LAHCENY EY GENERAL DROVEK. ri£7 



prosecutors. He had often been employed by them to slaughter and 

 cut np pigs, and had been paid by the job, but never before as a drover. 

 Two pounds were given him for expenses, and no arrangement was 

 made as to how he was to be paid, though there was an established 

 custom in the trade to pay them so much per day; and by another 

 trade usage he was at liberty to drive any other person's cattle at the 

 same time, though nothing was expressed to that effect in this case. 

 The pi'isoner said, in his defence, that he was a partner with the prose- 

 cutors ; and there was no evidence of an animus furandi when the pigs 

 were delivered to him. He was found guilty of larceny ; Imt the Recorder 

 postponed judgment to take the .opinion of the Court, whether, under 

 the circumstances, the prisoner was the servant of the prosecutors, and 

 whether the taking amounted to larceny ? The Court thought that it 

 was not proved in this case that the prisoner was a mere servant, and 

 that the conviction was wrong. 



Parlie B. said, in delivering the judgment: "There are several 

 reported cases bearing upon the question whether a person is a mere 

 servant or bailee. There are none precisely like the present, though 

 the case of Rex v. Bernard Mac Narnee nearly approaches to it. In 

 this case, on the one hand, the circumstance that the prisoner was paid 

 the expenses of the cattle, and also that the customary mode of payment 

 of his remuneration was by the day, tend to show that he was a mere 

 servant ; on the other, the fact of his being a drover by trade, and also 

 of his having the liberty to drive the cattle of any other person by the 

 general usage with respect to di-overs, raises an inference that he was 

 not a servant. The learned Depufji-Recorder felt himself bound by the 

 decision of the judges in Rex v. Henry Hughes, but that case was under 

 the 7 & 8 Geo. IV. c. 29, s. 47, which makes embezzlement by a servant, 

 or person employed in the capacity of a servant to receive money, 

 felony ; and the learned Recorder of London referred the question to the 

 judges, whether the prisoner fell under either description, though if the 

 indictment had been referred to, it was necessary to prove that he was a 

 servant. The judges decided that the prisoner was properly convicted, 

 and consequently that he was a servant or person employed in that 

 capacity, and authorized as such to receive money, so that his receipt 

 would be a discharge to the debtor. This is not exactly the same ques- 

 tion. It is, whether the prisoner had the custody of the cattle as a 

 servant to the prosecutor at the time of the receipt of them ; and we 

 think he could not be so considered, unless in driving the cattle to 

 market he was his servant, and the prosecutor responsible for any 

 negligent act of his in so driving them. This subject has undergone 

 much discussion of late, and has been placed on its projier footing by 



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