the same or any part thereof to or for his own use or benefit, etc., shall be guilty of a misdemeanor." Here the defendant got the money from Miss Taylor to hold safely until he had fulfilled her injunctions to pay off Dewsbury, and pay the balance to Whittaker. [BLACKBURN, J. The defendant did not fraudulently dispose of the mortgage security. Lord COLERIDGE, C. J. And it can not be said that the money was entrusted to him for safe custody.] The second count is framed upon the seventy-fifth section, which enacts that "whosoever having been entrusted as a banker, merchant, broker, attorney, or other agent with any money or security for the payment of money, with any direction in writing to apply, pay or deliver such money or security or any part thereof, or the proceeds or any part of the proceeds of such security for any purpose or to any person specified in such direction, shall in violation of good faith, and contrary to the terms of such direction, convert to his own use or benefit, or the use, etc., such money, security or proceeds, or any part thereof respectively; and whosoever, having been entrusted as banker, merchant, broker, attorney, or other agent, with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, etc., for safe custody or for any special purpose, without any authority to sell, negotiate, transfer or pledge, shall in violation of good faith, and contrary to the object or purpose for which such chattel, security or power of attorney, shall have been entrusted to him to sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit, etc., such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, shall be guilty of a misdemeanor." The defendant is brought within that provision by the facts, for he was entrusted with the mortgage deed to hand it over to Miss Taylor on receipt of the mortgage money which was to be paid to Dewsbury and Whittaker. [Lord COLERIDGE, C. J. He was not intrusted with the proceeds of an improperly pledged mortgage deed.] The case falls within the second part of the enactment in section 75. [PIGOTT, B. No. The foundation of the offense is that the defendant must have without authority improperly transferred or pledged a chattel or security intrusted to him for safe custody or some special purpose. If he had been indicted under section 3 for converting to his own use property bailed to him, I am inclined to think he might have been convicted. BLACKBURN, J. This money was not the proceeds of a chattel converted contrary to good faith.] Lord COLERIDGE, C. J. I am of opinion that the conviction should be quashed. The indictment is framed under two sections of the 24 and 25 Victoria,1 and consists of two counts, the first framed upon the seventy-sixth section, and the second upon the seventy-fifth section. The first count upon the seventy-sixth section is out of the question, because the defendant has not improperly dealt with any property entrusted to him for safe custody within the meaning of that section. Then the second count is framed upon the seventy-fifth section, which seems to consist of two parts; the first part relates to the case of a banker, merchant, broker, attorney, or other agent entrusted with any money, or security for the payment of money, with any direction in writing to apply, pay or deliver such money or security, or any part thereof for any purpose or to any person specified in such direction who shall in violation of good faith and contrary to the terms of such diection, convert the same to his own use or benefit. Now this case is not within that part of the section, for here there is no direction in writing to apply, pay, or deliver the money and security. Then is the case within the second part of the section? That is "Whosoever having been entrusted as banker, merchant, broker, attorney, or other agent with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund for safe custody, or for any special purpose, without any authority to sell, negotiate, transfer or pledge, shall in violation of good faith and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been entrusted, sell, negotiate, etc., or in any manner convert to his own use or benefit, such chattel or security or the proceeds of the same," etc. Now these are the facts: the defendant, as attorney for Whittaker, had obtained from Miss Taylor a sum of money advanced by her on mortgage with which to pay off Dewsbury's prior advance, and to pay over the balance to Whittaker. The mortgage deed was Miss Taylor's, and the moneys in a certain sense the moneys of Dewsbury and Whittaker. The mortgage deed was properly drawn and delivered to Miss Taylor, but the defendant misappropriated part of the moneys advanced by Miss Taylor on the mortgage. But those moneys were not the proceeds of a mortgage deed improperly transferred within the meaning of this enactment, which means shall convert either a security or money entrusted to him for safe custody or for any special purpose. The defendant, therefore, is not brought within the words of the enactment, and the conviction must be quashed. The rest of the court concurring. Conviction quashed. 1 ch. 96. NATIONAL BANKS-EMBEZZLEMENT BY CASHIER NOT PUNISHABLE BY STATE. COMMONWEALTH V. KETNER. [10 Cent. L. J. 345.] In the Supreme Court of Pennsylvania, January, 1880. Embezzlement by a Bank Cashier is not an offense at common law. Therefore the punishment provided by a State law for embezzlement by any" officer, director or member of any bank," can not be imposed upon a national bank cashier, his crime being punishable only under the United States statutes. Habeas corpus. The petition of William Torrey to the Supreme Court set forth that he was unjustly detained in the Schuylkill County jail, to await trial upon a bill of indictment charging him, as cashier of the First National Bank of Ashland, with embezzling the moneys of said bank. The petitioner suggested that the court in which the indictment had been found was without jurisdiction in the matter; that he was therefore unlawfully detained in the custody of the defendant, warden of said jail, and he prayed for a writ of habeas corpus, etc. From the record it appeared that the petitioner had been arrested by State process; and had been indicted, the indictment consisting of three counts, each of which charged the petitioner with having, as cashier of the National Bank of Ashland, incorporated under the laws of the United States, embezzled and misapplied funds of the bank, contrary to the form of acts of assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania. It appeared, further, that