the service thereof, ii. p. 89; of the Memorandum of his non-attendance, ii. p. 90; and of the Warrant, ii. p. 90). The practice is, if the witness do not attend, a deposition as to the service of the summons is made by the person who served it, a memorandum of the non-attendance of the witness is entered on the proceedings, and then the commissioners issue their warrant ; though, semble, the commissioners may issue the warrant, without having information on oath of the service of the summons (u); but to justify the commissioners in issuing their warrant for the apprehension of a witness for non-attendance, a reasonable time should intervene between the service of the summons and the time when he is required to attend (x). In determining whether they shall issue their warrant, the commissioners in a country fiat must be acting together, but it is not necessary that all of them should be present when each of them signs it (y). The above section has reference only to cases where the witnesses are at large; but by stat. 44 Geo. 3, c. 140, a judge may award a writ of habeas corpus, to bring a prisoner detained in any gaol in England, under civil or criminal process, before commissioners of bankrupt. (See as to the mode of suing out the writ, 1 Arch. Pr. 170; and see the form of the affidavit. ii. p. 86; of the præcipe for the writ, ii. p. 87; and of the Writ, ii. p. 87). The bankrupt's wife may be thus summoned, (see 6 Geo. 4, c. 16, s. 37, infra), or brought up by habeas if in custody. A witness, also, who is summoned, cannot refuse to attend on the ground that he is incompetent to give evidence, as being a creditor, or the like (z). All documents required to be produced should be described in the body of the summons previously to its being signed by the commissioners (a). Witness's Privilege from Arrest.] The witness is privileged from arrest in all civil suits, while he is going to, attending, or returning from the meeting (b), whether actually summoned by the commissioners or not (c), in the same manner as if attending a trial at law (d). A witness from Gravesend, after attending the Court of Review, was arrested in Pancras-lane, City, waiting for a conveyance home; he was discharged, although on leaving the court he had gone to Catherine-street, Strand; but without costs, the officer who arrested him not having been shewn the summons (e). Examination and Commitment.] By stat. 6 Geo. 4, c. 16, s. 34, upon the appearance of any person so summoned or brought before the commissioners as aforesaid, or if any person be present at (u) Grocock v. Cooper, 8 B. & C. 211; 2 Man. & R. 78. (1) Id. ) Battye v. Gresley, 8 East, 319. (c) Re Gooldie, 2 Rose, 333; S. C., 19 Ves. 481. (a) Exp. Frowd, Mon. & M'A. 269. (c) Er p. Byne, 1 Ves. & B. 316. any meeting of the commissioners, it shall be lawful for them to examine every such person upon oath, either by word of mouth or by interrogatories in writing, concerning the person, trade, dealings, or estate of such bankrupt, or concerning any act or acts of bankruptcy by such bankrupt committed, and to reduce into writing the answers of every such person; and such answers so reduced into writing, the party examined is hereby required to sign and subscribe; and if any such person shall refuse to be sworn, or shall refuse to answer any lawful questions put to him by the said commissioners touching any of the matters aforesaid, or shall not fully answer to the satisfaction of the said commis. sioners any such lawful questions, or shall refuse to sign or subscribe his examination so reduced into writing as aforesaid, (not having any lawful objection allowed by the said commissioners), or shall not produce any books, papers, deeds and writings, or other documents in his custody or power, relating to any of the matters aforesaid, which such person was required by the commissioners to produce, and to the production of which he shall not state any objection allowed by the said commissioners, it shall be lawful for them, by warrant under their hands and seals, to commit him to such prison as they shall think fit, there to remain without bail until he shall submit himself to them to be sworn, and full answers make to the [ir] satisfaction to all such lawful questions as shall be put to him; and sign and subscribe such examination, and produce such books, papers, deeds, writings, and other documents as aforesaid in his power; to the production of which, no objection as aforesaid has been allowed. And, by sect. 37, it shall be lawful for the commissioners, in manner aforesaid, to summon before them the wife of any bankrupt, and, in manner aforesaid, to examine her for the finding out and discovery of the estate, goods, and chattels of such bankrupt, concealed, kept, or disposed of by such wife, in her own person or by her act, or by any other person; and she shall incur such danger or penalty for not coming before the commissioners, or for refusing to be sworn or examined, or refusing to sign or subscribe her examination, or for not fully answering to the satisfaction of the commissioners, as is hereby provided against other persons. She cannot, however, be examined as to the bankruptcy of her husband (f). The commissioners ought not to examine any person who would not be a competent witness, with reference to the subject-matter of the examination, according to the rules of evidence established in the courts of common law. (See ante, p. 89). But the witness himself shall not be allowed to object to being examined on this ground (g). The bankrupt's partner has been obliged to give evidence, and to produce the partnership books and papers (h). A solicitor has been obliged to produce a deed of the bankrupt's in his custody, in order to prove an act of bankruptcy, he not (f) Ex p. James, 1 P. Wms. 611. 