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."(v)

An indictment on the same statute alleged that the defendant had received the sum of 107. 88. as an agent for safe custody, and had embezzled the same. The defendant was the proprietor of a weekly 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 week's subscription; all

*480] 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 107. 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; third, that the indictment averred that the defendant had received the sum of 107. 8s. 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. Park, J. A. J., said, that "the three objections were, in his opinion, clearly fatal to this indietment; 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."(w)

It was held on the same repealed statute that the indictment must correctly specify the direction given to the agent; where, therefore, an indictment stated such direction as absolute, and it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 A. Hubert deposited with the defendant two exchequer bills for 500l. 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.(x) 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 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."(y)

An indictment alleged that A. Field had intrusted the defendant as her agent with a bill of exchange for £200, with a direction in writing to get the same cashed, and that the defendant converted it to his own use. A. Field had received the bill from a person abroad, with directions to send it to the defendant to get it discounted for him; she enclosed it in a letter, desiring him to get it cashed as soon as possible; but, instead of getting the bill cashed, the defendant passed it in payment of a debt of his own. It was objected that the statute required a written direction as to the disposal of the proceeds of the security, and though the statute *provided for the embezzlement of the security itself, that was only where

*481]

(v) Rex v. Prince, M. & M. 21; s. c., 2 C. & P. 517 (12 E. C. L. R.).

(w) Rex v. Mason, D. & R., N. P. 22.

(x) There was another count stating the order to be to invest in "government securities."

(y) Rex v. White, 4 C. & P. 46 (19 E. C. L. R.).

there was a written direction as to the disposal of the proceeds; and Lord Denman, C. J., held that this was the proper construction of the clause.(z)

On an indictment under the second clause of the 7 & 8 Geo. 4, c. 29, s. 49, it appeared that the prosecutor, a miller, and the defendant, a cornfactor, had had dealings for many years, in the course of which the prosecutor had been in the habit of consigning goods to the defendant for sale on commission. On the 1st of January the prosecutor consigned to the defendant eighty-eight bags of beans for sale on commission; and they were received by the defendant on the 4th, and a delivery order signed: on the 7th the prosecutor verbally ordered the defendant not to sell any of the stock, and on the 14th repeated the same order. On both occasions he went to the defendant's warehouse, took samples, and was furnished by the defendant with an account of the stock at the wharf, which included all the beans, except six bags which had been sold on the 6th. On the 21st the prosecutor sold the whole of the stock to a third person, and on going to the defendant's warehouse with a delivery order, he was informed that the defendant had sold twenty bags on the 18th, but no account of that sale had been rendered. Maule, J., held that, although originally the defendant had authority to sell, yet if the jury were satisfied that that authority had been distinctly countermanded before the sale, the offence was complete. (a)

Where an indictment alleged that the prisoner was intrusted with a certain valuable security, to wit, a certain amount of government stock, to wit, the sum of £9000 in the new three per cent. annuities, placed in the Bank of Ireland, and transferable in the books of the governor and company of the said bank, for the special purpose that the said stock should be exchanged for two portions of two other stocks; it was held that the case was not within the 9 Geo. 4, c. 55, s. 42, as such stock was not a valuable security within that clause.(b)

The prisoner was indicted, under the 20 & 21 Vic. c. 54, s. 1, for misappropriation as trustee of certain moneys, which in some counts were alleged to be held for a public purpose, and in others for the benefit of certain persons who had deposited them in the Bilston Savings' Bank. The prisoner had for several years acted as one of the trustees of the said savings' bank. In 1849 he was appointed the treasurer of the said savings' bank, and continued to act as such till 1861: on this appointment he executed a bond with sureties to the Comptroller-General of the National Debt Office. The prisoner was secretary to the bank during the same period. In 1844 certain rules for the management of the bank were duly certified.(c) The prisoner whilst he was trustee, *treasurer, and secretary of the said bank, signed five several weekly accounts; they were all signed by [*482 him as treasurer and secretary. The jury found that the prisoner was a trustee of the said savings' bank in the years 1859 and 1861, and that whilst he was such trustee of the said bank he appropriated to his own use certain sums which in those years had been paid into the said bank whilst he was such trustee with the intent to defraud, as stated in the indictment; and the question was reserved whether, upon the facts so found and those stated in the case taken together with the said rules, the prisoner was a trustee within the meaning of the 20 & 21 Vict. c. 54, s. 1, as described in any count of the indictment; and it was contended that the prisoner was not a trustee within the meaning of the Act; for, although he was called

(2) Reg. v. Golde, 2 M. & Rob. 425. But observe the different wording of the new

clause.

