Odger's English Common Law

FRAUDULENT CONVERSION. 363
his liability to be convicted of larceny of the proceeds
depends, as we have seen, 1 on the question whether it was or
was not 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. 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 owner the price less commission and expenses,
then there was no criminal liability ; it was merely a matter
of account, and the only remedy of the owner was a civil
action. This was the case, although the agent intended to
misappropriate the proceeds at the time when he received
them— unless, indeed, he had fraudulently induced the
original bailment with the deliberate intention of stealing
the proceeds. He could not be convicted of larceny, because
the proceeds never were in the possession of his principal; he
could not be convicted of embezzlement, because he was not a
clerk or servant. 2
No one can be guilty of embezzlement unless he is either " a
clerk or servant or employed in the capacity of a clerk or
servant." A third person, who receives goods or money for
a friend not in the course of any employment, cannot be
convicted of embezzlement if he fraudulently appropriates the
property which he so receives. But both these cases, and
no doubt many others, were met by section 1 of the Larceny
Act, 1901, 3 which has been repealed and re-enacted by the
Larceny Act, 1916. Section 20 (l)(iv. )of the latter Act
makes it a misdemeanour punishable with penal servitude for
seven years for any one
—
(a) who is entrusted with any property in order that he
may retain it in safe custody, or apply, pay or deliver the
property, or any part thereof, or any proceeds thereof, or
(b) who has received any property for or on account of any
other person,
to fraudulently convert the property, or any part thereof, or
I Ante, p. 350.
II Ante, p. 3H0.
3 1 Edw. VII. c. 10. See the indictment in the Appendix, No. 13.