1867 v. GREGORY. Vict. c. 94, has altered its quality, and it is now a felony. To solicit and incite is in fact to counsel and procure; and the prisoner was THE QUEEN therefore within the 24 & 25 Vict. c. 94, and might have been convicted of the substantive felony of counselling and procuring White to commit a felony. Then, the offence having thus become a felony, no indictment will lie for it as a misdemeanor: Rex v. Cross. (1) Waddy, for the Crown, was not called upon. KELLY, C.B. The first question is, whether a soliciting and inciting is equivalent to a counselling and procuring, so that an allegation of the former would sustain a conviction upon a statute making the latter an offence. It is not necessary to decide that point now; but we must not be taken to hold that an indictment founded upon a statute could be sustained, if, instead of the words of the statute, it used other words which might have a different signification. The second question is, whether the soliciting and inciting, or, indeed, the counselling and procuring (if we may supply those words), a man to commit a felony, are within the 24 & 25 Vict. c. 94, so as to make the soliciting and inciting a felony, although no principal felony be committed. Looking at the structure of the section, and construing it by the ordinary rules of grammar, it is impossible to put that construction upon it. There can be no accessory to a felony, unless a felony has been committed. Here there was no principal felony; and, therefore, the prisoner's offence was a misdemeanor only, and he has been properly convicted. Conviction affirmed. Attorneys for the Crown: Torr, Janeway, & Taggart, for Cranswick, Leeds. Attorney for prisoner: Ferns, Leeds. VOL. I. (1) 1 Ld. Raym. 711. END OF EASTER TERM. 4 1867 June 1. CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN TRINITY TERM, XXX VICTORIA. THE QUEEN v. ROBINSON. Bankrupt-Feme Covert-Husband and Wife-Evidence-12 & 13 Vict. c. 106, s. 233. A married woman having been adjudicated a bankrupt upon her own petition, in which she described herself as a widow, was afterwards convicted under the 24 & 25 Vict. c. 134, s. 221, of having embezzled her property: Held, that the conviction was wrong, as the property was her husband's. Held also, by Kelly, C.B., Martin, B., and Shee, J., that examinations taken before a commissioner in bankruptcy are admissible as evidence against the persons examined upon a criminal charge. THE following case was stated by Montague Smith, J. :— Mary Robinson, John William Robinson, and John William Andrew (together with Mary Skirrow, who was acquitted), were tried before me at York at the spring assizes of 1867, and were convicted and sentenced to terms of imprisonment. Mary Robinson had been adjudicated a bankrupt on the 25th of July, 1866. The indictment contained sixteen counts. One set of counts charged Mary Robinson with committing misdemeanors under the Bankruptcy Act, 1861, sec. 221, par. 3, viz., by concealing and embezzling property, and the other defendants with aiding her. Another set of counts charged all the defendants with a conspiracy to do these acts. The bankrupt, Mary Robinson, had carried 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 66 1867 V. ROBINSON. 16, Great Passage Street, Hull, pawnbroker, widow. It was proved THE QUEEN that Mary Robinson was at the time of contracting her debts and of her bankruptcy a married woman. Her maiden name was 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 her 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 commissioner 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 shorthand 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 stateTHE QUEEN ments in his and her examination were not admissible in evidence 1867 v. ROBINSON. 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 cannot 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: 1 Selw. N. P. 338. 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 (1) 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 defence 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 (2); but that case was not entirely satisfactory to the profession. (3) [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 (1) 4 Camp. 26. (2) Dears. & B. C. C. 47; 25 L. J. (M.C.) 128. (3) See, per Cockburn, C.J., Reg. v. Skeen, Bell C. C. 97, 127; 28 L. J. (M.C.) 98. 1867 v. ROBINSON. period for disputing the bankruptcy having expired, the Gazette was conclusive evidence against her as to the fact of the bank- THE QUEEN ruptcy; thirdly, that, if she is guilty, those who aided and assisted her 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 (1), 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 (2), and in Watson v. Wace (3), where a man had obtained his discharge out of custody on the ground of his bankruptcy, he was held to be estopped from disputing the validity of the commission. Ex parte Cutten (4) is a similar case. In Vaughan v. Vanderstegen (5), 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 (6), Wood, V.C., says that there is abundant authority to shew 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 an 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 cannot 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 shew that the Court of Chancery will not treat an adjudication obtained by fraud as absolutely null. In Poole v. Canning (7), a married woman sued as a feme sole pleaded her coverture, but, no evidence (1) 2 M. D. & De G. 337. (3) 5 B. & C. 153. (5) 2 Drew. 408. |