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EVIDENCE.

Prove that defendant was a banker or agent, as may be stated the intrusting with him the money or security as stated

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that directions in writing were given for the application of the same-that defendant did not apply the money as directed, but converted it to his own use. Rosc. Cr. Ev. 2 ed. 410; Arch. 8 ed. 282.

Prec. of Indict. Arch. 281; Matt. C. L. 470.

OBSERVATIONS.

By the 50th section of the statute, trustees or mortgagees are not to be affected by it; nor does it restrain bankers, etc., from receiving money due and payable by virtue of any valuable security (a); or from selling, etc., any securities or effects upon which they have a lien, unless the sale, etc., be to a greater extent than is necessary to satisfy such lien. And by section 52, no banker, etc., shall be convicted by any evidence disclosed by him on oath, in consequence of any compulsory process of any court of law or equity, bonâ fide instituted, or if he shall have disclosed the same before any commission of bankrupt. The directions in writing must be proved by the production of them, or by secondary evidence, after notice to produce the original (b). The purpose specified must be proved as stated; an allegation of a specific direction to invest the proceeds of valuable securities in the funds, is not supported by evidence of a direction to invest in the funds in the event of an unexpected accident occurring (c).

(a) See Thomson v. Giles, 2 B. & C. 422.

(b) Attor.-Gen. v. Le Merchant, 2 T. R. 301.

(c) White's case, 4 C. & P. 46.

money ("); a journeyman miller not employed as clerk or accountant, but in the habit of selling small quantities of meal on his master's account (12); a servant entrusted with the receipt of money from particular persons, but received from other persons and embezzled it (13); have severally been holden to be punishable by the statute. But it is necessary that the money should have been received in the course of the servant's employment in order to render him liable; as where a debtor of the prisoner's employer paid the prisoner 57. supposing him authorized to receive it, which he was not, and the prisoner never accounted for this money; this was held no embezzlement (14). So in the case of a servant employed to look after goods but not intrusted with the receipt of money (15); so also of a butcher's boy whose duty it was to carry out meat but had never been employed to receive money (16); and where the prisoner was employed to lead a stallion, with authority to charge and receive a fixed sum but not less, and he received a less sum and

(1) Spencer's case, R. & R. 299; Smith's case, R. & R. 516; Hughes' case, 1 Mood. C. C. 370; but see Goodbody's case, 8 C. & P. 665; and Nettleton's case, 1 Mood. C. C. 259; Freeman's case, 5 C. & P. 534. (12) Barker's N. P. C. 19,

's case, Dow. & Ry.

(13) Beechy's case, R. & R. 319; Williams' case, 6 C. & P.

626.

(14) Hawtin's case, 7 C. & P. 281 per Alderson, B., and Crawley's case, then cited.

(15) Thorley's case, 1 Mood. C. C. 343.

(16) Mellish's case, R. & R. 80.

OFFENCE.

EMBEZZLEMENT-continued.

By FACTORS OF AGENTS "intrusted for the purpose of sale, with any goods or merchandize, or intrusted with any bill of lading, warehousekeeper's or wharfinger's certificate, or warrant or order for the delivery of goods, or merchandize." (M). 7 & 8 Geo. IV. c. 29. ss. 4, 51.

PUNISHMENT.

Transportation for not more than FOURTEEN years, nor less than SEVEN; or fine or imprisonment, or both; with or without hard labour for the whole or any part of the imprisonment, and with or without solitary confinement; the latter qualified by 1 Vict. c. 90, s. 5, ante, p. 3.

embezzled it, this was holden not to be within the statute, because the money was not received by virtue of his employment (17). The person employed to collect the sacrament-money from the communicants is not the servant of the minister, churchwardens, or poor (18). And the casually procuring a person to receive a sum of money will not render that person "a person employed for the purpose, or in the capacity of a clerk or servant." (19). If the clerk of several partners embezzle the money of one of them, it is an embezzlement within this act, for he is the servant of each (20). So where a traveller is employed by several houses to receive money, he is the servant of each (21).

The money, etc. embezzled.]-It is not necessary that the exact amount or value of the thing embezzled should be stated (22). Where the indictment contains only one count, charging the receipt of a gross sum on a particular day, and it appears in evidence that the money was received in different sums on different days, the prosecutor will be put to his election, and must confine himself to one sum and one day (23). The halves of country bank-notes may be described as chattels within the statute (24). A bank post-bill cannot be described as a bill of exchange (25). By section 49 of the statute it is sufficient to allege the embezzlement to be "of money," and evidence may be given of the receipt of any species of coin or valuable security, or a receipt of any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved. If the defendant's receipt for money be offered in evidence it cannot be received unless stamped (26) The money must be received for or on account of the master, not from him either actually (27) or constructively (28). But (17) Snowley's case, 4 C. & P. (23) Williams' case, 6 C. & P.

390.

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626.

(24) Mead's case, 4 C. & P. 535. (25) Moore's case, 1 Lew. C. C. 90.

