Debtors Act, 1869-Indictment for obtaining Property by False Pretence-Liquidation by Arrangement-ExaminationEvidence-32 & 33 Vict. c. 62. s. 11-32 & 33 Vict. c. 71. ss. 14, 18, 96, 97, 125.

On an indictment of a trader for obtaining property on credit, under the false pretence of dealing in the ordinary way of his trade, within four months before his liquidation contrary to the 11th section of the Debtors Act, 1869, an examination of the trader in liquidation taken under the 97th section of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), was admitted in evidence against him. The summons to bring up the trader for examination was issued before the certificate of the appointment of the trustee was given by the registrar. The trader attended, was examined, and the examination was taken after the giving of the certificate of appointment :-Held, that whether the summons was regularly issued or not, the trader by appearing and submitting to be examined, waived the irregularity, if any, and the examination was properly taken and admissible in evidence against the prisoner on the trial of the indictment. The Queen v. Scott followed.

CASE reserved by Cleasby, B.

The prisoner was indicted, at the last assizes held at Leeds, under the 14th and 15th sub-sections of the 11th section of the Debtors Act, 1869

For that he, being a trader, within four months before the commencement of his liquidation, obtained property on credit under the false pretence of dealing in the ordinary way of his trade, and had not paid for the same, and that he, being a trader, within the like period of four months, disposed of, otherwise than in the ordinary way of his trade, property obtained on credit and not paid for.

At the trial an examination of the prisoner, taken before the Registrar of the Bankruptcy Court, was tendered in evidence for the prosecution and objected to. * Coram Kelly, C.B.; Martin, B.; Byles, J.; Brett, J.; Grove, J.; and Quain, J. NEW SERIES, 42.-MAG. CAS.

The following are the dates of the proceedings in liquidation—

The petition was presented on the 8th of June, 1872. The first meeting of creditors was held and the appointment of a trustee made on the 28th of June, 1872. The registrar's certificate of the appointment of the trustee was dated the 5th of July, 1872. The prisoner was summoned to be examined under the 96th section of the Bankruptcy Act, 1869. The summons was issued on the 29th of

June, and the prisoner attended in pursuance of it, and was examined on the 9th of July, and again by adjournment on the 12th of July. The examination then taken was the one tendered in evidence.

The first objection was, that the summons being issued before the certificate of appointment of trustee, was not in compliance with the 96th section, and the examination taken under it obtained by an unlawful exercise of authority, and therefore inadmissible.

The summons was in the form 76 of the bankruptcy forms.

Another objection taken was, that the examination was taken by the registrar and not by the judge, as directed by the 97th section, and that there was no proof that the judge had under the 67th section delegated to the registrar the power of taking the examination.

To this it was answered that the summons was issued by the Court, and that the place, viz., the Court House, and time of examination were named in it, and that as the examination took place at the time named before the registrar as a part of the proceedings in liquidation, it must be presumed he was then acting lawfully in taking the examination.

Another objection was, that so far as regards certain questions and answers in the examination, the questions had a direct tendency to criminate the prisoner by proving the very charges upon which the indictment was framed.

Upon this objection the cases of The Queen v. Scott (1), The Queen v. Skeen (2), (1) D. & B. 47; s. c. 25 Law J. Rep. (N.s.) M.C. 128.

(2) Bell C.C. 97; s. c. 28 Law J. Rep. (N.s.) M.C. 91.

C

The Queen v. Robinson (3), were referred to on behalf of the prosecution.

A fourth objection was, that whatever the law may have been under former Acts of Parliament, yet under the present Act, as by section 108 the deposition is made evidence upon the death of the bankrupt, it ought not to be admitted during his lifetime.

A copy of the examination endorsed with my initials will be in the hands of the officer of the Court, to be referred to if necessary.

It was proved that each sheet of the examination was signed by the prisoner.

I admitted the whole of the examination.

The prisoner was convicted, but released on bail to appear at the next assizes. If the whole examination was admissible in evidence, the conviction is to stand. If the whole or any part was not admissible, the conviction is to be quashed.

Waddy (Wilberforce with him), for the prisoner. The examination of the prisoner taken before the registrar in Bankruptcy was not admissible on this prosecution on the ground that it was not a legal examination, because the provisions of the statute which enabled him to be compulsorily examined were not followed and obeyed. The cases of The Queen v. Scott (1) and The Queen v. Robinson (3) are authorities against me if the provisions of the 32 & 33 Vict. c. 71. ss. 96, 97, have been complied with, but it is contended that they have not been, because the trustee in the liquidation applied for the summons before the Court had given him a certificate of his appointment. The 97th section enables the Court to examine upon oath, &c., any person so brought before it in manner aforesaid concerning the bankrupt, his dealings or property. The 96th section provides the mode of bringing the person before the Court, and enacts that it may "on the application of the trustee" at any time after an order of adjudication has been made against a bankrupt summon before it the bankrupt or his wife, &c.

