on the business of a pawnbroker in Hull on her own account as Mrs. Robinson; she was adjudicated a bankrupt on her own petition, in which, and in the affidavit verifying it, she described herself, as of 16 Great Passage Street, Hull, pawnbroker, widow. It was proved that Mary Robinson was, at the time of contracting her debts and of her bankruptcy, a married woman. Her maiden name was 66 'May," and she was married in 1844 to Robert Robinson, who, at the time of the trial, was still alive. About fourteen years ago the husband went abroad, and was absent for ten years; he returned about five years ago, and remained in England about a year and a half, during which time he occasionally stayed with the bankrupt at the house in Hull in which she lived and carried on her trade. About three years ago he went to America, and has not since been seen in England. The creditors were not aware that Mary Robinson was a married woman; and she told some of them she was a widow. The defendant, John William Robinson, is her son, and assisted her in carrying on the business. The Gazette, of the 27th of July, 1866, containing the advertisement of adjudication, was put in evidence; and no step has been taken to dispute or annul the adjudication.

It was objected by the learned counsel on behalf of the several defendants, that the bankruptcy was null in consequence of the coverture of Mary Robinson, and that the defendants could not be convicted on any of the counts in the indictment. It was also objected for each of the other defendants that, if Mary Robinson was estopped from disputing ber bankruptcy, they were not. I reserved these objections for the consideration of the Court for Crown Cases Reserved.

The three defendants were severally examined before the commissioners in bankruptcy, under the provisions of the Bankrupt Law Consolidation Act, 1849. Their evidence was taken down, and proved at the trial before me by a short-hand writer duly appointed under the same act. The defendants were each examined respecting the fraudulent disposition of the property which was the subject of the present indictment; and material evidence for the jury in support of the prosecution was obtained from each of the examinations. No caution was given to the defendants by the commissioner; and no objection was made by either of them to the examination, or to any of the questions put to them, on the ground that the answers might tend to criminate them.

It was objected on behalf of each of the prisoners that the statements in his and her examination were not admissible in evidence against them respectively upon this indictment. I admitted the evidence, but reserved these objections also for the consideration of the

court.

APRIL 27. Campbell Foster, for the prisoners: The conviction in this case was wrong. Mary Robinson was a married woman; and so the adjudication in bankruptcy was a nullity. As a married woman she could not contract, except for necessaries, and then only as agent for her husband. The whole of the debts for which she was made a bankrupt were contracted during coverture; and the fact of her husband having lived with her at the house where she was carrying on her trade, was evidence of an assent and ratification on his part. A feme covert can not bring an action or be impleaded as a feme sole while the relation of marriage subsists and she and her husband are living in this kingdom, notwithstanding she lives separately from her husband and has a separate maintenance secured to her by deed. Nor does the fact of her having been made a bankrupt on her own petition estop her from setting up her coverture, for in Davenport v. Nelson,2 a woman who had declared herself to be a feme sole, and as such had executed deeds and maintained actions, when sued herself as a feme sole was held not to be estopped from setting up the defense of coverture. Even if the woman was estopped, the other defendants were not.

Secondly, the examination of a bankrupt should not be used against him on a criminal charge. It is true, that this point appears to be concluded by the authority of Reg. v. Scott; 3 but that case was not entirely satisfactory to the profession.4

[KELLY, C. B. We have no means of reviewing that decision. We are the same court; and the court of the fifteen judges is a court of the same jurisdiction, not a superior one.]

Hannay (Coltman with him), for the prosecution: It is submitted, first, that Mary Robinson is estopped; secondly, that, the statutory period for disputing the bankruptcy having expired, the Gazette was conclusive evidence against her as to the fact of the bankruptcy ; thirdly, that, if she is guilty, those who aided and assisted here are so also. There appears to be no case as to a married woman being estopped; but there are several as to infants, which will afford an analogy.