(a) Reg. v. Gomm, 3 Cox C. C. 64. The second branch of sec. 75, ante, p. 473, corresponds with the clause on which this indictment was framed.

(b) Reg. v. Lanauze, 2 Cox C. C. 362.

(c) These rules, so far as they were material, were made part of the case. By rule 8, "The several sums of money belonging to this institution, which the trustees thereof are authorized to invest, under the 9 Geo. 4, c. 92, or under the rules of this institution, shall be paid into and invested in the Bank of England, in the names of the Commissioners for the reduction of the National Debt, according to the provisions of the said Act, enabling the trustees to make investments in the names of the said commissioners, and no such sum of money shall be paid or laid out by the trestees in any other manner, or upon any other security whatever, except such sums of money as from time to time shall necessarily remain in the hands of the treasurer, to answer the exigencies thereof."

a trustee, yet the real relation existing between him and the depositors was that of debtor and creditor only; but it was held that there was a trust to receive the money and hold it for the benefit of the institution, and so long as it remained in his hands he held it entirely for the benefit of the depositors. It was further contended that it was not a trust for a public purpose; and the court inclined to that opinion; for the word "public" must be understood to mean such a purpose as would be recognized as public in a court of law; but the trust here was for "other persons." From the whole scope of the rules it was plain that the trustees did not hold the funds in their hands for their own individual benefit, but for the benefit of the depositors. Only trustees and depositors were spoken of in the rules as composing the institution. The money however did not belong, except in a legal sense, to the trustees; it belonged to the institution, and by the operation of the rules the trustees held it for the benefit of the institution as distinguished from themselves, that is, for the benefit of the depositors. It was further contended that the trust was not created by such an instrument in writing as was contemplated by the Act; but the court were clearly of opinion that it was. These rules were ejusdem generis with a deed or will. They gave authority to receive the money, and pointed out how it was to be invested and applied. Whatever shape an instrument may assume. if it authorize a trustee to receive money upon certain trusts, and points out the mode of investment, and generally declares the purposes to which the property is to be applied, it is an instrument ejusdem generis, that is, having the same effect, as a deed or will. If these trusts had been declared by a deed instead of by these rules, no one could have doubted that such a breach of them as has occurred here would have been within the Act. In this case, instead of executing a deed, the prisoner accepted the office of trustee under the rules. There must be an express trust created by some writing; but where that exists the case is brought within the Act. It was further urged that the prisoner *held the money as secretary *483] only; the court thought that question of little moment; for as secretary he was bound to hand over the money to the treasurer. But the jury had found that he held it as trustee, and seeing that he was secretary, treasurer, and trustee, there was good ground for saying that their finding was right.(d)

*484]

*CHAPTER THE TWENTY-FIRST.

OF EMBEZZLEMENTS OF MINOR IMPORTANCE.

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

The 55 Geo. 3, c. 137, s. 1, reciting that persons received into public workhouses for the relief of the poor, pawn and dispose of their clothes, and the goods belonging to such work houses, and that poor persons relieved by having clothes and apparel given them by the officers of parishes frequently pawn and sell the same, and that 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 sec. 2 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

(d) Reg. v. Fletcher, L. & C. 180.

(b) By 13 & 14 Vict. c. 101, s. 8.

