6.

time, when it could be distinctly seen what was the corpus delicti relied upon, and a comparison could be made between the depositions before the Magistrate, the depositions in the Court of Bankruptcy, and the evidence adduced at the trial, so as to ascertain whether there had been a disclosure within the meaning of the proviso. But I am of opinion that the depositions did not entitle the defendants to an acquittal. This question depends upon the sense in which the word "disclose" is used in the proviso to the 6th section of this statute. If by "disclosing the act" is meant merely stating the guilty act and confessing it, whatever may be the previous state of knowledge of the creditors, or of the Commissioner of Bankruptcy, and whatever means of proving the guilty act may exist, and whatever steps may have been taken and may be pending for prosecuting and punishing the offender, and although the statement or confession may be made while the grand jury are hearing evidence in support of the indictment, this conviction ought to be quashed. But, according to Dr. Johnson, "disclose" may mean to uncover; to produce from a state of latitancy to open view; to reveal; to impart what is secret." According to Richardson (whose authority I much respect)" disclose" is "to uncover, or discover; to reveal; to open; to make known; to tell that which has been kept concealed." Where by the use of clear and unequivocal language, capable only of one construction, any thing is enacted by the legislature we must enforce it, although, in our own opinion, it may be absurd or mischievous. But, if the language employed admit of two constructions, and according to one of them the enactment would be absurd and mischievous, and according to the other it would be reasonable and wholesome, we surely ought to put the latter construction upon it as that which the legislature intended. Where an agent who has abused the confidence reposed in him, and fraudulently made away with property with which he was intrusted, reveals what was before unknown or incapable of proof, it may be well that for the information and advantage obtained by his confession, hé should be indemnified against the penal consequences of his misconduct, which

without his confession could not have been proved. But can it be supposed that the legislature intended wantonly to extend the indemnity to cases where there is no merit whatever in the accused, where he states only what he knows to be already notorious, and where neither civil nor criminal justice can be at all advanced by the alleged disclosure? Would it not be a flagrant perversion of justice if a detected delinquent, of whose guilt there is abundant evidence, possibly by a previous voluntary confession, were enabled, after the charge has been made and judicially proved, and when a bill of indictment has been prepared, and is to be preferred against him at the next meeting of the proper Criminal Court before which he can be tried, to procure a friendly creditor to summon him into the Court of Bankruptcy, and if by there making or repeating the confession of his guilt, he might set his prosecutor at defiance and escape with impunity? In the present case, when the defendants were examined in the Court of Bankruptcy there was neither uncovering, nor discovering, nor revealing, nor imparting of what was secret, nor telling that which had been kept concealed. Neither for civil nor criminating purposes was the slightest advantage obtained by the alleged disclosure. Without it an action might have been maintained for the conversion of the bill of lading. Without making the slightest use of it, the defendants were actually convicted of the misdemeanour. A difficulty was presented by the counsel for the defendants, by supposing a case where the fraudulent agent, at the time of his examination in the Court of Bankruptcy may have reason to think, and may believe that he is disclosing what was before unknown, and may be deprived of his indemnity by proof of previous knowledge, and means of proof in the possession of others. If he really believed that he was making a discovery, and enabling his principal to obtain justice, I should be strongly inclined to think that this would be a disclosure of the fraudulent act within the meaning of the proviso. But in the present case, the defendants when examined in the Court of Bankruptcy knew full well that they were making no discovery, for they were pre

sent before the Magistrate when the depositions against them were taken; those depositions were all read over to them, when they were asked if they then wished to say anything in answer to the charge, and they must have been fully aware that their statement was only a repetition of what had been before sworn against them when they were committed for trial. It is highly proper in construing this act of parliament that we should look to see in what sense the word "disclose" is used in other acts of parliament; and we find it in 52 Geo. 3. c. 63. s. 5, and in 7 & 8 Geo. 4. c. 29. s. 52, both of which are in pari materia. The object seems to be the same in all the three, they having regard to a civil remedy, and to criminal proceedings in cases of breach of trust by agents; the language employed is nearly the same in all the three; and I am of opinion that in all the three, for the same reasons, the word "disclose" admitting of the same construction, requires the same construction to be put upon it. There having been no judicial decision on the construction of these statutes, I do not see they can be of use to us, except to shew more strongly how justice might be defeated by now holding that a "disclosure" means confession of what the party confessing was well aware had been before made known, and had been before judicially proved. There is another set of statutes of a different description respecting bribery at parliamentary elections, in which the word "disclose" is to be found. The most recent of these is 15 & 16 Vict. c. 57. By section 9. of this statute, 66 no person shall be excused from answering any question on the ground of privilege, or on the ground. that the answer to such question will tend to criminate such person;" and in return it is enacted, in the most express terms, that "every person who is examined as a witness, and gives evidence touching such corrupt practice, and who upon his examination makes a true discovery to the best of his knowledge touching all things to which he is examined, shall be freed from all penal actions, forfeitures, punishments, disabilities and incapacities, and all criminal prosecutions to which he may have been or may become liable for anything done by such person in respect of

