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session of the property. Had the plaintiff such possession of the
logs? They were not on his land. They were on the Dixon tract,
but whether Maxwell purchased it with, the timber, the evidence
does not inform us, nor is it material. The possession of the timber
was in the owner of it, and that possession was not changed or
affected by the arrangement under which the logs were cut and
skidded by the plaintiff. The latter was not a bailee of the timber
or of the logs cut therefrom. He was employed to cut the timber
into logs and put them in his employer's mill pond. There was noth-
ing in the nature of his employment which gave him an independent
and exclusive possession of the timber or the logs at any time, but
on the contrary the agreement under which he was to do the work
was inconsistent with his claim of a right to the possession of them
until he was paid for his labor. He cut and skidded the logs where



58 FITZGERALD V. ELLIOTT. [CHAP. I.

his employer had the right to cut and skid them preparatory to their
removal to his mill. If the plaintiif had a common-law lien upon the
logs for his work, then he who cuts firewood or splits rails from his
employer's timber and hauls or agrees to haul the firewood to his
employer's house, or the rails to designated points on his farm for the
purpose of fencing it, has a like lien. And if this be so, then the
person who is employed to dig coal in his employer's mine and pile
it at the pit's mouth on his employer's land has a common-law
lien upon the coal for his labor in digging and pihng it. But in Ritter
V. Gates, decided at Pittsburg in 1852, it w^as held by this court, in
an opinion by Chief Justice Black, that a laborer employed to dig
ore has no lien upon it for his wages: 1 Am. Law Register, 119.

The cases cited in support of the plaintiff's claim are not analo-
gous to the case at bar. They were cases in which the lienor had an
independent possession of the property as a bailee, or in which the
lien was created by the agreement of the parties. In this case there
was no bailment or stipulation for a lien.

The fundamental error in the plaintiff's contention lies in his as-
sumption that he had an independent possession of the property,
when in fact such possession as he had was that of his employer.
Maxw^ell was in possession of the Dixon tract for the work the plain-
tiff did for him there, whether he owned it or not; the land on which
the timber lay and the logs were cut and skidded was in his posses-
sion for the purpose for which his employer used it. It follows that
the rights of the plaintiff in respect to the lien and possession were
the same as if his employer OMoied the land on which the work was
done. In cutting and skidding the logs where he did he was exercising
his emploj^er's right to cut and skid them there.

We conclude upon a careful consideration of the plaintiff's testi-
mony in reference to the agreement under which he did the work,
that he was not entitled to a common-law lien upon the logs, and
that if he had a statutory lien or preference for all or part of his
claim, it did not make the sheriff a trespasser in levying upon and
selling them. If he had a statutory' lien or preference he should have
looked to the fund realized by the sale, and proceeded for the en-
forcement of it in accordance with the provisions of the statute
which conferred it. It follows from these views that the learned court
did not err in denying the motion to take off the nonsuit.

The specifications of error are overruled.

Judgment affirmed.



SECT. IV.] STATE V. SCHINGEN. 59

STATE V. SCHINGEN.

20 Wis. 74. 1865.

On exceptions from the Circuit Court for Winnebago County.

The defendant was indicted for larceny of two horses and a set
of harness, the property of one Buhler; and the jury having found
him guilty, a new trial was refused. The principal questions pre-
sented by the defendant's exceptions arose upon instructions asked
for by him and refused, the character of which will sufficiently
appear from the opinion, infra.

Cole, J. The first instruction asked for on the trial by the de-
fendant, however true as an abstract proposition of law, yet, with-
out some explanation, was calculated to mislead the jury. The evi-
dence shows most clearly that the defendant was in the employ
of Buhler, and had been sent from Berlin with the team to take some
beer to Omro and Waukau, with instructions to bring back the kegs,
and money, returning by the way of Eureka the same day. It ap-
pears that, after disposing of most of the beer at Omro, the defend-
ant threw the empty kegs and two full ones remaining unsold over
the fence into a field at that place, and instead of returning to Ber-
lin, drove off with the wagon and horses to Oshkosh, where he offered
the horses for sale, and did actually sell the harness. By the instruc-
tion above referred to, the court was asked to charge the jury that
without the commission of a trespass there could be no larceny,
and that there could be no trespass unless the goods were taken by
the accused while in the possession of the owner. The court gave
this instruction ^vith the additional remark, that if the accused was
at work for the owner of the property, and the property was put into
the prisoner's hands to go to Omro and other places, it remained in
the owner's possession; and if the prisoner took it beyond the places
he was to go to, for the purpose of converting it to his own use, this
was a trespass. Now we think the explanatory remarks were very
proper, in view of the facts of the case. For the evidence was most
distinct and positive upon the point, that the defendant was in the
employ of Buhler, and had been sent away by him with the wagon,
horses, harness, beer, etc., for the purpose just stated. He was there-
fore the servant of Buhler, having only a bare charge or custody
of the property, while the legal possession was in the o^vner. The re-
lation of master and servant thus existing between the parties when
the property was entrusted to the care of the defendant for a special
purpose, in contemplation of law the possession was in the master,
and the defendant might be guilty of a trespass and larceny in frau-
dulently converting it to his own use. This principle is fully estab-
lished by the authorities to which the attorney general referred on the
argument. Hence it was very proper for the court to accompany the



