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before the same shall be finished, or prevent, or endeavor to prevent, any journeyman, manufacturer, workman, or other person, not being hired or employed, from hiring himself to, or accepting work or employment from, any person or persons ; or if any person or persons shall use or employ violence to the person or property of another, or threats or intimidation, or shall molest or in any way obstruct another, for the purpose of forcing or inducing such person to belong to any club or association, or to contribute to any common fund, or to pay any fine or penalty son account of not belonging to any club or association, or not having contributed, or refused to contribute to any common fund, or to pay any fine or penalty; or on account of not having complied, or refused to comply, with any rules, orders, or regulations, made to obtain an advance or reduce the rate of wages, or to lessen or alter the hours of working, or decrease or alter the quantity of work, or regulate the mode of carrying on any manufacture, trade, or business, or the management thereof; or if any person shall, by violence to the person or property of another, or by threats or intimidation, or by molesting, or in any way obstructing another, force, or endeavor to force, any manufacturer or person carrying on trade or business, to make any alteration in his mode of carrying on or conducting such manufacture, trade, or business, or to limit the number of his apprentices, or the number or description of his journeymen, workmen or servants ; every one so offending, or aiding, abetting, or assisting therein, shall be imprisoned only, or imprisoned and kept to hard labor, for any period not exceeding three calendar months."
By the 5 Geo. 3, c. 30, the concealing or embezzling of his effects, to ( *269 ] the value of 201. by a bankrupt, was made a capital *felony ; bụt the punishment was changed to transportation for life by the 1 Geo. 4, c. 115, s. 1. By the 6 Geo. 4, c. 16, the sum is reduced to 101.
By the 112th section of that statute it is enacted, "that if any person against whom any commission has been issued, or shall hereafter be issued, whereapon such person hath been, or shall be declared bankrupt, shall not, before three of the clock upon the forty-second day, after notice thereof in writing, to be left at the usual place of abode of such person, or personal notice, in case such person be then in prison, and notice given in the London Gazette of the issuing of the commission and of the meetings of the commissioners, surrender himself to them, and sign or subscribe such surrender, and submit to be examined before them from time to time upon oath, or being a Quaker, upon solemn affirmation ; or if any such bankrupt, upon such examination, shall not discover all his real or personal estate, and how and to whom, upon what consideration, and when, he disposed of, assigned, or transferred any of such estate, and all books, papers, and writings relating thereunto, (except such part as shall have been really and bona fide before sold or disposed of in the way of his trade, or laid out in the ordinary expense of his family); or if any such bankrupt shall not, upon such examination, deliver up to the commissioners all such part of such estate, and all books, papers, and writings relating thereunto, as be in his possession, custody, or power, fescept the necessary wearing apparel of himself, his wife and children), or if any such bankrupt shall remove, conceal, or embezzle any part of such estate, to the value of 1ol. or upwards, or any books of account, papers, or writings relating thereto, with intent to defraud his creditors, every such bankrupt shall be deemed guilty of felony, and be liable to be transported for life, or for such term, not less than seven years, as the court before which he shall be convicted shall adjudge; or shall be liable to be imprisoned only, or imprisoned and kept to hard labor, in any common gaol, penitentiary house, or house of correction, for any term not exceeding seven years."
There are four different offences created by this statute :-1, the not surrendering and submitting to be examined ; 2, the not discovering all his real and personal cstate ; 3, the not delivering up to the commissioners all such part of such estate, and all books, &c. as be in his possession, &c. ; 4, the removing, concealing, or embezzling part of such estate, to the value of 101. and upwards.
All these acts must be " with intent to defraud his creditors.”
The indictment under the above act must still show that the party has become bankrupt, and consequently must state the trading, petitioning creditor's debt, and an act of bankruptcy ; Jone's case, 4 B. and Ad. 345 (a) ; and must conclude against the form of the statute, otherwise it will be bad. Ratcliffe's case, 2 Lew. C. C. 57.
To support a prosecution against a bankrupt under this statute, for concealment of his effects, the prosecutor must prove-1, the trading ; 2, the petitioning creditor's debt ; 3, the act of bankruptcy ; 4, the commission, or fiat ; 5, the oath of the *commissioners ; 6, the ad- [ *270] judication ; 7, the notice to the bankrupt; 8, the notice in the Gazette; 9, the bankrupt's examination ; 10, the not disclosing and discovering; 11, the value of the property concealed; and lastly, the intent of the bankrupt to defraud his creditors.
