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money, without specifying any particular coin or valuable security; and such allegation, so far as it regards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security, of which such amount was composed, shall not be proved, or if he shall be proved to have embezzled any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him, in order that some part of the value thereof should be returned to the party delivering the same, and although such part shall have been returned accordingly."
By s. 4, "in every such case of embezzlement, or fraudulent application or disposition, as aforesaid, of any chattel, money, or valuable security, it shall be lawful, in the order of committal by the justice of the peace, be[*407] fore whom the offender shall be charged, and in the indictment to be preferred against such offender, to lay the property of any such chattel, money, or valuable security, as aforesaid, in the king's majesty."
As to embezzlement by persons in the post office, see that title.
BY OFFICERS AND SERVANTS OF THE BANK OF ENGLAND.
By 15 Geo. 2, c. 13, s. 12, it is enacted, that if any officer or servant of the said company, being intrusted with any note, bill, dividend warrant, bond, deed, or any security, money, or other effects belonging to the said company, or having any bill, dividend warrant, bond, deed, or any security or effects of any other person or persons, lodged or deposited with the said company, or with him as an officer or servant of the said company, shall secrete, embezzle, or run away with, any such note, bill, dividend warrant, bond, deed, security, money, or effects, or any part of them, every officer or servant so offending, and being thereof convicted in due form of law, shall be deemed guilty of felony, and shall suffer death as a felon, without benefit of clergy.
Provisions similar to the above are contained in the 35 Geo. 3, c. 66, s. 6, and 37 Geo. 3, c. 46, s. 4. The 24 Geo. 2, c. 11, also contains a clause (s 3,) to the same effect, with respect to officers and servants of The South Sea Company.
Upon a prosecution under the 15 Geo. 2, c. 13, the prosecutor must prove, 1st, that the prisoner was an officer or servant of the Bank of England, intrusted with a note, &c. belonging to the Bank, or having a bill, &c. deposited with the Bank, or with him, and 2d, that he embezzled, or ran away with the same.
Proof of being an officer, &c. intrusted, &c.] It is not sufficient, in order to bring a party within the statute, that he should be an officer of the Bank, and as such have access to the document in question. It must appear also that he was intrusted with it. A Bank clerk, employed to post into the ledger, and read from the cash-book, bank notes in value from 100l. to 1000l., and who, in the course of that occupation, had, with other clerks, access to a file upon which paid notes of every description were filed, took from the file a paid bank-note for 50l. Being indicted for this, under the stat. 15 Geo. 2, c. 13, s. 12, it was contended that he was not
intrusted with this note, within the statute, the only notes with which he could be said to be intrusted being those between 100l. and 1000l. Having been found guilty, the judges held the conviction wrong, on the ground that it did not appear that he was intrusted with the cancelled note, though he had access to it. Bakewell's case, Russ. and Ry. 35 (a).
Proof of the bills, &c.] Where the prisoner was charged with embezzling "certain bills, commonly called Exchequer bills," and *it [*408] appeared that the bills had been signed by a person not legally authorised to sign them, it was held that the prisoner could not be convicted. Aslett's (first) case, 2 Leach, 954. The prisoner was again indicted under the same statute, for embezzling " certain effects" of the Bank, and being convicted, the judges, on a case reserved, were of opinion that these bills or papers were effects within the statute; for they were issued under the authority of government as valid bills, and the holder had a claim on the justice of government for payment. Aslett's (second) case, Russ. and Ry. 67 (b); 2 Leach, 958, 1 N. R. 1. In this case, the judges likewise held that the stat. 39 Geo. 3, c. 85, had not repealed any part of the 15 Geo. 2, c. 13.
BY BANKERS, AGENTS, OR FACTOrs.
The offence of embezzlement by bankers and other persons, intrusted with money, was provided against by the statute 52 Geo. 3, c. 63; but that statute is now repealed by the 7 & 8 Geo. 4, c. 27; and its provisions are in substance re-enacted by the 7 & 8 Geo. 4, c. 29, s. 49, which enacts, "that if any money, or security for the payment of any money, shall be intrusted to any banker, merchant, broker, attorney, or other agent, with any direction in writing to apply such money, or any part thereof, or the proceeds, or any part of the proceeds of such security, for any purpose specified in such direction, and he shall, in violation of good faith, and contrary to the purpose so specified, in any wise convert to his own use or benefit, such money, security, or proceeds, or any part thereof respectively, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award; and if 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, shall be intrusted to any banker, merchant, broker, attorney, or other agent, for safe custody, or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, and he shall, in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been intrusted to him, sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit such chattel or security, or the proceeds of the same or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, every such
(a) 1 Eng. C. C. 35. (b) 1 Ibid. 67.
offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to any of the punishments, [ *409 ] *which the court may award, as herein-before last mentioned," [transportation for not more than seven years, or imprisonment for not more than three years.]
The above section does not touch the case of trustees and mortgagees, who are expressly excluded from its operation by the succeeding section (50); by which it is provided and enacted, "that nothing herein-before contained relating to agents shall affect any trustee, in or under any instrument whatever, or any mortgagee of any property, real or personal, in respect of any act done by such trustee or mortgagee, in relation to the property comprised in or affected by any such trust or mortgage, nor shall restrain any banker, merchant, broker, attorney, or other agent, from receiving any money which shall be or become actually due and payable upon or by virtue of any valuable security, according to the tenor and effect thereof, in such manner as he might have done if this act had not been passed, nor from selling, transferring, or otherwise disposing of any securities or effects in his possession, upon which he shall have any lien, claim, or demand, entitling him by law so to do, unless such sale, transfer, or other disposal, shall extend to a greater number or part of such securities or effects than shall be requisite for satisfying such lien, claim, or demand."
