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the office, but it was reported that he was ill, Letters were written to him by some of the par- ties begging him to settle the matter and he put it off and put it off. On Saturday, the 17th Au- gust, the creditors, who had then become sus. picious, were about to take other proceedings. A sumnions was obtained from the Bankruptoy Court for the purpose of bringing the prisoner to account. It was sent to be served upon him and it was found he had just previously gone to Macao. He obtained no leave of absence either from the Governor or the Court. The summons was sent after him to Maono on the Mon. day and served upon him, but he did not return. Certain correspondence took place between the Governor of this Colony and the Governor of Macuo and finally a police constable who had been sent over with a warrant found him on board the steamer, where he had been put by the Portuguese authorities. He was then brought back to this colony. These are the facts of ! the caso. Up to the present moment
explanation whatever has been given. The prisoner has, as he bas a right to do, reserved his dofence. For aught I know to the contrary, it is possible he may have a defence on the merits of this case that will completely exculpate bim, but until that is brought before yon I shall sub- mit that under the circunstaces, especially with regard to this matter of Lyall, Still and Co., that there is a prima facie case against him, and that until he can show you that that prima facie case is not a correct one, it would be your duty to convict him of fraudulent misappropriation at least. He has had every opportunity since his return to this Colony to inspect the books and so forth, and, as I say, he had a perfect right to reserve his dofence before the magistrate. Al- though he went to Macao, he may be able to give an explanation of that and he may be able to show on the marits be is not guilty of the offence charged. Of course, if he is able to do that no one will be more delighted than we should be to see him leave the dock without a stain on his character, bat, so far as I am instructed, up to the present timo no defence has been put forward | in any way whatever. The presumption of law, as take it, arising from his conduct amounts! to this, that with regard to the estate of Lyall, Still and Co. at all events he must have misap- propriated the money, and the only question therefore willbea question of law, as to whether he comes within the section of the rdinance. With regard to the first count, my lord, he is charged with being a public servant. There no doubt has been considerable difference of opinion as to whether the prisoner stands in that position or not. There is no decided case that I can find affecting it in one way or another, and therefore I presume if the objection is taken that the prisoner does not come within that, your Lordship will probably reserve that for argu- muent on a future occasion instead of taking up the time of the jury now, when perhaps the matter could be settled in a better way before the full court. The argnments which would be used are shortly these, that although it must be admitted Mr. Haffam, as an officer of the court, was a public servant within the meaning of the act, yet that having been appointed Official Assignee under a special Ordinance bo was not in that position. The arguments in support would be that he is the Official Assignee under the Ordinance, that he is appointed by the Governor, who takes the place of Her Majesty in making such appointments, and that he would be re- sponsible both to the Government and the Court for the performance of his duties; that though the moneys which came into his banda came in only for the distribution of the amounts among the creditors, he was also responsible to this Court and the Executive for the way in which he disposed of these amounts; he was appointed by the Governor and he was liable to be dismissed by the Governor if he did not perform his duties.
His Lordship-I very much doubt that. The Attorney-General-Well, the power of appointment is undoubtedly in the Governor.
His Lordship-And the moment he was ap pointed he became an officer of the Bankruptcy Coart.
The Attorney-General-It has always been considered, as a general rule, that where a person has the power of appointment that same person has the power of dismissal, but if your Lordship doubts it, I need not take up the time now.
His Lordship-It seems to me to be a question of evidence; if you can show the jury the fact there might be a case under that section.
The Attorney-General-What I am prepared to show is that he was appointed and received these moneys in virtue of such appointment.
His Lordship--Then I should rule he was not. The Attorney General-Then with regard to the next count, that of course includes all the moneys he has received as Official Assignee, be. cause it is charged they were received for a p blic purpose and the whole amount is included. This would apply to the first and second counts. It would appear that of the various assets that came under his control under the notification of the Government Gazette there are balances that ought to be in his possession, including Lyall, Still, & Co.'s balance, amount. ing to $56,230.18. Cut of that $56,330.18, $5,876 were in the Treasury, leaving a deficit of a little over $50.000. According to his own accounts, which will be produced before you, that is the state of the balance-sheet, and accordingly he is charged on the first count with embezzling the sum of $50,000 and on the second with misap- propriating 850,000 public moneys. With re- gard to the third count he is charged with mis- appriating $46,549.79 belonging to the estate of Lyall, Still and Co., and the evidence to support that will be his own balance-sheet, bringing down a balance of that amount, and the papers he produced showing the amount to be distributed amongst the creditors. With regard to the fourth count, $20,400, that would be the amount which be received from the bank on the 26th April, 1872. With regard to the $4,831, that is the amount obtained by Mr. Sharp and returned. The amount paid to Mr. Sharp was $5,000, there was a small amount of costs in this estate deducted, and a cheque was given for the balance, and subsequently there was a small amount paid to Mr. Sharp for costs in the same estate. These amounts are nowhere noticed in the accounts them. galves, but in the balance-shoot he shows a balance of $47,618.63, and he puts down less $168.52 paid to Sharp aud Toller for costs. That is the only notice taken of it in any way whatever. With regard to the second count it may be contended, my lord, that these wore not moneys received for a certain public purpose, and the same remarks apply to that very nearly that would apply to the first count. With regard to the third, fourth, ond fifth counts, which are under the section relating to trustees, it is only necessary
for me to call your Lordship's attention to the interpretation clause, which pro- vides that the word "trustee" shall include assignees in bankruptcy as well as certain other public officers. These, gentlemen, are the facts of the case, and of course with regard to any legal points that are involved you will take his Lordship's direction. Inood hardly say that in a case of this kind I have no doubt you will give your patient at-" tention to the whole of the evidence, although it does involve some question of accounts and figures, and that you will consider the magnitude of it in regard to amount and so forth and in re- gárd to the effect it may have on the prisoner's future career. You will give it that attention it deserves, and at the same time you will put away from your minds anything you may have hoard or thought previously to coming into court, and give the evidence placed before you your unbiased attention without fear, favour, or affection, either to the Crown or the prisoner at the bar. We all of us must feel that it is a very melancholy thing to see the prisoner in the position he is after the position ho has occupied for a large number of years. At the same time it is unnecessary to remind you that that can have no effect on your verdict. You will take the case as if it were that of any ordinary individual with whom you were perfectly unacquainted and give your ver- dict according to the facts that will be laid before you both by myself and my learned friend.
Hoa. C. B. Plunket, Registrar of the Court, WAS the first witness called. Ho said-As Registrar of the Supreme Court I am Official. Assignee in Bankruptcy. I produce the file in the estate of Lyall, Still, and Co. The bankrupts' names were George Lyall, Charles Frederick Still, and George Fraucis McLean. They traded under the style of Lyall, Still, and Co. (File put in as evidence of the proper adjudication of the bankruptcy). I produce the Government Gazette containing the appointment of the pri soner as official assignee in bankrupt estates.
Mr. Francis submitted the Gazette alone was not evidence of the appointment of the prisoner, as the Ordinance which made it evidence for certain purposes did not make it evidence for this purpose.
Soine little discussion took place on this point, and finally hia Lordship said if Mr. Francis really wished him to take a note of the objection he would do so.
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