Indictment for cruelly beating and ill-treating an Apprentice, and keeping her from Necessary Food.

That A. B. late of, &c. on, &c. with force and arms, at, &c. in and upon one E. D. a female child of the age of ten years (e), or thereabouts, being the servant and apprentice of the said A. B. and in the peace of God and our said Lady the Queen then and there being, did make an assault, and with certain rods, whips, sticks, and cords, her the said E. D. did then and there violently, cruelly, and immoderately beat, scourge, and strike, and did then and there pull and strip, and force and compel the said E. D. to pull and strip from off the body of her the said E. D. certain clothes and wearing apparel, wherewith the said E. D. was then and there clothed and covered, so that the said E. D. was then and there nearly naked and uncovered, and her, the said E. D., as well whilst she was so covered and clothed with the said clothes and wearing apparel, as whilst she was so nearly naked and uncovered, did force and compel to work and labour violently, immoderately, and beyond her strength, in the business of the said A. B. as a silk weaver, for the space of twelve hours then next following; and her the said E. D. so working and labouring as aforesaid, did then and there shut up, confine, and keep in a certain room there for all the time aforesaid, without giving or affording to her the said E. D. or permitting her to have or procure sufficient meat, drink, and food, for her nourishment and support during that time, and other wrongs, &c., against the peace, &c. [Add count for common assault.]

tender years, and unable to provide for itself. However, as at the trial objection was taken not so much to the indictment itself, as to the evidence adduced in its support, it was thought right that the prisoner should suffer his whole imprisonment. See R. v. Meredith, and R. v. Booth, R. & Ry. 47, cruelty by overseers.

(e) In an early edition of this work it was stated in this place, that as a summary remedy by complaint to one justice, or to the sessions, or before two justices, was provided, viz. by 5 El. c. 4; 20 G. II. c. 19; 33 G. III. c. 55, in cases of ill usage of apprentices and servants by their masters, it was necessary, in order to support the above indictment, that it should appear on the face of it that the injured party was of such tender years, or so completely under the control of the person indicted, as in a certain degree to preclude relief by the other species of protection afforded by the law, and 3 Chitt. Cr. L. 831 (stating R. v. Ridley, 2 Campb. 653), was cited. But it has been shown from that case in pages 314 of this edition, that where the conduct of the master amounts to more than mere non-feasance, viz. to

actual assault, as laid in the above precedent, or to any act in nature of an assault, as compelled exposure to inclement weather, an indictment will lie at common law, though the age of the injured person be advanced beyond mere childhood to that of fifteen years. Per Lawrence, J. 2 Campb. 653.

Indeed, it may be questioned whether in any such case the original remedy by indictment is not cumulative, not being expressly taken away by that provided before the justices. (See Reg. v. Gould, Salk. 381, and cases there cited; also R. v. Carlile, ante); particularly as the provisions of 5 El. c. 4, s. 35, 20 G. II. c. 19, s. 3, 32 G. III. c. 57, and 33 G. III. c. 55, do not embrace servants not being apprentices; and the three latter acts do not (even since 4 G. IV. c. 29, s. 1,) extend to apprentices with whom more than 257. is paid, though 20 G. II. c. 19; 32 G. III. c. 57; 33 G. III. c. 55; and 4 G. IV. c. 29, are now extended to apprentices where no sum or premium has been paid on the binding, see 5 Vict. (sess. 2) c. 7.

It would, therefore, seem that the age of the party is immaterial to be stated in the above indictment.

Indictment against Overseers for Cruelty to a Pauper.

That on, &c. one M. S., single woman, was a poor, weak, impotent, and infirm person, wholly unable to maintain herself, and legally settled within the township of B. in the W. R. of the county of Y., and justly entitled by the laws and statutes of this realm to have reasonable and necessary support and relief found and provided for her by the overseers of the poor of the said township, and that J. B. late of B. aforesaid, in the said R., yeoman, then overseer of the poor of the township of B. aforesaid, well knowing the premises, and having the said M. S. under his care, as a poor person of and belonging to the said township, but wilfully and maliciously intending to injure and oppress the said M. S., on the day and year aforesaid, and continually afterwards until the day of the death of the said M. S., which happened on, &c. at B. in the said R., his duty in this behalf in nowise regarding, wilfully, maliciously, and unjustly neglected and refused to find and provide for the said M. S. reasonable and necessary meat, drink, clothing, bed and bedding, whereby the said M. S. was reduced to a state of extreme weakness and infirmity; and afterwards on, &c. at, &c. through the want of such reasonable and necessary meat, drink, clothing, and bed and bedding, died, to the great damage, injury, and oppression of the said M. S. and to the shortening of her life, to the evil example, &c. and against the peace, &c. (ƒ). [Add count for common assault.]

SECTION X.

EMBEZZLEMENT NOT AMOUNTING TO FELONY.

