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The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the for where there is any material aggravation, the punishment will be proportionally increased. 4 Bl. Com. 145; 1 Hawk. P. C. c. 63, s. 20; 1 Russ. Cri. 395, 5th ed.

case;

private character by the casual presence of three persons, so as to make two of them who fight together willingly, guilty of an affray. Taylor v. State, 22 Ala. 15. Words alone will not constitute an affray; but accompanied by acts, such as drawing knives and attempting to use them in a public street of a city, will. Hawkins v. State, 13 Ga. 322. S.

A plea of self-defence is untenable where the prisoner had an opportunity to retreat. State v. Downing, 74 N, C. 184.

Possession to be evidence of intrusting

Persons making disclosure in compulsory proceedings not liable to
prosecution

*278] *AGENTS, BANKERS, FACTORS, ETC.-FRAUDS COMMITTED BY,

Agents, bankers, factors, etc, embezzling money or selling securities
or goods

Provisions not to affect trustees, or mortgagees, or bankers in certain

cases

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Agents, bankers, merchants, etc., fraudulently selling property
Fraudulently selling property under powers of attorney

Factors or agents fraudulently obtaining advances on property
Clerks wilfully assisting

Exceptions where pledge does not exceed lien

Definition of terms

Persons accused not protected from answering

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Nature of disclosure which protects party making it

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Persons intrusted as banker, merchant, broker, attorney, or other
agent, Cases under secs, 75 and 76

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283

Misappropriation under the the Municipal Corporations Act, 1882,

FRAUDS committed by bankers, merchants, brokers, attorneys and other agents were provided for by the 52 Geo. 3, c. 63; that statute was repealed and other provisions substituted by the 7 & 8 Geo. 4, c. 29, 5 & 6 Vict. c. 39, and the 20 & 21 Vict. c. 54. These statutes are also now repealed, and the statute at present in force is the 24 & 25 Vict. c. 96.

Agents, bankers, factors, etc., embezzling money or selling securities or goods. By s. 75, "Whosoever, having been intrusted, either solely, or jointly with any other person, as a banker, merchant, broker, attorney, or other agent, with any money or security for the payment of money with any direction in writing to apply, pay or deliver such money or security or any part thereof respectively, or the proceeds or any part of the proceeds of such security, for any purpose, or to any person specified in such direction, shall, in violation of good faith, and contrary to the terms of such direction, in anywise convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, such money, security, or proceeds, or any part thereof respectively, and whosoever having been intrusted, either solely, or jointly with any other person, as a banker, merchant, broker, attorney, or other agent, with 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 the United Kingdom, or any part thereof, or of any foreign state, or in any stock or fund of any body corporate, company, *279] *or society, for safe custody or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, 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 intrusted to him, sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, 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, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than three [now five] years,-or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."

Provisions not to affect trustees, or mortgagees, or bankers in certain cases. By the same section, "nothing in this section contained relating to agents shall affect any trustee in or under any instrument whatsoever, or any mortgagee of any property, real or personal, in respect of any act done by such trustee or mortgagee, in relation to the property comprised in or affected by any such trust or mortgage, nor shall restrain any banker, merchant, broker, attorney, or other agent, from receiving any money which shall be or become actually due and payable upon or by virtue of any valuable security, accord-ing to the tenor and effect thereof, in such manner as he might have done if this act had not been passed, nor from selling, transferring, or otherwise disposing of any securities or effects in his possession, upon which he shall have any lien, claim, or demand, entitling him, by law so to do, unless such sale, transfer, or other disposal shall extend to a greater number or part of such securities or effects than shall be requisite for satisfying such lien, claim or demand."

Agents, bankers, merchants, etc., fraudulently selling property. By s. 76, "Whosoever, being a banker, merchant, broker, attorney, or agent, and being intrusted, either solely, or jointly with any other person, with the property of any other person for safe custody, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate the same, or any part thereof, to or for his own use or benefit, or for the use or benefit of any person other than the person by whom he was so intrusted, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to any of the punishments which the court may award, as hereinbefore last mentioned."

Fraudulently selling property under powers of attorney. By s. 77, "Whosoever, being intrusted, either solely or jointly with any other person, with any power of attorney for the sale or transfer of any property, shall fraudulently sell or transfer or otherwise convert the same or any part thereof to his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, shall be guilty of a misdemeanor, and being convicted

thereof, sha be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned."

