amend the laws relating to bankrupts," had been substituted for that of the 5 Geo. 2; it was held a fatal variance. (w) Upon an indictment on the same repealed statute of 5 Geo. 2, Refusal to charging the bankrupt with not submitting to be examined, it was submit to exadecided, that if a bankrupt surrendered to his commission, and at mination. the time of such surrender refused to answer particular questions concerning his property, but took the oath, and assigned, as his reason for not answering, that he intended to dispute the commission, the refusal to answer such question was not a capital offence within the statute. (x) Upon an indictment on the same statute, qualified by 1 Geo. 4, Evidence. c. 115, s. 1, against a bankrupt for concealing his effects, where the evidence was that the prisoner, on his last examination, stated that a book given in by him contained an account of all his effects, it was holden to be incumbent on the prosecutor to produce the book, or to account for its non-production. The book was a necessary part of the prosecutor's case, in order that it might have been seen whether that book mentioned the property. (y) In the same case it was held at the trial that it was not necessary that the goods should be concealed by the prisoner himself, or that he should have had the possession of them after the bankruptcy; but that it was sufficient if another person had them as the agent of and subject to the control of the prisoner, and had taken them by the direction, and with the privity and knowledge of the prisoner, to the place where they were deposited. (2) In the same case it was also held at the trial that the indictment might be preferred in Middlesex, if the prosecutor could prove an actual concealment there; although the last examination of the bankrupt took place in London. (a) Where an indictment for conspiracy stated the bankruptcy of one of the defendants in a prefatory allegation, Lord Tenterden, C. J., held that the assignment could not be put in without calling the attesting witness. (b) Parol evidence of anything a bankrupt says at the time of his last Parol evidence examination, cannot be received, although it appear that no part of of what the what he said was taken down in writing. The paper purporting to at his exami bankrupt says be the final examination, did not contain any questions or answers; nation. it merely stated that the commissioners, not being satisfied with the answers of the bankrupt adjourned the examination sine die; and it was proposed to give parol evidence of what the bankrupt said before the commissioners, which it was contended might be done, as it was shewn that what the bankrupt said was not taken down; and besides by sec. 36, the commissioners are empowered to examine by parol: Park, J. A. J., "I can receive no evidence of the examination but the writing. The examination is required to be in writing by the Act of Parliament; and that part which relates to the examining by parol, applies only to the questions which may be either put by parol or by written interrogatories." (c) So where an indictment alleged that after the examination of the bankrupt and after he had subscribed (w) Ibid., Best, J., after consulting Richardson J. (r) Rex v. Page, Russ. & Ry. 392. (y) Rex v. Evani, (1825,) R. & M. C. C. R. 70. (2) Ibid. per Littledale, J. The balance sheet of a bankrupt. the same, a question was put to the bankrupt, and it was objected to any evidence being given of questions and answers, which were not reduced to writing; it was replied that the material answers alone were taken down; and it sometimes happened that answers which at the time seemed immaterial, afterwards became material. The answers proposed to be given in evidence were given after the examination had concluded in the first instance, but they also were reduced to writing. Williams, J., "I cannot receive parol evidence of any answers to questions that were put to the bankrupt before the commissioners subscribed their names to the examination. I must presume, that all the answers prior thereto that were material, were taken down, and included in the examination before their signatures were affixed to it. But answers to questions put subsequently to such examination may be given in evidence." (d) It has been held that the balance sheet of a bankrupt signed and sworn by him was not evidence against him on an indictment for concealing his effects, to prove the petitioning creditor's debt. (e) The ground of this decision was that the balance sheet could not be given in evidence, unless there were a valid commission, and therefore the balance sheet being part of the proceedings, could not be put in evidence to prove the petitioning creditor's debt as a part of the commission. (ƒ) But it has since been held that the examination of a person taken on oath before commissioners of bankruptcy, is admissible against him on a charge of forgery, he having been cautioned and allowed to elect what questions he would answer. (g) It was agreed that a bankrupt's wife could not be examined on the part of the prosecution, on an indictment against the bankrupt for offences against the 5 Geo. 2, c. 30. (h) It seems that the production of the Gazette will be sufficient without proof of its being bought of the Gazette printer, or where it comes from: and possibly, where the prisoner has appeared to his commission, and has been examined, averment of notice in the Gazette may not be necessary. (i) (d) Reg. v. Radcliffe, 2 Lew. 57. (e) Rex v. Britton, 1 M. & Rob. 297. Patteson, J., after consulting Alderson, B. (f) Per Patteson, J., in Reg. v. Wheater, infra. (g) Reg. v. Wheater, 2 Moo. C. C. R. 45. S. C. 2 Lew. 157. See this case more fully in the chapter on Evidence. (h) 1 Hawk. P. C. c. 49, of Fraudulent Bankruptcy, sec. 4. Ex parte James, 1 P. Wms. 610, where the Lord Chancellor said, that a wife could not by the common law be a witness for or against her husband; and that though a former statute 21 Jac. 1, authorized the commissioners to examine the wife touching any concealments of the goods. effects, or estate of the bankrupt, yet it did not extend to examining the bankrupt's wife touching his bankruptcy, or whether he had committed any act of bankruptcy, and how or when he became a bankrupt. (i) Rex v. Forsyth, Russ. & Ry. 274. But it will be more prudent to be provided with the full proof. CHAPTER THE TWENTY-SIXTH. OF EMBEZZLEMENTS AND FRAUDS BY INSOLVENT DEBTORS. THE 7 Geo. 4, c. 57, s. 70, enacts, "that in case any prisoner Wilfully omitshall, with intent to defraud his or her creditors or creditor, wilfully ting any thing and fraudulently omit in his or her schedule, so sworn to as aforesaid, in schedule, any effects or property whatsoever, or retain or except out of such schedule, as wearing apparel, bedding, working tools and implements, or other necessaries, property of greater value than twenty pounds, every such person so offending, and any