7

feveral exceptions to the return, that it thereby appeared the commitment was illegal.

ift Objection. That the commiffioners have not fet forth that they took the oath to authorize themselves to execute the feveral powers and trufts repofed in them, as commiflioners in the commiffion of bankrupt against Samuel Cole; that it ought to appear that these three commiffioners (particularly) who committed Miller to the Fleet, did take the oath before they acted under the commiffion.

2d Objection. That they have not fet forth that Samuel Cole was a trader, and the other requifites neceffary to make him liable to become a bankrupt.

3d Objection. That the commiffioners have not conformed themselves to the ftat. 5 Geo. 2. ch. 30. felt. 13. whereby it is enacted, that in cafe any perfon fhall be committed by the com miffioners for refufing to anfwer, or not fully answering any queftion, the commiffioners fhall in their warrant of commitment fpecify fuch question; they have not fully specified the first queftion, but the fame refers to a former examination of Miller on the 23d of February, which examination, or any question then put to Miller do not appear to the court; as the question put to Miller on the 26th of February refers to a former examination, they ought to have ftated the question put to Miller on that former examination on the 23d of February in hæc verba, that the court might judge whether the fame was material or relevant for the difcovery of the bankrupt's eftate and effects; but as it ftands upon this return of the habeas corpus, the court cannot form any judgment what the queftion related to, or how it was material; and they might as well have afked Miller whether the horse which won the laft match at Newmarket was bought by a broker or not.-It doth not appear to the court as it ought, that the queftion was material, and that Miller was bound to answer it. 2 Stra. 880. fo he ought to be discharged.

4th Objection. But fuppofing the queftion to be well enough flated, I fay Miller has fully anfwered it; as appears by the

return.

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5th Objection. It appears by the conclusion of the return, that the commiffioners have committed Miller to the Fleet, there to remain without bail or mainprize until fuch time as "he the faid Thomas Miller fhall fubmit himself to us the faid "commiffioners, or the major part of the faid commiffioners

in the faid commiffion named, and full answer to make to the

"faid commiffioners, to all fuch questions as shall be put to him as "aforefaid, and according to the true intent and meaning of "the ftatute or ftatutes in that cafe made and provided, fome

or one of them." He is hereby committed until he fhall anfwer all fuch questions as fhall be put to him; here the commiffioners have exceeded their authority moft clearly; for no man can fay that Miller can be lawfully detained in prifon until he fhall answer all fuch questions, as fhall be put to him by the commiffioners. It ought to have concluded as it was in Perrott's cafe, viz. " until he fhall anfwer to the questions fo put unto him, [as were fpecified in that return] by us as aforefaid." See Bracy's cafe, i Ld. Raym. 99, 100.

1

In anfwer to the first objection it was faid by Serjeant Davy, that it fufficiently appeared to the court that the commiffioners had authority to act under the commiffion iffued againft Cole, becaufe it was ftated they are commiffioners, and had acted therein.

To the fecond objection, that it doth not appear that Cole was a trader and liable to become a bankrupt, he anfwered, that it appeared to the court by the return, that the commiffioners put the commiffion in execution, and, upon due examination of witneffes, and other good proofs upon oath, did find that Cole, before the date and fuing forth the commiffion, did become bankrupt, which the Serjeant faid was fufficient, without fetting forth all the particulars requifite to make a man liable to become a bankrupt.

To the third objection, that the queftion referred to a former examination which was not flated, he answered, that there was no occafion to repeat it, because it is ftated that the faid former examination was then and there read to him [Miller], and the queftion being put to him, as above, touching his purchafing the two bales of filk, he did not give an answer to the fatisfaction of the commiffioners.

To the fourth objection he answered, by infifting that Miller had not given a full anfwer to the queftion" Whether or not "he purchased by a broker two certain bales of China filk of "the value of 270l. or thereabouts, mentioned in the latter

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part of his examination, taken before the commiffioners on "the 23d day of February inftant, (which examination was then "and there read to him) or whether he could form any belief "whether he bought them by a broker or not? his [Miller's] "anfwer being, that he could not pofitively recollect whether "he had bought the fame by a broker or not, but should rather "believe he had bought the fame by a broker;" the Serjeant faid

this was not a full anfwer to the fatisfaction of the commiffioners, and therefore they committed him; and he further faid he would put the caufe upon this fingle point, viz. that the queftion was not fully answered.

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To the fifth objection Serjeant Dany faid, he wifhed it had not been mentioned in the warrrant, "And for that the faid Thomas Miller in other refpects misbehaved himself to the com"miffioners; but infifted that if there was other legal caufe (befides mifbehaviour) to commit him, he was rightly imprisoned, until he should answer all fuch questions as fhould be put to him by the commiffioners, tending to the discovery of the estate and effects of the bankrupt.

Serjeant Glynn for the commiffioners anfwered the objections very much to the like effect Serjeant Davy had done before, and therefore I fhall not make a needlefs repetition.

Lord Chief Juftice De Grey-By the old ftatutes of bankrupt of the 34 & 35 Hen. 8. and 13 Eliz. ch. 7. the commiffioners had no power to commit; but they had power to call before them perfons to be examined on oath for the difcovery of the bankrupt's eftate and effects; and if fuch perfons upon examination, did not, difclofe the whole truth of fuch things as they fhould be examined of, or deny to fwear, then fuch perfons fhould forfeit double the value of the goods and debts by them concealed.