(3) 36 Law J. Rep. (N.s.) M.C. 78; s. c. Law Rep. 1 C.C.R. 80.

and if any person so summoned refuses to come before the Court, it may by warrant cause him to be apprehended and brought up for examination. By section 18 of the same Act the appointment of a trustee shall be reported to the Court, and the Court upon being satisfied that the requisite security has been entered into by him, shall give a certificate declaring him to be a trustee of the bankruptcy named in the certificate, and such certificate shall be conclusive evidence of the appointment of the trustee, and such appointment shall date from the day of the certificate. The liquidation by arrangement takes place under section 125, and by sub-section 6 of that section "the certificate of the registrar in respect of the appointment of any trustee in the case of a liquidation by arrangement shall be of the same effect as a certificate of the Court to the like effect in the case of a bankruptcy," and the powers of a trustee are the same as a trustee in bankruptcy under the 7th sub-section. The appointment of the trustee in fact takes place under the 1st sub-section of the 125th section at a meeting of the creditors, and under the 4th sub-section the proceedings in liquidation "shall be deemed to have commenced as from the date of the appointment of trustee.'

KELLY, C.B.-That took place on the 28th of June.]

But the certificate is necessary to clothe him with the character of trustee, and as he did not possess that character when the summons issued, it was not issued on the application of the trustee, and was therefore void, and the prisoner was not brought before the registrar by a summons issued in accordance with the 96th section, and his examination therefore was not legal, and as he was not therefore compellable to answer the questions the answers were obtained by an illegal compulsion or duress, and inadmissible.

[MELLOR, J.-Assuming your construction to be the right one, was the defect anything more than an irregularity? If he had at the time of the taking of the examination objected to answer the questions on the ground that the summons had been improperly issued, it might have been corrected, for at that time the

certificate of the appointment had been made. MARTIN, B.-The proceedings in liquidation are on the prisoner's own petition.]

Next, at any rate, portions of the examination were inadmissible, as the answers were obtained under the influence of threats of the party cross-examining-The Queen v. Garrett (4), The Queen v. Jarvis (5). [Certain of the questions and answers were here referred to, but as this point became immaterial, it is not further referred to.] Then the 97th section gives power to the "Court" to examine; therefore it was not competent for the registrar to have taken the examination. Section 4 enacts that in the Act the word Court should mean the Court having jurisdiction in bankruptcy, and the registrar shall mean the registrar of the Court. The 67th section enables the judge of a local Court to delegate to the registrar such of the powers vested in him by this Act as it may be expedient for the judge to delegate to him, but there was in the present case no evidence of any such delegation.

[MELLOR, J.-The presumption is that the officer was rightly acting till you shew the contrary.]

Further, the questions to which the objectionable answers were given were put with a direct view to a criminal prosecution and that only. [Certain questions and answers were here referred to.] They may be put to get at his dealings but not to criminate him.

[KELLY, C.B.-That is not so. If the questions are confined to his trade dealings or property, though the answers involve a liability to criminate him, they may nevertheless be put. BYLES, J.You would have to go on to say he must not be asked questions which may indirectly tend to criminate him.]

J. W. Mellor, for the prosecution.The summons was an irregularity and did not make the subsequent proceedings void. The title of the trustee had been perfected before the appearance to be examined.

[MARTIN, B.-The trustee is appointed exclusively by the creditors.]

Yes. The fourth sub-section of the 125th section shews that all that the registrar has to inquire about is as to the manner in which the resolution appointing him has been passed.

[BRETT, J.-If the registrar omitted to give a certificate, could you prove the appointment aliunde? MARTIN, B.-It seems to me the provision of the 18th section as to the appointment of the trustee dating from the certificate, is confined to the trustee in bankruptcy, and that the 6th sub-section of section 125 does not apply that provision to the trustee in liquidation. The provision as to the date only applies where the appointment is made by the Court.]

In bankruptcy where the appointment is by the Court the 17th section provides that the registrar shall act as trustee, but there is no such provision where the trustee is appointed in the commencement by the creditors.

[Waddy referred to section 13 giving the Court power to appoint a receiver after the presentation of the petition and to Ex parte Isaac (6).]