In Ex parte Bates,5 where a bankrupt applied to annul the fiat on the ground of infancy, and it appeared that on the occasion of his marriage, a year before the fiat issued, he had made an affidavit that he was then of age, his petition was dismissed, so in Goldie v. Gunston,6 and in Watson v. Wace, where a man had obtained his discharge out

1 1 Selw. N. P. 338.

24 Camp. 26.

3 Dears. & B. C. C. 47; 25 L. J. (M. C.) 128.

4 See per Cockburn, C. J., Reg. v. Skeen,

Bell C. C. 97,127; 28 L. J. (M. C.) 98.

5 M. D. & De G. 337.

64 Camp. 381.

75 B. & C. 153.

of custody on the ground of his bankruptcy, he was held to be estopped from disputing the validity of the commission. Ex parte Cutten,1 is a similiar case. In Vaughan v. Vandustegen,2 where a married woman had concealed her marriage, and dealt with a tradesman as a single woman, he was held to be entitled to payment out of her separate property. In Barrow v. Barrow,3 Wood, V. C., says, that there is abundant authority to show that a court of equity can, and does, deal with the interests of married women, where there is an equity by which their consciences can be affected.

[KELLY C. B. In this case there was no divorce, no separate trading under a particular custom, nothing to prevent the husband from coming back and dealing with the property. Could the Court of Bankruptcy deal with this property at all, especially as there are third parties interested in it. What would be the answer to the action brought by the husband in trespass or in trover?]

No question as to the ownership of the property has been reserved by the judge who tried the case. The question is, whether the bankruptcy is a nullity. It can not be said that the proceedings are null and void ab initio, as the commissioner could only act on the information before him. The cases as to infants show that the courts of chancery will not treat an adjudication obtained by fraud as absolutely null. In Poole v. Canning, a married woman, sued as a feme sole, pleaded her coverture, but, no evidence being offered at the trial in support of the plea, a verdict was found against her, and she was held not to be entitled to her discharge on being afterwards arrested on a ca. sa. Unless, thercfore, she could obtain her discharge under the Bankruptcy Act, she must remain in prison.

Secondly, no proceedings were taken to annul the adjudication before the statutory period elapsed; and by the 12 and 13 Victoria,5 the Gazette then became conclusive evidence of the bankruptcy as against the bankrupt upon this prosecution. Nor does it make any difference that the bankrupt is a woman. In Ex parte West,7 the two hundred and thirtythird section was held to apply in the case of an infant.

[KELLY, C. B. Have you any case under the criminal law except that of Reg. v. Levi? I think that that case makes it necessary for this court to consider the validity of the adjudication.]

Thirdly, supposing that Mary Robinson is a bankrupt, and the charge is fully sustained against her, then the others who assisted her are guilty, as the word "maliciously" is not used in the statute, and there

11 G. L. & J. 317.

2 2 Drew. 408.

34 K. & J. at p. 419.

4 L. R. 2 C. P. 241.

ch. 106, sec. 233.

Reg. v. Levi, L. & C. C. C. 597; 34 L. J. (M. C.) 174.

7 22 L. J. (B.) 71.

8 L. & C. C. C. 597; 34 L. J. (M. C.) 174.

fore no mens rea is required. The 24 and 25 Victoria1 applies to accessories; so the principal having committed a misdemeanor, by the force of the statute the aiders become misdemeanants also.

Cur. adv. vult.

June 1st, the following judgments were delivered:

KELLY, C. B. In this case, Mary Robinson, together with John William Robinson and John William Andrew, has been convicted of embezzling and conspiring to embezzle certain property, laid to be the property of Mary Robinson (who is alleged to have become bankrupt), both before and after the adjudication in bankruptcy, with intent to defraud her creditors. The three defendants had been compulsorily examined, and without any caution given, before the commissioner in bankruptcy, under the provisions of the Bankruptcy Act, 1849; and it was objected that these examinations, having been thus taken, were not admissible in evidence against them in a criminal prosecution. But Reg. v. Scott, is conclusive to show that this evidence was admissible. I can not but think that that decision is at variance with the principle of law, that no man is bound to criminate himself; but it was a decision of this court, and has since been recognized in another case,3 and we are not at liberty to question the authority of those decisions here.

