Embezzlement and The Disobedient Servant
| DOI | http://doi.org/10.1111/j.1468-2230.1956.tb00343.x |
| Published date | 01 January 1956 |
| Author | J. C. Smith |
| Date | 01 January 1956 |
EMBEZZLEMENT AND THE DISOBEDIENT
SERVANT
EMBEZZLEMENT can be committed
only
by a servant who has
received the converted property from a third person
"
for
or
in
the
name
or
on
account of
yy
his master.' Can a servant then embezzle
property which he has received
in
disobedience of the express
or
implied commands of his master? Student8 of Kenny will
instinctively answer this question
in
the negative
:
"
A
servant,"
Menny tells us,
''
cannot embezzle anything which he obtained by
doing an act that was outside the authorised scope of his employ-
merhYya He supports his proposition by a series of striking and
convincing illustrations based upon the cases of
R.
v.
WilsonYa
R.
v.
Cullurn'
and
R.
v.
AitkenYs
all of which are considered below.
The recent case of
R.
v.
Davenport
raises doubts as to the accuracy
of
Kenny's proposition, and
it
is the purpose of this article to
consider
whether and,
if
so,
in
what circumstances a servant can
embezzle property which he has received contrary to the express
or
implied instructions of his master.
It
will be submitted that, where a servant receives from
a
third
party property which is,
or
becomes
on
receipt by the servant,
the property
of
the master, then that servant receives the property
for
or
on
account of his master; and that, where this is
so,
it
is
immaterial that the servant is acting outside his authority and
contrary to his master's instructions. Whether the servant was
acting outside the scope of his authority
will,
according to this
submission, be a relevant question
only
where it has a bearing
on
the ownership
of
the property received.
It
is convenient to consider the cases
in
two groups: First, those
cases in which the servant has misappropriated the proceeds of
some tangible property belonging to his master of which he has
wrongfully disposed; and, second, those cases in which the servant
has converted to his own use a profit which he has earned by a
wrongful use
of
his master's property.
MISAPPROPRIATION
BY
A
SERVANT
OF
THE
PROCEEDS
OF
A
CHATTEL
OF
WHICH
HE
HAS
WRONGFULLY DISPOSED
In
R.
v.
Davenport
the appellant, who was the secretary of a
company, received blank cheques signed by two directors
of
the
1
Larceny Act, 1916,
8.
17 (1)
(b).
a
Outlines
of
Criminal
Law,
16th ed., 265.
3
(1839)
9
C.
&
P.
27:
173 E.R. 725.
4
(1873) L.R. 2 C.C.R.
28:
12
Cox
460.
(1883) C.C.C. Sess.Pap.XCVI1 396.
119541
1
W.L.R
5G0; [l954]
1
All
E.R.
602;
88
Cr.App.R.
87.
89
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