business of his own to attend to, and throughout the whole matter he was treated as an agent and not as a servant. WILLES, J., referred to Regina v. Bailey.1 McIntyre. That case was not argued for the prisoner, and in Regina v. Goodbody, Parke, B., said he was of opinion that a man could not be the servant of several persons at the same time, but was rather in the character of an agent; and, referring to Rex v. Carr,3 in which a contrary doctrine had been held, his lordship said he wished to have that question further considered by the judges. The salary of one pound a year was merely a colorable thing in order to get security from the guarantee society. It is the case of a commission agent, and the prisoner is styled an agent and treated as a debtor and not as a servant. Hardinge Giffard, for the Crown. In one sense no doubt the prisoner was an agent, but he was also a servant within the meaning of the statute. It is not necessary, to constitute a man a servant, that he should be under an obligation to obey every lawful command of the master. POLLOCK, C. B. As to clean his boots. Giffard. The prisoner's duty was to collect orders, receive money, and pay the money over at once to the prosecutors. WIGHTMAN, J. Every factor does that. Giffard. Every factor may, but he is not compelled to do so. 4 Giffard. Perhaps not; but in Rex v. Carr, a person employed upon a commission to travel for orders and collect debts was held to be a clerk within the 39 George III.; 5 although he was employed by many different houses on each journey, and paid his own expenses out of his commission and did not live with any of his employers, nor act in any of their counting-houses. WIGHTMAN, J. Suppose a publican employed for purposes of this kind, would he be a servant? The mode no exact Giffard. He might or might not according to the facts. of remuneration, whether by salary or otherwise, is no test; line can be drawn and no inflexible rule can be laid down; each case must depend on its own facts. The case of a commercial traveler is similar to this; such a traveler has been held to be a servant within the statute, and the duties of the prisoner are not distinguishable from his. He, like the prisoner, is employed to obtain orders, and is bound to furnish accounts. 1 Dears. & B. C. C. 121. 2 8 C. & P. 665.. 3 Russ. & Ry. 198. 4 Russ. & Ry. 198, see note a; Reg. v. Goodbody, 8 C. & P. 667. 5 ch. 85. Reg v. Wortley, 2 Den. C. C. 333. BYLES, J. So is a factor; the law implies that contract for him. POLLOCK, C. B. What is the difference between a servant and an agent? Giffard. Every servant is an agent although every agent may not be a servant. The parties were at liberty to contract that the relation of master and servant should exist between them, and they did so by contract. By the alteration made in the terms between the prosecutors, and the prisoner a new contract was created, and a salary was agreed upon. WIGHTMAN, J. The salary was obviously only for the purpose of getting the insurance effected. Giffard. Nor was it necessary in order to create the relation of master and servant. In Rex v. Ward,1 it was held that an extra collector of poor rates whose remuneration was paid out of the parish fund by a percentage on his collections, was a servant or clerk within the meaning of the statute.2 And Regina v. Callahan,3 also shows that a narrow construction must not be put upon the words "clerk or servant." The question is whether it was impossible to say, upon this evidence, that the prisoner was a servant. Unless it was the conviction must be supported; for the question was left by the judge on the trial to the jury, and they found that the prisoner was a servant. The objection that he could not be servant to more than one person, is answered by the decision in Regina v. Bailey.4 McIntire, in reply. In Regina v. Wortley there was a direct and distinct contract to serve 66 as bailiff" and that case is, therefore, entirely distinguishable from the present. The great distinction between this case and all the cases cited is, that the prisoner had the entire authority over the goods, which were under his control, and this makes him a factor and not a servant. Cur. adv. vult. The judgment of the court was delivered, on the 1st May 1858, by POLLOCK, C. B. We are of opinion that the evidence in this case did not establish that the prisoner was the servant of the prosecutor, and that the relation shown to have existed between them was rather that of principal and agent. We, therefore, think this conviction must be quashed. Conviction quashed. 18 C. & P. 154. 2 39 Geo. III., ch. 85. 3 Gow. N. P. Cas. 168. Dears. & B. C. C. 121. BRAMWELL, B. This conviction ought to be quashed, unless we can see that the prisoner on the facts stated must have been clerk or servant, within the meaning of the act of Parliament. I am of opinion that on the facts we can not do so. Looking to principle, we find that the statute was intended to apply, not to cases where a man is a mere agent, but where the relationship of master and servant, in the popular sense of the term, may be said to exist. ERLE, C. J., in Regina v. Bowers,1 says the cases decide" that a person who is employed to get orders and receive money, but who is at liberty to get those orders and receive that money when and where he thinks proper, is not a clerk or servant within the meaning of the statute.' I think that is perfectly good law, consistent with all the authorities, and, applied here, it shows that the prisoner was not a clerk or servant within the definition there given. BLACKBURN, J. I am of the same opinion. The test is very much this, viz., whether the person charged is under the control and bound to obey the orders of his master. He may be so without being bound to devote his whole time to this service; but if bound to devote his whole time to it, that would be very strong evidence of his being under control. This case differs in nothing from the ordinary one of a commission agency, except in the sole statement that the prisoner was not to work for others. But I do not think that circumstance, by itself alone, enables us to say that he was a servant of the prosecutor. ARCHIBALD, J., concurred. HONYMAN, J. I agree. The question was not left to the jury to decide, and I can not satisfy myself that the relationship of master and servant existed between the prosecutors and the prisoner. It does not appear that the prisoner was bound to obey every single lawful order. Possibly the masters might tell him to go somewhere, and he might justly refuse. Conviction quashed. 