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Page:Harvard Law Review Volume 2.djvu/266

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248 ^^^ VAJ^D LA W RE VIE TV.

upon whether the servant be of low grade or of high grade. He may be a menial servant, or he may'be the chief financial officer of a corporation, of a municipal body, or even of a sovereign State ; yet, if his only possession is his employer's possession, he is not technically accountable.^

One need, however, have possession only of that for which he is accountable. If, therefore, one is accountable only for the rents and profits or other income of property, he need not have the legal possession of the corpus of that property. Indeed, a bailifE of land, as such, never has the legal possession of the land itself, but he does have the possession of the rents and profits received by him.2 So one may be authorized to sell and convey land, and to deliver possession of it to the purchaser, without ever having possession of the land himself ; and yet he will be accountable for the proceeds of such sale if he be authorized to receive them into his possession and he do receive them accordingly. In such a case, however, it seems that the obligation to account does not arise until the proceeds of the sale are received, or at least not till the sale is made.

Lastly, there must be a fiduciary relation between the plaintiff and the defendant, or, as the books of the common law express it, there must be a privity between them. This requirement dis- poses at once of all cases in which the defendant has acquired his possession wrongfully, or in assertion of a right to the posses- sion,^ or even without the plaintiff's permission, though without any wrongful or hostile intention.* If, however, he obtain pos- session on the plaintiff's behalf, and as his representative, though

^ The subjects of larceny and embezzlement famish good illustrations of the distinc- tion between possession and custody. One cannot be convicted of larceny, though he may be convicted of embezzlement, in respect to property of which he has the legal pos- session. On the other hand, one cannot be convicted of embezzlement, though he may be convicted of larceny, in respect to property of which he has the mere custody as the servant of the owner. Commonwealth v. Berry, 99 Mass. 428.

  • Though a bailiff of land is accountable only for the rents and proBts of the land,

and not for the land itself, yet it is not necessary, in order to render him accountable, that he should have actually received rents and profits. The reason is, that he is account- able, not only for the rents and profits actually received by him, but for what, with reason- able diligence, he might have received. To that extent, therefore, a bailiff of land is an exception to the rule that, in order to render A accountable to B, he must have received possession of property belonging to B.

  • Anon., I Leon. 266. — " Account does not lie where a man claims the property."

Com. Dig., Accompt (D).

  • Tottenham v, Bedingfield, 3 Leon. 24, Owen, 35, 83.