his principal, out of the moneys received, and account for the balance

*Sec, 125 of the Orimes Act (No. 40 of 1900), is as follows : -

"125, Whosoever being a bailee of any property fraudulently takes or con- verts the same, or any part thereof or any property into or for which it has been converted or exchanged, to his 'own use, or the use of any person other than the owner thereof, although he does not break bulk, 'or otherwise determine the bailment, shall be deemed

three months, continued for a period of several years to receive the rents to make payments from time to time on his prineipal's behalf, but negle

Decision of the Supreme Court, 2. v. Slattery, (1905) 5 8.R. (N.S.W.):

to be guilty of larceny, andmay' Nicted thereof npon an indi " simple larceny. Phe aceused shall be taken t0 be Dailee within the meaning of tion, although he may not have tracted to restore, or deliver, thes property received by him, orm have contracted to restore, the property specifically.

ales, on a special case stated by Pring J. 'The following statement of the facts is taken from the special

ynexed to the special case. 'he appellant was convieted before Pring J., at the Central (Criminal Court, Sydney, on a charge of stealing £6,958 18s. 10d., te property of Mrs, Scanlon, ~The appellant had been employed by her as her agent to collect the rents of certain house property belonging to her. Accounts "Jetween them appear to have been satisfactorily settled up to "Velober, 1901. In April or May, 1902, Mrs. Scanlon left Sydney for Europe, and did not return until January, 1905. Before leaving she executed a power of attorney in favour of the appellant, by which she conferred on him very full authority to act for her, and amongst other things to collect her rents. In her evidence shestated that it was arranged between her and the appellant that he was to collect the rents, pay them into his own bank, and, after "payment thereout of rates, taxes, and expenses of repair, pay the -talance every three months to the credit of her account with the Commercial Bank. 'The appellant denied that any such arrange- ment was made, It was proved that during Mrs. Seanlon's absence the prisoner, at her request, paid some debts of hers, and also _iistributed money for her by way of charity.

_ After October, 1901, the appellant collected large sums of money

• wbehalf of Mrs. Scanlon, which amounted in all to over £11,000, his books showing that, after all deductions for payments made on _ ter behalf, there was due from him to her the sum of £6,958 18s, 10d. The amount alleged to have been stolen was this balance of the

411000. No part of this sam was ever paid to Mrs. Seanlon, and -thete was ample evidence that the appellant had fraudulently 'upropriated it to his own use. The appellant kept two banking 'tounts, one at the head office of the Bank of New South Wales, is business" account, the other at a branch of the same bank, "Tis"private" account. | He paid the rents received on behalf of lisprineipal into his " business" account, and from time to time thew out moneys from this account and paid them into his "Pivate" account. All these moneys he used for his own private

'qu, and the Iearned Judge's notes of the evidence, which were ny, %

L from a decision of the Supreme Court of New South H.C. or A.

purposes. Mrs. Seanlon said in her evidence that she had y authorized the appellant to use her money for his own nurs or to retain money beyond three months, and that the arrangei as she understood it, was that he should pay the moneys resin on her behalf into a separate account, and account to her fori balance. Proceedings were taken in Equity by Mrs. Sea solicitors, in her absence, against the appellant, who finally sented to a decree for the amount of the deficiency. A writ

Judge at the trial directed the jury that the appellant had in te first instance received the money rightfully, but that if hesib sequently fraudulently appropriated it to his own use he guilty of lareeny. His Honor was asked to direet the jury that

the first instance received it rightfully, but refused to so di them, 'here were also other directions asked for but which are not now material. 'The Full Court held that the leune Judge's direction was right, and that the appellant had been righ

convicted of larceny as a bailee under sec. 125 of the Crimes Ad (NS.W,) (No. 40 of 1900): R. v. Slattery (1).

