prisoner to drive sheep to a market where he was to meet the prosecutor, and the prisoner, instead of doing so, sold the sheep and appropriated the produce, it was held that he was guilty of larceny, although the jury found that he did not intend to steal the sheep at the time he took them into his possession. For the prosecutor parted with the custody only and not with the possession of the sheep, and the prisoner's possession was the possession of the owner. R. v. Bernard M'Namee, R. & M. C. C. 368.

Where B. and G. were both indicted for larceny, as principals, it appeared that the prisoner B., being in the service of the prosecutor, was sent to deliver some fat, but he did not deliver the whole, having previously given part of it to G. It was held that the fat was in the master's possession until the separation, and that if G. were present at the separation he would be a principal, otherwise a receiver. R. v. Butteris and Grove, 6 C. & P. 147. Gurney, B.

Page 776. § 15.-A servant sent by his master to get change for Embezzling a note, who embezzles the change, is not liable at common law for change not larstealing it, but must be indicted now under the 7 & 8 G. 4. c. 29. ceny. s. 47. R. v. Wm. Sullens, Ry. & M. C. C. 129.

Embezzlement under 7 & 8 G. 4. c. 29. ss. 47. & 48.

Page 778. § 21.-In the case of R. v. Bootyman, Littledale, J. Particular of granted an order for the delivery by the prosecutor to the prisoner charges. of a particular of the several charges of embezzlement intended to be brought against him. R. v. Bootyman, 5 C. & P. 300.

Page 778. § 27. If money be paid to a servant, and he embezzles it, he will be liable to an indictment under 7 & 8 G. 4. c. 29. s. 47. although the payment was made by one of a class of the master's customers of whom the master did not authorize the servant to receive money. R. v. Williams, 6 C. & P. 626. O. B. S.

If a servant receive money in the name of his employers, but without having any authority so to do, he is not guilty of embezzlement within the meaning of 7 & 8 G. 4. c. 29. s. 47. R. v. John Thornley, R. & M. C. C. 343.

So where the prisoner had been hired by the prosecutor to lead a stallion, and to charge 30s. for each mare, and not to take less than 20s. The prisoner made a charge of 6s. only for a mare, and appropriated the money to his own use. It was held that the prisoner did not receive the 6s. by virtue of his employment, and therefore was not guilty of embezzlement within the meaning of 7 & 8 G. 4. c. 29. s. 47. R. v. Snowley, 4 C. & P. 390. Parke, J. and Littledale, J.

Money received rity.

without autho

Page 778. § 28. Where the prosecutor having sold a cow sent Servant pro hae the prisoner (a drover occasionally employed by him) to deliver it vice. and bring back the money, but he was to receive no extra reward beyond his hire for driving;-the prisoner having appropriated the money to his own use; it was held that he was guilty of embezzlement within the meaning of 7 & 8 G. 4. c. 29. s. 47. R. v. Henry Hughes, R. & M. C. C. 370.

Persons appointed by a leet jury and sworn in by the steward to Chamberlain of the annual customary office of chamberlains of certain commonable commonable lands belonging to the freemen of a corporation, the profits of which lands.

Collector of sa

the chamberlains were to receive and account for before two aldermen, paying over any surplus to their successors, and for which they received no salary, are not clerks, servants, or persons employed in that capacity within the meaning of 7 & 8 G. 4. c. 29. s. 47. Williams v. Stot, 3 Tyr. 688.

Page 779. § 34.-In an indictment for embezzlement under the crament money. 7 & 8 G. 4. c. 29. s. 47., the person employed to collect the sacrament money from the communicants, cannot be considered as the servant of the minister, the churchwardens, or the poor. R. v. John Burton, Ry. & M. C. C. 237.

Where the re

ceiving amounts to larceny.

The treasurer of a charity school (the funds, management, &c. of which were vested in a committee) sent the master of the school with written directions to receive a sum of 157. being a voluntary contribution in aid of the funds of the school, which he received and embezzled. The schoolmaster's duty was to teach the charity children only, and it was no part of his duty to receive contributions.— It was held that an indictment would not lie under this section of the act, inasmuch as the prisoner did not stand in such a relation to the treasurer or the committee, as to bring him within the act. R. v. Wm. Nettleton, R. & M. C. C. 259.

Page 779. § 36.-Where the prisoner, a clerk in the employment of the prosecutor, received money of the prosecutor's from another clerk in the same employment, a part of which he embezzled; it was held that the case was not within the meaning of 7 & 8 G. 4. c. 29. s. 47. R. v. John Murray, R. & M. C. C. 276. 5 C. § P. 145. S. C.

