criminate him, yet the judge must, in his discretion, be fully satisfied that there is good reason for such objection, and that the claim of privilege is a genuine one. The witness here returns the same answer to all questions whether material or immaterial. We now ask that he may be compelled to answer all proper questions. Horton Smith, Q.C. and A. B. Terrell for the respondent.-This very point was before Hall, V.C. in the matter of the winding-up of the Working Men's Mutual Society Limited. The questions there were different from those asked of the witness before the registrar, but they were put with a similar object, and the ViceChancellor refused to compel this same witness to answer the questions. The same principle is involved here. The witness was justified in declining to answer all these questions, because, by answering one, he may forge a link in the chain which may render him liable to a criminal prosecution. It was intimated in the case of Fisher v. Ronalds (12 C. B. Rep. 762), that it was for the witness, and not for the judge, to determine whether or not the answer might tend to criminate himself. [BACON, C.J.What was the question put in that case ?] In that case, which was an action upon a bill of exchange, to which it was pleaded that the money had been won in gaming, the question put to the witness was, Was there a roulette table in the room? In the case of Adams v. Lloyd (3 H. & N. 351) Pollock, C.B. said that the only exception to the privilege of a witness was "where the judge is perfectly certain that the witness is trifling with the authority of the court, and availing himself of the rule of law to keep back the truth, having in reality no ground whatever for claiming the privilege;" in which case the witness might be compelled to answer. The witness in the present case is in the same category. He is a mere witness subpoenaed for examination. A bankrupt or the debtor himself cannot refuse to answer, but that is a different case. They cited: Ex parte Schofield; Re Firth, 37 L. T. Rep. N. S. 281; L. Rep. 6 Ch. Div. 230; Ex parte Mackenzie; Re Helliwell, 31 L. T. Rep. N. S. 421; L. Rep. 10 Ch. Ap. 88. They also referred to Osborn v. London Dock Company, 10 Ex. 698; Reg. v. Boyes, 5 L. T. Rep. N. S. 147; 1 B. & S. 311. The CHIEF JUDGE, without calling for a reply, said :—The law is well settled and has been settled for many years. I do not say it is not difficult to deal with a case where the witness asserts that he will not answer because his answers may tend to criminate him; but that difficulty is to be overcome. In some of the cases which have been referred to it is laid down that a judge must exercise some little discretion when he has to deal with such an objection. It cannot be disputed that the law is plain and distinct. The case of Ex parte Mackenzie, Re Helliwell (ubi sup.) establishes the principle in plain words, but it proceeds upon totally different grounds. That principle is not called in question in the slightest degree. There the question was about a letter which was denied by the witness to have been written by him, Ex parte REYNOLDS. 1882. Evidence Privilege. and when asked whether it was written by his authority, he begged that his solicitor might see it before he answered the REYNOLDS; Re question, but he did not refuse to answer. The examination was thereupon broken off. Mellish, L.J. expressed himself distinctly, and he said this: "In my opinion the refusal to answer the question until the solicitor had seen the paper was not a refusal to give information such as ought to affect the validity of the registration:" that being the question then before the court. What is the case before me? It is alleged that the witness is a trustee in a certain settlement, the validity of which the trustee in bankruptcy seeks to impeach. He is called as a witness, and the deed being produced, he is asked whether it is executed by him, and the answer is, "I decline to answer because my answer might criminate me." Am I not bound to exercise common sense and say whether an answer to that question would criminate anybody? If a suit were instituted in a Court of Chancery against a trustee, such a question whether, under the old practice, or the modern practice of interrogatories, would beyond all doubt be allowed; the object of the Court being that no needless expense should be incurred in proving the execution of the deed, and it could not, upon any conceivable ground, have had the effect of criminating the witness. That object is the same, I think, with all the other questions in this case. It is not suggested that the witness has done anything criminal. It could not be criminal to execute a deed. It could not be criminal to deal with the property comprised in the deed. If he did deal with it, I do not say that he did, but if he did, it could not be criminal to charge him with having received a sum of 1000l. and paid it into his bankers. The notion of criminality does not come within the precincts of this case. It cannot be said that any one of the questions put to the witness could ever form a link in any criminal action which might be brought