or other agent, for safe custody, or for any special purpose, without guilty of a any authority to sell, negotiate, transfer, or pledge, and he shall, misdemeanor. in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been entrusted 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 thereof, shall be liable, at the discretion of the court, to any of the punishments which the court may award, as hereinbefore last mentioned.” (ƒ)

trustees or mortgagees;

securities,

have a lien.

their own use

By sec. 50,"nothing hereinbefore contained relating to agents Not to affect 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 nor bankers, agent, from receiving any money which shall be or become actually &c., receiving due and payable upon or by virtue of any valuable security, accord- money due on ing 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 disposing of or otherwise disposing of any securities or effects in his possession, securities on upon which he shall have any lien, claim, or demand entitling him which they 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." By sec. 51, "if any factor or agent entrusted, for the purpose of Factors sale, with any goods or merchandise, or entrusted with any bill pledging for of lading, warehouse-keeper's or wharfinger's certificate, or warrant any goods or or order for delivery of goods or merchandise, shall, for his own documents rebenefit, and in violation of good faith, deposit or pledge any such goods or merchandise, 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; (g) but no such factor or agent shall be liable to any prosecution for depositing or pledging any such goods or merchandise, 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 ceed the sum of money than the amount which, at the time of such deposit or amount of pledge, was justly due and owing to such factor or agent, from their lien. 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."

lating to goods
them for the
purpose of
sale, guilty of
a misdemean-

entrusted to

or.

Not to extend to cases where the pledge does not ex

By sec. 52, "nothing in this act contained, nor any proceeding, These provi

(f) See the last note for the present

punishment.

(g) See p. 128, as to hard labour and solitary confiement.

VOL. II.

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."

By sec. 61, every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender.

It was held that the 52 Geo. 3, c. 63, (now repealed) only applied to persons to whom securities were entrusted in the exercise of their function or business, and not to persons gratuitously engaging to procure the discount of bills, such persons not being in any business within which such an employment regularly falls. The defendant was indicted under the 52 Geo. 3, c. 63, for unlawfully negotiating and applying to his own use a bill of exchange deposited with him as agent for the owners without any authority to pledge, for the purpose of getting it discounted. The defendant was not a bill-broker, and was to receive no commission for discounting the bill; but was in the habit of discounting bills for the owner of the bill, and they were in the habit of doing so for him. The bill had been drawn by the owners by the advice of the defendant, who informed them that he had the means of getting it discounted; and it was delivered to him for that purpose, and he deposited it with a creditor of his own as a collateral security. It was objected that the defendant was not an agent within the meaning of the statute; that his offices were gratuitous, and not performed in his regular business; it was replied that the words included agents of any description whatsoever, and that a gratuitous agency was an agency of some description. Abbott, C. J. "We must endeavour to ascertain the intention and object of the statute; and that appears to have been the punishment of persons who, in the exercise of their functions, receive securities and afterwards embezzle them. It is true that, for certain purposes, a friend is an agent, but can he be called such an agent as the Legislature had here in view? Now here the parties are merely friends, accustomed to accommodate each other, and taking the transaction as one between such friends mutually aiding each other, can it be said to fall within the operation of an act passed with such an intention and object? The words, " any description whatsoever," are certainly very comprehensive, but if it had been intended to comprehend within the enactments of the statute deposits for any purposes (such for instance as safe custody), all the preceding words, " banker, merchant," &c., would have been unnecessary, and

might have been omitted. It was, therefore, intended to confine the operation of the statute to persons acting in the discharge of their functions. I entertain a very clear opinion on the point." (h)

keeping for

An indictment on the same statute alleged that the defendant had What not an received the sum of 107. 8s. as an agent for safe custody, and had agency or embezzled the same. The defendant was the proprietor of a weekly safe custody. saving bank, in which there were 130 members, each member paid in weekly the sum of 2s. 1d., the penny being allowed to the defendant as a remuneration for her trouble; at the end of each week a lottery took place, in which there were 129 blanks and one prize, the holder of which prize received the sum of 137., the total amount of each weeks' subscription; all parties then went on with their subscriptions until 130 weeks had gone round, and each member had received the 137. prize. The prosecutrix was one of the members, and had paid in subscriptions to the amount of 101. 8s., without ever obtaining the prize, when the defendant suddenly absconded, and the deposit had never been forthcoming. It was objected, first, that the defendant could not be considered as an "agent," within the meaning of the act, no such establishment as the one managed by the defendant being in existence at the time of the passing of the law; second, that the money mentioned in the indictment was not in the keeping of the defendant "for safe custody," within the meaning of the act of parliament; third, that the indictment averred that the defendant had received the sum of 107. 88. of the prosecutrix, whereas the evidence proved that she never had at one time received or had in her possession more than 2s. 1d. belonging to the prosecutrix. to the prosecutrix. Park, J. A. J., said, that " the three objections were, in his opinion, clearly fatal to this indictment; there did not seem to be any such agency or keeping for safe custody on the part of the defendant, as was contemplated by the statute; and with regard to the receipt of the money, the evidence was decidedly at variance with the averment upon that point." (i)

