day well and truly pay, account for and deliver to the said company's coal manager all cheques, moneys, cash bills, or notes which they may at any time receive from any person or persons whomsoever for payment of all or any coals delivered by them." 1

It is submitted that the terms of this contract merely amount to a guarantee on the part of the prosecutor to the railway company for the trustworthiness and fidelity of the carmen who might be employed, and though the carmen are no parties to the contract, obedience to the orders of the prosecutor in carrying out the terms of the contract would affect a privity between them and the company. And the transaction itself shows that the authority to receive the money was given to the prisoner by the railway company, and that the prosecutor would have no authority to interfere with the carmen after he had received such authority.

MAULE, J. A customer who owes money to the company would only pay to one having authority to receive. The receipt and invoice is given by the company, and is evidence of the authority.

Dearsly. Precisely so. It would be a contradiction in terms to hold when the railway company says, "Receive this money for us," and the prisoner acts upon that authority, that he receives the money for or on account of the prosecutor, and yet this is the contention of the prosecution.

1 The contract, made December 31st, 1851, between Edward Wiggins and the Great Northern Railway Company, binds the said Edward Wiggins to provide horses, harness, weighing machines, weights and carmen for the purpose of delivering all such coals as the said company shall and may require the said Edward Wiggins to carry and deliver," etc. It also binds the said Edward Wiggins to provide a sufficient number of steady and honest carmen and other persons for the delivery of all coals into the cellars or any other part of the premises of the persons for whom the coals are intended, and also for collecting and receiving and duly accounting for the moneys received for the same and for all other purposes connected with the due delivery of the coals or receiving or accounting for the moneys for the same, and that such carmen and other parties shall, during the time they shall be in the employment of the said Edward Wiggins, his executors or administrators, obey, perform, and execute in all things connected with the carrying and delivery of coal and receipt and payment of moneys received by them, the orders, commands and directions of the company's coal

manager, or such other person or persons as may be appointed by them for that purpose."

The contract, after prohibiting such carmen from receiving any gratuity, etc., proceeds," "And that he the said Edward Wiggins, or the said carmen or other parties shall and will, day by day and every day, well and truly pay, account for and deliver to the said company's coal manager all checks, moneys, cash, bills or notes, which they may at any time receive from any person or persons whomsoever for payment of all or any coals delivered by them."

The contract subsequently says: "And also that he the said Edward Wiggins, his executors, administrators and assigns, shall and will, during and within the first seven days, of every calender month during the continuance of this contract, send in and deliver a just and true statement of the amount earned by him in the previous calendar month for or on account of all coals delivered by him during the preceding cal endar month to the company's coal manager or other person or persons appointed by the said company to receive the same."

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 by the prisoner was in con

templation of law, a receiving for his master, the prosecutor, and what he did was done by order of his master.

The contract so far as the relationship of servant and master makes no difference; and whatever the prisoner does under the contract differs in nowise from what he would have done under the bare orders of his master supposing no contract to have existed. Though it may be said that the company allows the prisoner to receive, yet in contemplation of law that is an authority for Wiggins to receive by the hands of the prisoner. The prisoner is no party to the contract, and therefore there is no privity.

WIGHTMAN, J. The carmen are to obey the manager in all things relating to the receipt of money.

MAULE, J. And they are to pay it directly to the company.

Hardinge Giffard. Yes; but that means by the direction of Wiggins. MAULE, J. The prisoner performs his duty to his master by receiving his money on account of the company. Is not that so? Well, when he has received it, on whose account has he received it? Why, on account of the company. It would be against common sense when he received it for or on account of the company, to say that he received it for or on the account of somebody else.

Hardinge Giffard.

Suppose a collector of rents hands over to his servant the landlord's receipt, and the servant collects the rents, he does so on account of his master the collector, and not on account of the landlord.

MAULE, J. But here the person in the corresponding situation to the collector's servant has to pay over directly to the company, which is the corresponding situation to the landlord.

Hardinge Giffard. If the master had met the prisoner in the street after the receipt of the money, would not he have been entitled to have demanded it?

MAULE, J. Certainly not. The whole course of business tacitly contradicts that right.

WIGHTMAN, J. Suppose the master said to a friend, "I will send my servant to get you a cheque cashed. I have full confidence in him, and I will pay if he does not; on whose account would the servant receive the proceeds?

