EMBEZZLE MENT BY CLERKS, &c. or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, money, or security, was not received into the possession of such master otherwise than by the 7 & 8 Geo. 4, c. 29. actual possession of his clerk, servant, or other person so empoyed (a); and every such offender, being convicted thereof, shall be liable, at the discretion of the Court, to any of the punishments which the Court may award, as hereinbefore last mentioned." [s. 46, ante, 557]. Punishment. Allegations in indictment and proofs. To whom the statute extends. See the General Clauses, ante, p. 550 to 556. By sect. 48, "For preventing the difficulties that have been experienced in the prosecution of the last-mentioned offenders," it is enacted, "That it shall be lawful to charge in the indictment and proceed against the offender for any number of distinct acts of embezzlement not exceeding three, which may have been committed by him against the same master, within the space of six calendar months from the first to the last of such acts; and in every such indictment, except where the offence shall relate to any chattel, it shall be sufficient to allege the embezzlement to be of money, without specifying any particular coin or valuable security; and such allegation, so far as 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 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 such part shall have been returned accordingly.” This act applies to the same description of clerks and servants as came within the 39 Geo. III. c. 85. It, therefore, extends to female servants; R. v. Smith, R. & R. 267; apprentices, R. v. Mellish, R. & R. 80; travellers, R. v. Carr, R. & R. 198; and persons employed by overseers, R. v. Squire, R.&R.349; 2 Stark. Rep. 349, S. C.; as an extra collector of poor rates, &c. R. v. Ward, Gow, 168. See R. v. Burton, R. & M. C. C. 237; post, 559. Nor is the nature of the wages, R. v. Mellish, R. & R. C. C. 80, nor the duration of the employment, R. v. Spencer, R. & R. C. C. 299, material. Where the owner of a colliery employed the prisoner, as captain of one of his barges, to carry out and sell coals, and paid him for his labour by allowing him two-thirds of the price for which he sold the coals, after deducting the price charged at the colliery; it was held, that the prisoner was a servant within the meaning of the 39 Geo. III. c. 85: and having embezzled the price, he was guilty of larceny within that act. R. v. Hartley, R. & R. C. C. 139. If a person be employed as the clerk of a corporation, and embezzles their money, he is guilty of felony, though he was not appointed under their common seal. R. v. Wellings, 1 C. & P. 457. But, to bring a case within the act, the clerk or servant must have been employed either generally or specially, to receive the chattel or money for his master. R. v. Smith, R. & R. 516; R. v. Beechey, R. & R. 319; R. v. Mellish, R. & R. 80; Collyer's Stat. 102, n.; R. v. Bakewell, R. & R. C. C. 35. Embezzlement by a man who is neither clerk nor servant, nor in any respect under the control of the person by whom he is, in a single instance only, requested to receive money, is not within the 47th section of the above act; for he does not come within the description of clerk or servant, or a person employed for the purpose of or in the capacity of a clerk or servant. R. v. Nettleton, R. & M. C. C. 259. A bank clerk, employed to post into the ledger and read from the cash book, bank notes from 100%. in value up 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, and took from that file a paid bank note (a) The words in italics were by mistake left out in the former act 39 Geo. III. c. 85, now repealed. for 50%. Held, that the prisoner could not be considered as intrusted with the possession of this note, so as to bring him within the 15 Geo. II. c. 13, s. 12. And it was in the same case questioned whether a note once cancelled by the bank was within the 15 Geo. II. c. 13. R. v. Bakewell, R. & R. C. C. 35. The person employed to collect the sacrament money from the communicants is not the servant of the minister, churchwardens, or poor. R. v. Burton, R. & M. C. C. 237. A servant in the employment of A. and B. is the servant of each; and if he embezzle the private money of one, he may be indicted as the servant of that individual partner. R. v. Leech, 2 Stark. N. P. C. 70. It will be seen, from the above cases, the statute is not confined to the clerks and servants of persons in trade; it extends to the clerks and servants of all persons whatsoever, when employed to receive. EMBEZZLE MENT BY CLERKS, &c. No wasting or consuming of goods is within the act, however wilful. 1 Nature of offence. Hawk. c. 33, s. 14. In R. v. Whittingham, 2 Leach, 912, it was held, that it was an offence within the 39 Geo. III. c. 85, for a servant to embezzle money received from a customer of his master's, though the money had been given to the customer by the master, in order that it might be paid in the course of business to the servant, for the purpose of trying the servant's honesty. So, in R. v. Headge, 2 Leach, 1033, R. & R. C. C. 160, S. C., it was decided, that a servant secreting money which the master had marked and sent by a friend, to make a purchase at his shop, with a view of trying the honesty of his servant, was guilty of an embezzlement within 39 Geo. III. c. 85, and not of a larceny at common law. See also R. v. Bazeley, 2 Leach, 841; ante, 520. If a servant, immediately on receiving a sum for his master, enter a smaller in his master's books, and ultimately account to his master for the smaller sum only, he may be