Pennoyer as partners. The witness, Pennoyer, had testified that he was not a partner, but an employee of Schwartz, and did not own any of the goods. He was credit manager upon a salary; in regulating his salary some account is taken of profits and losses. The court was right in holding that this did not constitute him a partner of Schwartz. Berthold v. Goldsmith, 24 How. 536, 542, 16 L. ed. 762, 764; Meehan v. Valentine, 145 U. S. 611, 619, 36 L. ed. 835, 840, 12 Sup. Ct. Rep. 972.

The exception reserved to the charge of the court is too general; but the refused instructions considered in connection with the charge are deemed sufficient to raise the several questions of law that have been argued.

(1) Did the court err in charging the jury, in application to the facts of several of the counts submitted to the jury, that larceny may be committed when the possession of goods is obtained by fraud, trick, or artifice, the obtainer, at the time, intending to deprive the owner of them and to appropriate them to his own use? We are of the opinion that he did not.

There is nothing in the language of the section of the Code defining larceny that negatives the conclusion; it is clearly reasonable, and has the support of many well-considered cases. Welsh v. People, 17 Ill. 339, 341; Stinson v. People, 43 Ill. 397, 398; Smith v. People, 53 N. Y. 111, 113, 13 Am. Rep. 474; Com. v. Lannan, 153 Mass. 287, 289, 11 L.R.A. 450, 25 Am. St. Rep. 629, 26 N. E. 858. The third prayer of defendant upon this point is substantially embraced in the charge; hence its refusal was not error.

(2) The second question arises on those counts where there was evidence tending to show that when defendant obtained the goods he had in view certain prospective purchasers; but, failing to make sales and report them according to his authority and instructions, afterwards converted them to his own use. In other words, did he become invested with such possession and right of possession that his subsequent conversion amounted to embezzlement rather than larceny? The court, as we have seen, charged the jury that if defendant had possession as an ordinary salesman with authority to pass the title on receiving pay

ment or part payment, or such assurances as he was authorized to receive, and then appropriated the articles to his own use, the act would be embezzlement, and not larceny. If, on the other hand, his possession was for the purpose of showing the goods to a prospective purchaser to see if he was willing to buy the same, and, if so, to submit the name of the purchaser to his employer and have him determine whether he should consummate the sale; but if no purchaser be found, or no contract approved, he was to return the article to the owner; then, if having the article for that limited purpose only, he later made up his mind fraudulently to appropriate it to his own use, the possession, in law, would still be in the true owner, and the of fense would be larceny. In such case it was added: "He was like any other servant intrusted with a piece of property to do a particular thing with it; just the same as if you sent your horse by a servant to the spring for water; and he ran away with it and stole it, he was taking away your possession of the horse, because he had not any possession of the horse in the sense in which that word is used."

The facts and circumstances of the relations of the parties and of the possession were left to the determination of the jury. The distinction between larceny and embezzlement, under the circumstances of a particular case, often becomes a close one, and in defining it the authorities are in apparent conflict in many instances. How much of this is referable to the language of particular statutes it is unnecessary to inquire. Embezzlement, as a distinct offense defined in our Code, is where any agent, attorney, clerk, or servant wrongfully converts to his own use, etc., anything of value which shall come into his possession or under his care by virtue of his employment, etc. Code, sec. 834 [31 Stat. at L. 1325, chap. 854]. Under this it must be determined, under the facts of the particular case, whether the acquired possession constitutes possession of the character intended. In Woodward v. United States, 38 App. D. C. 323, a case of embezzlement relied on by the appellant, the distinction was a close one, but under the particular facts, the court decided that the possession of the money passed into the general agent

of the owner under such circumstances as contemplated by sec. 834, and its appropriation was, therefore, embezzlement as found by the jury, and not larceny as argued. Some general expressions in the opinion must be considered in the light of the particular facts.

No hard and fast construction of sec. 834 as regards possession was declared. In earlier cases in this District it has been held that where property had been delivered to a servant or agent, with limited authority for a special purpose, and he afterwards appropriated it to his own use, the act was larceny; the possession, in law, remaining in the owner. United States v. Strong, 2 Cranch, C. C. 251, 252; Fed. Cas. No. 16,411; United States v. Rodgers, 1 Mackey, 419, 426.