60 COMMONWEALTH V. RYAN. [CHAP. I.

instruction with the remarks he made upon it, and tell the jury
that if the defendant was at work for the owner of the property, and
the property was put under his custody to go to Omro and other
places, his possession was for the time being the possession of the
master; and if the defendant took it beyond the places he was to go
to, with the intent to convert it to his own use, he was guiltj^ of
trespass. Otherwise the jury might have possibly supposed, because
the defendant had the property mider his care and custody, he must
likewise, necessarily have the possession, and could not therefore be
said to take it from the possession of the owner.

The court was further asked to charge the jury, that if they should
find from the evidence that the defendant had the property for the
purpose of going to Omro and other places to carry the beer, and that
at the time he took the property from the owner he really intended
to use it for that purpose, and had no intention, at the time he took
possession of it, to steal, but, finding himself in the possession, he
afterwards formed the intention of converting it to his own use in-
stead of using it for the purpose originally designed, then the taking
would not amount to a felony, nor would it constitute larceny. This
instruction is obviously incorrect, since it assumes that to consti-
tute larceny the felonious intent must have existed when the defend-
ant was first intrusted with the custody of the property. It was not
necessary that the jury should find that the ajiimus furandi existed
at the time the defendant left Berlin for Omro. It was enough that
the intention existed while he had charge of the property as servant
to the owner, and that it was carried into effect by converting the
property to his o^vn use. The People v. Call, 1 Denio, 120; 2 Russell
on Crimes, 157-8.

By the Court. — The exceptions in this case are overruled, and^j
the judgment of the circuit court affirmed.

Note. — There are early authorities to the efi"ect that the master
is conceived to be in possession of goods entrusted to the serv^ant
only so long as the servant is in the master's house, or with th'
master. See Y. B. 21 Hen. 7, 14.



COMMONWEALTH v. RYAN.

155 Mass. 523. 1892. Vpjo - -

HoLMES, J. This is a complaint for embezzlement of money.
The case for the government is as follows. The defendant was em-
ployed by one Sullivan to sell liquor for him in his store. SuUivan
sent two detectives to the store, with marked money of Sullivan's,



^i^^-^'



SECT. Iv^] COMMONWEALTH V. RYAN. 61

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 an-
other 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 lar-
ceny, 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 offence from
being embezzlement. We will consider these positions successively.

"^emust take it as settled that it isjiot larceny for a sejrvantto^,
I conv^H'propeftyTtettvere'd'to'Eim by a third personforKis master,
proyidp<i7i*^^f"^^ n iitrfcrrr th r goods have n-aclied their destination,
I or something more has happened to reduce him to a mere custodian
■JUdmmonwealth v. King, 9 Cush. 284); while, on the other hand, if
the property is delivered to the servant by his master, the conver-
sion is larceny. Commonwealth v. Berry, 99 Mass. 428; Common-
wealth 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, per-
haps, with an unwillingness on the part of the judges to enlarge the
limits of a capital offence. 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, pi. 5. 3 Co. 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, pi. 7. Hen. VII. 12, pi. 9. Ward v.
Macauley, 4 T. R. 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 statiis
and identity of person, as it was at a later day. See Byington v. Simp-
son, 134 Mass. 169, 170. Within his house a master might be an-
swerable for the torts of his servant, and might have possession of
goods in his servant's custody, altliough 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, pi. 21. T. 24 Edw. III. Bristol, in
Molloy, De Jure Maritimo, bk. 2, c. 3, § 16. Y. B. 2 Hen. IV. 18,



