cause all persons who may be indicted for any offence against the laws for the prevention of duelling, to be brought to trial, and that he shall attend in person to the discharge of the duties required of him.1

The section of the statute which declares that any person convicted of challenging another to fight a duel, etc., shall be incapable of holding or being elected to any post of profit, trust or emolument, civil or military, under this State has been held to be constitutional, and a conviction and a judgment of disqualification under it legal and valid.2

The law so far abhors all duelling in cold blood that the one who actually kills the other is guilty of murder.3 For whenever two persons in cold blood meet and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was first struck by the deceased, or that he had often declined to meet him, and was prevailed upon to do it by his importunity, or that it was his intent only to vindicate his reputation, or that he meant not to kill but only to disarm his adversary. He has deliberately engaged in an act highly unlawful, in defiance of the laws, and he must, at his peril, abide the consequences.*

XVIII. EMBEZZLEMENT.

Embezzlement is distinguished from larceny properly so called as being committed in respect of property which is not at the time in the actual or legal possession of the owner.5

Embezzlement is only a species of larceny. It is in every respect a precisely similar crime to that which is committed by a servant who receives property from his master and appropriates it. This is larceny, because the possession of the master continues in law until the wrongful appropriation by the servant takes place. The case which was held not to be larceny was that of a banker's clerk who received money from a customer and appropriated it, and the reason given was, that as the employer had never had possession of the money, he had never been wrong

1R S., 180, § 9,

Barker v. Peo., 6 Cow., 686; 20 John., 457; 2 Whee. Cr. Cases, 19.

Reg v. Young, 8 C. & P., 644; 1 Hawk. P. C., ch. 31, § 31; 1 Hale, 442–452. 1 Hale, 452, 453; 1 Hawk., P. C., ch. 31, §§ 21, 22.

Burril's Law Dict., vol. 1, p. 415.

fully deprived of the possession of it, which was a necessary ingredient in the crime of larceny.1

The English act was passed in consequence of this decision, and its effect was to make the master's possession commence from the moment that his property came into the servant's hands.2

It was held that where money was received on account of his master by one servant, and by him handed to another in due course of business, and the latter appropriated it, that this was embezzlement, as the master clearly never had possession by the first servant any more than by the second.3

(a) Statutory Definition.

If any clerk or servant of any private person or of any co-partnership (except apprentices and persons within the age of eighteen years), or if any officer, agent, clerk or servant of any incorporated company shall embezzle or convert to his own use, or take, make way with or secrete with intent to embezzle, or convert to his own use without the assent of his master or employers, any money, goods, rights in action, or other valuable security or effects whatever belonging to any other person, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction, be punished in the manner prescribed by law for feloniously stealing property of the value of the articles so embezzled, taken or secreted, or of the value of any sum of money payable and due upon any right in action so embezzled.1

Every embezzlement of any evidence of debt negotiable by delivery only, and actually executed by the master or employer of any such clerk, agent, officer or servant, but not delivered or issued as a valid instrument, shall be deemed an offence within the meaning of the last preceding section.5

An indictment for an embezzlement lies against a clerk or servant for converting to his own use the money, goods, etc., of his master or employer, as well as for converting to his own use the money, goods, etc., of any other person which shall have come into his possession or under his care by virtue of his employment.

1 R. v. Bazeley, 2 East. P. C., 576; Ros. Cr. Ev., 6th ed., 414.

The words "any other person" in the statute means any other person than he who is guilty of the embezzlement.1

Our statute is conformable to the English act. That statute was enacted for the purpose of reaching a class of cases which could not be punished as larcenies at the common law, on account of the technical subtlety that, where the offender had the qualified property and actual possession of the goods at the time they were embezzled, he could not be guilty of larceny. Thus, as we have already seen in discussing the question of larceny, if a clerk received money of a customer, and, without at all putting it in the till, converted it to his own use, he was guilty only of a breach of trust, though had he once deposited it and then taken it again he would have been guilty of larceny. So a cashier of a bank could not be guilty of larceny in embezzling an India bond, which he had received from the court of chancery and which was in his actual as well as constructive possession.

(b) Who is to be deemed a Clerk or Servant.

