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Nov. 16, 23.}

[CROWN CASE RESERVED.]

The following are the dates of the

proceedings in liquidationTHE QUEEN V. WIDDOP. *

The petition was presented on the 8th

of June, 1872. The first meeting of Debtors Act, 1869- Indictment for ob- creditors was held and the appointment taining Property by False Pretence-Liqui- of a trustee made on the 28th of June, dation by Arrangement-Examination

1872. The registrar's certificate of the Evidence-32 f. 33 Vict. c. 62. s. 11–32 & appointment of the trustee was dated the 33 Vict. c. 71. ss. 14, 18, 96, 97, 125. 5th of July, 1872. The prisoner was

summoned to be examined under the On an indictment of a trader for obtain

96th section of the Bankruptcy Act, 1869. ing property on credit, under the false pre

The summons was issued on the 29th of tence of dealing in the ordinary way of June, and the prisoner attended in purhis trade, within four months before his liquidation contrary to the 11th section of 9th of July, and again by adjournment

suance of it, and was examined on the the Debtors Act, 1869, an examination of

on the 12th of July. The examination the troiler in liquiilation taken under the

then taken was the one tendered in evi. 97th section of the Bankruptcy Act, 1869

dence. (32 &. 33 Vict. c. 71), was admitted in evi

The first objection was, that the sumdence against him. The summons to bring

mons being issued before the certificate up the trader for examination was issued before the certificate of the appointment of compliance with the 96th section, and the

of appointment of trustee, was not in the trustee was given by the registrar. The

examination taken under it obtained by trader attended, was examined, and the examination was taken after the giring of the

an unlawful exercise of authority, and

therefore inadmissible. certificate of appointment :--Held, that

The summons was in the form 76 of whether the summons was regularly issued or not, the trader by appearing and sub

the bankruptcy forms. mitting to be examined, waived the irregu- examination was taken by the registrar

Another objection taken was, that the larity, if any, and the examination was

and not by the judge, as directed by the properly taken and admissible in evidence

97th section, and that there was no proof against the prisoner on the trial of the indictment. The Queen v. Scott followed.

that the judge had under the 67th section delegated to the registrar the power of

taking the examination. CASE reserved by Cleasby, B.

To this it was answered that the sumThe prisoner was indicted, at the last mons was issued by the Court, and that assizes held at Leeds, under the 14th and

the place, viz., the Court House, and time 15th sub-sections of the 11th section of of examination were named in it, and that the Debtors Act, 1869

as the examination took place at the time For that he, being a trader, within four named before the registrar as a part of months before the commencement of his the proceedings in liquidation, it must liquidation, obtained property on credit be presumed he was then acting lawfully under the false pretence of dealing in the in taking the examination. ordinary way of his trade, and had not

Another objection was, that so far as paid for the same, and that he, being a

regards certain questions and answers in trader, within the like period of four the examination, the questions bad a months, disposed of, otherwise than in

direct tendency to criminate the prisoner the ordinary way of his trade, property by proving the very charges upon which obtained on credit and not paid for. the indictment was framed. At the trial an examination of the

Upon this objection the cases of The prisoner, taken before the Registrar of the

Queen v. Scott(1), The Queen v. Skeen (2), Bankruptcy Court, was tendered in evi.

(1) D. & B. 47; 8. c. 25 Law J. Rep. (p.s.) dence for the prosecution and objected to.

M.C. 128. * Coram Kelly, C.B. ; Martin, B.; Byles, J.; (2) Bell C.C. 97 ; s. e. 28 Law J. Rep. (p.s.) Brett, J.; Grove, J.; and Quain, J.

M.C. 91. NEW SERIES, 42.-Mag. Cas.

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The Queen v. Robinson (3), were referred and if any person so summoned refuses to on behalf of the prosecution.

to come before the Court, it may by warA fourth objection was, that whatever rant cause him to be apprehended and the law may have been under former Acts brought up for examination. By section 18 of Parliament, yet under the present Act, of the same Act the appointment of a as by section 108 the deposition is made trustee shall be reported to the Court, evidence upon the death of the bankrupt, and the Court upon being satisfied that it ought not to be admitted during his the requisite security has been entered lifetime.

into by him, shall give a certificate deA copy of the examination endorsed claring him to be a trustee of the bankwith

my initials will be in the hands of ruptcy named in the certificate, and such the officer of the Court, to be referred to certificate shall be conclusive evidence of if necessary.

the appointment of the trustee, and such It was proved that each sheet of the appointment shall date from the day of examination was signed by the prisoner. the certificate. The liquidation by ar

