216

APPENDIX  OF  CASES.

appellant,  as  such,  trustee,  under  18  &  19  Yict.  e.  63,  s.  24,
in  which  the  respondent  was  charged  “  for  that,  being  an
officer  of  the  said  friendly  society,  he  did,  having  in  his
possession  certain  moneys  belonging  to  the  said  society  to
the  amount  of  £31  2s.  lid.,  unlawfully  withhold  and  misapply
  the  same.  The  following  facts  were  proved  :  —
3.  The  respondent  was  duly  appointed  treasurer  of  the
society,  but  had  not  been  required  to  give  the  security
directed  by  section  21  of  the  Act.  The  moneys  which  lie
was  charged  with  withholding  and  misapplying  had  been
received  by  him  in  his  character  of  treasurer  for  the  use  of
the  society.  It  was  his  duty  to  render  quarterly  an  account
of  all  moneys  received  and  paid  by  him  on  account  of  the
society,  and  to  pay  over  to  the  trustees,  on  demand,  the
balance  due  from  him  on  such  accounts.  The  last  account
rendered  by  him  was  dated  the  5th  of  August  last,  and  it
appeared  therefrom  that  he  was  indebted  to  the  society  in
the  sum  of  ,£26  10s.  2\d.,  to  that  date,  and  from  subsequent
entries  in  the  treasurer’s  books,  further  sums,  making  a
total  sum  due  by  him  to  the  society  of  £31  2s.  lid.,  the
amount  charged  in  the  complaint.  This  sum  he  was  unable
to  pay;  and  as  he  could  not  give  such  security  for  the
payment  as  was  satisfactory  to  the  trustees,  these  proceedings ­
  were  taken.  There  was  no  charge  of  fraud  or
misrepresentation  against  the  respondent  in  respect  of  these
moneys.
4.  The  magistrate  held  that  the  inability  and  consequent
refusal  of  the  respondent  to  pay  the  balance  was  not  a  withholding ­
  or  misapplying  under  section  24.
The  question  lor  the  opinion  of  the  court  was  whether
the  magistrate  was  right  in  dismissing  the  complaint.
Oppenheim,  for  the  appellant,  cited  Sinden  v.  Banks,
3  E.  &  E.  623,  and  Ex  parte  O’Donnell,  L.  R.  1  Q.  B.  274.
John  Thompson,  for  the  respondent,  was  not  called  upon.
Willes,  J.—It  appears  to  me  that  the  statement  in  paragraph ­
  3  of  the  case  that  there  was  no  charge  of  fraud  or
misrepresentation  against  the  respondent  in  respect  of  these
moneys  makes  an  end  of  the  matter.  A  civil  remedy
having  been  given  against  a  defaulting  officer  by  section  22,
a  proceeding  of  a  criminal  or  penal  nature  is  given  by
section  24  in  respect  of  something  which  is  of  a  criminal
character.  I  do  not  say  it  is  necessary  that  the  matter
complained  of  must,  to  bring  it  within  section  24,  be  a
thing  for  which  an  indictment  would  lie.  I  found  my
decision  upon  the  language  used  in  the  beginning  and  at