the horse to a town, to allow defendant to prove the horse by proper affidavits before a justice. They met, and defendant paid the cost of posting, and was allowed to take the horse to feed at a stable, but, without permission and without proving him, he left with the horse, and disposed of him. On proof of these facts the jury found defendant guilty under the count for common law larceny, which laid the property of the horse in S. On error the verdict was held justified. Quinn v. P., 123 Ill. 333, 15 N. E. 46.

$ 130. "Where the Accused Received the Property from Another."

(Eng. King's Bench, 1688.) Selling Goods and Taking Pay for Master. It was found by special verdict, that the prisoner had been employed to sell goods and receive money for his master's use; that he sold a large parcel of goods; received 160 guineas for them from the purchaser; deposited ten of them in a private place in the chamber where he slept; and, on his being discharged from his service, took away with him the remaining 150 guineas; but he had not put any of the money into his master's till, or in any way given it into his possession. Before this embezzlement was discovered he decamped from his master's service, leaving his trunk, containing some of his clothes and the 10 guineas so secreted, behind him; but he afterwards, in the night-time, broke open his master's house, and took away with him the 10 guineas which he had hid privately in his bed-chamber; and this was held to be no burglary, because the taking of the money was no felony; for although it was the master's money in right, it was the servant's money in possession, and the first original act no felony. R. v. Dingley, (or Bingley) stated by counsel in Bazeley's Case, 2 Leach No. 294, B. 525, and in argument in R. v. Meeres, 1 Shower 53, Ke. 177, Mi. 684.

(Eng. C. C. R., 1799.) Money Received for Employer. The prisoner was chief teller of Esdaile & Hammett, bankers, and was convicted of stealing a bank-note for £100 of them. The proof was that a customer of the bank sent £137 to the bank for deposit to his credit, including the £100 note in question; that the money was handed to the prisoner, who entered credit for the amount in the customer's book, and put the rest of the money in the money-drawer of the bank, but put the £100 note in his pocket. On case reserved it was argued by counsel for the prisoner that taking the note under the circumstances was not larceny from the prosecutors, for they never had possession of it. It was admitted that deposit in the till would give them sufficient possession to sustain the conviction, and that without it they might have maintained trespass against anyone who had taken it from him, yet, it was insisted that the servant's possession is not the possession of the master for the purpose of charging the servant with stealing the property. On con

sultation among the judges, some doubt was at first entertained; but at last all assembled agreed that it was not felony, inasmuch as the note was never in the possession of the bankers, distinct from the possession of the prisoner, though it would have been otherwise if the prisoner had deposited it in the drawer, and had afterwards taken it. And they thought that this was not to be differed from the cases of R. v. Waite, Leach No. 14, and R. v. Bull, Leach (in argument) No. 294, which turned on this consideration, that the thing was not taken by the prisoner out of the possession of the owner; and here it was delivered into the possession of the prisoner. That although to many purposes the note was in the actual possession of the masters, yet it was also in the actual possession of the servant, and that possession not to be impeached; for it was a lawful one. Eyre, C. J., also observed that the cases ran into one another very much, and were hardly to be distinguished; that in the case of R. v. Spears, Leach No. 291, the corn was in the possession of the master under the care of the servant; and Lord Kenyon said that he relied much on the act of parliament respecting the bank not going further than to protect the bank. Bazeley's Case, 2 Leach No. 294, 2 East P. C. 571, B. 525, Ke. 305.

(Eng. C. C. R., 1854.) Receiving Coal in Master's Cart. The prosecutor sent his cart by defendant to the dock for 12 cwt. of coal, and discovered him taking out some in a basket at a house on the way back. On this he was convicted of larceny of 2 cwt. of coal. On case reserved it was contended for the prisoner that the coal had never been in the actual or constructive possession of the master. The case was first argued before Jervis, C. J., Parke, B., Alderson, B., Wightman, J., and Cresswell, J., who took time to consider, and then directed that it should be argued before all the judges, and so it was argued again. LORD CAMPBELL, C. J. I am of the opinion that the prisoner has been properly convicted of larceny. There can be no doubt that, in such a case, the goods must have been in the actual or the constructive possession of the master, and that, if the master had no otherwise the possession of them than by the bare receipt of his servant upon the delivery of another for the master's use, although as against third persons this is in law a receipt of the goods by the master, yet in respect of the servant himself this will not support a charge of larceny, because as to him there was no tortious taking in the first instance, and consequently no trespass. Therefore, if there had been a quantity of coals delivered to the prisoner for the prosecutor, and the prisoner, having remained in the personal possession of them, as by carrying them on his back in a bag, without anything having been done to determine his original exclusive possession, had converted them animo furandi, he would have been guilty of embezzlement, and not of larceny. But if the servant has done anything which determines his original exclusive possession of the goods, so that the master thereby comes

