SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. May Criminal Sittings, when the prosecution was conducted by Stow, Q.C. Way and J. Downer for defendant.-There is no case to go to the jury. With respect to the count of larceny, there is no evidence of the goods being the goods of the prosecutor, and the case resolves itself into whether there was a bailment. Of course at common law a bailee could not be guilty of larceny, and the question is whether the prisoner came under the Act No. 1 of 1863. In every case that has been decided under that section there has been a delivery by the owner of the property to some person to hold for him for a special purpose. There is no instance in which the owner of property depositing a certificate or undertaking to hold property for another has been prosecuted for not complying with his contract—because of course a bailment is a contract. In order to constitute a bailment there must be an actual delivery— that is a delivery by way of pawn. The authorities show that delivery was the very essence of an English pawn. Story, on Bailments, 271, supported the same doctrine. On the other side it will be contended that there was a constructive delivery. There is no case where it has been decided that a pledge can be created by such a constructive delivery as that suggested in the present case. On the contrary, there are cases that distinctly prove it was no delivery at all. A bailment must be a delivery for a specific purpose. All the cases had decided was that where goods were in the hands of a warehouseman, and he attorned to the purchaser, then the property passed; but it was expressly held that where one person was both warehouseman and vendor that rule did not apply Townley v. Crump, 4 Ad. & E., 58 Kingsford v. Merry, 1 H. & N., 503. Those cases establish the principle that the handing over a delivery order is not a constructive delivery of the goods, and certainly not where the delivery-note is handed over by the warehouseman himself. In this case it is attempted to say that Mr. Tidemann, the true owner of the goods, became the bailee by the delivery of the C SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. receipt. Then two consequences must have followed the delivery -first, that the special property must have passed into the Bank, and then that the contract of bailment must have been created from the Bank to the warehouseman. There is no case which will establish such a proposition, and on principle it could not be so. A bailment could not be created but by an actual pawn of the goods, and what had been done was rather what was known as hypothecation. Apart from those grounds the case utterly failed. In order to bring it within the Statute there must be a bailment to return a specific thing. What Mr. Tomkinson said he expected was either to receive the property or its value, or the proceeds of the sale, so that it would not come within either the first or second branch of the rule which had been established by the cases Regina v. Hoare, 1 F. & F., 647. HANSON, C.J.—I have some doubt upon the first point, whether the defendant held the goods as bailee, and will reserve the point. With regard to the other point, I take it that from the nature of the contract Mr. Tidemann might have sold the goods and taken the money to Mr. Tomkinson the next day. Stow, Q.C., for prosecution.-Of course if your Honor puts it in that way I cannot take the case any further; but I think Mr. Tomkinson's evidence hardly went to that extent. HANSON, C.J.-I am bound to say that I was very careful in listening to the evidence of Mr. Tomkinson for the purpose of seeing what the effect of it was, and I quite understand from him that if Mr. Tidemann had sold in that way, and paid the money in next morning, he would not have dreamt of complaining that there was any breach of the agreement. It is the selling and not the paying the money over that is the offence by the Statute, and the sale being lawful its character is not altered because he does not do something afterwards. I must direct an acquittal. 8, 9, 11, 18 NOVEMBER; 14 AND 15 DECEMBER, 1870; 23 MAY, 1871. CULLEN AND HOLLAND V. CHAMBERS AND OTHERS. REVIVOR.-Administration. A bill for administration was filed by J., H., C., and A., devisees against F executor, and the usual decree made. Subsequently F died, and G his executor was ordered to be defendant in his stead, and it was also ordered that E who was by the will to be in the same position as the other plaintiffs on becoming a widow, should (the contingency having happened) be also joined as plaintiff. For many years after this nothing was done. E again intermarried, and subsequently a bill of revivor and supplement was filed by the plaintiffs as Trustees under a settlement made on the second marriage of E against G and all the plaintiffs in the original suit, seeking to charge G in his character of executor and otherwise with waste and misapplication of assets. The original suit had not been revived; the bill did not pray for such revivor; nor did any reason appear in the bill why the plaintiffs in the supplemental should have separated themselves from the plaintiffs in the original suit. Held. Firstly-That the original suit must be revived, and the plaintiffs made parties before they could avail themselves of it. Secondly-That the bill should have