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was not abandoned. The prisoner received a salary of one pound per annum, besides commission. It was held that the relation was one of principal and agent, and that the prisoner was not guilty of embezzlement.1

(c) Servants of Private Individuals, Partners and Corporations. By the act providing for the punishment of persons guilty of embezzlement, the clerks and servants of private individuals, partners and corporations (except apprentices and persons within the age of eighteen years), are equally liable with the clerks or servants of those engaged in trade or mercantile pursuits.

Under the English statute, the collector of the poor rate, appointed by the overseers, was held a servant of the overseers; 2 but in this State, it was held that the relation between the keeper of a county poorhouse, and the superintendent who employs him, is of a public nature, and the former cannot be deemed the agent or servant of a private person within our statute of embezzlement. Nor is such keeper the agent or servant of an incorporated company within the same statute, though the superintendents of the poor, or the sole superintendent be a corporation, they or he are not an incorported body; the statute, by incorporated companies, intends those only which are composed of individuals associated together for private purposes.3

Where a man is the clerk or servant of partners, he is deemed the clerk and servant of all and each of the partners, and if he receive money for the private account of any one of them, and embezzle it, he may be indicted.*

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The clerk of a joint stock company, is the clerk and servant of the directors who appoint him, and where such clerk, having the care and custody of the checks, paid and cancelled by the company's banker, embezzled all of them, and was charged in the indictment as having embezzled a piece of paper, the property of the company, and convicted, the court held that he was properly convicted, although he himself was a shareholder in the company.5

1

R. v. Walker, Dears & B. C. C., 606.

' R. v. Adey, 19 L. J., 149, m.; R. v. Collahan, 8 C. & P., 154.

'Coates o. The Peo., 22 N. Y. Rep., 245.

R. v. Leach, 3 Stark N. P. R., 70.

' R. v. Atkinson, Car. & M., 525; R. v. Watts, 19 Law. J., 192, M.

If such person was at the time in the service of a corporation, he is not to be deemed liable, within the statute, unless it is shown that, to do errands of the kind, was his employment by the corporation.1

It is held, that if a person is employed as the servant of a corporation, he may be guilty of embezzlement, although not duly appointed, or even appointed at all, under the common seal of the corporation.2

(d) By Virtue of his Employment.

If a servant has no authority to receive any money he cannot be guilty of embezzlement, although the money is paid to him on the supposition that he has authority to receive it, and he gives a receipt for it on behalf of his master.3

Thus, when the prisoner was in the service of the prosecutor, but not authorized to receive money, and a person who owed the prosecutor five pounds paid it to the prisoner, supposing him to be a servant of the prosecutor and authorized to receive it, and the prisoner never accounted for the money, it was held not to be embezzlement on the authority of the case cited above.1

A servant employed to receive money of one description and at one place, employed in a particular instance to receive money of another description and at a different place, may be guilty of embezzlement in the latter instance. Thus, the lessees of two toll-bars employed the prisoner to collect the tolls at one, and in a particular instance ordered him to receive the money collected at the other, which he received accordingly and embezzled. A conviction for embezzlement was held right.5

But in a case precisely similar, PARKE, B., directed an acquittal, observing that he had never approved of that decision.

6

Receiving from a customer that which in the ordinary course the servant would have received through the medium of another servant employed to collect from customers, was held to be a receipt by virtue of the employment of the servant who so imme

' 10 Wend., 298; 15 Wend., 581; 4 Car. & P., 390; 7 Id., 281; 32 Eng. Com. L., 510; 6 How. Pr., 59.

Rex v. Beacall, 1 C. & P., 457; Rex v. Willings, Idem.

Rex v. Thorley, R. & M. C. C. R., 343.

Rex v. Howtin, 7 C. & P., 281.

Russ, & Ry., 516.

Crow's case, 1 Lew., 88.

diately received from the customer, in a case where the servant being intrusted to receive at home from out-door collectors, received abroad from an out-door customer.1

If the money be received contrary to the terms of the employment it is not embezzlement. Thus, where by virtue of his employment it was the duty of the prisoner to take not less than twenty shillings for covering a mare by a stallion, and he received six shillings, the whole charge made by him for covering one mare, and had not accounted for it, it was held not an embezzlement.2 The English act was held to apply to a servant who embezzled money received from a customer to whom his master had given it for the purpose of trying the servant's honesty.3

If a person duly enters in his books all sums of money that he has received, the mere fact of not paying over the money does not amount to embezzlement.4

Although the receipt of the money must be while the prisoner is in the service of the prosecutor, yet it seems that the embezzlement of the money may be after the prisoner has ceased to be the servant.5

The servant of a carrier employed to look after the goods, but not entrusted with the receipt of money, it has been held, could not be convicted of embezzling money paid him by one of his master's customers."

