CO885-(11-13) — Page 681

13654.

No. 49.

(BAHAMAS)

SIR,

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, 31st July 1885.

We are honoured with Sir Robert Herbert's letter of the 15th instant, stating that he was directed to request our opinion upon the following case for the guidance of the Governor of the Bahamas.

That a deficiency of over 15,000l. had been discovered in the cash balance of the Public Bank of the Bahamas.

That copies of the Colonial Acts relating to that bank, viz., 5 William IV. cap. 39, 6 William IV. cap. 18, 1 Victoria cap. 8, 4 Victoria cap. 2, 6 Victoria cap. 2, and 12 Victoria cap. 22, were enclosed for reference.

That Mr. William Henry Hall, the cashier and book-keeper of the bank, appointed by the Governor under 8 William IV. cap. 18, section 3, had been for many years allowed by the trustees to have the uncontrolled management of the bank; that he had been in the habit of making advances without the sanction of the trustees, and without proper security, contrary to the provisions of the Acts, and had not kept the books properly; but that it appeared to be generally believed in the Colony that he had not fraudulently appropriated to his own use any of the funds of the bank, and that the Colonial authorities were of opinion that there was no probability of his being convicted by a jury of embezzlement, or fraudulent misappropriation of the moneys entrusted to him.

That Mr. Hall and two sureties had given a bond to the Crown as required by the Acta 6 William IV. cap. 18, section 4, and I Victoria cap. 8, section 3, a copy of which was enclosed, but that it would be seen by the Governor's despatch of the 19th of June and its enclosures, copies of which were also enclosed, that the Colonial Attorney- General entertained a doubt whether the bond could be successfully put in suit if Mr. Hall was not prosecuted.

That Sir Robert Herbert was therefore to request that we would advise whether, assuming that Mr. Hall had committed breaches of the condition of the bond, for which he might be prosecuted criminally, the Crown without prosecuting him could successfully sue him and his sureties to recover the penalty of the bond, which was less than the amount of the deficiency of the cash balance for which he had failed to account.

In compliance with the request contained in Sir Robert Herbert's letter we have the

honour to

Report

That we are opinion that the Crown can, without first prosecuting Mr. Hall, success- fully sue both him and his sureties to recover the penalty of the bond, notwithstanding the fact that he has committed breaches of the bond for which he might be prosecuted criminally.

From such facts as are before us, we gather that the breaches in question are rather of the nature of misdemeanours than of felony, and if this be so, the doctrine, to which the Colonial Attorney-General refers, appears to us to have no application; and even if the breaches should amount to felony we still think (though this point is not absolutely concluded by authority, nor altogether free from doubt) that the sounder view is that the Crown could sue Mr. Hall upon the bond, without having first proceeded against him criminally.

We therefore advise the Crown to take proceedings against the sureties, and also against Mr. Hall in a separate action, should it be considered that a judgment against him will be productive of any practical result.

The Right Hon. Colonel Stanley, M.P.,

&c.

&c.

&c.

We have, &c..

(Signed)

R. E. WEBSTER.

J. E. GORST.

A

15927-42. 35.--19/85.

PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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