英文法律词典 B-36

BREACH¹ OF THE PEACE. A violation² of public order; the offence of disturbing the public peace. One guilty of this offence may be held to bail³ for his good behaviour. An act of public indecorum is also a breach of the peace. The remedy for this offence is by indictment⁴. Vide Pace,

BREACH OF PRISON. An unlawful escape out of prison. This is of itself a misdemeanor. 1 Russ. Cr. 378; 4 Bl. Com. 129 2 Hawk⁵. P. C. c. 18, s. 1 7 Conn. 752. The remedy for this offence is by indictment. See Escape.

BREACH OF TRUST. The wilful⁶ misappropriation, by a trustee, of a thing which had been lawfully⁷ delivered to him in confidence.

2. The distinction between larceny⁹ 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 mere¹⁰ 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. 15 S. & R. 93, 97. It has been adjudged that when the owner of goods parts with the possession for a particular purpose, and the person who receives them avowedly¹¹ 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 partwith the property, although fraudulent means have been used to obtain it, the, act of conversion¹² is not larceny. Id. Alis. Princ. c. 12, p. 354.

3. In the Year Book, 21 H. VII. 14, 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, viz., Detinue, or Account. See this point fully⁸ discussed in Stamf. P. C. lib. 1; Larceny, c. 15, p. 25. Also, 13 Ed. IV. fo. 9; 52 H. III. 7; 21 H. VII. 15.

BREACH. pleading. That part of the declaration in which the violation of the defendant¹³'s contract is stated.

2. It is usual in assumpsit to introduce the statement of the particular breach, with the allegation that the defendant, contriving¹⁴ and fraudulently intending craftily¹⁵ and subtilely to deceive and defraud¹⁶ the plaintiff, neglected and refused to perform, or performed the particular act contrary to the previous stipulation¹⁷. ?

3. In debt, the breach or cause of action. complained of must proceed only for the non-payment of money previously¹⁸ alleged¹⁹ to be payable²⁰; and such breach is nearly similar, whether the action be in debt on simple contract, specially²¹, record or statute²², and is usually of the following form: " Yet the said defendant, although often requested so to, do, hath not as yet paid the said sum of ____ dollars, above demanded, nor any part thereof, to the said plaintiff, but bath hitherto wholly neglected and refused so to do, to the damage of the said plaintiff _________ dollars, and therefore he brings suit," &c.

4. The breach must obviously be governed by the nature of the stipulation; it ought to be assigned in the words of the contract, either negatively or affirmatively, or in words which are co-extensive with its import and effect. Com. Dig. Pleader, C 45 to 49; 2 Saund. 181, b, c; 6 Cranch, 127; and see 5 John. R. 168; 8 John. R. 111; 7 John. R. 376; 4 Dall. 436; 2 Hen. & Munf. 446.

5. When the contract is in the disjunctive, as, on a promise to deliver a horse by a particular day, or pay a sum of money, the breach ought to be assigned that the defendant did not do the one act nor the other. 1 Sid. 440; Hardr. 320; Com. Dig. Pleader, C.