Embezzlement by a surveyor of the highways of materials procured for repairing them at the expense of the parish. ment, waste, spoil, or destruction, shall be made of or in any goods or merchandise which shall be warehoused in warehouses under the authority of this act, by or through any wilful misconduct of any officer or officers of customs or excise, such officer or officers shall be deemed guilty of a misdemeanor, and shall, upon conviction, suffer such punishment as may be inflicted by law in cases of misdemeanor." (d) In a late publication a precedent is given of an indictment against a surveyor of highways, for using materials obtained for repairing the highways upon his own premises, for employing the public labourers on his own grounds, and for embezzling the gravel and other materials which had been procured for the parish. (e) This indictment does not appear to have been framed upon the provisions of any statute; but to have charged the offence against the defendant as a misdemeanor at common law; laying the acts to have been done by colour of his office, and in dereliction of his duty as surveyor of the highways. (ƒ) (d) And in case of a conviction the owner is to be repaid for his loss by the commissioners of excise. (e) 3 Chit. Crim. L. 666, where it is said, in note (p), that this indictment was procured from the crown office, and was used in 1799 against one Robinson. (f) See vol. 1, p. 135, et seq. as to offences by persons in office. CHAPTER THE TWENTIETH. OF EMBEZZLEMENT BY OFFICERS AND SERVANTS OF THE BANK OF ENGLAND, AND BY PUBLIC OFFICERS. SUBSEQUENTLY to the transaction in the case of Waite, (a) but Embezzleprior to the decision of the Judges upon it, the 15 Geo. 2, c. 13, was ments by passed; the twelfth section of which relates to embezzlements by officers and servants of the Bank of England. officers of the Bank of Eng land. 15 Geo. 2, c. 13, s. 12. Any officer, &c., of the said company being entrusted with or having It enacts, "that if any officer or servant of the said company being entrusted 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 ef fects 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, any bill, &c. shall secrete, embezil, or run away with any such note, bill, dividend- or other effects, warrant, bond, deed, security, money or effects, or any part of them; and secreting 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." The same provisions are repeated in the 35 Geo. 3, c. 66, s. 6, and 37 Geo. 3, c. 46, s. 6, (which makes certain annuities, created by the parliament of Ireland transferrable, and the dividends payable at the Bank of England) with respect to effects deposited in pursuance of those acts. And there is a similar provision in the 24 Geo. 2, c. 11, s. 3, with respect to the officers and servants of the South Sea company. the same, guilty of felony. Certain offences of embezzlement not to be The 4 & 5 Vict. c. 56, reciting the 15 Geo. 2, c. 13, s. 12, the 35 Geo. 3, c. 66, s. 6, the 37 Geo. 3, c. 46, s. 6, and the 24 Geo. 2, c. 11, s. 3, and that it is expedient that the said several offences should no longer be punishable with death, enacts, "that from and after punishable the commencement of this act, (b) if any person shall be convicted of with death. any of the offences herein-before specified, such person shall not be subject to any sentence, judgment, or punishment of death, but shall, Punishment. instead of the sentence or judgment in and by the said several acts herein-before recited ordered to be given or awarded against persons convicted of the said offences, or any of them respectively, be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than seven years, or to be imprisoned for any time not exceeding three years." It seems that a note once cancelled at the bank is not a note, &c., within the 15 Geo. 2, c. 13, s. 12. The person offending within this act must be a person entrusted, &c. Aslett's (first) case. The indict the prisoner with embezzling "certain bills, com. monly called exchequer bills;" and it was holden bad, on its appearing that the bills had By sec. 4, "in awarding the punishment of imprisonment for any offence punishable under this act, it shall be lawful for the court to direct such punishment to be with or without hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, whether the same be with or without hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." By sec. 6, "none of the offences herein-before specified shall be tried or triable before any justices of the peace at any general or quarter sessions of the peace." It seems that a note once cancelled by the Bank is not within the 15 Geo. 2, a note, security, or effects of the bank; or at least that a person only employed to call over the sums and numbers from the cash-book, though he has access to the "file" of cancelled notes, cannot be found guilty for taking a note from the file as a person entrusted with such note. The prisoner was indicted as a servant entrusted with a note of the governor and company