such corrupt practice." Here it is quite clear that the most ample indemnity is held out to the person so examined, if he makes a true answer to all the questions put to him, whether the facts he so states were before known or not. Section 10. goes on to enact, that the person so examined shall not be indemnified without a certificate from the Commissioners, "stating that such witness has upon his examination made a true disclosure touching all things to which he has been so examined." But true disclosure here evidently means true statement, and the certificate required by the 10th section is merely that the witness has conformed to the duty cast upon him by the 9th section when examined upon the voir dire. The other statutes of this class admit of the same explanation; and the laudable objects of the legislature in enacting them seem. to be promoted by construing "disclosure," where used in these statutes, to mean "statement." But to give the word “disclosure" the same meaning in the statute 5 & 6 Vict. c. 39, which treats of a totally different subject, I think would be to contravene the intention of the legislature, and to occasion great public mischief. For these reasons, I am of opinion that in the present case there was no disclosure within the meaning of the proviso relied upon, and that the conviction ought to be affirmed.

COCKBURN, C.J.-The judgment I now deliver has the concurrence of my Brothers Williams, J., Crompton, J., Crowder, J. and Byles, J.-I am of opinion that the defendants were entitled to be acquitted, as having disclosed on oath, on an examination before a Commissioner in Bankruptcy, within the meaning of the protecting proviso of the 5 & 6 Vict. c. 39, the matter for which they stood indicted as an offence against that statute. It is true, no doubt, that the transaction upon which the charge arose had not only become known, but had, indeed, become the subject-matter of prosecution, though not of indictment, against them at the time their evidence was given. On the other hand, it must be taken that the evidence was given on a compulsory examination, instituted boná fide with a view to the interests of the creditors, and not to the protection of the defendants. I am of opinion that evidence

given under the latter circumstances constitutes a "disclosure," within the meaning of the statute, and entitles the party giving it to the promised immunity, notwithstanding that publicity may have previously been given to the transaction, or that a prosecution may even have been commenced, if it has not advanced as far as indictment. In the consideration of this subject two questions appear to present themselves: first, whether the term "disclose" necessarily imports, ex vi termini, a particular meaning; secondly, if it does not, what meaning, upon a review of the statute in question, and of others of a like nature, we ought to annex to it. On the first point we are told, on the authority of lexicographers, that the proper and general signification of the word "disclose" implies that the subject-matter of the communication is previously unknown; and that such, therefore, must be presumed to be the sense in which the term has been used in this statute. It may, I think, be admitted that such is the more ordinary meaning of the term; but, on the other hand, it is equally certain that the word is in numerous instances used simply in the sense of to "shew," to "set forth," to "state or declare," without the collateral idea of the subject-matter of the communication being before unknown. And it is important to observe that this is peculiarly the case in legal phraseology. In professio al language the term is generally, I had almost said, and I believe I should be justified in saying, uniformly so used. Thus we say, in common legal parlance, that a declaration discloses no cause of action, a plea no ground of defence, an affidavit no defence on the merits: in all which cases it is clear that the term is used in the more restricted sense contended for on behalf of the defendants. In one view, indeed, it may be said that this use of the word is not inconsistent with the more extensive meaning; for even in this sense a thing may be said to be "disclosed" if it is made known for the first time as between the parties to the communication. A thing is not the less disclosed to A. if made known to him for the first time, because it has been previously known to B. and C. Thus it would be perfectly appropriate language to say to A, "I have discovered such and

