1819.

The KING

v.

PAGE.

enacts, "That the party offending shall be deemed to be guilty of felony, without benefit of clergy." Suppose a bankrupt does not surrender till the forty-second day, and then refuses to answer questions, will the Chancellor say he has discharged the felony by coming and saying, I have surrendered? The examination, in the present instance, has, in effect, produced nothing but a refusal to answer. It was matter of fact for a jury to say whether the pretence for this was fraudulent, and the jury find that it was the two things necessary to sustain this indictment are clearly made out. It appears from the examination, that the bankrupt refused to answer, and the jury have found that this refusal was with a fraudulent intent: unless the words, "submit to be examined," are struck out of the statute, the prisoner has committed a capital offence. There is nothing in the 16th section inconsistent with this interpretation of the statute: that section gives the commissioners a power to call, not only the bankrupt, but all other persons whatever; and it was never intended to affect others with capital punishment for the offence of refusing to answer. Besides, under that section, the bankrupt may be called on and committed before the forty-second day; but he is not liable to be indicted for felony, till a refusal after the forty-second day that section, too, has reference to a variety of other matters. It is contended to be a fatal omission, that the indictment does not charge the bankrupt with a refusal to surrender; but this is the very question in dispute, and there is no known case or precedent on the subject. As to the concealment of property not being capital, unless the concealment be of property to the amount of 201., the offence charged by this indictment is a refusal to answer; and no averment is made as to the amount of property concealed by such refusal. If such an averment had been introduced, it might have been necessary to prove it; but the refusal to answer is an offence of itself, whether immediately connected with concealment of property

or

or no. With respect to the insufficiency of the bankrupt's imprisonment to constitute an act of bankruptcy, a confinement under a criminal charge can only operate as an exception where the prisoner is unable to escape from it. But here, the prisoner was not prevented by the criminal charge from going at large; and, at all events, the magistrate's warrant was functus officio, when the commissioners sent the bankrupt to prison. Besides, a party cannot take advantage of a criminal act, where his conduct is influenced by other motives also; as, where a party went abroad to effect a seduction, and also to defraud his creditors, the going abroad was held to be not the less an act of bankruptcy because done with a view to a seduction (a).

Copley, in reply, insisted that the warrant and rule of court were still in force, notwithstanding the detainer in the civil suit, and were not annulled by the commitment on the part of the commissioners. The prisoner's attorney was called to say that the prisoner had no knowledge of his discharge from the criminal commitment. The indictment ought to have charged the refusal to surrender and submit to examination, as constituting altogether one offence.

No judgment was given in this case. received a pardon.

The prisoner

Of the eleven Judges who were present, (Richards C. B. being absent,) eight held that the offence above charged was not a capital offence within the statute 5 G. 2. c. 30. s. 1. The other three thought that the prisoner's case fell within the statute. All the eleven held, that the lying in prison under the circumstances stated in the case, was a sufficient act of bankruptcy. The reporters are indebted to the kindness of one of their Lordships, who was present, for this information,

(a) Raikes v. Poreau, Co. in Fowler v. Padget, 7 T. R. Bank, L. 73. 5th edition, cited 511.

Y 2

1819.

June 28.

tiff made affidavit that he

sued Defendant, to recover damages for a breach of agreement in not entering

into partner

to a partner-
ship deed

drawn
up and
signed by

MORROW v. SAUNDERS.

Where Plain VAUGHAN Serjt., on a former day, moved for a rule to shew cause why the Plaintiff should not be permitted to inspect and take a copy of a certain deed of co-partnership, made between the Plaintiff and Defendant, and signed by the Plaintiff: he said the deed was not executed hy the Defendant, though it remained in his custody; but the affidavit, on which he grounded ship, pursuant his application, not stating that the Plaintiff had no copy or counterpart of the deed in his possession, the Court refused the application. He afterwards moved again, on an affidavit, stating, that the Plaintiff had brought Plaintiff, but an action to recover a compensation in damages for not remaining in the custody of taking deponent into partnership, pursuant to a certain the Defendant deed of co-partnership executed by the Plaintiff, and or his attorney; in the possession or power of the Defendant or his attorney; that the Plaintiff had not, nor ever had, either copy or counterpart of the deed, and that no other deed or counterpart than the one mentioned, existed between him and the Defendant. On a motion for leave to a rule enabling inspect a partnership deed, the affidavit should state the Plaintiff to that the party moving has neither copy nor counterpart. inspect the The Court having granted a rule nisi on this last motion,

and that the Plaintiff possessed neither

copy nor counterpart of the deed; the

Court granted

deed and take a copy, though the Defendant swore he had not executed the deed.