Want K.C,, and Lamb, (with them Kelynack), for the appelat Before there can be a conviction under this section there must be bailment in the first instance. The first words, " whosoever being a bailee " &., must control the whole of the rest of the section. last part must be read, not as an independent enactment, but as: proviso to the first. The Court below must have read itas wholly removed the necessity, which existed under the first pi of the section, for a bailment to have been made originally. proviso was inserted to meet the difficulty that had arisen in R Hassall (2), in which it was held that a person was not guilty larceny as a bailee of the article misappropriated, unless he under an obligation to restore or deliver the specific entrusted to him. It merely declares the law as it was dedlarelit

(1) (1905) 5 S.R, (N.S.W.), 204 ; 22 N.S.W. W.Ne 92 (2) 8 Cox Cr. Ca., 491; 30 LJ. M

tease by Cockburn CJ. In R. v. Bunkall (1); R.v. De Banks e. and R. v. Holloway (Governor), Ex parte George (3), the 'opety bailed had been converted, and the Court held that there 'uasevidence that the thing into which it had been converted was e subject of a bailment.

i the Iatter part of the section is ambiguous it should be nstraed consistently with the earlier part, not in such a way to contradict it. If the legislature intended to make such change in the definition of bailment as is necessary to support conviction in this case, it would have done so by clear words.

Common Law, p. 163, as the delivery of a specific thing to some 'jeson under a promise by him to restore or deliver that thing,

ir William Jones, as stated in Wyatt Paine on Bailments,

2,and in R. v, McDonald (4), and adopted by the Privy Council, 'in Snuth Australian Insurance Co. v. Randell (5). There are three centials in a bailment, (1.) the delivery of a specific thing by the ilorto the baile ; (11.) that the property in the thing does not from the bailor to the bailee ; (111.) a promise on the part of je bailee to return or deliver a specific thing. The absence of 'any one essential makes a bailment impossible in law. In this the subject-matter of the alleged larceny was money. Before mancan be found guilty of larceny of money as a bailee it is ry to prove the identity of the money which is the subject

iralian Inswrance Co. v. Randell (5). In this ease there misuo delivery of a specific article by the bailor or his agent to

(4) 15 Q.B.D. 323, at p. 328. (5) LR. 3 P.C., 101. (6) 14 V.LR., 59.

property of the appellant, His contract was to aceomnt ty prosecutrix every three months for the balance, after makin certain payments. 'That would have been satisfied by the pay of any money, equal in value to the actual coins taken of the appellant's own bank. 'The whole of the three essen bailment were therefore absent. Where a person, who is entrsi with moneys under instructions to act generally for his prin fails to account, he is not liable to conviction for laceeny, Iti were treated as a bailee, he would be liable for not returning tie actual coins received, even though he were prepared to pay principal immediately with other moneys equivalent in vay to the moneys delivered to him. Under the power of at in this ease the appellant had the widest powers of an agent; relationship, as regards the power of dealing with the monep, was rather that of banker and customer. R. v. Pritehanl (i which was followed by Pring J., is distinguishable. In that there was evidence of a bailment of the moneys appropriata The same is true of R. v. Brodie (2) and R. v. Amort (3), of which were cases of agents, who were held liable to be om vieted of larceny as bailees under see. 125. 'Those eases mn all have proceeded upon that ground. 'They are not auth for the contention that there can be a conviction for larceny unl this section in the absence of bailment in the first instance,

Sly K.C. and Hamilton, for the respondent. Sec. 125 eal the definition of bailment at common law, and this case coms within its meaning. If there had only been the first limb oft section, then it would have been necessary to prove a bailmet common law. 'The words "or any property into or for w it has been converted" are not in the English Aets, bub inserted to get rid of any difficulty as to the conversion of ie thing bailed, whether with or without the authority of the The second part of the sentence is useless if it leaves "tulle with its common law meaning. 'The words "shall be tskea be a bailee" themselves point to an intention to extend the om mon law meaning. Otherwise the first part covers ith

(1) (1901) 1 S.R. (N.S.W.), 364. (2) 1G.NS.W. LB, 86 (3) 18.N.S.W. L.R., 14.

"altered because of the decisions in R. v. Hassall (1) and R.v. tighey (2),in which the Court had held that there must be a con- tract to restore or deliver the specific coins. [See also R. v. ~ Garrett (3) and R. v. Horne (4).]

