1822.

NOBES V. MOUNTAIN and Two others.

Monday, April 29th.

Where a bankbe sworn before the commis

rupt refused to

sioners until

his attorney arrived: Held,

THIS was an action of trespass for false imprisonment. The defendants pleaded the general issue, and several special pleas of justification under a warrant of commitment, made and executed by them as the major part of the commissioners named in a commission that a warrant of bankrupt issued against the plaintiff, in consequence of his refusal to be sworn before them; he having assigned as a reason for such refusal, the non-arrival of his attorney.

At the trial of the cause before Mr. Justice Burrough, at the last assizes at Salisbury, the warrant of commitment was given in evidence, which was dated on the 10th May, 1821, and signed and sealed by the defendants as such commissioners, and of whom one was of the quorum; and which, after reciting the commission, the adjudication of the bankruptcy of the plaintiff, and that notice was given in the Gazette for him to surrender himself to the commissioners; and that he did not do so; in consequence of which he was duly summoned to appear before the major part of the commissioners in the said commission named, on the 26th March last past, to be examined, and make a full disclosure and discovery of his estate and effects; and that he did not surrender himself to such major part of the said commissioners, who had signed a certificate thereof; in consequence of which he had been committed to Newgate, under a Judge's warrant,

for his commit

ment by them, stating generally the refusal of the bankrupt to be sworn, was sufficient, without assigning the reason for such refusal. that the warri committing him

-Held also,

until such time

as he should

submit himself

to the commissioners, and

full answer make, to the questions which might be put to him by vir

tue of the said

commission, sufficiently pursued the

terms of the

oath to be bankrupt, and

the 16th section

of the statute

5

Geo. 2. c. 30; intended that which might be the questions

as it must be

put by the com

missioners, would be legal questions.-And where the bankrupt was committed to Newgate under a Judge's warrant, granted on the certificate of the commissioners, for not appearing to their summons, and afterwards brought before them by warrant to make a disclosure of his estate, if he refuses to be sworn and examined as to such estate, the commissioners may commit him under the 14th section of that statute; as when he was brought before them the warrant and authority of the Judge were at an end and determined.

1822.

NOBES

บ.

MOUNTAIN.

for keeping out of the way, as appeared to the said commissioners ;-proceeded as follows:

"And whereas the said Richard Angel Nobes (the plaintiff) having been committed to his said majesty's gaol of Newgate, and being this day brought before us, the major part of the commissioners in the said commission named, and authorised by our messenger in pursuance of our warrant for that purpose, to make a full discovery and disclosure of his estate and effects, was then and there duly called upon to take the oath usually administered to bankrupts, in order to our requiring him to make such disclosure and discovery of his estate and effects as aforesaid; but the said Richard Angel Nobes, in contempt of our authority, and in disobedience to the said commission, absolutely refused to take such oath: These are therefore to will, require, and authorise you, immediately upon the receipt hereof, to take into your custody the body of the said Richard Angel Nobes, and him safely convey to his majesty's prison in and for the county of Wilts, and him there to deliver to the keeper of the said prison, who is hereby required and authorised by virtue of the commission and statutes aforesaid to receive the said Richard Angel Nobes into his custody, and him safely to keep and detain, without bail or mainprize, until such time as he shall submit himself to us, or the major part of the said commissioners by the said commission named and authorised, and take the oath prescribed by law for that purpose, and full answer make, to our or their satisfaction, to the questions which may be put to him by virtue of the said commission; and for so doing, this shall be your sufficient warrant."

It appeared that the plaintiff was brought down from London before the commissioners at Cricklade, in Wiltshire, on the 10th May, 1821, in the custody

1822.

NOBES

v.

of an officer; that he immediately wrote to his attorney, who lived at the distance of ten miles, to attend his examination; that the commissioners having MOUNTAIN. waited from half-past nine in the morning till eleven, they then required him to be sworn, which he refused to do until his attorney came; that they waited until one, and as the attorney had not then arrived, and the plaintiff still refused to be sworn, they committed him under the warrant as above stated. They asked him whether he required further time? he said not; but that he would not be sworn until the arrival of his attorney.

The learned Judge was of opinion, that the defendants were justified in committing the plaintiff, it having been proved that they had given him time in the expectation of the arrival of his attorney; but that he still persisted in not being sworn until he was present. That the plaintiff was, at all events, bound to be sworn; after which, if any improper or illegal questions had been put to him by the defendants, he might have objected or demurred to them, or refused to answer, without the assistance or advice of his attorney. That the warrant was authorised by the statute 5 Geo. 2. c. 30; and that no hardship had been imposed on the plaintiff, as he might be brought up to be examined at any time after his commitment, on making an application to the commissioners for that purpose. And the Jury found a verdict for the defendants.

