to John Davis the prisoner or not. I consider that the law of larceny laid down in respect of articles found was applicable to the article here in question. In respect to those articles the finder is guilty, if, after he has ascertained what the article is and what are the marks of ownership, he determines to appropriate it wrongfully to himself; and so in respect of an article inclosed in a mis-delivered letter, the question of wrongful appropriation cannot arise until it has been ascertained whether the letter has been mis-delivered or not. I ruled as above stated, but when I did so my attention had not been called to The King v. Mucklow (1), and on reading it reserved the point, whether upon these facts and on this ruling the conviction was lawful.

The case was not argued by counsel.

devising and intending to defraud one Joseph Gaisford, did, between and amongst themselves, unlawfully conspire, combine, confederate and agree together, falsely and fraudulently to cheat and defraud the said John Gaisford of a certain large sum of money, to wit, 201., and divers overt acts were then stated in the said first count. The second count charged that the prisoners did unlawfully conspire, combine, confederate and agree together by divers false and fraudulent pretences and subtle means and devices, to obtain from the said John Gaisford a large sum of money, to wit, 201., and to cheat and defraud him thereof, to the great damage of the said John Gaisford. The third count, that they did unlawfully conspire, combine, confederate, and agree together, by divers false and fraudulent pretences, feloniously to steal, take and carry away, of and from the said John Gaisford, a large sum of money, to wit, 20%., to the great damage of the said John Gaisford. The fourth count, after setting forth divers false pretences made by the prisoners, proceeded as follows:-"By means of which said false pretences the said Job Bullock and Joseph Clarke did then unlawfully attempt and endeavour to obtain from the said John Gaisford the sum of 20%., with intent to defraud." The fifth and last count charged, that the prisoners, by divers false and fraudulent pretences, unlawfully, knowingly and designedly did attempt and endeavour feloniously to steal, take and carry away, of and from the said John Gaisford, a large sum of money, to wit, the sum of 201. of the monies of the said John Gaisford. A copy of the indictment accompanied this case.

It was objected, at the trial, on behalf of the prisoners, that all the above counts were bad, and Sill v. the Queen (1) and The Queen v. Marsh (2) were cited by the prisoners' counsel in support of the objection.

The Court thought it right to allow the case to proceed; and it being proved to the satisfaction of the Court and jury that the prisoners had by a concerted scheme endeavoured to cheat the said John Gaisford of 201., by passing to him four 5l. cancelled notes in exchange for his monies (1) 22 Law J. Rep. (N.s.) M.C. 41. (2) 19 lbid. 12.

to the same amount, the jury found the prisoners guilty upon each count of the indictment, and the prisoners were respectively sentenced to one year's imprisonment and hard labour; and they are now in prison under this sentence; and judgment was passed on each count of the indictment, the sentences of hard labour being confined to such counts respectively as charged a conspiracy so that if either of the counts be good, this sentence will take effect to the extent to which it was passed on such count. The Court reserved this case for the opinion of the Criminal Court of Appeal, and the question was, whether the objection made to the form of the indictment could be sustained.

Evidence-Admissibility of Bankrupt's Examination against him—Answers which Bankrupt might have refused to give.

Though a Court of bankruptcy is empowered, by section 117. of the Bankrupt Law Consolidation Act, 1849, to examine a bankrupt as to certain matters specified in the section, the bankrupt cannot be compelled to answer any questions, beyond these matters, that may tend to criminate himself. If, therefore, without claiming the privilege of refusing to answer, the bankrupt, on his examination by the Commissioner, answer questions as to matters not within the section, his answers may be read in evidence

Coram Jervis, C.J., Coleridge, J., Cresswell, J., Erle, J. and Martin, B.

by the prosecution on any criminal proceeding against him.

The following CASE was reserved by Mr. Serjeant Channell, for the opinion of the Court of Criminal Appeal.

Samuel Thomas Sloggett was convicted, before me, at the last Assizes (Spring, 1856) for the county of Devon, of unlawfully uttering a forged letter, signed "T. F. Sloggett," knowing it to be forged, with intent to obtain certain goods, the property of Sampson Copestake and others. Sentence was passed upon the prisoner, that is to say, imprisonment for two calendar months in the gaol of Devonport. He is now in prison. Before any criminal charges were made against him, the prisoner was examined in the Court of Bankruptcy for the Exeter district, under an adjudication in bankruptcy against the prisoner, on the petition of a creditor. He, the prisoner, before such examination, made and signed the declaration required by the 12 & 13 Vict. c. 106. s. 117. (see also section 254). The examination was taken down in writing in the presence of the Commissioner, and was signed by the prisoner. In the course of the examination, the prisoner was cautioned by the Commissioner to speak the truth. In a later stage of the examination, the prisoner was told by the Commissioner that he was to consider himself in custody. On the trial of the prisoner, the usher of the Court of Bankruptcy was examined as a witness for the prosecution. He produced the proceedings in bankruptcy and the examination of the prisoner under the seal of the court and signed by the Commissioner. The wit

