Opinion by FULLERTON, J.

should contain (says Bishop in his Treatise on Criminal Procedure, § 154) "appears, when approached through the American books, draped in mist and girded about with darkness." Observing the proper distinction between the caption and the commencement of an indictment, no valid objection will be found to the one in this case. The caption is no part of the indictment. It consists wholly of the history of the proceedings when an indictment is removed from an inferior to a superior Court.

As I have already stated, the form of an indictment, in many of our own States, and which is derived from England, is thus: "The jurors of the People of the State of in and for the body of the county of , upon their oath, present," &c. This is the commencement and all that it need contain. The caption is quite a different matter, and it had its origin in this way. Where an inferior Court, in obedience to the mandate of the King's Bench, transmitted the indictment to the crown office, it was accompanied with its history, naming the Court where it was found, the jurors' names by whom found, and the time and place where found. All this was entered of record by the clerk of the superior Court immediately before the indictment, and was called the caption; but it was no part of the indictment itself (Bishop on Cr. Pro., vol. i., §§ 145, 146; 1 Starkie's Cr. Pl., 2d ed. 233). A complete form of the caption is given in 2 Hale's P. C. 165, and in 1 Chitty's Cr. Law, 327.

This same practice prevailed in our State when indictments were removed from the Sessions to the Supreme Court, as will be seen in the case of The People v. Guernsey (3 John. Cases, 266), quoted by the Respondent.

It often occurred that these captions were defective in the statement of facts sufficient to show that the inferior Courts, where they were found, had jurisdiction. Then followed a motion in arrest of judgment, and decisions as to the requisites of a caption, viz. that it should contain an averment that the indictment to which it was prefixed was found by a grand jury of good and lawful men, giving their names, and that they had been then and

Opinion by FULLERTON, J.

there sworn and charged, &c., &c. (vide Bishop's Cr. Pro., § 155, vol. i., note 1). The same doctrine is aptly stated in Burns' Justice, vol. iii., p. 372, in these words: "The caption of the indictment is no part of the indictment itself" (2 Hale, 165); "but it is the style, or preamble, or return that is made from an inferior Court to a superior, from whence a certiorari issues to remove; or when the whole record is made up in form; for, whereas the record of the indictment, as it stands upon the file in the Court wherein it is taken, is only thus: The jurors for our lord the King upon their oath present." The difficulty in our practice has grown out of the error of regarding these decisions as furnishing a test of what the indictment itself should contain, rather than its caption, when removed to a superior Court. The consequence is, that in some of the States there have been introduced into the commencement of the indictment the averments necessary to make a good caption, thus confounding the two (Bishop's Cr. Pro., § 149, note 2). This has led to great diversity of practice, and, necessarily, to confusion; and it will be readily seen that the decisions of such States upon these questions have no application here, for the English practice has been adopted in our own State (Barb. Cr. Treatise, 180).

So far, therefore, as the objections in this case go to the form of the indictment, the latter must be considered good. Should an indictment be found in an improper manner, or by an insufficient number of jurors, the way is open for redress by motion, which secures to the accused party immunity from an illegal trial or punishment (State v. Batchelor, 15 Misso. 207, 208; Reg. v. Heane, 9 Cox Cr. C. 433, 436; 10 Jurist, N. S. 724; 3 Q. B. 238; Bishop's C. P., § 448).

I pass to the consideration of the other questions arising in this

case.

To constitute a good indictment for larceny, the thing stolen must be charged to be the property of the actual owner, or of a person having a special property as bailee, and from whose possession it was stolen (2 Arch. C. P., 7th ed. 257). Gates was neither the actual owner nor the bailee of the property stolen, and the

Opinion by FULLERTON, J.

first count in the indictment is therefore bad. He was employed by the county superintendent of the poor of Cortland county at a salary. The last-named officer is clothed by statute with the power "to employ suitable persons to be keepers of the poorhouses" (2 R. S., 5th ed. 841, § 34). And it was under this power that Gates was employed. The superintendent is, by the same statute, authorized "to purchase materials" for the support of the paupers.

It is true that, in this instance, the keeper purchased the property stolen with his own money; but it was an advance made for the superintendent, and he was by him subsequently, and before the larceny, reimbursed.

Neither was Gates in the actual possession of the property so as to have a special property therein. The character of his possession depends upon the tenure by which he held the property. If he were the mere servant of the actual owner, the possession was in such owner, not in him. If he were the servant, then the distinction between the charge and the possession of the property must not be overlooked. This distinction, though in ordinary language lost sight of, is necessary to be observed in dealing with the question under consideration.

