which he has arrived, viz., that the embezzle- ment count will not lie-but it has been my duty to come to a decision and I shall now pro- ceed to state as concisely as I cau the reasons for my view. In the first place I think I am right in saying that there is no decided case which bears on the subject of frauds by official assignees, and that the decision in this case must proceed upon principle. The first count in the information charges the prisoner with em- bezzlement while in the public service of Her Ma jesty under the 57th section of the Larceny Ordi nauce, and the second count with fraudulently ap plying to his own use money's which were in his bands for a public purpose. The prisoner was official assignee in 31 bankruptcies, having beso. appointed by the Governor under ordinance 15 of 1867. The jury found him guilty of the embez- zlement subject to the question of whether he was in the public service as appears by the case stated by the learned judge. Before examining the point as to the status of the prisoner. I may notice the fact brought out at the argument, that the information did not lay the property stolen in the Queen's name; no objection was taken to the non-averment, and the connt followed the statue and is enred by verdict-7 Geo. 4 cap. 61 sec. 21-Regina v. Goldsmith, L.R. 2, C.C.R. I think we are quite agreed that if it were other- wise maintainable the evidence is sufficient to support the embezzlement counts. Reg. v. Mosh 25, L.J.M.C., and other cases. The first point in the case is, whether the official assignee in this Colony is in the public service, and again, if he is, whether the prisoner is in the public service in the limited sense in which he was official assignee. The Bankrunter Ordinance of 1864 appoints the Registrar of the Supreme Court official assignee (section 7). The same Ordi- nance enacts that the Chief Justice shall be the julge in bankruptcy. The 64th and following sections point out the duties and functions of the official assignee, which are shortly to take pos. session of the bankrupts' property, pay money into the Banks ordered by the judge, and dispose of it got otherwise than in the execution of" bis duty as official assignee sud under the order of the Court." The official assignee has up till within the last three years been paid by feor from the estates fixed by a statutory rule of Court at 5 per cent. He is a necessary officer in the administration of public law. He is appointed directly by a legislative act to a post which is one of trust, confidence, and emolument, and cer- tainly, as it seems to me, concerns the public very materially. It seems to me that up to this point he is as much a public servant as is the judge of bankruptcy. It is objected, however, that the nature of the duties performed by the official assigneo is such that he cannot be called a public servant, and it is urged that the great test is con. trol; that the official assignee takes no orders from the Government and that he has to obey the Court and the Court only. It is also argued that the funds which come to his hands are the pro- perty of the creditors and only collected to be dis- tributed amongst them and can in no senso be said to be under his control as an officer in the Queen's service. The Registrar of the Supreme Court receives money paid into Court, to be paid out again to suitors. In no senso it may be said can that money belong to Her Majesty, and the same argument would apply that consequently the Registrar is not a public servant. Although the money was received for suitors and to be dis- tributed amongst them, in a case of embezzlement the money would clearly be laid as the property of Her Majesty. Can it be contended that the registrar of the Superme Court who receives such money and pays it out to saitors according to the orders of the court is not performing a duty to the public and for the public service. Are those moneys not received by him for a public purpose? Similarly the reception and division of the effects of a bankrupt's estate is for a public purpose. Again, suppose a police constable whose duly it is to take charge of a prisoner's watch and money, for example, at the Police Station, and whose duty it also is to re-i deliverthon.fraudulently appropriates them to his own use, could it be argued that they had not come into the constable's hands for a public purpose, and that he was not guilty of larosny or embezzlement P Indeed, once it is conceded that the official assiguse is a public officer it follows as a corollary that the moneys received by im in his public capacity are received for a public purpose. To state it & little differently: the argument that the mover in the hands of the official assignee belongs to the creditors and that therefore the official as- signee is not liable for embezzlement under sec. 57, I think, is met by the fact that the section
provides for laying the property, which comes into the hands of a person in the Queen's Service, or a police constable by virtue of his office, in Her Majesty's name-when it is very clear the property really belongs to A. B. or C-persons who are known. But the legal estate is : vested in the official assignee as a trusteo, and therefore it is contended топ cannot make more of it than that of a fraudulent trus tae. I confess that at first I thonght this fatal to the embezzlement count, but it must be recol- lected that the embezzlement and larceny of the! ordinance are statutable creations, and are not like common law stealing, which involves a trespass. Does the resting of the leral ostate-not owner. ship-in the prisoner not carry the case a step Earther, Inasmuch as the confidence and trust thereby reposed were increased, and the duty become more imperative to dispose of the funds coming into his hands, and entrusted to his eustody, management, or control,"in the strictest accordance with his clearly defined duty, instead of converting thom to his own use? In Reg. v. Graham 82 L. F. N. S. the prisoner was indicted for embezzling moneys whilst on the service of the Queen. Flo was appointed as agent by a Mr. Turner, who had the power of appointment and distaissal under an Act of Parliament. Graham's duties were to collect for Mr. Turner certain school fees and pay them into the Treasury. It was objected that the prisoner was Mr. Turner's pri- vate agent, and not a public officer, but the Court of Crown Cases Reserer hold that the prisoner was as much a public servant although ap- pointed by Mr. Turner as Mr. Turner himself was. As I read that case, the only difference between it and that of the official assignes fraudulently misapplying funds is the duty as to the final dis. position of those funds. In the former case the money went to the public revenue, and in the latter to the creditors, and I think I have shown it can make no difference for the purposes of the public service what the final disposition of the fund is. I have dealt with the argument up to this time as concerning the official assigneo under Ordinance 5 of 1864. I shall now apply it to the present case. Ordinance 15 of 1867 was passed to amend Ordinance 5 of 1864, and to enable the Governor to appoint some person other than the Registrar when expedient official assignee. As I have already stated, the prisoner was appointed under that Ordinance by the Governor in the end of 1867, He had in all cases where he acted the same powers, rights, duties, and obligations which the official assignee has under the principal ordi- nance, and he acted in thirty-one" bankruptcies, some of which were of very large amounts, and affented porsous in all parts of the world. In- deed, it is shown that for yoars Lyall, Still's estate could not be wound up as so many persons at great distances could not have their claims proved. It seems to me, therefore, that while these bankruptcies were not wound up, and whilst the prisoner assumod the duties of official assignee in them, be was as much a public officer, which I consider the equivalent of public servant, accord- ing to Her Majesty's regulations for the Colonial service, as the official assignee under Ord. 5 of 1864. But let us look at the Tntorprotation Ors | dinance 1 of 1867 sec. III.. which enacts-"When reference is made in any ordinance or rule of court to any public officer by the term designat- ing his office such term shall include the officer for the time being executing the duties of such office, and such other officer as may from time to time he appointed to undertake any portion of such duties." With reference to the term "trustee" in the larceny ordinance interpretation olause, it doubiless includes "assignee," and when con. nected with the definition clause in the Bank- ruptey Ordinance includes "official assignee." But it does not follow, as I think, that because "official assignee" cau coms within the trustee section, that he is therefore not a public ser- vant and cannot come within the 57th section of the larceny ordinance and as such cannot be proceeded against for the graver offence. "Assignee," too, admits creditor's assignee. As I have already intimated, it has made me hesitate a good deal knowing the opinions held by my learned colleagne on this question, but I have felt it my duty, however reluctantly, Lo state the grounds of my opinion. From what I have said, it follows that I think the verdict in the first and second counts sustainable, and as to the other counts I think there was quite enough evidence to justify the conclusion of the jury.
The Acting Chief Justice-Then the convic- tions on the two first counts are quashed and the
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