ness proved that he was present when the prisoner was examined before the Commissioner, and that he could point out in the examination the part at which the prisoner was told to consider himself in custody. It did not appear that the prisoner claimed the protection of the Commissioner, or objected to answer any question, on the ground that the answer thereto would criminate, or might tend to criminate him, or on any other ground. The counsel for the prosecution proposed to read so much of the prisoner's examination before the Commissioner as preceded

the statement that the prisoner was to consider himself in custody, offering to read the whole of the examination if desired by the prisoner's counsel. The prisoner's counsel objected to the reading of the examination. I received in evidence the part of the examination which preceded the statement referred to. The prisoner's counsel did not require the other part to be read. A copy of so much of the examination as was read is annexed to this case. The parties named in the indictment as Sampson Copestake and others are parties who traded under the style or firm of Growcock & Co., mentioned in the examination of the prisoner, and are the parties referred to. The question for the opinion of the Court is, whether the examination read was properly received in evidence.

The following is a copy of the part of the prisoner's examination referred to in the case.

The Bankrupt Law Consolidation Act, 1849. In the Court of Bankruptcy for the Exeter district, Hall of Commerce, Plymouth, July 9, 1855. In the matter of Samuel Thomas Sloggett, a bankrupt. Before Mr. Commissioner Bere. The said Samuel Thomas Sloggett, being come before the said Commissioner on the day and year above mentioned, and having made and subscribed the declaration by law required, and being examined, sayeth the account now produced, marked with the letter "A," contains a statement of all transactions I have had with Messrs. Growcock & Co., of London, except the first, for which I paid cash. In August last I had an interview with Mr. Hughes, their traveller, and he asked me what capital I had in my business, and I told him from about 2501. to 300%. He asked me to whom I could refer him to satisfy him; I hesitated, and told him I could not tell to whom to refer him, but said he could go to my friends; I meant my father. He took my father's address, and put it down. There was shewn a letter written by Messrs. Growcock, of which the copy produced is, as near as I recollect, the substance. The letter was sent to my father-the 24th of August. The letter was brought to me by my youngest sister, and I was asked what reply was to be made to it; and I

went home to my father's on the Sunday following the receipt of the letter, and saw my father. I asked my father to reply to it, stating he knew as well as I did how I was circumstanced; my father refused to reply to it as I wished, because he said the money was not my own capital, and was borrowed. My sister was present at the interview. The reply was forwarded, and written by my brother, Richard Sloggett, on the 26th of August. The letter produced, marked "C," is that which he wrote; the whole is his handwriting, including the address. The letter was written in an office belonging to my brother, and was not authorized by my father, who did not know of its being written. I did not prepare the draft of the letter; my brother Richard wrote it himself, merely asking me what to say. My brother knew that the money had been lent to me by Mrs. Warburton.

Question. What object had you in view when you gave Messrs. Growcock & Co. that statement in the letter, knowing it was false; was it not to obtain additional credit? Answer. No; I had no such object.-Q. Do you adhere to that answer?-A. My object was to obtain credit to a certain extent; but I was not aware that the difference between stating the capital was my own and being borrowed would affect my credit.-Q. Do you adhere to that answer?-A. Yes.-Q. Again you are asked, if you adhere to that answer?-A. Yes.-Q. Why did you not then make a true statement instead of a false one?-A. I anticipated one day the sum would be mine, and I thought it was a form of theirs to obtain a reference.Q. Why did you practise such a fraud as getting your brother to write in your father's name ?-A. I was not aware that it was a fraud.-Q. What has become of the letter sent by Growcock & Co. to your father?-A. I do not know; I have never seen it since my brother wrote the reply to it; I believe it has been destroyed. Q. Did you never promise your brother Richard to make it right with your father if he would write it ?-A. I never did so, -Q. Did you promise your brother to take it to your father for his approval ?A. I did, and I took it to my father accordingly? Q. Did he caution you

against sending it?-4. No; I believe not.-Q. Did you tell your brother that your father had refused?-A. I did before he replied to it. He asked me the nature of it, and I told him.

Collier, for the prisoner.-The examination of the prisoner before the Court of Bankruptcy was not admissible against him on his trial for a criminal offence. It is not a voluntary statement, but given under compulsion. By the Bankruptcy Consolidation Act, 12 & 13 Vict. c. 106. s. 117, the Commissioners are empowered to examine a bankrupt "touching all matters relating to his trade, dealings or estate, or which may tend to disclose any secret grant, conveyance or concealment of his lands, tenements, goods, money or debts." He is bound to disclose all matters relating to his trade, dealings or estate, even though an indictment be pending against him respecting them. The position of a bankrupt, therefore, differs much from that of a witness at Nisi Prius, who is entitled to refuse to answer any questions that may tend to criminate himself Cates v. Hardacre (1). No doubt if a witness at Nisi Prius choose to answer without claiming protection from the Court, his answers may be used against him. But such is not the case of a bankrupt. If he refuse to answer touching his trade, dealings or estate, he can claim no privilege. He will be committed to prison. There is, therefore, no use in his protesting to be made to answer-Ex parte Cossens (2), Ex parte Kirby (3) and Ex parte Heath (4). It is true that in The King v. Wheater (5), where the party having been cautioned, and being allowed to refuse to answer, chose to answer certain questions, it was held that his answers might be used against him; but the admission was put upon the principle that the party had the liberty to refuse to answer.

