Ex parte

REYNOLDS: Re
REYNOLDS.

witness, who wished to assist one of the parties, to escape
examination altogether, and to refuse to give his evidence; an
evil so great that when weighed even against the chance of
occasionally assisting to convict a guilty man, it would certainly
far overbear, as a question of public policy, the danger, if it is to
be treated as a danger, of assisting to convict a guilty man
occasionally out of his own mouth. Perhaps our law has gone
even too far in that direction; and, without at all impugning the
policy of the law, there certainly must be a larger policy, which
requires a person to answer, where the judge thinks that he is
not bona fide objecting with the view of claiming privilege to
protect himself, but to prevent other parties getting that testi-
mony which is necessary for the purposes of justice. Now, even
as regards judges who entertain the contrary opinion, it is quite
plain that they make the exception of mala fides. I have only to
refer, for that, to the statement of Pollock, C.B. in the case of
Adams v. Lloyd, where, having stated the rule in favour of pro-
tection on a witness's own oath, he says this: "The only
exception I would make would be this: if the circumstances
disclosed made the judge perfectly certain that the witness was
trifling with the Court, and availing himself of a rule of law on an
occasion in which in fact there was no good ground, then I think
it is the duty of the judge to insist on his answering." So that
even those judges who hold to the other rule make that excep-
tion. That being so, the second question we have to consider is,
whether it does appear to the Court in this case that there is any
reasonable fear of the questions, when answered, tending to
convict the witness of a criminal offence, or tending to criminate
him in any way. When the Court has to decide that point, it
must consider what the nature of the case is, and what the
witness has said. When you look at these questions, and what
he has refused to answer, the conviction, I think, must force
itself upon the mind of anyone that the witness refused to answer
because he did not want to give the information, and that he was
trifling with the Court. The kind of questions which he refused
to answer seemed to me to lead to that conclusion. But it is
suggested that, though the witness did not say so, and though
there was no evidence before the Court, there was a real danger
of his being indicted together with his brother for what would be,
no doubt, a conspiracy if proved, that is, a deliberate combining
with his brother to cheat the brother's creditors by withdrawing
from them a portion of the brother's property. That, no doubt,
would be an indictable offence, but we must see whether there is
any indication of anything of the kind. In the first place, all
that is alleged against the witness is, that he is the trustee of a
voluntary settlement, and that in that capacity certain stocks,
&c., were transferred to him. Then he is asked whether
he is the trustee, what stock, &c., were transferred to
him, and what has become of them. There is not anywhere
any suggestion in the proceedings in bankruptcy that there was

1982.

Evidence

Privilege.

Ex parte

REYNOLDS.

1882.

Evidence-
Privilege.

anything like conspiracy between himself and his brother. REYNOLDS; Re There is produced a document, not issued by any of the parties in the bankruptcy, but by some creditors of the brother, who have filed a statement of claim, in which the same facts are alleged, but it is there also alleged that the transfer was made to this witness, and as he well knew by the bankrupt, with the view to defraud his creditors. But even that allegation does not make a charge of conspiracy; it is only made to defeat the operation of the settlement as against the creditors, who were the plaintiffs in that action. I do not think for a moment that the witness is under any bona fide belief that any such charge of conspiracy will be made, or that he had any idea of such a charge; in fact, I think the notion of an indictment for such a conspiracy could only present itself to the mind of some one who was very familiar indeed with the law of conspiracy. The real position of matters appears to me to be, that the witness did not wish to afford any assistance to the creditors in obtaining possession of the property of the bankrupt which had been kept from them. I think that was the real prevailing motive with him, and not any real fear of criminal proceedings. That being so, I think he ought to answer the questions, subject, however, to this observation, that he will be entitled to object to any particular question which obviously has a tendency to criminate him, or which, in the opinion of the presiding judge, would tend to criminate him in regard to any matter, or may be reasonably held to criminate him; that is to say, we do not intend to decide that he must answer every question that he has been asked, but that he must answer the questions subject to his objecting to particular questions, on a reasonable ground that that particular question, or those particular questions, might criminate him, or might tend to criminate him.