shown special equitable grounds for the plaintiffs separating themselves from the plaintiffs in the original suit. THE original bill-in which James Chambers, Hugh Chambers, Catherine Chambers, and Anna Chambers (the three last mentioned being infants) were plaintiffs, and William Finke was defendantwas filed on the 10th October, 1862. The bill set out the will of James Chambers, the elder, then deceased, as follows:-"This is the last will and testament of me, James Chambers, of Adelaide, sheepfarmer. I give, devise, and bequeath to my wife, Catherine Chambers, the sum of three hundred pounds, to be paid to her quarterly; also my house and garden, and furniture, for her life. The whole remaining part of my real and personal estate I bequeath to my four children, namely, James Chambers, Hugh Chambers, and Catherine Chambers, and Anna Chambers. In the event of my daughter Elizabeth becoming a widow, it is my will c2 SUPREME COURT.{ CULLEN AND HOLLAND V. CHAMBERS EQUITY. that she share equally with my other four children. The management of my property, whether to sell, let, or invest, or otherwise dispose of, I appoint my executor to look after; and I appoint William Finke, Esq., of Adelaide, sole executor of this my will." The bill then alleged that the testator died on the 7th August, 1862; and that the defendant Finke proved the will in this Court on the 20th of August, 1862; that testator's daughter Elizabeth was the wife of John Holden Newman, of Port Adelaide, agent. It then alleged that the testator died seized and possessed of considerable real and personal estate, and it prayed, amongst other things, the usual accounts, and that the estate might be administered by the Court. To this bill the defendant Finke on the 5th November, 1862, put in his answer; and on the 7th November, 1862, the usual decree in an administration suit was made with some special directions, which it is unnecessary particularly to refer to. Some accounts and proceedings were taken in the Master's office, but no report was made. Finke died on the 18th January, 1864, having executed his will appointing John Chambers his executor, who proved the same on 29th January, 1864. By an order of this Court, dated 1st February, 1864, it was ordered that the said Elizabeth Newman (she having become a widow) should be joined as a co-plaintiff in the said suit, and that the same should be carried on and prosecuted by the plaintiffs against John Chambers as the executor of the said W. Finke, deceased, in like manner as if the said John Chambers had originally been named a defendant in the bill of complaint in the said suit. No other proceedings of importance seem to have been taken in the suit, but on the 20th October, 1870, the bill now in question was filed. In this bill, which was considered to be a bill of revivor and supplement, Messrs. Cullen and Holland were plaintiffs, and John Chambers, Catherine Chambers (the mother), Edward John Peake and Elizabeth (his wife), James Chambers, Hugh Chambers, Catherine Chambers, and Anna Chambers were defendants. It sought to charge the defendant John Chambers, both in the character of executor of James Chambers and as his surviving partner, and it charged him in both characters with wasting and misapplying the assets. The bill then alleged a marriage on the 29th June, 1867, between the plaintiff, the said Elizabeth SUPREME COURT. CULLEN AND HOLLAND V. CHAMBERS } EQUITY. Newman, and one Edward John Peake, and an assignment of her interest of and in the residuary personal estate of the testators unto the said Michael Cullen and Richard Holland upon certain trusts. The answer of John Chambers admitted the greater portion of the allegations of fact, but denied any circumstances to render him liable to be charged with negligence. The other defendants, being in the same interest with the plaintiffs, merely submitted their interest to the consideration of the Court. 9 November - Stow, Q. C., and Barlow, for the plaintiffs.-The first bill abated on the death of William Finke; and certain events having since happened upon which relief could not have been obtained but by a new bill the present one was filed as supplemenentary, and under it it is sought that the taking of the accounts, which had been partially done under a decree in the former suit, should be carried on. That the course here adopted is the correct one is shown by Toulmin v. Copland, 2 Phillips, 711 Brainbrigge v. Baddeley, idem, 705 Morse v. Sadler, 1 Cox, 352 Wilkins v. Fry, 1 Mer., 262 Cropper v. Knapman, 2 Y. & C., 338 Lindley on Partnership, 564. As to the relief sought it is a principle of law that the proof of one act of negligence is sufficient to induce the Court to grant an enquiry as to the whole estate; and the defendant, John Chambers, having possessed himself of chattels, and parted with them not for cash, and without taking security, would constitute a case of wilful default of itself. There was no implication of moral guilt, but a suspicion of conduct which an executor ought not in law to pursue. He had no right to part with the property except for cash, and his having taken bills especially rendered him liable for the whole debt. It was also an established principle that where there was a decree for administration, as there had been in the case of James Chambers, an executor could exercise no discretion, |