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Updated: June 14, 2025
"What is bailor and the bailee?" said Henry. "Why, Rollo bailed you his fish," said Mary. "Rollo was bailor, and you bailee." "No," said Henry, "he only gave me back my dipper, and the fish was in it." Mary asked for an explanation of this, and the boys related all the circumstances. Mary said it was an intricate case. "I don't understand it exactly," said Mary.
Larceny as bailee, on the other hand, is simply a more definite form of larceny wherein one fixes the act of carrying away the goods of another without his knowledge or consent on the person to whom the goods were delivered in trust that is, the agent or bailee.
Modern writers have added, however, the characteristically modern qualification, that the purchase must be bona fide, and without notice. /3/ It may be answered, that the proposition extends to gifts as well as to sales by the bailee, that there is no such condition in the old books, and that it is contrary to the spirit of the strict doctrines of the common law to read it in.
It is a rule of the criminal law, that, if a bailee of such a chest or bale wrongfully sells the entire chest or bale, he does not commit larceny, but if he breaks bulk he does, because in the former case he does not, and in the latter he does, commit a trespass. /2/ The reason sometimes offered is, that, by breaking bulk, the bailee determines the bailment, and that the goods at once revest in the possession of the bailor.
So finally, on the afternoon of October 26, 1871, Edward Strobik, president of the common council of Philadelphia, appeared before the mayor, as finally ordered by Mollenhauer, and charged by affidavit that Frank A. Cowperwood, as broker, employed by the treasurer to sell the bonds of the city, had committed embezzlement and larceny as bailee.
Cowperwood did or did not on the date in question get from the city treasurer sixty thousand dollars, for which he made no honest return, let me explain to you just what the people mean when they charge him first with larceny, second with embezzlement, third with larceny as bailee, and fourth with embezzlement on a check.
This did not mean that delivery was a good consideration for a promise; but, as was laid down in Southcote's Case, that delivery, without a special acceptance to keep only as one's own goods, bound the bailee to keep safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling.
9 It has been doubted whether one partner is answerable to another on the action of partnership for any wrong less than fraud, like the bailee in a deposit, or whether he is not suable also for carelessness, that is to say, for inattention and negligence; but the latter opinion has now prevailed, with this limitation, that a partner cannot be required to satisfy the highest standard of carefulness, provided that in partnership business he shows as much diligence as he does in his own private affairs: the reason for this being that if a man chooses as his partner a careless person, he has no one to blame but himself.
As a matter of fact didn't he testify here to-day that he personally had sent for Mr. Cowperwood in the first place? Why, then, in Heaven's name, this excited charge of larceny, larceny as bailee, embezzlement, embezzlement on a check, etc., etc.? "Once more, gentlemen, listen. I'll tell you why.
This defendant, Mr. Cowperwood, comes into this court to-day charged, as I have stated to you before, with larceny, with larceny as bailee, with embezzlement, and with embezzlement of a specific check namely, one dated October 9, 1871, drawn to the order of Frank A. Cowperwood & Company for the sum of sixty thousand dollars by the secretary of the city treasurer for the city treasurer, and by him signed, as he had a perfect right to sign it, and delivered to the said Frank A. Cowperwood, who claims that he was not only properly solvent at the time, but had previously purchased certificates of city loan to the value of sixty thousand dollars, and had at that time or would shortly thereafter, as was his custom, deposit them to the credit of the city in the city sinking-fund, and thus close what would ordinarily be an ordinary transaction namely, that of Frank A. Cowperwood & Company as bankers and brokers for the city buying city loan for the city, depositing it in the sinking-fund, and being promptly and properly reimbursed.
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