1867 being offered at the trial in support of the plea, a verdict was THE QUEEN found against her, and she was held not to be entitled to her V. ROBINSON. discharge on being afterwards arrested on a ca. sa. Unless, therefore, 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 & 13 Vict. c. 106, s. 233, the Gazette then became conclusive evidence of the bankruptcy as against the bankrupt upon this prosecution: Reg. v. Levi. (1) Nor does it make any difference that the bankrupt is a woman. In Ex parte West (2) the 233rd 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? (1) 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 sustained against her, then the others who assisted her are guilty, as the word "maliciously" is not used in the statute, and therefore no mens rea is required. The 24 & 25 Vict. c. 94, s. 8, applies to accessories; so, the principal having committed a misdemeanor, by force of the statute the aiders become misdemeanants also. Cur. adv. vult. June 1. 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, (1) Leigh & Cave, C. C. 597; 34 L. J. (M.C.) 174. (2) 22 L. J. (Bank.) 71. 1867 v. ROBINSON. having been thus taken, were not admissible in evidence against them in a criminal prosecution. But Reg. v. Scott (1) is conclusive THE QUEEN to shew that this evidence was admissible. I cannot 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 recognised in another case, Reg. v. Skeen (2); 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 offences 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 the wife of a felon convict, or a feme covert, who is a sole trader by the custom of London, is liable to be made 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 & 13 Vict. c. 106, s. 233, 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 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 urged 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 adju(1) Dears. & B. C. C. 47; 25 L. J. (M.C.) 128. (2) Bell, C. C. 97; 28 L. J. (M.C.) 98. 1867 THE QUEEN v. ROBINSON. dication in bankruptcy is of no force or effect whatsoever as evi- With respect, however, to Mary Robinson, I should have been of opinion that she also was 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 cannot 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 (1); and by that decision we are bound. Although, however, the defendant Mary Robinson is thus precluded from denying that she has become bankrupt, it (1) Leigh & Cave, C. C. 597; 34 L. J. (M.C.) 174. 1867 v. ROBINSON. is still open to her to contend that the indictment cannot be supported, inasmuch as in every count it is alleged that the property THE QUEEN embezzled is her property; whereas, upon the facts proved, it is clear that the property was the property of her husband; and this allegation goes to the very essence of the offence, and is not capable of being made good by any amendment; for the property, if described according to the truth, must have been laid to have been the property of the husband of Mary Robinson; and, if so laid, no offence whatever under the statute would be charged in the indictment. And the learned judge having reported that the objection was made, that the defendants could not be convicted on any of the counts in the indictment, I am of opinion that the conviction as to all three of the defendants is bad, and must be quashed. MARTIN, B. I also am of opinion that this indictment fails. It fails as soon as it is shewn that Mary Robinson was a married woman. The charge is laid under paragraphs 3 and 11 of the 221st section of the Bankruptcy Act, 1861. In my judgment, that section was introduced into the act in defence of the assignees and creditors of the bankrupt; and, when it is established that the supposed bankrupt is a married woman, then it is clear that her property is the property of her husband, and that her assignees are deprived of nothing; and therefore the indictment which lays the property as her property fails. With respect to the two cases of Reg. v. Scott (1), and Reg. v. Levi (2), which have been commented on, in my judgment they were rightly decided; and I must say that, when a point has once been distinctly raised and decided in a reported case, I for my part regret to find such a decision criticised and disputed over again. When a point has once been clearly decided, I think it is far better to acquiesce in the decision, unless it can be brought for review before a higher Court. In Reg. v. Levi (2) the Court held that the advertisement in the London Gazette was conclusive against the bankrupt in criminal as well as civil cases. Now here I do not say that the adjudication, being against a married woman, was absolutely void. To hold that it was so (1) Dears. & B. C. C. 47; 25 L. J. (M.C.) 128. (2) Leigh & Cave, C. C. 597; 34 L. J. (M.C.) 174. 1867 v. ROBINSON. would involve very serious consequences, as in that case every THE QUEEN person bona fide acting upon it and dealing with the property, would be liable to be treated as a trespasser. The indictment, however, fails in substance, because it alleges that the property which Mary Robinson and the others are charged with embezzling is the property of Mary Robinson; and, as soon as it is shewn that Mary Robinson is a married woman, that allegation is disproved. BYLES, J. I agree with the Lord Chief Baron that the prisoners are entitled to their discharge; but I desire to express no opinion on the questions-first, whether a married woman under these circumstances could be made a bankrupt; or, secondly, whether, having been adjudged a bankrupt, she is not a bankrupt within the meaning of the statute by reason of the interpretation clause in the act of 1861; or, thirdly, whether she or her co-defendants were bound by any estoppel; or, lastly, whether the examinations were admissible against any of them. The ground on which I rest my judgment is, that the goods were from the first, and, notwithstanding the bankruptcy, valid or invalid, still remained the property of the husband, and that he, at the time of the bankruptcy, was not merely in the situation of a person having a title to the goods though out of possession, but of one who, having a title to the goods, was also in actual possession; for it appears to me that on no supposition could the goods be the property of the bankrupt or of her assignees, and thus that they were at the time of the bankruptcy not only the property of the husband, but in his possession by reason of the possession of his wife. KEATING, J. I am also of opinion that this conviction cannot be sustained; but I prefer to rest my judgment upon the ground stated by my Brother Byles. SHEE, J. I also think the conviction, as to all three of the defendants, bad. Mary Robinson, having, before the commission by her of the alleged offence, been adjudicated a bankrupt, and having taken no steps to dispute or annul the bankruptcy, was, in my opinion, by the express enactment of the 229th section of the |