54 Ark. 611 | Ark. | 1891
The section referred to reads as follows : “ If any carrier or other bailee shall embezzle, or convert to his own use, or make way with, or secrete with intent to embezzle, or convert to his own use, any money, goods, rights in action; property, effects or valuable security, which shall have come to his possession, or have been delivered to him, or placed under his care or custody, such bailee, although he-shall not break any trunk, package,, box or other thing in-which he received them, shall be deemed guilty of larceny, and on conviction shall be punished as in cases of larceny.”'
Does the statute cover the case of an attorney employed by the Attorney General of the State, under the provisions-of the act of March 31, 1885, to collect demands due to the school fund arising from the sale of sixteenth section lands? This act provides that attorneys employed under its provisions may retain as fees for collection 10 per cent, of the gross amount collected by them, and that “ the remainder of said gross amount, after deducting their fees as above provided for, shall be by said attorneys transmitted without delay to the Treasurer of State.” Acts 1885, p. 167, sec. 12.
It is contended that although the. defendant may have converted moneys collected by him as an attorney employed under the provisions of this act, he is not indictable under the statute defining embezzlement. Three grounds are alleged in support of this contention, as follows: 1st. That the statute applies only to carriers and bailees of the same generic kind as carriers; 2nd. That upon the collection of the money it became the property of the defendant, and he became the debtor of the school fund—in other words, that the relation of creditor and debtor, and not that of bailor and bailee, arose ; 3d. That if the entire amount collected did not become the property of the defendant, he became the owner of an undivided one-tenth part thereof, and in respect thereto could not commit the crime of embezzlement. We will proceed to consider the sufficiency of the grounds relied upon in the order above stated.
tion of general words, and is to be used in harmony with the •elemental canon of construction, that no word is to be treated as unmeaning if a construction can be found that will preserve it and make it effectual. End. Int. Stat., secs. 23, 410-14. If the legislature, in the statute under consideration, had undertaken to detail the different kinds of carriers, and had followed the enumeration with the general words “ and other bailees,” its purpose might reasonably be implied to include such bailees only as belonged to the class carriers, and had been omitted in the enumeration ; . but having employed the generic term “ carriers ” and thus included all carriers of every kind, it must have intended, in adding the broader term, to embrace within the act something more than carriers. Otherwise the addition was without purpose, and the term added without meaning. The statute under consideration is a part of the revised statutes of 1838, and is a substantial transcript of a Missouri statute which was construed by the Supreme Court of that State before its adoption in this State._ The same rule was invoked there as here to restrain the operation of the general words ; but the court said : “ In our opinion, the legislature intended to make it larceny in all bailees to embezzle and convert goods,” etc. Norton v. State, 4 Mo., 461. The Court of Appeals of that State, an intermediate tribunal but one of great learning, subsequently approved this construction of the act. State v. Broderick, 7 Mo. App., 19. In a later case the Supreme Court of that State expressed a different view of the statute, but this was done without any discussion of the ■question or even a reference to the earlier decisions. State v. Grisham, 90 Mo., 163. If it is to be presumed that the law-makers here, in adopting the act of a sister State, intended to adopt the construction put upon it by the highest courts •of that State, the presumption would extend only to the ■construction given prior to its adoption here. End. Int. Stat., sec. 371. Looking to its construction there preceding its adoption here, we find the rule ejusdem generis not applied, because it would destroy parts of the act. In Dot■son’s case, decided in this court, the rule was not invoked, but the act was construed and a broader meaning given it than the rule would admit of. Dotson v. State, 51 Ark., 119. Upon consideration we are constrained to adopt the construction first put upon the act in Missouri. That ■does not extend the natural import of the terms employed, ■or enlarge the scope of the act by construction; but accords to these terms their ordinary signification, and declines to restrict their operation.
But it may be said that he could lawfully have converted the money into exchange for the purpose of transmission, and that, as this is true, it was not. his duty to transmit the-specific money. If the premise be conceded, the conclusion does not follow. It would only follow that there could be a substantive performance of the duty by means of a substituted delivery where a specific delivery was impracticable. Until the money was converted into exchange for' transmission, he would hold it under the duty arising by his employment; and after such conversion, if authorized, the same duty would arise as to the exchange. The right of property in the money, or substitute for it, would be in the school fund. Authority to change its form for purposes of transmission would not authorize its conversion to his own use or for any other purpose. There is nothing in the act which implies an intent to credit him, and he could not, without the consent of his client, create the relation of' creditor and debtor. That is a relation which should arise only by consent of both parties. Bankers and perhaps-persons engaged in other pursuits conduct their business with money deposited, and the right to use such deposits is-implied from the character of their pursuits. In such cases the right of use carries the right of property, and the relation of debtor and creditor springs from the deposit. But a deposit of money creates the relation of debtor and creditor, and passes the right of property in the money only when it is made with the understanding, express or implied, that a right of use goes with the deposit. Such is not the case with money collected by an attorney at law; it is not part of his business to use the money of his client; he collects it for the sole purpose of transmission.
This court has twice decided that an attorney, as to money-collected, was the agent of his client. Palmer v. Ashley, 3 Ark., 75 ; Cummins v. McLain, 2 Ark., 413. If he is the agent, he is not a debtor. He cannot at the same time occupy both relations with reference to the same collection. And as it is settled that he is an agent, the scope and purpose of' his agency are easily determined. His only duty is to hold the money until he can make a delivery of it. The client can demand delivery at any time after the collection ; and as such is his right, the duty of the attorney to make delivery follows.
The relation of an attorney to his client is the same whether he collects money or receives other property in the course of his employment. If he should receive for his client securities, jewels or other chattels, would it be contended that the property in them passed to him, and that he became bound to pay his client their value ? He has' the same rights and the same duties with reference to them ás with reference to money; and if money becomes his by collection, they become his if received into his possession. True, if before a felonious conversion he pay over an equal amount of other money, there is no violation of the criminal law because there is no felonious intent, and there is no civil liability because there is no damage. But the fact that an attorney may thus avoid criminal and civil responsibility, does not change his attitude towards his client. It is held by some courts, for whose opinions we entertain the highest regard, that an attorney cannot commit embezzlement as to moneys collected by him; and the reason assigned is that he is but the debtor to his client. Commonwealth v. Libbey, n Met., 64. As the reason embodies a principle in conflict with the decisions of this court above cited, the conclusion can have no controlling influence with us.
It follows from the views expressed that an attorney employed to collect demands due to the school fund is a bailee within the meaning of the act.
VI. It could serve no purpose to set out the proof. We think it supports the verdict rendered. We find no error in the record, and the judgment will be affirmed.