1866 V. BOWERS. the prisoner was employed to go through the country and see the THE QUEEN farmers and get orders for manure, and was paid by a commission in addition to a nominal salary of 17. per annum. It did not, however, appear that he had undertaken to give any definite quantity of time or labour to the business; and the Court held that he was an agent and not a servant. In Reg. v. May (1), the prisoner was appointed an agent to get orders for iron, and was paid by a commission; and it was held that he was not a servant. In the former case (2), Bramwell, B., says: "It seems to me that the difference between the relations of master and servant, and of principal and agent, is this:-A principal has a right to direct what the agent has to do; but a master has not only that right, but also the right to say how it is to be done." In this case the prosecutor had no right to control the prisoner in the use of his time; he was free to get orders or not as he liked. In Reg. v. Tite (3), a commercial traveller was held to be a servant; but a commercial traveller is bound to obey his employer, and must go here or there and do this or that according to orders. Metcalfe (Harington with him), for the Crown. The prisoner was a servant in this sense, that it was his duty, and he could have been compelled, to get the money upon the orders he had obtained, if he could not have been compelled to get the orders. In Reg. v. May (4), Williams, J., bases his judgment upon the fact that the prisoner was not employed to receive money. In Reg. v. Batty (5) the prisoner was held to be a servant, although he was in the service of more masters than one, and although it did not appear that he devoted any particular portion of his time to the service of the prosecutor. [ERLE, C.J. In order to constitute the relation of master and servant, the inferior must be under more control than is implied in having the option of getting orders with the right to receive a commission thereon.] There are, no doubt, certain cases, as, for instance, that of an insurance agent, in which the relation is not that of master and (1) Leigh & Cave (C.C.) 13; 30 L. J. (2) See the 27 L. J. (M.C.) 208. (4) Leigh & Cave (C.C.) at p. 17. See also the judgment of the same learned judge in Reg. v. Tite, Leigh & Cave (C.C.) at p. 33. (5) 2 Moo. (C.C.) 257. servant. But, if a man binds himself to get orders, or at any rate 1866 V. BOWERS. to get in the money outstanding upon the orders he may get, he THE QUEEN is a servant pro tanto. In Reg. v. Walker (1), the prisoner had been treated as a debtor in respect of the sums embezzled. Collins, in reply. In Reg. v. Batty (2) the prisoner was paid by wages and not by a commission. ERLE, C.J. We are all of opinion that this conviction must be quashed. The facts stated fall within the cases cited by Mr. Collins, which 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 where and when he thinks proper, is not a clerk or servant within the meaning of the statute. The construction of the documents decides this case. Under the first agreement the prisoner was a servant; but under the second he was at liberty to dispose of his time in the way he thought best, and to get or to abstain from getting orders on any particular day as he might choose; and this state of things is inconsistent with the relation of master and servant. Attorney for prosecution: Ed. Lewis. Conviction quashed. THE QUEEN v. BARNES. Larceny-Indictment-Property. The prisoner was sent by his fellow-workmen to their common employer, to get the wages due to all of them. He received the money in a lump sum, wrapped up in paper, with the names of the workmen and the sum due to each written inside: Held, that he received the money as the agent of his fellow-workmen, and not as the servant of the employer, and that, in an indictment against him for stealing it, the money was wrongly described as the property of the employer. THE following case was stated by the recorder of Bolton:Robert Barnes was tried at the general quarter sessions for the borough of Bolton, holden on the 12th of April, 1866, on an (1) Dears. & B. (C.C.) 600; 27 L. J. (M.C.) 207. (2) 2 Moo. (C.C.) 257. June 9. 1866 indictment which charged him with stealing a sum of 137. 