constructively into possession, and the servant afterwards converts them animo furandi, he is guilty of larceny, and not merely of a breach of trust at common law, or of embezzlement under the statute. On this supposition he subsequently takes the goods tortiously in converting them, and commits a trespass. We have therefore to consider whether the exclusive possession of the coals continued with the prisoner down to the time of the conversion. I am of opinion that this exclusive possession was determined when the coals were deposited in the prosecutor's cart, in the same manner as if they had been deposited in the prosecutor's cellar, of which the prisoner had the charge. JERVIS, C. J. It is admitted that the cart was in the possession of the servant for a special purpose; if he had taken the cart, he would have been guilty of larceny; and if the cart for this purpose continued the cart of the master, the delivery of the coals into the cart was a delivery to the master, and makes the offense larceny. * The other judges concurred. Conviction affirmed. R. v. Reed, 6 Cox C. C. 284, 23 L. J. m. c. 25, Dears, 257, 2 C. L. R. 607, 18 Jur. 67, 2 W. R. 190, B. 536, C. 232, Mi. 692.

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(Mass. Sup. Judicial Ct., 1892.) A Review of the Decisions-Cash Dropped into Till for Servant's Purpose. HOLMES, J. This is a complaint for embezzlement of money. The case for the government is as follows: The defendant was employed by one Sullivan to sell liquor for him in his store. Sullivan sent two detectives to the store, with marked money of Sullivan's, to make a feigned purchase from the defendant. One detective did so. The defendant dropped the money into the money drawer of a cash register, which happened to be open in connection with another sale made and registered by the defendant, but he did not register this sale, as was customary, and afterward—it would seem within a minute or two-he took the money from the drawer. The question presented is whether it appears, as matter of law, that the defendant was not guilty of embezzlement, but was guilty of larceny, if of anything. The defendant asked rulings to that effect on two grounds: First, that after the money was put into the drawer it was in Sullivan's possession, and therefore the removal of it was a trespass and larceny; and secondly, that Sullivan's ownership of the money, in some way not fully explained, prevented the offense from being embezzlement. We will consider these positions successively. We must take it as settled that it is not larceny for a servant to convert property delivered to him by a third person for his master, provided he does so before the goods have reached their destination, or something more has happened to reduce him to a mere custodian (C. v. King, 9 Cush. 284); while, on the other hand, if the property is delivered to the servant by his master, the conversion is larceny. C. v. Berry, 99 Mass. 428 [§ 152]; C. v. Davis, 104 Mass. 548. This distinction is not very satisfactory, but it is due to historical accidents in the development of the