Although it may not have been part of the servant's duty to receive money in the capacity in which he was originally hired, yet if he has been in the habit of receiving money for his master he may be convicted."

persons

(e) Apprentices and Persons Within the Age of Eighteen Years. By the terms of the statute above cited, apprentices and within the age of eighteen years are excepted from the operations of the act.

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(f) Embezzlement by Carriers, etc.

It will be seen, in treating upon the subject of larceny, that where carriers who had received property by virtue of a bailment, without an original felonious intention to convert the same to their own use, and who subsequently made a wrongful conversion of the property without having, as it is technically termed, broke the bulk or separated the articles from the package or box in which they were contained, a conviction for larceny could not be had, unless there had been a determination of the contract of bailment and a new asportation of the property after the bailment had been fully completed and ended. In order to provide for this class of cases, and to punish carriers and other bailees in cases where there had been no breaking of bulk, the Revised Statutes, as subsequently amended, provide as follows:

"If any carrier or other person to whom any goods, money, right in action, or any valuable personal property or effects, shall have been delivered to be transported or carried for hire, shall, without the assent of his employer, take, embezzle, or convert to his own use, or make way with, of secrete with intent to embezzle, or convert to his own use such goods, money, right in action, property, or effects, or any of them, in the mass as they were delivered, without breaking the trunk, box, pack, or other thing in which they, or any of them, shall be contained, and before delivery of such articles at the place, or to the person entitled to receive them, he shall, on conviction, be punished in the same manner as if he had taken, embezzled, converted, or secreted such goods or other personal property after breaking the trunk, box, pack, or other thing containing the same, or after separating any of them from the others. And if any carrier or other person, who shall have received any advance for the cost or price of freight upon any property received, or to be received for transportation or carriage, or who shall have received any advance for the payment of tolls, or the payment of any other public or private charge upon the right of transit, shall, without the assent of the person making such advance, convert or apply the said advance to his own use, or to any other purpose than that for which said advance was made, or shall secrete the same, or shall refuse to apply the same to the purpose for which he received the same, shall, upon conviction thereof, be deemed guilty of embezzlement, and shall be punished in the manner prescribed

by law for feloniously stealing property of the value of the advance so converted, or applied, or secreted."

The separation and conversion to his own use by a carrier, without the assent of the owner, of sundry bars of pig iron, part of a larger number which had been delivered to him for transportation and loaded upon his canal boat, is larceny, and not embezzlement. Where the commodity, a part of which is sepa-. rated by the carrier from the rest, is transferred in commerce by weight and not by count, the severence is a trespass which determines the privity of contract, and a breaking of bulk equivalent to the opening of a bale or package.

NOTE. For what is meant by "the breaking of bulk by carriers" see the question of "Larceny by bailees," post.

(g) Punishment.

The punishment for embezzlement, where the property embez zled amounts in value to twenty-five dollars or upwards, is the same as that prescribed for grand larceny, and where the value of the property embezzled is less than twenty-five dollars in value, the punishment is that prescribed by statute for petit larceny. In estimating the grade of punishment, the value of any sum of money, payable and due upon any right in action embezzled, is to be deemed its value.3

XIX. ENLISTED MEN-DEFRAUDING AND DRUGGING OF.

Any recruiting agent or other person acting under authority of the State or general government or any local municipality or otherwise, who shall willfully defraud any person enlisting or having enlisted into the military or naval service of the United States of the money to which such person is entitled as pay for such enlistment, or any part of such money, is guilty of a felony; and whoever shall knowingly and willfully use or administer to any person any drug or stupefying substance, with intent, while such person is under the influence thereof, to induce such person to enter the military or naval service of the United States, or of this State, or of any other State, is also guilty of a felony.4

1 Laws 1865, ch. 729.

Nicholls v. The Peo., 17 N. Y. R., 114. ' 2 R. S., 678, § 61. Vide ante, p. 408. Laws 1864, ch. 391, p. 889.

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