6s., THE QUEEN the moneys of Reuben Smith and others. The evidence was as follows: v. BARNES. Reuben Smith: On the 16th of December last the prisoner was a fellow-workman with me at Ormrod and Hardcastle's. The prisoner, myself, and two others worked in the same room. It had been our custom for one of us to go every fortnight to get the wages of the four from the cashier, and to pay over the amount due to each. We did this by turns. On the 16th of December last it was my turn to go for the wages. The wages due to me on that day came to about 51. Os. 6d.; I cannot speak to the pence. The prisoner asked me if he might fetch the wages this time. I said, "Yes; but you must fetch them again when it comes to your turn." He said he would. At twelve o'clock the prisoner went to get the wages.. He did not come back, and never gave me my wages. Cross-examined: We used to get the four men's wages in a lump, and pay them over in separate shares. Thomas Unsworth: I worked in the same room with prisoner and Reuben Smith on the 16th of December last. My share of wages on that day was about 37. 188. On that day prisoner went for my wages. He never paid them to me. Peter Critchley: I worked in the same room with the prisoner on the 16th of December last. On that day 47. 8s. 11d. was due to me for wages. Prisoner went to get the wages; he has not paid me my share. John Makin: I am cashier for Ormrod & Co. On the 16th of December last the prisoner came to me for his wages, and those of the other witnesses. The account of wages due to each was made out in my office, under my superintendence; but I cannot say exactly how much was due to each on the day in question. When the prisoner came to me, I believe I said, "Whose wages are you come for?" He answered, "No. 6, Sovereign." "No. 6" is the number of the room in which the prisoner and the others worked; and "Sovereign" is the name of the mill. I had the money in one sum wrapped up in a paper. Our custom was to wrap up the wages for each room in a separate paper, inside which was written the names of the parties to whom they were to be paid, and the sum due to each; and this was done on the present occasion. On 1866 v. BARNES. the 16th of December I handed the money to the prisoner, wrapped THE QUEEN up in a paper in the usual way. The sum which I handed to the prisoner was 187. 5s. 1d.; and it was made up of 5s. 1d. in copper, 107. in silver, and 87. in gold. On this evidence it was objected by counsel for the defence, that the indictment could not be sustained, because the money alleged to have been stolen was not the property of the prosecutors, but that of their employers, Messrs. Ormrod & Co.; and I was of this opinion. Counsel for the prosecution thereupon applied to have the indictment amended by alleging that the money in question was the property of Messrs. Ormrod & Co.; and I ordered the indictment to be amended accordingly, by inserting therein the words "Peter Ormrod and another," instead of the words "Reuben Smith and others." Counsel for the prisoner did not address the jury or call witnesses; but he contended that the above evidence was not in point. of law sufficient to warrant a conviction on the indictment as amended, either at common law or under the 24 & 25 Vict. c. 96, sec. 3. I then summed up the evidence; and the jury found the prisoner guilty: but, on the application of counsel for the prisoner, I reserved the above question for the opinion of this Court. This case was argued on the 9th of June, 1866, before Erle, C.J., Martin, Bramwell and Channell, BB., and Shee, J. No counsel appeared for the prisoner. Sleigh, for the Crown. The property was originally laid in the men; but the indictment was amended by alleging that the money was the property of Messrs. Ormrod & Co., the masters. [CHANNELL, B. As the record was amended, this Court has only to decide on the amended record.] The broad principle is this: If a servant receives money from his master for a specific purpose, eo instanti that he tortiously appropriates it, it is larceny. The cases on this point are all collected in Russell on Crimes. (1) [BRAMWELL, B. In all those cases the person to whom the (1) Vol. ii. pp. 394, 395, 4th ed. 1866 money was to have been paid would have had a claim against the THE QUEEN master; in this case the masters could have said, in answer to such V. BARNES. a claim, that they had paid the prisoner, who was the workmen's own agent.] The prisoner was the masters' agent, until the money reached its destination. ERLE, C.J. The conviction must be quashed. The prisoner was the agent of the workmen; and by their authority the cashier, who was the masters' agent, gave him the money. As soon as he received it, it was the money of the workmen. Conviction quashed. Attorneys for the Crown: Gregory & Rowcliffes. END OF TRINITY TERM. |