against him. The principle no doubt is a very important one, as it concerns the liberty of the subject, and if I saw there was any chance of an answer to that question, "whether he executed a deed or not," forming a link in a chain in any way, the one end of which would be the accusation, and the other a conviction of the witness, I should hesitate very much before I compelled him to answer. But, as it stands, no one who has listened to this examination can entertain any doubt that it comes clearly within the cases pointed out in the judgment which has been referred to, that the court must be satisfied that the witness is trifling with the court, and is setting up excuses which have no kind of foundation. I should neglect my duty if I hesitated to say that the witness is bound to answer the questions and submit to an examination before the registrar. If he does not answer, I need not point out to him the consequences that would attend his refusal. An observation has been made upon the case before Hall, V.C., but I am unable to deal with that. Of course, I should listen with great respect to anything that Hall, V.C. has Ex parte REYNOLDS; Re REYNOLDS. 1882. decided; but whether the case was like this or not I cannot tell, for I know nothing whatever about it. In the case before me, I am convinced I should be doing wrong in the administration of justice in this court, if I hesitated to say that the witness has Evidence plainly trifled with the administration of the law, and is wholly Privilege. unjustified in dealing with the matter in the way he has done. He acted under the advice of his counsel. I may say I think that the rule is not so strict as it used to be, of giving the witness who is under the examination the advantage of having counsel. I do not know that a case has ever occurred in which counsel has been allowed to interfere and argue for the witness, not upon the question of law, but to argue a matter of fact for the witness that he is not bound to answer the questions. [Horton Smith, Q.C.Does your Lordship then decide that the witness is bound to answer all the questions put to him?] All lawful questions. I have dealt with the examination as well as I could. I have no record of the examination. I have said quite enough to explain what I mean. Some of the questions seem to me to be immaterial, and some very pointed, and the evasive answering is in my opinion trifling and unlawful. The witness must pay the costs of this application. Order made accordingly. The witness appealed from the decision. Horton Smith, Q.C., and Montagu Williams (Terrell with them) for the appellant.-The witness had a reasonable ground for taking the objection to the question, for under sect. 11 of the Debtors Act 1869 the bankrupt himself might have been guilty of a misdeamour by reason of the acts committed by him in connection with the settlement; and in case of its being proved that the witness was a party to the settlement, he might himself be liable to an indictment. One question asked was, whether the witness had ever signed his name as George Edwards. It is possible that an answer to that might result in a charge of forgery being preferred against the witness. But the principal object of the examination was to make out that there had been a conspirarcy between the two brothers. The advisers of the trustee say, "The whole settlement is a sham. You knew of it, and aided and assisted in it." If that is true and can be proved, what was done amounted to an indictable conspiracy (Rex v. Edwards, 8 Mod. 320; Rex v. Delavel, 3 Bur. 1434.) Another question is, who is to be the judge whether the question put ought to be answered? According to some dicta, the witness himself is the sole judge; according to other dicta, he must show some reasonable ground for believing that his answer will tend to criminate him. If the witness claims protection, and there appears reasonable ground that the answer would tend to criminate him, he is not compellable to answer: (Reg v. Garbett, 1 Den. C. C. 236; 2 C. & K. 474; 2 Cox C. C. 448.) Whether the claim of privilege is reasonably well founded or not, is a question for the witness, not for the judge: (Fisher v. Ronalds, 20 L. T. Rep. Ex parte REYNOLDS. 1882. Evidence Privilege. O. S. 100; 12 C. B. 762.) In that case Jervis, C.J. says: "We must therefore allow the witness to judge for himself, or he REYNOLDS; Re would be made to criminate himself." Maule, J. expressed a similar opinion during the argument. Lord Truro, L.C. said: "A defendant, in order to entitle himself to protection, is not bound to show to what extent the discovery sought might affect him, for to do that he might oftentimes of necessity deprive himself of the benefit he is seeking; but it will satisfy the rule if he states circumstances consistent on the face of them with the existence of the peril alleged, and which also render it extremely probable:" (Short v. Mercier, 16 L. T. Rep. O. S. 453; 3 Mac. & Gor. 205, 217.) The law as stated by Maule, J. in Fisher v. Ronalds was afterwards approved by Pollock, C.B.: (Adams v. Lloyd, 31 L. T. Rep. O. S. 219; 3 H. & N. 351, 361.) In 