Hullock Serjt. now shewed cause against the rule. The Defendant makes oath that he never executed the deed, and in that case, it can be of no use to the PlainOn a motion tiff. The Plaintiff does not state what species of action he intends to bring, or where the deed in question is accessible. In Street v. Brown (a), where an instrument was executed by two parties, each of them keeping one

for leave to

inspect a partnership deed,

the affidavit

should state

that the party moving has neither copy nor counterpart.

(a) 1 Marsh. 610.

part,

part, and one of the parties lost his deed, the Court would not compel the other party to produce his deed, in order to furnish the means of supporting an action against himself.

The Court held that the present case was very different from that of Street v. Brown, and made the

Rule absolute.

1819.

MORROW

V.

SAUNDERS.

NIND . MARSHALL.

June 29.

Covenant for quiet enjoyment during

a term, "with

out the lawful let, suit, interruption, &c. of

COVENANT. The declaration stated, that by indenture of the 4th July, 1817, (after reciting a lease of the 9th December, 1815, from John Parker to the Defendant, for fourteen years, subject to the payment of rent, and performance of covenants, and also reciting, that the Plaintiff had agreed to purchase the J. M., his Defendant's interest for 207.) it was witnessed, that the executors, adDefendant sold the Plaintiff the messuage mentioned in the before in part recited indenture of lease, and all the term for years then to come in the premises; to have and to hold the residue of the said term of fourteen whomsoever, years, subject to the payment of the yearly rent, and having or claiming any to the performance of the covenants, conditions, and estate or right in the premises,

ministrators, or

assigns, or any of them, or any other per

son or persons

and that free and clear, and freely and clearly, discharged or otherwise, by J. M., his heirs, executors, or administrators, defended, kept harmless and indemnified from all former gifts, grants, bargains, sales, leases, mortgages, assignments, rents and arrears of rent, statutes, judgments, recognizances, made or suffered by J. M., or by their or either of their acts, means, default, procurement, consent, or privity," preceded by a covenant that the lease was a good lease, notwithstanding any act of J. M., and followed by a covenant for further assurance by J. M., his executors, administrators, and all persons whomsoever claiming, during the residue of the term, any estate in the premises under him or them: Held, Park J. dissentiente, that the covenant for quiet enjoyment extended only against the acts of the covenantor and those claiming under him, and not against the acts of all the world.

1819.

NIND

V.

agreements, by and in the said in part recited indenture of lease reserved and contained; and the Defendant did, by the said indenture, (amongst other things) coMARSHALL. venant with the Plaintiff, "that it should and might be lawful to and for the Plaintiff, his executors, administrators, and assigns, from time to time, and at all times thereafter, peaceably to enter into, have, hold, use, occupy, possess, and enjoy the said messuage, tenement, or dwelling-house, and all and singular the premises therein-before mentioned and intended to be thereby assigned, with their and every of their appurtenances, and to have, receive, and take, the rents, issues, and profits thereof, and of every part and parcel thereof, for and during all the rest, residue, and remainder of the said term of fourteen years, by the said in part recited indenture of lease granted, and then to come and unexpired, without any the lawful let, suit, trouble, hindrance, interruption, molestation, and denial of the Defendant, his executors, administrators, or assigns, or any of them, or any other person or persons whatsoever, having, or lawfully claiming, or who should or might at any time or times thereafter, during the said term, have, or lawfully claim, any estate, right, title, trust, or interest, either at law, or in equity, of, in, to, or out of the said messuage, tenement, or dwelling-house and premises, or any part or parcel thereof, and that, free and clear, and freely and clearly exonerated and discharged, or otherwise, by the Defendant, his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified, of, from, and against all and all manner of former and other gifts, grants, bargains, sales, leases, mortgages, assignments, rents, and arrears of rent, statutes, judgments, recognizances, titles, charges, and incumbrances whatsoever, made, done, or committed, or wittingly or willingly permitted or suffered by the said

Defendant,