[GaerrH C.J. - Is the result then that every debt becomes a

• twilment 7)

It may be so. The debtor would not be liable under this tion unless he fraudulently misappropriated the property. "Debt" is defined as included in " property" by this Aet (see. 4). These words of the proviso, if added to the definition of bailment "by Sir William Jones, in the anthorities referred to, supply a new "definition for the purposes of this Act, 'That is the only reason- ~ able construction of the proviso. The words are "bailee within the meaning of this section," not "at common law."

(GrirerrH C.J. - But it is contended that this particular money vas not Mrs, Seanlon's property.]

The rents are her property. The agent was to collect them, and pay them to her credit. Even if, under sec. 125, the identity of the property subject to the bailment must be preserved, there masevidence that he had no authority to mix those moneys with

• hisown, and the jury must be taken to have found on that point 'giinst him. When he drew the money out of the Commercial Bunk it became impressed with her instructions and was her "property, and he misappropriated it. 'The specific coins were not t le returned to her, but their equivalent, the thing into which heconverted them, at some stage or other became her property.
• Thiswas not a general collection, but a collection of definite sums 'stents, That is sufficient identification. The payment of the money into the bank, being in accordance with the instructions, "did not affeet the ultimate mandate, to pay the balance to the Prseeutrix. The number of conversions or exchanges did not take any difference. He was not entitled to say that, because he Withheld the money and did not carry out her instructions, it _ sed to be his prineipal's property.

1 requires no assistance from the proviso. The law was H.C.or A.

(GrieritH C.J. - Lareeny is of a particular thing, Theme g two meanings of " property," one beneficial ownership, and other the technical one lying at the root of the law as to laren

'The possession was in the appellant, but the property, in the strict sense, modified by the new defi i Mrs. Scanlon. If not, the case R. v. De Banks (1), was wrong decided. The facts in the present case are similar,

[Gnurrrri C.J. - If the money had been sovereigns, ould thie, who took them from the agent, have been charged with stealing the property of the principal 7]

Not at common law, unless there was a contract to restore « deliver the specific coins, but under this section that is no louger necessary. Assuming, but not admitting, that there was only obligation to account for the balance, that means that a sm equivalent to the balance was to be paid. The iast part of the section must be construed as if it read: "The aceused shall be deemed a bailee of the substituted article when he has contractal only to restore or deliver any equivalent of the property recsive, equally as in the case where he has contracted to restore or deliver the specifie property received." The property is thus always ia the bailor. The offence is just as complete if only a part of the property bailed is fraudulently converted. 'The fact that the cou- tract would be performed by the rendering of equivalent moneys does not take the case out of the section, though it would have excluded the case from the head of larceny as a bailee under th law before 1883, the date of the Criminal Law Amendment dd 46 Vict. No. 17. The effect of the section, though the provision not scientifically drawn, is to take away the third requirement of bailment, that the specific thing the subject-matter of the tram action is to be restored or delivered. By logical deduction frum that provision it is no longer necessary that the article into whieh the original article has been converted, nor the original atte itself, should remain the property of the bailor, in the eommon law acceptation of the term in relation to lareeny. A thing may be returned either itself or in the form of an equiv cannot any longer be the specifie property of the bailor in

mon law sense. 'The common law incidents depending upon formerly distinctive feature of bailment, viz, that the perty to be restored or delivered must be a specific thing, no longer attach to the term bailment. In this case the specific things bailed were coins, cheques and other things received from tenants. 'The contract as to their disposal by Slattery satisfies jnevery requirement the definition of bailment under the section. The receipt of rents may be a form of bailment at common Jaw: Coggs v. Bernard (1).

In 1871 a Royal Commission sat to consider the state of the aw in New South Wales, and their finding states that the evil 'to be remedied by legislation was that under the existing law there was no offence in cases where the thing bailed was not to be returned. That is a matter which this Court may consider asan indication of the intention of the legislature in the enact- ments dealing with that particular subject: Hastman Photo- gniphic Materials Co. v. Comptroller-General of Patents, Designs and Trade Marks (2).

