were put which are not set out; as, if it state that the following questions "amongst others" were put, or the like, the warrant will be bad (1).

And where, upon the questions and answers reference was made to documents contained in a previous examination, but which documents are not set forth in the warrant (m), or to some previous examinations not so set forth (n), the warrants were held to be defective, for the warrant ought to exhibit to the court the same information as was possessed by the commissioners; but where the transaction which is the ground of commitment appears complete upon the warrant, and unconnected with the documents or examination referred to, the omission to set them out does not vitiate the warrant (o). But where the warrant expressed the commitment to be "for not answering a question," and it appeared by the examination to be for having refused to read entries in a ledger, which the party had referred to in his examination, but had no notice to produce, the warrant was held bad in form and substance (p).

But the above section extends only to the two cases of commitment mentioned in it; namely, for refusing to answer, and for not answering fully. Therefore, it is no objection to a warrant of commitment for refusing to be sworn, that it does not state the reason given by the bankrupt for his refusal (q), or that it does not set out any specific questions (r).

And it is no objection to a warrant, that it was made in the absence of the bankrupt, and dated on the day of the examination, although not made for some days afterwards (s).

By stat. 6 Geo. 4, c. 16, s. 38, if any gaoler, to whose custody any bankrupt or other person shall be committed as aforesaid, shall suffer such bankrupt or other person to escape, every such gaoler shall forfeit five hundred pounds.

Re-examination and Re-commitment.] If the bankrupt wish to purge his offence, and submit himself to the commissioners, he should send them notice to that effect (t), and they will thereupon grant their warrant to have him again brought before them; and if the meeting is held for any other purpose, he may be brought up at such meeting without paying the costs of the meeting; but the bankrupt is not entitled to a meeting for the purpose of his reexamination without paying the costs of the sitting, notwithstanding his affidavit of his inability to pay (u). But in a case where the bankrupt had been imprisoned upwards of twelve months and was utterly destitute, and the assignees had ample funds, the court ordered him to be brought up for re-examination at the expense of

(1) Tomlin's case, 1 Glyn & J. 373: Lawrence's case, 2 Glyn & J. 209: see also Crawley's case, 2 Swan. 1: Bromley's case, 2 Jac. & W. 453.

(m) Price's case, 2 Glyn & J. 211.
(n) Hooton's case, 2 Glyn & J. 215.
(0) Atkinson's case, 2 Glyn & J. 218.
(p) Ex p. Isaac, Mon. & MA. 22.
(9) Nobes v. Mountain, 3 B. & B. 233;

the estate, notwithstanding he had been brought up twice before, and had been indicted for perjury and concealment of his estate (x).

When the bankrupt is thus again brought up, he is examined as before; and if he still refuse to be sworn, or refuse to answer, or answer unsatisfactorily, or refuse to sign his examination, the commissioners may re-commit him. And, in this case, there must be a new warrant; for if remanded upon the original warrant, he would be entitled to be discharged (y).

Habeas Corpus.] If the bankrupt have been properly committed, he can obtain his discharge only by submitting to the commissioners, as above mentioned; he will not be discharged, upon his application to the Lord Chancellor or one of the judges, merely on the ground that a further examination can be of no use to the creditors (2), or the like. And the bankrupt cannot question the legality of the warrant until he is in custody under it; and therefore, where the bankrupt was a prisoner in the Fleet on several actions, and the warden was served with the warrant of the commissioners, addressed to the keeper of Newgate, to detain him, &c., it was held, that the bankrupt not being in custody under the warrant, was not entitled to have the sufficiency of his examination decided upon by the court on habeas corpus (a); the same where the bankrupt was in the custody of the marshal of the Marshalsea, in execution for debt (b).

If, on the other hand, the bankrupt have been improperly committed, his remedy is by habeas corpus (c); or on petition (d); but not on motion (e): the habeas corpus may be obtained upon motion in the Court of Chancery, or in any of the common-law courts at Westminster, in term time, or by application to the Lord Chancellor or any of the judges in vacation (f). Whether the judges of the Court of Bankruptcy can issue a habeas corpus, is doubtful (g). Notice of the application, however, must be given to the assignees, in order that they may oppose his discharge if they think fit; and notice on the Saturday afternoon for the Monday following, will be deemed insufficient, unless the case be very clear (h).

When the bankrupt is brought up, in pursuance of the writ, the cause of his commitment, that is to say, the warrant, is returned upon it, and the judge then examines into its validity. And the bankrupt will not be entitled to his discharge, because, in the return to the writ, the warrant of committal appears imperfect; the court will ascertain if the warrant is truly set forth in the return, and if it is not, will then order the return to be amended (i). And by

Mon. & A.41: Exp. James, 3 Dea. 518; 1 Mon. & C. 165.

(e) Ex p. Jones, 1 Mon. & A. 704; 2 Mon. & A. 41.

(f) See Crowley's case, 2 Swanst. 1: see the form, Arch. Forms, 254.

(g) Ex p. Jones: Ex p. James, supra.
(h) Bromley's case, 2 Jac. & W. 453.
(i) In the matter of Power, 2 Russ.

(d) Ex p. Jones, 4 Dea. & C. 536; 2 583.

stat. 6 Geo. 4, c. 16, s. 39, if any person committed by the commissioners shall bring any habeas corpus in order to be discharged from such commitment, and there shall appear on the return of such habeas corpus any such insufficiency in the form of the warrant whereby such person was committed, by reason whereof he might be discharged, it shall be lawful for the court or judge before whom such party shall be brought by habeas corpus, and such court or judge is hereby required, to commit such person to the same prison, there to remain until he shall conform; unless it shall be shewn to such court or judge by the party committed, that he has fully answered all lawful questions put to him by the commissioners; or if such person was committed fo rrefusing to be sworn, or for not signing his examination, unless it shall appear to such court or judge that he had a sufficient reason for the same. Provided also, that such court or judge shall, if required thereto by the party committed, in case the whole of the examination of the party so committed shall not have been stated in the warrant of commitment, inspect and consider the whole of the examination of such party, whereof any such question was a part; and if it shall appear from the whole examination that the answer or answers of the party committed is or are satisfactory, such court or judge shall and may order the party so committed to be discharged (k). Upon a habeas corpus the party may object that the question was illegal, though he did not so object when before the commissioners (?); and affidavits may be read as to facts not apparent upon the face of the warrant (m).