considered as embezzling the difference at the time he made the entry. And it will not alter the case, though he received other sums for his master on the same day, and, in paying them and the smaller sum to his master together, he might give his master every piece of money or note he received at the time he made the false entry. R. v. Hall, 3 Stark. C. N. P. 67; R. & R. C. C. 463, S. C. Where the defendant received and paid sums to a large amount, for his master, and kept a cash account of them, which he balanced every quarter, it was holden by Garrow, B., that it was not sufficient to prove that there appeared by this cash-book to be a large balance due to the prosecutor, in the hands of the defendant, unaccounted for, even though accompanied with a confession that he had appropriated some of the money in his hands to his own use; but that it was incumbent upon the prosecutor to select and prove some distinct and specific act of receipt and embezzlement. R. v. Hebb, 2 Russ. 1244. If a servant receive money for his master, for an article made of his master's materials, it will be within the 39 Geo. III. c. 35, if he embezzle it, though he made the article, and was to have a given proportion of the price for making it. R. v. Hoggin, R. & R. C. C. 145. If a steward receive money on account of his employment, and embezzle it, he is guilty of a felony, although his employers would be wrong-doers in receiving it. R. v. Beacall, 1 C. & P. N. P. C. 454. Indictment]-The 39 Geo. III. c. 85, was considered not to have made Indictment. embezzlement by clerks and servants a new felony, but to have been declaratory of the common law on that subject; and, therefore it was held, that an indictment, framed upon it, must contain all that is essential to an indictment for larceny at common law, a count framed upon that statute being, in fact, a special count in larceny. R. v. M' Gregor, 3 B. & P. 106; 2 East's P. C. 576; R. & R. 23, S. C.; R. v. Johnson, 3 M. & S. 553. With regard to the venue, it has been held, that where the property comes into the prisoner's possession in one county, and he denies the receipt of it, or refuses to account for it in another, the venue should be laid in the latter county, because, until such denial or refusal, the offence cannot be con EMBEZZLEMENT BY CLERKS, &c. Indictment. Bankers,attornies, agents, &c. dispos sidered complete. R. v. Taylor, R. & R. 63. In one case, however, the venue, though laid in the former county, was, under particular circumstances, held correct. R. v. Hobson, R. & R. C. C. 56. The exact value of the property embezzled need not be stated in the indictment. R. v. Carson, R. & R. C. C. 303. See Collyer's Stat. 101. The 48th section also removes many former difficulties as to the description of the money stolen. ante, 558. The statute 39 Geo. III. being nearly in the words of the 7 & 8 Geo. IV. c. 29, s. 47, the same rules, in most respects, will be applicable to both. Collyer's Stat. 101; and see Car. C. L. 320-1; R. v. Sullens, Car. C. L. 318; ante, 558. It is not sufficient, in the indictment, to follow the words of the statute; but there must be a positive allegation, that the money embezzled was the property of the prosecutor, as in other cases of larceny. R. v. M⭑Gregor, Old Bailey, September, 1801, 3 B. & P. 106; 2 East's P. C. 576; 2 Leach, 932; R. & R. C. C. 23, S. C. An indictment on this statute ought, it should seem, to state that the party charged was "employed to receive money," &c. See 3 Chit. C. L. 982, n. (m); 2 Russ. 208. The indictment need not state the names of the persons from whom the money embezzled was received. R. v. Beacall and Wellings, 1 C. & P. 454. In an indictment for embezzlement, on the statute 39 Geo. III. c. 85, it was not necessary to charge that the prisoner "feloniously" embezzled, it was sufficient to charge at the end, that he "so feloniously stole the money," &c. R. v. Crighton, R. & R. C. C. 62. With respect to that part of the stat. 7 & 8 Geo. IV. c. 29, s. 48, which relates to receiving money where change was given, and then not accounting for the balance, the practice at the Old Bailey, before this act, was, in one count to charge the prisoner with embezzling the gross sum, and in another with embezzling the amount of the balance. Car. C. L. 324. The 7 & 8 Geo. IV. c. 29, s. 48, we have seen, allows three distinct acts of embezzlement within six months to be charged in the same indictment. Each embezzlement should be stated in a separate count. A count for simple larceny may be joined with a count for embezzlement, under the present statute. The repealed statute of 39 Geo. III. c. 85, by declaring that clerks and servants embezzling, &c. should be deemed to have feloniously stolen, &c. did, in fact, place embezzlement amongst felonies at common law. At common law, therefore, the judgments for larceny and embezzlement were the same, though, in the one case, averted by benefit of clergy; in the other, by the milder punishment inflicted by the statute. As the judgments, therefore, for these offences, were strictly the same, a count for larceny, and a count for embezzlement, might well be joined in the same indictment. See R. v. Johnson, 3 M. & S. 563. Nor is there any difference, under the present statute; for, though benefit of clergy is now abolished by 7 & 8 Geo. IV. c. 28, s. 6, yet it is provided, that nothing therein contained shall prevent the joinder, in any indictment, of any counts which might have been joined before the passing of that act. See ante, tit. Clergy, Benefit of, Vol. I. Collyer's Statutes, 102, notes. 