A barkeeper in an inn, intrusted to carry letters to and from the post-office, who fraudulently converts to his own use a letter inclosing money, given him to carry to the post-office, is guilty of embezzlement; and to convict him it is not necessary to show that he broke open the letter, or fled after the commission of the offence, or to show the dissent of his employer; it is enough that there be a fradulent commission, and that being shown a felonious intent is inferred.3

Where a constable was employed to collect certain demands without suit, if the debtors would pay, and by procuring and serving process before a justice of the peace if they would not, it was held that he was not a servant of the creditor within the meaning of the statute concerning embezzlement.*

A stage driver to whom packages of money are intrusted by his employers, to be by him carried from one place to another, is a servant, and the money comes into his possession or under his care by virtue of his employment as such servant within the meaning of the Revised Statutes.5

' Peo. v. Hennessey, 15 Wend., 148.

2 Arch. Cr. Pl., 7 ed., p. 560; 2 Leach, 831; 1 Leach, 28.

Peo. v. Dalton, 15 Wend., 581.

Peo. v. Allen, 5 Den., 76.

Peo. v. Sherman, 10 Wend., 298.

It is immaterial whether the servant be paid by certain wages, or by a percentage on the receipts, or by a share of the profits arising from his labor. Thus, where a clerk to a banking firm was to receive one-third of one of the partner's profits, being the fifteenth share of the whole profits of the house; to which the other partners assented, but they considered the prisoner not liable to them for losses, it was held that the prisoner was not a partner, and might be guilty of embezzling property received on behalf of the firm.1

So where the prisoner was employed by the master of a coal vessel, who sent him with a cargo of coals, and the custom of the trade was for the person who superintended the business to receive two-thirds of the freight and the owner one-third, and the prisoner took the whole; whereupon he was indicted and convicted. It was objected that he and the master were joint proprietors of the freight, but a large majority of the judges held the conviction right.2

So, also, where the prisoner was employed by the prosecutors as a traveler, to take orders for goods and collect money for them from their customers, and was paid by a percentage upon the amount of the orders he obtained; he did not live with them nor act in their counting-house; he paid his own expenses on his journeys, and he was employed as a traveler by several other houses besides. The judges held that he was a clerk to the pros

ecutors.3

Neither is it material whether the employment be permanent or occasional. Thus, where it appeared that the prisoner had applied to the prosecutor for employment, who agreed to let him carry out parcels and go of messages when he had nothing else to do, for which the prosecutor was to pay him what he should think fit. The prosecutor gave him an order to receive the sum of two pounds for him, which he received and embezzled, the judges held him to be a servant to the prosecutor, within the meaning of the act.4

But it was held in this State, that a person casually employed by an individual to receive money in a single message, and pay it

'Holmes' Case, 2 Lewin, 256.

'Rex v. Hartley, Russ. & Ry, 139.

' R. v. Carr, R. & Ry., 198; affirmed by R. v. Tite, 1 L. & C. C., 229. 4 R. v. Spencer, R. & Ry., 299.

out, is not a servant of such individual within the Revised Statutes relating to embezzlement by clerks or servants.1

So, also, it was held in England that a prisoner cannot be convicted of embezzlement, unless he be the servant of the prosecutor at the time he receives the money, and merely sending the prisoner to the bank to get money, is not sufficient to make him the servant, though he be paid for going.2

A drover was employed by a grazier to drive oxen to market with instructions to sell what he could on the road, and deliver the rest to a salesman at S, who was to sell them for the grazier. The drover sold part on the road, and took the rest to S, and sold them there, and applied the money to his own use; it was held that he was not a servant, and could not be convicted of embezzlement.3

But where a drover was employed in a single instance to drive a cow and calf to a person to whom they were sold, and to bring back the money they were sold for, he was held to be a servant.1

The prisoner was a carrier whose only employment was to carry unsewed gloves from a glove manufacturer at A, to glove sewers who resided at B, to carry them back when sewed, and to receive the money for the work, and pay it to the glove sewers, deducting his charge. On several occasions, he appropriated the money which he received on behalf of the sewers. It was held that he was not the servant of the sewers, so as to be guilty of embezzlement, but that his offence was a breach of trust, being a mere bailee of the money.5

The prosecutors, who were manure manufacturers, engaged the prisoner who kept a refreshment house at B, to get orders, which they supplied from their stores. The prisoner was to collect the money and pay it at once to them, and send a weekly account, and was called agent for the B district. Subsequently, the prosecutors sent large quantities of manure to stores at B, which were under the control of the prisoner, who took them in his own name, and paid the rent. The prisoner supplied orders from these stores; but the first mentioned mode of supplying orders