plication of the mother of a bastard child, againstthe defendant, as the putative father, more than twelve months having elapsed since the birth of the child, he having within the twelve months next after the birth of the child paid money for its mainten

ance.

The summons was according to the form given by the 8 & 9 Vict. c. 10, Schedule No. 6, except in saying that the mother alleged that the defendant had paid money for the maintenance of the child within twelve months after its birth, instead of saying that she had given proof of this fact. The defendant duly appeared at the petty sessions according to the exigency of the summons. Being assisted by an attorney, he made no objection to the form of the summons, or to any of the proceedings on which the summons was founded; but he denied the paternity, and denied that he had paid any money for the maintenance of the child within twelve months after its birth, or at any other time. The case was then gone into on the merits, and proof being given of the paternity, and of the payment of money by the defendant for the maintenance of the child within twelve months after its birth, the defendant presented himself as a witness on his own behalf, and having on oath denied the paternity, swore that he had never paid any money for the maintenance of the child.

Among other assignments of perjury there was one upon the defendant's statement in his evidence that he had never paid any money for the maintenance of the child.

At the trial, before my Brother Hill, strong evidence was given in support of this and other assignments of perjury. It was further proved that the summons was issued by the Magistrate on the personal application of the mother, who then stated (but not on oath) that she had been delivered of a bastard child more than twelve months previously, and that money had been paid by James Berry, the father of the child, for its maintenance within twelve months from its birth.

It was then objected, by the counsel for the defendant, that he could not be indicted for perjury in respect of what he swore at the hearing of the case at the NEW SERIES, XXVIII.-MAG. CAS.

petty sessions as the summons was insufficient, and no proof on oath had been given before the Magistrate of the payment of the money having been made for the maintenance of the child previous to the issuing of the summons; and further, it was objected that the assignment of perjury upon what the defendant swore respecting the payment of the money was upon a matter immaterial at the hearing of the summons. The defendant being convicted, both points were reserved by the learned Judge for the opinion of this Court.

As to the second objection, we never entertained the smallest doubt, clearly thinking that it was necessary to prove at the hearing the payment of the money by the defendant as alleged; and further, that his payment of money for the maintenance of the child was corroborative evidence of the paternity.

As to the first objection, we took time to consider: After examining the acts of parliament and the authorities upon the subject, I am of opinion that this objection ought to be overruled.

The proceeding against the putative father of a bastard child to obtain an order of affiliation and maintenance is not a proceeding in pœnam to punish for a crime, but merely to impose a pecuniary obligation, and is a civil suit within the meaning of 14 & 15 Vict. c. 99. ss. 2, 3.-See The

Queen v. Lightfoot (7). For this reason

the defendant was admitted as a witness on his own behalf. Then, what is the summons which we have to consider? Mere process to bring the defendant into court in a civil suit. I incline to think that, according to strict regularity, before the summons issued there ought to have been evidence on oath of the payment of the money, although it is not expressly required by the statute to be on oath, as in the case where the complaint is made before the birth of the child. Further, it would have been proper that the summous should have been in the form given by the act of parliament. But, supposing that, if the defendant had not appeared, the petty Sessions could not lawfully have proceeded to hear evidence

(7) 6 E. & B. 822; s. c. 25 Law J. Rep. (N.S.) M.C. 115.

N

of the paternity, or that, if he had appeared and objected to the regularity of the summons, the objection ought to have prevailed, I am of opinion that when he actually appeared, and, instead of objecting to the regularity of the summons, he asked the Court to give judgment in his favour on the merits, and tendered evidence to absolve himself from liability, he waived any irregularity which there might be in the process, and that, when he had thus submitted himself to the jurisdiction of the Court, the Court had jurisdiction to hear and to decide the suit. No irregularity in the process to bring the defendant into court in a civil suit can be taken advantage of by the defendant after he has appeared and pleaded, and there has been judgment against him.

The defendant's counsel relied upon The Queen v. Scotton. But that was a criminal proceeding, the information being on a penal statute to recover penalties for an offence created by act of parliament, and there the act of parliament expressly provides that, "before any proceeding shall be had or taken upon the information either for summoning the party accused or compelling his appearance to answer the same, the charge contained in such information shall be deposed to on the oath of some person or persons other than the informer." Beyond the information, a distinct deposition to the truth of the charge is made necessary before the Magistrate can take cognizance of it. But the case of The Queen v. the Justices of Wiltshire seems exactly in point on the other side.

