1818.

Nov. 27th.

Ex parte VOGEL, in the Matter of EHRENSTROM, Friday, a Bankrupt.

SCARLETT had obtained a writ of habeas corpus
directed to the keeper of Newgate, commanding
him to bring up the body of Levi Vogel for the purpose
of being discharged. The warrant of commitment,
when returned, stated that a commission, dated 12th
November 1818, had duly issued against Eric Ehren-
strom, on which he had been declared a bankrupt; and
that Vogel was suspected to have concealed and secretly
disposed of a part of the goods and estate of the bank-
rupt; and was duly summoned to appear, and did
appear before the commissioners; and that Vogel being
duly sworn, the commissioners caused the following
questions to be propounded to him, to which he gave
the following answers. Quest. Do you know, and how
long time have you known, the bankrupt?
have known him about nine or twelve months.
Upon what occasion did your connexion commence in
business? Ans. I cannot tell unless I have my papers.
Quest. Have you had many dealings with the bankrupt,
and to a large amount? Ans. I have had
dealings with him to the amount of 2000l.
Do
you keep regular books of account in which

Ans. I

Quest.

various

were justified in committing

Quest.

all

him for giving unsatisfactory

answers to

these questions. Held also, that

the true criterion by which to judge as to the propriety of the commitment was to consider all the questions and answers collectively, and then to say whether the whole exaamination was satisfactory or not; and, therefore, where the commissioners in their warrant set out several questions, to some of which, taken alone, the answers were satisfactory, held also, that this was no objection to a warrant committing the party "till he should full answer make to the questions so put to him as aforesaid.”

your

1818.

Ex parte
VOGEL.

your transactions with the bankrupt will appear? Ans. Yes, I do. Quest. What was the nature of your dealings with the bankrupt? Ans. I bought various parcels of goods from the bankrupt, and paid for them; and the bankrupt now owes me money. Quest. If your only transactions with the bankrupt have been buying goods of him for which you have paid, how can the bankrupt owe any money to you? Ans. The bankrupt asked me about the beginning of November to lend him 300l., and I lent him 295l., for which I have no bill or memorandum; I believe I have not: whether I have a letter acknowledging it I cannot tell; but I have no other security. Quest. Do you claim to. prove this debt under this commission, or not? Ans. At the present moment, not. Quest. At what place was the advance of 2951. made to the bankrupt? Ans. At his country house. Quest. Who was present at the time. Ans. I do not recollect. Quest. Was any body? Ans. I do not recollect.

lent money to the bankrupt upon

Quest. Have you any other occasion ?

Ans. I do not recollect. Quest. When did
Quest. When did you lend
him the sum last mentioned?
Ans. I cannot say

exactly it was in the beginning of November. Quest.
Do you not know it was on the evening before he
absconded? Ans. I cannot say exactly. Quest. Did
he not tell you he wanted that money for the purpose
of going abroad? Ans. No, he did not, as far as I
recollect. Quest. Will you swear positively he did not
tell you he wanted that money for the purpose of going
abroad? Ans. I will swear positively as far as I have
any recollection, that he did not tell me. Question
repeated. Ans. I cannot answer any thing else to the
purpose: I do not say that I will not swear positively.

Quest.

Quest. Do you say that you will swear positively?
Ans. So far as I can recollect, I can swear positively
that he did not tell me. Quest. When did you first
hear the bankrupt had absconded? Ans. I do not re-
collect. Quest. How long before the bankrupt had
absconded did you see him? Ans. I don't know when
he went. Quest. When did you last see him? Ans.
My head is so much confused I cannot answer any
questions. Quest. When did you last see his wife?
Ans. I cannot say exactly when. Quest. Have you not
seen her since the bankrupt absconded? Ans. I
do not recollect exactly, I might or I might not.
Quest. State as far as you can when you last saw her?
Ans. I cannot say exactly what time it was, or when it
was; I think about a fortnight ago. Quest. Where
did you
see her? Ans. I saw her at a house.
Quest. Where was that house? Ans. I do not know
the street. Quest. Whose house was it? Ans. It was
not my house; I do not know whose house it was.
Quest. How did you find out where she was? Ans. I
do not remember. Quest. Have you no further answer
to give to the commissioners upon the last question,
which is repeated? Ans. I do not remember how I
found it out, at the present moment I do not recollect
who brought me there, or how I came there; I dare
say I could find out; how I came to the house. The
warrant then stated, that these answers not being
satisfactory to the commissioners, Vogel was accord-
ingly committed by them to Newgate, " until such time
as he shall submit himself to the commissioners, and
full answer make to their satisfaction, to the questions
so put to him as aforesaid."

1818.

Ex parte

VOGEL.

Scarlett,

.1818.

Ex parte
VOGEL.

may

Scarlett, Gurney, Montagu, and F. Pollock, for the prisoner, contended that the commitment was bad, and that the prisoner was entitled to his discharge. The commissioners have a power by 5 G. 2. c. 30 s. 16. to examine witnesses concerning the "person, trade, dealings, estate, and effects of a bankrupt," and the point is, whether the questions and answers stated in the warrant have relation all of them to those subjects. They be divided into three classes: the first of which relates to the dealings between the witness and the bankrupt. On this subject the commissioners had authority to enquire, but then there is nothing unsatisfactory in the answers. The second class of questions relates to a sum of money due to the witness from the bankrupt. Now that was hardly within the scope of the authority of the commissioners: for it was a debt due from the bankrupt; and the witness, who was the creditor, did not at that time, claim to prove the debt under the commission. But, even supposing that the commissioners were authorised to make the enquiry, the answers are satisfactory enough considering the nature of the subject-matter. If the commissioners had wished for further information, they ought to have given the witness time to have brought his books and papers for that purpose. The last class of questions in the warrant relates to an interview of the witness with the bankrupt's wife. Now, even if it be admitted that some of these have been unsatisfactorily answered, still as the whole of the enquiry on this point was irrelevant, and beyond the scope of the commissioners' authority they had no right to commit him, for any answers, whether satisfactory or not, given to such questions. The warrant is therefore clearly bad, inasmuch as all the ques

tions which the commissioners had authority to ask have been satisfactorily answered. But there is another ground on which it is bad: if any question be improper, or being proper has been satisfactorily answered, the commissioners have still no authority to commit the witness till he shall full answer make to the questions so put to him as aforesaid: for then he is committed till he shall answer all the questions, or in other words till he shall answer not only the questions which the commissioners had a right to put, but also those which were irrelevant and improper. The warrant therefore (which is entire) is bad for this reason. In support of that point they cited Ex parte James (a), Rex v. Nathan (b), and an anonymous case from Barnardiston. (c) This defect is not cured by the 18th section of 5 G. 2. c. 30. for it is one not of form, but of substance, Ex parte Cassidy (d), Coomb's case. (e),

Topping and Curwood, contrà, contended that the real question was, whether these were all lawful questions: and they clearly were so. The only doubt attempted to be raised on the other side, is as to those questions relating to the bankrupt's wife, which it is said were irrelevant. Now it is well known that the wife may be examined concerning the estate, a part of which this witness was suspected of concealing. It is therefore abundantly obvious that these questions might be very relevant as laying the foundation of other enquiries which the commissioners might afterwards make. But if it were doubtful, the Court will of course give the commissioners credit for not asking idle and unne

(a) 1 P. Wms. 611. (d) 2 Rose, 220.

(b) 2 Stran. 880. (e) 2 Rose, 400.

(c) 1 Barnard. 398.

1818.

Ex parte
VOCEL.

cessary