(26) Hall's case, 3 Stark. 67, 68. (27) Peck's case, 2 Russ. 213. Smith's case, R. & R. 267.

(28) Murray's case, 1 Mood. C. C. 276; 5 C. & P. 145. As to property coming to the possession of the master, see Bazeley's case, 2 Leach, 835; 2 East, P. C. 571.

EVIDENCE.

Prove that the goods, etc., were intrusted with the defendant, as a factor, for sale, etc.that the defendant pledged the same with A.B., as a security for money borrowed, or intended to be borrowed, as may be stated in the indictment-the circumstances from which the jury may infer that he pledged them in violation of good faith. Rosc. Cr. Ev. 2 ed. 410; Arch. 8 ed. 285. Prec. of Indict. Arch. 284; Matt. C. L. 471.

OBSERVATIONS.

By section 51 of the statute, a factor who has a lien upon any goods may pledge them to the extent of his lien. See also the provisions of section 52, as noticed in the last case, which are made applicable to factors also. The rights and liabilities of factors are regulated by 6 Geo. iv. c. 94.

where the master gave a stranger some marked money for the purpose of purchasing goods in order to try the fidelity of a shopman and the latter embezzled the same, the Judges held this a case within the act (29). So where a servant was sent by his master to get change for a 57. note, and appropriated the change to his own use, this was held embezzlement and not larceny, for the master never had possession of the change but by the hands of the prisoner (30). The nice distinctions that arise as to whether the offence be an embezzlement or larceny, render it advisable to add a count for a larceny at common law (31).

The embezzlement.]—It is not sufficient to show a bare non-payment (32). If the prisoner regularly admits the receipt of money, the mere fact of not paying it over is not a felony, it is only matter of account (33). And it is not enough to prove that a clerk had received a sum of money and not entered it, unless there was also evidence that he had denied the receipt of it, or the like (34). But from the time of making a false entry there is an embezzlement (35). It is not sufficient at the trial to prove a general deficiency of account; some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen (36). Where a female servant on being sent to receive money due to her master absconded with the amount, her going off, was held to be evidence of her intent to embezzle (37).

(29) Headge's case, 2 Leach, 1033; R. & R. 160.

(30) Sullen's case, 1 Mood. C. C. 129.

(31) Arch. 8 ed. p. 278; see Wilson's case, 9 C. & P. 27.

(32) Eliz. Smith's case, R. & R. 267; Peck's case, 2 Russ. 213; Murray's case, ante.

(33) Per Vaughan, B., Hodyson's case, 3 C. & P. 423; Hebb's case, 2 Russ. 1242.

But see

Grove's case, 7 C. & P. 635; 1 Mood. C. C. 447; and Jones' case, 8 C. & P. 288.

(34) Jones' case, 7 C. & P. 833, per Bolland, B.; see also Lord Alvanley's judgment in Taylor's case, 3 Bos. & Pul. 596; 2 Leach, 974; R. & R. 63; and Hobson's case, Id. 56.

(35) Hall's case, R. & R. 463; see Jones' case, 7 C. & P. 834.

(36) Per Alderson, B., Jones' case, 8 C. & P. 288; see also Hebb's case, 2 Russ. 124 2: but Grove's case, ante, seems contra.

(37) Per Coleridge, J., Sarah Williams' case, 7 C. & P. 338.

PUNISHMENT.

OFFENCE.

EMBEZZLEMENT-continued.

By Bankrupts or Insolvents-(See title BANKRUPTS).

ENGINE, destroying, used in Mines.—(See title MALICIOUS

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Prove that A. B. was charged with an offence as stated in the indictment-the delivery of a warrant to the defendant as set out in the indictment, the substance of which may be proved by secondary evidence (after notice), if the defendant refuses to produce it-that the defendant had A. B. actually in custody-the escape. Rosc. Cr. Ev. 2 ed. 411; Arch. 8 ed. 548.

A negligent escape, is where the party arrested or imprisoned escapes against the will of him that arrested or imprisoned him, and is not freshly pursued and taken before he is lost sight of (a). A sheriff or gaoler, though he had no other means of retaking his prisoner, would not be justifiable in killing his prisoner in such a pursuit (b). A private person may be guilty of this offence where he has another person in his lawful custody; even where he arrests merely on suspicion of felony (in which case the arrest is only justifiable if a felony be proved), yet is he punishable if he suffer the prisoner to escape (c). An actual arrest of the offender must be shown (d). The imprisonment must be for some criminal matter, otherwise the escape (a) Dalt. c. 159; 1 Chetw. (c) 2 Hawk. c. 20, s. 2. Burn. 930; 2 Hawk. c. 19, ss.

Prec. of Indict. Arch. 547; Matt. C. L. 465.

5, 6; 1 Hale, 601.

(b) 2 Hawk. c. 19, ss. 12, 13; 1 Hale, 602.

(d) 2 Hawk. c. 19, ss. 1, 4." See Simpson v. Hill, 1 Esp. 431.

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