I admitted the whole of the examina- rangement takes place under section 125, tion.

and by sub-section 6 of that section “the The prisoner was convicted, but re- certificate of the registrar in respect of leased on bail to appear at the next the appointment of any trustee in the assizes. If the whole examination was case of a liquidation by arrangement shall admissible in evidence, the conviction is be of the same effect as a certificate of the to stand. If the whole or any part was

Court to the like effect in the case of a not admissible, the conviction is to be bankruptcy," and the powers of a trustee quashed.

are the same as a trustee in bankruptcy Waddy (Wilberforce with him), for under the 7th sub-section. The appointthe prisoner.— The examination of the ment of the trustee in fact takes place prisoner taken before the registrar in under the 1st sub-section of the 125th Bankruptcy was not admissible on this section at a meeting of the creditors, and prosecution on the ground that it was under the 4th sub-section the proceednot a legal examination, because the ings in liquidation “shall be deemed to provisions of the statute which enabled have commenced as from the date of the him to be compulsorily examined were appointment of trustee.” not followed and obeyed. The cases of (KELLY, C.B.-That took place on the The Queen v. Scott (1) and The Queen v. 28th of June.] Robinson (3) are authorities against me if But the certificate is necessary to clothe the provisions of the 32 & 33 Vict. c. 71. him with the character of trustee, and ss. 96, 97, have been complied with, but as he did not possess that character when it is contended that they have not been, the summons issued, it was not issued on because the trustee in the liquidation ap- the application of the trustee, and was plied for the summons before the Court therefore void, and the prisoner was not had given him a certificate of his appoint- brought before the registrar by a summent. The 97th section enables the Court mons issued in accordance with the 96th to examine upon oath, &c., any person so section, and his examination therefore brought before it in manner aforesaid was not legal, and as he was not thereconcerning the bankrupt, bis dealings or fore compellable to answer the questions property. The 96th section provides the the answers were obtained by an illegal mode of bringing the person before the compulsion or duress, and inadmissible. Court, and enacts that it may “on the [MELLOR, J.-Assuming your construcapplication of the trustee" at any time tion to be the right one, was the defect after an order of adjudication has been anything more than an irregularity? If made against a bankrupt summon before he had at the time of the taking of the exit the bankrupt or his wife, &c. . .,

amination objected to answer the ques

tions on the ground that the summons (3) 36 Law J. Rep. (N.s.) M.C. 78; s. c. Law

had been improperly issued, it might have Rep. 1 C.C.R. 80.

been corrected, for at that time the

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certificate of the appointment had been [MARTIN, B.-The trustee is appointed made. Martin, B.-The proceedings in exclusively by the creditors.] liquidation are on the prisoner's own Yes. The fourth sub-section of the petition.]

125th section shews that all that the Next, at any rate, portions of the ex- registrar has to inquire about is as to the amination were inadmissible, as the manner in which the resolution appointanswers were obtained under the influ. ing him has been passed. ence of threats of the party cross-examin. [BRETT, J.-If the registrar omitted to ing—The Queen v. Garrett (4), The Queen give a certificate, could you prove the v. Jarris (5). [Certain of the questions appointment aliunde ? MARTIN, B.-It and answers were here referred to, but as seems to me the provision of the 18th secthis point became immaterial, it is not fur- tion as to the appointment of the trustee ther referred to.] Then the 97th section dating from the certificate, is confined to gives power to the “ Court” to examine; the trustee in bankruptcy, and that the therefore it was not competent for the 6th sub-section of section 125 does not registrar to have taken the examination. apply that provision to the trustee in Section 4 enacts that in the Act the word liquidation. The provision as to the date Court should mean the Court having only applies where the appointment is jurisdiction in bankruptcy, and the regis- made by the Court.] trar shall mean the registrar of the In bankruptcy where the appointment Court. The 67th section enables the is by the Court the 17th section provides judge of a local Court to delegate to the that the registrar shall act as trustee, but registrar such of the powers vested in there is no such provision where the him by this Act as it may be expedient trustee is appointed in the commencement for the judge to delegate to him, but there by the creditors. was in the present case no evidence of [Waddy referred to section 13 giving any such delegation.

the Court power to appoint a receiver [MELLOR, J.-The presumption is that after the presentation of the petition and the officer was rightly acting till you to Ex parte Isaac (6).] shew the contrary.]

