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F. Pollock, contrà. A sight of these documents is necessary for the purposes of justice; therefore the Court will compel their production. They are part of the proceedings in this Court, kept by the Marshal by virtue of his office, and for the safe custody of which he is responsible. This is a very different case from that of Cooper v. Jones. There the plaintiff called upon the Marshal to file the writ of habeas corpus, and the Court refused the application on the ground that there was no place in which it could properly be filed except the office of the Clerk of the Papers, in the prison, the writ forming part of the authority of the Marsbal for detaining the prisoner. Here no attempt is made to change the place of custody of the writ; all that is prayed for is an opportunity to inspect and take a copy of it, in order that it may be correctly set out in the declaration.
Lord TENTERDEN, C.J.—This case is perfectly distinguishable from Cooper v. Jones. The motion there was for the Marshal to file the writ, and it was refused upon the ground that there was no proper place in which, consistently with his own safety and with his duty, he could file it. Here the application is only to produce the writ, so that the plaintiff may inspect and take a copy of it, for the purpose of maintaining his action for the escape of his debtor. I think that is a perfectly just and reasonable application. It is clear that the Clerk of the Papers must produce the writ at the trial, if served with a subpæna duces tecum for that purpose; and as it may be necessary for the plaintiff to set out the writ in his declaration (a), I see no reason why he should not be allowed an inspection of it for that purpose in the present stage of the cause.
The other Judges concurred.
Rule absolute (b).
(a) And see Langslow v. Cox, i Chit. Rep. 99.
(6) But see Davies v. Brown, 9
J. B. Moore, 778, where, in an
committed to his custody in execu- nish copies of them, as all the protion, the Court of Common Pleasceedings under which a prisoner held, that the party at whose suit is charged in his custody, are inhe was committed could not call corporated in the list of causes for an inspection of the writ of under which he is detained, and habeas corpus, and return thereto, which are deposited with the Clerk or of the committitur; and that of the Papers of the prison.
l'11,2 the warden was not bound to fur
'1. .'.19'8","13 Ut bij
Ex parte CHARLES BAGSTER. V On a question ARCHBOLD had obtained a writ of habeas corpus tö of the commit- bring up the body of Charles Bagster, for the purpose of ment of a wit- discharging him out of custody, he having been committed missioners of to prison by the commissioners appointed under a commisbankrupt, all sion of bankrupt issued against his' brother, William and answers Bagster, of Norwich, draper, under the following circummust belooked
stances : at as forming one examina- The prisoner had been committed by the commissioners, tion: and a witness can
under the authority of the statute 6 Geo. 4, c. 16, ss. 33 and not be com
34' (a), for not giving satisfactory answers in his examina. mitted for not answering as to his belief
! (a) By the 6 Geo. 4, c. 16, s. 33, closure of any of the matters which of the intention of the
commissioners of bankrupt are em- the commissioners are authorized bankrupt, un- powered to summon before them
to inquire into," &c. less other parts “any person whom the commis- By s. 34, it is provided, that of his exami- sioners believe capable of giving “if any such person shall refuse to nation shew
information concerning the person, such belief to
answer any lawful questions put be material trade, dealings, or estate of such to him by the said commissioners with reference bankrupt, or concerning any act touching any of the matters afore. to the person, or acts of bankruptcy committed said, or shall not fully answer to trade, dealing, by him, or any information mate- the satisfaction of the said comor estate of the bankrupt. rial to the full disclosure of the
missioners any such luwful quesdealings of the bankrupt; and to tions," the commissioners may require such person to produce commit such person to such prison any books, papers, deeds, writings, as they shall think fit, there to reor other documents in his custody main without bail, until he shall or power, which may appear to full answers make to their satisthe commissioners, necessary to faction, to all such lawful questions the verification of the deposition as shall be put to him. of such person, or to the full dis- And by s. 39, it is provided,
Ex parte BAGSTER.
tion before them touching his brother's affairs. The wartant of cominitment set out the whole of the examination of the prisoner before the commissioners. On his first examination, the prisoner being asked whether he had not written to one Gissing, the bankrupt's shopman, respecting a statement of the bankrupt's debts and assets, he denied that he had. On a subsequent examination he desired leave to correct that answer, and stated that he believed he had written to Gissing on that subject. He then also desired to correct another answer which he had previously given. He had before stated that he had not received any goods from the bankrupt's stock since the 8th of August, 1827: he now, stated that he had received goods from the bankrupt since that time, to the amount of 421. 8s. He admitted that he had struck the docket against his brother. Being asked whether he had seen the bankrupt between the time of his writing to Gissing and striking the docket, he answered, that he could not say,—he thought it probable he had, he believed he had ;--if he had seen him, it was at Ipswich; he thought it was at Ipswich, with Mr. Marston, the attorney. Being asked whether that was not after the time when he wrote to Gissing, and before the bankrupt absconded, he answered, yes. Being asked why he did not state that before, he said, it was because he did not recollect it. The examination then proceeded thus :
“Now, state what passed at that interview between you, Mr. Marston came over to strike the docket.
" that if any person committed by ment, inspect and consider the
The question repeated.
pour ! Nothing of importance passed between my brother and Ex parte BAGSTERI myself.
State what did pass, relative to his circumstances, whew ther important or not in your view of it ; state the whole truth.
I have stated that the attorney came over to strike the docket.
You are requested to state what passed between your brother and you relative to his circumstances.
You have before said, nothing important passed : státe what did pass.
I now mean to say nothing at all passed. .
brother then come over to
I suppose to drive Mr. Marston, the attorney, tor Ipswich, where I lived..
Do you not know that your brother did go from Norwich to Ipswich with Marston to you, for the purpose of getting you to strike a docket?
Mr. Marston would have done as well alone.
It is pointed out to you that you have not answered it; have you any other to give ?
You are requested carefully to consider, as it is a question easily to be answered.
I can give no other answer. My brother might have had business at Ipswich, although not with me.
The question repeated.
Ex parte BAGSTER.
from Norwich, to yourself at Ipswich, to get you to strike a docket ?..
I do not know if he did or not: I do not know his intens tion in coming
You are not asked as to your knowledge, but as to your belief.
I would have answered the question long ago
The warrant then stated that these answers not being satisfactory, the commissioners did thereby commit the prisoner to Newgate, there to be kept without bail, until he should submit himself to answer the questions to their satisfaction.
Scarlett and Archbold, on behalf of the prisoner. The commitment was not justifiable. The questions, for the not answering of which the prisoner was committed, were not within the scope of the authority of the commissioners to put, for they did not concern the person, trade, dealings, or estate of the bankrupt," nor were they“ material to the full disclosure of the dealings of the bankrupt;" to which subject-matter the power of examination vested in the commissioners is confined. The prisoner, therefore, was not bound to answer such questions at all; and though it must be admitted that some of his answers are not very satisfactory, still he ought not to have been committed.. The particular questions, at the close of the examination, upon the answers to which the commitment appears mainly to have proceeded, were still more objectionable. They were neither fair nor legal questions, nor had they any relevancy to the subject under inquiry. No man is bound to