and servants, is as follows;-"That if any clerk or servant, or any person employed for the purpose or in the capacity of a clerk or servant, shall, by virtue of such employment, receive or take into his possession any chattel, money, or valuable security, for or in the name or on the account of his master, and shall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such money, chattel, 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; and every such offender, being convicted thereof, shall be liable at the discretion of the court to any of the punishments which the court may award as herein before last mentioned;"—that is, the same punishment as is prescribed by section 46 for larceny from masters, viz. transportation beyond the seas for any term not exceeding fourteen years nor less than seven years, or imprisonment for any term not exceeding three years, and, if a male, whipping, once, twice, or thrice, publicly or privately inflicted (f). Circumstances necessary to constitute embezzlement.]—This act is in substance the same as 39 G. III. c. 85, which it repeals; and therefore the decisions on the construction of the repealed act apply to that now in force. According to these, in order to constitute the offence of embezzlement these circumstances must concur:-the party must be a clerk or servant; he must have received the thing in question by virtue of his employment, and on account of his master; and he must fraudulently embezzle it. 1. He must be a clerk or servant in fact, but he need not be so called. Thus, an accomptant or treasurer to overseers (g), or to a corporation (h), though not appointed under the common seal (¿), a female servant(k); and an apprentice, though under age, if employed to receive the money which he purloins, may be thus guilty (1). A person engaged to travel for several houses, and allowed a per centage on the orders he obtains, has been holden to be in the situation of clerk to each of his employers, and to be liable to prosecution for embezzlement, though paid by a per centage and not a (f) Nearly the same punishment is inflicted for embezzlement of any chattel, money, or valuable security, &c. by persons employed in the public service, see 50 G. III. c. 4; 2 W. IV. c. 4. (y) R. v. Squire, Russ. & R. 349. (h) Per Vaughan, B. Williams v. Stott, 3 Tyr. R. 703. (i) R. v. Wellings, 1 C. & P. 457. salary (m). So where a prisoner was employed to carry out goods in his employer's barge and sell them, and was allowed a share of the profits for his remuneration, a majority of the judges held, that in fraudulently retaining the entire price of the cargo he was guilty of embezzlement, though it was objected that he had a joint interest with his master (n). And where a servant manufactured an article from materials the property of his master for a customer, and having received the price, retained it, concealing the order from his master, he was holden thus indictable, though he would have been entitled to a proportion of the money for his work (o). A person occasionally employed is sufficiently a servant within the act to be liable to its penalties (p). Thus a person employed to drive two cows to the buyer of them, and to receive the purchase money, though without extra reward for receiving the money, is guilty of embezzlement within the statute, as a "servant," if he receives it and does not pay it over (q); but a person employed to collect the sacrament money from the communicants is not liable for embezzling it, not being the servant of the minister, churchwardens, or poor objects of the bounty (r). So a schoolmaster of a charity school, employed by the treasurer in one instance to receive a voluntary donation to the institution was held not within this act (s). A person sworn in at a court leet to the office of chamberlain of a corporation, his duty being gratuitously to collect from the commoners monies in order to spend them in keeping the lands in order, subject to a yearly account to two aldermen, is not a "clerk or servant" within this act(t). 2. He must have received the things in question by virtue of his employment, for, or in the name of, or on account of his master (u). And, therefore, where goods are taken by the servant from the possession of the master, the statute does not apply, but the offender should be indicted for larceny at common law; and, if there is any doubt of the fact, counts both for larceny and embezzlement should be (m) R. v. Carr, Russ. & Ry. 198; and R. v. Leach, 3 Stark. N. P. C. 70. (n) R. v. Hartley, Russ. & Ry. 139. (0) R. v. Huggins, Russ. & Ry. 145. (p) R. v. Spencer, Russ. & Ry. 299; but see R. v. Freeman, 5 C. & P. 534. (q) R. v. Hughes, 1 Mood. C. C. R. 370. (r) R. v. Burton, 1 Mood. C. C. R. 237. (8) R. v. Nettleton, 1 Mood. C. C. R. 259. (t) Williams v. Stott, 3 Tyrwhitt, R. 688. (u) R. v. Prince, Mood. & Malk. R. 21. It was there held that a party who not being in any business of which discounting bills forms a regular part, received a bill, gratuitously engaging to get it discounted, but deposited it with a creditor of his own as a collateral security, was not indictable for embezzling it. joined (v). But where the prosecutor, suspecting his shopman, gave marked money to his friend, with directions to buy some goods at his shop, and the friend accordingly purchased goods, and paid the prisoner, who purloined the money, the judges held that this was a case of embezzlement within the statute, although the money had been previously in the possession of the master (w). To bring a case within the words "by virtue of such employment," it must either appear that the servant had a special direction to receive the money, or other property, of his employer, or that his office was of a description from whence such an authority must necessarily be inferred. As, for example, it is necessarily inferred, from the nature of the office, that a book-keeper in a coach-office or waggon-office is authorised to receive money for his principal; but it is not necessarily inferred that the driver of such coach or waggon, or the porter, has authority to receive money at the office; and, therefore, to bring such person within the statute, a special authority must appear, or at least a practice of receiving to such an extent that the authority must be implied. Thus a butcher's apprentice, who delivered meat to his master's customers, but who had not been