to whom £150 had been delivered near Banff, in order that it might be delivered to a banking house and other places in Aberdeen, and who appropriated £ 51 to himself, was indicted for breach of trust, and sentenced to twelve months' imprisonment.1 And, on 25th April 1826, Charles Learmonth, a flesher, who had received £52 from an occasional employer, in order to pay the price of a quantity of sheep which he had purchased at the distance of thirty miles, and who embezzled the money on the road, was convicted of fraud and breach of trust, and sentenced to six months' imprisonment.2 The like course was adopted in the indictment of Donald Cameron, a postrunner, Perth, autumn 1827, who had embezzled £41 put into his hands, not through the post-office, but as an ordinary carrier, to be delivered at various places on his route, and who was sentenced to nine months' imprisonment for having appropriated it to his own use. Such cases, where a carrier is intrusted with the disposal of open money, seems different from that of a carrier intrusted with a sealed parcel; the appropriation of which appears to be theft.

4. If goods are put into a tradesman's hands for the purpose of being repaired, and the operation is of such a kind as necessarily requires considerable time for the operation, the subsequent felonious appropriation is breach of trust.

It has been already noticed when treating of theft, that if goods are carried off which have been put into any person's hands for a temporary purpose, as a porter's, to be conveyed to a particular place, or a clerk's, to be conveyed to a bank, or the like, the felonious abstraction is theft. But the case is different, both on principle and authority, where goods are put into a person's hands not for such a specific and transient purpose, but to undergo some lengthened operation, as linens to be bleached at a bleachfield, books to be bound at a bookbind→ er's, watches to be repaired at a watchmaker's, or the like. In all these cases the depositary stands in a different situation from a mere clerk or porter sent on a particular errand; his profession, and the purposes of his receiving the goods, imply

2

1 Unreported. Unreported. Unreported. Supra, p. 302.

a much higher power of intromission, alteration, and manage→ ment, and therefore his felonious abstraction or embezzlement falls under the description of breach of trust. In the case of William Burton, accordingly, Jedburgh, autumn 1824, a watchmaker who had embezzled a watch put into his hands for the purpose of being mended, was prosecuted for breach of trust and embezzlement, and sentenced to six months' imprisonment. The like course was adopted with another watchmaker, who bad embezzled and carried off watches to a very great extent, Daniel Johnston Ross, Inverness, autumn 1827, who was sentenced to seven years' transportation. On the same principle Archibald Mackain, convicted 12th March 1830, of having embezzled, and sold for his own behoof, forty-two head of cattle, put into his hands to graze for two months on his farm, was sentenced to seven years' transportation.

5. If the wrong consist only in a failure to deliver the article lent by the time agreed on, the case is breach of trust only.

3

We do not recognise the furtum usus of the Roman law, and therefore, if the criminal or other improper act, consist only in a failure to redeliver the article at the time appointed, the case, in the most unfavourable view, can be only breach of trust, and, generally, will not even amount to that. Thus, if a thing be lent me to be returned by a particular day, and I keep it longer, or a horse be hired for a certain place, and I ride it farther in the same direction, or a carrier keep a bale of goods, neither broken open nor concealed after his arrival at the place of their destination, the crime is destitute of the felonious intention, to appropriate which is essential to theft, and of the intention to embezzle, which is the worst ingredient in breach of trust and embezzlement. This offence, therefore, if it be so serious as really to amount to a point of dittay, is only wilful neglect of duty and breach of trust quoad delivery, and, as such, merits only a slight castigation.*

6. It is not theft, but breach of trust, if a person appropriate goods which he has found in a situation which does not necessarily infer a knowledge of the real owner.

1 Unreported.-2 Unreported.—3 Hume, i. 59.—4 Ibid.

If a person find any article under circumstances which ne

cessarily imply a knowledge of the real owner, as if he see a handkerchief just dropped from another's pocket, or a hackney coachman see a passenger take a bundle into his coach, and he get out, leaving the bundle there, so that there can be no doubt as to the owner, there seems no doubt that the case is one of theft, and it is treated as such in the English law;1 but, in cases of a more doubtful import, the offence is breach of trust. Thus, if a landholder find a stray animal in his field, or a treasure in his ground, or have wrecked goods thrown upon his shore, or a person find a book upon the road, and he may discover to whom it belongs, it is not theft if the finder appropriate the thing to himself. The wrong does not lie in the first occupation, for res nullius cedit occupanti; but in the failure to redeliver where the owner might have been discovered, or in the neglect of the due notices to discover the true proprietor, either of which is breach of trust only.2 Mr Hume3 considers the same rule applicable to the case of one who pilfers goods in the course of their removal from a house on fire, even though he be acting in presence only, and without the orders or request of the proprietor; but there is no authority for such an opinion, and, on principle, it seems unquestionably to amount to theft.

