1818.

Ex parte
VOGEL.

cessary questions, Ex parte Bland. (a) In the case Ex parte James, one of the questions was illegal, which makes the whole difference. And as to the answers, no one exercising a sound judgment on the subject can for a moment doubt that they were most unsatisfactory, Ex parte Nowlan. (b)

They were then stopped by the Court.

ABBOTT C. J. When this writ was moved for, the learned counsel who made the application, relied principally on the latter part of the examination, which contained the questions as to the time when, and the place where the prisoner last saw the wife of the bankrupt. It struck me at the time, that that might pos sibly turn out to be an inquiry wholly immaterial; and the Court the more readily granted the writ, because this power of commissioners of bankrupts is an extraordinary one, and ought to be carefully watched. On the discussion of the case, however, I am quite satisfied, that it is the duty of the Court to remand the prisoner. If our decision is erroneous, it is still competent for him to apply either to the Lord Chancellor, or to any of the other courts in Westminster Hall, to obtain his liberation. It appears, by the warrant, that he was brought before the commissioners under suspicion of having concealed or assisted in concealing the effects of the bankrupt. That was the object of the enquiry, which no doubt the commissioners had full authority to pursue, and to examine all persons touching either the person, trade, dealings, estate, or effects of the bankrupt. Now it seems to me, that an enquiry having this object in view, may (a) 1 Atk. 205.

(b) 6 Term Rep. 118.

Cooke, B. L. 430. be

be very properly conducted, by asking the person under
examination, both when and where he last saw the
bankrupt, and when and where he last saw the
bankrupt's wife. If indeed, in answer to these ques-
tions, he had said, that the communications which he
had had with either the one or the other, had no re-
lation whatever either to the person, trade, dealings,
estate, or effects of the bankrupt, and that they were
merely of a private and confidential nature, it perhaps
might vary the case. I do not say what, under such cir-
cumstances, it would be the duty of the commissioners
to do. It is enough, that those circumstances do not
exist here; and I think that sufficient appears on the
face of the warrant to shew, that the enquiry here was
both lawful and material, being in fact the foundation
of ulterior enquiries, as to what had become of the
estate and effects of the bankrupt in this case.
If so,
it follows that all the questions here stated, were both
lawful and material. Then are the answers satisfactory?
Taking them all together, I think they are unsatisfac-
tory. An answer to one particular question, may be
either satisfactory or not, according as it bears upon
other questions propounded to the witness. And the
only way, therefore, to come to a proper conclusion, is
to look at all the questions and answers collectively,
and to consider them as constituting one entire examin-
ation. Now, on looking at these answers in that man-
ner, I think that they were unsatisfactory, and that the
commissioners did right to commit the party. The
Court, therefore, must remand him, till he shall give
such answers to these questions, as, taken collectively,
shall reasonably satisfy the commissioners.

VOL. II.

Q

BAYLEY

1818.

Ex parte
VOGEL.

1818.

Ex parte
VOGEL.

BAYLEY J. I am of the same opinion. I accede to all the principles laid down by my Lord C. J., and my opinion is founded on the words of the act of parliament. From them it appears, that the subject of the enquiry before the commissioners, was clearly within their jurisdiction; that the questions in this case were pertinent, and that the answers were unsatisfactory. The act authorizes the commissioners to examine third persons as to the person, trade, dealings, estate and effects of the bankrupt; and, with a view to that enquiry, they may put all lawful questions. If, however, they commit the party for not answering them, they are bound to specify upon the warrant, the questions so put and the answers given. And if there be any defect in form in the warrant, the Court have a power to amend it, and to commit the party, if they see that all lawful questions have not been duly answered, till that shall have been done. If, then, this warrant had been erroneous, in committing the party till he should answer all the questions satisfactorily, I should think that a defect in form, and that the Court might amend the warrant, and recommit the party, till he should make satisfactory answers to all the material questions. It is to be observed, that these questions had reference to circumstances which had occurred very recently before the examination, and the answers given, plainly shewed, that the party was evading the questions put to him, and that he did not speak the truth, when he said that he had no distinct recollection as to the transactions between him and the bankrupt. Besides, the facts which transpired as to the debt of 2951. afford strong grounds for suspecting that that sum had been advanced by him, for the purpose of enabling the

bank

bankrupt to go abroad, and that there was property secreted for the purpose of covering the advance. I think, therefore, that the commissioners were justified in coming to the conclusion, that these answers were unsatisfactory; and that they would not have discharged their duty, if they had not committed the party. The prisoner must therefore be remanded.

HOLROYD J. I was not present in court during the whole of this argument, but upon the discussion which I have heard, I am of opinion, that the commissioners in this case have acted within the scope of their authority. By the warrant, it appears that their enquiries related to the estate, dealings, and person of the bankrupt. It is however alleged, that this did not authorize them to put any questions with regard to the bankrupt's wife. But I appprehend that the commissioners have a right to put questions respecting other persons, through whom they may be likely to obtain information of the estate, dealings, and person of the bankrupt. For it may be extremely material in a case where a person suspected of having concealed part of the property is brought before them, and gives evasive answers to questions on this subject, that the commissioners, who are aware that the bankrupt has absconded, should require of such a person, to state what communications he has had with the wife of the bankrupt, and when and where they took place. I think, therefore, that the questions here put were legal and material. The Court is not to presume that the commissioners have put any illegal question, unless that clearly appears to be so on the face of the warrant. If the questions be illegal, the party should demur to them before the commissioners, but he has not done

1818.

Ex parte

VOGEL

1818.

Ex parte
VOGEL.

so here, for he has answered the questions which are apparently legal, and his answers are not satisfactory. With respect to the point which has been made, that some at least of these questions have been satisfactorily answered, and that therefore the warrant is bad, I fully agree with my Lord C. J. in thinking, that if, taking the whole examination together, the answers collectively appear unsatisfactory, the commitment is legal. That being my opinion, I think that the prisoner must be remanded.

ABBOTT C. J. I wish to add, that I do not by any means think the power vested in commissioners of bankrupts too great. It is not too great for the purpose of detecting those frauds which are too generally practised. And as far as my knowledge and experience enable me to judge, I believe that it has almost invariably been exercised with great caution and discretion.

The prisoner was remanded.

Saturday,
Nov. 28th.

The 13 G.3. c. 78. s. 62. is applicable to proceedings by order of two justices under

The KING against The Justices of WORCESTER

SHIRE.

W. E. Taunton had obtained a rule nisi, for a mandamus to the justices for the county of Worcester, commanding them to confirm an order made by two justices, for diverting and turning a therefore, that it footway, pursuant to the statute 55 G. 3. c. 68. From the affidavits, it appeared that the orders had been

55 G. 3. c. 68. 3.2. Held,

is necessary to give reasonable notice of the special sessions

at which any

made by two justices, at a special sessions, holden on

such order is to be made to the several justices acting and residing within the division; and that unless such notices be given the sessions ought not to confirm and enrol such order, even though there be no appeal against it.

Tuesday,