8 Car. & P. 288. Where however the prisoner, a clerk to the prosecutors, received on their account a sum of 187. in one pound notes, and entered in their books the sum of 121. only; he also received on the same day, the sum of 1041. 2s., and entered that correctly; and in the evening he accounted with the prosecutors for 1167. 28. only: being indicted for embezzling 61., the difference between the 187. received and the 127. accounted for, it was objected on his behalf that the 1167. paid by him to the prosecutors, might have included every one of the notes of which the 187. consisted, and if so, he could not be considered as having embezzled any of those notes: he was convicted, and the point reserved for the opinion of the judges, a great majority of whom held the conviction to be right, and that he was guilty of an embezzlement from the time of his making the false entry. R. v. Hall, R. & Ry. 463. The difficulty suggested, in this case, of proving an embezzlement of the identical notes or coin received and embezzled by the offender, has been remedied by stat. 7 & 8 G. 4, c. 29, s. 48, and 14 & 15 Vict. c. 100, s. 18, as already mentioned, ante, p. 447.

We have seen (ante, p. 445,) that where a clerk or servant takes money or goods from his master's stock, and appropriates them to his own use,-if the property taken be in the possession of the master but one instant, the servant or clerk is guilty of larceny, not embezzlement. If the clerk of a banker, or the shopman of a draper, receive money from a customer, and instead of putting it into the till or drawer, put it into his pocket, and appropriate it,―he is guilty of embezzlement; but if when he receives it, he put it into the till or drawer, and then take it out and appropriate it, he is guilty of larceny. A mistake however in this respect, in framing the indictment for embezzlement, where upon evidence the offence turns out to be larceny, is not now material; by stat. 14 & 15 Vict. c. 100, s. 13, "if upon the trial of any person indicted for embezzlement as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant, it shall be proved that he took the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of embezzlement, but is guilty of simple larceny, or of larceny as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant, as the case may be, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such larceny."

Bankers or Agents Selling or Converting Goods or Valuable Securities entrusted to them for safe keeping, or for a Special Purpose.

Indictment.

The jurors for our Lady the Queen, upon their to wit. oath present, that before and at the time of the committing of the offence hereinafter mentioned, to wit, on the day of in the year of our Lord

A. B. was banker and agent to C.D., [" banker, merchant, broker, attorney, or other agent"] and that whilst the said A. B. was such banker and agent to the said C. D. as aforesaid, to wit, on the day and year aforesaid, the said C. D. did entrust to the said A. B., as such banker and agent aforesaid for safe custody [or for a certain special purpose, to wit, for the purpose of

-] a certain exchequer bill [" any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of this kingdom, or of Great Britain or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society"] without any authority to sell, negotiate, transfer, or pledge the same; and which said exchequer bill the said A.B., so being such banker and agent as aforesaid, well knowing the premises, did then as such banker and agent as aforesaid, receive and take into his possession for safe custody as aforesaid [or for the purpose aforesaid], from the said C. D., and that the said A. B., afterwards, and whilst he was such banker and agent to the said C. D., as aforesaid, to wit, on the day and year aforesaid, in violation of good faith, and contrary to the object and purpose for which the said exchequer bill was so entrusted to him as aforesaid, unlawfully did sell, negotiate, transfer, and convert to his own use and benefit ["sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit"] the said exchequer bill ["such chattel or security, or the proceeds of the same, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof"]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [The exchequer bill or other instrument may be described by the name or designation by which the same is usually known. 14 & 15 Vict. c. 100, s. 7, ante, p. 90. Where it is confided to the agent for a special purpose, the purpose must be set out, and correctly. R. v. White, 4 Car. & P. 46.

Misdemeanor; transportation for not more than fourteen years, nor less than seven;-or such other punishment by fine or imprisonment or both, as the court shall award,

7 & 8 G. 4, c. 29, s. 49, such imprisonment to be with or without hard labour, and solitary for the whole or any part of the time. Id.s. 4. This section of the statute also defines another offence, namely, bankers, &c., converting to their own use, money or security for money entrusted to them, with a direction in writing to apply it to a particular purpose.

Evidence.

To maintain this indictment, the prosecutor must prove―

1. That he entrusted the exchequer bill, &c., as described in the indictment, to A. B., for safe custody, or for the special purpose mentioned in the indictment; and that A. B. was at the time his banker or agent, &c. It must appear also that it was entrusted to him, in the ordinary exercise of his particular functions or business. R. v. Prince, Moody & M. 21, 2 Car. § P. 517.