That was a proceeding in bastardy, and, as the law then stood, the parish officers who applied for an order of maintenance were bound to give the putative father seven days' notice of the application before the petty sessions. In that case the notice had not been regularly given, but the defendant appeared at the petty sessions, and, without objecting to the want of the seven days' notice, desired the Justices to remit the charge to the Quarter Sessions, and entered into the recognizances which the law required; and it was held, that he could not afterwards object that there was a want of jurisdiction to hear the case, as the appearance and proceedings at the petty sessions cured the defect. Lord

Denman, C.J.-" As to the want of proof of the seven days' notice required by the act, it is enough to say that the defendant appeared before the petty sessions and did not insist on want of notice." Littledale, J.-"Any objection that might have been made to the want of seven days' notice was cured by his appearance, and by the steps taken by him before the Justices in petty sessions." Williams, J.-" The want of due notice, supposing none to have been given, was cured by what took place at the petty sessions." Coleridge, J.

"The answer to the objection that no sufficient notice was given to appear at the petty sessions is, that the party has appeared, and, without objecting to the want of notice, has elected to have the case sent to the next Quarter Sessions, and entered into a recognizance accordingly. Now, this cures the want of notice, and makes it unnecessary to consider whether there was one in fact, or whether it is sufficiently stated in the order."

There are various other cases illustrating the same principle to be found in the books, but I do not consider it necessary now to comment upon them. Thinking that any irregularity in the form of the summons or in the manner in which it was granted was waived and cured by the defendant having appeared, and, without objection, submitted to the jurisdiction of the petty Sessions, I am of opinion that the conviction ought to be affirmed.

I

MARTIN, B.-I cannot agree in the judgment that has been delivered by my Lord; but I do not wish the case to be argued before the fifteen Judges. think the jurisdiction is a special one, and that to create it there must be a proof on oath as a condition precedent, and that no subsequent appearance can cure it.

I think the distinction is between a Court of general jurisdiction and a special one, and not between proceedings of a civil and criminal nature.

I think the cases cited do not apply. In those the putative father was the active party in removing the case to the Quarter Sessions, where the objection was taken for the first time.

Conviction affirmed.

Evidence-Disclosure under Stat. 5 & 6 Vict. c. 39. s. 6.-Transaction known before.

An agent intrusted with a bill of lading, without authority of his principals, and in violation of good faith, deposited it with bankers for his own benefit, as a security for advances. He was charged with this offence before a Magistrate. The depositions which were taken in support of the charge contained ample evidence to support it. Having become bankrupt, he was taken by his creditors and examined respecting the subjectmaller of the charge before a Commissioner in Bankruptcy, and then made a statement in every respect in accordance with the evidence in the depositions. He was afterwards indicted on the same charge. On the trial, his examination in bankruptcy was offered by him as a defence, as shewing that he had disclosed the act before a Commissioner in Bankruptcy previous to being indicted for the offence, and that therefore he was not liable to conviction, by virtue of the statute 5 & 6 Vict. c. 39. s. 6 :-Held, that the evidence of a disclosure was admissible under the plea of not guilty.

The majority of the Court (Lord Campbell, C.J., Pollock, C.B., Wightman, J., Martin, B., Willes, J., Bramwell, B., Watson, B., Channell, B. and Hill, J.) were, however, of opinion, that as the agent only stated before the Commissioner matter which had been previously known and previously proved by evidence before the Magistrate, he had not made any disclosure within the meaning of the act, and consequently was not entitled to protection. The minority, (Cockburn, C.J., Williams, J., Crompton, J., Crowder, J. and Byles, J.), held, that as the slalement of the agent was obtained on a compulsory examination, instituted bona fide by the creditors for their own interest, it was a disclosure before a Commissioner within the act, notwithstanding the previous publicity of the matter there inquired into.

were tried, before me, at the October Session, 1858, holden for the jurisdiction of the Central Criminal Court, upon an indictment which charged them, that having been intrusted, as brokers and agents, with a bill of lading of a cargo of timber, they had, without the authority of their principals, and in violation of good faith, fraudulently transferred and delivered the bill of lading for their own benefit.