1. Embezzlement being a Misdemeanour at Common Law.

2. Embezzlement punishable by Statute as a Misdemeanour.

1. Embezzlement at Common Law.]—In general an indictment for a mere breach of trust, not amounting to larceny, will not lie at common law. But where this breach of trust is committed by a public officer misapplying the funds with which he is entrusted for the benefit of the public, he may be indicted for a misdemeanour in respect of his public duty. Thus an indictment will lie at common law against overseers for

(f) This was the indictment in R. v. Booth, (Hil. 1796). The prisoner was convicted and imprisoned. However, in 1803, six judges were of opinion that an overseer is not indictable for the consequences of not relieving a pauper, unless an order of justices for his relief is stated and proved (except in case of urgent necessity where no such order could be had in time): five judges thought the overseer so indictable, as he had taken the pauper under his care without

such order, R. v. Meredith and Turner, R. & Ry. 46. In R. v. Warren (1820), R. & Ry. 48, n., an overseer was indicted for neglecting to supply medical aid when required to a pauper labouring under dangerous illness, and Holroyd, J., held the offence sufficiently charged and proved, though the pauper was not in the workhouse, or before his illness needed parish relief. See Hays v. Bryant, post.

embezzlement, giving false accounts, or not accounting (g), and against surveyors of highways for embezzlement of gravel (g).

2. Embezzlement made a Misdemeanour by Statute.]—As to felonious embezzling, see Ch. V. s. 10, ante. By s. 49 of 7 & 8 G. IV. c. 29, particular embezzlements by agents (h) are made indictable as misdemeanours, and punishable severely: viz. "If any money, or security for the payment of money, shall be entrusted to any banker, merchant, broker, attorney, or other agent (i), with any direction in writing (k), to apply such money or any part thereof, or the proceeds or any part of the proceeds 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 anywise 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 misdemeanour; 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;

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 entrusted 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 entrusted to him, sell, negotiate, transfer, pledge, or in any manner convert to his 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 misdemeanour; and, being convicted thereof, shall be liable, at the discretion of the court, to the punishments which the court may award as herein before last mentioned."

(g) See forms, 3 Chit. Cr. Law, 701, et seq.

(h) See R. v. Walsh, 2 Leach, 1054; 4 Taunt. 258; R. & Ry. 215, S. C. which occasioned 52 G. III. c. 63, repealed by 7 & 8 G. IV. c. 27, and replaced as above.

(i) Clerk of a joint stock banking

company established under 7 G. IV. c. 46, may be convicted of embezzling the money though he is a shareholder or partner in the company, Reg. v. Atkinson, 1 C. & Mar. 525, Maule, J. (affirmed by the judges).

(k) R. v. Grove, 1 Mood. C. C. 447,

ante.

By s. 50, the enactments of s. 49 are restricted from applying to any trustees or mortgagees in respect of the trust or mortgaged property, or to any banker, attorney, or other agent, receiving money due on a security deposited in his hands, or selling any securities or effects necessary for the satisfying any lien he may have upon them.

By section 51, it is enacted, "That if any factor or agent, entrusted, for the purpose of sale, with any goods or merchandize, or entrusted with any bill of lading, warehousekeeper'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 misdemeanour, 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."

But by section 52, "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."

Indictment against an Agent for Embezzling Money and Securities (7 & 8 G. IV. c. 29, s. 49).

That on, &c. at, &c. one C. D. did entrust to one A. B., his agent in that behalf a certain large sum of money, to wit, the sum of one hundred pounds, and a cer

tain security for the payment of money, that is to say, a bill of exchange drawn by the said C. D. upon and accepted by one E. F. for the payment of the sum of one hundred and fifty pounds to the said C. D. or his order, at a day then to come, and which said sum was then unpaid and unsatisfied, the said bill of exchange being then and there the property of the said C. D. and of certain value, to wit, of the value of one hundred and fifty pounds, with directions, to the said A. B. in writing, to apply the said money, and the proceeds of the said security, for a certain purpose then and there specified in the said directions; that is to say, &c. [here state the purpose as in the written directions] (1). And the jurors, &c. that the said A. B. late of, &c. being such agent as aforesaid, afterwards, and while the said sum of one hundred pounds and the said security were so entrusted to him as aforesaid, for the purpose aforesaid, on, &c. at, &c. in violation of good faith, and contrary to the said purpose so specified in the directions as aforesaid, unlawfully, wilfully, and fraudulently, did convert to his own use the said sum of one hundred pounds, and the proceeds of the said security so to him entrusted as aforesaid against the form of the statute, &c. and against the peace, &c.

SECTION XI.

ESCAPE, POUND BREACH, AND RESCUE.

Offence.]-All escapes from lawful custody, whether effected with or without force; all failures of duty in gaolers and officers by which their prisoners escape, whether wilful or negligent; and every rescuing or attempting to rescue parties lawfully charged with crime, are offences, differing in degree according to circumstances, but punishable either as misdemeanours or as felonies. The lowest degree of offence is that of the prisoner himself, when he takes advantage of the negligence of his keeper to regain his liberty; yet even this is a misdemeanour punishable by fine and imprisonment; because the law requires of all persons to submit themselves to its judgment, and to remain in custody till delivered by lawful process (m). The breach of prison by a party in custody, for whatever offence, was felony by the common law (n); but by the statute de frangentibus prisonam (o) it was enacted, "That none from henceforth that breaketh prison shall have judgment of life or member for breaking of prison only, except the cause for which he was so taken and imprisoned did require such a judgment, if he had

(1) They must be distinctly pursued ; for if an indictment allege a specific direction to invest the proceeds of a valuable security in the funds, it will not be supported by proof of a direction to invest in the funds in the event of any unexpected accident occurring, R.

v. White, 4 C. & P. 46.
(m) 1 Hale, 611.
(n) 1 Hale, 607.

(0) 1 Ed. II. stat. 2. A "prison" may be any lawful place of imprisonment, as gaol, constable's house, stocks, &c.; 1 Hale, 609; 2 Inst. 589.