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was not charged with being a servant of the Governor, but of the Crown, and both the Go- vernor and the Chief Justice derived their powers directly from the Crown. By the chartar of the colour there were certain powers giver to the court, which flowed directly from Her Majesty, and the Governor had powers given to him under the charter and by his commission, so that it mattered little for the purpose of the argument whether the official assignee was renovable by the Governor or by the court. because both derived their powers directly from Her Majesty.
The Acting Chief Justice said certain powers were given by Ordinance.
The Attorney-General said that in a Colony which was not a Crown Colony every ordinance was passed by the legislature, was assented to by the Governor, and subsequently approved by Her Majesty, whereas in this Colony every ordinance was passed by the Governor with the advice and consent of the Legislative Council; he gave his consent under the powers given to him and every Ordinance required the sanotion of Her Majesty: it was subject to ber confirmation or disallowance. This Bankruptcy Ordinance had been specially confirmed by Her Majesty; therefore it was directly from Her Majesty that the court could exercise the powers of the Lord Chan- cellor. The official assignee was account- able directly either to the court or to the Governor. It did not matter who remored him. The Governor certainly had the power of appointment in cases where the Registrar did not set, and whoever had the power of re moving him derived that power directly from Her Majesty. That being so he would submit any person appointed official assignee ander the or dinance would be a public servant of Her Majesty. Whether he had to interfere with que estate or with several, if it were admitted that the ordin ary official assignee, that was, the Registrar of the Court, was a public servant of Her Majesty, he would contend that Mr. Huffam really sac- ceeded him and took up his duties and stood in his place. He would submit that as Mr. Huffam took up the duties of Mr. Masson with regard to the outstanding bankruptcios he was in exactly the same position as Mr. Masson was in before, with this exception, that he did not take up any of the new bankruptcios, but he was in the same position as regards the old ones.
There was
no reason why it should he held the official assignes was not an officer of the Court or Govern. ment, any more than the Registrar. He received money for private individuals, so did the Regis. trar. If it was said he did not recoive pay there was very little difference between receiving pay and composition. It would make no dif ference in the position of the Registrar if he re- ceived fees instead of salary; he would still be a public officer. The Registrar was a public officer, he would submit, in the Court of Ad- miralty, in which he received fees and no salary. The receipt of salary surely could not be the test of whether a man was a public officer, be- cause there were a large number of public officers who received no salary, at all events in England. who filled honorary offices.
The Acting Chief-Justice said he thought there was generally some small salary attached to the offices.
The Attorney-General said there were the sheriffs; they got no salary.
The Acting Chief Justice said they did through their under sheriff.
The Attorney-General said the under sheriff did the work and got the money and the high sheriff was responsible if anything went wrong. The Attorney-General in England until lately received fees and no salary, and he was always considered a very high public officer. In the Colony all public officers were in the service of Her Majesty; in England there were many public servants appointed by corporations and other bodies who were not servants of Her Ma- jesty. The distinction between public and pri- rate offices in England was that persons were not appointed to private offices by the Crown, but to public offices they invariably are. His learned friend said the Post Office Ordinance made pro- vision with regard to offences in the Post Office. Well, that was in great measure taken from the Post Office Ordinance at home and although, as be would submit, persons employed in the Post Office were in the service of the Crown, yet in order to avoid the possibility of doubt there had been special provision made for the Post Office servants. With regard to the cases cited by his learned friend what he would say was that they
had no application whatevor; they were under a different section, in which different words wore ased, and which must have a different con- struction. The only case which had been cited by him bearing on the case was that of the Queen and Glover in which it was held the bailiff was notaservant of the high bailiff. If the prisoner had been indicted as a public officer possibly he might have been convicted. The learned Attorney then cited a case in which a constable was employed by an inspector of schools to collect certain oney, which the constable misappropriated, and he was convicted as a public servant, although he was employed by the inspector of schools. In the case of the official assignee hore the Crown undertook the duties of collecting these moneys in cases where no creditors' assignee was ap. pointed, and the prisoner was appointed official assignee for that purpose. The official assignee was delegated to perform these duties by the legislature and it was approved by Her Majesty, Then with regard to those being public moneys he would submit they must be considered public moneys just as much as the moneys received by the Registrar; they were to be handed out to other persons.
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The Acting Chief Justice-You see under the Bankruptcy Ordinance they vast absolutely in him.
The Attorney-General said that was only for a certain purpose; the moneys did not become Lis even at law; he was not merely a trus- 180 in equity. Under this section if he re- ceived them as a public officer and misappre- pristed them he would be liable although the ordinance vested them in him absolutely, for the Bankruptcy Ordinance said nothing about criminal offences.
The Justice Russell said that taking that view it was not necessary he should be a public servant at all.
The Attorney-General said that if some out- side merchant had been appointed official as- signee in thirty-one estates or in one he would have become a public servant. The construction be put upon the clause was very sweeping, but not too sweeping for the circumstances of the colony. With reference to the other points, as to the appropriation of money to Mr. Huffam's own use, as he understood his learned friend's argument, he admitted that certain sums had been received by the prisoner, that certain specific sums had been shown to be in his possession, aud that large balances appeared to be due by him, but said that because it had not been shown that Mr. Huffam actually appropriated these moneys to his own use the case had not been made out. His did not think he need take up much time with regard to that ar- gument. The fraudulent trustees clause was entirely separate from the embezzlement clause in the ordinance, and, as his learned friend him. solf seemed to admit towards the end of his argument, there really was no analogy between the clauses. A trustee had the money in his own hands and might not be accountable for it for years. How would it be possible in any way to show how he had misappro. priated moneys which he could not produce? The only way in which it could be done would be by his keeping a bank hook which the ces- lui que trust could get hold of and even then it could not be done. The section would be entirely inoperative if such evidence as that were required. Everyone knew what the meaning of conversion was and what the evidence of conversion
was.
The admission and refusal were quite suffi. cient. Evca in embezzlement a departure from the country was quite sufficient to throw the onus of proof on the prisoner, but in the case of a fraudulent trustee he would ask their lordships how any jury could come to any other conclusión than they did come to on the evidence. Here they had it that Mr. Huffam, to go no further back than was necessary, received $20,400 from the bank, that he received after that a certrin amount of money more than sufficient to pay everything he was accountable for ou the estates: that he ought to have had in hand somewhere about $8,000 at the time he drew that $20,000, that he could not properly bare expended it in regard to the estate in any way, and that $20.400 at least ought to have been in his hands at the time he went away. They saw further that $4,890 had been paid into his hands as late us July. They found that he called a meet- ing, that he acknowledged having in band a very large amount of money, over $10,000, that be declared a dividend, that he promised to give