their sale were likewise his property, and not specifically the property of the company; and by the action of the latter, it had remitted itself to the character of an ordinary creditor, and held a personal demand against the appellant for the value of their machines, less his commissions, and could not have enforced a suit at law for the specific money received by him upon a sale of the horses. Other features of the evidence tend to sustain this view, and show a disagreement between the parties as to the terms of a proper settlement of the transactions between them, a failure to effect which resulted in this prosecution. The views we have expressed obviously conflict with those under which the case was submitted to the jury, and a new trial must therefore be awarded. The judgment is reversed and the cause remanded. Reversed and remanded. EMBEZZLEMENT — MONEY EMBEZZLED MUST BE PROPERTY OF PROSECUTOR. R. v. BEAUMONT. [Dears. 270.] In the English Court of Crown Cases Reserved, 1854. Money Embezzled must be that of Person Charged as Defrauded - Privity of Contract.-W. had contracted with a railroad to provide them with horses and men to carry their coal to their customers in their own carts; that he and his men should account to the company each day for the money received by them for such coal. B. was a servant of W. whose duty it was to pay to the company the money so collected. B. delivered coal to one of the company's customers and received the money therefor, which he converted to his own use. Held, that B. was not guilty of embezzling the money of W. At the general session of Oyer & Terminer, and gaol delivery holden for the jurisdiction of the Central Criminal Court on the 28th day of November Edward Beaumont was tried and convicted before me on an indictment for embezzlement, whereby it was charged in the usual manner that he, being servant to Edward Wiggins, by virtue of his employment as such servant, received the sum of £5 10s on account of his said master, and feloniously embezzled and stole that sum of money, and alleging that money to be the money of the prosecutor. Edward Wiggins, the prosecutor, had become a contractor with the Great Northern Railway Company, for finding and providing them with necessary horses and carmen, for the purpose of drawing, conveying and delivering to the customers of the company the coals of the company in their own wagons, and had moreover contracted with the said company that he or his carmen should, day by day, duly account for and deliver to the said company's coal manager all moneys received from such customers in payment for coals so delivered. The delivery notes, as well as receipted invoices, of the coals were handed to the carmen of Wiggins, and the former were taken to his office to be entered in his books, but the invoices which were already receipted by the company were to be left with the customer on payment of the amount. The prisoner was the servant of Edward Wiggins, and was employed by him as his carman in the delivery of coals pursuant to the said contract, and it was his duty to pay over direct to the clerks of the company any money he might receive for any such coals. It did not appear that such moneys so received by him and paid over to the company ever formed items of account between Edward Wiggins and the company. On the day mentioned in the indictment the prisoner had, as the servant of Mr. Wiggins, delivered coals of the company to one of their customers. He also brought the delivery order to Wiggins' office, which was entered in his books and received in payment the price of the coals, viz.: the sum of £5 10s mentioned in the indictment, and left the receipted invoice with the customer. This sum he never handed over or accounted to the company or their clerks, but converted the same to his own use, thereby rendering his master liable to pay that amount to the company under the said contract. This was the embezzlement upon which the prosecutor replied. It was contended for the prisoner: — 1st. That the money had not been received on account of the prosecutor, Mr. Wiggins, and that under such circumstances the crime of embezzlement within the meaning of the indictment and the 7 and 8 George IV.1 had not been completed. 2d. That the ownership of the money as stated in the indictment was not proved as laid. As to the first point I directed the jury that as the prisoner was the servant of Mr. Wiggins and received the money in the course of his employment as such servant they might, under the above circumstances, find that he received it on account of his master in the sense used in and required to be proved by the indictment. On the second point I directed the jury that even if it were necessary o prove the money obtained to be the property of the prosecutor (of which I had some doubt), yet if they found that it was received by the prisoner on the prosecutor's account it would be the property of the master in the sense of the allegation in the indictment. Having doubts as to the propriety of my ruling on both of the above 1 ch. 29. their sale were likewise his property, and not specifically the property of the company; and by the action of the latter, it had remitted itself to the character of an ordinary creditor, and held a personal demand against the appellant for the value of their machines, less his commissions, and could not have enforced a suit at law for the specific money received by him upon a sale of the horses. Other features of the evidence tend to sustain this view, and show a disagreement between the parties as to the terms of a proper settlement of the transactions between them, a failure to effect which resulted in this prosecution. The views we have expressed obviously conflict with those under which the case was submitted to the jury, and a new trial must therefore be awarded. The judgment is reversed and the cause remanded. Reversed and remanded. EMBEZZLEMENT-MONEY EMBEZZLED MUST BE PROPERTY OF PROSECUTOR. R. v. BEAUMONT. [Dears. 270.] In the English Court of Crown Cases Reserved, 1854. Money Embezzled must be that of Person Charged as Defrauded - Privity of Contract.