Proof of the trading.] The prosecutor must give strict evidence of all the requisites of bankruptcy. While the commission subsists, its validity may be assumed for certain civil purposes; but where a criminal
(o) Eng. Com. L. Rep. xxiv. 71.
case occurs, unless the party was a bankrupt, all falls to the ground. Per Lord Ellenborough, R. v. Puuslion, 3 Campb. 97. The trading must, therefore, be proved in the same manner as in a civil action, by the assignees, where strict evidence of their title is required. See Rosc. Dig. Ev. N. P. 551, 5th ed.
The prisoner may prove that the trading, in respect of which he has been declared a bankrupt, was a trading by him under age; which will be an answer to the indictment, as no commission can be sustained upon such a trading. Belton v. Hodges, 9 Bingh. 365 (a).
Proof of the pelitioning creditor's debt.] The petitioning creditor's debt must be proved in the same manner as where strict evidence of it is given in a civil action. It will be sufficient, however, to prove an admission of the debt by the prisoner himself. But where in an indictment under the former statute, 5 Geo. 2, c. 30, s. 1, for concealment, the debt was alleged to be due to A. B. and C., surviving executors of the last will and testament of D.; after proof that A. B. and C. were the executors, and were directed by the will to carry on the business, it was proposed to give in evidence an adınission by the prisoner, that he was indebted “to the executors,” Le Blanc rejected the evidence, it not appearing that C. had assented to the carrying on of the business as trustee under the will. He said that the prisoner might mean that he was indebted to two of the exccutors only, and that it was going too far to infer that he meant all the three. Barnes's case, 1 Stark. 243 (b).
Whether a creditor of the bankrupt is a competent witness to prove the petitioning creditor's debt, is a question which does not appear to be well settled. Vide infra.
Vide infra. Where for this purpose the petitioning creditor was called, Park, J., suggested a doubt as to his competency; but having conferred with Patteson, J., he said he would receive the evidence, subject to further consideration. The debt was, however, proved by other witnesses. Waiter's case, 5 C. and P. 140 (c).
Patteson, J., and Alderson, B., are reported to have held that the balance sheet of a bankrupt, given on oath under his commission, is not admissible to prove the petitioning creditor's debt upon an indictment against such bankrupt for contealing his effects. Britton's case, 1 Moo. and R. 297. But this case seems to have been overruled, see ante, p.
Proof of the act of bankruptcy.] The act of bankruptcy also ( *271 ] must *be strictly proved, in the same manner as in an action by the assignees.
It was held, in one case, that on a prosecution under the 5 Geo. 2, a creditor who had not proved his debt might be called to establish the act of bankruptcy. Bullock's case, 2 Leach, 996, 1 Taunt. 71. But in several civil cases, it has been ruled that a creditor, whether he has proved or not, is not competent to support the commission by proving the act of bankruptcy. Adams v. Malkin, 3 Campb. 543; Crooke v. Edwards, 2 Stark. 302 (d), i Deac. Dig. C. L. 124, Deac. Bankrupt L. c. 19, s. 7. The bankrupt’s wife is an incompetent witness for the prosecution. Hawk. P. C. b. 1, c. 59, s. 4; 1 Deac. B. L. 726, and see ante, p. 139.
(a) Eng. Com. L. Rep. xxiii. 309. (6) Id. ii. 374. (c) Id. xxiv. 246. (d) Id. ii. 355.
Proof of the commission, or fiat.] The commission, or fiat, is proved by its production, entered of record according to the provisions of the 6 Geo. 4, c. 16, s. 96, the 1 and 2 Wm. 4, c. 56, s. 13, and the 2 and 3 Wm. 4, c. 114, s. 1. By those statutes, the certificate upon the commission, or fiat, purporting to be signed by the person appointed to enter the same of record, or his deputy, is, without any proof of signature, evidence of the instrument having been entered of record.
By the 2 and 3 Wm. 4, c. 114, s. 8, no fiat issued, or to be issued, in lieu of a commission, whether prosecuted in the court of bankruptcy or elsewhere, nor any adjudication of bankruptey, or appointment of assignees, or certificate of conformity under such fiat, shall be received in evidence in any court of law or equity, unless the same shall have been first entered of record in the said court of bankruptcy.
And by s. 9, the fat and other proceedings in bankruptcy, purporting to be sealed with the seal of the said court of bankruptcy, shall be received in evidence without further proof.
