"14. Did you not receive from the said George Hennett acceptances to the extent of more than 40,000, for which you did not pay over to him any proceeds? Did you not pass away such bills and receive large sums of money on account of the same? Was not a dividend afterwards paid on them in the bankruptcy of the said George Hennett? "15. Did not the assignees of the said George Hennett claim against you a sum of 53,000l., or what other sum, on account of such transactions? Did you in the interim between your first and second bankruptcy compromise such claims for a sum of 18007., or what other sum? 16. State as nearly as you can the actual amount received by you on account of the said bills of George Hennett?

"17. Was not William Tingay extensively employed by you in discounting bills and in disposing of securities?

"18. Did not the said William Tingay after your bankruptcy hand you over several sums of money or securities for money? State fully the particulars of the same.

"19. Did he not, especially, hand over to you several acceptances of Messrs. Rowland & Evans? When were such acceptances given to you? What was the *gross amount of the same? *254] did you dispose of such acceptances, and for what value?

How

"20. Were you at any time known by the name of David Levi, or by any and what name different from that which you now bear? If so, upon what occasion, and for what purpose, and when did you assume the name of David Leopold Lewis? What name did your father bear?

"21. Has either of your sisters, since the date of your bankruptcy. handed over to you any money, securities, or property of any kind? If so, when, and to what amount? State all the particulars connected with the same.

"22. Have you since your resumption of business after your bankruptcy kept full and accurate books? Have you any book showing the amount of money employed by you in your business on its resumption? If so, where is such book?

"23. Can you state the dividend actually paid to your creditors under your bankruptcy?

"24. Did you not soon or at some time after your bankruptcy pay to one C. Bailey a sum which you were so indebted to him previous to such bankruptcy, or other any sum? What do you pay him? Give the date particularly.

"25. Did not the said C. Bailey thereupon return to you the secu rities which he so held? What was the value of the securities so returned? How did you dispose of the same, and when, and for what amount?

"26. Did you soon or at any time after your bankruptcy pay to John Pickersgill, or Messrs. Pickersgill & Co., any and what sum of money on account of a debt due by you to him or them, or did you make any arrangement with him relative to such debt? Did he give up to you any securities held by or deposited with him? State fully *255] all the particulars of such payment *or arrangement, and the date of the same. State also the several securities handed over to you by him, the value of the same, and how, and when, and for what amount you disposed of the same.

"27. Did you at any time say to one G. Bruge, or to any one else, that your sister had lent you a sum of 20,000l., or any other sum? If so, was that statement true?

"28. Had you previously to your bankruptcy any dealings with a German Jew named Kremiller, residing in Red Lion Square, Holborn, or elsewhere? Did you obtain from him any watches or other goods, and, if so, to what amount?

"29. Did you use or employ any other name in carrying out the transaction? If so, under what name did you carry out the same? State fully all particulars connected with such transaction."

The ground upon which Mr. Justice Byles declined to allow the above interrogatories at Chambers, was, that the Court of Exchequer had in a recent case of Tupling v. Ward, 6 Hurlst. & N. 749,† held that interrogatories should not be allowed, the answers to which in the affirmative would tend to criminate the party. [WILLES, J.There are two cases in the Exchequer the other way, viz. Boyle v. Wiseman, 10 Exch. 647,† and Osborn v. The London Dock Company, 10 Exch. 698,† one in this Court, viz. Chester . Wortley, 17 C. B. 410 (E. C. L. R. vol. 84), and one in the Queen's Bench, viz. Carew v. Davis, 5 Ellis & B. 709 (E. C. L. R. vol. 85). The exceptional case of Tupling v. Ward was a very peculiar one.]

