1856.

mination being on that ground inadmissible the whole SLOGGETT'S ought to have been rejected.

Case.

Coleridge, for the Crown. The only question is whether this was a voluntary examination, and it is submitted that it was. Witnesses in ordinary cases are bound to answer questions which are unpleasant to them, and may be committed if they refuse to answer, and in that sense all examinations may be said to be involuntary; but it cannot be contended, that where a witness gives an answer under the pressure of cross-examination, such answer is, on that ground, inadmissible in evidence against him. The only ground upon which a witness can object to his answers being used as evidence against him, is that he had the right to refuse to answer, and that he claimed his privilege and it was refused; any thing he then said would not be afterwards admissible against him. Reg. v Garbett (a). In this respect no distinction in principle can be made between the examination of a bankrupt and an ordinary examination at Nisi Prius. In this case the bankrupt did not claim the protection of the Court, and that protection had not been refused; the examination was therefore voluntary and admissible.

In Reg. v. Wheater there was a criminal charge pending against the witness at the time he was under examination, and there was therefore a very good reason why the Commissioner should caution him, and the fact that such caution was given will account for the apparent qualification introduced into the report of that case.

The obiter dicta, even of a great Judge, may have been improvident, and that of Lord Eldon, in Ex parte Cossens, may possibly not be such as can be supported;

(a) 1 Den. C. C. 236.

but looking at the res judicata, and the whole of the 1856. facts, that case is in favour of the Crown; and the SLOGGETT'S same remarks apply to the judgment of Lord Lynd

hurst in Ex parte Kirby.

Collier, in reply.

JERVIS C. J.-I am of opinion that in this case the examination of the prisoner in the Court of Bankruptcy was properly received and was admissible in evidence against him. In deciding this it is unnecessary to express any opinion on the question whether the examination would have been admissible if it had been directed solely to the matters which the bankrupt is bound to answer by virtue of the Act of Parliament. I do not concur with Mr. Collier in the second ground, upon which he contended that the examination was compulsory and inadmissible. He contends that, admitting that the commisioner has only power compulsorily to examine the bankrupt "touching all matters relating to his trade dealings or estate," the matters upon which the bankrupt may be questioned may be so involved that he could not be expected or required to discriminate between those which relate to his trade dealings or estate, which he is bound to disclose, and those which do not, and which, therefore, he might object to answer, and therefore that the whole examination is compulsory. That is not the test; the test is, whether he may object to answer. If he may, and he does not do so, he voluntarily submits to the examination to which he is subjected, and such examination is admissible in evidence against him. This examination was not touching any matters relating to the trade dealings or estate of the bankrupt; he might have objected to the examination, but he did not do so; the examination was therefore voluntary and admissible.

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

Case.

1856.

SLOGGETT'S
Case.

CRESSWELL J.-I am entirely of the same opinion. I will express no opinion as to what was said by Lord Eldon and Lord Lyndhurst in Ex parte Cossens and Ex parte Kirby without looking more into those cases. The rule of the common law is, that a man is not bound to criminate himself. It may be that, in certain matters, section 117 of the Bankrupt Act has deprived the subject of the privilege of refusing to answer; but supposing that to be so, and that the bankrupt is bound to answer, and can no longer claim the protection of the common law, the questions put to the bankrupt in this case did not relate to the matters within the section; and as the bankrupt did not object to answer those questions the examination was admissible.

ERLE J. and MARTIN B. concurred.

Conviction affirmed.

AN

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PRINCIPAL MATTERS.