COTTON, L.J.-I am of the same opinion, and on the same grounds. There is but little for me to add. As I understand, Mr. Horton Smith's contention was this, that a witness, on being called, may at the very first question which is asked him, at once put down his foot and say, "I refuse to answer that question, because it may tend to criminate me," although there is nothing stated by him, and no facts appear in the case which would render that even possible. In my opinion that would lead to the most monstrous conclusion. I will say no more than that I think the rule is correctly stated in the case of Reg. v. Boyes, and that to that decision, and the rule there laid down, I adhere. As regards the other point, whether the witness in this particular case can protect himself effectually, I think we have got the rule laid down by James, L.J. in the case of Ex parte Schofield, Re Firth; that is to say, that the judge must satisfy himself and decide whether the objection is a genuine one. Looking at the way in which this witness claims his privilege, I am satisfied, as the registrar seems clearly to have been, that it was not a genuine objection on the ground that it would tend to criminate him. To every question that was asked him, even such a question as

66

Ex parte

REYNOLIS.

1882.

Evidence

this, Have you ever been at Mr. James's office in Fleet-street in your life?" his answer was, "I object to answer that, on the REYNOLDS; Re ground that it may tend to criminate me." Now, I cannot think that that was a genuine objection on the ground stated, but that there was some other reason for the witness putting his foot down at once and saying, "You will get nothing out of me." I think, "I therefore, the order was right. Of course this will not decide that if he does refuse to answer any question as to which there is a reasonable probability that the answer would tend to criminate him, he is bound to answer that. The Court will consider any such objection taken by him when, and if, it is taken.

LINDLEY, L.J.-I am of the same opinion. The order appealed from was made by the Chief Judge in Bankruptcy, and it was, in substance, that this gentleman should submit to an examination at his own expense, and should answer all lawful questions that might be put to him. That order, of course, must be qualified. The reason it was made was, that he declined to answer anything at all. Now, let us consider that. The effect of the examination satisfies me that his objection was not taken bonâ fide for his own protection at all. He did not, in fact, know of this claim; the claim had not then come to his knowledge. But, apart from that, the tone of his answers satisfies me that he was not considering his own protection, but that he was considering how he could prevent those interested in upsetting this settlement from succeeding in that object. That was what was passing through his mind, and not any danger of a criminal proceeding. Twenty years ago this question as to how far the oath of a witness was conclusive was settled by the Court of Queen's Bench in Reg. v. Boyes, and that decision has never been disturbed since. There were, as to that, differences of opinion before, but to the rule so laid down then, which I have never heard questioned since, we are all disposed to adhere. I have always thought that the rule as laid down there was perfectly well settled, and it is not for us now to disturb it. Then, as to what is to be done in the future; of course, I do not mean to say there may not be some indictment for conspiracy against this gentleman. I do not know whether there will or will not, and I do not know whether he is open to it or not; possibly he is. I can well understand that some ingenious gentleman like Mr. Montagu Williams might suggest how an indictment for conspiracy might be framed against him. That is possible enough. If, when further questions are put to him, he declines to answer, and the judge or presiding registrar is of opinion that he is declining to answer bona fide for his own protection, and there is any appreciable danger to him, the witness will be entitled to the benefit of silence; otherwise he will have to answer the questions put to him. This appeal must therefore be dismissed with costs.

Horton Smith.-I suppose in form your Lordships hold that the Chief Judge's order is right, and that the matter must go back for the witness to answer all lawful questions that are put to him.

Privilege.

Ex parte

LINDLEY, L.J.-Yes; to answer all lawful questions put to him,

REYNOLDS; Re and he will refuse to answer them at his peril.

REYNOLDS.

1882.

Evidence-
Privilege.

Appeal dismissed.
The Court on a subsequent day refused leave to appeal to the
House of Lords.

Solicitors for the appellant, G. S. and H. Brandon.
Solicitors for the trustee, Bellamy, Strong, and Baker.

COURT OF APPEAL.

Thursday, Nov. 10, 1881.

(Before JESSEL, M.R., LUSH and LINDLEY, L.JJ.)