The flat. Jac. 1. ch. 15. gives the commiffioners power to commit perfons refufing to be fworn, and make answer touching the bankrupt's eftate and effects; this power is adopted by the fat. 45 Ain. ch. 17. And by the 5th of Geo. 2. ch. 30. fect. 16. which enacts (amongst other things) that it fhall be lawful for the commiffioners to examine every perfon duly fummoned, or prefent at any meeting of the commiflioners touching all matters relating to the perfon and effects of the bankrupt, and any act of bankruptcy committed by him, and alfo to reduce into writing the anfwer of fuch perfon, which examination the party examined is required to fubfcribe, and in cafe fuch perfon fhall refufe to answer, or fhall not fully anfwer to the fatisfaction of the commiffioners all lawful queftions put by them, &c. it fhall be lawful for the commiffioners to commit him to fuch prifon as they fhall think fit, there to remain without bail until fuch perfon fhall fubmit himself to the commiffioners, and full anfwer make, to the fatisfaction of the commiffioners, to all fuch questions as fhall be put to him, and fubfcribe fuch examination as aforefaid. This ftatute has decided the mode to be

purfued

purfued in this matter; in Perrott's ease of commitment, the queftions put to him were in writing; and he was committed until he fhould anfwer the fame, which was right.

In the prefent cafe, Miller had only two ways or means to enable him to answer the queftion put to him, either by recollection or belief; the first is knowledge, and muft imply consciousness; but in fome cafes no traces of a fact remain in a man's memory whereby he can recollect the fact, it is poffible he may have loft all knowledge of it; and if he has, he can only anfwer that he doth not know, or cannot recollect the fact.A man may recollect to a certain degree, and though he cannot recollect at one time, he may at another: fuppofe I may not, or cannot recollect, yet I may and can believe I did a certain fact, because you tell me you faw me do it; then I believe I did it, because I give credit to you as a perfon of veracity. How is it in courts of justice, when a man fwears he neither recollects nor believes that he did fuch a fact; or that he did or did not do fuch a fact, to the beft of his knowledge, remembrance and belief? It is certainly a full anfwer.-A fubfcribing witness to a bond may swear he has totally forgot that he fubfcribed his name as a witness thereto, and that he cannot fwear pofitively that he faw the obligor feal and deliver the bond; but feeing his own handwriting fubfcribed as a witness to the execution thereof, he may fwear he believes he faw the obligor execute the bond; and fuch anfwer would be fatisfactory to the court. Suppofe a banker was upon examination afked whether he paid fuch a bill by calh or notes, and he answers he cannot tell, but his books may inform him, or his books may be loft, and his clerks gone away from him; if on looking into his books he fees by the handwriting of his clerks that the bill appears to be paid by cash or notes, he then fwears to his belief accordingly; but if his books be loft or destroyed and his clerks are dead or gone, and he then fwears he cannot tell, or doth not know whether the bill was paid by cash or notes, his answer is full, and ought to be taken as fatisfactory.So a merchant buying many goods may have forgot, and cannot recollect or be able to fwcar whether he bought a certain particular parcel and fort of goods by himself or a broker. But,

To come to the prefent cafe; the examination was to find out whether the two bales of filk were or were not the property of Cole the bankrupt, fo the questions put to Miller feem to be

material.

The ft queftion is-Did you purchase by a broker the two bales of filk? His anfwer was, "I cannot pofitively recollect. "whether

"whether I bought them by a broker or not ;" this is a fuffi, cient answer, as it seems to me.

The 2d Queftion" Can you form any belief whether you bought them by a broker or not?" His answer was, "I fhould rather believe I bought them by a broker." I think this answer amounts to a degree of belief fufficient to answer vil purposes. If an heir at law, in a court of equity, was to fwear in his answer that he rather believed his ancestor made and Jeft a will, the court would hold him to it.-I think in this cafe Miller would be liable to be convicted of perjury if it could be proved that he bought the filk himself, and not by, a broker.

The 3d Queftion-" Whether or not do you believe you "bought the two bales of filk by a broker ?" His answer was, "I cannot give any other anfwer," (that is to fay,) than I have now given, viz. "I cannot pofitively recollect, &c." but I rather believe, &c.

The 4th Queftion-" Whether by the words I should rather "believe I bought them by a broker, you mean that you do believe "the two bales of filk were bought by a broker, or whether you 56 meant to say, you do believe that the faid two bales of filk were "not bought by a broker?" Miller refused to answer this 4th queftion, and this is the only cause of committing him; I think in my confcience he had before fworn to a degree of belief sufficient to anfwer civil purposes,

The conclufion in the warrant of commitment seems to be wrong, but as to this point I give no opinion; in Perrot's cafe the conclufion of the warrant was right.

After Miller had faid, he rather believed he bought the filk by a broker, the commiffioners might have proceeded to ask him who was his broker, &c. I am of opinion upon the whole, that Miller must be difcharged out of cuftody. The other three judges were of the fame opinion, and Miller was accordingly discharged,

TRINITY