defendant to the plaintiff, as such sheriff, upon and for the plaintiff's having, as such sheriff, granted divers warrants to divers officers, upon and for the execution of the said writ and writs for the defendant, and at his request." Second count upon an account stated. Plea, Nunquam indebitatus. On the part of the plaintiff, a writ of capias ad satisfaciendum, dated the 27th of August, 1842, directed to the Sheriff of Berkshire, to take John Groves, at the suit of Felton Matthews, indorsed, "Take to satisfy 1437. 19s. and interest thereon, as within," was put in; this writ being admitted under an order of Baron Alderson, upon a notice to admit, in which it was described as follows:-" Writ of capias ad satisfaciendum, issued out of her Majesty's Court of Exchequer of Pleas, against John Groves, at the suit of the above-named defendant, directed to the Sheriff of Berkshire (a), date, 27th of August, 1842." Original." It was proved by a sheriff's officer, named Stephens, that Mr. Bunbury, the plaintiff, had acted as High Sheriff of Berkshire from the month of February, 1842, to the month of February, 1843, and that Mr. Barnes had acted as Mr. Bunbury's under-sheriff during that time. This witness also produced and put in the sheriff's warrant, founded on the before-mentioned writ, to take John Groves. He stated that he received the warrant from Mr. Barnes, the under-sheriff, on the 29th of August, 1842, and took John Groves upon it on the 3rd of January, 1843. The warrant was in the usual form, and concluded, "Given under the seal of my office," &c. The scal was merely a small square piece of blue paper, wafered on to the warrant, and impressed with a wafer stamp. The witness Stephens, being asked by John Gray, for the defendant, whether he knew this to be the seal of the (a) The words "being the above-named plaintiff" were here originally inserted in the notice to admit, but were struck out before 1844. BUNBURY v. MATTHEWS. 1844. BUNBURY v. MATTHEWS. sheriff's office, stated that he did not know that it was so, but that this warrant was precisely similar to all others that he had received during the shrievalty of Mr. Bunbury; and that he had received it from Mr. Barnes, who had always acted as Mr. Bunbury's under-sheriff; the warrant being then in the same state as when produced and given in evidence. John Gray, for the defendant.-This warrant is not proved to be under the seal of the sheriff. The warrant says, "Given under the seal of my office;" but the seal does not purport to be the seal of any one; and the witness does not know it to be the seal of the sheriff or of his office. PARKE, B.-I think, as he received it from the undersheriff, and as it is similar to all the other warrants he received, that is sufficient proof of the seal. Carrington, for the plaintiff, proposed to put in the duplicate warrant of appointment of the plaintiff as Sheriff of Berkshire, signed by the clerk of her Majesty's Privy Council, and deposited in the office of the clerk of the peace, under the stat. 3 & 4 Will. 4, c. 99, ss. 3 & 4. PARKE, B.-It is unnecessary. The evidence you have already given that the plaintiff acted as sheriff is quite sufficient. The evidence was not given. John Gray, for the defendant.-By the stat. 5 & 6 Vict. c. 98, s. 31, it is enacted, "That, after the 1st day of March, 1843, no poundage shall be payable to sheriffs, bailiffs, and others, for taking the body of any person in execution,” but there shall be payable to the sheriff or other person having the return of writs such fees only as shall be allowed by the authority of the judges under the stat. 7 Will. 4 & 1 Vict. c. 55. This provision is not limited to cases where the execution is sued out, and the party taken after the 1st of March, 1843, but is a general enactment that no poundage shall be payable after that day. PARKE, B.-I think that that enactment means that no poundage is to be payable for what is done after that day, and that it does not apply to this case, where the party was taken in execution before the 1st of March, 1843. But, even if your construction of the statute be the correct one, you cannot avail yourself of it as a defence under your present plea of nunquam indebitatus; because, even according to your own construction of the act, the defendant was at one time indebted to the plaintiff, namely, from the 3rd of January, 1843, to the 1st of March, 1843, and that being so, the plea of nunquam indebitatus is improper, and the defendant should have pleaded specially. There must be a verdict for the plaintiff. Verdict for the plaintiff for 67. 6s.; that being Carrington and Tyrwhitt, for the plaintiff. John Gray, for the defendant. [Attornies-Barnes, and Chamberlen.] 1844. BUNBURY V. MATTHEWS. 1844. (Crown Side). BEFORE MR. JUSTICE COLERIDGE. March 1st. of a servant, authorized to er, to account REGINA V. JACKSON. It was the duty EMBEZZLEMENT.-The first count of the indictment charged, that the prisoner, being the servant of Elizabeth receive money Dolby, received for her, by virtue of his employment, the sum of 37. 98. 6d. on the 4th of November, 1843, and on the evening feloniously embezzled the same; second count, for emof every day for the money re- bezzling a sum of 47. 9s. 8d. on the 29th of September, 1843; third count, for embezzling a sum of £1 on the 18th of December, 1843; fourth count, for a larceny. to his employer ceived during the day by him for his employer, and to pay over the amount. He received three sums for his employer on three different days, and neither accounted for those sums, nor paid them over. He never denied the receipt of them, It was proved that the prisoner was, at all the times mentioned in the indictment, the servant of Mrs. Dolby, who was a baker at Winkfield; and that the prisoner was authorized to receive money due to her from her customers. It was also proved that, on the 4th of November, 1843, the prisoner received the sum of 37. 9s. 6d. of Mary Taff, the servant of Mr. Briant, a customer of Mrs. Dolby, in pay. ment for bread supplied to him by her; that the prisoner or rendered any also received the two other sums mentioned in the indictment, at the respective times mentioned in the indictment, of Mr. Strickland, and of Harriet Rowlinson, the servant of Mr. Thomas Ward, in payment for bread supplied by the prosecutrix. written account in which they were omitted: Held, that, if the servant wilfully omitted to account for these sums, and pay them over on the respective days on which he received them, these were embezzlements, and that such wilful omissions to account and pay over were It was further proved by Mrs. Dolby, that the prisoner had never accounted to her for either of these sums, or for any part of them, and had never paid any part of them over to her. In her cross-examination, Mrs. Dolby stated, that the prisoner had never denied the receipt of either of equivalent to a denial of the receipt of them. these sums, and had never delivered any account in writing in which they were omitted; but, in re-examination, she said, that it was not the duty of the prisoner to deliver to her written accounts of what he received, but that it was the duty of the prisoner, on the evening of every day, to render an account to her of all the monies that he had received on her account in the course of that day, and immediately pay over to her the amount. J. Jeffreys Williams, for the prisoner. I submit that this is no embezzlement. There is no denial of the receipt. of either of these sums, and the omission by a clerk or servant to pay over monies he has received is not embezzlement. This appears from the cases of Rex v. Hodgson (a) and Regina v. Norman (b). COLERIDGE, J.-What Mrs. Dolby said in her re-examination puts an end to this objection. She says that it was the duty of the prisoner every evening to account for and pay over to her all monies received by him for her in the course of the day. If he wilfully omitted to do that, I am clearly of opinion that that is quite equivalent to a denial of the receipt of the money. Carrington, for the prosecution. J. Jeffreys Williams, for the prisoner. Verdict-Guilty. 1844. REGINA v. JACKSON. |