Ex parte GRAVES; Re HARRIS. (a)

Bankruptcy-Convicted felon-Liability to be made bankrupt-
Felony Act 1870 (33 & 34 Vict. c. 23), ss. 7 and 8-Bankruptcy
Act 1869, s. 6, sub-sect. 6.

A convicted felon may be adjudicated a bankrupt on an act of
bankruptcy committed either before or after his conviction.
If a debtor's summons be served on a convicted felon during his
imprisonment, his neglect to pay, secure, or compound for the
debt will be an act of bankruptcy.

EORGE HARRIS, the debtor, had been the confidential
clerk of Mr. Henry Graves, the publisher, of 6, Pall Mall.
In May 1881 Harris was convicted at the Old Bailey of
embezzling the money of his employer, and of forgery, and was
sentenced to seven years' penal servitude.

On the 23rd day of May, after the conviction, a debtor's summons was issued by Graves against Harris for 801. 8s., the amount of a cheque which had been handed by Graves to Harris on the 10th day of August, 1876, to be paid into the bank, but which was then cashed by Harris and applied to his own use.

The facts as to this cheque were not discovered until after the conviction.

The debtor's summons was, on the 23rd day of May, 1881, served on the debtor in Newgate Prison.

On the 15th day of June Harris applied to have the summons

(a) Reported by FRANK EVANS, Esq., Barrister-at-Law.

dismissed on the ground that the money had been repaid to Graves. Mr. Registrar Hazlitt dismissed this application.

The debtor having made default in paying or giving satisfaction for the amount mentioned in the debtor's summons, Graves, on the 23rd day of June, filed a bankruptcy petition against Harris, founded on the act of bankruptcy alleged to be committed by Harris in making such default.

This petition was served on Harris in Pentonville Convict Prison, and on the 20th day of August came on for hearing before Mr. Registrar Brougham sitting as Chief Judge in Bankruptcy. The learned Registrar dismissed the petition. Graves appealed.

Sidney Woolf for the appellant.-The debtor has committed an act of bankruptcy by neglecting to comply with the debtor's summons: (Bankruptcy Act, 1869, s. 6, sub-sect. 6). The fact that he is a convicted felon makes no difference. The registrar seems to think that since the Felony Act 1870 a creditor who wishes to obtain payment of his debt ought to get the appointment of an administrator or an interim curator. Forfeiture for felony was abolished by the Act, and the goods of the felon still belong to him. The debtor, although in penal servitude, may neglect to comply with the debtor's summons. The 7th section of the Felony Act (33 & 34 Vict. c. 23) provides that when any convict shall be made bankrupt he shall thenceforth, so far as relates to the provisions hereinafter contained cease to be subject to the operation of this Act." Possibly the registrar took the view that there must be an act of bankruptcy committed before the conviction. [JESSEL, M.R.-Whether the act of bankruptcy was committed before or after the conviction, the same observation applies. Why should he not make the man a bankrupt? Under the 8th section of the Bankruptcy Act 1869, there may be a judicial discretion not to make a man a bankrupt because it is no use doing so.] That was not the registrar's reason for not making the adjudication. By the 15th section of the Felony Act the rights of persons like Mr. Graves are reserved, there being a provision that the Act is not to prejudice any right of a person who has suffered loss or injury by any criminal or fraudulent act of the convict. [He was stopped.]

Winslow, Q.C. and Finlay Knight, for the debtor.-By the 8th section of the Felony Act, no action or suit for recovery of any property, debt, or damage shall be brought by any convict during the time while he is subject to the Act, and "every convict shall be incapable during such time as aforesaid, of alienating or charging any property or of making any contract, save as hereinafter provided." Alienating" includes paying away money, and if the debtor had the money and handed it to this creditor the latter would not be properly paid. [LUSH, L.J.— Suppose an action were brought against the convict, could that be stayed?] It would come to no effect. [LUSH L.J.-He is bound to pay his debts although he is a convict. JESSEL M.R.

Ex parte GRAVES; Re HARRIS.

1881.

Convict-- Liability to be adjudicated bankrupt.