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![handle is hein.slavery/ssactsengr0546 and id is 1 raw text is: MILES V. DAWSON
PEAKE ADD. CAS. 54.
[54] Monday, Dee. 14.
MiILE', AND O'i'TIns, A8S8ie NEES OF FIEI, A BANKRUPT, v. DAWSON.
(Ban irupt may be a witness to defeat his hankru ptey, by proving it to have beIen
concerted (a). Nol/.- No advantage can be taken of a concerted act of bank-
ruptcy by creditors who were privy thereto. See the cases cited in note (a) to
the case of Roberts ad Others v. Tcasdale, Peake's Cases, 27. A mai served
with a sitbpaaa d(uces /ecut,, cannot be compelled to produce an instrument by
virtue of which he committed a trespass (c). Qn. The effect of a Nal/panw.1
duces ecuni. Aeton and As,./on, 3 Atk. 302 ; and see Pickeri.q v. Noyes (K. B.)
1 13. and C. 262 ; 2 D. and R. 386, S. C. accord. A man who takes possession
of a ship by the consent of plaintiff's agent, not liable to an action of trespass.)
[S. C. 1 Esp. 405.]
Trespass for seizing a number of slaves, a brigantine cadled the Elizabeth,
and goods on board, at Aoinamhoe on the coast of Africa.
The plaintiffs having called the bankrupt as a witness, Wood, for the defendant,
cross-examined him, and in order to prove that this was t concerted act of bank-
ruptcy, anongst other questions, a sked whether it was not at a ineeting of the
creditors, previous to the issuing of the commission, agreed that he should become
a bankrupt
Erskine and Gibbs, for the plaintiffs, objected to the question, contending that
a bankrupt could not be examined to any fact touching his bankrnptcy, either to
prove himself a bankrupt or to shew that he was not so.
Lord Kenyon said that the defendant's counsel could not ask any question
which tended to establish his bankruptcy (Black. (on). 2, 472) ; and the reason was.
that bankrupts [55] had been considered by the oll law as criminals, and therefore
should not be examined to any fact which tended to prove that criminalitv ; but
he was of opinion that there was no objection to his being asked a question to defeat
his bankruptcy. His having submitted to and leen examined under his coni-
mission did not hinder him from giving the evidence ; he was obliged to sul)mit
to that at the peril of his life ; he would have been a felon if he had not. His Lord-
ship, however, offered to save the point if the plaintiff's counsel desired it (b).
The defendant's counsel not being able to shew any concert in this case, the
cause proceeded.
The plaintiffs then proceeded to prove their case, which was stated to be as follows:
The bankrupt being on the coast of Africa, wrote to Dawson to build the vessel in
question for him ; which he did, and sent it to the bankrupt with a cargo on board.
The bankrupt remitted him bills on account of this [56] to the value of £1800 7s.,
upwards of £2000 still remaining due to the defendant: That the ship afterwards
sailed to America, and the bankrupt expended £4300 in America in making an
(a) In the case of Oxlade v. Prechard and Others. Sheriffs of Lo/don, 1 Esp. 287,
Lord Kenyon also held that a bankrupt is an admissible witness to explain a doubtful
act, which may be or not an act of bankruptcy ; as whether an arrest relied upon as
a concerted and fraudulent one, was so or not ; and his Lordship there expresses
himself in terms similar to those he uses in the ,)resent case.
(c) The same principle applies and is acted upon where the document is in the
hands of an attorney ; and if he state that the disclosure of the contents of instru-
ments in his hands may be prejudicial to his client, the C(ourt will not force him to
produce them. Copleandt v. Wals, 1 Stark. C. 95 ; and IHurris v. Hill, 1 1). and R.
17 ; Fisher v. Leinin, Leic. Lent. Assiz. 1809 ; Rex v. ,ai/h, Derby Sum. Assiz.
1822 ; Phillips's Evid. vol. i. p. 132. See also Rex v. Uppe'r Boddii/!olo, 8 1). and
R. 726.
(b) By 6 Geo. IV. c. 16, s. 36, if a bankrupt refuse to be sworn before the Comi-
missioners, lie may be imprisoned until he shall submit himself to the Commiissioners
to be sworn, and full answers make to their satisfaction to such questions as shall
be tnlt to him, aind[ sign and sul)scribe his examination. And by the f12th section
of the same statute, if the bankrupt (1o not before three o'clock of the forty-second
day after the issuing of the commission surrender himself, and sign and subscribe
his surrender, and submit to be examined before the Coinmissioners from time to
time upon oath, &c. or shall make any frau/duIlent concealment of property, lie is
guilty of felony, and punislhble by transportation for life, or not less than seven years.
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