1855, according to Parke, B. the rule was still unsettled: Osborn v. London Dock Company, 24 L. T. Rep. O. S. 262; 10 Ex. 698, 700. In another case Stuart, V.C., although he did not agree with the view taken by Maule, J., admitted that there might be cases in which the witness was the sole judge: (Sidebottom v. Adkins, 29 L. T. Rep. O. S. 310.) If the judge has any duty at all, it is only to satisfy himself whether the objection is genuine (Ex parte Schofield; Re Firth, 37 L. T. Rep. N. S. 281; L. Rep. 6 Ch. Div. 230.) They also referred to Ex parte Fernandez, 4 L. T. Rep. N. S. 324; 10 C. B. N. S. 3; Reg v. Boyes, 5 L. T. Rep. N. S. 147; 1 B. & S. 311. Arthur Charles, Q.C., and F. C. Willis for the trustee. The witness's objection was not made bona fide. The object of the examination is to ascertain the amount of money received. Ex parte Schofield (ubi sup.) is in our favour. Horton Smith replied. case. JESSEL, M.R.-There are two questions to be decided in this One is of general importance; the other question arises on the circumstances of the particular case. The question of general importance is, whether, when a witness objects to answer question on the ground that the answer to the question put to him may criminate him or may tend to criminate him, the mere statement of the belief of the witness himself will be sufficient, or whether the judge is entitled to decide (not merely accepting the witness's statement that he believes it) whether the proposed question has really a tendency to criminate the witness, or might fairly be considered to have that tendency under all the circumstances of the case. Now, upon that, there are various dicta, and one express decision. I am quite aware that the express decision, being one of the Court of Queen's Bench, is not technically binding on this Court; but at the same time it is a decision of the full Court of Queen's Bench, which was composed at that time of very eminent judges, and I need not say that I should differ from them with very great hesitation. That was in the case of Reg. v. Boyes. It was heard in the year 1861, and this very point, as I read that case, was not merely the subject of dicta, but clearly of Ex parte REYNOLDS. Evidence- decision. Cockburn, C.J. gave judgment, and the present Lord REYNOLDS; Re Blackburn and Crompton and Hill, JJ. concurred in that judgment. In the judgment given by the Lord Chief Justice he 1882. says this: "It was also contended that a bare possibility of legal peril was sufficient to entitle a witness to protection; nay, further, that the witness was the sole judge as to whether his evidence would bring him into danger of the law, and that the statement of his belief to that effect, if not manifestly made mala fide, would be received as conclusive. With the latter of these propositions we are altogether unable to concur. Upon review of the authorities, we are clearly of opinion that the view of the law propounded by Lord Wensleydale in Osborn v. The London Dock Company, and acted upon by Stuart, V.C. in Sidebottom v. Adkins, is the correct one, and that, to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstance of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. Indeed, we quite agree that, if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question, there being no doubt, as observed by Alderson, B. in Osborn v. The London Dock Company, that a question which might appear at first sight a very innocent one, might, by affording a link in a chain of evidence, become the means of bringing home an offence to the party answering. Subject to this reservation, a judge is, in our opinion, bound to insist on a witness answering, unless he is satisfied that the answer will tend to place the witness in peril." That decision, it appears to me, states the law correctly, and if it were necessary for the Court of Appeal to affirm it, we should be doing well and wisely in saying we did affirm it. It is unnecessary, after that, to refer to the prior decisions. They are all mere dicta, but I may say this, that, as regards the subsequent case, in 1877, of Ex parte Schofield, I am not sure that it is a dictum; I rather think it is a decision. That was the case where James, L.J. said, with regard to an examination under this very 96th section of the Bankruptcy Act 1869, "Of course, in such a case, the judge must see whether the objection is a genuine one or not." As regards the prior cases we not only have the opinion of a very eminent judge, the late Lord Wensleydale, which was given in the case of Osborn v. The London Dock Company, but we have citations from three standard works, namely, Best on Evidence (6th edit. p. 177), Phillips on evidence (10th edit. vol. 3, p. 488), and Taylor on Evidence (7th edit., p. 1225); and they all state the rule in the same way as it was in effect ultimately decided. They also state this, which is obvious, that, if you allowed the witness, merely on his own statement of his belief that an answer to the question would tend to criminate him (for that is all, he is only bound to believe that), to refuse to answer the question, it would enable a friendly |