Numerous authorities sustain the proposition stated by the court of appeals of New York: "The rule is that when the delivery of goods is made for a certain special and particular purpose, the possession is still supposed to reside, not parted with, in the first proprietor." Smith v. People, 53 N. Y. 111, 113, 13 Am. Rep. 474; People v. Call, 1 Denio, 120, 123, 43 Am. Dec. 655; Oxford v. State, 33 Ala. 416, 418; State v. Davenport, 38 S. C. 348, 353, 17 S. E. 37; Crook v. State, 39 Tex. Crim. Rep. 252, 253, 45 S. W. 720; Currier v. State, 157 Ind. 114, 119, 60 N. E. 1023, 14 Am. Crim. Rep. 562; Kirk v. Garrett, 84 Md. 383, 406, 407, 35 Atl. 1089. See cases cited 18 Am. & Eng. Enc. Law, 2d ed. 474; 25 Cyc. 46.

The charge of the court defined the two kinds of possession of servants or agents in terms which the jury could not misunderstand, leaving it to them to determine whether the evidence established the one kind or the other. Their verdict found that the defendant was the servant of the owner in the transaction charged in those counts, wherein the evidence tended to show that the possession had not been obtained by trick or artifice, but for exhibition to prospective purchasers, upon whose failure to purchase, the defendant, instead of returning the goods, appropriated them to his own use; that his possession thus obtained for a special, limited purpose, did not destroy the legal possession of the owner; and therefore that his subsequent con

version of the article was larceny. The evidence was sufficient to warrant its submission to the jury on this issue.

Under those conditions it was not necessary that there must have been an intent on the part of the defendant, at the time he received the articles, to convert them to his own use. That immediate intent was necessary only in those transactions where the possession had been obtained by fraud, trick, or artifice; and as to them the court so charged. But in the other instances it was only necessary that the intent to appropriate the articles to his own use should have come into existence at the time of the appropriation. See People v. Call, 1 Denio, 120, 124, 43 Am. Dec. 655.

We perceive no reversible error in the proceedings, and the judgment is therefore affirmed. Affirmed.

A motion by the appellant for a rehearing, filed March 9, 1914, was denied April 6, 1914, Mr. Chief Justice SHEPARD delivering the opinion of the Court:

Appellant moves for a rehearing, calling attention for the first time to an act of Congress, approved March 3, 1913, which amends the Code, adding the following section, 851b: "That if any person intrusted with the possession of anything of value, including things savoring of the realty, for the purpose of applying the same for the use and benefit of the owner or person so delivering it, shall fraudulently convert the same to his own use, he shall, where the value of the thing so converted is $35 or more, be punished by imprisonment for not less than one nor more than ten years, or by a fine of not more than $1,000, or both; and where the value of the thing so converted is less than $35 he shall be punished by imprisonment for not more than one year, or by a fine of not more than $500 or both; Provided, that nothing contained in this section shall be construed to alter or repeal the foregoing sections contained in subchap. II. of chap. XIX. of this Code."

The subchapter recited contains the sections defining larceny, embezzlement, and other offenses against property. The new Vol. XLII.-2.

section introduced by the amendment is at the end of the subchapter, and defines a specific offense without expressly declaring it to be larceny or embezzlement.

The contention is that this section "supersedes and takes the place of the larceny by trick section, for Congress has specifically enacted legislation on the subject."

In the opinion it was declared that under the section defining the offense of larceny, the offense may be committed when the possession of goods is obtained by fraud, trick, or artifice, the obtainer intending, at the time, to deprive the owner of them and to appropriate them to his own use. Aside from the fact that it is expressly provided that the section shall not be construed to alter or repeal the foregoing sections of the subchapter, we fail to perceive any bearing it has upon the question of larceny by fraud or trick.

What other purpose the new section may have been intended to serve is not involved.

The motion is denied.

Denied.

The Supreme Court of the United States denied a petition for the writ of certiorari, June 13, 1914.

THURSTON v. BULLOWA.

ATTORNEY AND CLIENT; CONTRACTS; ASSIGNMENTS; LIENS.

1. An attorney's lien can be established under one of three conditions: First, where a distinct proportion or percentage of the fund recov ered has been by agreement assigned or set aside for the payment of the fee of the attorney; second, where a judgment has been recovered by the attorney, or moneys are payable thereon, or there is a fund in court against which a "charging lien" may arise, and, third, where the attorney is rightfully in possession of money or papers belonging to his client subject to a "retaining" or "possessory" lien. 2. An agreement whereby an attorney's compensation for the prosecution of a claim against a decedent's estate is to be a sum at least equal to one third of the recovery does not amount to such an assignment or setting aside of a distinct percentage of the fund as to render it subject to the enforcement of an attorney's lien.