The title of the trustee in liquidation to the debtor's property relates back to the filing of the petition, notwithstanding that sub-section 4 of section 125 says that the liquidation shall be deemed to have commenced from the date of the appointment of trustee-Ex parte Duignan; re Bissell (7). By the 7th sub-section of the 125th section the trustee in liquidation is substituted for the trustee in bankruptcy; all the provisions of the Act as to the one are to apply to the other, and that clause says that in construing such provisions the appointment of a trustee under a liquidation shall, according to circumstances, be deemed to be equivalent to, and a substitute for, the presentation of a petition in bankruptcy, or the service of such petition, or an order of adjudication in bankruptcy. But it is further contended that by appearance, according to the exigency of the summons, without

(6) 40 Law J. Rep. (N.S.) Bankr. 19; s. c. Law

(5) 37 Law J. Rep. (N.s.) M.C. 1.

(7) 40 Law J. Rep. (N.s.) Bankr. 33, 68; s. c. Law Rep. 6 Chanc. App. 605.

gives the Court power to examine any person so brought before it concerning his dealings and property, and proceedings in liquidation being made analogous to bank- ́ ruptcy proceedings,-before the summons could issue there must have been a certificate of the appointment of the trus tee; that the summons gave jurisdiction; and that being issued before the certificate was given it was unlawful. I think that objection wholly fails, and that by his appearance on the 8th of July the prisoner gave the Court jurisdiction, though the summons was futile when he appeared. I think, therefore, the examination was lawfully taken and the evidence admissible, and I further am of opinion, though other members of the Court may not be, that the proceedings were regular.

was

BRETT, J.—I am of the same opinion. It was argued that the Judge exercised, his authority illegally. It said the examination was illegal because the prisoner was summoned before the appointment of the trustee was registered. The certificate of appointment of the trustee was said to be a condition precedent to the right of the registrar to take the examination of the bankrupt. It is useless to decide whether the appointment of the trustee was at the time of the resolution of creditors or of registration, and I now assume that it was not until the certificate was given. The defendant was examined after that day, and his examination was lawfully taken if the registrar had jurisdiction to examine him at the time he did so. It is wrong to say it was a condition precedent that the prisoner should have been summoned according to the provisions of the statute. It seems to me that when you have a Court with jurisdiction aliunde it is not a condition precedent. Mr. Waddy, in answer to a question of mine, admitted that the prisoner might have been indicted for perjury, and I think that he, by that answer, in a great measure admitted that the Court had competent jurisdiction. I assume, therefore, the summons to have been irregular, but when the defendant came and submitted himself for examination the irregularity was cured, and he was properly before the Court, and was legally compellable to

answer the questions put to him. The case is within the decisions of The Queen v. Scott (1) and The Queen v. Robinson (3). The other judges concurred.

Conviction affirmed.

Attorneys-Clarke & Son, agents for Terry & Co., Bradford, Yorkshire, for the prosecution; M. K. Braund, agent for J. Green, Bradford, Yorkshire, for prisoner.

1872. S May 7.

[IN THE COURT OF QUEEN'S BENCH.] THE QUEEN, ON THE PROSECUTION OF JUSTICES OF MIDDLESEX (respondents), v. TAYLOR (appellant). Alehouse-License for Sale of Exciseable Liquors-Application to Special Sessions after unsuccessful Application to General Sessions-Neglect to Appeal-New Tenant

-9 Geo. 4. c. 61. s. 14.

A house in Middlesex, kept for some years as an inn, under 9 Geo. 4. c. 61, was in February, 1872, left by the licensed tenant, who gave up possession to T. In March following, at the annual general licensing meeting,. application was made for a license on behalf of T., but this was refused, and no appeal was made from the decision. The license expired on April 5th, when the house was shut up, and in May T. applied under s. 14 to the special sessions for a license, who refused it on the ground that the application had been already disposed of at the general licensing sessions :-Held, that after an unsuccessful application at the annual general licensing meeting, T. could not afterwards renew his application at the special sessions.

In this case there was an appeal to the General Sessions against the refusal of justices of Middlesex sitting in Special Sessions to grant C. Taylor a license for his house in Kensington under 9 Geo. 4. c. 61. s. 14 (1). The General Sessions dismissed the appeal subject to a case, of which the following is the material part

(1) By 9 Geo. 4. c. 61. s. 14, If any person duly licensed under this Act shall (before the expiration of such license) die, or shall be by sickness or other infirmity rendered incapable of keeping an inn, or shall become bankrupt . . or if any person so licensed, or the heirs, executors, administrators or assigns of any person so licensed, shall