FRAUDULENT DROVERS. 2^5 



to sell, but simply to drive them to Bradford ; which he did not do, 

 but sold ten out of the fifty, the next morning after he received them, 

 to a, person in quite an opposite direction to Bradford, on a false repre- 

 sentation of his authority to do so. The jury found that the prisoner 

 at the time he received the sheep intended to convert them to his own use 

 and not to drive them to Bradford, and the judges unanimously decided 

 that he was rightly convicted of felony. 



This was followed by Rex v. Bernard 3Iac Namee, where it was 

 decided unanimously l^y nine judges, that if a man ivlio is hired to drive 

 cattle sell them, it is tarcenij ; for he has the custody only, not the right to 

 the possession, his possession being the owner's possession, though he is a 

 general drover, at least if he is paid by the day. The prisoner was con- 

 victed of stealing 118 sheep. It seems that the prosecutor, who lived fifty 

 miles from Grantham, had employed the drover in his service as a drover 

 off-and-on for nearly five years, but not as a regular servant. He was a 

 general drover, and lodged in the town ; and agreed with the prosecutor 

 for 35. a day, that being what the former regularly gave drovers. On the 

 3rd of April, 1832, he employed the prisoner to take 169 sheep to Gran- 

 tham fair, and found him with only 163 sheep on the 8th; his excuse 

 being that he had sold five lame ones, and sent one back. The prosecutor 

 sold 44 at Grantham, and gave the prisoner money and orders to bring 

 the 119 to Smithfield on the 16th, and meet him in London the night 

 before. The prisoner had no authority to sell sheep ; but on Monday he 

 found 118 of them at the market in the hands of different salesmen, who 

 said they had purchased them of one Shelton, who had bought them from 

 the prisoner, who pretended that they were his own. The jury found 

 that the prisoner did not intend to steal the sheep at the time he took 

 them into his possession. The case was considered by nine of the judges, 

 and they were unanimously of opinion that as the owner parted with 

 the custody only, not with the possession, the prisoner's possession was 

 the OAvner's, and that the conviction was therefore right. 



In Rex V. Henry Hughes it was held, in thesame term, that a servant 

 may he found guiltij of emtjezzlemcnt, thovijh he is not a general servant 

 and enqdoijed to receive in a, single instance. Here the prosecutor was a 

 farmer, and the prisoner a drover occasionally employed by him. He 

 was engaged to take a cow and calf for him to Marylebone, and bring- 

 back £16, and had not any extra reward beyond what was his due for 

 driving and delivering the cattle to the purchaser. From the low situa- 

 tion in life of cattle-drovers they were not likely persons to be entrusted 

 with the receipt of money, and the Recorder (relying principally on Rex 

 V. Nettleton) considered that the receipt in this instance was a mere 

 voluntary act on the part of the prisoner, not at all incident to his 