62 COMMONWEALTH V. RYAN. [CHAP. I.

pi. 6. 13 Edw. IV. 10, pi. 5;S.C. Bro. Abr. Corone, pi. 160. Staund-
forde, I., c. 15, fol. 2p; c. 18, fol. 26. 1 Hale, P. C. 505, note. See
Heijdon & Smith's case, 13 Co. Rep. 67, 69; Drope v. Theyar, Pop-
ham, 178, 179; Combs v. Bradley, 2 Salk. 613; and, further, 42 Ass.
pi. 17, fol. 260; 42 Edw. III. 11, pi. 13; Ass. Jerus. (ed. 1690), cc.
205, 217. It was settled by St. 21 Hen. VIII. c. 7, that the conver-
sion 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. The King v. Wilkins, 1 Leach (4th
ed.), 520, 523 See Kelyng, 35; Fitzh. Nat. Brev. 91 E; Blosse's
case, Moore, 248; 8. C. 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 prop-
erty 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, 56, 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 au-
thority for the broader proposition that the act is not a felony, and
the reason was invented to account for it that the servant has pos-
session, 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 at-
tempt to distinguish between servants and bailees; Y. B. 13 Edw.
IV. 10, pi. 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. 356,
pi. 7. See The King v. Bass, 1 Leach (4th ed.), 251. Yet the empti-
ness 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 serv-
ant 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, pi. 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. Rex
v. Dingley (1687), stated in The King v. Bazeley, 2 Leach (4th ed.),
835, 841, and in The King v. Meeres, 1 Show. 50, 53. Waite's case



SECT. IV.] COMMOmV'EALTH V. RYAN. 63

(1743), 2 East, P. C. 570; S. C. 1 Leach (4th ed.), 28, 35, note. Bull's
case, stated in The King v. Bazeley, 2 Leach (4th ed.), 835, 841 ; ,S. C.
2 East, P. C. 571, 572. The King v. Bazeley, ubi supra; Regina v.
Masters, 1 Den. C. C. 332." Regina 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. Regina
V. Reed, Dears. C. C. 257. 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; »S. C. 1 Leach (4th ed.), 28, 35, note. Bull's case, 2 East, P. C.
572; S. C. 2 Leach (4th ed.), 841, 842. The King v. Bazeley, 2 East,
P. C. 571, 574; S. C. 2 Leach (4th ed.), 835, 843, note. Regina 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 char-
acter in which he exercises his control depends entirely upon himself.
Sloan V. Merrill, 135 Mass. 17, 19. Jefferds v, Alvard, 151 Mass. 94,
95. Commonwealth 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 after-
wards larceny. The distinction may be arbitrary, but, as it does not
affect the defendant otherwise than by giving him an opportunity,
whichever offence he was convicted of, to contend that he should
have been convicted of the other, we have the less uneasiness in
applying it.

Exceptions overruled.

Note. — See Rex v. Bazeley, 2 East, P. C. 571; Commonwealth v.
King, 9 Cush. (Mass.) 284. Cf. State v. Brin, 30 Minn. 522.

As to the acts which will change the servant's possession of goods,
received from a third person for the master, into custody, see Regina
V. Reed, 6 Cox, C. C. 284; Regina v. Hayward, 1 C. & K. 518; Wash-
ington V. State, 106 Ala. 58; Warmoth v. Commonwealth, 81 Ky. 133.



64 HILDEBRAXD V. PEOPLE. [CHAP. L

ANONYMOUS.

Liber Assisariim, 137, pi. 39. 1353.

One a. was arraigned with the mainor, sc. a coverlet and two
sheets; and he put himself on his clergy. And it was found by the
inquest that he was a guest at the house of a man of note, and was
lodged within these bedclothes; and it was found that he got up
before day, and took these bedclothes out of the chamber, and car-
ried them into the hall, and went off to the stable to find his horse ;
and his host summoned his household against him. And it was
asked of the inquest whether he carried the bedclothes into the hall
with intent to have stolen them; and they said yes. Wherefore he
was adjudged a felon, and v/as delivered to the ordinary, because he
was a clerk, etc.

Note. — See also Richards v. Commonwealth, 13 Gratt. (Va.) 803.



HILDEBRAND v. PEOPLE.

56 X.Y. 394. 1874.

Church, Ch. J. The prosecutor handed the prisoner, who was a
bar-tender in a saloon, a fifty dollar bill (greenback) to take ten cents
out of it in pajTuent for a glass of soda. The prisoner put down a
few coppers upon the counter, and when asked for the change, he
took the prosecutor by the neck and shoved him out doors, and kept
the money.