in the habit of receiving money, nor was specially commissioned to receive it in the particular instance, was holden not within the statute (x). Again, where a person employed to lead a stallion, with authority to charge and receive not less than 20s. for the use of him, received 6s., and did not account for it, this was held no embezzlement within this section, because the money was not received by virtue of his employment (y). Although the things must be received by virtue of the prisoner's employment, yet if a servant, generally employed to receive sums of one description, and at one place only, be, on a particular occasion, requested to receive a sum of a different description and at a different place, this latter sum, being thus received and afterwards embezzled, will be considered as received by virtue of his employment, because he was a servant, and it was as a servant that he was desired to receive the money, though out of the line of his ordinary duty (2). But where the property purloined is delivered to a servant by the master to be paid to a third person on his account, and instead of being so paid, is retained fraudulently, the statute does not apply, as the (v) R. v. Headge, Russ. & Ry. 160; R. v. Hughes, Moody, C. C. R. 370. (w) R. v. Headge, R. & Ry. 160, a single instance; see R. v. Atkinson, 1 Leach, 302; R. v. Sullens, R. & M. C. C. R. 129. (x) R. v. Mellish, Russ. & Ry. 80. Sed vid. R. v. Thornley, 1 Moody, C. (y) R. v. Snowley, 4 C. & P. 390, per Littledale & Parke, Js. (z) R. v. Thos. Smith, R. & Ry. 516; Abbott, Holroyd, and Garrow, cont. money is directly received from the master (a). And if the property has been in the possession of the master or of any of his servants, as if one clerk receive from another a sum of money to pay for the use of the master, and misapply the money so received, the case will not be within the statue (b). On the other hand, a servant sent to get change for a note, who converts the change to his own use, is guilty of embezzlement, and not of larceny (c). Fraudulent retention of money or goods.]—3. He must embezzle the money or thing; that is, he must fraudulently retain and conceal it. This may be proved either by evidence of his having in fact received it without accounting for it at all, or without entering it in any book of receipts which it was his duty to keep, coupled with evidence of having denied the receipt of it (d), or of having rendered a false account, or made a false entry (e). Omission to enter in the proper book sums received (ƒ), or to pay over a balance after rendering a true account, will not be sufficient proof of embezzlement, and will only subject the party to a civil action (g). It was held by eight against seven judges, that, since 7 & 8 G. IV. c. 29, s. 4, an indictment for embezzlement will be supported by proof of a general deficiency of money which ought to be forthcoming, though without showing any particular sum to have been received and not accounted for (h). Provisions as to the indictment.]—Before the statute of 7 & 8 G. IV. great practical obstacles were thrown in the way of prosecuting a servant for embezzlement, by the technical rules of law. Where the charge was for embezzling money, it was not sufficient to allege that the prisoner embezzled a certain sum, but it was necessary to specify some individual piece of money which he had received and appropriated. This was often difficult, and, where he had given change for a larger note or coin, impossible. At the trial, the master was compelled to select some one act of embezzlement, perhaps out of many, at the risk of failing altogether in the proof, and the certainty that the case of fraudulent intention would be very imperfectly presented to the jury. To remedy these inconveniences, it is enacted by the 48th section of (a) R. v. Peck, 2 Russ. 213; Semb. acc. R. v. Eliz. Smith, Russ. & Ry. 267. (b) R. v. Murray, 1 Mood. C. C. R. 276. (c) R. v. Sullens, 1 Mood. C. C. R. 129; but if he convert the money, &c. sent to be changed, it is larceny. R. v. Atkinson, 1 Leach, 302. (d) R. v. Jones, 7 C. & P. 833. (e) Ibid, and see Mood. C. C. 447. (f) R. v. Jones, 7 C. & P. 833. (g) R. v. Hodgson, 3 C. & P. 422. Vaughan, B. (h) R. v. John Grove (cashier in the house of Masterman and Co., bankers), 1 Mood. C. C. 447. 7 & 8 G. IV. c. 29, as follows:-"That it shall be lawful to charge in the indictment and proceed against the offender for any number of distinct acts of embezzlements, not exceeding three, which may have been committed by him against the said master within the space of six calendar months from the first to the last of such acts; and in every such indictment, except where the offence shall relate to any chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved; or if he shall be proved to have embezzled any piece of coin or valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, and such part shall have been returned accordingly (i). Venue.]—Where a servant receives money in one county, and denies or conceals the receipt in another, it seems he may be indicted in either (j); but if a receipt given by him is produced to show payment of money to, and receipt of it by him, it cannot be received in evidence unless stamped according to law (k). Indictment against a clerk or servant for embezzlement. That A. B. late of, &c. at, &c. being then and there employed as clerk [or servant," &c. in the words of the statute, as the fact may be] to C. D. did, by virtue of such his employment as such clerk, and while he was so employed as aforesaid, receive and take into his possession certain money to a certain amount, to wit, the (i) This provision, while it removes the great difficulties under which the prosecutor formerly laboured, may oppose too great obstacles to the defence of an innocent prisoner, by giving him no satisfactory information of the specific charges of embezzlement to be made at the trial; accordingly, in R. v. Hodgson, which occurred at Stafford, soon after this act passed, and is now reported in 3 C. & P. 422, Mr. Baron Vaughan inclined at the request of the prisoner to order him to be furnished with at least a particular of the persons from whom money is alleged to have been received, if not also of the sums and dates which the prosecutor intended to apply to the accusation, as in the case of a general indictment for bar- (j) R. v. Hobson, Russ. & Ry. 56; |