Whilst no man is so high as to be above the reach of the law, no one is so low as to be beneath its protection. It is necessary, therefore, that we should observe critical distinctions in charging a man with a crime, lest his life or liberty be twice placed in jeopardy. And such a case might arise if the Defendant were again indicted for the same larceny, alleging the property to be in the master. Whilst, therefore, in the popular use of the terms, the servant is said to be in possession of the master's property, yet, in contemplation of law, he has the charge only. In this case, Gates could have been removed at the mere caprice of the superintendent, and his possession of the property was not such that he could have maintained a civil action for it against the thief. Indeed, if he had taken the property in the manner and with the design with which the thief did, he could have been convicted of a larceny (Coats v. The People, 4 Parker, 662).

Opinion by FULLERTON, J.

Chitty thus states the rule: "It is a clear maxim of the common law, that where one has only the bare charge or custody of the goods of another, the legal possession remains in the owner, and the party may be guilty of trespass and larceny in fraudulently converting the same to his own use. Thus, a butler may commit larceny of plate in his custody, or a shepherd of sheep. The same of a servant intrusted to sell goods in a shop. This rule appears to hold universally in the case of servants, whose possession of their master's goods, by their delivery or permission, is the possession of the master himself " (vide 1 Denio, 123, and cases there cited).

Adopting this as the rule, what practical distinction can be drawn between the relations which the butler, the shepherd, and the servant intrusted to sell goods, bear to their respective masters, and that which Gates bore to the superintendent who employed him? The position, therefore, that as a mere servant the possession of Gates was sufficient to support the allegation in the indictment cannot be maintained (Dillenback v. Jerome, 7 Cow. 294; Commonwealth v. Morse, 14 Mass. 217).

There is another class of cases involving the possession of property, much relied upon on the argument, which it is necessary to notice. They are cases where the question arose as between master and servant, where the servant was indicted for stealing from the master, and where the property stolen, though received by the servant for the master's use, had never actually passed from the latter to the former. The rule in such a case is, "that if the servant have done no act to determine his original, lawful, and exclusive possession, as by depositing the goods in his master's house, or the like, although to many purposes, and as against third persons, this is in law a receipt of the goods by the master, yet it has been ruled otherwise in respect of the servant himself, upon a charge of larceny at common law, in converting such goods to his own use" (2 Russ. on Crimes, 401, 4th ed.; 2 East's P. C. 568). This rule has no application to the case under consideration.

In the second count the property was alleged to be in the county of Cortland, and it is argued that it is bad for that reason.

Opinion by FULLERTON, J.

It is claimed that the property was vested in the superintendent of the poor as a body corporate, and that, even if it were the property of the county, such property should have been alleged to be in the Board of Supervisors. To establish this latter proposition, the act is quoted which provides that "all acts and proceedings by or against a county in its corporate capacity shall be in the name of the Board of Supervisors of such county" (1 R. S., 5th ed. 846, § 3). Notwithstanding this statute, the Board of Supervisors as such possess no corporate powers (Brady v. The Supervisors of New York, 2 Sand. S. C. R. 460). The county is made a corporation by statute (1 R. S., 5th ed. 846, § 1; Brady v. Supervisors, supra); and amongst its corporate powers is the right to purchase and hold such personal property as may be necessary to execute its corporate or administrative powers (§ 1, subd. 3). The statute designating the name in which legal proceedings by and against the county should be conducted was designed to simplify and lessen the expenses of litigation, and not to change the title of the corporation or the name in which the property should be held.

Instances of similar legislation are not wanting. Actions by and against banks, formed under the general banking law, may be by or against the president thereof (2 R. S., 5th ed. p. 560, § 194, 195). And a joint-stock company or association may sue and be sued in the name of its president or treasurer for the time being (3 R. S., 5th ed. 777).

But it is contended that the title to the property stolen was vested in the superintendent of the poor, as a corporate body, he having purchased the same in his name for county purposes, and that it should have been so laid in the indictment. This position cannot be maintained. The office of superintendent of the poor, although invested with corporate powers, is a mere agency of the county. The person who fills the office is required to give a bond to the supervisors for the faithful discharge of his duty, and is authorized to draw, from time to time, on the county treasurer, for all necessary expenses incurred in the discharge of his trust. This creates the relation of principal and agent, and in no sense can the prop