against the said W. C. and E. his wife, or either of them, touching the crime of keeping and ill-governed and disorderly house; and whereas in truth and in fact the said W. C. and E. his wife were not, nor was either of them, ever guilty of keeping an ill-governed and disorderly house, or of any other offence of the like nature, and that they the said I. D. and R. D. then and there well knew, and each of them well knew, the same; and the jurors aforesaid do further present, that the said R. D. in further prosecution of the said wicked and malicious devices and intentions cf them the said I. D. and R. D. in pursuance of, and according to, the said conspiracy, combination, confederacy, and agreement between them, so as aforesaid before had, afterwards, to wit, on &c. at &c. at the general quarter sessions of the peace of our said Lord the King, then and there holden for the said city of L. at &c. before I. S. esquire, mayor of the said city of L., I. G. serjeant at law, recorder of the said city, B. K., N. S., aldermen of the said city, and others their fellow justices of our said Lord the King, assigned, &c. did exhibit a certain bill of indictment against the said W. C. and E. his wife, to A. B. &c. (here name the grand jury), good and lawful men of the said city, then and there being the jurors, then and there being sworn and charged to inquire for our Lord the King, for the body of the said city, which said bill of indictment is as follows, that is to say (here insert the indictment), and which said bill of indictment was, by the said jurors above named, at the said general quarter sessions of the peace, holden as aforesaid, before the justices of our said Lord the King, and others their fellows aforesaid, there returned thus indorsed, "not found," (u) by means of which said accusation and prosecution against them the said W. C. and E. his wife, in manner and form aforesaid, they the said W. C. and E. his wife were greatly defamed and disgraced, against the peace, &c.

and

That A. B. late of &c. C. D. late of &c. and E. F. late of &c. being Indictment for persons of evil name, fame, and dishonest conversation, and contriving, conspiring and devising, and intending unjustly to aggrieve one S. C. of, &c. and procuring a also to disturb and destroy the quiet, peace, and tranquillity of the wife to leave said S. C. and to deprive him of the company, comfort, and consola- her husband tion of R. his wife, on &c. at &c. unlawfully and wickedly did con- carry spire, combine, confederate, and agree among themselves falsely and away his goods, and thereby to fraudulently to obtain and get into their hands and possession, of and defraud him of from the said S. C. divers goods and chattels, and to deceive and the same. defraud the said S. C. thereof; and that the said A. B., C. D., and E. F. in pursuance of the said conspiracy, combination, confederacy, and agreement between them so as aforesaid before had, afterwards, to wit, on &c. at &c. unlawfully and wickedly did incite, solicit,

(u) The bill being found will make no difference in the charge of conspiracy, except in the adaptation of the language of the indictment to the fact; for even though conviction should have ensued, proof that it was obtained through the medium of a conspiracy would sustain an indictment. Such proof indeed may be difficult, but the law is nevertheless uniform.

Second count.

and persuade one R. C. then and yet the wife of the said S. C. to desert and leave the said S. C. her husband, and to go into places secret and unknown to her said husband without his will and consent and the jurors, &c. that the said R. C. afterwards, to wit, on &c. at &c. by the incitements, solicitations, and persuasions of the said A. B., C. D., and E. F. did depart, and absent herself from the said S. C. her husband, as aforesaid, with divers goods and chattels of the said S. C. that is to say, with one, &c. of the value, &c.; and the jurors, &c. that the said A. B., C. D., and E. F. well knowing the premises aforesaid, afterwards, to wit, on &c. aforesaid, at &c. aforesaid, according to the conspiracy, combination, confederacy, and agreement between them as aforesaid before had, unlawfully and injuriously did obtain, acquire, and get into their hands and possession the goods and chattels of him the said S. C. above specified, of and from the said R. C. his wife, and him the said S. C. of the said goods and chattels unlawfully, fraudulently, and deceitfully did deceive and defraud, against the peace, &c.