VI. Of the Ownership of the Goods in respect of which Larceny may be committed.

Page 781. § 1.-Where an indictment for larceny charged the prisoner with stealing a cow and a heifer, "of the cattle, goods, and chattels, J. S. O." omitting the word "of" immediately before the prosecutor's name. It was held that there was no allegation of property, and therefore that the indictment did not describe any offence known to the law. R. v. Joseph Lambert, Northumberland Spring Assizes, 1835. Alderson, B. MS.

Page 781. § 2.-To support an indictment for larceny, there must be such a possession as would enable the prosecutor to maintain trespass. Per Littledale, J. in R. v. J. M. Hart, 6 C. & P. 106.

Page 781. § 3.—A friendly society was held at a public house kept by the prisoner's husband, he being a member of the society, and the society's box containing money, &c. the property of the society was left at the public house. The box had four locks, the keys of which were kept by the stewards, of whom the husband was The prisoner having broken open the box and stolen between 301. and 401. out of it, it was held that she was not guilty of larceny. R. v. Sarah Willis, R. & M. C. C. 377.

one.

Page 785. § 18.—And where the prisoner had stolen goods belonging to a person deceased, who had died leaving a will, but the executor did not accept probate, and the goods were stolen before

the grant of administration with the will annexed, it was held that the goods ought to have been laid as the property of the ordinary and not of the administrator. R. v. George Smith and Ann Smith, 7 C. & P. 147. Coleridge, J. and Bolland, B.

Page 785. § 19. Property belonging to the trustees of a Metho- Trustees, &c. dist society, may be laid as the property of one of the trustees and others. R. v. Boulton, 5 C. & P. 537. Parke, J.

In a case where the prisoner was charged with stealing the box of a friendly society, the property was laid in one of the four stewards of the society in all counts of the indictment but the last, and in that it was laid in the landlord of the public house where it was kept, it was held that the case must rest on the last count alone. R. v. Wymer, 4 C. & P. 391. Parke, J.

VII. Of the Indictment, Trial, and Evidence.

A prisoner was convicted upon an indictment containing two Indictment. counts, the first for embezzlement, and the second for larceny. The first count could not be supported, the case not being within 7 & 8 G. 4. c. 29. s. 47. and in the second count the larceny was stated to have been committed in manner and form aforesaid." An objection was taken to the latter count that it was not a count for larceny, but merely an imperfect count for embezzlement, and that the words "in manner and form aforesaid," being a material averment, could not be rejected as surplusage. Judgment was respited, to take the opinion of the judges, who held the objection fatal. R. v. Murray, 5 C. & P. 145.

Page 787. § 9.-In a case of larceny where the prisoner stole the property in the island of Jersey, and afterwards brought it into England, it was held that he could not be convicted of larceny, the case not being within the meaning of 7 & 8 G. 4. c. 29. s. 76. R. v. George Prowes, R. & M. C. C. 349.

Property stolen in Jersey and brought into

England.

Where an indictment for larceny of a bank note did not conclude Conclusion contra formam statuti, the fifteen judges held that it was bad for contra formam the omission. R. v. William Pearson, 4 C. & P. 572., and S. C. statuti. 5 C. & P. 121.

upon

for his

Proof of pre

vious convic

tion.

Page 788. § 12.-The judges have determined that upon the trial of an indictment for larceny after a previous conviction; the previous conviction must be proved before the prisoner is called defence. Per Park, J. in R. William Jones, 6 C. & P. 391. In a case of larceny for stealing a box, the property in which was Evidence of laid to be in the prosecutor, it appeared that the box belonged to a property. friendly society, and was deposited in the house of the prosecutor when the society met; it was held that there was sufficient evidence

to go to the jury of the property being in the prosecutor alone. R.

v. Wymer, 4 C. & P. 391. Parke, J.

Upon an indictment for stealing several articles, it is no ground Election of profor confining the prosecutor's proof to some of the articles, that they secutor.

might have been, and probably were, stolen at different times; if

they might have been also stolen all at once. R. v. Dunn and Smith,

Ry. & M. C. C. 146.

And see Election of Prosecutors, ante, p. 1582.

11 G. 4. &

1 W 4. c. 73. Banishment abolished.

Recognizances

as to news

papers.

Extent against newspaper

ties.

Libel.

Page 791.

By 11 G. 4. & 1 W. 4. c. 78. s. 1. so much of the 60 G. 3. c. 8. as relates to the sentence of banishment, for the second offence of publishing a blasphemous or seditious libel, is repealed.