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 [any period not less than seven days nor greater than](a) three calendar months, [and, if the justice think fit, be kept to hard labor during such imprisonment.](b) 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

By the 16 & 17 Vict. c. 107. s. 95, "if any goods shall be taken out of any warehouse without the due entry of the same with the proper officer of customs, the occupier of such warehouse shall forthwith pay the duties due upon such goods; and every person so taking out any goods without payment of duty, or who shall aid, assist, or be concerned therein, and every person who shall *wilfully [*485 destroy or embezzle any goods duly warehoused, shall be deemed guilty of a misdemeanor, and shall upon conviction suffer the punishment by law inflicted in cases of misdemeanor, (c) but if such person shall be an officer of customs or excise not acting in the due execution of his duty, and shall be prosecuted to conviction by the importer, consignee, or proprietor of such goods, no duty shall be payable for or in respect of such goods, and the damage occasioned by such waste, spoil, or embezzlement shall, with the sanction of the Commissioners of the Treasury, be repaid or made good to such importer, consignee, or proprietor by the Commissioners of Customs."(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 laborers 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 color of his office, and in dereliction of his duty as surveyor of the highways.(ƒ)

*CHAPTER THE TWENTY-SECOND.

[*486

OF EMBEZZLEMENT BY OFFICERS AND SERVANTS OF THE BANK OF ENGLAND, AND BY PUBLIC OFFICERS.

By the 24 & 25 Vict. c 96, s. 73, "whosoever, being an officer or servant of the governor and company of the Bank of England or of the Bank of Ireland, and being intrusted with any bond, deed, note, bill, dividend warrant, or warrant for payment of any annuity or interest, or money, or with any security, money, or other effects of or belonging to the said governor and company, or having any bond, deed, note, bill, dividend warrant, or warrant for payment of any annuity or interest, or money, or any security, money, or other effects of any other person, body politic or corporate, lodged or deposited with the said governor and company, or with him as an officer or servant of the said governor and company, shall secrete, embezzle, or run away with any such bond, deed, note, bill, dividend or other warrant, security, money, or other effects as aforesaid, or any part thereof, shall be guilty of felony,

(a) By 7 & 8 Vict. c. 101, s. 58.

(c) See vol. 1, p. 92.

(b) By 13 & 14 Vict. c. 101, s. 8.

(d) The 3 & 4 Wm. 4. c. 57, was repealed by the 8 & 9 Vict. c. 84, s. 2.

(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. 200, et seq., as to offences by persons in office.

and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(a)1

It seems that a note once cancelled by the bank was 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 had access to the "file of cancelled notes, could not 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 showing 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 pri soner was so entrusted 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, *487] although he had access to it.(b) An indictment on this statute charging the prisoner with embezzling “certain bills, commonly called exchequer bills," was held to fail, as 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 authorized 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, 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 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 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. (c)

But another indictment was preferred against the prisoner, which described the exchequer bills in question as effects belonging to the governor and company of the Bank of England: stating the effects, in the first count, as paper writings, purporting to be exchequer bills; in the second, as certain papers upon the credit whereof the bank had advanced a large sum of money; and in the third, as certain papers, &c., purporting to be bills commonly called exchequer bills; and in other counts, the exchequer bills in question were called securities instead of effects. It was objected by the counsel for the prisoner, before any evidence was called on the part

(a) This clause is framed from the 37 Geo. 3, c. 46, s. 6; 2, c. 13, s. 12; 4 & 5 Vict. c. 56, ss. 1, 4; 21 & 22 Geo. 3, c. 2, c. 28, s. 4 (I.). As to hard labor, &c., see ante, p. 67. Scotland.

35 Geo. 3, c. 56, s. 6; 15 Geo. 16, s. 16 (I.), and 5 Vict. Sess. The Act does not extend to

(b) Rex v. Bakewell, MS., Bayley, J., and R. & R. 35; 2 Leach 943, and noticed by Le Blanc, J., 2 Leach 962, and there said to have gone off upon another point. The cancelling was effected merely by a punch through.

(c) Aslett's (first) case, 2 Leach 954, Macdonald, C. B., Rooke, J., and Lawrence, J.

1 The provision in the Revised Statutes of Massachusetts, c. 126, s. 27, for the punishment of embezzlement committed by any cashier "or other officer" of a bank, includes embezzlement committed by the president and directors: Comm. v. Wyman, 8 Metc. 247.