CHAPTER XII

OF BREACH OF TRUST.

THE distinction between theft and breach of trust is to be found chiefly in the terms or way in which the thing taken originally came into the criminal's possession;1 and the rule seems to be, that wherever 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 appropriation is to be considered as an act of breach of trust.2 But, in the application of this rule, many nice cases require to be distinguished.

- 1. If the article be delivered with the design of transferring the real right, or of subjecting the receiver to a mere action for account, and not for a mere temporary purpose, or to a servant of the deliverer, the subsequent. conversion to the receiver's use is breach of trust.

The subsequent appropriation of goods that have been delivered on credit, or impledged; of goods given in loan, or for hire for a long period; or of goods where the trust is of such a kind as implies a power of management or disposal, is not theft, but breach of trust. If a watch, therefore, has been given in loan for a length of time (for it would be otherwise if the period was a few minutes or hours only), or goods delivered on credit without the price having been paid, or a debtor has impledged any moveable article with his creditor, the subsequent appropriation is the same crime. In like manner, if a furnished house be taken for a term, and the heir afterwards disposes of some of them for his own use, he is guilty of

1 Burnett, 111.-2 Hume, i. 58; Burnett, 111.3 Ibid. Burnett, 111; Hume, i. 58, 59.

breach of trust only.1 Nay, though it is quite fixed that a butler who abstracts the plate, or a shepherd the sheep, is guilty of theft, yet a livery-servant who sells his clothes furnished by his master is guilty of breach of trust; though, if he abstract his master's clothes, put into his hands to brush, he commits theft.2 The reason of the difference is, that the interest which the servant has in his own livery-clothes is of a much higher kind, and his right of possession much longer, than those of his master merely put into his hands for a special and temporary purpose. This point was settled in the case of Alexander Steele, August 13. 1669. The pannel there pleaded, “That he did actually wear and make use of the said clothes and goods during the year of his service;" and the Court, "anent the articles of dittay as to the stealing of the clothes and arms, found the same not relevant (as theft), unless it be alleged that he stole these goods such a day by breaking of his master's doors, chests or trunks." 3

Under the same rule falls the case of a factor who runs off with his employer's rents, or an overseer or steward who fraudulently disposes of the grain which has come into his possession in the course of his management, for his own behoof: for the wrong here does not lie in the original acquisition of the thing, but in the concealment of receipt and breach of trust in regard to subjects wherewith he was not only entitled but bound to intromit. So the Court found in the case of Archibald Tait, February 17. 1776. This was a suspension of a judgment of the Justices of the Peace for West Lothian, against the pannel, for fraud and embezzlement, upon the ground that the species facti set forth in the minor amounted to theft, and could not be tried without a jury; but the Court found, “that the libel did not contain a charge of theft, but of fraudulent concealment of his master's goods, and by false contrivances endeavouring to prevent those proceeds coming to his master's knowledge, and as such could be tried without a jury."5 William Dickson, factor to Robert Dundas, Esq. of Arniston, who was charged with embezzling property to the amount of above £1000, belonging to his employer, was brought to trial in March 1828, on an indictment for falsehood, fraud and embezzlement, and the indictment found relevant, though the

1 Hume, i. 59; Palmer's Case, Leach, ii. 680.-2 Hume, i. 60; Burnett, 111.3 Hume, i. 60. Ibid.; Burnett, 111.

Ibid.

case was not prosecuted to an issue from the difficulty of proving such complicated transactions.

2. Wherever the prisoner was possessed of the money or goods embezzled, not as a corpus to be redelivered in specie, but as a trust to be accounted for, the fraudulent intromission is breach of trust.

This principle applies to all who are in a responsible state as officers, and are intrusted not with the custody only, but the possession and administration of money; as cashiers and tellers of banks, collectors of taxes or parochial rates, treasurers of bodies corporate, judicial factors, and the like.' It is implied in the nature of such appointments, that the officer has the management less or more of the cash in his hands, which is intrusted to him in the mean time, under the obligation of accounting; and this obligation is not specific to return the identical pieces of money or notes delivered, but generally to account for their amount. "Si quis pecuniam ita deposuerit, ut neque clausam, neque obsignatam, sed numeratam tradiderit; quo casu nihil aliud eum debere (accipiendum est) apud quem deposita est, nisi tantundem pecuniæ solvere." Accordingly, on March 2. 1705, Robert Pringle, teller of a bank, who had embezzled the money intrusted to his care, was convicted of breach of trust.2

