Odger's English Common Law

360 EMBEZZLEMENT, &C.
The question as to who is a clerk or a servant has given
rise to much discussion.
It has been decided that where the servant works is
not the testj nor whether he is bound .to give his whole time
to such work, nor even whether he is paid by salary or com-
mission, or both, or neither—though these may be important
factors in determining the question. The test is, is he bound
to obey the orders of his master so as to be under his control,
not only as to what he has to do, but also as to how he is to
do it? 1
If so, he is a clerk or servant and can be convicted
of embezzlement. If, on the other hand, he is free to do the
work when and how he pleases, he is not a clerk or servant
but an independent contractor.
If the prisoner was never employed by the prosecutor except on the one
particular occasion on which he misappropriated the property, the better
opinion is that he was not a clerk or servant ; but the point is not free
from doubt. 2
It seems clear, however, that if a man is asked by a friend to
do something for him as a favour (e.g., to fetch a parcel for him from a
railway station because the friend is ill), and he consents to oblige him, but
misappropriates the property received, he is not guilty of embezzlement ;'
for he neither is a clerk or servant, nor is he employed as such. He could,
however, now be convicted of fraudulent conversion under section 20 of the
Larceny Act, 1916.
(ii.) Next, the prisoner must receive the property before
it comes into the master's actual possession. His receiving
it may be a good discharge to the person from whom he
receives it, so that the property passes to the master. But
as between the accused and his master the property must not
yet have come into the master's possession. If after the
property has come into the possession of the master the
servant misappropriates it, he is guilty of larceny by a
servant.
This was decided in Reed's Case so long ago as 1853. 3 There the prisoner
had been sent by his master, with a cart belonging to the latter, to fetch coals
from the wharf of a coal company with whom the master usually dealt. On
his way back with the coals the prisoner without any authority disposed
of a quantity of them to a third person. The constructive possession of
i B. v. Negus (1873), I/. R, 2 C. 0. E. 34.
2 B. v. Nettleton (1830), 1 Moo. C. C. 259 ; B. y. Goodbody (1838), 8 C. & P.
665 ; contrd, B. v. Hughes (1832), 1 Moo. C. C. 370.
3 Deaisl. 168, 267.