Action.] We have seen already (p. 16, ante) that no action will now lie against any commissioner of the Court of Bankruptcy. In treating, therefore, of actions against commissioners, we must be understood as intending country commissioners only.

Formerly it was holden, that an action for false imprisonment would lie, at the suit of the bankrupt, against the commissioners, for improperly committing him (n), and many such actions have been brought accordingly. But in a very recent case, it has been holden, that if the commissioners act within the limit of their authority, although from a mistaken judgment, they are not liable at all to an action (o); and therefore, where a person suspected of concealing some of a bankrupt's property was examined before the commissioners, and committed by them for not answering satisfactorily, it was holden that he could not maintain an action against the commissioners for committing him, whether the answers were really satisfactory or not (p). And yet, since the decision of that case, it has been enacted, by stat. 6 Geo. 4, c. 16, s. 40, that in every action, in respect of any such commitment, brought by any bankrupt or other person committed, the court or judge, before

(k) See Er p. M'Gee, 8 Mad. 206. (1) Ex p. Bardwell, 1 Mon. & A. 207. (m) Ex p. Lampon, 3 Dea. & C. 751; 1 Mon. & A. 245.

(n) Miller v. Seare, 2 W. Bl. 1144:

Perkin v. Proctor, 2 Wils. 382; and see ante, p. 16.

(0) Doswell v. Impey, 2 Dow. & R. 350; 1 B. & C. 168. (P) Id.

which or whom such action is tried, shall, if thereto required by the defendant or defendants in such action, (in case the whole of the examination of the party so committed shall not have been stated in the warrant of commitment), inspect and consider the whole of such examination; and if upon such inspection and consideration it shall appear to such court or judge that the party was lawfully committed, the defendant or defendants in such action shall have the same benefit therefrom as if the whole of such examination had been therein stated. Whether this shall be deemed a legislative recognition of the right to bring such an action, and an implied declaration that the above decision of the Court of King's Bench (a decision too upon demurrer, and made after great and deliberate consideration of all preceding authorities upon the subject) is erroneous, or not, may perhaps admit of consideration. It may be, perhaps, that the legislature, at the time of the passing of this act, were not aware of the above decision (9).

As to the proceedings in actions against commissioners in country fiats, see further, ante, p. 16, &c.

Not discovering his Effects, not delivering them up, or embezzling them, Felony.] By stat. 6 Geo. 4, c. 16, s. 112, if any person against whom any commission has been issued, or shall hereafter be issued, whereupon such person hath been or shall be declared bankrupt, shall not, before three of the clock upon the fortysecond 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 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 bonâ 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 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 (except 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 ten pounds 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

(q) And see Isaac v. Impey, p. 281, post.

and kept to hard labour in any common gaol, penitentiary house, or house of correction, for any term not exceeding seven years (r).

And as to the delivery of books of accounts and papers, &c., by a bankrupt to his assignees, it is further enacted, by stat. 6 Geo. 4, c. 16, s. 116, that the bankrupt, after the choice of assignees, shall (if thereto required) forthwith deliver up to them, upon oath, before a master, ordinary or extraordinary, in Chancery, or justice of the peace, all books of account, papers, and writings relating to his estate, in his custody or power, and discover such as are in the custody or power of any other person; and, if he refuse, the commissioners may commit him to such prison as they shall think fit, there to remain, until he shall conform to the satisfaction of the commissioners or of the Lord Chancellor (s). (See the remainder of this section, post, § 19).

SECTION 12.

Examination of other Persons, relative to the Bankrupt's Estate.

Summons, &c.] By stat. 6 Geo. 4, c. 16, s. 33, it is enacted, that after adjudication it shall be lawful for the commissioners, by writing under their hands, to summon before them any person known or suspected to have any of the estate of the bankrupt in his possession (t), or who is supposed to be indebted to the bankrupt, or any person whom the commissioners believe capable of giving information concerning the person, trade, dealings, or estate of such bankrupt, or concerning any act or acts of bankruptcy committed by him, or any information material to the full disclosure of the dealings of the bankrupt; and it shall be lawful for the said commissioners to require such person to produce any books, papers, deeds, writings, or other documents, in his custody or power, which may appear to the commissioners necessary to the verification of the deposition of such person, or to the full disclosure of any of the matters which the commissioners are authorized to inquire into. And if such person so summoned as aforesaid shall not come before the commissioners at the time appointed, having no lawful impediment, (made known to the said commissioners at the time of their meeting, and allowed by them), it shall be lawful for the said commissioners, by warrant under their hands and seals, to authorize and direct the person or persons therein named for that purpose, to apprehend and arrest such person, and bring him before them to be examined as aforesaid. (See the form of the Summons, ii. p. 86; of the Deposition of

(r) See R. v. Page, 1 B. & B. 303; 7 Price, 616: R. v. Bullock, 1 Taunt. 71; 2 Leach, 996: R. v. Frith, 1 Leach, 10: R. v. Cole, 1 L. Raym. 443; 1 Hawk.

c. 49, s. 4.

(8) Ex p. Bradley, I Rose, 202.
(t) See Ex p. Anderson, Buck, 397.