criminal law, coupled, perhaps, with an unwillingness on the part of the judges to enlarge the limits of a capital offense. 2 Leach (4th ed.), 843, 848, note; 1 Leach (4th ed.), 35, note; 2 East P. C. 568, 571. The history of it is this. There was no felony when a man received possession of goods from the owner without violence. Glanv., bk. 10, c. 13; Y. B. 13 Edw. IV. 9, pl. 5; 3 Coke Inst. 107. The early judges. did not always distinguish clearly in their language between the delivery of possession to a bailee and the giving of custody to a servant, which indeed later judges sometimes have failed to do. E. g. Littleton in Y. B. 2 Edw. IV. 15, pl. 7; 3 Hen. VII. 12, pl. 9; Ward v. Macauley, 4 Term 489, 490. When the peculiar law of master and servant was applied either to the master's responsibility or to his possession, the test seems to have been whether or not the servant was under the master's eye, rather than based on the notion of status and identity of person, as it was at a later day. See Byington v. Simpson, 134 Mass. 169, 170. Within his house a master might be answerable for the torts of his servant, and might have possession of goods in his servant's custody, although he himself had put the goods into the servant's hands; outside the house there was more doubt; as when a master intrusted his horse to his servant to go to market. Y. B. 21 Hen. VII. 14, pl. 21; T. 24 Edw. III.; Bristol in Molloy, De Jure Maritimo, bk. 2, c. 3, § 16; Y. B. 2 Hen. IV. 18, pl. 6; 13 Edw. IV. 10, pl. 5; s. c. Bro. Abr. Corone, pl. 160; Staundforde, I., c. 15, f. 25, c. 18, f. 26; 1 Hale, P. C. 505, note. See Heydon & Smith's case, 13 Coke 67, 69; Drope v. Theyar, Popham, 178, 179; Combs v. Bradley, 2 Salk. 613; and, further, 42 Ass. pl. 17, f. 260; 42 Edw. III. 11, pl. 13; Ass. Jerus. (Ed. 1690), cc. 205, 217. It was settled by St. 21 Hen. VIII. c. 7, that the conversion of goods delivered to a servant by his master was felony, and this statute has been thought to be only declaratory of the common law in later times, since the distinction between the possession of a bailee and the custody of a servant has been developed more fully, on the ground that the custody of the servant is the possession of the master. 2 East P. C. 564, 565; King v. Wilkins, 2 Leach, No. 223. See Kelyng, 35; Fitzh. Nat. Brev. 91 E; Blosse's case, Moore 248, Owen 52, and Gouldsb. 72. But probably when the act was passed it confirmed the above mentioned doubt as to the master's possession where the servant was intrusted with property at a distance from his master's house in cases outside the statute, that is, when the chattels were delivered by a third person. In Dyer, 5a, 5b, it was said that it was not within the statute if an apprentice ran off with the money received from a third person for his master's goods at a fair, because he had it not by the delivery of his master. This, very likely, was correct, because the statute only dealt with delivery by the master; but the case was taken before long as authority for the broader proposition that the act is not a felony, and the reason was invented to account for it that the servant has possession, because the money is delivered to him. 1 Hale P. C. 667, 668. This phrase about delivery seems to have been

used first in an attempt to distinguish between servants and bailees. Y. B. 13 Edw. IV. 10, pl. 5; Moore, 248; but as used here it is a perverted remnant of the old and now exploded notion that a servant away from his master's house always has possession. The old case of the servant converting a horse with which his master had intrusted him to go to market was stated and explained in the same way, on the ground that the horse was delivered to the servant. Crompton, Just. 35b, pl. 7. See King v. Bass, Leach, No. 121. Yet the emptiness of the explanation was shown by the fact that it still was held felony when the master delivered property for service in his own house. Kelyng, 35. The last step was for the principle thus qualified and explained to be applied to a delivery by a third person to a servant in his master's shop, although it is possible at least that the case would have been decided differently in the time of the Year Books (Y. B. 2 Edw. IV. 15 pl. 7; Fitzh. Nat. Brev. 91 E.); and although it is questionable whether on sound theory the possession is not as much in the master as if he had delivered the property himself. R. v. Dingley [above]; Waite's case (1743), 2 East P. C. 570, Leach, No. 14; Bull's case, stated in R. v. Bazeley, 2 Leach, No. 294, 2 East P. C. 571, 572; R. v. Bazeley [above]; R. v. Masters, 1 Den. C. C. 332; R. v. Reed, Dears. C. C. 257, 261, 262. The last mentioned decisions made it necessary to consider with care what more was necessary, and what was sufficient, to reduce the servant to the position of a mere custodian. An obvious case was when the property was finally deposited in the place of deposit provided by the master, and subject to his control, although there was some nice discussion as to what constituted such a place. R. v. Reed, Dears. 257 [above]. No doubt a final deposit of money in the till of a shop would have the effect. Waite's case, 2 East P. C. 570, 571; 1 Leach, No. 14; Bull's case, 2 East P. C. 572, 2 Leach, No. 294; R. v. Bazeley, 2 East P. C. 571, 574, Leach, No. 294 [above]; R. v. Wright, Dears. & Bell, 431, 441. But it is plain that the mere physical presence of the money there for a moment is not conclusive while the servant is on the spot and has not lost his power over it; as, for instance, if the servant drops it, and instantly picks it up again. Such cases are among the few in which the actual intent of the party is legally important; for, apart from other considerations, the character in which he exercises his control depends entirely upon himself. Sloan v. Merrill, 135 Mass. 17, 19; Jefferds v. Alvard, 151 Mass. 94, 95; C. v. Drew, 153 Mass. 588, 594. It follows from what we have said that the defendant's first position cannot be maintained, and that the judge was right in charging the jury that, if the defendant before he placed the money in the drawer intended to appropriate it, and with that intent simply put it in the drawer for his own convenience in keeping it for himself, that would not make his appropriation of it just afterwards larceny. The distinction may be arbitrary, but, as it does not affect the defendant otherwise than by giving him an opportunity, whichever offense he was convicted of,