By sect. 2. The amount of the recognizances and bonds to be given by persons publishing newspapers and pamphlets is increased; namely, to 4007. for the principal, and the like sum for the sureties, in any new recognizance; and 3001. for the principal, and the like sum for the sureties in any such new bond; and the conditions of such recognizances and bonds are to extend to secure the payment of damages and costs recovered in actions for libels published in such newspapers and pamphlets, as well as to secure the fines on conviction when indicted.

And by sect. 3. If the plaintiff in an action for libel against any editor, conductor, or proprietor, shall make it appear by affidavit to the court of exchequer, that he is entitled to have execution upon a judgment in such action, but that he has not been able to procure satisfaction by writ of execution; the court may order such proceedings to be had upon such recognizances or bonds, as would be taken to obtain any fines due to the king; but the expense of these proceedings is to be exclusively borne by the plaintiff.

It has been decided that a plaintiff who recovers damages in an action against the editor of a newspaper for a libel, cannot have an editor and sure- extent against the defendant and his sureties under sect. 3. of the above statute, unless the court is satisfied from the facts detailed by affidavit, that the plaintiff has used due diligence and has not been able to obtain satisfaction from the defendants' goods. Merely stating the issuing of a writ of fi. fa. and a return of nulla bona is insufficient. Pennell v. Thompson, 3 Tyr. 823.

What is.

Confidential

communication.

II. Of Libels on Private Individuals.

Page 799. § 4.-It is a libel to publish of a protestant archbishop, that he attempts to convert catholic priests by offers of money and preferment; for it is an immoral action to endeavour to persuade any one thus to abandon his religious creed, not by reasoning, but by a gross bribe. Archbishop of Tuam v. Robeson, 5 Bing, 17.

III. What is a Justification.

Page 805. § 12.-Though a letter from a merchant to his correspondent contain very strong expressions concerning third persons engaged in mercantile transactions, imputing to such persons "notoriety for every thing but fair dealing and a strict adherence to their engagements;" yet, if the letter was written confidentially, those expressions will not, per se, take away the privilege which attaches to such a communication, and make the latter a libel.

Ward v. Smith, 4 C. & P. 302. Tindal, C. J. But on a motion for a new trial in this case, on the ground that the defendant had himself agreed to deal with the very persons, whose character he thus reflected on, and even to take their bills,—and, therefore, that it was impossible to suppose that the letter could have been written bona fide for honest purposes;-the court thought the case proper to be submitted to another jury. 6 Bing. 749. S. C.

Page 806. § 13.-In an action for a libel, in the form of a hand- Bonâ fide statebill offering a reward for the recovery of certain bills of exchange, ment. and stating that A. B. was suspected of having embezzled them; it was held a good defence, that the hand-bill was published solely with a view to the protection of persons liable on the bills, or to the conviction of the offender. And evidence is admissible in such case, that the party publishing the hand-bill followed it up, by preferring a charge of the same nature against A. B. before a magistrate. Finden v. Westlake, 1 M. & M. 461. Tindal, C. J.

Page 807. § 17.-It is no justification for publishing a libel in Words spoken a newspaper, containing a story of an individual calculated to ren- by a person of der him ludicrous, that he told the same story of himself; for himself. there is a great difference between a man's telling a ludicrous story of himself to his own acquaintance, and a publication of it to all the world through the medium of a newspaper. Cook v. Ward, 6 Bing.

409.

name.

Page 808. § 18.-Neither is it any justification for publishing Public rumour. a libel, that the defendant had the libellous statement from another person, and upon the publication disclosed the author's name. As to disclosNor does it make any difference, whether it was published with, ing the author's or without, the authority of the writer; for it is a principle of law, that whoever wilfully assists in doing an unlawful act, becomes answerable for all the consequences of such act; and there is no reason to except the circulation of slander out of this rule. If the person receiving a libel may publish it at all, he may publish it in whatever manner he pleases; he may insert it in all the journals, and thus circulate the calumny through every region of the globe. The effect of this is very different from the mere repetition of oral slander. In the latter case, what has been said is known perhaps only to a few persons, and if the statement be untrue, the imputation may be got rid of; the report may not be heard of beyond the circle in which all the parties are known; and the veracity of the accuser, and the previous character of the accused, will be properly estimated. But if the report is to be spread over the world by means of the press, the malignant falsehoods of the vilest of mankind, which would not receive the least credit where the author was known, would make an impression which it would take much time and trouble to erase, were it even possible to remove that impression. For of what use is it to send the name of the author with a libel, that is to pass into a country where he is entirely unknown? The name of the author will not inform those who do not know his character, whether he is a person entitled to credit for veracity, or not, nor whether it contains a charge made in earnest, or by way of joke, nor whether it contains a charge made by a man of sound mind, or is merely the delusion of a lunatic. De Crespigny v. Wellesley, 5 Bing. 392. per Best, C. J.