Knowing that there was this evil, and that the legislature wsed to remedy it, and that there are no other sections in the Act which would give a remedy in the particular circumstances of this case, the section should, if capable of it, receive that construction which will provide a remedy. This is a general section imposing a lighter punishment designed to cover cases that are not specially provided for in the following sections whiting to frauds by agents, which impose severe punishments forcertain specified offences of a more serious nature. 'The mere fact of possible overlapping is no argument against a particular construction, It is a common thing in our law for special enact- ments and general provisions to overlap. The history of the 'legislation on the subject supports the argument for the respon- dent. All the Statutes up to 1881 left this class of ease unprovided for. [They referred to the Acts 14 Viet. No. 6, and 22 Viet. No. 4] There was a series of cases ending in R. v. Horne (3), which "decided. 'Then in 1883 the Act 46 Viet. No. 17, by see. 71 'dealt with this matter, adding to the former sections, which were

()2 Ld. Raym., 909, at p. 918, 1898) A.C. 571. (3) 2N.S.W. LR, 187.

in effect the same as in the English Acts, the 'words already referred to. Since that date the Supreme Court in Ry, Brg (1), and in 2. v. Amora (2), has decided that persons eom under circumstances similar to those of the Present case wer rightly convieted, being bailees within the meaning of se. 46 Viet. No. 17. In 1900 the legislature consolidated the cin Statutes, and re-enacted sec. 71 of 46 Viet. No. 17 in identi terms in sec. 125 of the Crimes Act 1900. Since that the Supene Court in R. v. Pritchard (3) has followed its previous decisions and in this case has interpreted those decisions as being foun upon the extended definition of bailment now contended for, Ths Court should therefore follow those cases. They referred also to Pollock and Wright on Possession in Common Law, pp. 161, 163; and Stephens v. Badcock (4),

Want K.C,, in reply, referred to Orton v. Butler (5),

Gnurrrra C.J. [His Honor having shortly referred tothe fie

as already set out, continued:] 'The question is not whether the appellant was guilty of fraudu- lent misappropriation, but whether he was properly convicted of larceny. That is a dry technical question, and in order to ansm it we must deal with the Statutes as we find them.

Iv is clear that at common law the prisoner could not have charged with larceny. Larceny under the English law was ubjet to many peculiar rules. It was necessary first of all that the charg should have reference to some specific thing. It must alleged and proved that the thing said to have been s whether it was a sum of money, coin, or something represen money, or anything else, was the property of the person proseetl ing. It was necessary also to prove what was called a taking and carrying away, and the taking must be from the prosecutor @ from someone whose possession was the possession of the preset tor. Any defect in this proof was fatal to the charge. Onerestal these rules was that a person entrusted with property to hold for

()) IB N.S.W. LR, 436. (4) 3B. & Ad., 354, (2) 18. N.S.W. LR. 114, (5) 5B. & Ald, 652. (3) (1901) 1 S.R. (N'S. W.), 364.