In some cases of peculiar hardship, the chancellor has enlarged the time for the bankrupt's making his surrender. Ex parte Wood, 1 Atk. 221; Ex parte Lavender, i Rose, 55. But this will not be done where the omission of the bankrupt to surrender has been wilful. Ex parte Roberts, 2 Rose, 378. Though the order will not protect a bankrupt from prosecution, yet it will be considered as a declaration of the chancellor's opinion that the bankrupt had no fraudulent intent in omitting to surrender. Ex parte Shiles, 2 Rose, 381; 1 Deac. Dig. Cr. Law, 122.
But the chancellor may, by superseding the commission altogether, bar the prosecution; and Lord Macclesfield is said to have superseded a commission in more instances than one, where the bankrupt had not surrendered himself, and there did not appear to be any intention of defrauding the creditors. Ex parte Rickets, 6 Ves. 445 ; 1 Atk. 222. However, it should seem that the same facts wbich would be sufficient to induce the chancellor to impede the ordinary course of justice, would also be a good defence to an indictment. Co. B. L. 485, 8th ed.
*Proof of oath of commissioners.] The oath of the commis- [ *272 ] sioners may be proved by the solicitor to the commission, or by any other person present at the time, and by production of the memorial.
Proof of adjudication. The adjudication must be proved by the production of it, enrolled, and with the certificate of enrolment, in the manner prescribed by the 2 and 3 Wm. 4, c. 114, s. 8, supra.
Proof of the notice to the bankrupt.] The statute requires the notice to be left at “the usual place of abode” of the bankrupt, or in case he be in prison, personal notice must be given, ante, p. 266.
In Ratcliffe's case, 2 Lew. C. C. 87, where ihe indictment alleged personal service, but without stating that the bankrupt was then in prison, Williams, J., inclined to think that personal service would do in any case, but did not decide the point, as the objection was on the record. The indictinent was ultimately held bad by the judges upon another ground.
Where the notice was to surrender to all the five commissioners (omitting the words, or the major part of them,) it was held by the judges, upon a prosecution under the 5 Geo. 2, that the indictment was bad. Frith's case, 1 Leach, 11.
Proof of the gazette.] The gazette is proved by production, without evidence of its having been bought at the gazette printers or elsewhere. Forsyth's case, Russ. and Ry. 277 (a). Le Blanc, J., doubted whether an averment of notice in the gazette was not unnecessary, where the bankrupt had appeared to his commission, and had been exanined. Ibid.
Proof of the bankrupt's examination.] The bankrupt's examination is proved by its production, and by the evidence of the solicitor to the. commission, or other person who was present at the time, and can speak to its having been regularly taken. Parol evidence cannot be given of what the bankrupt said. Thus where, on a prosecution for concealment, the proceedings were put in, and the paper purporting to be the final ex amination did not contain any questions or answers, but merely stated that the commissioners, not being satisfied with the answers of the bankrupt, adjourned the examination sine die; on its being proposed to give parol evidence of what had been said before the commissioners by the bankrupt, Park, J., ruled that he could receive no evidence of the examination but the writing; that the examination was required by the act (6 Geo. 4, 16, s. 36,) to be in writing, and that the part of the act which related to the examining by parol, applied only to questions, which might be put either by parol or by written interrogatories. Walter's case, 5 C. and P.
Proof of the concealment, &c.] In order to bring the prisoner with[ *273) in the statute, it must appear that there was a criminal intent *in his refusing to disclose his property. Thus where the prisoner was indicted under the 5 Gco. 2, c. 30, for not submitting to be examined, and truly disclosing, &c., and the evidence was, that on the last day of examination he appeared before the commissioners, and was sworn and examined, but as to certain parts of his property refused to give any answer, stating that this was not done to defraud his creditors, but under legal advice to dispute the validity of his commission, and the prisoner was convicted, the judges, on a case reserved, held the conviction wrong. Page's case, Russ. and Ry. 392 (c); 1 Brod. and B. 308 (d).
Where a bankrupt was indicted under the 6 Geo. 4, for not surrendering, and it appeared in evidence that he was in custody under a detainer collusively lodged, it was urged for the prosecution, that though in custody, he was bound to give notice of his situation to the commissioners, in order that they might issue their warrant to bring him before them, or that he ought to have applied for a habeas corpus, to enable him to appear before them, or that, at all events, he ought to have applied to the chancellor to enlarge the time for surrender. But Littledale, J., said, that the act was to be construed favorably towards the prisoner, who was not bound to make the application contended for; and that as the commissioners had power to issue their warrant, and by diligent search might discover where he was, the bankrupt was not bound to give them notice. He was also of
(a) 1 Eng. C. C. 277. (6) Eng. Com. L. Rep. xxiv. 246. (c) 1 Eng. C. C. 392. (d) Eng.
Com. L. Rep. v. 94.