The title of the trustee in liquidation to Further, the questions to which the the debtor's property relates back to the objectionable answers were given were filing of the petition, notwithstanding that put with a direct view to a criminal prose- sub-section 4 of section 125 says that the cution and that only. [Certain questions liquidation shall be deemed to have comand answers were here referred to.] They menced from the date of the appointment may be put to get at his dealings but not of trustee-Ex parte Duignan ; re Bissell to criminate him.

(7). By the 7th sub-section of the 125th [KELLY, C.B.—That is not so. If the section the trustee in liquidation is subquestions are confined to his trade deal- stituted for the trustee in bankruptcy ; ings or property, though the answers in- all the provisions of the Act as to the one volve a liability to criminate him, they are to apply to the other, and that clause may nevertheless be put. BYLES, J.- says that in construing such provisions You would have to go on to say

he must the appointment of a trustee under a not be asked questions which may indi- liquidation shall, according to circumrectly tend to criminate him.]

stances, be deemed to be equivalent to,

and a substitute for, the presentation of a J. W. Mellor, for the prosecution.- petition in bankruptcy, or the service of The summons was an irregularity and did such petition, or an order of adjudication not make the subsequent proceedings void. in bankruptcy. But it is further conThe title of the trustee had been per- tended that by appearance, according to fected before the appearance to be ex- the exigency of the summons, without amined.

(6) 40 Law J. Rep. (N.s.) Bankr. 19; s. c. Law (4) Dears. C.C. 232 ; s. c. 23 Law J. Rep. (n.s.) Rep. 6 Chanc. App. 58. M.C. 20.

(7) 40 Law J. Rep. (N.s.) Bankr. 33, 68; s. C. (5) 37 Law J. Rep. (N.s.) M.C. 1.

Law Rep. 6 Chanc. App. 605.

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objection, he waived such an objection as to be examined, that circumstance cures this—The Queen v. Fletcher (8), Turner the defect, and that therefore the answers v. The Postmaster General (9), The Queen he gave were voluntary, and were ad. v. Shaw (10). Further, if there was no missible against him. jurisdiction to take this examination com- Martin, B.-I am of the same opinion. pulsorily, then, inasmuch as the defen- The petition in liquidation in the form dant appeared and gave his examination given in the rules alleges that your peti. without objection, the statement was tioner is unable to pay his debts, and is voluntary, and therefore admissible in desirous of instituting proceedings for evidence—The Queen v. Sloggett (11). liquidation of his affairs, and hereby sub.

mits to the jurisdiction of this Court in Cur. adv. vult. the matter of such proceedings. That is

the beginning of matters, and here that The following judgments were given petition was presented on the 8th of June. on November 23 :

On the 26th of June a meeting of creKELLY, C.B.-We are all of opinion ditors took place and a trustee was apthat this conviction should be affirmed. pointed. On the next day a summons was Two questions were argued at the bar, issued to the trader to attend and be exathe first was one of very general im- mined, and he attended on the 9th of July portance, and the other was peculiar to following. He had all that interval of time the circumstances of the present case. It to consider the facts relating to his dealwas argued that the summons issued and ings, and he then appeared, made no protest, served upon the prisoner to attend and be and there was an adjournment to the 12th. examined was illegal and void on the The whole examination was taken down in ground that it was issued before a certifi

writing and read over to him, and I see cate of the appointment of the trustee had that he signed his name twelve times to it, been given by the registrar, and on the and it was taken on two different days. Yet application of the trustee, who, although it is contended that it is not to be evidence he had then been appointed trustee by the against him. The ground of objection creditors, had not been declared trustee put forward is that he was compelled to by a certificate of the registrar, and there- criminate himself. No doubt by the law fore it did not make it compulsory on the of England no man is bound to criminate prisoner to attend for examination. Ι

himself, but I think this examination was pronounce no opinion on that question, not directed to criminate him, it was for because I think that the defect, if any, a civil purpose. I cannot see how this was cured by the presence of the party can be said to be a proceeding for the summoned, and his voluntary submission purpose of criminating the man, but there to be examined. The 96th and 97th sec- is a difference of opinion in the Court on ions of the Bankruptcy Act, 1869, upon this matter. The Queen v. Scott (1) has which the validity of the summons de- conclusively decided that the examination pends, merely refer to process or the of the bankrupt in a similar proceeding mode of bringing the party before the is admissible in evidence against him, and Court. Here the prisoner appeared, and I think that decision ought to be taken it would be a violation of the rules of

as conclusive. If this was a lawful ex. procedure as well as of common sense amination, then it comes within that case. not to say that the prisoner having known, I think it is lawful both under the statute as he must have done, of the proceedings and at common law. Mr. Waddy's objecin the liquidation of his affairs, notwith- tion was that under the 96th section,standing attends voluntarily and submits which enacts that the Court may, on the

application of the trustee at any time (8) 40 Law J. Rep. (n.s.) M.C. 123 ; s. c. Law after an order of adjudication has been Rep. 2 C.C.R. 320. (9) 34 Law J. Rep. (N.s.) M.C. 10.

