fraud on somebody else. Here it was admitted that no force and no fraud had been practised on the child, and that what the prisoner had done had been to assist the boy in carrying out a fraud which he had himself devised; but that was not the offence provided for by the section, and he must therefore be acquitted. Attorney for prosecution, Atkinson, Town Hall, Liverpool.

QUEEN'S BENCH DIVISION.

Tuesday, Dec. 16, 1884.

(Before GROVE, HAWKINS, and SMITH, JJ.)
REG. v. FLAVELL AND ANOTHER. (a)

Bastardy-Voluntary witness — Refusal to answer questionsPower of justices to commit to prison-7 & 8 Vict. c. 101, 8. 70-35 & 36 Vict. c. 65, s. 4.

By sect. 70 of the 7 & 8 Vict. c. 101, justices in petty or special
sessions may, upon the request of any party to any bastardy
proceedings before them, summon any person to appear as a
witness in such proceedings; and if any person so summoned
neglect or refuse to appear to give evidence at the time and place
appointed in such summons
it shall be lawful for
such justices by warrant
to require such person to
be brought before them; and if any person coming or brought
before any such justices in any such proceedings refuse to give.
evidence therein, it shall be lawful for such justices to commit
any person to any house of correction within their jurisdic-
tion, &c.
On the hearing of a bastardy summons, the alleged putative father
went into the witness-box and denied the statement of the
mother. In cross-examination he declined to answer a question
(considered by the justices to be material), and offered to with-
draw from the case and consent to an order being made against
him. The justices committed him to prison for refusing to
answer the question.

Held, by Grove and Hawkins, JJ. (dissentiente Smith, J.) that the
justices had jurisdiction to commit, for that the words "if any
person coming or brought before such justices," in the above

(a) Roported by DUNLOP HILL, Esq., Barrister-at-Law.

section, were not limited to persons who had been summoned to appear and give evidence.

IN

REG.

v.

FLAVELL AND
ANOTHER

1884.

N this case a rule nisi for a certiorari had been obtained against two justices of Leamington, calling upon them to show cause why a warrant, under which one Wilkins had been by them Justices' ordered to be imprisoned for seven days, should not be brought powers of comup to this court to be quashed. Upon the hearing of a bastardy ness refusing summons, taken out against Wilkins for an order to compel him to answer to contribute towards the support of an illegitimate child, he Bastardy protendered himself as a witness, and went into the box and denied ceedings.

on oath the statement of the mother that he was the father of the child. In cross-examination he was asked whether or not he had married a person named Pearson, whom he had represented as his wife, and, if so, when and where the ceremony took place. He declined to answer the question, and thereupon the justices threatened to commit him to prison if he did not answer. He still persisted in his refusal, and offered to withdraw from the case and consent to an affiliation order being made against him. The justices, however, committed Wilkins to prison for seven days, or until such time as he should submit himself to examination and answer the question demanded of him.

A rule nisi for a certiorari to bring up such order to be quashed was granted, against which

Dugdale, Q.C. (W. Graham with him) showed cause.-The authority given to the justices to commit Wilkins to prison is conferred by sect. 70 of 7 & 8 Vict. c. 101. By that section it is provided "that in any proceedings to be bad before justices in petty or special sessions, or out of sessions, under the provisions of this Act or of any of the Acts required to be construed as one Act herewith, if any party to such proceedings request that any person be summoned to appear as a witness in such proceedings, it shall be lawful for any justice to summon such person to appear and give evidence upon the matter of such proceedings; and if any person so summoned neglect or refuse to appear to give evidence at the trial and place appointed in such summons, and if proof upon oath be given of personal service of the summons upon such person it shall be lawful for such justice, by warrant under his hand and seal, to require such person to be brought before him, or any justices before whom such proceedings are to be had; and if any person coming or brought before any such justice in any such proceedings refuse to give evidence thereon, it shall be lawful for such justices to commit such person to any house of correction within their jurisdiction, there to remain without bail or maiuprize for any time not exceeding fourteen days, or until such person shall sooner submit himself to be examined, and in case of such submission the order of any such justice shall be a sufficient warrant for the discharge of such person." The justices had jurisdiction to commit Wilkins, and

mittal-Wit

REG.

v.

