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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 bankruptcy, 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 fiat 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, 1 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chancellor may, by superseding the commission altogether, bar the prosecution; and Lord Macclesfield is said to have superseded a commission in more instances than one, where the bankrupt had not surrendered himself, and there did not appear to be any intention of defrauding the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 which 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 the 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 indictment 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 examined. 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, e 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. 141 (b).
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 Geo. 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. (b) Eng. Com. L. Rep. xxiv. 246. (c) 1 Eng. C. C. 392. (d) Eng. Com. L. Rep. v. 94.
opinion, that the prisoner was not guilty of felony, though the detainer under which he was in custody was collusive. Mitchell's case, 1 Lewin, C. C. 20; 4 C. and P. 251 (a).
It is observed by Mr. Cooke (B. L. 435, 8th ed.), that should the bankrupt be abroad at the time of the commission taken out, and not hear of it till the last day for his surrender is expired, it is impossible to imagine that the act should extend to such a case; and indeed, Lord Hardwicke expresses his opinion (1 Ves. 222,) that particular circumstances might amount to a defence upon a criminal prosecution.
The bankrupt is not guilty of a concealment until he has passed his last examination. Until that time he has a locus penitentia, and although he may previously have concealed the property, he may yet deliver it up before the conclusion of his examination. Walters's case, 5 C. and P.
If on his examination the bankrupt refer to a document, as containing a full and true discovery of his estate and effects, it is incumbent on the prosecutor to produce that book or to account for its non-production; for otherwise it cannot be known whether the effects have been concealed or not. Evani's case, 1 Moody, C. C. 70 (c).
It is not necessary that the concealment should have been effected by the hands of the prisoner himself, or that he should be shown to have been in the actual possession of the goods concealed, after the issuing of the commission; it is sufficient if another person, having the possession of the effects as the agent of the prisoner, and holding them subject to his control, is the instrument of the concealment. See Evani's case, 1 Moody, C. C. 74 (d).
*The evidence of the concealment, and of the guilty intent with [*274] which the act is done, ought to be very satisfactorily made out, but in general it is so clear as to leave little doubt on the point. Concealment of goods in the houses of neighbors or of associates, or in secret places in the bankrupt's own house, or sending them away in the night, endeavoring to escape abroad with part of his effects, &c., constitute the usual proofs in cases of this description.. See Alison, Principles Cr. Law of Scotland, 571.
It has been held by the court of review, (Sir J. Cross, diss.) that a bankrupt who has passed his last examination may be called upon to answer questions touching the concealment of his effects. In re Smith, Mont. and B. 203; 2 Deac. and Chit. 230, and see ex parte Heath, M. and B. 184; 2 Deac. and Chit. 214.
Proof of the value of the effects.] Where the prosecution is on the ground of concealing effects, it must be proved that those effects were of the value of 10l., and where the value is attached to all the articles collectively, as "one table, six chairs, and one carpet, of the value of 101, and upwards," it is necessary to make out the offence as to every one of the articles, for the grand jury have only ascribed the value to all the articles collectively. Forsyth's case, Russ. and Ry. 274 (e). 2 Russ. 251.
Proof of intent to defraud.] Lastly, the prosecutor must prove the
(a) Eng. Com. L. Rep. xix. 370. (b) Id. xxiv. 246. (c) 2 Eng. C. C. 70. (d) 1 Ibid. 74. (e) 1 Ibid. 274,
intent of the bankrupt to defraud his creditors. This will in general appear from the whole circumstances of the case. Evidence of it may likewise be gathered from the declarations of the prisoner. Vide ante, p. 273.
A barrator is defined to be a common mover, exciter or maintainer of suits or quarrels either in courts or in the country, and it is said not to be material, whether the courts be of record or not, or whether such quarrels relate to a disputed title or possession, or not; but that all kinds of disturbances of the peace, and the spreading of false rumors and calumnies, whereby discord and disquiet may grow amongst neighbors, are as proper instances of barratry as the taking or keeping possession of lands in controversy. But a man is not a barrator in respect of any number of false actions brought by him in his own right, unless, as it seems, such actions should be entirely groundless and vexatious, without any manner of color. Nor is an attorney a barrator, in respect of his maintaining his client in a groundless action, to the commencement of which he was in no way privy. Hawk. P. C. b. 1, c. 81, s. 1, 2, 3, 4; 1 Russell, 185.
[*275] *Barratry is a cumulative offence, and the party must be charged as a common barrator. It is, therefore, insufficient to prove the commission of one act only. Hawk. P. C. b. 1, c. 81, s. 5. For this reason
the prosecutor is bound, before the trial, to give the defendant a note of the particular acts of barratry intended to be insisted on, without which the trial will not be permitted to proceed. Ibid. s. 13. The prosecution will be confined by these particulars. Goddard v. Smith, 6 Mod. 262 (1).
The punishment of this offence is fine and imprisonment, and being held to good behavior. Hawk. P. C. b. 1, c. 81, s. 14.
Former law, and 9 Geo. 4, c. 31.] The offence of bigamy was origi
(1) State v. Chitty, 1 Bailey, 379. Commonwealth. v. Cooper, 15 Mass. 187. Comm. v. Davis, 11 Pick. 434. 1 Russell, C. & M. 185 & Seq. B. 2. ch. 23. 3 Am. Ed.
nally only of Ecclesiastical cognizance, but was made a felony by the 1 Jac. 1, c. 11. By the second section of that statute, it was provided that the act should not extend to any person or persons whose husband or wife should be continually remaining beyond the seas, by the space of seven years together, or whose husband or wife should absent him or herself, the one from the other, by the space of seven years together, in any parts within his Majesty's dominions; the one of them not knowing the other of them to be living within that time. By section 3, it was provided, that the act should not extend to any person or persons that are, or shall be at the time of such marriage divorced by any sentence in the [*276] Ecclesiastical Court, or to any person or persons where the former marriage shall be by sentence in the Ecclesiastical Court declared to be void, and of no effect, nor to any person or persons in or by reason of any former marriage, had or made within age of consent.
By the 35 Geo. 3, c. 67, persons guilty of bigamy were made liable to the same punishment as persons convicted of fraud or petit larceny.
By the 9 Geo. 4, c. 31, both the above statutes were repealed, and other provisions substituted in their place.
By that statute, s. 22, it is enacted, "that if any person being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or elsewhere; every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned with or without hard labor, in the common gaol or house of correction, for any term not exceeding two years; and any such offence may be dealt with, inquired of, 'tried, determined, and punished in the county where the offender shall be apprehended, or be in custody, as if the offence had been actually committed in that county. Provided always, that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his Majesty; or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past; and shall not have been known by such person to be living within that time, or shall extend to any person who at the time of such marriage shall have been divorced from the bond of such first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction."
Upon an indictment for bigamy, the prosecutor must prove-1. the prisoner's first marriage; 2. the prisoner's second marriage; 3. that his first wife was alive at the time of the second marriage; and 4. that the second marriage took place either in the county in which he is tried, or that in which he was apprehended, or is in custody (1).
Proof of the marriages—in general.] The prosecutor must prove the two marriages, and it is sufficient if he prove a voidable marriage. Jacob's case, 1 Moody, C. C. 140 (a), stated post, 285.
But if either of the marriages, or at all events, the first marriage (vide post, p. 279,) be void, an indictment for bigamy cannot be sustained.
(1) 1 Wheeler's C. C. 117.
(a) 2 Eng. C. C. 140.