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such a circumstance affecting the interest of B. and C. I shall disclose it first to B. and then to C." So that which is for the first time stated or made known in the course of a judicial proceeding may well be said to be disclosed to the Court, though it may have been known before to fifty persons. In like manner the same term is applied in various acts of parliament relating to the law-as in the 27th section of the Common Law Procedure Act of 1852, relative to setting aside a judgment signed against a defendant on an affidavit 'disclosing a defence on the merits"; and again, in the Bills of Exchange Act, 18 & 19 Vict. c. 67. s. 2, where there is a provision in the same terms as to a defendant being let in to defend. And so restricted was the construction which some Judges were disposed to put on this term, that in a case which arose on the first of these statutes, Warrington v. Leake (4), a majority of the Court of Exchequer decided that an affidavit in which a defendant simply stated that he had a defence on the merits, was a sufficient disclosure of such a defence to satisfy the statute. And I have the authority of the Lord Chief Baron, certainly no mean authority in the matter of language, for saying that "the legislature has made use of a word which does not necessarily convey more than the sense of telling." Still more strikingly to the purpose is the use of this term in a series of statutes (to which I shall have occasion to refer more particularly further on), statutes of a cognate character to the one we are considering, inasmuch as, like the present, they afforded immunity to offenders as the price of the disclosure of crime. So far, therefore, as respects etymological authority as derived from the legal sense and use of the term, it appears to me to be entirely in favour of the defendants. With regard to the construction of the statute, if I apprehend the argument aright, it is said, first, that the abuses which would arise from examinations before Commissioners in Bankruptcy being instituted by friendly creditors for the frustration of criminal justice, if offenders about to be prosecuted could be thus protected, are sufficient to shew that the

(4) 11 Exch. Rep. 304; s. c. 25 Law J. Rep. (N.S.) Exch. 27.

statutory protection could only apply to acts previously known to the offender alone, and by him for the first time revealed on his examination; secondly, that the legislature could not have intended to afford immunity in respect of acts already known, and in respect of which prosecution and punishment were impending, so as to snatch, as it were, a criminal from the hands of justice. As regards the first argument, ab inconvenienti, I shall presently shew that the inconvenience apprehended would be far outweighed by difficulties of a still graver character arising from the opposite construction. But I must, in the first place, point out that the argument derived from this source is altogether inadmissible, for the statute we are now to expound is but one of a series of statutes passed in pari materiá, in all of which this same protecting clause occurs, and in all of which the term "disclose" must have the same construction; but, in the earlier statute, the clause did not apply to evidence given before Bankrupt Commissioners at all. And if, as I shall presently endeavour to shew, the term "disclose," as used in the first and leading statute, had no reference to the novelty of the matter deposed to, it is too plain to be denied that no argument derived from inconveniences which may arise from the extension of the provision to examinations in bankruptcy can be admitted to vary the sense of the term as used in a provision common to both statutes. As regards the second part of the argument, it is, no doubt, a striking and a popular view of this statutory protection to say, that it cannot have been intended that an opportunity of escaping should be afforded to offenders whose delinquencies have been already brought to light, simply because the parties aggrieved might find it desirable, for the protection of their private interests, to resort to the testimony of the guilty parties. I myself was at first greatly struck by this view; but on a more careful and attentive survey of the acts of parliament, I have become persuaded that such view is erroneous. Some confusion appears to me to have arisen from considering the 5 & 6 Vict. c. 39. as an isolated statute, whereas, in fact, it is only one of a series of legislative enactments relating to fraudulent embezNEW SERIES, XXVIII.—MAG. Cas.

zlements by bankers and agents, in all of which the same protecting clause occurs. To a due appreciation of the subject, it is necessary to pass these statutes in review. The first of these statutes was the 52 Geo. 3. c. 63, which, for the first time, made the embezzlement of securities by bankers, brokers, or other agents, an offence. Now, when this statute is attentively considered, it appears plain that the protecting clause was inserted for no other purpose than to enable the aggrieved party to obtain the full effect of those civil remedies, which, while it converted into an offence that which at the common law was only a fraud, the statute was most careful to secure to him. After creating the offence, the act goes on to provide that any remedy which the party aggrieved might have had at law or equity shall not be impaired ; and then immediately follows a proviso (as in the present statute) for protection to the offender as to any act "disclosed" by him on oath "under or in consequence of any compulsory process of any court of law or equity in any action, suit or proceeding in or to which he shall have been a party, bona fide instituted by the party aggrieved." For this act was afterwards substituted the 7 & 8 Geo. 4. c. 29, which first provided for the case of factors pledging for their own use goods, or documents relating to goods, intrusted to them for sale. Here again occurs the protecting clause, but with two striking improvements on the corresponding clause of the preceding statute: first, in the omission of the provision that the suit or proceeding in which the evidence is given should be one to which the offender was a party, whereby the evidence of the delinquent was secured in cases in which by fraud or collusion with the guilty agent the securities or goods had got into the hands of third parties; and, secondly, by the extension, for the first time, of the protection to acts of which evidence was given before Commissioners in Bankruptcy. This statute, again, was followed by the 5 & 6 Vict. c. 39, the act which we are now called upon to interpret, in which the protecting clause is in precisely the same terms as in 7 & 8 Geo. 4. c. 29. From this review of these two acts of parliament, it seems to me two consequences necessarily follow: first, that these acts