FLAVELL AND
ANOTHER.

1884. Justices'

he was bound to answer the question. The fact that he was a voluntary witness, and was not summoned to give evidence, is immaterial. He was not served with a subpoena, and was not bound to go into the witness-box at all, and the justices had no power to compel him to go there. The words in the section "any person coming before any such justice" are clearly intended to powers of com- apply to a person who comes forward to give evidence voluntarily, mittal-Wit- i.e., without having been previously summoned. A reference to to answer — sect. 7 of Jervis's Act (11 & 12 Vict. c. 43), would seem to bear Bastardy pro- this out. There it is provided that a justice may, " if any person ceedings. is likely to give material evidence and will not voluntarily appear for the purpose of being examined, issue his summons to such person requiring him to appear and if any person so summoned shall neglect or refuse it shall be lawful for the justice to issue a warrant and if on the appearance of either in obedience to the

to bring such person
such person so summoned
said summons or upon being brought before him by virtue of the
said warrant, such person shall refuse to be examined, such
justice may by warrant commit such person," &c. The words in
that section," summoned or brought," are clearly confined to the
class of involuntary witnesses. The Legislature would seem,
therefore, to have intended to extend the power of the justices to
commit to those who had volunteered to give evidence. It was
most important that the question should have been answered. It
was not only material to the issue before the justices, but it
materially affected the credibility of the mother. Wilkins
denied in toto the statement of the mother, who had sworn
that he had told her that he had not married this woman in
question. The mother had further sworn that, when Wilkins
told her this, he promised to marry her (the mother), and in fact
under this promise he seduced her. Wilkins positivelyswore before
the justices that he had married the woman Pearson, but, from
inquiries which the justices had caused to be made, there was
reason to believe that he had married another woman as far back
as 1849, who was still living. The question was, therefore, most
material as to his credibility, and also as to that of the mother.

Macmorran in support of the rule.-The power to commit for refusing to give evidence is, by the 7 & 8 Vict. c. 101, s. 70, confined to those persons who are brought before the court in obedience to a summons or warrant. The words " coming or brought mean coming or brought in compliance with, or in pursuance of, such summons or warrant. Upon Wilkins electing to withdraw from the case and consenting to an order being made against him, the justices were functi officio, except as to the order, which was consented to, being made and enforced. [GROVE, J.-A power to commit for contempt cannot be got rid of by the advocate saying that he gives up the case and consents to a verdict against his client.] The applicant could withdraw her case at any time; then why should not the defendant be at

liberty to withdraw his defence, his position being that of defendant in a civil proceeding? He cited Reg. v. Lightfoot (25 L. J. 115, M. C.) as to the position of a person summoned before justices as the alleged putative father in bastardy proceedings.

REG.

v.

FLAVELL AND

ANOTHER.

1884.