the grand jury had found a true bill against the prisoner, who, on arraignment, pleaded not guilty; that the case having been called for trial the jury disagreed and were discharged, and the court directed the prisoner to renew his recognizance. Whereupon be was surrendered by his bail and re-arrested. PAXSON, J., delivered the opinion of the court. It appears by the return to this writ that the relator is held to answer an indictment in the Court of Quarter Sessions of Schuylkill County, charging him, as cashier of the First National Bank of Ashland, with having embezzled the funds and property of said bank. There are three counts in the indictment, each varying the form of the charge, but not essentially changing its substance. It is almost needless to say that a habeas corpus is not a writ of error. Hence, if the court below had jurisdiction of the offense, we can not correct its rulings in this proceeding, however erroneous they may be. On the other hand, it is equally clear that if the relator is being prose cuted for a matter which is not an indictable offense by the law of Pennsylvania, or is one over which the court below has no jurisdiction, it would be our right, as well as our plain duty, to discharge him. No authority is needed for so obvious a proposition. Embezzlement by the cashier of a bank is not a common-law offense. This indictment must rest upon some statute of this State, or it can not be sustained. Has it such support? As preliminary to this question it is proper to say that section 5209 of the United States statutes provides specifically for the punishment of cashiers and other officers of national banks who shall be guilty of embezzling the moneys, funds or credits of such institutions. The relator was not indicted under this section, and could not have been in a State court. Our own legislation upon this subject may be briefly stated. We have, first, the Crimes Act of 1860,1 the one hundred and sixteenth section of which prescribes and punishes the offense of embezzlement by any person "being an officer, director, or member of any bank or other body corporate, or public company." Then we have the act of May 1, 1861,2 entitled: "A supplement to an act to establish a system of free banking in Pennsylvania, and to secure the public against loss from insolvent banks, approved March 31, 1860," which also prescribes and punishes embezzlement by bank officers. Lastly, there is the act of June 12, 1878,3 which amends the aforesaid one hundred and sixteenth section of the act of 1860, by substituting a new section in its place, and imposing a different punishment. This leaves the acts of 1861 and 1878 as the only ones which could possibly support the indictment. It was urged, however, and with much force, that the act of 1861 was only intended to apply to banks organized under the free banking law, of which it forms a part, and that as to the act of 1878, the offense charged in the indictment was committed prior to its passage. This fact was formally conceded upon the argument, and while we might not be able for such reasons to grant relief upon habeas corpus, it furnishes a conclusive reason why, upon a trial in the court below the Commonwealth could derive no aid from the act of 1878. We are spared further comment upon these acts for the reason that they have no application to national banks. Neither of them refers to national banks in terms, and we must presume that when the Legislature used the words " any bank," it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are the creatures of another sovereignty. They were created and are now regulated by acts of Congress. When our acts of 1860 and 1861 were passed there were no national banks, nor even a law to authorize their creation. When the act of 1878 was passed Congress had already defined and punished the offense of embezzlement by the officers of such banks. There was, therefore, no reason why the State, even if it had the power, should legislate upon the subject. Such legislation could only produce uncertainty and confusion, as well as a conflict of jurisdiction. In addition there would be the possible danger of subjecting an offender to double punishment, an enormity which no court could permit if it had the power to prevent it. An act of Assembly, prescribing the manner in which the business of all banks shall be conducted, or limiting the number of the directors thereof, could not by implication be extended to national banks, for the reason that the affairs of such banks are exclusively under the control of Congress. Much less can we, by mere implication, extend penal statutes like those of 1861 and 1878 to such institutions. The offense for which the relator is held is not indictable either at common law, or under the statutes of Pennsylvania. We therefore order him to be discharged. NOTES § 377. Embezzlement "Agent" Who not Within Phrase. An attorney at law collecting money is not an "agent" within the statute. Nor is a solicitor entrusted by a client with money to invest on mortgage, entrusted with it for "safe custody," within the English statute. One who gratuitously procures the discount of a bill for another, not being in any business within which such employment would fall, can not be convicted of embezzling the bill as an agent" as that word is used in the statute. "We must endeavor," said ABBOTT, C. J., in this case, “to ascertain the intention and object of the statute; and that appears to have been the punishment of persons who, in the exercise of their functions, receive securities and afterwards embezzle them. It is true that for certain purposes, a friend is an agent; but can he be called such an agent as the Legislature had here in view? Now, here the parties are merely friends, accustomed to accommodate each other; and taking the transaction as one between such friends mutually aiding each other, can he be said to fall within the operation of an act passed with such an intention and object? The words, any description whatsoever,' are certainly very comprehensive; but if had been intended to comprehend within the enactments of the statute, deposits for any purposes (such for instance as safe custody), all the preceding words 'banker, merchant,' etc., would have been unnecessary and might have been omitted. It was therefore intended to confine the operation of the statute 1 State v. McLane, 43 Tex. 404 (1875). As to who are not within the word " agent" in Canadian statute, see R. v. Haynes, 13 U. C. 2 R. v. Newman, L. R. 8 Q. B. Div. 706 (1882). 3 R. v. Prince, M. & M. 23 (1827). |