The 51st section of the same statute relates to embezzlements by factors or agents intrusted for the purpose of sale with any goods, &c. It enacts, "that if any factor or agent intrusted, for the purpose of sale, with any goods or merchandize, or intrusted with any bill of lading, warehouse-keeper's or wharfinger's certificate, or warrant or order for delivery of goods or merchandize, shall, for his own benefit and in violation of good faith, deposit or pledge any such goods or merchandize, or any of the said documents, as a security for any money or negotiable instrument borrowed or received by such factor or agent, at or before the time of making such deposit or pledge, or intended to be thereafter borrowed or received, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award; but no such factor or agent shall be liable to any prosecution for depositing or pledging any such goods or merchandize, or any of the said documents, 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, at the time of such deposit or pledge, was justly due and owing to such factor or agent from his principal, together with the amount of any bill or bills of exchange drawn by or on account of such principal, and accepted by such factor or agent."
The above provisions are not to extend to deprive partics of any remedies which they possessed before their enactment, according to the 52d section of the same statute, by which it is provided and enacted, "that nothing in this act contained, nor any proceeding, conviction, or judg[ *410] ment to be had or taken thereupon, against any *banker, merchant, broker, factor, attorney, or other agent as aforesaid, shall prevent, lessen, or impeach any remedy at law, or in equity, which any party aggriev
ed by any such offence might or would have had if this act not been passed; but nevertheless, the conviction of any such offender shall not be received in evidence in any action at law or suit in equity against him; and no banker, merchant, broker, factor, attorney, or other agent as aforesaid, shall be liable to be convicted by any evidence whatever as an offender against this act, in respect of any act done by him, if he shall at any time, previously to his being indicted for such offence, have disclosed such act, on oath, in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which shall have been bona fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioners of bankrupt."
Upon a prosecution against a banker or agent under this statute, the prosecutor must prove; 1, the defendant's character of banker or agent; 2, the intrusting him with the money, or security for money; 3, the directions in writing for the application of the same; and 4, the conversion of the same, in violation of good faith, and contrary to the purpose specified.
The purpose specified is matter of description, and must therefore be proved as laid. Thus, an allegation that the prosecutor directed the defendant to invest the proceeds of certain valuable securities in the funds, is not proved by evidence of a direction to invest them in the funds, in the event of an unexpected accident occurring. White's case, 4 C. and P. 46 (a).
EMBEZZLEMENTS OF MINOR IMPORTANCE.
Statutory provisions are made in cases of various embezzlements, a few of which it will be sufficient to notice briefly in this place.
Embezzling naval or military stores.] By the 4 Geo. 4, c. 53, every person who shall be lawfully convicted of stealing or embezzling his Majesty's ammunition, sails, cordage, or naval or military stores, or of procuring, counselling, aiding or abetting any such offender, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned and kept to hard labor, in the common gaol or House of Correction, for any term not exceeding seven years. See also the 9 & 10 Wm. 3, c. 41, 1 Geo. 1, st. 2, c. 25, and 39 & 40 Geo. 3, c. 89. By the 55 Geo. 3, c. 127, persons employed in the care of military stores embezzling the same, may be tried by a court-martial and transported.
Embezzling warehoused goods.] By the 3 & 4 Wm. 4, c. 57, s. 41, it is enacted, that if it shall at any time happen that any embezzlement, *waste, spoil, or destruction shall be made, or if any goods or [ *411 ] merchandize, which shall be warehoused in warehouses under the authority of that act, by or through any wilful misconduct of any officer or officers of customs or excise, such officer or officers shall be guilty of a mis
(a) Eng. Com. L. Rep. xix. 268.
demeanor, and shall, on conviction, suffer such punishment as may be inflicted by law in cases of misdemeanor.
Embezzlement by pensioners, &c. in Greenwich hospital.] The embezzlement by any pensioner or nurse of Greenwich hospital, of any clothes, &c. belonging to the hospital, is made punishable, by the 54 Geo. 3, c. 110, s. 1, by six months' imprisonment in the gaol of the town, &c. in which such pensioner, &c. shall be apprehended.
An escape by a person in custody on a criminal charge may be either with or without force, or with or without the consent of the officer or other person who has him in custody.
Proof of escape by the party himself.] All persons are bound to submit themselves to the judgment of law, and therefore, if any one, being in custody, frees himself from it by any artifice, he is guilty of a high contempt, punishable by fine and imprisonment (1). 2 Hawk. P. C. c. 17, s. 5. And if by the consent or negligence of the gaoler, the prison doors are opened, and the prisoner escapes, without making use of any force or violence, he is guilty of a misdemeanor. Id. c. 18, s. 9; 1 Hale, P. C. 611; 1 Russell, 367.
[*412] *Proof of escape—party himself-proof of the criminal custody-venue.] It must be proved that the party was in custody upon a criminal charge, otherwise the escape is not a criminal offence. Before the passing of the 4 Geo. 4, c. 64, it was decided that a certificate of the prisoner having been convicted, granted by the officer of the court, was not evidence. R. v. Sinith, 1 Russell, 368.
But now, by the 44th section of the above statute, it is enacted, "that any offender escaping, breaking prison, or being rescued therefrom, may be tried either in the jurisdiction where the offence was committed, or in that where he or she shall be apprehended and retaken; and in case of
(1) People v. Tompkins, 9 Johns. 70. People v. Washburn, 10 Johns. 160. People v. Rose, 12 Johns. 339. State v. Doud, Conn. 384.