servant clerk possession
EMBEZZLEMENT, in English law, is a peculiar form of theft which is distinguished from the ordinary crime in two points : - (1) It is committed by a person who is in the position of clerk or servant to the owner of the property stolen ; and (2) the property when stolen is in the possession of such clerk or servant. The definition of embezzlement as a special form of theft arose out of the difficulties caused by the legal doctrine that to constitute larceny the property must be taken out of the possession of the owner. Servants and others were thus able to steal with impunity goods intrusted to them by their masters. The statute 21 Henry VIII. c. 7 was passed to meet this case ; and it enacted that it should be felony in servants to convert to their own use caskets, jewels, money, goods, or chattels delivered to them by their masters. "This Act, " says Sir J. F. Stephen (General View of the Criminal Law of England), "assisted by certain subtleties according to which the possession of the servant was taken under particular circumstances to be the possession of the master, so that the servant by converting the goods to his own use took them out of his own possession qua servant (which was his master's possession) and put them into his own possession qua thief (which was a felony), was considered sufficient for practical purposes for more than 200 years." In 1799, a clerk who had converted to his own use a cheque paid across the counter to him by a customer of his master was held to be not guilty of felony ; and in the same year the Act 39 Geo. III. c. 85 was passed, which, meeting the difficulty in such cases, enacted that if any clerk or servant, or any person employed as clerk or servant, should, by virtue of such employment, receive or take into his possession any money, bonds, bills, &c., for or in the name or on account of his employers, and should fraudulently embezzle the same, every such offender should be deemed to have stolen the same. The same definition is substantially repeated in a Consolidation Act passed in 1827 (7 and 8 Geo. IV. c. 29). Numberless difficulties of interpretation arose under these Acts, e.g., as to the meaning of " clerk or servant," as to the difference between theft and embezzlement, &c. The law now in force, or the Larceny Act, 24 and 25 -Viet. c. 96, defines the offence thus (section 68) : - " Whosoever, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, shall fraudulently embezzle any chattel, money, or valuable security which shall be delivered to or received or taken into possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money, or security was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant, or other person so employed, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for ally time not exceeding fourteen years, and not less than three (now five) years." To constitute the offence thus described three things must concur : - (1) The offender must be a clerk or servant ; (2) he must receive into his possession some chattel on behalf of his master ; and (3) he must fraudulently embezzle the same. A clerk or servant has been defined to be a person bound either by an express contract of service or by conduct implying such a contract to obey the orders and submit to the control of his master in the transaction of the business which it is his duty as such clerk or servant to transact. (Stephen's Digest of the Criminal Law, Art. 309.) The Larceny Act also describes similar offences on the part of persons, not being clerks or servants, to which the name embezzlement is not uncommonly applied, e.g., the fraudulent conversion by bankers, merchants, brokers, attorneys, or other agents, of money or securities or goods intrusted to them. This offence is a misdemeanour punishable by penal servitude for any term not exceeding seven nor less than five years. So also trustees fraudulently disposing of trust property, and directors of companies fraudulently appropriating the company's property or keeping fraudulent accounts, or wilfully destroying books or publishing fraudulent statements, are misdemeanants punishable in the same way.