Mr. Serjeant Pell now moved for a rule nisi, that this verdict might be set aside and a new trial granted; on the ground that the warrant of commitment was illegal and informal on the face of it. He submitted, that it should strictly pursue the words of the statute 5 Geo. 2. c. 30 (a), on which it was founded and (a) By the 16th section of which it is enacted, "that it shall be lawful

1822. NOBES

D.

MOUNTAIN.

that no favourable intendment or inference could be drawn by the Court, as it tended to the restraint of the liberty of the subject. The plaintiff ought to have been remanded under the Judge's warrant, for not appearing to the summons of the commissioners, and not under the warrant of the latter. It would be too much to say that a person might be committed, merely because he refused to be sworn before the commissioners; and although in Er parte Page (a), a warrant of com

for the commissioners, or the major part of them, to examine, as well by word of mouth as on interrogatories in writing, every person against whom any commission of bankrupt is or shall be awarded, touching all matters relating to the trade, dealings, estate, and effects of all and every such bankrupt and bankrupts ; and also to examine in the manner aforesaid, all and every other person duly summoned before, or present at any meeting of the said commissioners, or the major part of them, touching all matters relating to the person, trade, dealings, estate, and effects of all and every such bankrupt and bankrupts, and any act or acts of bankruptcy committed by him or them; and also to take down and reduce into writing, the answers of verbal examinations of every such bankrupt or other person, had or taken before them as aforesaid, which examination, so taken down or reduced into writing, the party examined is hereby required to sign and subscribe. And in case any such bankrupt or bankrupts, or other person, shall refuse to answer, or shall not fully answer to the satisfaction of the commissioners, or the major part of them, all lawful questions put to him or them by the said commissioners, or the major part of them, as well by word of mouth as by interrogatories in writing, or shall refuse to sign and subscribe his or their examination, so taken down or reduced into writing as aforesaid (not having a reasonable objection either to the wording thereof, or otherwise, to be allowed by the said commissioners) it shall be lawful to and for the said commissioners, or the major part of them, by warrant under their hands and seals, to commit him or them to such prison as the said commissioners, or the major part of them, shall think fit, there to remain without bail or mainprize, until such time as such person or persons shall submit him or themselves to the said commissioners, and full answer make, to the satisfaction of the said commissioners, to all such questions as shall be put to him or them as aforesaid, and sign and subscribe such examination as aforesaid, according to the true intent and meaning of the act."-And by the 17th section it is provided, that " in case any person shall be committed by the commissioners for refusing to answer, or not fully answering any question put to him by the commissioners, by word of mouth or interrogatories, the commissioners shall, in the warrant of commitment, specify such question or questions."

(a) 1 Barn. & Ald. 568.

mitment, after setting out the issuing of the commission and adjudication of bankruptcy, stated as the ground of commitment, that the bankrupt being brought before the commissioners, and they having proposed to administer an oath to him, he refused to be sworn, or to give an account of his property, was held legal: yet, there, questions had been previously proposed to the bankrupt; and it was expressly stated in the warrant, that he should be committed until he should submit, and full answer make to the satisfaction of the commissioners, to all the questions so put to him as aforesaid. Here, the reason for the plaintiff's refusing to be sworn, should have been stated on the face of the commitment, in order that the Court might judge whether the excuse offered by him was sufficient or not. The statute provides, that in case the bankrupt shall refuse to answer all lawful questions put to him by the commissioners (not having a reasonable objection either to the wording thereof or otherwise), he may be committed to prison. That objection can only apply to questions put to him on his examination, which questions must be set forth in the warrant of commitment. Besides, in this case, there was no absolute refusal by the plaintiff to be sworn; it was qualified, as he very naturally wished to see his attorney before the commencement of his examination: whereas it appears on the face of the warrant, that he absolutely refused to take the oath. If he had claimed to be excused from taking the oath through indisposition, he would have been justified in so doing, and it would have been a reasonable objection; but the reason of such excuse should appear on the face of the warrant.

[Mr. Justice Burrough.-Ill health will not incapacitate a man from taking an oath; but he may

1822.

NOBES

v.

MOUNTAIN.