being in pari materiá, and the proviso the same in them all, whatever was the meaning of the term "disclose" in the first, such must be its meaning in the last; and, secondly, as already pointed out, that if upon a closer consideration of the first of these statutes, the meaning should prove to be the narrower one, all the arguments ab inconvenienti derived from the supposed consequences arising upon examinations in bankruptcy must fall to the ground, seeing that the proviso of the first statute does not relate to disclosures made on examinations in bankruptcy at all. Now, as regards the first question, it appears to me only necessary to look at the provisions of the 52 Geo. 3. c. 63. to see at once that the word "disclosed," as there used, imports no more than a full statement by the witness of the matter in question. The legislature, while it created the offence, seems to have intended to leave to the aggrieved party the option of proceeding criminally against the wrong-doer, or of enforcing his civil remedies against him. It was evidently most anxious to preserve to the injured party all his civil remedies intact. It even went out of its way to enact unnecessarily (the offence created being only a misdemeanour), that the civil right and redress of the aggrieved party should not be merged in the offence. And inasmuch as the efficiency of the civil remedy, in many instances, materially depends on the admission on oath of the offender, and as, in consequence of the matter now being made penal, the offender would be entitled to refuse to answer, on the ground of his being privileged from criminating himself, the statute immediately went on to provide for the immunity of the respondent, thereby taking away, in effect, the privilege of silence, and securing the evidence to the aggrieved party. The succeeding statute removed the condition that the evidence should have been given in an action or suit to which the offender was a party; doubtless because it was found, as the fact is, that in the majority of instances the cases in which the evidence of the offender is required, are those in which he is not a party to the suit; and doubtless for the purpose of securing the evidence in that numerous class of cases in which securities, goods or documents, may have got into

the hands of third parties acting in concert and collusion with fraudulent agents or bailees. In like manner, the protection was extended to examinations in bankruptcy, in order that bankrupts who had committed frauds of this nature, and agents who had embezzled the securities or goods of persons becoming bankrupt, might be subjected, for the benefit of a bankrupt's creditors, to the useful and searching ordeal of examination before Commissioners in Bankruptcy. It appears, therefore, clear that the purpose of these protecting clauses was, as I have explained, to secure the evidence of the delinquents to the parties interested, by taking away the ground on which alone the privilege of silence could be claimed. At all events, the only alternative that can be suggested is, that the object was to induce the offender to give evidence of the guilty transaction in the civil proceeding (evidence which, on the hypothesis, he was not otherwise bound to give), by insuring to him, as its price, protection against the possibility of prosecution and punishment. In any view of the subject, the object of the provision can have had reference to civil proceedings alone. It can have had none to the position of the offender, simply as such. It never can have been intended to give immunity to the offender in respect of acts which it was the very object of the statute to visit with punishment, and solely for the purpose of obtaining a useless confession of his guilt. A review, therefore, of all this legislation. seems clearly to establish that the purpose of the protection was simply to insure to the aggrieved party the admission or evidence of the delinquent in civil proceedings. But if this be so, it is plain that the prior knowledge or publicity of the facts elsewhere could have no bearing on the subject. It would avail the party requiring the evidence nothing that the transaction had been disclosed before. Yet if such prior disclosure were to operate as a bar to the protection, the obligation or the inducement to the witness to give the evidence would be at an end, and the purpose of the provision would be altogether frustrated. Nor is it any answer to the foregoing reasoning to say, that, according to the decision of the majority of the Judges in The Queen v. Scott, bankrupts