Page images
PDF
EPUB

.1822.

reasonably say that he is not well enough to be examined.]

[ocr errors][merged small]

[Mr. Justice Richardson. If a person be not in a fit state to be examined, he must be remanded until he will submit; and not be suffered to go at large.]

At all events, the plaintiff was entitled to further time before he was committed.—There is another objection to the form of the warrant, which, although technical, is in strictness available. The plaintiff was ordered “ to be detained in the custody of the keeper of the gaol for the county of Wilts, until such time as he should subunit himself to the commissioners, and full answer make, to their satisfaction, to the questions which might be put to him, by virtue of the commission;" and by the terms of the statute, he was only required to answer all lawful questions. The governing principle is, that in the construction of a warrant of commitment, it must strictly pursue the words of the statute. In Bracy's Case (a), where a bankrupt refused to answer such questions as were put to him by the commissioners relating to his estate, a commitment till he conformed to their authority, was held bad. So in Rer v. Nathan (b), a commitment till the bankrupt should be otherwise discharged by due course of law, was held bad. The same point was decided in Hollingshead's Case (c). Here, the want of the word lauful, in the warrant, can only be remedied by intendment. In Miller's Case (d), the conclusion of the warrant of commitment stated, that the commissioners, by virtue of the commission and of the several statutes then in force concerning bankrupts,

(a) I Ld. Raym. 99. S. C. 1 Salk. 348. (c) 2 Ld. Raym. 851. S. C. 1 Salk. 351. 2 Sir W. Bla. 881.

(6) 2 Str. 880.(d) 3 Wils. 420. S. C. 1822.

Noves

V. MOUNTAIN.

committed the bankrupt to the Fleet, there to remain until he should submit himself to the commissioners, and full answer make to them, to all such questions as should be put to him; and it was objected, that the commissioners had exceeded their authority, as the bankrupt could not be lawfully detained in prison until he should answer ull such questions as should be put to him by the commissioners : and although, from the report of that case' in Wilson, it seems to have been decided on other points, as Lord Chief Justice De Grey there said (a), “ The conclusion in the warrant of cominitment seenis to be wrong; but as to this point I give no opinion :" and the three other Judges concurred; yet in the report in Blackstone, it is stated, that that learned Judge added (b), that “ he thought the conclusion was bad; and that the objection on that head had received no answer.”

Lord Chief Justice DALLAS.-In a case of this de. scription, it is no answer to an objection to say, that it is merely technical; for it is open to an advocate to take such objections in favour of the liberty of the subject. Still however, they must receive a liberal coustruction. The facts of the case are shortly these : The plaintiff having committed an act of bankruptcy, and a commission baving issued against him, was taken before the commissioners to be examined under such commission; his course of proceeding there was obvious. If he wished a professional person to be present at his examination, he should have submitted to have been sworn in the first instance, and then requested to be remanded, or have his examination postponed till some person could attend on his behalf. But the commissioners were not bound to take notice of any state, ment or objection he might make, unless he submitted

[blocks in formation]

1822.

himself to be examined; for the only communication NOBBS which could be legally received from him, must be made MOUNTAIN. through the medium of his oath. His duty, therefore,

appears to me to have been quite clear, viz. to have taken the oath, and afterwards objected to answer any questions put to bim by the commissioners, without hav. ing first consulted his professional adviser. Here, however, the plaintiff was not committed for not answering questions put to him by the commissioners, but for a refusal to submit to be sworn and examined in the first instance. If he had submitted to an examination, and objected to answer any particular question that might have been put to him, it is clear that such question should have been stated on the face of the war. rant; as no one is bound to answer a question illegally put. This, however, is not a case of that de: scription, as the plaintiff refused to submit generally. It has been admitted, that the objection as to the form of the warrant is merely technical ; still, however, it might avail, if it could be supported by any authority. If there were any decision to shew that the warrant of commitment would be bad by the omission of the word lawful in the concluding part of it, the Court must be bound by it; but none such has been cited; nor am I aware that any can be found, which bears an analogy to it. It is therefore necessary, in the first place, to look at the 16th section of the statute, which empowers “ commissioners to commit a bankrupt for not answering lawful questions put to him by them.” Every question put by a legal tribunal must be intended to be lawful; and although that word is introduced in the former part of that section, still it does not appear to be material, for the plaintiff was not bound to answer any illegal questions, and in the subsequent part of that section, the word lawful is omitted; for “ the commissioners are empowered to

1822.

NOBES

MOUNTAIN.

commit such persons to prison until they shall submit themselves to the commissioners, and full answer make, to their satisfaction, to all such questions as shall be put to them as aforesaid." By the expression "such questions,” legal questions must be intended, unless the contrary appears. It must be recollected, however, that in this case, the plaintiff was committed for refusing to be sworn, which he ought to have done before he was bound to answer any particular question that might have been pat to him. The defendants, therefore, were fully justified in committing him ; for it is quite clear, that he could not be discbarged. He should have submitted to have been sworn in the first instance, and applied for time to be brought up for examination. Besides, no questions whatever were put to him; and on the whole, I am of opinion that the warrant is sufficiently framed, according to the sense of the statute; and that the plaintiff was properly committed by the defendants, who acted as commissioners under his commission.

Mr. Justice PARK.- The general principle laid down by my brother Pell, that Courts have been extremely strict in their construction of a warrant of commitment of a bankrapt by commissioners, and required that they should strictly pursue the words of the statute, cannot be disputed. Here, however, whether the question depends on the terms of the statute, or on the constant course that has been adopted since it was passed, there is no objection to this warrant on the face of it. The plaintiff was committed, not for a refusal to answer any particular question that might have been put to him, but for refusing to be sworn in the first instance; and as he persisted in such refusal; it was the duty of the defendants, as commissioners, to commit him. The commitment would have been sufficient, if it had only stated that the plaintiff should

[graphic]

1822,

NOBES

MOUNTAIN.

be kept in custody “antil such time as he should submit limself to the commissioners.". The only reason for setting out the latter part of the warrant, is to shew that the oath was offered to be administered, according to the form prescribed by law for that purpose. The form of the oath required to be taken by the bankrupt is, “ You shall true answer make to all such questions as shall be put to you.” The word lawful is not introduced, because it must be intended that questions put by commissioners are legal questions. So by the latter part of the 16th section of the statute,“ the cominissioners are empowered to commit, until such person shall submit himself, and full answer make, to the satisfaction of the commissioners, to all such questions as shall be put to him." It is unnecessary to say, whether the word such,'has reference to the former part of the section, where the word lawful is introduced, as the plaintiff was bound to submit himself to be sworn in the first instance; and until then, no question touching his bankuptcy could be put to him by the commissioners, by virtue of the commission.

Mr. Justice BURROUGH.-I saw the warrant of commitment at the trial, and was satisfied as to its sufficiency; and still continue of the same opinion. This cannot be assimilated to a case where a bankrupt has been committed for refusing to answer any specific questions that may have been put to him by the commissioners; for the plaintiff resisted the power and authority of the commissioners altogether, as he refused to be sworn, or submit to any examination. They were therefore bound to commit bim; and I do not see how they could have framed the warrant of commitment differently. As to the objection that the word lawful is not introduced, it must of necessity be implied that questions put by coinmissioners to a

« PreviousContinue »