4. EMBEZZLEMENT BY BANKERS, ATTORNIES, AGENTS, &c. We have already seen, ante, 517 to 520, that, in general, a party acquir ing of property in- ing goods under a trust, cannot be guilty of larceny at common law (a). R. v. Walsh, 4 Taunt. 258; 2 Leach, 1054, S. C. trusted to them to invest. (a) R. v. Walsh, R. & R. C. C. 215; 4 Taunt. 258; 2 Leach, C. C. 1054, S. C. The prisoner received a check from Sir T. P. to buy Exchequer bills; he carried it to the banker's, got the cash, and embezzled part. He was indicted for stealing. Held, that as there was no fraud to induce Sir T. P. to deliver the check, it was not larceny, although the prisoner intended to misapply the property when he took it, and misapplied it accordingly. It was also held, that as Sir T. P. never had possession of the money received at the banker's but by the hands of the prisoner, the indictment could not be supported. EMBEZZLE sonment. &c. Property deposited The stat. 7 & 8 Geo. IV. c. 29, s. 49, “For the punishment of embezzlement committed by agents intrusted with property," enacts, "That if any money, MENT BY BANor security for the payment of money, shall be intrusted to any banker, mer- KERS, agents, chant, 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 7 & 8 Geo. 4, c. 29. 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 misde- Misdemeanor. meanor, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for any term not exceeding Transportation fourteen years, nor less than seven years, or to suffer such other punish- for fourteen years, or fine and impriment 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 offender shall be guilty of a misdemeanor, and, being convicted Misdemeanor. thereof, shall be liable, at the discretion of the Court, to any of the punishments which the Court may award as hereinbefore last mentioned.' See the General Clauses, ante, p. 550 to 556. This provision, with a considerable number of verbal alterations, is a reenactment of the first and second sections of the stat. 52 Geo. III. c. 63, now repealed. The stat. 52 Geo. III. c. 63, only applied to persons to whom securities were intrusted in the exercise of their function or business, and not to one who, as a private friend, was intrusted with a bill to get it discounted, and, instead of doing so, converted it to his own use. R. v. Prince, 2 C. & P. 517. The proprietor and member of a savings bank receiving money for taking care of deposits, &c., it is not within the act for her to embezzle such deposits. R. v. Elizabeth Mason, 1 D. & R. C. N. P. 22. A. placed valuable securities in the hands of B., with a written direction to invest the proceeds in the funds, "in case of any unexpected accident happening to A." No accident did happen to A., and the proceeds were by B. converted to his own use:-Held, that B. was not indictable under the 52 Geo. III. R. v. White, 4 C. & P. 46. An allegation in an indictment, that A. placed valuable securities in the hands of B., "with an order in writing to invest the proceeds in the government funds," is not supported by proof of an order in writing, directing B. to invest the proceeds in the government funds, in case of an unexpected accident happening to A. R. v. White, 4 C. & P. 46. for safe custody or special purpose. Transportation for fourteen years, or fine and impri sonment. gees; The 50th section of the 7 & 8 Geo. IV. c. 29, provides and enacts, "That Not to affect trusnothing hereinbefore contained, relating to agents, shall affect any trustee, tees and mortgain 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 Nor securities on securities or effects in his possession, upon which he shall have any lien, Nor bankers, &c. receiving money due on securities; which they have a lien, &c. EMBEZZLE MENT BY BAN 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 KERS, AGENTS, or effects than shall be requisite for satisfying such lien, claim, or demand." This is in effect a re-enactment of the 3rd, 6th, and 8th sections of the stat. 52 Geo. III. c. 63. &c. 7 & 8 Geo. 4, c. 29. unless the transfer dies at law and in ment in certain cases. Conviction not evidence. Exemption from punishment. Factors or agents pledging goods. Misdemeanor. Transportation for fourteen years, or fine and imprisonment. Proviso for the extent of what is due to the factor, and his acceptances. The 52nd section of the 7 & 8 Geo. IV. c. 29, provides and enacts, "That nothing in this act contained, nor any proceeding, conviction, or judgment 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 had 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." This is in effect a re-enactment of the 5th section of the 52 Geo. III. c. 63, except that that did not protect examinations before commissioners of bankrupt. Car. C. L. 330. 5. FACTORS OR AGENTS PLEDGING Goods for their own Benefit. We have already seen that this would not be larceny at common law, ante, 517 to 520. But the 7 & 8 Geo. IV. c. 29, s. 51, 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." See the General Clauses, ante, 550 to 556. This provision is very nearly a re-enactment of the 7th and 8th sections of the stat. 6 Geo. IV. c. 94, which is repealed by the 7 & 8 Geo. IV. c. 27, so far as the same relates to any misdemeanor therein mentioned. The remedies at law and in equity are saved by the 52nd section of the stat. 7 & 8 Geo. IV. c. 29, which see supra, and factors are exempted from punishment in certain cases by the same section, which applies as well to factors offending against the 51st sect. as to bankers and other persons of fending against the 49th sect. of this act. Car. C. L. 330. 6. EMBEZZLEMENT BY MANUFACTURERS.-See post, 577. |