soother, who eonverted that property to his own use, could not be H.C. or 4. 'darged with Iareeny, beeause he did not wrongfully take it away, 19°. hosing had it lawfully in his possession, It was held by the Star srarseey Chamber in the 15th century that if a bailee broke bulk, as it was Tur Kine 'wid, and took away part of the goods fraudulently, he might be - _ tonvieted, beeause by doing so he took that part of the goods out of the posession of the owner, and so had been guilty of a felonious taking and carrying away. Up to 1857 the law remained that, tsa general rule, a bailee of goods could not be convicted of " areny of the thing bailed. Shortly before that, in New South Vales, a law dealing with what was called larceny by carriers ad been passed. But in England the general rule was, as stated ly Sir James Stephen in his General View of the Criminal Law of England, pp. 51, 52, 53, that fraudulent misappropriation of roperty was not a criminal offence if the possession of it was originally honestly obtained. That is still the law in England and New South Wales, except so far as it has been altered by Statute. Theexceptions made in England, which were made here at a hhter period, were as follows: First, servants embezzling their misters' money were excepted in 1799 from the protection of this rule; secondly, in 1812, bankers, partners, merchants, attorneys and other agents misappropriating money entrusted to them were excepted ; thirdly, in 1827, factors and others fraudulently pledg- ing goods; and in 1857, trustees under express trusts fraudulently disposing of trust funds; and in the same year bailees fraudulently nisappropriating goods bailed to them were made liable for ~ dateeny. Now, the Statute of 1857 (20 & 21 Viet. e. 54), which was wlerred to by Owen J. in his judgment, was entitled "An Act for the punishment of frauds committed by trustees, bankers, and ther persons entrusted with property." 'The fourth section provided that any person who, being a bailee af property, should fraudulently take or convert the same to his own use or the use of any person other than the owner thereof, although he should not break bulk or otherwise determine the thilment; should be guilty of larceny. 'The same Act contained Wovisions relating to trustees, bankers and other fiduciary agents. 'Theterm "property" in that Act did not include money or valuable

securities. 'The Act 22 Viet No. 9, which was passed jn South Wales about the same time, contained practically the sup provisions. 'Then in one of the Criminal Law Consolidation 4 in England, 24 & 25 Viet. e. 96, ealled the Larceny Act, that tion was re-enacted in these words: " Whosoever being a h of any chattels money or valuable security, shall fraud take or convert the same to his own use, or the use of any py other than the owner thereof, although he shall not break bulky otherwise determine the bailment, shall be guilty of laeeny. may be convicted upon an indictment for larceny." 'That is history of the legislation in England. Under those Sta applying the old law as far as it had not been altered, it m necessary to prove that the property fraudulently converted the property of the bailor. 'That was an essential condition, I that proof was wanting there could be no conviction. It wash

Although he had received them for a specifie purpose, he ent not be convicted of larceny as a bailee of any specific sum of th money received, because he was not a bailee of that speeifie sun It becomes necessary, therefore, in order to construe the seti now before us, to consider what a baile is.

A definition was read during the argument from Pollock « Wright on Possession in the Common Law, which we are pared to accept as a correct definition. It oceurs at page 103 and is as follows: " Upon the whole, it is conceived that in genen any person is to be considered as a bailee who otherwise than a servant either receives possession of a thing from another or consents to receive or hold possession of a thing for another upom an undertaking with the other person either to keep and or deliver to him the specific thing or to (convey and) apply specific thing according to the directions antecedent or future the other person."

Mr. Hamilton in his very able argument admitted that ment implies three things: first the delivery of some spell article by one person to another; second, that the thing deliv should remain the general property of the bailor; and third, that

specific thing into which it is converted under the terms of the bailment, is to be returned to the bailor or delivered to some onfor him. 'That is substantially correct. There are then {hree elements - a specific thing is delivered, the thing delivered ins the property of the bailor, or at least does not become property of the bailee, and the thing itself or something for which it has been exchanged under the contract of bailment is to restored or delivered. If the thing is applied under the instructions given by the bailor, as for instance, if an animal is trusted to another to be sold and the proceeds applied in a putienlar way, the question whether the proceeds are or are not at "common law the subject of a bailment, is a question of evidence, asappears from the ease of R. v. De Banks (1). The evidence "night show that under the terms of the contract, the thing into whieh the original article was to be converted was to become the property of the bailor or the contrary. If the contract showed that the specific thing was to become the property of the bailor then there was a bailment of that thing, otherwise not. That Ising the common law, the decision in the last case cited to us, Ry. Holloway (Governor), Ex parte George (2), was to the same tet. There securities had been delivered by the bailor to another for the purpose of raising a loan upon them. The question was mhether,under the terms of the original delivery, the specific money

which the bailee was to receive by way of loan, was to remain

• the property of the bailor or become the property of the bailee. That was under the common law. It was conceded here that "tnder the common law this prosecution could not be maintained 'for the deficiency resulting from two or three years' transactions the prisoner as agent for Mrs. Scanlon, because in such a case there was not at common Jaw a bailment. It was not consistent ith the terms of his employment as agent,as stated in herevidence, that he was to treat all the sovereigns, cheques, and bank notes hich he received as her specific property. If, for instance, this 'operty had been picked out of his pocket while he was carrying itabout; the thief could not have been charged with stealing Mrs lon's money, Tt is clear from her instructions and the course ldealing between the parties that the property was to be dealt