Hawkins, Q. C., and Hannen now showed cause. The current of the authorities upon this subject in the common law Courts, until the recent case of Tupling v. Ward, 6 Hurlst. & N. 749,† has had a tendency to destroy one of the features of our jurisprudence, which *has always distinguished it in a marked manner from that of [*256 all other civilized countries, viz. that a man shall not be asked questions his answers to which will tend to criminate him. In Maccallum v. Turton, 2 Y. & J. 183,† the Court of Exchequer (on the equity side) refused to compel a defendant to answer allegations which might subject him to penalties; and it was held that this protection extended not only to the question which might tend directly to crimi nate him, but to every link in the chain of proof. Lord Chief Baron Alexander, in pronouncing judgment, refers to the language of Lord Eldon in Paxton v. Douglas, 19 Ves. 225, where that learned Judge says: "In no stage of the proceedings can a party be compelled to answer any question accusing himself, or any one in a series of questions that has a tendency to that effect; the rule in those cases being, that he is at liberty to protect himself against answering not only the direct question, whether he did what was illegal, but also every ques tion fairly appearing to be put with a view of drawing from him an answer, containing nothing to affect him, except as a link in a chain of proof that is to affect him." That is precisely in point. [WILLES, J.-In Chester v. Wortley, 17 C. B. 410 (E. C. L. R. vol. 84), this Court held that interrogatories may be administered in an action of ejectment, even though brought to enforce a forfeiture.] The judg. ment there proceeded (and with apparent reluctance) upon the authority of Osborn v. The London Dock Company, 10 Exch. 698 :† and that case was considered in Tupling v. Ward, and virtually overruled. There, the Court of Exchequer refused to permit the plaintiff, in an action for libel, to exhibit interrogatories to the defendant, the answers to which, if in the affirmative, would tend to show that he composed

or published the libel, and would therefore criminate him. Martin, *257] B., in delivering the judgment of the *Court, says: "We are all of opinion, that, in the exercise of the authority and discretion given to us by the 51st section of the Common Law Procedure Act, 1854, such interrogatories ought not to be allowed. It was scarcely contended that the defendant was bound to answer them: but it was urged that the interrogatories ought to be administered, leaving the defendant to refuse to answer them if he thought fit. Without laying down any general rule on the subject, we think, that, in cases of this kind, it would be unfair to submit questions which a party is clearly not bound to answer; the object being to compel him to answer when not bound, or to refuse, and so create a prejudice against him. We therefore think that these interrogatories ought not to be allowed." [ERLE, C. J.-The language of the judgment is very guarded.] It is idle to allow interrogatories which the Court must know will not be answered, and which are administered without a hope of their being answered, and for the mere purpose of prejudicing the party with the jury. [ERLE, C. J.-A man is not to be punished upon his own forced admission of guilt. If he has been guilty of swindling short of an indictable offence, he must answer: but, if he has overstepped the line, he is privileged from answering. I must confess I do not see why a guilty man should not be prejudiced in the eyes of a jury. BYLES, J.-All these interrogatories are questions which, as questions, might be put to a witness at Nisi Prius.] No doubt: but there is no analogy between interrogatories under the statute and the examination of witnesses at Nisi Prius. By the statute, the party may be interrogated "upon any matter as to which discovery may be sought." In Mitford's Equity Pleading 124 (5th edit. 229), the result of the cases is thus is a general rule *258] *punishment, in whatever manner the punishment may arise, or whatever may be the nature of the punishment. If, therefore, a bill requires an answer which may subject the defendant to any pains or penalties, he may demur to so much of the bill. As, if a bill charges anything which, if confessed by the answer, would subject the defendant to any criminal prosecution, or to any particular penalties, as, an usurious contract, maintenance, champerty, simony. And, in such cases, if the defendant is not obliged to answer the facts, he need not answer the circumstances, though they have not such an immediate tendency to criminate." And numerous authorities are cited in support of these positions. The demurrer was not upon oath: it was only signed by counsel. But at Nisi Prius, you have no right to presume before a witness is sworn that improper questions will be put to him: Boyle v. Wiseman, 10 Exch. 647:† and, once sworn, all his answers are upon oath. Lord Eldon, in Lloyd . Passingham, 16 Ves. 59, 69, says: "I cannot in a Court of justice hold that a party demurring to answer a criminal charge, that is to be taken as an admission." In Thorpe v. Macauley, 5 Madd. 218, 229, which was a bill for discovery, the Vice-Chancellor (Sir John Leach) says: "The sole object of the bill is, to prove the truth of the libel; or, in other words, to prove the truth of the criminal matters charged. Every question asked must necessarily be with a view to that end, and tend

that no one is bound to answer so as to subject himself to

[*259

to that point; and a party is not bound to answer any question, however apparently indifferent, which is in any manner connected with the criminal charge." And the demurrer was allowed. Billing v. Flight, 1 Madd. 230, is to the same effect. [WILLES, J.-Are not those cases inconsistent with Short v. Mercier, 3 M'N. & G. 205, before Lord Truro?] There, the defendant had answered, and so got himself into the difficulty. If the objectionable matter appears upon the face of the bill, the objection to it must be taken by demurrer: if not, it must come by way of answer. If the Court is to be bound in these cases, as it is confidently submitted it is, by the rules of the Court of equity, these interrogatories are plainly such as the defendant could not be called upon to answer. This was not gone into in Chester v. Wortley. And Osborn v. The London Dock Company cannot any longer be considered an authority. Baron Alderson's dictum there has been repudiated: per Lord Campbell, in Whateley v. Crowther, 5 Ellis & B. 709 (E. C. L. R. vol. 85).