2. That no authority was given to A. B. to sell or negotiate the exchequer bill, for his own use.

3. That the defendant sold or negotiated it, or converted it to his own use, as stated in the indictment.

It is provided however by 7 & 8 G. 4, c. 29, s. 50, that the 49th section shall not affect any trustees or mortgagees for any act done by them in respect of the property comprised in the trust or mortgage; nor restrain any banker, &c., from receiving money due and payable on any valuable security, or from selling securities or effects on which he has a lien.

Also, by sect. 52, no banker, &c., shall be liable to be convicted as an offender against this Act, if he shall have previously disclosed the offence on oath, in consequence of any compulsory process of any court of law or equity, in any action, suit, or proceeding, bona fide instituted by a party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioner of bankrupt.

Factor Pledging the Goods of his Principal.

Indictment.

The jurors for our Lady the Queen, upon their oath day of - in the

to wit. present, that A. B., on the

year of our Lord being then a factor and agent [“ any agent"], was entrusted as such factor and agent by C. D., with the possession of one thousand quarters of wheat ["with the possession of goods, or of the documents of title to goods"]

of the goods and chattels of the said C. D.; and the said A. B., well knowing the premises, afterwards, to wit, on the day and year aforesaid, without any authority from the said C. D., his principal, in that behalf, did, for his own benefit and in violation of good faith, deposit the same [“ make any consignment, deposit, transfer, or delivery"] with E. F., by way of pledge, lien, and security, [or did accept an advance of certain money on the faith of an agreement to transfer or deliver the same to E. F.]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

Misdemeanor; transportation for not more than fourteen years, nor less than seven; or other punishment by fine or imprisonment or both, as the court shall award. 5 & 6 Vict. c. 39, s. 6. And every clerk, or other person knowingly and wilfully assisting in doing so,—the same punishment. Id.

See also stat. 7 & 8 G. 4, c. 29, s. 51, on the same subject.

Evidence.

To maintain this indictment the prosecutor must prove

1. That he entrusted A. B., who was then an agent, with the possession of the goods mentioned in the indictment, or with a bill of lading or other document of title to them, if such be mentioned.

2. That the defendant afterwards deposited the goods, &c., with E. F., as a pledge or security for money. It is provided however by the statute, that no such agent shall be liable to any prosecution, for consigning, depositing, transferring, or delivering any such goods or documents of title, in case the same shall not be made a security for, or subject to the payment of, any greater sum of money than the amount which may be due to him from his principal, together with the amount of any bills of exchange drawn upon him by his principal, and accepted by him. 5 & 6 Vict. c. 39, s. 6.

3. That he the prosecutor gave the defendant no authority to pledge the property or dispose of it in any way to his own use, in the manner mentioned.

It is provided by the statute, that such agent shall not be convicted by reason of any act done by him, if he shall have disclosed the same on oath, in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding bonâ fide instituted by a party aggrieved, or if he

shall have disclosed the same in any examination or deposition before any commissioner of bankrupt. 5 & 6 Vict. c. 39, s. 6.

Embezzlement by Officers in the Queen's Service.

Indictment.

The jurors for our Lady the Queen, upon their oath present, that A. B., on the

to wit. day of →→, in the year of our Lord, being then a person employed in the public service of Her Majesty, to wit, as, and being then by virtue of such his employment, entrusted with the receipt, custody, management, and control of money ["chattel, money, or valuable security"] of Her Majesty the Queen, feloniously did embezzle certain money of her said Majesty the Queen, being parcel of the money of which he then had the custody, management, and control, by virtue of his said employment, as aforesaid, and did then fraudulently and feloniously apply and dispose of the same to his own use and benefit ["shall embezzle the same or any part thereof, or in any manner fraudulently apply or dispose of the same or any part thereof to his own use or benefit"]: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Three acts of embezzlment may be included in the same indictment; 2 W. 4, c. 4, s. 3; in the same manner as ante, p. 446. The words "valuable security," are defined by the Act (s. 2) in the same words as in stat. 7 & 8 G. 4, c. 29, s. 5, ante, pp. 391, 392. But where the embezzlement is of money or valuable security, it is "sufficient to allege the embezzlement or fraudulent application or disposition to be of money, without specifying any particular coin or valuable security." 2 W. 4, c. 4, s. 3. The property must be laid in "the Queen's Majesty." See Id. s. 4. The venue may be laid either in the county in which the offender is apprehended, or in that in which the offence was committed. Id. s. 5.

Felony; transportation for not more than fourteen years, nor less than seven;-or imprisonment with or without hard labour for not more than three years. 2 W. 4, c. 4, s. 1.

Evidence.

To maintain this indictment, it is necessary to prove→

1. That the defendant exercised the office mentioned in the indictment. It is not necessary to prove his appointment. Ante, p. 135.