Odger's English Common Law

350 LARCENY.
separate parts the goods bailed to him, he was said to "break
bulk; " the bailment at once terminated, and the subsequent
appropriation of any part of the goods by him was larceny at
common law.
But it was provided by section 3 of the Larceny Act, 1861
(now repealed), that "whosoever, being a bailee of any
chattel, money or valuable security, shall fraudulently take
or convert the same to his own use or the use of any person
other than the owner thereof, although he shall not break
bulk or otherwise determine the bailment, shall be guilty
of larceny ; " and now by section 1 (1) of the Larceny Act,
1916, if a bailee fraudulently converts any article entrusted
to him to his own use, or the use of any person other than
the owner, with the intention of permanently depriving the
bailor of it, he is guilty of larceny.
The word " bailment " was construed strictly ; it was held that a
person is not a bailee, unless lie is under obligation to return the iden-
tical chattel deposited with him to its owner or to deliver it to his order. 1
A question soon arose in the case of a bailee entrusted with goods for
sale. Of course, if he misappropriated these before he sold them, he
was guilty of larceny as a bailee. But if he sold the goods and subse-
quently misappropriated the proceeds, it was difficult to see how he could
be convicted of any kind of larceny ; for the proceeds never were in the
possession of the bailor and never were entrusted by him to the bailee. It
was, however, decided that a bailee of goods for sale might be deemed to
be a bailee of the proceeds of their sale, whenever it was his duty, according
to the terms of his employment or the usual course of business in the
trade, to hand over the actual proceeds to the owner of the goods as and
when he received them. 2
If it was not inconsistent with his duty for him
to pay the proceeds into his own bank or to use the money for his own
purposes at the moment, and subsequently to remit to the bailor the price
less commission and expenses, then there was no criminal liability ; it was
merely a matter of bookkeeping, and the only remedy of the bailor was an
action of debt or of account. Hence the necessity for the statute, 1 Bdw. VII.
c 10, which is now incorporated in section 20 of the Larceny Act, 1916. 8
If a bailee pawns the goods bailed, his act does not amount to larceny
if he can show that when he pawned the goods he honestly intended to
redeem them subsequently and also that there was a reasonable likelihood
of his having money to enable him to redeem them and restore them to the
owner. But if he had merely a vague intention to redeem the goods at
1 R. v. Hassall (1861), L. & C. 58 ; R. v. Buckmaster (1887), 20 Q. B. D. 182.
2 B. v. De Banks (1884), 13 Q. B. D. 29 ; and see R. v. Aden (1873), 12 Cox, 512.
8 This point is discussed poit, p. 336.