The allegations in the indictment were clearly substantiated in evidence, and the jury found the prisoner guilty.

No objection to the indictment was taken by the prisoner's counsel, but a doubt occurred to the mind of the learned CoмMON SERJEANT, whether as neither of the statutes respecting this offence, viz. 5 G. 1. c. 27. (a) and 23 G. 2. c. 13. (b) gave any authority to prefer such an indictment at a general session of the peace or at a general session of oyer and terminer, unless at the assizes, there had not been a mis-trial, he respited the judgment, and reserved the point for the consideration of THE Judges.

In Michaelmas term, 1809, THE JUDGES met, when they were of opinion that the statutes 5 G1. c. 27. and 23 G. 2. c. 13. gave no authority to prefer an indictment at such a session. Judgment was arrested. (c)

1809.

HEWITT'S
Case.

(a) By the first section it is enacted, that if any person shall entice, &c. any manufacturer or artificer of Great Britain to go out of this kingdom into any foreign country out of His Majesty's dominions, and shall be convicted thereof upon any indictment or information which shall be preferred or brought against him or them in any of His Majesty's courts at Westminster, or at the assizes, a general gaol delivery, or quarter sessions of the peace for the county, riding, or division where such offence shall be committed, the person so convicted shall be fined, &c.

(b) The first section enacts, that if any person shall contract with, &c. or seduce any manufacturer, workman or artificer, of or in any manufactures of Great Britain or Ireland, to go out of this kingdom, or out of the kingdom of Ireland, into any foreign country not within the dominions of or belonging to the crown of Great Britain, and shall be convicted thereof upon any indictment or information to be preferred or brought against him in His Majesty's court of King's Bench at Westminster, or by indictment at the assizes or general gaol delivery for the county, riding, or division wherein such offence shall be committed, the person convicted shall forfeit, &c.

(c) Vide 5 G. 4. c. 97. By which the above statutes of 5 G. 1. c. 27. and 23 G. 2. c. 13. are repealed.

1809.

Embezzlement.

Although property has been in the possession of the prisoner's masters, and they only entrust

such property to a third person to try the honesty of their servant.

THE

REX v. WILLIAM HEADGE.

HE prisoner was tried and convicted before Mr. JUSTICE BAYLEY, at the Old Bailey sessions, September, 1809, on the statute 39 G.3.c.85. (a) for embezzling three shillings which he received for and on account of his masters, James Clarke and John Giles.

It appeared from the evidence, that the prosecutors desired the custody of a neighbour, one Francis Moxon, to go to their shop and purchase some articles, in order that they might discover whether the pri soner put the money which he received for the goods sold into the till; the prosecutors supplied Moxon with three shillings of their own money for this purpose, which money they marked Moxon went to the shop, bought the articles, and paid the prisoner the three shillings. The prisoner embezzled this money.

If the servant receives it from such third person and embezzles it, it is an offence under the statute. Semble, that the 39 G.3.

c. 85. does not

apply to cases

which were larceny at common law.

S. C. 2 Leach.

C. C. 1033.

It was urged on behalf of the prisoner, that the prosecutors had constructively the possession of this money up to the time of the embezzlement, and that they had parted with nothing but the mere custody. The prisoner, it was contended, might have been indicted for larceny at common law, but that the statute did not apply to cases where the money before its delivery to the servant had been in the master's possession, and might legally be considered the masters' at the time of such delivery, as Moxon, in this case, was the masters' agent, and his possession theirs.

THE LEARNED JUDGE, before whom this case was tried, thought it deserved consideration, and reserved the point for the opinion of THE Judges.

(a) Which enacts, that if any servant or clerk, or any person employed for the purpose in the capacity of a servant or clerk to any person whomsoever, shall, by virtue of such employment, receive or take into his possession any money, goods, &c. or effects, for or in the name or on the account of his master or employer, and shall fraudulently embezzle, secrete, or make away with the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or employer, for whose use or in whose name, or on whose account the same was or were delivered or taken into the possession of such servant or clerk, or other person so employed, although such money, goods, &c. was or were so taken or received into the possession of his or their servant, clerk, or other person so employed.

In Michaelmas term, 1809, THE JUDGES met, and held the conviction right, upon the authority of Bull's case (a), in which THE JUDGES, upon similar facts, held a common law indictment could not be supported. It seemed to be the opinion of THE JUDGES that the statute did not apply to cases which are larceny at common law.

1809.

HEADGE'S

Case.

REX v. CHARLES HENRY RAVENSCROFT.

TE prisoner was tried before Mr. JUSTICE LE BLANC, at the Old Bailey sessions, June, 1809, on an indictment charging him in one count with forging, and in another count with uttering, knowing it to be forged, a certain order for payment of money, as follows, viz.

"Gent"

1809.

The prisoner drew a bill, the bearer on

"Please to pay

demand 15l." and signed it: with his own name, but it ::

"London, April 24, 1809. was not ad

"Please to pay the bearer on demand fifteen pounds and accompt it to

"Your humble servant,

"CHARLES H. RAVENSCRoft.

dressed to any one: there

were forged upon this in-.. strument,

when uttered, . the words and

"Payable at Messrs. Masterman & Co.