1. 18.QB.D,, 29. (2) 66 L.J.Q.B., 830.

with as a mixed fund, out of which he was to make paymenaen her behalf, and account to her for the balanuee, At eommon jy that was not a bailment, because the money was received under such eirenmstances that the specifie money received was nat be handed over to her.

But it is said that the case is different under the Statate ap of New South Wales. The amendment of the law relied w was first introduced in New South Wales in the Criminal Inw. Amendment Act of 1883. Sec. 71 of that Act provides tht "Whosoever being a bailee of any property fraudulently tals or converts the same or any part thereof - or any property into or for which it has been converted or exchanged - to his own we or the use of any person other than the owner thereof - althoagh he shall not break bulk or otherwise determine the bailment - shall be guilty of larceny and may be convicted thereof upon an indictment for larceny." Now, stopping there, a change was introduced into the law by the use of the words "or any property into or for which it has been converted or exchanged," That is_ to say that, if a bailee, according to the definition I have read, having received property, whether it was to be returned in specie or to be disposed of under the instructions of the bailor, convertel it into something else, and then fraudulently converted tht substituted property to his own use, or the use of any other person than the owner, he should be guilty of larceny. That clearly made this change in the law, that, whether the conversion of the article bailed was authorized by the bailor or not, tht | baile was equally guilty of larceny if he made away with the substituted property. But these words,as to which thedificalty arises, were added to the section: " And the accused shall be taken to be a baile within this section although he may not have contracted to restore or deliver the specific property received by him or may only have contracted to restore or deliver the property specifically." What we have to do is to construe thes words. It is said that they have entirely altered the law of bailment so far as regards lareeny. The first observation that : suggests itself is that there is nothing to show an intention e alter the law of bailment in general. 'The legislature merly provides that certain eases shall fall within the section whiel

ould not otherwise have done so. They altered the law in some

cts, Butinwhat? It must be borne in mind that from 1857, 'nen the first English Statute was passed, and theneeforward, the books had spoken of a new offence, that of larceny as a baile. Tpiruth it was only a particular form of lareeny, but that was theterm commonly used. 'The old rule was that a bailee could

• utbe guilty of larceny. 'This Statute said that he might be, tndso altered the law. We must consider the legislature to have jad that in their mind. And in construing these words we
• ould, f possible, give them some sensible meaning as altering tie law, and not as being futile. The first point arises on the words: "The accused shall be taken to be a bailee within this section." Of what is he to be taken to be a bailee? It 'inust be of something. You cannot have a bailee in the abstract, any more than you can have, for instance, a husband in the alstract, There must be some property of which he is a bailee. It must mean therefore one of two things, either a bailee of the specific property received by him from the bailor, or of the poperty which was substituted for it. Let us see which of these constructions will give a sensible meaning to the words. Take the first. There the provision is that the accused shall be taken tbea bailee of the property received by him, although he may ot have contracted to restore or deliver it, or may only have contracted to restore or deliver it. But both these conditions "ay be absolutely irrelevant to the question whether he was a nile or not. A man is not necessarily any the less a bailee 'teeause he has not contracted to restore or deliver the specific Property received by him. If the terms of the bailment were that he should sell the articles he is no less a bailee, and if he cmtracted to give it back to the bailor, and converted it, he _ Would be none the less a bailee. So that on that construction

the legislature have declared that he is a bailee notwithstanding

the existence of circumstances which have nothing whatever

'odo with the case. On that construction therefore the words i lave no sensible meaning. Such a construetion should not be : weorted to unless we can find no other one which will give a

