Where a master having possession of goods, entrusts them to the care and custody of his servant, and the servant fraudulently converts them to Ms own use, he is guilty of larceny, as the goods remained in the constructive possession of the master. State v. Jarvis, 63 N. C. R. 556.
This strict rule of the common law was adopted for the purpose of protecting masters against the depredations of their servants — but it was not applicable in England to the case of a dishonest bailee until the enactment of the statute of 24 and 25 Victoria, and it has been held that the provisions of that statute do not apply to a bailment of money. Roscoe 584. The rule of the common law is still in force in this State, and is very clearly expressed in the case of Rex v. Banks, Russ v. Ryn, 441, which overrules the doctrine laid down on this subject in 2 East. P. C. 690-695, and 2 Russell, 1089. “ If the owner parts with the possession of goods for a special purpose, and the bailee when that purpose is executed, neglects to return them, and afterwards disposes of them, if he had not a felonious intention when he originally took them, his subsequent withholding and disposing of them, will not constitute a new felonious taMng, or make him guilty of felonyP It is also well settled, that if goods are delivered to a bailee and he breaks bulk, and fraudulently appropriates a part of the goods to his own use, this is a determination of the bailment, and the bailee is guilty of larceny. Roscoe 583.
The only question presented in the case before us, is wheth*319■er the prisoner was a servant, or a bailee of the prosecutor. The prisoner was employed as a “ field hand ” and as such had the charge and custody of such property as he used in the course of husbandry, but had no custody or control of the money of the prosecutor. He was not a slave and subject to the orders of a master in all respects, but he had certain duties to perform under contract. The money was delivered to him as a friend, and he was requested to take care of it, while the owner was intoxicated. The transaction, as proved by the witness, Mrs. Virginia Cope, constituted the prisoner a bailee of the money, and as he acquired possession lawfully, his subsequent dishonest conduct did not amount to the crime of larceny. State v. England, 8 Jones 397.
There was error in the ruling of his Honor, and there must be a vemre de novo.
Let this be certified.
Per Curiam. Venire de novo.