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." By the provisions of section 50, this enactment is restricted from applying to any trustees or mortgagees in respect of the trust or mortgaged property, 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 docu ments, 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 certain 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] (h). 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. Indictment against a Banker, for negotiating a Bill deposited with him for safe Custody (7 & 8 G. IV. c. 29, s. 49). That on, &c. at, &c. one C. D. did entrust to A. B., his banker and agent in that behalf, for safe custody, a certain valuable security, that is to say, a bill of exchange (h) 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. 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 bis order, and then due and unsatisfied, the said bill of exchange being then and there the property of the said C. D., and of the value of one hundred and fifty pounds, without any authority to sell, negotiate, transfer, or pledge the same; and the jurors, &c. that A. B., late of, &c. while he was such banker and agent as aforesaid, and while the said bill of exchange so was entrusted to him as such banker and agent for safe custody as aforesaid, to wit, on, &c. at, &c. did unlawfully, wilfully and fraudulently negotiate, transfer, and convert the said bill of exchange to and for his own use and profit, against the form of the statute, &c. and against the peace, &c. Indictment against a Factor for pledging the Wine and Dock Warrants of his Principal (7 & 8 G. IV. c. 29, s. 51). That on, &c. at, &c. one C. D. did entrust to one A. B., then and there being a factor and agent, and then and there being employed by the said C. D. as his factor and agent, ten pipes of port wine, and ten warrants and orders of the London Dock Company for the delivery of the same port wine, belonging to the said C. D. and of great value, to wit, of the value of five hundred pounds, for the purpose of the sale thereof by the said A. B. as such factor and agent as aforesaid, for and on account and for the benefit of the said C. D. And the jurors, &c. that the said A. B. late of, &c. being such factor and agent as aforesaid, while he was employed by the said C. D. as his factor and agent as aforesaid, and while the said ten pipes of port wine, and the said ten warrants and orders so entrusted to him by the said C. D. for the sale thereof as aforesaid, afterwards, to wit, on, &c. at, &c. did unlawfully, knowingly, and fraudulently, for his own benefit, and in violation of good faith, deposit and pledge the said ten pipes of port wine and the said ten warrants and orders with one E. F. as a security for a certain sum of money, to wit, the sum of two hundred pounds, by the said A. B. at the time of his so making the said deposit and pledge borrowed and received of and from the said E. F., against the form of the statute, &c. and against the peace, &c, SECTION XII. ESCAPE 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 (i). The breach of prison by a party in custody, for whatever offence, was felony by the common law (j); but by the statute de frangentibus prisonam (k) 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 been convicted thereupon according to the law and custom of the realm." Thus for a prisoner to break prison who is in custody on a capital charge is still felony, if the actual escape is proved (); but, when in custody on a minor charge it is now a misdemeanour, punishable with fine and imprisonment in the discretion of the court. Escapes permitted by Officers.]-Whenever an officer, having a party lawfully in his custody, on a charge of felony, voluntarily permits him to escape, the officer is involved in the legal guilt of the crime charged on his prisoner (m). Where he negligently permits a prisoner to escape, which is defined to be where he omits to make fresh pursuit after him, he is guilty of a misdemeanour. And he is guilty, in this degree, if, from his negligence, a prisoner in his charge commits suicide, against which it is his duty to guard (n). But to constitute an indictable escape, either in the party or in the officer, there must be an actual and legal arrest previously made for a criminal matter; and, therefore, if an officer, having a warrant to arrest a man, see him shut up in a house, and challenge him for his prisoner, but never have him actually in his custody, and the party gets free, this is no escape in either (0). It is, however, an offence in any person wilfully to throw obstacles in the way of a lawful arrest on a criminal charge, and in a case of felony would constitute the party so offending an accessory (p). with whipping, once, twice, or thrice, if (m) Hawk. b. 2, c. 19, s. 40. Rescue by third Persons.]—Rescue is where a third person procures or assists the escape of a prisoner; and this is at the least criminal in the same degree with the act of a party breaking prison. In case of treason, a stranger rescuing a traitor is himself guilty of treason (q); in case of felony, he is guilty of felony, if the principal be convicted; and in all cases he is guilty of a high misdemeanour at common law, for which he may be prosecuted, whatever may be the fate of the party whom he aided (r). At common law, unsuccessful attempts to procure the escape of a felon were not felonies (s), and the 16 G. II. c. 31, was passed to provide further security in this respect. By that statute, s. 1, it is enacted, that "if any person shall by any means whatsoever be aiding or assisting any prisoner to attempt to make his or her escape, from any gaol, although no escape be actually made, in case such prisoner then was attainted or convicted of treason, or any felony, except petty larceny, or lawfully committed to or detained in any gaol for treason or any felony, except petty larceny, expressed in the warrant of commitment or detainer, every person so offending, and being thereof lawfully convicted, shall be deemed and adjudged guilty of felony, and shall be transported for the term of seven years; and in case such prisoner then was convicted of, committed to or detained in any gaol for petty larceny or any other crime, not being treason or felony, expressed in the warrant of commitment or detainer as aforesaid, or then was in gaol upon any process whatsoever, for any debt, damages, costs, sum or sums of money, amounting in the whole to the sum of one hundred pounds, every person so offending as aforesaid, and being thereof lawfully convicted, shall be deemed and adjudged to be guilty of a misdemeanour, for which he or she shall be liable to a fine and imprisonment." The second section further provides, "That if any person shall after the same day convey or cause to be conveyed into any gaol or prison, any vizor or other disguise, or any instrument or arms, proper to facilitate the escape of prisoners; and the same shall deliver, or cause to be delivered, to any prisoner in any such gaol, or to any other person there, for the use of any such prisoner, without the consent or privity of the keeper or under-keeper of any such gaol or prison; any such person, although no escape or attempt to escape be actually made, shall be deemed to have delivered such vizor or other disguise, instrument, or arms, with an intent to aid and assist such prisoner to escape or attempt to escape; and in case such prisoner then (q) Hawk.b. 2, c. 21, s. 7. (r) Hawk. b. 2, c. 21, s. 6. (s) R. v. Tilley, 2 Leach, 671; R. v. Stanley, Russ. & R. C. C. 432. |