The indictment was framed upon the statute 5 & 6 Vict. c. 39, which, in the section which creates the offence, contains the following proviso:" Provided that no agent shall be liable to be convicted by any evidence whatsoever in respect of any act done by him, if he shall, at any time previously to his being indicted for such offence, have disclosed the same in any examination or deposition before any Commissioner of Bankruptcy." The prisoners pleaded not guilty; and at the close of the evidence for the Crown their counsel tendered the examination in writing of each of them, taken before the Commissioner under a fiat duly issued. The counsel for the Crown objected that, under the plea of not guilty, those examinations were not admissible. I admitted the evidence, but reserved the points arising upon it; and the examinations were put in and read, of which copies accompany the case. Copies also of the depositions before the Magistrate, upon which the prisoners were committed for trial, and a copy of the evidence before me, accompany this case. The prisoners were committed for trial on the 13th of July. The examination of the prisoners before the Commissioner of Bankruptcy took place on the 26th of July, subsequent to their committal, but before the indictment was preferred. I left the facts to the jury, excluding from their consideration the examination before the Commissioner, the effect of which I thought was matter of law, and reserved it accordingly. The jury found ingly. The jury found the prisoners guilty; and I have to request the opinion of the Court of Criminal Appeal-First, whether the written examinations of the

Alfred Skeen and Archibald Freeman

Coram Lord Campbell, C.J., Cockburn, C.J., Pollock, C.B., Wightman, J., Williams, J., Cromp

of not guilty; secondly, whether those

ton, J., Martin, B., Crowder, J., Willes, J., Bramwell, B., Watson, B., Channell, B., Byles, J. and Hill, J.

examinations were such a disclosure of the offence of the prisoners, within the meaning of the proviso above quoted, as, under the circumstances of the case, rendered them not liable to be convicted. Judgment is respited on the said indictment. The prisoners have been admitted to bail (1).

The case was argued (Nov. 20, 1858), before Pollock, C.B., Wightman, J., Williams, J., Byles, J. and Hill, J.; but there being a difference of opinion among the Judges, it was re-argued (Jan. 22, 1859), by Ballantine, for the prisoner Skeen;

and

H. Giffard, for the prisoner Freeman.

The statement made by the prisoners in the Court of Bankruptcy was a sufficient disclosure, within the meaning of the stat. 5 & 6 Vict. c. 39. s. 6, and protects them against any conviction in respect of the matter so disclosed. Advantage of that disclosure may be taken by the prisoners under the plea of not guilty. The defence does not require to be pleaded specially. The fact that a charge was made before a Magistrate, and supported by proof, does not prevent the prisoners' statement before the Commissioner being a disclosure. Examinations before a Magistrate are often imperfect, and require corroboration and supplementary proof. Although the matter generally may be well known to the creditors, yet it may be of great importance to induce the bankrupt to give a full, particular and detailed explanation. If it be fully known in every necessary particular, the creditors would not take the defaulting agent before the Commissioner to have him examined. The fact of their requiring him to be examined shews that there is yet something connected with the transaction which it is important for him to explain. It is not argued that if a pri

(1) The charge before the Magistrate was the same as that contained in the indictment. The depositions contained the statements of witnesses, which were repeated in substance on the trial, which, if believed, were sufficient to warrant the jury in convicting the prisoners of the offence charged. It was taken, on the argument, that the prisoners' examination before the Commissioner was an admission by them of the same facts as were stated by the witnesses in the depositions. It is therefore not thought necessary to set them out,

soner came voluntarily before the Commissioner, or was taken before him collusively by a friendly creditor, the statute would apply. No suggestion has been made, but that the proceedings here against the prisoners were hostile to them and boná fide. A thing may be known in many ways, though not formally until stated to the proper person. It is hardly possible to imagine a case in which something of the charge is not known to many persons. It may be known in part to one person, in part to another. The principals' or creditors' attorney probably must know it, even if the principals or creditors do not, before the agent can be taken before the Commissioner to be examined. Therefore, if the word " disclose" is held to mean in this statute to reveal something not hitherto known, the statute will be practically inoperative. There is no warrant in the statute for the Court to impose an arbitrary limit, and say if the matter has been previously stated on proof before a legal tribunal, it has been disclosed; but not if it is only known in the attorney's office. The term "disclose" has many meanings, besides reveal for the first time. It means "set out"; "exhibit plainly." A plea is said to disclose a defence. Whiley v. Wiley (2) was decided on this "disclose," in the Common Law Procedure Act, 1852, s. 27; and it was there held, that the expression an affidavit, "disclosing a good defence" meant setting out the facts in the affidavit. In neither case does it mean a setting forth of facts not previously known. A similar construction has been put upon the term in the Bills of Exchange Act, 18 & 19 Vict. c. 67. s. 2.

term

[BRAMWELL, B.-Surely the word "disclose" must be a relative word. If the person to whom the statement is made does not know it before, it is a disclosure to him.]