1. Embezzlement. - To warrant the conviction of an agent for the embezzlement of his principal's money, four facts must be established beyond a reasonable doubt, to wit: First, the agency whereby the defendant was charged with the duty of receiving the 1 L. R. 1 C. C. 41, at p. 45. BLACKBURN, J. For he was under their control, having to devote his whole time to the service. The stipulation that the prisoner was not to employ himself for any other persons than the prosecutors shows that they had control over bim. BOVILL, C. J. Not at all. He might go away to amuse himself wherever he liked. 1 Regina v. Tite, Regina v. Turner,2 were also cited. BOVILL, C. J. The only question submitted to us is whether, on the facts stated, the prisoner was a "clerk or servant," and, as such, rightly convicted of embezzlement. The learned assistant judge of the court directed the jury to find the prisoner guilty, subject to this point being raised. Generally speaking, I should say that the question whether a person is a clerk or servant depends on so many considerations that it is one to be left to the jury, as it is extremely difficult for the court to come to a satisfactory conclusion upon such a matter. Much depends on the nature of the occupation in which the individual is engaged, and the kind of employment. But we have to see if there was enough evidence to show that the prisoner here was a clerk or servant. I think that that fact is not sufficiently made out. What is a test as to the relationship of master and servant? A test used in many cases is, to ascertain whether the prisoner was bound to obey the orders of his employer, so as to be under his employer's control, and on the case stated, there does not seem sufficient to show that he was subject to his employer's orders, and bound to devote his time as they should direct. Although under this engagement with them, it appears he was still at liberty to take orders, or to abstain from doing so, and the masters had no power to control them in that respect. Where there is a salary, that raises a presumption that the person receiving it is bound to devote his time to the service, but when money is paid by commission, a difficulty arises, although the relationship may still exist where commission is paid, as in ordinary cases of a traveler, and in Regina v. Tite,3 and the other case cited. But in either case there may be no such control, and then the relationship does not exist. All the authorities referred to seem to show that it is not necessary that there should be a payment by salary, for commission will do, nor that the whole time should be employed, nor that the employment should be permament, for it may be only occasional, or in a single instance, if, at the time, the prisoner is engaged as servant. The facts before us do not make out what the prosecution was bound to prove, viz., that the prisoner was clerk or servant. 1 Leigh & Cave Cr. C. 28. Leigh & Cave C. C. 28; 30 L. J. (M. C.) 2 11 Cox, C. C. 551. 142. statutes necessarily require a careful discrimination in their application to the various cases that may arise, and it is sometimes difficult to mark out with entire precision the line of demarcation between acts punishable as crimes, under these statutes, and those that may not be embraced by them, while they may yet present strong cases of breach of good faith and violation of the confidence reposed in the party guilty of the breach of trust. The true test may be found in an application of the four propositions first above stated, to the facts of the particular case, and if either of the ingredients mentioned be found wanting, it may be safely assumed that the statutes do not apply.1 The indictment in this case charges the appellant with embezzlement of $87, the property of the Singer Manufacturing Company, appellant being the agent of that corporation, authorized to receive and in fact receiving said money by virtue of his agency. It was developed in the evidence upon the trial, that, among other transactions between the parties, the appellant, as agent, received five sewing machines from the principal, and was authorized, outside of the contract, to trade them for stock, if he saw fit. This he did, and subsequently tendered the stock to his principal, which was declined. The manager of the corporation testifies as follows: "I told Mr. Webb he had my permission to trade machines for stock, but that he must account to the company in money. By the contract with defendant, the company was not to take any horses for machines, and he was to sell the property received for machines, and pay over the money." * The legal effect of this authorization, in opposition to the terms of the original contract, was an essential departure from the original employment, and an essential change in the status of the agency, as affected by the statute of embezzlement. By the terms of the contract, the appellant was to receive in payment for machines only money and notes, and these proceeds of sales he was obligated to turn over to the company. Without a variation in the contract, an embezzlement of either class of proceeds would have properly subjected him to prosecution; for, beyond question, the money or notes would be the property of the company, and received by him by virtue of his agency. But with a change of the contract there resulted a change in the character of the proceeds received from a sale of the machines. When defendant exchanged them for horses, by authority, and the company refused to receive the horse, to whom did they belong? Not to the company, for it disowned them. The act of sale did not constitute an embezzlement, for that was authorized, and he is not charged with that species of embezzlement. The horses being the property of appellant, the proceeds of 1 2 Bish. Cr. L., secs. 355, 356; 3 Archb. Cr. Pr. & Pl. 449 et seq.; 2 Russ. on Cr. 181, 182; Commonwealth v. Stearns, 2 Metc. 343; Com. monwealth v. Libbey, 11 Metc. 64. |