are compellable to answer, even though they may thereby criminate themselves. Assuming that decision to have settled the law, though there was a division of opinion among the Judges, and the case was not brought, as it might have been, before the full Court of Appeal, the obvious answer is, that the protecting clause applies not only to bankrupts under examination (as seems to have been assumed on the opposite view of the question), but to other witnesses as well, and that the latter, unless they can be brought within the protecting clauses of the penal statutes relating to embezzlement, would not be bound to criminate themselves. It is matter of very frequent occurrence, as I have already observed, that third parties who in collusion with bankrupts, or in fraud of bankrupts, have been concerned in transactions which would come within these statutes are summoned for examination before Commissioners in Bankruptcy under the 33rd section of the Bankrupt Act. The examination of parties so circumstanced is often most essential to the interest of the creditors, which no doubt was the reason of the extension of the protecting clause to examinations in bankruptcy. But it is obvious that if the efficacy of the protecting clause is impaired by making the entire secrecy of the transaction deposed to the condition of its application, the utility of such examinations will be reduced to nothing, as witnesses so circumstanced will, of course, decline to answer. Moreover, this difficulty applies, not only to examinations in bankruptcy, but to examinations occurring under any form of civil proceeding to which the aggrieved party may resort. And if the term "disclosure" is to be taken to import that the matter must be before unknown, where is the line to be drawn? Will communication to an associate, or a friend, or to an indifferent party, be sufficient to exclude, or must it be a communication to a party interested? And if so, will communication in cases of bankruptcy to a single creditor suffice to exclude, or must it be to the body of the creditors? Again, if knowledge of the transaction on the part of creditors will exclude, what degree of knowledge will suffice? Must it be a knowledge of the entire transaction, and of all its particulars, or will it be sufficient if the transaction has been brought generally to the knowledge of others, while the particulars are left to be gathered from the examination of the party? If the latter, a bankrupt may be compelled to supply the defective links in the chain of evidence against himself, while he would be deprived of the immunity afforded by the act. Moreover, in every case in which the existence of the transaction had become in anywise known, or even suspected or surmised, it would always be a question whether it had become sufficiently known to deprive the witness of his protection, and the Judge or Commissioner in Bankruptcy, who would have to determine whether the witness was bound to answer, would have first to decide the preliminary question whether the circumstances amounted to a disclosure or not, without having the means of ascertaining whether the facts had become known elsewhere, and if so, to what extent; and thus might very likely be called on to compel the witness to answer, where it would be his duty to protect him from unwillingly criminating himself. What answer is a Judge or Commissioner to make if appealed to, and told that the facts to which the witness is called upon to depose have been, in the whole or in part, made known to one or more individuals, in public, or in private, clothed with authority to receive the statement or not, as the case may be? Into what innumerable difficulties would not such a rule lead in practice? Again, see the hardship upon a bankrupt against whom a prosecution is contemplated, or perhaps already set on foot. It may be that the evidence is inconclusive, or the witnesses open to suspicion. Is it nothing that the accused shall be compelled, though before another tribunal, to admit the facts, and that his admission shall go forth to the public, the effect of which will be that, even if his statement so made would not be evidence against him on his trial, yet by the publicity given to his avowal, the jury will be already prepared to believe the case against him. But according to the authority of The Queen v. Scott, not only is a bankrupt compellable to answer, though in so doing he may criminate himself, but his admission may even be brought forward against him on a criminal prose cution. Is such a result consistent with the provision of a statute, which in creating the offence has expressly protected a party disclosing transactions which would otherwise fall within its enactments? No doubt cases will occur, as in the present instance, in which a conflict may arise between the interests of criminal justice and the civil rights which it was the intention of the statute to protect. This the legislature seems itself to have anticipated, and to have itself drawn the line, by fixing the time of indictment as the period after which the evidence shall no longer carry protection with it. This, I think, plainly shews that the legislature contemplated the possibility of the publicity of the transaction prior to the evidence being given. The guilty act must be known before an indictment would be preferred; and, generally speaking, an examination before a Magistrate would, as a matter of course, precede the indictment. Is it for us to abridge the period of protection which the legislature itself has fixed? There is yet another consideration which, to my mind, is conclusive to shew that the construction put by the prosecution on the word "disclose" is not the true one. For this construction of the term would, as a necessary consequence, in the case of several co-delinquents, deprive all, except the one first examined, of the benefit of the protecting proviso. In the case of several partners, parties to an offence against the statute, all summoned for examination, all ready to disclose, the accidental circumstance that A. happens to be called before B. and C, though all should give evidence as to the same transaction, would give to A. the preference of protection, while B. and C. would be excluded from it. The same thing would happen where the examination of one of the parties might make it appear expedient to subject the other to examination. In the case now under consideration, supposing all difficulty arising from the previous publicity of the facts had been out of the way, one only