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no desire to take himself away from his account- ability on the part of the prisoner. There was the strong point that he did not come back till he was brought by the police, but that was after the event. On the last three counts the learned Counsel submitted the Crown was bound under the ordinary process of the criminal law to give suze affirmative evidence and show clearly and unmistakeably the appropriation of some money to the prisoner's own use. Je submitted that; in this case there was no evidence of appropria tion. On the fourth point reserved be submitted that the criminal proceedings must be initiated by the aggrieved parties. The ordinance provided that no proceedings or prosecntion should be i commenced without the sanction of Her Ma- jesty's Attorney-General, and the only reason- able interpretation of that was that there must be some other person beside the Attorney-Gene ral who was in a position to ask for, obtain, or be refused this sanetion. The words could have no effect otherwise. He also referred to the 70th and 71st sections in support of this view.
The Acting Chief Justice said it was the strongest possible sanction when the At- The pro- torney-General prosecuted bimself. viso. he took it, applied to cases where other parties wanted to take proceedings and then they must have the assent of the Attorney-General. He presumed Mr. Francis did not mean to say the proviso excluded the Attorney-General.
Mr. Francis-1 submit it does. None of the aggrieved parties are here.
The Acting Chief Justice-Why they are not I cannot conceive; it certainly was their duty.
Mr. Francis said that with reference to the last point that had been reserved, as to the validity of Mr. Huffum's appointment, it also arose on the wording of the Ordinance which empowers the Governor to appoint him. He submitted there were no words in the Ordinance which empowered the Governor to do what was done bere, to remove an official assignee then existing, Mr. Masson or Mr. Alexander, and substitute another in his place; that the act could only apply to bankruptcies to arise subse. quently to this date.
The Acting Chief Justice asked Mr. Francis if he meant to say the prisoner could now be heard to say he was not the official assignee after describing himself as such.
Mr. Francis submitted that it was open to the prisoner to be heard to say so.
The Acting Chief Justice said the prisoner had described himself in so many documents as official assignee.
Mr Francis said that would not be an estopal iu a criminal case,
The Attorney-General said he did not know whether the court would wish to hear him on all the points. i erhaps, their lordships would cou- sider it.
The Court then adjourned for an hour.
After the adjournment the Acting Chief-Jus. tice said that with regard to two of the points taken by theflearned counsel (Mr. Francis) he bad had an opportunity of consulting with Mr. Jus tice Russell and they had come to the conclusion they need not trouble the learned Attorney- General to reply on those. First, as to the evidence of the appointment of the official as- signee, it seemed to him the language of the Or- i dinance, although not so precise as it might be, yet could only be interpreted as referring to the state of things existing at the time it was passed, and that it intended to relieve the Registrar of his duties as official assignee in bankruptcies then existing. He thought the language at the end of the section, which pro. cided that the Registrar should not be relieved of responsibility for anything done before the ap- pointment of another official assignee showed that it was intended that some one else should take up existing bankruptcies. Besides that it seemed that the prisoner could not now he hoard to say that he was not appointed official assignee, as there were innumerable documents in which he had signed himself and received moneys in that capacity. There was no difference in the rulos of evidence in criminal and civil cases, and he had no doubt the rule would apply that if a man so conducts himself, whether intentionally or not, as to affirm a certain state of things exists it must be assumed it did. He thought on both these grounds, therefore, it was unnecessary to trouble the learned Attorney- General, notwithstanding the ingenions and able argument of the learned counsel Mr. Francis, With regard to the sanction of the Attorney- General he thought there was abundant proof the
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Attorney-General sanctioned these proceedings, and he could not find anything in the sections which led him to suppose it was necessary for the aggrieved parties to take setion. Mr. Justice Russell concurred.
The Attorney-Geueral then replied on the other points. With regard to the first point, that the official assignee was not a public sor- vant, he said the Larosay Ordinance was very nearly a copy of the English Consolidation Act. As to the argument founded in the fact of non- stables being specially mentioned in the 57th section, at home many constables were not un- der the control of the Crown. That pro- vision was kept in our Ordinance, but there was a great difference in the position of the police here and at home, and, as he would contend, the police would come under the general terms and there was no necessity for the introduction of those words here. But, however, that might be. the words of the suc- tion taolf were, be thought, clear. The first words in the section were the keynote to the whole of it~" Whosoever being employed in the public service of Her Majesty in this colony." Then the question who is amplo et in the service of Her Majesty ? According to his learned friend's argument, as far as he could understand it, it would appear that very few people indeed are, only persons who are in re- ceipt of money which ought to go into the treasury; but there was nothing in the Or. dinance which would limit it to that extent, Supposing a police officer who was in charge of the lock-up searched a prisoner and took away certain articles and did not return them to the prisoner, but appropriated them to his own use, although those articles would not go into the treasury but ought to be returned to the party to whom they belonged, yet the policeman would be liable under this Ordinance. So a persoU EI- ployed in a public hospital and reiving the money or goods of the patients, if he applied them to his own use was fiable under this section. Well, there was no distinction made between a policeman or person in that capacity and any other public officer. Then the only question in this caso, he would submit, was whether the prisoner in this case was a public servant. The ordinance did not require that the raoney appropriated shonld be public money at all, if it was received by him in virtue of his office.
In the section relating to common embezzlement the words "re- ceived foror on account of his master or employer" were used: in this section they were purposely omitted. In the one case it had to be shown the money was received by a clerk for or in the name of his master; in the other case it was simply money coming to him by virtue of his official en- ployment. It was a very great difference and when the sections were framed there must, have bean some reason for taking the distinction be- tween them. His contention was that whenever a public officer received money hy virtne of his on. ployment, no matter on whose account, and mis- appropriated it, he was to be considered guilty of embezzlement and of larcony from Her Ma- jesty the Queen. Now the question was, who was & person employed in the public service ? That was a very difficult question to answer. He would submit that as a general rule every person appointed to a public office directly or indirectly by ller Majesty the Queen was employed in the public service. The office of official assignee was an office created by the Bankruptcy Ordinance in this colony. That office, he would submit, was a public office just as much as any other office in connection with the court. He would submit the Registrar was a public officer.
The Acting Chief Justice said the prisoner was not the official assignee of the Court, but of cer tain estates in bankruptcy.
The Attorney-General said it was an office which by the Ordinance was to be filled by the Registrar er officio. It was by itself a public office. The Governor could remove the Registrar, in which case the official assignee would follow suit. The court might under certain circum- stances remove a particular bankrupt estate from him though he was not aware of that power. The court would investigate any charges against the official assignee and report them to the Go-
vernor.
The ActingChief-Justice said there were several clauses which would bring the official assiguee within the power of the court.
The Attorney-General said that for the pur- poses of his argument it made no difference whether the official assignes could be dismissed by the Governor or by the Chief Justice; be
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