and being unable to pay them there, handed the amount to the prisoner before six o'clock, requesting him to take up the bills, which he promised to do in the notary's office. Having afterwards received the bills from the notary to collect, he kept one of them, and delivered the rest to the person who paid him the money, the whole of which he kept, except the amount of one bill, which he paid to the notary. On this
evidence a majority of the judges held the conviction right, the money having been delivered to him as the servant of the notary. Rex v. Gourlay, Jebb, C. & P. C. 82, cited 2 Hayes' Dig. C. L. I. 845.
It is reported to have been held in Ireland that a cow was not a “ chattel” within the meaning of the 9 Geo. 4, c. 55, s. 40 (I.), Reg. v. Deneney, Jebb, C. & P. C. 255; cited 2 Hayes' Dig. C. L. I. 485. This decision is clearly erroneous. The words “chattel, money or valuable security,” were advisedly inserted in Peel's Acts, 7 & 8 Geo. 4, c. 29, and 9 Geo. 4, c. 55 (I.), in order at least to include every kind of personal property that was the subject of larceny at common law. Now chattels by the common law "comprehend all goods moveable and immoveable, except such as are in the nature of freehold or parcel of it.” Jac. L. D. Co. Litt. 118, b. “Goods or chattels are either personal or real; personal, as horses and other beasts." Co. Litt. 118, b. And the decision is the more strange, because “ chattel ” is derived from catalla, and so is “cattle ;” and catalla “primarily signified only beasts of husbandry, or (as we still call them) cattle; but in its secondary sense was applied to all moveables in general.” 2 Bl. C. 385, citing 2 Dufresne, 409. Every indictment for stealing a cow alleges it to be of the goods and chattels of the prosecutor, and I have a record of a conviction for horse-stealing, in 1307, on an indictment alleging that the prisoner“ equum phaleratum de bonis et catallis Adæ de Prestwood felonice furatus est;" which I note as well for the purpose of showing the ancient mode of laying the property, as that in those times “steal" alone was sufficient, and it was due to a later age to add “take, carry, drive, and lead away." See Rex v. Scott, 2 Russ. C. & M. 307.
As to hard labour, &c., see unte, p. 5.
69. Whosoever being employed in the public service Larceny by