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The wilful misappropriation, by a trustee, of a thing which had been lawfully delivered to him in confidence.
The distinction between larceny and a breach of trust is to be 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 as an act of breach of trust.
This rule is, however, subject to many nice distinctions. It has been adjudged that when the owner of goods parts with the possession for a particular purpose, and the person who receives them avowedly for that purpose, has at the time a fraudulent intention to make use of the possession as the weans of converting the goods to his own use and does so 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.
In the Year Book the distinction is thus stated: Pigot. 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? Cutler said, Yes: for so long as he is with me 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 he flees with it it is 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 e comes lawfully to the possession of the horse by delivery. And so it is, if I give him a jewel to carry 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. Pigot. It can well be: for the master in these cases has an action against him.