to persons acting in the discharge of their functions. I entertain a very clear opinion on the point." His Lordship accordingly directed an acquittal.

"Agent or Servant".

2

§ 378. Collector of Bills not.— In Commonwealth v. Libbey, the prisoner was indicted under the Revised Statutes, providing that "if any agent, clerk or servant of any private person or of any copartnership, etc, shall embezzle or fraudulently convert, etc., without consent of his employer or master, any money or property of another which shall have come to his possession or shall be under his care by virtue of such employment," etc. It appeared that the defendant had been employed by a certain firm of newspaper publishers to collect their bills for a certain commission, and that certain bills having been collected, he had not accounted for or paid over the proceeds but had converted the same to his own use. The judge instructed the jury that the defendant was an agent or servant within the statute. Verdict of guilty, and the judge regarding the question of law as somewhat doubtful, reported the case for this court's opinion.

DEWEY, J. In the case of Commonwealth v. Stearns,3 cited by the defendant's counsel, it was decided that an auctioneeer who receives money on the sale of his employer's goods and converts it to his own use is not such an agent or servant as is intended by the Revised Statutes. That case is decisive of the present. A distinction was suggested by the attorney for the Commonwealth between the two cases, namely, that an auctioneer is an agent for many persons and must of necessity have the authority to intermingle the moneys received from various sales.

The present case, as stated in the report, sets forth only the agency of the defendant as a collector of bills for a single newspaper establishment; but practically, we know very well this class of agents are employed in a collecting tour by many different offices. We do not, however, think that the liability of the party to the penalties for an act of embezzlement depends so much on that circumstance as upon the nature of the agency, and more especially upon the right of property in the specific article alleged to have been embezzled. In the case of a domestic servant, and to some extent in the case of a special agency, the right of property and the possession continue in the principal, and a disposal of the property would be a violation of the trust, and an act of embezzlement. But cases of commission merchants, auctioneers, and attorneys authorized to collect demands, stand upon a differe t footing; and a failure to pay over the balance due their employers, upon their collections, will not, under the ordinary circumstances attending such agency, subject them to the heavy penalties consequent upon a conviction of the crime of embezzlement.

New trial ordered.

A

§ 379. Agent or Servant" Keeper of County Poor-House. keeper of a county poor-house is not the "agent or servant" of the superintendent who employs him.5

§ 379a.

"Bailees."

A hirer of a domestic animal is not a "bailee or other agent "6 within the Alabama statute. The Texas statute includes only such

1 11 Metc. 64 (1846).

2 ch. 126, sec. 29.

32 Metc. 343.

4 ch. 126, sec. 29.

Coats v. People, 22 N. Y. 245 (1860).

6 Watson v. State, 70 Ala. 13; 45 Am. Rep. 70 (1881).

bailments where the bailee has possession of the property for the benefit of the bailor, and not when its possession is held for the benefit of the bailee, such as for hire.1

§ 380. Who is not "Clerk or Servant" within the Statute.-In R. v. May, the prisoner was employed by an iron company to obtain orders at N., and received a commission upon the orders he obtained. It was his duty to account to the company for any money which he might receive for them, but it did not appear that it was his duty to receive money for them. It was held that he was not a "clerk or servant" within the statute.

In R. v. Brew,3 the prisoner was a member of a friendly society and one of a joint committee appointed by his own and another society to manage an excursion of the members by railway. He was nominated by the committee to sell the excursion tickets which together with the money produced by their sale belonged to the two societies, and it was his duty to pay over the money to another person, but he was to have no remuneration for his services. It was held that he was not a "clerk or servant" within the statute and could not be convicted of embezzling the money received from the sale of the tickets.

In R. v. Barnes, the prisoner being in difficulties assigned all his book debts, estate and effects to trustees for the benefit of creditors. He was employed by the trustees at a salary, to manage the business and collect the debts for them, during which time he received the amount of two debts for which he did not ac count. It was held that he was not a "clerk or servant" within the statute.

In R. v. Freeman,5 the prisoner had worked for A. now as a regular labore and again as a roundsman. Not being then in his service he was sent by H. to get a check cashed at a banker's, for doing which he was to be paid six pence. It was held that the prisoner was not a "servant" of A. within the statute. And as to who are not within the phrase, "clerk or servant," see cases below.6

§ 381.

7

"Servant"— Constable Employed to Collect Claim. — In People v. Allen, a constable was employed to collect certain demands without suit, and by suing them before a justice of the peace if he could not collect them without. It was held that he was not a "servant" of the creditor within the statute.

§ 382.

"Servant".