*Factors or agents fraudulently obtaining advances on

*280] property. By s. 78, "Whosoever, being a factor or agent in

trusted, either solely, or jointly with any other person, for the purpose of sale or otherwise, with the possession of any goods, or of any document of title to goods, shall, contrary to or without the authority of his principal in that behalf, for his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, and in violation of good faith, make any consignment, deposit, transfer or delivery of any goods or document of title so intrusted to him as in this section before mentioned, as and by way of a pledge, lien, or security, for any money or valuable security borrowed or received by such factor or agent at or before the time of making such consignment, deposit, transfer, or delivery, or intended to be thereafter borrowed or received, or shall, contrary to or without such authority, for his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, and in violation of good faith, accept any advance of any money or valuable security on the faith of any contract or agreement to consign, deposit, transfer, or deliver any such goods or document of title, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned."

Clerks wilfully assisting. By the same section, "Every clerk or other person who shall knowingly and wilfully act and assist in making any such consignment, deposit, transfer, or delivery, or in accepting or procuring such advance as aforesaid, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the same punishments."

Exception where the pledge does not exceed lien. By the same section, "Provided that no such factor or agent shall be liable to any prosecution for consigning, depositing, transferring, or delivering any such goods or documents of title, 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 consignment, deposit, transfer, or delivery was justly due and owing to such agent from his principal, together with the amount of any bill of exchange drawn by or on account of such principal and accepted by such factor or agent."

Definitions of terms. By s. 79, "Any factor or agent intrusted as aforesaid, and possessed of any such document of title, whether derived immediataly from the owner of such goods, or obtained by reason of such factor or agent having been intrusted with the possession of the goods or of any other document of title thereto, shall be

was set on fire; the flames communicated to the dwelling-house, in which methbers of the family had been sleeping; but it did not appear whether the house took fire before they left the house or after. Alderson, B., in summing up the case to the jury, directed them to say by their verdict, should they find the prisoner guilty, whether the house took fire before the family were in the yard or after. If they were of opinion that it was after the family were in the yard, his lordship said that he thought they ought to acquit the prisoner of the capital charge, as to sustain that, in his opinion, it was necessary that the parties named in the indictment should be in the house at the very time the fire was communicated to it. But his lordship added that, the point being a new one, and of very great importance, he should not take upon himself to decide it there, but should reserve it for the decision of the judges. The prisoner was acquitted of the entire charge. R. v. Warren, 1 Cox, C. C. 68. In R. v. Fletcher, 2 C. & K. 215, 61 E. C. L., Patteson, J., held in a similar case that, if the fire caught the house after the inmates had left it, the charge could not be sustained.

Possession-how to be described. The house burned should be described as being in the possession of the person who is in the actual occupation, even though the possession be wrongful. Thus where a laborer in husbandry was permitted to occupy a house as part of his wages, and after being discharged from his master's service, and told to quit the house in a month, remained in it after that period, it was held by the judges, upon an indictment for setting fire to the house, that it was rightly described as being in the possession of the laborer. R. v. Wallis, 1 Moody, C. C. 344.

Proof of malice and wilfulness. If the act of burning be done under a bona fide belief in the existence of a right to burn (as where a woman set fire to some furze on a common), there is no criminal offence. R. v. Twose, 14 Cox, C. C. 327. It must be proved that the act of burning was both wilful and malicious, otherwise it is only a trespass and not a felony; 1 Hale, P. C. 569. Therefore if A. shoot unlawfully at the poultry or cattle of B., whereby he sets the house of another on fire, it is not felony; for though the act he was doing was unlawful, he had no intention to burn the house; Id. In this case, observes Mr. East, it should seem to be understood that he did not intend to steal the poultry, but merely to commit a trespass; for otherwise, the first attempt being felonious, the party must abide all the consequences. 2 East, P. C. 1019. But where a sailor on board a ship entered the hold for the purpose of stealing the rum, and the rum coming in contact with a lighted match in his hand, the ship

1 If it be in fact the dwelling-house, the court will not inquire into the tenure or interest of the occupant. People v. Van Blarcum, 2 Johns, 105. In an indictment for burning a public building, it is not necessary to allege who is its owner or occupant, and any such allegation, if made, is immaterial. State v. Roe, 12 Vt. 93. But see Carter v. State, 20 Wis. 647. S.

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