of the partners, namely, the one who claimed to be examined first, would be entitled to the protection of the statute, because the fact having once been made known, it could not, according to this construction, be again "disclosed." The absurdity of the consequence is to my mind irresistibly conclusive against the validity of the premises from which it necessarily flows. am not insensible to the abuses which may be attempted by examining bankrupts before Commissioners in bankruptcy; but independently of the observations I have before made as to the inapplicability of any argument founded thereon, I cannot but think the apprehended mischief is to be counteracted by rigorously insisting that the protection shall extend only to cases where the evidence is given on examinations instituted bona fide for the purpose of advancing the interest of the creditors. But even if this were not so, these inconveniences appear to me to be greatly outweighed by the greater difficulties I have pointed out, and which would have the effect of frustrating the purposes for which this protection is afforded. If on a review of the statute the meaning of the term "disclose" should prove to be what I have suggested, and inconveniences should arise from its application to examinations in bankruptcy, the remedy must be found by fresh legislation, not by a distortion of the sense of the terms of existing enactments. I have, lastly, to advert to that class of statutes in which protection is afforded to delinquents on their giving evidence of criminal acts in which they have been implicated. In many of these the term "disclosure," or "discovery" (which is used in a synonymous sense) occurs. Thus, in the various acts for the appointment of commissions for inquiry into bribery, of which the act of the 15 & 16 Vict. c. 57. ss. 8, 9, 10, may be taken as an instance, protection is given to offenders. making discovery or disclosure of criminal acts in evidence given before the Commissioners. Now these statutes, more especially the one just referred to, were all passed in consequence of so many instances of criminal acts having come to light, that a more general inquiry became desirable. The acts to which a party would come to depose would all be known and notorious before the examination would take place; in a vast number of instances the same witnesses had previously been examined before committees of the House of Commons. Yet it never occurred, or could occur to any one, to suppose that the statement of the witness under the commission was not a discovery or disclosure within the protecting enactment, because the fact deposed to had been before openly stated by him or otherwise generally known. It never occurred to any one that if one of the parties to a corrupt act had given information, the other, if examined before the Commissioners, would not be held to have made a disclosure. And to make the case as analogous as possible to the present, let me ask what would be the effect if, prior to the issuing of such a commission, an action had been instituted for penalties, or a prosecution commenced against the offender? Could the purpose of the act be frustrated by holding that there could be no disclosure under such circumstances? I apprehend, beyond all question, not. Again, in the Act for the Suppression of Gaming-Houses, 17 & 18 Vict. c. 38, a person taken on suspected premises may be compelled to give evidence as to acts of gaming, or as to the lawful obstruction of the entrance of the officers; and if he makes a true and faithful discovery, he becomes entitled to immunity. Yet here the circumstances are notorious; there is no doubt that gaming has been going on; the obstruction to the entrance of the officers is indisputable; a prosecution is already commenced: what is wanted is legal evidence to prove facts of which no moral doubt exists; yet the legislature treats the evidence given under such circumstances as a discovery entitling the witness to immunity. There There are other statutes giving indemnity to offenders simply on their giving evidence of illegal acts to which such statutes have reference, without the use of the term "disclosure " 66 or discovery." Of this the act 6 Geo. 4. c. 129. s. 6, the Act for the Suppression of Illegal Combinations. among Workmen, is an instance. These acts appear to me most important, as shewing that the term "disclosure," applicable to evidence given by offenders, is used by the legislature without the consideration of the facts spoken to being previously unknown being involved in it; and, further, that where the production of such evidence is deemed desirable, the escape of the offender, even from a pending as prosecution, is not deemed a bar to its being obtained by immunity to the offender. Looking, therefore, to the use of the term in question in legal language, and in statutory enactments relating both to the general administration of the law, and more particularly to purposes similar and analogous to the present, and looking also to the purposes of the present enactment, and the effect of the construction of the word "disclose" with reference to such purposes, I am irresistibly led to the conclusion, that the true meaning of the term as it occurs in this statute is the restricted one which attaches to it in all these numerous instances; and that, consequently, the defendants have sufficiently disclosed the offence with which they stand charged, and are, therefore, entitled to our judgment. LORD CAMPBELL, C.J.-I do not wish to be supposed to reply upon the judgment declared by Cockburn, C.J., but I may say that I and some of my Brothers are of opinion that the word "disclose" may admit of two interpretations-a discovery of that which was before unknown, and a statement of that which was known before; that we have to look in each act of parliament to see in which sense it is used by the legislature, and we think that it is used in one sense in one set of statutes, and in another sense in the statute now under consideration. 66 POLLOCK, C.B.