- Tradesman Taking Goods to be Manufactured. — So a tradesman or mechanic to whom raw materials are given at his own store to be made up (as leather to be made into shoes) is not guilty of embezzlement in converting it.8

1 Reed v. State, 16 Tex. (App.) 586 (1884).

2 L. & C. 13 (1861).

3 L. & C. 346 (1863).

48 Cox, 129 (1858). 65 C. & P. 534 (1833).

R. v. Sampson, 1 Cox, 355 (1846); R. v. Townsend, 2 Cox, 24 (1846); R. v. Waite, 2 Cox, 245 (1847); R. v. Trueman, 2 Cox, 306 (1847); R. v. Hall, 13 Cox, 49 (1875); R. v. Nettleton, 1 Moody, 259 (1830); R. v. Townsend, 2 C. & K. 168 (1845). An agent on com

mission is not a "servant." R. v. Goodbody, 8 C. & P. 665 (1838); R. v. Negus, L. R. 2 C. C. R. 34. And see R. v. Taylor, 10 Cox, 544, (1867); R. v. Mayle, 11 Cox, 150 (1868); R. v. Diprose, 11 Cox, 185 (1868); R. v. Tyrie, 11 Cox, 241 (1869); R. v. Marshall, 11 Cox, 490 (1870); R. v. Bowers, 10 Cox, 250 (1866); R. v. Walker, D. & B. 600 (1858).

75 Denio, 76 (1847).

8 People v. Burr, 41 How. Pr. 293 (1871); Com. v. Young, 9 Gray, 5 (1857).

$ 383.

Servant Must Have Authority to Receive Money. — In R. v. Hawtin, A. owed £5 to B., and A. paid it to C., a servant of B. who was not author. ized by B. to receive it, though A. supposed he was so. C. never accounted to B., but it was held he was not guilty of embezzlement. "It appears to me,” said ALDERSON, B., "that the nearest case to the present is that of R. v. Crawley. In that case a servant who was not authorized to receive money was standing near a desk in his master's counting-house, and a person who owed money to the master paid this servant, supposing that he was authorized to receive the money, and the servant never accounted for the money to his master. This was held no embezzlement." 2

In R. v. Thorley,3 the prisoner was charged as the servant of Humphrey Brown and others, with the embezzlement of £8, 4s, 10d, received by him by virtue of his employment.

The prisoner was a servant of H. Brown & Sons, carriers, who had a warehouse at Birmingham: his employment was to look up goods to be carried by his masters' wagons; but he had no authority to receive money, all moneys were collected and received by a collecting clerk.

Mr. Price, a debtor to Brown & Sons, went into the counting-house, part of their warehouse at Birmingham, and, seeing the prisoner there standing at the desk, with some books near him, and supposing him to be a clerk authorized to receive moneys, paid him £8, 4s, 10d; for which the prisoner gave a receipt in his own name for Brown & Sons.

This sum the prisoner fraudulently applied to his own use.

By the 7 and 8 George IV., it is provided 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 money for or in the name of his master, and shall fraudently embezzle the same, every such offender shall be deemed to have feloniously stolen the same from his master, although such money was not received into the possession of such master, otherwise than by the actual possession of his clerk, servant or other person so employed.

This clause does not differ materially from the statute,' on which Rex v. Mellish, was decided. The learned judge would have directed an acquittal, had not a similar case been cited from an old edition of Archbold's Criminal Law, as decided by Holroyd, J., at York, in which the contrary is stated to have been ruled; and, upon conferring with Mr. Baron Bayley, he thought there was sufficient doubt to make it fit that the case should be considered by the judges." In Easter term, 1832, all the judges (except Lord LYNDHURST and TAUNTON, J,) met and having considered this case, were unanimously of opinion that, as the servant had no authority to receive the money, the case was not within the statute; and the conviction was therefore wrong.

In R. v. Beacock, the prisoner was indicted for having feloniously embezzled the sum of 10s received by him by virtue of his employment as the servant of the prosecutor.

Sanders, for the prosecution, proved that the prisoner had been formerly apprenticed to the prosecutor, who is a shoemaker, and that on a certain day he

1 7 C. & P. 281 (1836).

2 Nor was C. guilty of the larceny of the money as that of B. as it had never come to B.'s hands nor of the money of A., as he had parted with the property in it.

3 1 Moody, 343 (1832).

4 39 Geo. III., ch. 85.
Russ. & Ry. 80.

Rex v. Beechey, R. & R. 319.

7 1 Cox, 187 (1845).

came to him and ordered two pairs of shoes to be made for two ladies. When the shoes were made, he called again, and offered to take home the shoes. They were given to him for that purpose by the prosecutor, but no authority whatever was given to him to ask for or receive the price of them. Not long after this the prosecutor met him, and demanded the money, which though he did not deny to have received, he declined to hand over.

PATTESON, J. This charge can not be supported on this evidence. An express authority to receive the money charged to have been feloniously embezzled, or a general employment as a servant, must be proved; for the indictment alleges that the money was received by virtue of such employment as servant. The prisoner in this case was not employed to carry home these goods as a servant, nor had he any authority to demand or receive the price of them. He did not, therefore, receive money by virtue of any employment by the prosecutor; and if customers pay money under such circumstances, they do so in their own wrong; and being still liable to the prosecutor, he is not damnified by the act of the prisoner. The prisoner, therefore, must be acquitted. Not guilty.