• 'asible meaning to the words. Let us turn now to the second | Wssible construction ; the accused shall be taken to be a bailee

received by him. Now that would make a material change in the law, ba under the common law, if the bailee had not contracted to

reasons already pointed out. The property in those goods en not then have been laid in the bailor, and under these cireumstance

for something else, he might not at common law be a baileeofth property put in its place. Hence arose a difficulty in layi property in the thing substituted. 'That difficulty is removed the second construction of the words of the section, and a full meat

ownership of the substituted article, and in that respect alters third condition or element referred to by Mr. Lamb and Hamilton, that the thing, or some specific thing into which th thing bailed has been converted or exchanged under the terms of the bailment, is to be returned to or applied under the direction of the bailor. It becomes no longer material to consider whe the thing into or for which the original article was converted ' exchanged was so converted or exchanged under the terms of contract or not. But in all other respeets the Statute leaves

law unaltered. An essential condition in all cases is that th thing first delivered remained the general property of the > So that really the section has no application to such a ease 8 present.

iy is received under the cireumstances disclosed in this t remains the property of the bailor or becomes the property ifthe agent. I will deal with that presently.

Reliance was placed by the respondent upon several cases

Crimes Act 1900, under sec. 125 of which this charge is laid, 'hich takes the place of sec. 71 of the Act 46 Viet. No. 17. 'The was R. v. Brodie (1), and the second R. v. Amora (2), conclusions arrived at by the learned Judges in those eases we entirely consistent with all that I have stated. They treated theterms of this part of the section as relating to the substituted ty only. They pointed out that under the old law the iy in the substituted article would not be in the bailor, and the effect of this section was that the substituted thing came the property of the bailor, and that therefore the bailee ld be guilty of larceny of that thing. A careful consideration

And, if may say so, I think that they were right. 'The founda- of both decisions was that there was an original bailment. hether there was an original bailment in those cases

may be yen to question, but we are not now called upon to inquire into triticise the reasons for which in those cases the Court thought 'that there had been a bailment in the first instance. But, if they 'wae right in thinking so, then the consequence that the prisoners ate properly convicted necessarily followed upon their eonstrue- tion of these words of the section. As regards that question each se must stand upon its own merits. Now, can it be said in this case that there was an original lalment? Mr. Want referred us to a case in which it was held You cannot bring an action for trover for money, because isin the case of money no obligation to restore or deliver specific coins. There must be a bailment of some specific ; cheques, or sovereigns in a bag, or indeed out of a bag. tunder ordinary circumstances when money is given by one won to another with instructions to deal with it in a specific Nyy, that is not a case of bailment, but of debt. That dis- MBNS.W. LR, 436, (2) 18 NSW. LR. 14.

H.0. oF A. tinction was clearly pointed out by the Privy Comnel inthe,

of South Australian Inswrance Co. v. Randell (I), «A ig ment on trust implies that there 18 reserved to the bailor right to claim a re-delivery of the property deposited in bail but, " whenever there is a delivery of property on a conte fy an equivalent in money, or some other valuable commodity, not for the return of the identical subject-matter in its or or an altered form, this is a transfer of property for valueiti a sale and not a bailment." So, if there is a receipt of mung under a contract, not to hand over the money received, but account for it by paying a balance that may remain after eanyi

to be perfectly clear. It follows that in this case the rela between Mrs. Seanlon and the prisoner was that of prineipal agent, or creditor and debtor, not bailor and bailee. common law. The Statute does not, in our opinion, affeet the in any way. The case of R. v. Pritchard (2), decided in 19, was also founded upon the assumption made by the Court tht there was an original bailment. It is not necessary for us to whether we think chat there was such a bailment or not. learned Judges who decided it thought that there was, and tat the case was covered by the ease of R. v. Amora (3). It was it there was an original bailment, but in the absence of a bul the whole foundation of the structure is gone. ' In the present case the learned Judges thought that the mle laid down in the earlier eases to which I have referred, apple We cannot see that it has any application, because the question here is whether there was an original bailment or not, If tha was not, the whole basis is gone. 'There is another consideration with respect to the construction of sec. 125, which would be very weighty, if the reasons alealy given, viz., that the construction which we adopt is the only om which gives an intelligible meaning to the words, or makes st) sensible alteration in the law, were not conclusive. Beate mind that at common law a person fraudulently approprslitt