"White Hart Court,

"WM. MINERHENEY."

with intent to defraud Richard Wilson.

There were other counts stating the intent to be to defraud M'Inerheny.” Francis Wilson and William M'Inerheney; and other counts stating the intent to be to defraud the partners in Masterman's banking

house.

M'Inerheny kept cash at Masterman &

Co.'s, who were bankers. The JUDGES

There was another set of counts calling it a bill of exchange held this was

instead of an order for payment of money.

The evidence was very clear and satisfactory of the prisoner

having uttered this instrument knowing it to be forged.

not an order money, there for payment of

being no special averments

The jury found the prisoner guilty on the count charging him in the indict

with uttering it knowing it to be forged.

ment that this was intended

for an order, or that Masterman & Co. were bankers.

(*) Cited in Bazeley's case, 2 Leach, C. C. 841. S. C. 2 East, P.C. notis.

M

1809.

RAVENSCROFT's Case.

A doubt occurred whether this instrument or so much of it as was a forgery fell within the description of an order for payment of money or of a bill of exchange; and supposing it to be properly described as one or the other, whether, inasmuch as there was no stamp, the want of addition of place to that part where it is made payable at Masterman's and Co. rendered the instrument invalid, and was an objection which the prisoner might take advantage of on this indictment.

Upon these objections the case was submitted to the consideration of THE JUDGES.

The evidence so far as is material to render the objections intelligible was as follows:

The prisoner sometime before the uttering the instrument in question, had applied to Francis Wilson and WilliamM'Inerheney, who were navy agents in the Adelphi, representing himself under an assumed name, as an assistant surgeon in the navy, and as such entitled to some pay. He requested Wilson and M‘Inerheney to be his agents, and to advance him 201. They agreed to comply with his request, and the prisoner by their direction drew a check on them addressed to Wilson and M'Inerheney for 20l.; M'Inerheney wrote on the check in red ink, “ Payable at Messrs. Masterman's and Co., William M'Inerheney," and delivered it to the prisoner, who under that order received the money of Masterman and Co., who were the bankers of Wilson and M'Inerheney. It was proved that this was the usual mode of Wilson and M'Inerheney drawing on their bankers for the purpose of paying persons to whom they were agents.

66

The prisoner having by means of this transaction got acquainted with the agents' mode of drawing on their bankers, as well as of their mode of making checks drawn on them payable at their bankers', afterwards uttered the order for 157. stated in the indictment to one Richard Wilson, which on its being presented at Masterman's and Co. was paid, the forgery of the name William M'Inerheney not being at first discovered.

The instrument in question differed from the usual form of the drafts which Wilson and M'Inerheney made payable at their bankers in this particular, that the draft did not appear to be drawn on Wilson and M'Inerheney, but that would have been no objection to its being paid by Masterman and Co. if they were satisfied that the name of William M'Inerheney subscribed to the

words "payable at Messrs. Masterman's and Co." was in his hand-writing.

In Michaelmas term, 1809, THE JUDGES met, and the majority, viz. BAYLEY J., CHAMBRE J., LE BLANC J., LAWRENCE J., THOMSON B., GROSE J., HEATH J., MACDONALD C. B., and LORD ELLENBOROUGH were of opinion this instrument was not "an order for the payment of money." WOOD B., GRAHAM B., and MANSFIELD C. J. held that it was.

1809.

RAVENSCROFT's Case.

REX v. ROBERT HENCH.

1810.

who had

THE prisoner was tried at the Old Bailey October sessions before The prisoner pretending to JOHN SILVESTER, Esq., RECORDER, for stealing on the 5th of be the servant October, 1809, at Saint Catherine Coleman, one chest value one shilling, and fifty-nine pounds weight of tea value twenty pounds, the property of James Layton and William James Thompson. There was another count in the indictment laying the property in the united company of merchants of England trading to the

East Indies.

It appeared that Layton & Co., who were tea brokers, purchased the chest of tea in question, No. 7100, at the East India House, but did not take it away.

It was proved by a witness, a labourer in the service of the East India company, that on the 5th of October, 1809, he had the care of the request notes, and that on that day he saw the prisoner go to the Excise box, the place where they were kept, and take out a handful and select one of them. The prisoner then went with the paper in his hand to look for the chest No, 7100. The witness went up to him and asked him what he wanted; he then took the paper out of the prisoner's hand, and seeing the number 7100 he pointed to a chest with a corresponding number, and said that was the chest he wanted; he then returned the request paper to the prisoner in order that he might go to the permit office and get a permit. The prisoner went to the permit office and returned with the permit. The witness then took the permit out of his hand, and asked him whose porter he was, and the

of a person bought a chest of tea deposited at the Com

pany's warehouse, got a

request paper and permit for the chest, and

took it away with the assent of a person in the IndiaCom. pany's service

who had the

charge of it, THE JUDGES,

on a case re

served, held

this felony.