$384.

Act must be in Course of Employment. -The act must be in

the course of the servant's employment.1

§ 385.

"By Virtue of His Employment."— In R. v. Snowley,2it appeared that the prisoner was hired by the prosecutor to lead a stallion round the country during the season, and he was to charge for each mare 30s, and not to take less than 20s. He stated that his account contained every sum due to his master; but it was proved, that a sum of 6s, which was the whole charge he had made for covering one mare, was not included in his account.

Mr. Justice J. PARKE (having conferred with Mr. Justice LITTLEDALE). This is not an embezzlement. To constitute an embezzlement, the prisoner must have received the money by virtue of his employment; and as it was his duty to take 30s, and not less than 20s, this sum of 6s was not received by him by virtue of his employment. He must, therefore, be acquitted.

Verdict, not guilty.

In State v. Johnson,3 SEEVERS, J., said: "The facts are that Mr. Heberling was deputy United States Marshal, and desired certain prisoners taken from the penitentiary at Ft. Madison to Dubuque, and he employed the defendant to perform the required service. In pursuance of authority given him by Heberling the defendant received the prisoners, and there was delivered to him at the same time by the warden of the penitentiary a certain sum of money belonging to them. The defendant converted the money to his own use, and the question is whether this constitutes a crime within the statute. That the defendant was the agent or servant of Heberling, and that he was authorized to take charge of the prisoners, may be conceded; but the point is, was the nature and scope of his employment such as to embrace therein the receipt of money, and is it essential such should have been the case? A careful examination of the evidence satisfies us the defendant was not authorized by Heberling to receive any money, nor was it embraced within the nature, scope or extent of the employment. The receipt of money was not contemplated by either party at the time of employment. Because the

1 R. v. Smith, 1 Lew. 86 (1823); R. v. Crow, 1 Lew. 88 (1823).

2 4 C. & P. 390 (1830).

8 49 Iowa, 141.

defendant had authority to receive the prisoners, the money was paid him by the warden. The latter had taken the money from the prisoners and was accountable to them therefor, and as they were being transferred or taken out of his custody, the warden, instead of giving the money to them, saw fit, and on his own motion, to pay or give it to the defendant. But he had no authority from Heberling to do so. The defendant, in this respect, was the agent, servant, or employe of the warden. As Heberling never authorized the warden to pay the money to the defendant, he was not responsible therefor, nor was the defendant bound to account to him therefor. Under the statute, there must exist the relation of master and servant, or employer and employe, and the property stolen or converted must have been received by virtue of such employment.' The servant or employe must have been authorized to receive the property, or the nature, scope and extent of the employment must have been such as to warrant the receipt of the property embezzled. The fact that the money belonged to the prisoners makes no difference. Suppose the defendant had been employed to receive of the warden a horse, and the latter saw proper to give him, not only the horse, but a sum of money to be delivered to Heberling, it could not, we think, be successfully claimed that the money was received by virtue of the employment of the defendant by Heberling. The views herein advanced are supported by cases adjudicated under an English statute identical in subtance with ours. The embezzlement of money by a servant not authorized to receive it is not within the statute, although the party paying him it supposes that he is so authorized.'

"Reversed."

§ 386. "By Virtue of Such Employment”. Mere Casual Employment Not Within Statute. In Johnson v. State, 2 "the prisoner," said the Supreme Court, 66 now and then went on errands' for the prosecutrix, but it does not appear that he was regularly in her employment. The prisoner is a German, and does not speak or understand very well the English language. The prosecutrix sent him one day with a note to one Harrison, a neighbor, the contents of the note were not made known to the prisoner; but as a matter of fact, the note requested Mr. Harrison to lend the prosecutrix five dollars; the note was delivered by the prisoner to Mr. Harrison, who, unseen by the prisoner, enclosed a five dollar bill in an envelope and handed it to the prisoner, to be delivered to the prosecutrix; the money was not delivered and the prisoner on being interrogated, gave contradictory statements about it, and was arrested and indicted in one count for embezzlement, and the other for larceny. He was convicted of embezzlement.

"The statute under which the conviction was had, is as follows: Any officer, agent, or clerk of any incorporated company, or any clerk or agent of a copartnership or private person, except apprentices and other persons under the age of eighteen years, who embezzles or fraudulently converts to his own use any money or property of another, which has come to his possession, or is under his care by virtue of such employment, shall, on conviction, be punished by confinement in the penitentiary not less than five nor more than twenty years." 193 "It is manifest that the facts of this case, whether they make out a case of fraudulent breach of trust or larceny, do not make out a case of embezzlement.

1 Roscoe's Cr. Ev. 438, 441, 442.

27 Baxt. 279 (1878).

3 Code, sec. 4708.