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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 himn 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 parties 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 aggrieved 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 hin; 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 rospect 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).


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 1 *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 inAlicted 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.


Proof of escape by the party himself

Proof of the criminal custody Proof of escape suffered by an officer Proof of arrest

Must be justifiable Proof of voluntary escape

- 411

413 - 412 Proof of negligent escape

414 . 412 Retaking

414 413 | Proof of escape from the custody of a pri413 vate person

414 413 | Punishment

. 414

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. Sunith, 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 o. Tompkins, 9 Johns. 70. People o. Washburn, 10 Johng. 160. People v. Rose, 12 Johns. 339. State o: Doud, 7 Conn. 384.

any prosecution for any such escape, attempt to escape, breach of prison, or rescue, either against the offender escaping or attempting to escape, or having broken prison, or having been rescued, or against any other person or persons concerned therein, or aiding, abetting, or assisting the same, a certificate given by the clerk of assize, or other clerk of the court in which such offender shall have been convicted, shall, together with due proof of the identity of the person, be sufficient evidence to the court and jury of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced.”

A certificate under this statute should set forth the effect and substance of the conviction, and not merely state it to have been for felony. Watson's case, R. and R. 468 (a).

Proof of escape suffered by an officer.] In order to render a person suffering an escape liable, as an officer, it must appear that he was a known officer of the law. Thus where the constable of the Tower committed a prisoner to the house of a warder of the Tower, the latter was held not to be such an officer as the law took notice of, and that he could not therefore be guilty of a negligent escape. 1 Chetw. Burn, Escape, 930. But whoever de facto occupies the office of gaoler, is liable to answer for such an escape, and it is no way material whether his title to such an office be legal or not. Hawk. P. C. b. 2, c. 19, s. 28.

It is said by Hawkins to be the better opinion that the sheriff is as much liable to answer for an escape suffered by his bailiff, as if he had actually suffered it himself; and that either the sheriff or the bailiff may be charged for that escape. Hawk. P. C. b. 2, c. 19, s. 28; 1 Hale, P. C. 597; 1 Russell, 372. But this is opposed to the authority of Lord Holt, who says, that the sheriff is not answerable criminally for the acts of his bailiff. Fell's case, 1 Salk. 272; 1 Lord Raym. 424.

Proof of escape suffered by an officer-proof of arrest.] In case of a prosecution against an officer, either for a voluntary or negligent escape of a prisoner in custody for a criminal offence, it must appear that there was an actual arrest of the offender. Therefore, where an officer having a warrant to arrest a man, sees him in a house and challenges him to be his prisoner, but never actually has *him in his custody, and the [ *413 ] party gets free, the officer cannot be charged with the escape. 2 Hawk. P. C. c. 19, s. 1. See Simpson v. Hill, 1 Esp. 431.

Proof of arrestmust be justifiable.] The arrest must be justifiable in order to render the escape criminal; and it is laid down as a good rule, that whenever an imprisonment is so far irregular as that it is no offence in the prisoner to break from it by force, it will be no offence in the officer to suffer him to escape.

2 Hawk. P. C. c. 29, s. 2. A lawful imprisonment must also be continuing at the time of the escape ; and therefore, if an officer suffers a criminal who was acquitted, and detained for his fees, to escape, it was not punishable. Id. s. 3, 4.

Id. s. 3, 4. Yet, if a person convicted of a crime be condemned to imprisonment for a certain tiine, and also till he pay his fees, and he escape after such time is elapsed, without paying them, perhaps - such escape may be criminal, because it was part of the

(a) 1 Eng. C. C. 468.

punishment that the imprisonment should continue till the fees were paid. But it seems that this is to be intended where the fees are due to others as well as to the gaoler. Id. s. 4.

Proof of voluntary escape.] It is not every act of releasing a prisoner that will render an officer subject to the penalties of voluntarily permitting an escape. The better opinion appears to be that the act must be done malo animo, with an intent to defeat the progress of justice. Thus it is said by Hawkins, that it seems agreed that a person who has power to bail is guilty only of a negligent escape, by bailing one who is not bailable; neither, he adds, is there any authority to support the opinion that the bailing of one who is not bailable, by a person who has no power to bail, must necessarily be esteemed a voluntarily escape. And there are cases in which the officer has knowingly given his prisoner more liberty than he ought, as to go out of prison on promise to return; and yet this seems to have been adjudged to be only a negligent escape. The judgment to be made, adds Hawkins, of all offences of this kind must depend on the circumstances of the case; as the heinousness of the crime with which the prisoner is charged, the notoriety of his guilt, the improbability of his returning, and the intention and motives of the officer. 'Hawk. P. C. b. 2, c. 19, s. 10; 1 Russell, 370.

Proof of voluntary escape-retaking.] It is laid down in some books, that after a voluntary escape, the officer cannot retake the prisoner, by force of his former warrant, for it was by the officer's consent. But if the prisoner return, and put himself again under the custody of the officer, the latter may lawfully detain him, and bring him before a justice in pursuance of the warrant. 1 Burn, 930, title Escape, citing Dalt. c. 169; 2 Hawk. c. 13, s. 9; 1 Russell, 372. But Hawkins observes, that the purport of the authorities seems to be no more than this, that a gaoler who has been fined for such an escape shall not avoid the judgment by retak[ *414) ing *the prisoner; and he adds, “I do not see how it can be collected from hence that he cannot justify the retaking him.” Hawk. P. C. b. 2, c. 19, s. 12.

Proof of negligent escape.] 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. Dalt. c. 159; 1 Chetw. Burn, 930, Escape. Thus, if a thief suddenly, and without the assent of the constable, hang or drown himself, this is a negligent escape. Id. It is said by Lord Hale, that if a prisoner for felony breaks the gaol, this seems to be a negligent escape, because there wanted either that due strength in the gaol that should have secured him, or that due vigilance in the gaoler or his officers that should have prevented it. i Hale, 600. But upon this passage it has been remarked, that it may be submitted that it would be competent to a person charged with a negligent escape, under such circumstances, to show that all due vigilance was used, and that the gaol was so constructed as to have been considered by persons of competent judgment a place of perfect security. 1 Russell, 371.

Proof of negligent escape-retaking.)

Where a prisoner escapes

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