-It appears to me that if we have to construe the word disclose" as merely to "state," we should entirely repeal the statute; the intention of the legislature being in my opinion to punish crime, and not to forward the interests of creditors against their debtors. If we put on the word "disclose," as I am disposed to do, the meaning of making known for the first time, we must give that expression a reasonable interpretation; and it may well be, that a statement by an agent would be a disclosure within the act, though the matter was known to some persons, as, for instance, to a clerk or to a partner in a bank, with whom a document had been fraudulently deposited. We must put such a construction upon the act as will render it effectual. Conviction affirmed. On an appeal against this rate, a case was stated by consent for the opinion of the Court of Queen's Bench. CASE. The Coventry Canal was made in pursuance of an act passed in the 8 Geo. 3, and extends from the city of Coventry, in the county of Warwick, to Fazeley, in the county of Stafford, where it unites with a part of the Birmingham Canal, which proceeds westward to Birmingham, and, with another part of the said Birmingham Canal, which extends for five miles and a half in a northerly direction to Whittington Brook, from which point the Coventry Canal extends five miles and a half further in a northerly direction to the parish of Fradley, in the county of Stafford, where it unites with the Trent and Mersey Canal. The Coventry Canal passes through several parishes and townships. The total length of the same is thirty-two miles and a quarter, of which four furlongs and two hundred and one yards are in the respondent township. The canal is carried over numerous embankments with aqueducts and other expensive works, and there are thirteen locks situate in various parts of the canal, two of which are in the respondent township. The repairs of these thirteen locks are annually extensive. The total cost of these repairs in the year ending the 31st of August 1857 amounted to about 450%., of which sum 105l. 2s. 8d. was expended in repairing the two locks in the respondent township. The locks are essential to the working of the canal in its several parts. The canal company are the owners and occupiers of the canal, but they are not carriers along the line. They derive their profits solely from the tolls, rates and duties payable to them for goods, wares and merchandise passing along the line of their canal after certain rates of tonnage. The gross amount of tonnage passing along the canal in the year ending the 31st of August 1857 produced 11,579. 11s., and the gross expenses for the same year, exclusive of property and income tax, amounted to 4,263l. 10s. 4d., leaving a nett profit of 7,3161. Os. 8d. The gross earnings of the canal in the respondent township in the year ending the 31st of August 1857 produced the sum of 1851. The appellants contend, that 1857. is the proper sum on which to base the rate to be made on them for the respondent township, and that the following deductions ought to be made therefrom: viz., first, tenant's profits at -l. per cent. ; second, share of salaries of clerks, collectors and engineers, cost of supplying water, and general management (not coming under the head of repairs or maintenance of works), which are common to the entire canal, on the mileage principle, by dividing the same among the several parishes simply according to the distance which the canal passes through each, 311. 4s. 4d.; third, the expenses of maintaining and repairing the works of the canal and the two locks in the respondent township, the only amount incurred in the year ending the 31st of August 1857 being being the sum of 105l. 2s. 8d., for the repairs of the locks; fourth, the poor-rate, 21. 12s. The respondents contend, that if the appellants ought to be rated on the gross earnings of 1857., as contended by them, the appellants are only entitled to have the deductions from the sum of 1857. made as follows:-first, tenant's profits, at -1. per cent.; second, share of salaries and other expenses upon the mileage principle, as stated by the appellants, 317. 4s. 4d.; third, share of the annual expenses of the repairs of the works and locks of the canal, calculated also on the mileage principle, and not treated as local expenses, as contended for by the appellants, the said locks and works being essential to the effective working of the whole canal, 291.; fourth, poor-rate, 2l. 12s. The respondents further contend, that they are entitled to rate the part of the canal situate in their township at a higher value than that represented by the gross earnings of the said part of the canal, inasmuch as the works and locks in the township are contributory to the earnings of the profits in every part of the canal, and without such locks and works the traffic on either side could have no existence. The questions for the opinion of the Court were: first, whether the appellants were to be assessed in the gross earnings of the canal in the respondent township, as contended by them, or whether the respondents were entitled to assess the appellants on the higher value contended for by them. Secondly, whether the deductions for the repairs and maintenance of the locks and works of the part of the canal in the respondent township were to be made as contended by the appellants, or as contended by the respondents. If the Court should be of opinion that the assessment should be made on the gross earnings of the canal in the respon dent township, then the amount of such gross earnings to be taken as 185l., and the assessment to be made thereon, in conformity with the decision of this Court. If the Court should be of opinion that the assessment should be made on a higher value than the said gross earnings, as contended by the respondents, then the matter to be referred to a competent surveyor, to be appointed by the attornies on both sides, or, in case of difference, by the Chairman of Quarter Sessions at Warwick, to determine the proper amount of such assessment, in conformity with the opinion of the Court upon the first question. It was further agreed, that the amount to be deducted from the assessment to be made on the appellants, in conformity with the opinion of this Court in respect of tenant's profits, should be referred to the arbitrator so appointed as aforesaid, or to an arbitrator to be specially appointed for that purpose in manner aforesaid. The rate to be altered and amended at Sessions, in conformity with the opinion of this Court and the finding of the arbitrators. The case was argued (Jan. 15) by— and T. Spooner, for the appellants. The nature of the arguments sufficiently appears from the judgment of the Court. In addition to the cases noticed by the Court, the following authorities were cited: by the respondents' counsel : The Queen v. the London and Brighton The Queen v. the Southampton Dock And by the appellants' counsel— The King v. Kingswinford, 7 B. & C. Hodgson on Railway Rating, p. 19. |