And the jurors, &c. that the said A. B., C. D., and E. F. being persons of evil name and fame, and dishonest conversation, and well knowing, and each of them well knowing, that the said S. C. had and was possessed of a great personal estate, and contriving, devising, and intending, and each of them contriving, devising, and intending to seduce and entice by divers unlawful ways and means R. C. the true and lawful wife of him the said S. C. and to cause and procure her the said R. C. not only to desert and go away from him the said S. C. her said husband, but also to take and carry away from him the said S. C. divers goods, chattels, wares, and merchandizes of him the said S. C. on &c. at &c. did conspire, combine, confederate, and agree to do and perform, and in pursuance of, and according to the said lastmentioned conspiracy, combination, confederacy, and agreement, they the said A. B., C. D., and E. F. did afterwards, to wit, on &c. at &c. unlawfully incite, solicit, and persuade, and each of them did incite, solicit, and persuade, the said R. C. to desert and go away from the said S. C. her husband, into places secret and unknown to him the said S. C. and to embezzle and take away with her the said R. C. divers goods and chattels, of and from him the said S. C.; and that in pursuance of the last-mentioned conspiracy, combination, confederacy, and agreement aforesaid, and by means of the said incitements, solicitations, and persuasions of them the said A. B., C. D., and E. F. the said R. C. afterwards, to wit, on &c. aforesaid, at &c. aforesaid him the said S. C. her said husband, against the will of the said S. C. did then and there unlawfully and unjustly desert and leave, and into places secret and unknown to the said S. C. did withdraw herself, and then and there did embezzle and take away with her divers goods and chattels of the said S. C. that is to say, &c. of the value of, &c. and that they the said A. B., C. D., and E. F. in pursuance of the said last-mentioned conspiracy, combination, confederacy, and agreement between them so as aforesaid before had, afterwards, to wit, on &c. at &c. unlawfully and unjustly did receive and have, of and from the said R. C. the said goods and chattels last-mentioned, so embezzled and taken away from him the said S. C. by her the said R. C. as aforesaid; they the said A. B., C. D., and E. F. then and there well knowing, and each of them well knowing, the same goods last mentioned to have been embezzled and taken away as aforesaid, against the peace, &c.

Punishment. The old punishment for Conspiracy, when its object was the false accusation of a party of a capital crime, was what was called "the villainous judgment;" by which the offenders were made incompetent to appear as jurors or witnesses, forfeited all their goods and chattels, and the profits of their lands for life; and were sentenced to have" their lands wasted, their houses razed, and their bodies committed to prison." This piece of barbarity has long fallen into disuse, and the judgment has not been pronounced for several centuries. The punishment of conspiracy, at the present day, is fine and imprisonment, in the discretion of the court. Before the abolition of the pillory, that punishment was sometimes inflicted; but it is now, by 56 Geo. 3. c. 128. taken away for this offence. It was formerly thought that the conviction of a party rendered him incompetent as a witness; (v) but a contrary doctrine now prevails. (w)

$9. EMBEZZLEMENT NOT AMOUNTING TO FELONY.

1. Embezzlement Misdemeanor at Common Law.

2. Embezzlement punishable by Statute as a Misdemeanor.

In general, an indictment for a mere breach of trust, not Embezzlement amounting to larceny, will not lie at common law. But at common law. where this breach of trust is committed by a public officer misapplying the funds with which he is entrusted for the benefit of the public, he may be indicted for a misdemeanor in respect of his public duty. Thus, an indictment will lie against overseers for not accounting; and the precedent inserted below, of an indictment against a surveyor of highways, is stated by Mr. Chitty in his excellent work on Criminal Law, from which it is taken, to have been obtained from the Crown Office, having been used in the prosecution of a person named Robinson.

Indictment for embezzlement at common law.

That W. R. late of, &c. at the several times of the committing of Indictment the several offences hereinafter-mentioned, was one of the surveyors against surveyor of the highways of the parish of aforesaid, in the county afore- of highways for said, to wit, at &c. aforesaid, and that the said W. R. so being using materials such surveyor of the highways as aforesaid, not regarding his duty in that behalf, but minding and intending to promote his own private on his own pre

obtained for

repairing them

(v) Co. Lit. 56; 2 Hale, 277.

(w) See Phil. or Ev. 24.

mises, and employing public labourers, &c.

