It will be understood, however, that Durfee v.  Jones is perfectly consistent with the view here maintained of the [226] general nature of the necessary intent, and that it only touches the subordinate question, whether the intent to exclude must be directed to the specific thing, or may be even unconsciously included in a larger intent, as I am inclined to believe.

Thus far, nothing has been said with regard to the custody of servants.  It is a well-known doctrine of the criminal law, that a servant who criminally converts property of his master intrusted to him and in his custody as servant, is guilty of theft, because he is deemed to have taken the property from his master’s possession.  This is equivalent to saying that a servant, having the custody of his master’s property as servant, has not possession of that property, and it is so stated in the Year Books. 1

The anomalous distinction according to which, if the servant receives the thing from another person for his master, the servant has the possession, and so cannot commit theft, 2 is made more rational by the old cases.  For the distinction taken in them is, that, while the servant is in the house or with his master, the latter retains possession, but if he delivers his horse to his servant to ride to market, or gives him a bag to carry to London, then the thing is out of the master’s possession and in the servant’s. 3 In this more intelligible form, the rule would not now prevail.  But one half of it, that a guest at a tavern has not possession of the plate with which he is served, is no doubt still law, [227] for guests in general are likened to servants in their legal position. 1

There are few English decisions, outside the criminal on the question whether a servant has possession.  But the Year Books do not suggest any difference between civil and criminal cases, and there is an almost tradition of courts and approved writers that he has not, in any case.  A master has maintained trespass against a servant for converting cloth which he was employed to sell, 2 and the American cases go the full length of the old doctrine.  It has often been remarked that a servant must be distinguished from a bailee.

But it may be asked how the denial of possession to servants can be made to agree with the test proposed, and it will be said with truth that the servant has as much the intent to exclude the world at large as a borrower.  The law of servants is unquestionably at variance with that test; and there can be no doubt that those who have built their theories upon the Roman law have been led by this fact, coupled with the Roman doctrine as to bailees in general, to seek the formula of reconciliation where they have.  But, in truth, the exception with regard to servants stands on purely historical grounds.  A servant is denied possession, not from any peculiarity of intent with regard to the things in his custody, either towards his master or