(1) LR. 3 P.C., 101, at p. 108. (2) (1901) 1 S.B. (.S.W.) (3) 18 N.S.W. LR, U4

inmey entrusted to him was not guilty of a criminal offence, and faat he is only guilty of an offence when his acts are made punish- ableby some Statute, we start with the proposition that fraudulent sppropriation of property is not an offence, We find that in this siatute the levislature has adopted from the Criminal Law Amendment Act, which had itself adopted them from the English Actof 1861, the Larceny Act, which re-enacted the Act of 1857, a ties of careful provisions dealing with fraudulent appropriation cf woneys by persons holding fidueiary positions. These provisions iegin at see. 165, which deals with the case of an agent misappro-

• priating money, who is made, liable only when there are instrue- tinsin writing. Sec. 166 deals with the case of an agent entrusted with any chattel or valuable security for safe custody, who niseppropriates itm any manner, See. 168 deals with the ease of anagent entrusted with property for safe custody who fraudulently wllsor in any other way misappropriatesit. See. 169 makes it an offence for a person entrusted with a power of attorney for sale _artransfer of property, to fraudulently tell or misappropriate the same, See 170 deals with the case of an agent fraudulently
• qiedging or obtaining advances on property entrusted to him. Sec.172 deals with trustees of property fraudulently misappro- ytiating it to their own use, and sec. 173 with directors who fraudulently apply to their own use the property of the com- pny. See. 177 contains a safeguard as to all these sections, that w person shall be convicted of any offence under the last preced- ing twelve sections in respect of any act or omission by him, if wiore being charged with the offence, he first disclosed the act or omission on oath, under compulsory process or compulsory examination in bankruptey. So that, when a prosecution is instituted under any of these sections, it is a complete defence to show that the accused had disclosed the fuct on oath. Whether
• thatsection would apply in this case is immaterial. _ Wefind then that the legislature carefully considered the whole estion of fraudulent misappropriation by agents and trustees, aul made specific provision with regard to it in different cases. It St. 125 is construed so as to make every agent who misappro- Mates money guilty of larceny, all these elaborate provisions Would have been futile, According then to the ordinary rule,

H.C. or A. that if possible a Statute is to be construed so as to give th

effect to all its provisions, see. 125 should be construed as re to a different subject-matter. Nobody can have any sympathy with fraudulent misapp

respect. It may be that the law in other places is more ady a and that there are Zacunc or gaps in the law of New Sil Wales. But if there are, it is for the legislature, not fort Courts, to fill them up. The contention of the Crown am to this, that any fiduciary agent who misappropriates trust fund is liable to be charged with larceny as a bailee. 'There is no sy law in the Statute book as we interpret it. For these reasons, while not in any way differing from theem struction placed upon this Statute by the Supreme Court in R. Amora (1), and R. y. Pritchard (2), as we understand those we think that the ease does not fall within the prineiple of tho decisions, nor within sec. 125, and that the conviction must be quashed.

Want KC. asked to be allowed costs, and referred to Maclead v. Attorney-General for N.S.W. (3).

Grurrirn, C.J. In criminal eases costs are not usually giv either side. There is also a very good rule that the Crown do not pay costs in such cases, Indeed, unless there is some $ giving us the power, we do not think that we can grant them against the Crown. Apart from that, we do not think that yo ought to ask for costs.

Appeal allowed. Order of Supreme ufirming conviction discharged. Cone vietion quashed.

Solicitors for the appellant, Westgarth, Nathan & Co. : Solicitor for the respondent, The Crown Solicitor of New

(1) 18 N.S.W. LR., 114, (2) (2901) 18.B. (N.S.W), 364 (3) (1891) A.C., 455, at p. 489.