Here the matter was not known to the creditors before, and even if known to them, it certainly was not known to the Commissioner. The act states, that the prisoner is protected if he discloses before the Commissioner; and it is clear here that as to the Commissioner, it was a disclosure

(2) 27 Law J. Rep. (N.s.) C.P. 305.

or revealing of the facts for the first time. The prisoner, on his examination before the Commissioner, may be forced to answer questions criminating himself, and his answers may be used as evidence against himself The Queen v. Scott (3).

[CROMPTON, J.-When you file what is called a bill of discovery in Chancery, it is in respect of matters which you know pretty well before.]

Yes; and the bill must state the matters clearly for it is an objection if the bill is what is called a fishing bill. The object of the provision in question is to assist the persons interested, and to induce the agent to make a full explanation by relieving him from fear of criminal proceedings if he fairly states everything. If it be held that there is no disclosure in this case, it will be necessary in every criminal case where it is proposed to put in the examination of the prisoner before the Commissioner to enter upon a collateral inquiry of great difficulty, namely, whether the matter was sufficiently known beforehand to prevent the examination being a disclosure. According to the suggested construction an agent who thought that he was revealing his fraud for the first time would be deprived of the benefit of the statute if it were proved that some one else, whom he knew not, was acquainted with the transaction. In the various Indemnity Acts it is laid down if the witnesses make a full and complete disclosure they shall be indemnified from all penal consequences. In these cases the matters upon which the witnesses are to be examined are well known beforehand. In fact, it is their notoriety that caused the acts to be passed. It was thrown out, by Hill, J., in the course of the former argument, that perhaps the term "disclosure before indictment" might mean, before a criminal charge made that might lead to a prosecution. But "an indictment" is a term well known to the law, of a fixed signification, meaning a bill containing a charge of a misdemeanour or felony found by a grand jury to be true. It would be doing violence to the language and spirit of the enactment to put upon it such a forced construction.

(3) 25 Law J. Rep. (N.s.) M.C. 128.

No counsel were instructed to support the prosecution. Cur. adv. vult.

Campbell, C.J. now delivered the judgment The Court differing in opinion, Lord of himself, Pollock, C.B., Wightman, J., Martin, B., Willes, J., Bramwell, B., Watson, B., Channell, B. and Hill, J.:—

LORD CAMPBELL, C.J.-On the 13th of July 1856, the two defendants were charged before a Magistrate with the offence for which they were afterwards tried, under the 6th section of the 5 & 6 Vict. c. 39. By the depositions of several witnesses on oath the charge was then clearly proved against them, and all the circumstances connected with the guilty act imputed to them were fully explained; accordingly they were duly committed for trial. On the 6th of July preceding they had been adjudged bankrupts, and on the 26th of the same month, while the prosecution was pending against them, being examined in the Court of Bankruptcy, at the instance of a creditor, they made a statement to the same effect as the depositions before the Magistrate, and amounting to a confession of their guilt. Very soon after, at the next meeting of the Central Criminal Court, an indictment for this offence was preferred, and found against them. The trial coming on before the Lord Chief Baron, they pleaded not guilty, and they were convicted on exactly the same evidence which had been given against them before the Magistrate. When the prosecutor's case was closed, their depositions in the Court of Bankruptcy were tendered in evidence in bar of the prosecution, under the proviso to the section of the statute upon which the indictment was framed. It was objected, on the part of the Crown, that these depositions could not be admitted as a defence under the plea of not guilty; and that, at any rate, they did not amount to any defence. The Lord Chief Baron admitted the depositions; intimated his opinion that they did not constitute a defence, and reserved these questions for the opinion of this Court. If the depositions could be at all available, I think that they might have been admitted under the plea of not guilty, and that they were tendered in evidence at the proper