BREACH OF TRUST. The wilful mis appropriation, by a trustee, of a thing which had been lawfully delivered to him in con& clew.
The distinction larceny and a breach of trust is to he found chiefly in- the terms or way in which the thing was taken originally into the party's possession; and the rule seems to be, that whenever the article is obtained upon a fair contract not for a mere temporary purpose, or by one who is in the employment of the deliverer, then the subsequent misappropriation is to be considered ss an act of breach of trust. This rule is, however, subject to many nice distinctions. 15 Berg. ,gz It. Penn, 93, 97. It has been adjudged that when the owner of geode parts with the possession for a particular pur pose, and the person who reoeivee them avowedly for that purpose has at the time a fraudulent in tention to make use of the possession as a means of converting the goods to his own use, and, does eo convert them, it is larceny; but if the owner part with the property, although fraudulent means have been used to obtain it, the act of conversion is not larceny. Alison, Princ. c. 12, p. 354.
In the Year Book 21 Hen. VII. 14, the dietine tion is thus stated If I deliver a jewel or money to my servant to keep, and he flees or goes from me with the jewel, is it felony I' Cutler said, Yes: for so long as he is with use or in my house, that which I have delivered to him is adjudged to be in my possession ; as my butler, who has my plate in keeping, if be flees with it, it ie felony. Same law, if he who keeps my horse goes away with him. The reason is, they are always in my possession.
But if I deliver a horse to my servant to ride to market or the fair, and he flee with him, it is no felony ; for he comes lawfully to the possession of the horse by delivery. And so it is if f give him a jewel to earry to London, or to pay-one, or to buy a thing, and he flee with it, it is not felony; for it is out of my possession, and he comes lawfully to it. Pilot. It can well he ; for the master in these cases h Ls an action against him, viz.: Detinue, or Accouut." See this point fully discussed in Stam ford, Pl. Cr. lib l. See also Year B. Edw. IV. ful. 9; 52 Hen. III. 7; 21 Hen. VII. 15.
Cases of th3 description commonly called cases of " breaking hulk" exhibit an attempt to reach, by the device of a•constructive theft, breaches of yust. The case in Year B. 13 Rdw. IV. fol. 9, is an au thority upqn 'this point. A earlier had agreed to carry certain bales of goods, which were delivered to him, to Southampton; but he carried them to an other place, broke open the bales, and took the goods contained in them feloniously and converted them to his own use. If that were felony, or not, was the question. A majority of the judges were of opinion that if the party had sold the entire bales it would not have been felony, "but as he broke them, and took what was in them, he did it without warrant," and so was guilty of felony. This construction involves the absurd consequence of its being felony to steal port of a package, but a breach of trust to steal the whole.