[ERLE, J.-Here the examination had reference, not to the estate of the bankrupt, but to certain misconduct imputed to him.]

(1) 3 Taunt. 424.

(2) 1 Buck, 531.

(3) 1 Mont. & M'Ar. 225.

(4) 2 Deac. & C. 214; s. c. 11 Law J. Rep. (N.S.) Bankr. 27.

(5) 2 Moo. C. C. 45.

The bankrupt cannot be supposed to be so conversant with the law as to know the exact limit of the matters on which it is compulsory on him to answer. He knows that the Commissioners may compel an answer on matters relating to his estate and trade and dealings. He presumes that these questions are such, and therefore the answers are not voluntary. Besides, here the examination has relation to his trade dealings, respecting which he must answer fully.

Coleridge, for the prosecution. - The only case in which the statement of a party under examination is inadmissible in evidence against him is when he has claimed the protection of the Court to allow him to refuse answering, and has had that claim improperly disallowed. A witness may refuse to answer questions tending to criminate himself at any stage of the examination-The Queen v. Garbett (6). The cases cited, Ex parte Cossens and Ex parte Kirby, do not shew that a bankrupt is bound to answer questions tending to criminate himself, but directly the reverse. The sections 117. and 251. of the Bankruptcy Consolidation Act do not give the Commissioners greater powers than those of any other Court. In a case at the assizes where the bankrupt, after objecting to the question, had been compelled by the Commissioner to answer, Crowder, J. held that the bankrupt's answer was not admissible against him on his trial for a criminal charge.

Collier replied.

JERVIS, C.J.-I am of opinion that the prisoner's examination in the Court of Bankruptcy was properly received, and was admissible in evidence against him. In deciding this question it is unnecessary to express any opinion upon the principal and main point, whether when the subjectmatter of the examination is strictly within the compulsory powers of the statute, the answers of the bankrupt, given without any protest on his part, on a matter upon which he could not protest effectually, can be read in evidence against him. I do not concur with Mr. Collier as to the second objection to the admissibility of the

(6) 1 Den. C.C. 236.

examination. He contends that, as the Commissioners have power to examine the bankrupt touching all matters relating to his estate, the matters may be so involved as to render the bankrupt unable to discriminate what questions he must answer and what he may refuse to answer, and that, therefore, his examination ought not to be read against him. That is not the test of admissibility. The test is, whether the bankrupt may or may not object to answer. If he do not object when he might object but submits to the examination, the examination is voluntary and admissible in evidence against him. This examination, I think, is not one touching the business, trade, dealings, or effects. It is an inquiry dehors them. The bankrupt might have objected, but instead of objecting, he answered this examination, therefore, is admissible.

COLERIDGE, J.-I am of the same opinion, and upon the same grounds.

CRESSWELL, J.-At common law a party is not bound to criminate himself. It may be that section 117. of the Bankruptcy Consolidation Act has in certain matters deprived the bankrupt of the privilege of refusing to answer. But, although it may

be that he must answer and cannot claim the privilege of refusing to answer as to matters, within the section, I think the examination in question went beyond those matters; that the bankrupt might have refused to answer, and as he 'did not claim the privilege of refusing, the answers are admissible against him.

ERLE, J. and MARTIN, B. concurred.
Conviction affirmed.

game armed by night, it is not necessary to give direct evidence that the men were on the land without the permission of the occupier or landlord; but the jury may infer that they were there unlawfully from their conduct and other circumstances.

The following CASE was referred by Bramwell, B.

66

James Wood was indicted for being, with others to the number of three, unlawfully on land, for the purpose of taking game, being armed. The case was proved, except that it was shewn that the land was the freehold of Jonas Spode, but in the occupation of one Johnson, a tenant of Spode. It was thereupon objected, for the prisoner, that to support the indictment it must be shewn that he was unlawfully" on the land, and that to shew he was "unlawfully" there, it must be shewn by direct evidence that he had not the permission of either the tenant, or the landlord, if the game was reserved to him, and an authority to that effect was cited. The jury found the prisoner guilty; and unless the particular proof suggested was necessary, there was abundant evidence, not merely that the prisoner and those with him were on land which belonged to none of them, but also in their conduct that they were unlawfully there. In deference to the authority cited, I reserved this question for the Court of Criminal Appeal.

No counsel appeared for the prisoner. G. C. Merewether, for the prosecution, was not called upon.

[CRESSWELL, J.-If a policeman apprehends a man by night in another person's house, it is not necessary, if the man is indicted, to call the occupier to prove that he did not give the man leave to be there. So if three men are by night upon land armed in pursuit of game, it cannot be requisite to call the tenant to prove that they were not out with his leave for a day's shooting.]

JERVIS, C.J.-We are all of opinion that the conviction is right.

Conviction affirmed.