SMITH, J.-The question which we have to consider in this case is whether, under the circumstances, the justices had juris- Justices' diction to commit the defendant to prison for refusing to answer powers of coma certain question put to him in cross-examination, after having mittal-Witbeen ordered to do so. I have the misfortune to differ from my to answerness refusing learned brothers Grove and Hawkins. It has been conceded Bastardy prothat, apart from sect. 70 of 7 & 8 Vict. c. 101, the justices would ceedings. have had no power to commit the defendant, and that such power therefore exists only in bastardy proceedings, if at all. It is unnecessary to inquire into the question how far a judge in civil proceedings has power to commit a witness to prison who refuses to answer material questions. I am inclined to think, however, upon reference to Bacon's Abridgment, Tit. Evidence, that the power certainly does exist. This case turns solely upon the construction of sect. 70 of 7 & 8 Vict. c. 101. Can the words "and if any person coming or brought before any such justices in any such proceedings refuse to give evidence thereon be said to apply to the man Wilkins, who had not been summoned to give evidence? He was in court, but had not been served with a summons issued by the justices at the request of any party to the proceedings, as provided by sect. 70. He had, no doubt, been served with the ordinary summons issued by the justices under 35 & 36 Vict. c. 65, s. 3, upon the application of the mother, she having tendered proof that he was the father of the child. It was of course necessary that Wilkins should have been served with a summons before the justices could adjudicate in the matter; but he was not bound to appear before the justices, and they could only adjudge him to be the putative father of the child on the evidence of the mother, corroborated in some material particular by other testimony to their satisfaction: (see Reg. v. Lightfoot, 25 L. J. 115, M.C.) However, being in court, be elected to go into the witness-box to contradict on oath the statement of the girl, and in his cross-examination he refused to answer a material question. For this refusal he was committed to prison. Does the section then confer upon the justices the power which they assumed? I am of opinion it does not. I think that the words, "any person coming or brought," must be read in connection with the previous part of the section, and are confined to persons who come, or are brought, in obedience to a summons or warrant. I am aware this construction may cause inconvenience, but that cannot be helped. I am of opinion that Wilkins was not a person who had come before the justices, within the contemplation of the Legislature, as expressed in sect. 70, and that the justices had no power to commit him to prison. Upon this ground I think the rule ought to be made absolute.

REG.

v.

FLAVELL AND
ANOTHER.

1884. Justices'

HAWKINS, J.-I have, during the course of the argument, entertained considerable doubt on the questions raised in the case, and I cannot say that that doubt is entirely removed. However, upon the best consideration I can give to the matter, I am of opinion that the certiorari ought not to go, and that this rule should be discharged. It seems to me, upon a true construction powers of com- of sect. 70 of 7 & 8 Vict., the justices had power to commit, mittal-Wit- and I will shortly give my reasons. By the Bastardy Laws to answer Amendment Act, 1872, the justices shall hear the evidence of the Bastardy pro- woman at whose instance the summons was obtained, and shall ceedings.

ness refusing

also hear any evidence tendered by, or on behalf of, the person
alleged to be the father. It is not disputed that, by that section,
the putative father is a competent witness in the proceedings.
Referring to sect. 70 of 7 & 8 Vict. c. 101, I find that, if any
party to such proceedings (meaning, of course, proceedings in
bastardy) request that any person be summoned to appear as a
witness, it shall be lawful for the justices to summon such person
to appear and give evidence, and if such person neglects or refuses
to obey such summons, the justices may issue a warrant and
compel the attendance of that person. So far it is clear
either party may obtain an order compelling the attendance of
persons to give evidence in support of their case. Now, the
section goes on thus, "and if any person coming or brought
before any such justices in any such proceedings refuse to give
evidence thereon, it shall be lawful for such justices to commit
such person to any house of detention within their jurisdiction, and
there to remain
or until such person shall sooner submit
himself to be examined," &c. Now, are the words, "if any
person coming or brought," which I have read, confined to any
person upon whom a summons has been served? Why should
they be? What reason can there be for limiting them to that
class of persons? It seems to me they include those who come
forward voluntarily to give evidence and those who have been
summoned as witnesses. It seems to me that a person who comes
forward voluntarily to give evidence, and goes into the witness-
box and gives evidence, stands exactly in the same position as a
person who has been summoned or ordered to appear. I think it
would be mischievous to the last extent to hold that the Act only
applies to persons who have been brought under compulsion to
give evidence. The construction contended for in support of the
rule that, after Wilkins-or, rather, his counsel-had withdrawn
from the case, and Wilkins had consented to an order being made
against him, the justices had no power to commit him to prison
for refusing to answer any questions as their jurisdiction had
determined, would, if adopted, lead to most serious results, for in
any bastardy proceedings any person, whether party or not,
might go into the box and swear just as much or as little as he
pleased. He would then be able to withdraw his evidence, and
from that moment the justices would be functi officio. It is true,
no doubt, that the putative father is not bound to give evidence