Numerous cases have occurred of late years, accordingly, where fraudulent embezzlement by persons intrusted with money or goods in this manner, has been prosecuted, and always under the name of breach of trust. Thus, in the case of William Stewart, clerk to the deputy-postmaster at Perth, 7th August 1809, the libel charged short accounting, and appropriating to his own use part of the money which had come into his hands in that capacity, under the name of breach of trust. In like manner, on 20th November 1820, John Douglass, clerk to a banking company, who was convicted of embezzling part of his employer's money, to the amount of £1300, was convicted of breach of trust, and transported seven years.* And, on 28th March 1825, John Corner pleaded guilty to a charge of breach of trust and embezzlement, and was impri

1 Hume, i. 61.-2 Ibid. Ibid.- Shaw's Cases, No. 16.

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soned for twelve months, he having been employed by James Mackenzie, writer to the Signet, in a public office, and embezzled part of the money which thus came into his hands in that character. The like judgment was given at the Old Bailey, February 1743, in the case of John Waite, cashier to the Bank of England, who had abstracted and sold six East India bonds, the property of the bank, intrusted to his keeping.2 And this precedent was followed by all the Judges in the case of Joseph Bazely, a banker's clerk, who was tried for appropriating a bauk-note for £100, which had been paid to him by a customer of the house in the course of business, on the principle that, as the note never was in the possession of the banker, the intromission with it could not amount to theft. Robert Galbraith was indicted for falsehood, fraud, breach of trust, and embezzlement, at Edinburgh, 12th June 1826, and imprisoned nine months. He had been employed by Messrs Mudie and Son, manufacturers in Glasgow, as their foreman and clerk, and had in that character embezzled large sums belonging to his employers, and concealed the fraud by means of false entries.1 George Mills and Charles Mackenzie, both clerks in the General Post-office at Edinburgh, who had embezzled postages received by them from persons to whom letters or parcels had been transmitted by the mail, were, in like manner, in May 1822, indicted for falsehood, fraud, and breach of trust.5 Ebenezer Anderson, cashier of the Fife Banking Company, charged with most extensive fraud, breach of trust, and embezzlement, in his situation as cashier, was outlawed for not appearing, at Perth, spring 1828; as was Robert Cochrane, agent for the Bank of Scotland at Kirkcudbright, at Dumfries, spring 1824.6 Thomas Gray, clerk to Inglis and Company; bankers in Edinburgh, was convicted of three acts of fraud, breach of trust, and embezzlement upon his employers, supported by false entries in the books, and transported seven years; 7 and David Langlands, convicted of embezzling the funds of a Benefit Society, of which he was treasurer, to the amount of £227, and concealing the fraud by means of false entries, was, on December 8. 1828, sentenced to the same punishment. George Knox, treasurer to the Lessudden Savings Bank, who pleaded guilty to embezzling the funds of the bank

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1 Hume, i. 61.—2 Leach, No. 14.-3 Ibid. i. 849.—1 Unreported. Unreported. Both unreported.—7 Syme, 254.—9 Unreported.

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to the amount of £430 was, in consideration of an uncommonly good previous character, sentenced to twelve months' imprisonment only.' And Charles M'Culloch, excise-officer, charged with wilful neglect of duty and breach of trust as an excise-officer, and making false entries to conceal his frauds, was, on November 10. 1828, sentenced to nine months' imprisonment.2

3. A shopkeeper's clerk, bookkeeper, guard of a mailcoach, or carrier who is intrusted with money, not sealed up but open, for behoof of his employers, or to be delivered at a distance to particular people, is guilty of breach of trust, if he appropriate part of the money which thus comes into his hands to his own purposes.

In cases where a shopboy takes money out of his employer's till or repositories, he unquestionably commits theft; but the case is different on principle where a clerk or bookkeeper receives payment of an account, or is intrusted with funds for behoof of his master, and he fraudulently intromits with it; or when a carrier embezzles goods put into his hands to be delivered to a particular person.3 In such a case, the money has never been properly in his master's possession; and, besides this, free permission to touch and meddle with the money implies a special reliance on the individual as worthy of trust. Accordingly, in the case of William Paterson, 30th December 1817, who was accused of six trespasses of this sort, laid alternatively for breach of trust or theft, the Solicitor-General, at calling, restricted the charge to the breach of trust libelled. So also in the case of Andrew Webster, Aberdeen, May 1783, Lords Hailes and Henderland sustained as relevant a libel which charged a carrier with embezzlement and breach of trust for abstracting a parcel committed to his charge, and for which he had given a receipt. In like manner, in the case of William Todd, Glasgow, April 1825, the pannel, who was guard of a stage-coach, was indicted for embezzling £76 delivered to him, in order that it might be delivered to several different individuals, under the name of fraud and breach of trust, and outlawed for not appearing. To the same purpose George Leslie, 1 Unreported.2 Unreported. Hume, i. 58.1 Ibid. i. 62.- Burnett, 113.-6 Unreported.

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