person aiding and assisting him to do the same, shall, upon being thereof convicted by due course out. of law, be adjudged guilty of a misdemeanor, and thereupon it shall misdemeanor, and may be lawful for the court before whom such offender shall have been so tried and convicted, to sentence such offender to be imprisoned, and kept to hard labour for any period of time not exceeding three years; and that in every indictment or information what matters against any person for such offence, it shall be sufficient to set forth only the indictthe substance of the offence charged on the defendant, without ment need set setting forth the petition, or conveyance, or assignment to the provisional assignee, appointment of assignee or assignees, or any conveyance or assignment whatever, or balance sheet, order for hearing, adjudication, order of discharge or remand, or any warrant, rule, order or proceeding of or in the said court, except so much of the schedule of such prisoner as may be necessary for the purpose.' In point of law a prosecutor may prefer separate indictments for Separate inthe fraudulent omission of each article. To an indictment under the dictments may preceding section for fraudulently omitting ten chairs, ten tables, for each be preferred two carts, &c., the prisoner pleaded auterfois acquit; and the former indictment was the same as the present, except that the two carts mentioned in the present indictment, were not specified in the former omission. one; it was, however, submitted that the two charges were substantially the same; the charge in each indictment was that the prisoner had fraudulently sworn to a schedule, which did not contain a true enumeration of his goods. Patteson, J., "I cannot say that the plea of auterfois acquit is, in strictness, a good defence to the whole of this indictment. The prisoner may have fraudulently omitted out of his schedule the goods mentioned in this indictment, which were not mentioned in the last; and, in point of law, I think a prosecutor may prefer separate indictments for each such omission. But though the present indictment be in point of law maintainable, I cannot help saying that, excepting under very peculiar circumstances, I think such a course ought not to be pursued; and if the separate frau dulent Wilful omission from the schedule. case goes on, I shall strongly advise the jury to acquit the prisoner, unless they think that the goods, now for the first time brought forward, were omitted out of the schedule under circumstances essentially different from the others." (a) The 1 & 2 Vict. c. 110, the act for abolishing arrest on mesne process in civil actions, by sec. 99 enacts," that in case any prisoner whose estate shall, by an order under this act, have been vested in the said provisional assignee, shall with intent to defraud the creditors or creditor of such prisoner, wilfully and fraudulently omit in his schedule so sworn to as aforesaid, any effects or property whatsoever, or retain or except out of such schedule, as wearing apparel, bedding, working tools and implements, or other necessaries, property of greater value than twenty pounds, every such person so offending, and any person aiding and assisting him to do the same, shall, upon being thereof convicted by due course of law, be adjudged guilty of a misdemeanor, and thereupon it shall be lawful for the court before whom such offender shall have been so tried and convicted to sentence such offender to be imprisoned and kept to hard labour for any period of time not exceeding three years; and that in every indictment or information against any person for any offence under this act, it shall be sufficient to set forth the substance of the offence charged on the defendant without setting forth the petition, or order vesting such prisoner's estate in the provisional assignee, appointment of assignee or assignees, or balance sheet, order for hearing, adjudication, order of discharge or remand, or any warrant, rule, order, or proceeding of or in the said court, except so much of the schedule of such prisoner as may be necessary for the purpose.' (a) Reg. v. Champneys, 2 M. & Rob. 26. See Rex v. Moody, 5 C. & P. 23, post, Perjury. CHAPTER THE TWENTY-SEVENTH. OF RECEIVING STOLEN GOODS. misdemeanor. RECEIVERS of stolen goods were at common law punishable only The offence as for a misdemeanor, even after the thief had been convicted at common of felony in stealing them; (a) but by the provisions of several law was only statutes, now repealed, such receivers were made accessories after the fact to the felony of the thief, in cases where the thief had been convicted, or was amenable to justice; and were made liable to be prosecuted for a misdemeanor in cases where the thief had not been convicted, and whether he was amenable to justice or not. And the 7 & 8 Geo. 4, c. 29, passed for consolidating and amending the laws relative to larceny, contains several enactments upon the subject of receiving stolen goods. Receivers of stolen pro offence is Section 54 enacts, "that if any person shall receive any chattel, 7 & 8 Geo. 4, money, valuable security, or other property whatsoever, the stealing c. 29, s. 54. or taking whereof shall amount to a felony, either at common law, or by virtue of this act, such person knowing the same to have been perty: where feloniously stolen or taken, every such receiver shall be guilty the original Be indicted and convicted either as an accessory felony, the of felony, and may after the fact, or for a substantive felony; and in the latter case, receivers may whether the principal felon shall or shall not have been previously be tried either convicted, or shall or shall not be amenable to justice; and as accessories every such receiver, howsoever convicted, shall be liable, at the dis- or for a subcretion of the court, to be transported beyond the seas for any term stantive felony. not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment: provided always, that no person howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time for the same offence." (b) after the fact, is a misde for a misde By sec. 55, "if any person shall receive any chattel, money, Sec. 55. valuable security, or other property whatsoever, the stealing, taking, Where the obtaining, or converting whereof is made an indictable misdemeanor original offence by this act, such person knowing the same to have been unlawfully meanor, restolen, taken, obtained, or converted, every such receiver shall ceivers may be be guilty of a misdemeanor, and may be indicted and convicted prosecuted thereof, whether the person guilty of the principal misdemeanor shall or shall not have been previously convicted thereof, or shall or shall not be amenable to justice; and every such receiver shall, on conviction, be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for (a) Fost. 373. (b) As to hard labour and solitary confinement. See sec. 4, ante, p. 128. meanor. |