Hardinge Giffard. That is hardly a similar case.

Lord CAMPBELL, C. J. If the servant lost the money by vis major it would be lost by the prisoner in the course of his duty to the company, and the master would not be responsible to the company for the loss.

Hardinge Giffard. There is no privity of contract, and the company could not sue the prisoner for money had and received.1

1 Barrow v. Husband, 4 B. & Ad. 611.

Lord CAMPBELL, C. J. There is abundance of evidence. We must assume that when the prisoner received the invoice, and was told to bring back the money he promised to do so.

WIGHTMAN, J. Supposing Wiggins to become bankrupt, whose money would be the money in the hands of the carman, received under this agreement, the money of the company or of his assignees?

CROMPTON, J. It would be a receipt by Wiggins, in either case, and must be paid to the company.

Dearsly replied.

Lord CAMPBELL, C. J. This case depends entirely upon whether the evidence shows that the money was received in the name, or on the account of his master, and this depends upon whether any privity exists between the carman and the company. If there be such privity as to make the carman the agent of the company in receiving the money, and he agreed to pay it to them, the money in his hands was not that of the master but of the company. The opinion of the majority of us is, that such privity is established, and therefore, that the money was not received on account of the prosecutor, but on account of the company. That being so, this conviction can not be supported.

In the Supreme Judicial Court of Massachusetts, 1841.

1. By "the Money or Property of another" the embezzlement of which by any agent, clerk or servant, without the consent of his employer, is made larceny by the Revised Statutes,2 is meant the money or property of any person except such agent, clerk or servant who embezzles it.

2. An Auctioneer who Receives money on the sale of his employer's goods, and does not pay it over, but misapplies it, is not such an agent or servant as is intended by the Revised Statutes,3 whether he receives the goods for sale in the usual mode, or receives them on an agreement to pay a certain sum therefor, within a specified time after the sale. The money received by an auctioneer, for goods sold by him, in both these cases, is his own, and not "the money of another."

4

By the Revised Statutes, "if any officer, agent, clerk or servant of an incorporated company, or if any clerk, agent or servant of any pri

1 Everett v. Williams, 15 East.

2 ch. 126, sec. 29.

3 ch. 126, sec. 29.

4 ch. 126, sec. 29.

vate person, or of any copartnership, except apprentices, and other persons under sixteen years of age, shall embezzle or fraudulently convert to his own use, or shall take or secrete, with intent to embezzle and convert to his own use, 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, he shall be deemed, by so doing, to have committed the crime of simple larceny." The indictment in this case alleged that the defendant, in consideration that Elbridge Gerry should employ him as agent for the sale of cotton goods, undertook and engaged to serve said Gerry as his agent, in the employment of auctioneer, and to pay over to him promptly the cash proceeds of said goods, at eight cents per yard, which the defendant should sell for said Gerry at public auction; and that said Gerry delivered and intrusted to the defendant in said employment as his agent, four bales of cotton goods to be sold as aforesaid, and the cash proceeds thereof, at eight cents for each yard, to be paid to said Gerry, by the defendant, within three days after the sale thereof; and that the defendant, by virtue of said employment, and as agent of said Gerry, took said goods and sold the same for cash, and received in payment therefor the money and price and proceeds thereof, viz., $272; and that the defendant, having in his possession the said money, being the property of said Gerry, afterwards unlawfully and fraudulently embezzled and converted the same to his own use, and took and secreted the same, with intent to embezzle and convert the same to his own use, without the consent of said Gerry; whereby, and by force of the statute in such case made and provided, the defendant is deemed to have committed the crime of simple larceny; and so the defendant, "with force and arms, in manner and form aforesaid, the same money and proceeds aforesaid, of the money and property of said Gerry, in his possession as aforesaid, feloniously did steal, take, and carry away,"

etc.

The defendant having been convicted on this indictment in the Municipal Court, alleged exceptions to the following instructions given to the jury: "That an auctioneer is within the meaning of the provision of the Revised Statutes. That, as matter of law, the specific proceeds of the goods received from said Gerry, were the property of said Gerry, and that the defendant refusing to pay over the said proceeds to said Gerry, when called on so to do, nor paying the same amount in any other way, constituted embezzlement, according to the true intent and meaning of the statute aforesaid. That the defendant had no right, with the proceeds of the goods received from said Gerry

1 ch. 126, sec. 29.