-W. had contracted with a railroad to provide them with horses and men to carry their coal to their customers in their own carts; that he and his men should account to the company each day for the money received by them for such coal. B. was a servant of W. whose duty it was to pay to the company the money so collected. B. delivered coal to one of the company's customers and received the money therefor, which he converted to his own use. Held, that B. was not guilty of embezzling the money of W. At the general session of Oyer & Terminer, and gaol delivery holden for the jurisdiction of the Central Criminal Court on the 28th day of November Edward Beaumont was tried and convicted before me on an indictment for embezzlement, whereby it was charged in the usual manner that he, being servant to Edward Wiggins, by virtue of his employment as such servant, received the sum of £5 10s on account of his said master, and feloniously embezzled and stole that sum of money, and alleging that money to be the money of the prosecutor. Edward Wiggins, the prosecutor, had become a contractor with the Great Northern Railway Company, for finding and providing them with necessary horses and carmen, for the purpose of drawing, conveying and delivering to the customers of the company the coals of the company in their own wagons, and had moreover contracted with the said company that he or his carmen should, day by day, duly account for and deliver to the said company's coal manager all moneys received from such customers in payment for coals so delivered. The delivery notes, as well as receipted invoices, of the coals were handed to the carmen of Wiggins, and the former were taken to his office to be entered in his books, but the invoices which were already receipted by the company were to be left with the customer on payment of the amount. The prisoner was the servant of Edward Wiggins, and was employed by him as his carman in the delivery of coals pursuant to the said contract, and it was his duty to pay over direct to the clerks of the company any money he might receive for any such coals. It did not appear that such moneys so received by him and paid over to the company ever formed items of account between Edward Wiggins and the company. On the day mentioned in the indictment the prisoner had, as the servant of Mr. Wiggins, delivered coals of the company to one of their customers. He also brought the delivery order to Wiggins' office, which was entered in his books and received in payment the price of the coals, viz.: the sum of £5 10s mentioned in the indictment, and left the receipted invoice with the customer. This sum he never handed over or accounted to the company or their clerks, but converted the same to his own use, thereby rendering his master liable to pay that amount to the company under the said contract. This was the embezzlement upon which the prosecutor replied. It was contended for the prisoner: 1st. That the money had not been received on account of the prosecu tor, Mr. Wiggins, and that under such circumstances the crime of em bezzlement within the meaning of the indictment and the 7 and 8 George IV.1 had not been completed. 2d. That the ownership of the money as stated in the indictment was not proved as laid. As to the first point I directed the jury that as the prisoner was the servant of Mr. Wiggins and received the money in the course of his employment as such servant they might, under the above circumstances, find that he received it on account of his master in the sense used in and required to be proved by the indictment. On the second point I directed the jury that even if it were necessary o prove the money obtained to be the property of the prosecutor (of which I had some doubt), yet if they found that it was received by the prisoner on the prosecutor's account it would be the property of the master in the sense of the allegation in the indictment. Having doubts as to the propriety of my ruling on both of the above 1 ch. 29. Lord CAMPBELL, C. J. It is difficult to see what defence the carman would have to an action by the company for money had and received. Dearsly. While it would be difficult to see how such a defence could be set up by the prisoner, it would appear clear that in an action brought by the company against the prosecutor he might successfully set up a defence. The difficulty arises from the fact that the prisoner is the general servant of the prosecutor, who allows him in this particular matter to act for the company. Lord CAMPBELL, C. J. What you say is that although the prisoner is the servant generally of the prosecutor pro hac vice, he is the servant of the company. Dearsly. Yes. COLERIDGE, J. The money is received by the hand of the prisoner, and the question is whether his hand at the time of the receipt was not in law the hand of the prosecutor so as to make the receiving in fact in contemplation of law a receiving by the prosecutor. Dearsly. That depends upon the terms of the contract and the facts as stated in the case. The effect of the contract is to make the prisoner the servant of the company, in the act of receiving, and the receipted invoice is evidence of the authority under which the prisoner acted, which was an authority from the railway company to receive for and on account of them, and of no one else. MAULE, J. The prisoner received under a special authority from the company. WILLIAMS, J. Suppose the prosecutor discovered that the prisoner was dishonest, could he not have prevented him from holding the money and have required that it should have been handed over to him? Dearsly. It is submitted that he could not. After the prisoner received the authority from the railway company to receive the money for or on the account of the company, and acts upon that authority, the prosecutor could not interfere. Supposing a person allows his servant to act for another, and he says, "Go to that other person and receive his instructions," to which the servant assents; and he is told, for instance, to take plate to a bankers, could it be said that the master of the servant could interfere and tell him to bring or take it to any other place? CROMPTON, J. The one contract includes both the terms of carting and receiving the money. Wiggins would be liable to an action for negligent driving? Dearsly. Yes; and for this reason, according to the terms of the contract, the company has no control over the horses or the driving. Hardinge Giffard, for the prosecution. This conviction is right. The receiving hy the prisoner was in con |