2 Rose, 331. (h) Ei p. Levett, 1 Glyn & J. 185. being the solicitor to the bankrupt (i). And as the rule, that a purchaser for valuable consideration without notice cannot be compelled to discover his title deeds, does not extend to the mortgage or purchase deed itself; therefore, under a fiat against a bankrupt mortgagor, the commissioners can compel the mortgagee to produce his mortgage deed (k). But a petitioning creditor to a separate fiat shall not be compelled to give evidence in support of a subsequent joint fiat against the same bankrupt and his copartner (1). The commissioners are authorized by the above section to examine a witness concerning the " person, trade, dealing, or estate of the bankrupt, or concerning any act or acts of bankruptcy by such bankrupt committed;" and incidentally to this power, they may examine him also respecting other individuals, through whom they may be likely to obtain information on those points. And therefore, where a witness was asked questions as to when and where he had last seen the bankrupt's wife, it was holden that such questions were legal and material, and that the commissioners were justified in committing him for giving unsatisfactory answers to them (m); but the commissioners have no authority beyond the cases mentioned in the statute; and where a party, an executrix of a debtor to the bankrupt, had pleaded plene administravit to an action brought against her by the assignees, this section did not enable the assignees to examine as to the truth of her plea (n): but where the bankrupt's father by his will directed his trade to be carried on by the executors until the bankrupt attained his age of twenty-one years, and then, upon performing certain conditions, the son was to have a fourth share; and the son at the age of twenty engages in trade and becomes bankrupt without performing the conditions or demanding the share of his father's business; in this case the interest of the bankrupt is sufficient to give commissioners authority to examine the executors as to the affairs of the partnership (0); and if the bankrupt has sold goods considerably below the cost price, the purchaser is bound to answer the question, " To whom did you subsequently sell these goods?" (p) And where a partnership of two had been dissolved, releases executed, and partnership debts paid, and twelve years after the dissolution one of the partners became bankrupt, the partnership books having remained in the hands of the other partner; it was nevertheless held that the books related to the dealing of the bankrupt, and could be called for by the commissioner (g). But where the commissioners committed a witness for not reading entries in a ledger, they were held liable to an action for false imprisonment (r); and the commissioners shall not ask questions, the answers to which may subject the witness to fine or other punishment, as for a criminal act (s). The court, (i) Er p. Law, Buck, 110. (k) Er p. Caldecott, Mon. 55. (1) Er p. Stomes, 1 Glyn & J.7. (m) Ex p. Vogel, 2 B. & A. 219. (n) Er p. Solarte, Mon. 495; 1 Dea. & C. 311. (0) Ex p. Marks, 1 Dea. & C. 490. (p) In re Falk, 2 Dea. & C. 415. (q) Ex p. Trueman, 1 Dea. & C. 465. (r) Isaac v. Impey, 4 Car. & P. 113; 10 B. & C. 442. (8) See Smith v. Beadnall, 1 Camp. 30: Ex p. Symes, 11 Ves. 521. however, will not restrain the commissioners, or otherwise interfere with their discretionary power, as to the mode or object of their examination (t); and the court will not interfere to compel a witness to produce a document which the commissioner thinks he ought not to produce (u). Where one Bland, a banker, being summoned before the commissioners, instead of attending them, petitioned the Lord Chancellor that he might be examined upon interrogatories, and have a copy of them previously given to him, and that the commissioners might be restrained from asking him questions on particular subjects specified; Lord Hardwicke dismissed the petition, saying, that he would not limit or restrain commissioners in their examinations (x). Even where the petition stated that the object of summoning the petitioner before the commissioners as a witness, was to obtain evidence to support an action brought by the assignees against himself, and prayed that the commissioners might be restrained from asking any questions relative to the subject of