The question is presented on behalf of the prisoner whether lar-
ceny can be predicated upon these facts. There was no trick, device
or fraud in inducing the prosecutor to deliver the bill; but we must
assume that the jury found, and the evidence was sufficient to jus-
tify it, that the prisoner intended, at the time he took the bill,
feloniously to convert it to his own use.

It is urged that this is not sufficient to convict, because the prose-
cutor voluntarily parted with the possession not onlj^, but ■v\ith the
property, and did not expect a return of the same property. This
presents the point of the case. "UTien the possession and property
are delivered voluntarily, without fraud or artifice to induce it, the
animus furandi will not make it larceny, because in such a case there
can be no trespass, and there can be no larceny \^^thout trespass
(43 N.Y. 61). But in this case I do not think the prosecutor should
be deemed to have parted either with the possession of, or property
in, the bill. It was an incomplete transaction, to be consummated
in the presence and under the personal control of the prosecutor.



SECT. IV.] HILDEBRAND V. PEOPLE. 65

There was no trust or confidence reposed in the prisoner, and none
.ntended to be. The delivery of the bill and the giving change were
^0 be simultaneous acts, and until the latter was paid, the delivery
vas not complete. The prosecutor laid his bill upon the counter, and
impliedly told the prisoner th,at he could have it upon delivering to
him $19.90. Until this was done neither possession nor property
passed; and in the mean time the bill remained in legal contempla-
tion under the control and in the possession of the prosecutor. This
view is not without authority. The case of Reg. v. McKale, 11 Cox,
C. C. 32, is instructive. The prosecutrix put down two shillings upon
the counter, expecting to receive small change for it from the pris-
oner. There being several pieces on the counter, the prosecutrix took
up a shilling of the prisoner's money, and a shilling of her o^\-n,
which she did not discover until she was putting them in the ch'awer.
A confederate just then attracted her attention, and the prisoner
passed out with the two shillings. It was held upon full consideration
that the conviction for stealing the two shillings was right. Kelly,
C. B., said: "The question is, did she part with the money she
placed on the counter? I say, certainly not, for she expected to re-
ceive two shillings of the prisoner's money in lieu of it. . . . Placing
jhe money on the counter was only one step in the trauvsaction. The
act of the prisoner in taking up the money does not affect the question
whether the prosecutrix parted with the property in it. The property
is not parted with until the whole transaction is complete, and the
conditions have been fulfilled on which the property is to be parted
with. ... I am of the opinion that the property in the two shilling
piece was not out of the prosecutrix for a moment."

In Reg. v. Slowly, 12 Cox, C. C. 269, the prosecutor sold onions
to the prisoners who agreed to pay ready money for them. The
onions were unloaded at a place indicated by the prisoners, and the
prosecutor signed a receipt at the request of the prisoners, when they
refused to restore the onions or pay the price. A conviction for lar-
ceny was held right; the jury having found the original intention
felonious. This was upon the ground that the delivery and pa;sTnent
were to be simultaneous acts, that the property did not pass until
payment, and that no credit or trust was intended. (See also id.
257, 248; 2 Russ. on Cr. 22.)

The counsel for the prisoner relies upon the case of Reg. v. Thomas,
9 C. & P. 741. There the prosecutor permitted the prisoner to take
a sovereign to go out to get it changed. The court held that the
prisoner could not be convicted of larceny, because he had divested
himself of the entire possession of the sovereign and never expected
to have it back. This was a nisi prius decision, and is not as authori-
tative for that reason, but the distinction between that case and
this is the one first suggested. There all control, power and posses-
sion was parted with, and the prisoner was intrusted with the money,



66 DEAN V. HOGG. [CHAP. I,

and was not expected to return it. Here, as we have seen, the prose-
cutor retained the control and legally the possession and property.
The line of distinction is a narrow one, but it is substantial and suf-
ficiently well defined.

The judgment must be afiirmed. All concur.

Judgment affirmed.



DEAN V. HOGG.

10 Bingham, 345. 1834.

The defendant Lewis hired a steamboat for a party of pleasure
to Richmond, upon the terms disclosed in the following letter from
the owner : —

"I note the Adelaide is engaged to you for Richmond or Twicken-
ham for Tuesday the 28th of May, at the hire for the day of 51. 10s.,
your party not exceeding fifty persons."

The vessel was navigated by a captain and crew, employed and
paid by the owner.

Just as she was about to start from a quay in London, the plain-
tiff, an attorney, a stranger to the defendant, stepped on board,
not being aware that the vessel had been hired for the day by Lewis,
and his embarkation being countenanced by the captain.

The plaintiff was not long in discovering that he had intruded
into a private party, and expressed to some one near him his readi-



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