It has been already stated, that, in consequence of the deci sion of all the Judges in Bazely's case, the 39th Geo. II. c. 85, was passed for the more effectual punishment of bankers' clerks and others embezzling the moneys or securities put into their hands, and which had not come into the actual possession of their employer. It has been decided in England, that this act extends to clerks and servants of all persons whatsoever,5 and that it will embrace the case of a servant who embezzled money received from a customer, to whom his master had given it to try his honesty.

1 Wynne's Case, Leach, i. 415; Supra, p. 308.-2 Hume, i. 62.—3 Ibid.— 4 Ante, p. 304.5 Russell, ii. 208.—5 Whittingham's Case, Russell, ii. 212; Leach, ii. 912; Headge's Case, Leach, ii. 912.

CHAPTER XIII.

OF FRAUD AND SWINDLING.

ALL those falsehoods and frauds by which another is deprived of his property under fraudulent and false pretences, especially by the assumption of a false character, or substituting one thing for another, or by using a false or vitiated document as the instrument of deception, may be prosecuted as crimes, and subject the offender to the highest arbitrary punishment.1 Under this head fall the numerous set of cases known in common, and sometimes also in legal, language, under the name of swindling, as well as those more complicated frauds, by the vitiation or substitution of documents which involve the crime of forgery. Our common law takes cognizance of all such offences without requiring, as the English common law, the shewing of any false token to support the charge.

1. The fundamental requisite in a charge of swindling is the assumption of a false character, or a false represen tation of some sort, which occasions the giving credit, the most extensive fraud committed by merely ordering goods on credit, and not paying for them, without any such false, representation, not falling under this species of crime.

Falsehood, fraud, and wilful imposition, is the nomen juris by which the crime of swindling is designated in our law, and from the earliest times it has formed an article of dittay by the common law. Without going farther back than 1789, in the case of Thomas Hall, July 21. 1789, an indictment was sustained as relevant, which charged the pannel with falsely assuming the character of a trader, hiring a shop, filling it with

1 Burnett, 165.

fictitious bales, and thereby inducing persons to furnish goods on credit.1 "The case," says Mr Hume, "was thus distinguished from the bare civil wrong of failure to pay for goods obtained on credit, inasmuch as there was throughout the assumption of a false character and intention of business: 2 he was transported seven years. Again, on 14th June 1791, George Smith was indicted for fraud and wilful imposition, by commissioning, under a feigned name and character, large quantities of goods and the proceeds, and banished Scotland for life. So also in the case of Thomas Kirby, 27th March 1799, the pannel was charged "with fraudulent and wilful imposition and falsehood, more especially when practised in order to obtain, by false and untrue pretences, the money or goods of others." He had obtained a considerable sum of money from a banker in Leith, upon the false allegation that he had a large balance in the hands of his banker in London, and by drawing a bill on a house there, which owed him nothing, which of course returned protested: he was transported for five years. It was here strongly objected to the relevancy of the indictment, “that no fraud can be stated as a crime, unless it be sup→ ported by the using of a false document, or the assumption of a false name;" but to this it was sustained as a sufficient an"that though no false name was assumed, or false document urged, yet false pretences were used, and a false character assumed, inasmuch as money was obtained on the false allegation of the pannel's having funds in the banker's hand in London." The Court sustained the relevancy of the indictment, observing that a man might no doubt often obtain credit without funds, from the hope of their being realized before the period of payment arrived, but that such a measure as drawing a bill on a banker with whom he had no dealings, was a clear false and fraudulent representation.5 At Dumfries, September 1768, Edward Warren was indicted for extorting money, by fortune-telling. The relevancy was sustained at common law, and he was sentenced to a year's imprisonment. And at Aberdeen, September 1802, Alexander Reid was convicted of fraud, by assuming the character of an excise-officer, and extorting money under pretence of compounding for smuggled goods, and sentenced to six months' imprisonment.7.

swer,

1 Hume, i. 173; Burnett, 166.-2 Hume, i. 173.—3 Burnett, 166.—ˆa Burnett, 167; Hume, i. 174.5 Burnett, 170.-6 Ibid. 173.7 Ibid.