It was held on the same repealed statute that the indictment must correctly specify the direction given to the agent; where, therefore, an indictment stated such direction as absolute, and it proved to be conditional, it was held that the defendant must be acquitted. An indictment alleged that Anne Hubert deposited with the defendant two exchequer bills for 500% each, with an order in writing for the defendant to invest the sums of money, to which the said bills related, in the purchase of government funds, and that the defendant unlawfully applied the said bills to his own use. (j) The written order was in terms, "for the purpose and with the intent of your investing it or the proceeds, in case of any unexpected accident, in the government funds, at a time when you shall judge it desirable to buy in." Lord Tenterden, C. J., "This direction in writing does not sustain the allegation in the indictment, for the

(h) Rex v. Prince, M. & M. 21. S. C. 2 C. & P. 517. See notes (b), and (c), ante, p. 192.

(i) Rex v. Mason, D. & R., N. P. 22. A further point was that the case was not

within the statute, as the word "money"
was not found in it.

(j) There was another count stating the
order to be to invest in "government secu-
rities."

An indictment must correctly specify the direction given to the agent.

allegation is that the defendant was directed to invest absolutely and unconditionally; and the direction proved is only to invest, in case of any accident happening to Mrs. Hubert. Now no accident has happened, and under these circumstances the defendant cannot be liable to punishment for not investing. The defendant must be acquitted." (k)

(A) Rex v. White, 4 C. & P. 46.

CHAPTER THE NINETEENTH.

OF EMBEZZLEMENTS OF MINOR IMPORTANCE.

SEVERAL enactments are to be found amongst the statutes relating Embezzleto embezzlements of minor importance, and providing for their ments of minor importance. punishment by a summary mode of proceeding. (a)

embezzlements

The 55 Geo. 3, c. 137, reciting that persons received into public 55 Geo. 3, workhouses for the relief of the poor, pawn and dispose of their c. 137. As to clothes, and the goods belonging to such workhouses, and that poor by poor perpersons relieved by having clothes and apparel given them by sons in workthe officers of parishes frequently pawn and sell the same, and that houses, &c. by the laws then in force no punishment could be inflicted on them, or on the persons buying or receiving the same in pawn; first vests the property of such clothes, goods, &c., in the overseers for the time being; and then enacts, that the overseers or other persons appointed for managing or providing for the poor, may cause all goods, clothes, linen, &c., and things belonging to such overseers or other persons, to be marked with the word "workhouse," and such other marks as they shall think proper, for identifying the parish, &c., by which the same shall have been provided; (b) and that if any person shall knowingly take in pawn, or receive any goods, &c., provided for the use of the poor in a workhouse, or given to the poor by the overseers, &c., or any goods, &c., or materials belonging to a workhouse; or shall receive or buy any of the provisions provided for the poor of such workhouse, or shall deface the marks, &c., they shall forfeit, for every offence, not exceeding five pounds nor less than one pound, upon conviction before a justice. And it further enacts, that if any persons shall desert, or run away from any workhouse, and carry with them any clothes, &c., or things as aforesaid, such persons being lawfully convicted before any justice of the peace, shall be forthwith committed to gaol or to the house of correction for three calendar months. And it provides that the marks, &c., on such things (being duly authenticated) shall be sufficient evidence of property in the overseers, or other persons appointed as aforesaid. (c)

An act for the warehousing of goods, the 3 & 4 Wm. 4, c. 57, s. 41, enacts, that "in case it shall at any time happen that any embezzle

(a) The 54 Geo. 3, c. 110, relating to embezzlements by Greenwich pensioners, and inserted here in the last edition, was wholly repealed by the 10 Geo. 4, c. 26 s. 1.

(b) By a subsequent part of the section,

it is directed that such marks shall not be
placed on articles of wearing apparel so as
to be publicly visible on the exterior of the

same.

(c) 55 Geo. 3, c. 137, s. 2.

Embezzling, &c., ware

housed goods.