for embezzling it. It appeared that he took it off a cancelled file, to which he and many other clerks had access, and that he was the person who read from the cash-book the sums and dates to check the cancelled account, and there was evidence that his motive was to get a reward from the bank by shewing how this fraud could be committed. The recorder saved the points whether the cancelled note came within the description in the 15 Geo. 2, of a note, security, or effects of the bank; and also whether, in case it did, the prisoner was so intrusted with the possession of it as to be within the statute. The conviction was held bad, on the ground that it did not appear by the facts, as stated, that the prisoner was a person entrusted with the cancelled note, although he had access to it. (d) An indictment on this statute was holden bad in charging the prisoner with embezzling "certain bills, commonly called exchequer ment charged bills," when the person who signed the bills on the part of government was not legally authorized so to do. It appeared that the bills in question were issued under the 43 Geo. 3, c. 5, which contained a proviso that every such bill should be signed by the auditor of the exchequer, or in his name by any person duly anthorized by him to sign the same with the approbation of three or more of the lords commissioners of the treasury, in writing under their hands; but which proviso had not been complied with, inasmuch as the authority of a Mr. Jennings, by whom the bills were, in fact, signed, had not been properly renewed. Upon this it was objected, on behalf of the prisoner, that the bills in question were not legal exchequer bills; and that, as the indictment in every count, averred the instruments alleged to have been embezzled to be exchequer bills, the allegation was not proved, and the prisoner must be acquitted. And the court were of opinion that the objection was good; that as the formalities required by the statute, by which these bills were created, had not been complied with, they were not good exchequer bills; and that there said to have gone off upon another point. The cancelling was effected merely by a punch through. been signed by a person not legally au thorized to sign them. (d) Rex v. Bakewell, November, 1802, MS. Bayley, J., and Russ. & Ry. 35. The case is reported in 2 Leach, 943, and noticed by Le Blanc, J., 2 Leach, 962, and the circumstances of the Bank of England having purchased them as exchequer bills, and of the bills having in that character answered the purposes for which they were originally created, could have no effect in this case, as they could not alter the nature of the fact. (e) name of a person not within meaning of the c. 13, s. 12, and a 15 Geo. 2, servant of the bank em convicted of But the prisoner was detained; and shorly afterwards another Aslett's (seindictment was preferred against him, upon which he was convicted. cond) case. This indictment described the exchequer bills in question as effects Exchequer bills purchased belonging to the governor and company of the Bank of England; by the bank for stating the effects, in the first count, as paper writings, purporting to a good consibe exchequer bills; in the second count, as certain papers upon the signed in the credit whereof the bank had advanced a large sum of money; and in signed in the the third count, as certain papers, &c. purporting to be bills com- auditor of the monly called exchequer hills; and in other counts, the exchequer exchequer by bills in question were called securities instead of effects. It was ob- legally aujected by the counsel for the prisoner, before any evidence was called thorized, are "securities," on the part of the prosecution, that, as it had been determined, by or, at least, his acquittal on the former indictment, that the papers he was charged "effects." with having embezzled were not exchequer bills at the time of the embezzlement, he could not be again charged with having embezzled the same papers, as being effects belonging to the Bank of England; he having committed no other act of embezzlement than that contained in the former indictment; for though by a remedial statute, 43 Geo. 3, c. 60, these defective papers had been rendered good and bezzling such valid exchequer bills for civil purposes, yet, that statute having bills, may be impliedly declared that these papers were, previously to the passing felony under it, mere waste papers, and of no value at the time the embezzlement that statute. of them took place, it could not ex post facto make them valuable effects, within the 15 Geo. 2, c. 13, s. 12; which word effects, it was contended, could apply only to things in themselves of intrinsic value. But Le Blanc, J., observed, that the word "securities" was used in the statute as well as the word "effects;" which shewed that the Legislature intended that the statute should extend to other kinds of property than securites; the word "effects" being of a larger and more comprehensive meaning than the word "securities”: and he directed that the trial should proceed. The facts of the case were then proved; and the jury having found the prisoner guilty, the case was reserved for the consideration of the twelve Judges. The important question submitted to them was, whether, on the true construction of the statute 15 Geo. 2, c. 13, s. 12, these papers, which were issued as exchequer bills, did, in point of law, come within the words "effects, or securities," meant to be described in the act of parliament? After able argument by counsel, and much consideration by the Judges, at different conferences, the result of their mature deliberation was communicated by Lord Alvanley, C. J., who stated that the Judges had not been unanimous upon this point, but that a majority of them were of opinion that the bills, or papers, were "effects, or securities," within the true meaning of the act, and that the prisoner was properly convicted. After alluding to the great object of the Legislature, in giving protection and security to the Bank of England, his Lordship proceeded to state that the papers in question were papers of value; that though they might not, on the face of them, be of any descriptive legal value, yet that they (e) Aslett's (first) case, cor. Macdonald, C. B., Rooke, J., and Lawrence, J., O. B. 1803. 2 Leach, 954. Of embezzlements of the public monies by public officers, collectors, &c. Any person embezzling or fraudulently applying money issued to them for the public services, to be guilty of a misdemeanor. Sec. 2. Any guilty of a mis demeanor. carried about them such a consequence, at least as might make their preservation of infinite importance to the bank; that the government of the country was pledged to pay them even as they were, the holders of them having as strong a claim upon the justice of the government for such payment as if they were technically correct in all their parts; and that they were, therefore, in the true meaning of the word, securities which might be rendered available to any persons having the legal right to them. He then observed, that the papers in question were not less to be deemed effects; which word was a very large and general term, and confined to no particular description of property, either in specie, or value; and was, therefore, probably inserted in the act, studiously, when the Legislature were placing a special guard around the Bank; and also that the offence of embezzling the effects, or securities, mentioned in the act, was not made larceny, where some value must attach on the thing taken, but was created a felony, which induced no necessity for any value being ascertained. He then put several cases to shew that the papers in question were effects; and after stating that the Judges had not found themselves driven to the extreme length of construing the word "effects" to extend to such trifling articles as the stumps of old pens, or a piece of blotting paper (an absurdity which had been supposed in argument); he said that their judgment only determined that the words of the act necessarily extended to such securities, or effects, as were entrusted to the officers and servants of the bank; and that the bills in question came under that description. (ƒ) The 50 Geo. 3, c. 59, s. 1, reciting that, "it is most expedient that due provision should be made effectually to prevent the embezzlement of money or securities for money belonging to the public, by any collector, receiver, or other person intrusted with the receipt, custody, or management thereof;" enacts, "that if any person or persons to whom any money or securities for money shall be issued for public services, shall embezzle such money, or in any manner fraudulently apply the same to his own use or benefit, or for any purpose whatever except for public services, every such person so offending, and being thereof duly convicted according to law, in any part of the united kingdom, shall be adjudged guilty of a misdemeanor, and shall be sentenced to be transported beyond the sea, or to receive such other punishment as may by law be inflicted on persons guilty of misdemeanors, and as the court before which such offenders may be tried and convicted shall adjudge." By sec. 2, "if any such officer, collector, or receiver so intrusted with the receipt, custody, or management of any part of the public revenues, shall knowingly furnish false statements or returns of the sums of money collected by him or intrusted to his care, or of the balances of money in his hands or under his control, such officer, collector, or receiver so offending, and being thereof convicted, shall be adjudged guilty of a misdemeanor, and shall be adjudged to suffer the punishment of fine and imprisonment, at the discretion of the court, and be rendered for ever incapable of holding or enjoying any office under the crown.' (f) Aslett's (second) case, O. B. 1803 and 1804, 1 New Rep. 1. 2 Leach, 958, and Russ. & Ry. 67. It was also decided in this case, that the 15 Geo. 2, c. 13, was not repealed by 39 Geo. 3, c. 85. |