Bovill, Q. C., and Honyman were not called upon to support the rule.

ERLE, C. J.-I am of opinion that this rule should be made absolute. The interrogatories are sought to be administered under the 51st section of the Common Law Procedure Act, 1854, which enacts, that, "in all causes in any of the superior Courts, by order of the Court or a Judge, the plaintiff may with the declaration, and the defendant may with the plea, or either of them by leave of the Court or a Judge may at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter), interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or, in the case of a body corporate, any of the officers of such body corporate, within ten days to answer the questions in writing, by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought, within the above time, or such extended *time as the

Court or a Judge shall allow, shall be deemed to have com- [*260 mitted a contempt of the Court, and shall be liable to be proceeded against accordingly." This is an action brought for the recovery of an alleged debt. The defendant has pleaded his discharge under the Bankrupt Act: and the question is whether that is a valid discharge. The interrogatories proposed to be delivered bear directly upon the matter in issue; and the 51st section decidedly authorizes the questions to be put. The spirit of the enactment is, to enable the party interrogating to get at the truth, and to prevent a failure of justice from its undue concealment. These interrogatories bear upon what perhaps may render the party interrogated liable to be proceeded against criminally: but, though some of them may be very likely to lead up to it, none of them in terms asks the party whether he has been guilty of an indictable offence. Taking the interrogatories as they stand, I do not think they are rendered inadmissible by reason of any statement contained therein. It is clear, and indeed was almost conceded, that every one of the questions might be put to the party if he were in the witness-box: and, if he then chooses to swear that his

answers will render him liable to be criminally proceeded against, he may protect himself' from that dilemma by declining to answer. But, independently of that privilege, the interests of truth and justice must be allowed to prevail. I know of no principle of law which should protect a man who has been guilty of an indictable offence from being placed in this predicament, any more than one whose fraud and dishonesty just fall short of rendering him criminally responsible. I entirely differ from the proposition put forth by Mr. Hannen, that the inference which a jury might naturally be expected to draw from the party's refusal to answer the interrogatories *affords a

*261] reason why they should not be permitted to be put. Although I always listen to his arguments with a great deal of interest, he has failed upon this occasion to satisfy me that he is well founded. It is the proper province of the law to bring all frauds to the light: and I cannot think a man is more deserving of sympathy and protection because his iniquities come up to the indictable point. Nor do I infer from the language of the 51st section that it was intended that the practice of the Courts of Equity was to regulate us. It provides that interrogatories may by order of the Court or a Judge be delivered upon any matter as to which discovery may be sought." I think the legislature has cautiously abstained from limiting the power of administering interrogatories to cases where a bill for discovery will lie. The authorities, I think, fully warrant us in going the length to which I propose to go upon this occasion. Osborn v. The London Dock Company, 10 Exch. 698,† is precisely in point. The application there was opposed on the ground, that, if the plaintiff was a party to such fraudulent practices as those sought to be established by the answers to the interrogatories, he would be liable to be indicted; and that the right to interrogatories under this statute was confined to cases where a discovery might have been obtained in a Court of equity. But Parke, B. said: "The language of the 51st section is much more extensive in its signification, and has no such limitation as that contended for. The 50th section, which empowers the Court to order the production of documents, says that it shall be done upon the affidavit of the party applying for the document, 'to the produc tion of which he is entitled for the purpose of discovery or otherwise.' And the 51st section says that the party may be interrogated upon any matter as to which discovery may be sought.' It does not say that

*the power is limited to cases in which 'a bill of discovery will *262] lie.'" In Tupling v. Ward, 6 Hurlst. & N. 749,† all that Martin, B., in delivering the judgment of the Court, says, is, that, without laying down any general rule on the subject, they think, that, in cases of that kind, it would be unfair to submit questions which the party clearly was not bound to answer; the object being, either to compel him to answer when not bound, or to refuse, and so create a prejudice against him. What precise limitation the Court meant to impose upon the rule laid down in Osborn v. The London Dock Com pany, I know not: but I think they did not intend to overrule it. Osborn v. The London Dock Company was acted upon by this Court in Chester v. Wortley, 17 C. B. 410 (E. C. L. R. vol. 84), and I am disposed to act upon it likewise. Upon the whole, I think the inter rogatories in question may properly be delivered.