It was also objected that the defendant Mary Robinson, at the time of the adjudication in bankruptcy and the commission of the offenses charged, was a married woman, and so not liable to be made a bankrupt. To this it was answered that having represented herself as a widow, and traded as such, and her husband having been absent from England three or four years, she had become liable to the bankrupt law. But I am of opinion that, having been, in fact, a married woman at the time in question, the property with which she had traded was the property of her husband, and that she was not within the operation of the statutes of bankruptcy. It has been held that a wife of a felon convict or a feme covert, who is a sole trader by the custom of London, is liable to be made a bankrupt; but in this case the husband of Mary Robinson might return to England at any moment, and seize the property of which she was possessed and with which she had traded, and exercise his marital rights over it as he might think proper. But it was further objected that Mary Robinson not having disputed the adjudication in bankruptcy within the time limited by the 12 and 13 Victoria,4 the Gazette became conclusive evidence of the adjudication, and dispensed with any further proof in support of it. This objection, however, does not apply to the other two defendants; and, the prosecutors having failed to

1 ch. 94, sec. 8.

Bell v. Skeen, Bell C. C. 97; 28 L. J. (M.

2 Dears. & B. C. C. 47; 25 L. J. (M. C.) 128.

C) 98.

4 ch. 106, sec. 233.

prove the allegations in the indictment necessary to support a valid adjudication, I am of opinion that, as against them, the adjudication was void and the conviction must be quashed. It was argued for the prosecution that the adjudication must be held good until annulled or set aside by the Lord Chancellor or the Court of Bankruptcy; but this is altogether a mistake. An adjudication in bankruptcy is of no force or effect whatever as evidence in any suit or proceeding, civil or criminal, unless supported by proof of all the acts and requisites essential to its validity, except when it is made conclusive evidence against particular classes of persons, or under particular circumstances, by the express provisions of an act of Parliament, as by the 12 and 13 Victoria.1 Were it otherwise, if the husband of Mary Robinson were to return to England, and take possession, as he lawfully might, of the goods which passed as the property of the wife to the hands of her assignees, he might be indicted and convicted under an indictment in the form of that which is now before the court for embezzling or conspiring to embezzle his own property. It is not necessary that the adjudication should be annulled by any court of law or equity. The defendants, James W. Robinson and John William Andrew, could not be heard in any suit to set it aside. As against these it is merely void; and, indeed, the indictment is framed accordingly, for it contains allegations in every count, not merely of the adjudicature itself, but of the petition and the trading by Mary Robinson and all other matters essential to its validity; and these were material allegations which the prosecutors were bound to prove. Having failed to do so, the conviction can not be sustained.

With respect, however, to Mary Robinson, I should have been of opinion that she was also well entitled, in this criminal proceeding, to dispute the validity of the adjudication against her; and that, although it may be expedient and just to hold an adjudication in bankruptcy binding upon the bankrupt who fails to dispute it within a reasonable time, it can not have been intended by the Legislature to subject a man, perhaps, a wholly innocent man, to the pains and penalties of a crime, by reason of his omission to dispute a bankruptcy within a period of two or three months, which may have been caused by mere inadvertence, or absence, or sickness, or poverty, or the mistake or negligence of an attorney. But upon this point, also, the objection is supported by a decision of this court in the case of Reg v. Levi;2 and by that decision we are bound. Although, however, the defendant Mary Robinson is thus precluded from denying that she has become bankrupt, it is still open to her to contend that the indictment can not be supported, inasmuch as in every count it is alleged that the property

1 ch. 106, secs. 233, 234.

2 L. & C. C. C. 597; 34 L. J. (M. C.) 174.