the action, the petition was dismissed with costs (y). So, the petition of the mortgagee of the bankrupt's property, who had been summoned before the commissioners, praying that they might be restrained from requiring the production of the mortgage deed, was dismissed, for the court cannot assume that the commissioners will exceed their authority (z). (See the form of a Deposition before the commissioners, ii. p. 88; the like by a quaker, ii. p. 88). If the witness swear falsely, he is punishable as for perjury. (See 6 Geo. 4, c. 16, s. 99, ante, p. 31). The witness may, if he wish, have the assistance of counsel, to advise him in matters of law: he cannot indeed claim it as a right, it being discretionary with the commissioners whether they will allow him to be attended by counsel or not (a); but it is seldom refused. He cannot even claim to have a copy of his depositions, as a matter of right; it being entirely in the discretion of the court to grant or withhold them (U), even although applied for merely with a view of enabling the witness to defend an action brought against him by the assignees (c). And even where they were applied for on the ground that a bill for a discovery had been filed against the witness, relating to the subject of the examination, and he wished to make his answer consistent with what he swore before the commissioners, the application was refused (d). If the assignees retain possession of a book, which the commissioners compel a witness to produce on his examination, the court will order it to be delivered up to the party who at the time it was produced had the lawful possession (e). Warrant.] By 1 & 2 Will. 4, c. 56, s. 7, no single commissioner of the Court of Bankruptcy has power to commit the bank (t) See Ex p. Farr, 9 Ves. 513: Ex p. Jones, 1 Rose, 39; 19 Ves. 379: Er p. Parsons, 1 Atk 294. (u) Ex p. Groom, 2 Mon. & A. 143. (x) Ex p. Bland. 1 Atk. 205. (y) Exp. Burlton, 1 Glyn & J. 30. (2) Er p. Beeston, Mon. & M'A. 244. rupt" or other person," save to the custody of a messenger, to be brought up before a Subdivision Court, or the Court of Review, within three days, to which court the examination is to be adjurned (see the sect. p. 272, ante); and the committal to prison is by the court to which the examination is so adjourned. The party about to be committed must be brought up before a Subdivision Court; two commissioners only cannot commit; the three commissioners constituting the court must be present, though they need not all concur in the sentence of committal (ƒ). And the Subdivision Court cannot commit on an adjourned examination, after merely asking "Do you abide by your former answers?" the party must be re-examined (g). In country fiats the committal is by the commissioners, as heretofore. If the commissioners commit the witness, the warrant must be made out under their hands and seals, and directed to the messenger, and to the keeper of the prison to whom he is committed; and if the commitment be for not answering, or for not fully answering to the satisfaction of the commissioners, the questions must be set out in the warrant, as directed ante, p. 272; the stat. 6 Geo. 4, c. 13, s. 39, being equally applicable to the commitment of a witness as of the bankrupt. So, where the witness was required to produce a mortgage-deed, and was asked if he would produce it, to which he answered, "No, I decline to produce it," and he was committed for not answering, the warrant was held defective; it should have been for not producing (h). So, also, where the witness merely refused to read entries in an account, and was committed for not answering, the warrant was held defective; and as the commissioners had by the commitment exceeded their authority, they were held liable to an action for false imprisonment (i). And where the witness gave answers in themselves direct and satisfactory, but with reference to the examination of other persons were not satisfactory, and the witness was committed, the warrant was held insufficient; for the examinations of third persons are not evidence for the formation of the commissioners' judgment, but merely a brief to enable them to interrogate the witness (j). It is not necessary that the warrant should aver the questions to be touching and concerning the trade, dealings, &c., of the bankrupt; the court, on habeas corpus, will look into the examinations themselves, to ascertain if the questions are within the jurisdiction of the commissioners (k). (See the form of the Warrant, ii. p. 89). Habeas, &c.] If a witness be wrongfully committed, he may have his remedy by writ of habeas corpus or petition, in the same manner as the bankrupt. (See ante, p. 275). But where the (f) Ex p. Lampon, 1 Mon. & A. 245; 3 Dea. & C. 751: In re Smith, Mon. & B. 418. (g) Er p. Bardwell, 1 Mon. & A. 193. (h) Er p. Frowd, Mon. & M'A. 269: and see In the matter of Dale & Hardy, Id. 271. (i) Isaac v. Impey, 4 Car. & P. 113; 10 B. & C. 442: see Er p. Vogel, 2 B. & A. 219; and ante, p. 272, &c. (j) In the matter of Goodwin, Mon. 304. (k) Ex p. Harrison, 1 B. & Adol. 410. |