Seventh count, for embezzling the gravel got for the parish.

gain and emolument, at the expence of the inhabitants of the said parish, on &c. and so forth, and on sixty other days and times then next following, at &c. aforesaid, unlawfully, wilfully, and corruptly, by colour of his said office of surveyor of the highways as aforesaid, did cause and procure divers, to wit, fifty cartloads of gravel, and other materials, which had been then and there dug and got at the costs and charges of the inhabitants of the said parish, for the purpose of repairing the public common highways of the said parish, and which ought then and there to have been laid upon and used in the repairs of such highways, to be carried and conveyed to certain gardens, lands, and grounds of the said W. R. within the said parish, and there to be laid, spread, and used for his own private gain and emolument, and did then and there unlawfully, wilfully, and corruptly, by colour of his said office, cause and procure divers labourers, to wit, &c. (naming them) then and there hired and retained at the costs and charges of the said inhabitants of the said parish, to get and carry gravel and materials for the purpose of repairing and to repair the highways of the said parish, under the direction of the surveyors of the highways of the said parish, to be employed in the carrying and conveying the said gravel and other materials to the said gardens, lands, and grounds of the said W. R. and in there laying, spreading, and using the same for the private gain and emolument of the said W. R. when such labourers ought to have been then and there employed, getting gravel and other materials for the purpose of repairing, and in the repairing such highways; and also did then and there unlawfully, wilfully, and corruptly, by colour of his said office, cause and procure divers teams furnished with horses and other cattle, and with men to attend the same, which had been then and there duly sent by divers inhabitants and occupiers of lands, tenements, and hereditaments within the said parish, to wit, by, &c. (naming them) to perform statute duty for and in the repair of the said highways under the direction of the surveyors of the highways of the said parish, to be employed in the carrying and conveying of the said gravel and other materials to the said lands, gardens, and ground of the said W. R. and in there laying, spreading, and using the same for the private gain and emolument of the said W. R. when such teams and men attending the same ought to have been then and there employed in getting, loading, and conveying gravel and other materials, for the purpose of repairing, and in the repairing such highways, contrary to the duty of the said W. R. as such surveyor of the highways as aforesaid, and against the peace, &c.

(Second count only for procuring gravel dug, for the purposes of repairing, to be taken to his own premises. Third count for procuring the public labourers to carry gravel for him. Fourth count employing the teams sent to perform statute duty to carry gravel for him. Fifth count for employing the public labourers to dig muck and dirt, and convey it for himself. Sixth count, for employing teams for the same purpose. Seventh count as follows:-)

And the jurors, &c. that the said W. R. so being such surveyor of the highways as aforesaid, not regarding his duty in that behalf, but minding and intending as aforesaid, on the said, &c. and on sixty other days and times then next following, at &c. aforesaid, unlawfully, wilfully, and corruptly, by colour of his said office, did cause and procure divers other, to wit, one hundred other loads of

gravel and other materials, which had been then and there dug and got at the costs and charges of the inhabitants of the said parish, for the purpose of repairing the public common highways of the said parish, and which then and there ought to have been laid upon and used in the repairs of such highways as aforesaid, to be carried and conveyed to a certain place, called Queen-street, within the said parish, not being one of the public highways of the said parish, and there to be laid, spread, and used for his own private accommodation, gain, and emolument, contrary to the duty of the said W. R. as such surveyor of the highways as aforesaid, to the evil example, &c. and against the peace, &c.

tornies, and agents under

zling money

2. Embezzlement made a misdemeanor by statute.- Embezzlement The 7 and 8 Geo. 4. c. 29. contains the following pro- by bankers, atvision, rendering embezzlement by agents indictable as a misdemeanor, and punishable with severe penalties -7 and 8 Geo. 4. "That if any money, or security for the payment of c. 29. s. 49. money, shall be entrusted to any banker, merchant, broker, Agents embezattorney, or other agent, with any direction in writing to entrusted to apply such money or any part thereof, or the proceeds or them to be apany part of the proceeds of such security, for any purpose plied to any specified in such direction, and he shall, in violation of special purpose; good faith and contrary to the purpose so specified, in anywise convert to his own use or benefit such money, security, or proceeds, or any part thereof respectively, every such offender shall be guilty of a misdemeanor; 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; and if any chattel or or embezzling valuable security, or any power of attorney for the sale or any goods or valuable security transfer of any share or interest in any public stock or intrusted to fund, whether of this kingdom, or of Great Britain, or of them for safe Ireland, or of any foreign state, or in any fund of any body custody or for any special purcorporate, company, or society, shall be entrusted to any pose, guilty of a banker, merchant, broker, attorney, or other agent, for misdemeanor. 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 misdemeanor; and, being convicted thereof, shall be liable,