made against a bankrupt, summon before (10) 34 Law J. Rep. (N.s.) M.C. 169.

it the bankrupt, and if any person so sum. (11) Dears. C.C. 656 ; s. c. 25 Law J. Rep. (n.s.)

moned refuses to give evidence a warrant M.C. 93.

may issue, and the 97th section, which

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was

gives the Court power to examine any answer the questions put to him. The person so brought before it concerning his case is within the decisions of The Queen v. dealings and property, and proceedings in Scott (1) and The Queen v. Robinson (3). liquidation being made analogous to bank-' The other judges concurred. ruptcy proceedings,- before the sum

Conviction affirmed. mons could issue there must have been a certificate of the appointment of the trustee; that the summons gave jurisdic

Attorneys-Clarke & Son, agents for Terry & Co.,

Bradford, Yorkshire, for the prosecution; M. K. tion; and that being issued before the

Braund, agent for J. Green, Bradford, Yorkcertificate was given it was unlawful. I shire, for prisoner. think that objection wholly fails, and that by his appearance on the 8th of July the prisoner gavethe Court jurisdiction, though [IN THE COURT OF QUEEN'S BENCH.] the summons was futile when he appeared. I think, therefore, the examination was

1872.

THE QUEEN, ON THE PROSECUTION lawfully taken and the evidence admis

JUSTICES OF MIDDLESEX (reMay 7.

spondents), v. TAYLOR (appellant). sible, and I further am of opinion, though other members of the Court may not be,

Alehouse - License for Sale of Exciseable that the proceedings were regular.

Liquors-Application to Special Sessions Brett, J.-I am of the same opinion. after unsuccessful Application to General It was argued that the Judge exercised , Sessions-Neglect to AppealNew Tenant his authority illegally. It said

-9 Geo. 4. c. 61. s. 14. the examination was illegal because the A house in Middlesex, kept for some years prisoner was summoned before the ap- as an inn, under 9 Geo. 4. c. 61, was in Feb. pointment of the trustee was registered.ruary, 1872, left by the licensed tenant, who The certificate of appointment of the gare up possession to T. In March followtrustee was said to be a condition prece- ing, at the annual general licensing meeting, dent to the right of the registrar to take application was made for a license on behalf the examination of the bankrupt. It is of T., but this was refused, and no appeal useless to decide whether the appoint- was made from the decision. The license ment of the trustee was at the time of expired on April 5th, when the house was the resolution of creditors or of regis- shut up, and in May T. applied under s. 14 tration, and I now assume that it was not to the special sessions for a license, who until the certificate . was given. The

given. The refused it on the ground that the application defendant

examined after that had been already disposed of at the general day, and his examination was lawfully licensing sessions :---Held, that after an un. taken if the registrar had jurisdiction to successful application at the annual general examine him at the time he did so. It is licensing meeting, T. could not afterwards wrong to say it was a condition precedent

renew his application at the special sessions. that the prisoner should have been summoned according to the provisions of the In this case there was an appeal to the statute. It seems to me that when you General Sessions against the refusal of have a Court with jurisdiction aliunde it justices of Middlesex sitting in Special is not a condition precedent. Mr. Waddy, Sessions to grant C. Taylor a license for in answer to a question of mine, admitted

his house in Kensington under 9 Geo. 4. that the prisoner .might have been in

c. 61. s. 14 (1). The General Sessions dicted for perjury, and I think that he, dismissed the appeal subject to a case, of by that answer, in a great measure ad- which the following is the material partmitted that the Court had competent jurisdiction. I assume, therefore, the (1) By 9 Geo. 4. c. 61. s. 14, If any person duly summons to have been irregular, but licensed under this Act shall (before the expirawhen the defendant came and submitted tion of such license) die, or shall be by sickness himself for examination the irregularity

or other infirmity rendered incapable of keeping

an inn, or shall become bankrupt or if any was cured, and he was properly before person so licensed, or the heirs, executors, administhe Court, and was legally compellable to trators or assigns of any person so licensed, shall

was

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