Section I. History and Definition

As already mentioned, the criminal liability of servants was extended in 1529 (21 Hen. VIII, c. 7) to cases in which their master had delivered (not into their mere custody but) into their full ‘legal’ possession any valuable goods to be kept by them as bailees for him. The ‘imbezilment’ of such goods by them was made a felony. But where money or goods were received by a servant into his own legal possession on his master's account, not from that master himself but from some third person, who intended to part with the ownership of them (either to go to the man's known master or to such person as might be entitled to receive it) the statute did not apply. In such a case the deliveror has ceased to have any possession of the goods, while, on the other hand, they have not yet reached the possession of the master; and they are thus for the time being in the servant's own possession. There they will continue until he puts them into his master's possession or otherwise disposes of them in accordance with the instructions to him by his master. Until then he accordingly cannot commit larceny of them. (Yet, inconsistently, it is held by our civil courts that this delivery to a servant by a stranger gives the master such a possession, as against third parties, as entitles him to sue anyone for damages who commits a trespass to the goods, even whilst they are still in die servant's hands.) Accordingly if, for example, a bank cashier, or a shop assistant, on receiving money into his hands from a customer, does not put it into the till, but pockets it and uses it for his own purposes, he commits no larceny. It has not reached the possession of the master; he therefore cannot legally be said to have ‘taken’ it from the master.