Crowley's Case
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 1818 |
| Date | 21 July 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 514
HIGH COURT OF CHANCERY
Reports of CASES ARGUED and DETERMINED in the HIGH COURT OF CHANCERY, during the Time of LORD CHANCELLOR ELDON; from the Commencement of the Sittings before Hilary Term, 1818, to the End of the Sittings after Michaelmas Term, 1819. By CLEMENT TUDWAY SWANSTON, Esq., Barrister-at-Law. Vol. II. [1] crowley'n Case. July 10, 13-18, 20, 21, 1818. S. (;. 1 Buck. 'J(!4.-The Lord Chancellor can issue the writ of habeas cor pun at common law in vacation. Whether, for the purpose of determining that the answers of a bankrupt on his examination, are unsatisfactory, the commissioners can resort to the evidence of third persons, queers. Commissioners having, on the evidence of third persons, committed the bankrupt for not answering satisfactorily, must state that evidence in hose verba on the warrant of commitment; and a warrant stating only the effect of the evidence, is defective in substance. A bankrupt answering a question embodying a statement relative to the acts of a third person, without denying or qualifying that statement, is not understood as admitting it. A commission of bankruptcy, dated the 7th of March 1815, having been issued against John Crowley, he was, on the 18th of June 181G, committed to prison by the commissioners. The warrant of commitment was in the following words :- " At Guildhall, London, 18th day of June 1810. Whereas his Majesty's commission, under the great seal of (treat Bri-['\-tain, grounded upon the several statutes made, and now in force concerning bankrupts, or some of one of them, bearing date at Westminster, the seventh day of March 1815, in the fifty-fifth year of his present Majesty's reigti, hath been awarded and issued against John Crowley, late of Saint-James Street, in the parish of tiaint James, Westminster, in the county of Middlesex, tavern-keeper, wine merchant, dealer, and chapman, directed unto G. W., A. E. J., M. F. A., W. K. iS'., and R. G., Esquires, any four or three of them: And whereas the said commissioners, in the said commission named, or the major part of them, having first respectively taken the oath appointed by an act of parliament passed in the fifth year of the reign of his late Majesty King George the Second, intituled, ' An act to prevent the committing of frauds by bankrupts,' for commissioners of bankrupts to take before they act as commissioners in the execution of the powers or authorities given and granted by the said act or acts of parliament now in force concerning bankrupts, and having begun to put the said commission into execution, upon due examination of witnesses, and other good proofs before them had and taken, did find that the said John Crowley, before the date and issuing forth of the said commission, did become bankrupt, within the true intent and meaning of some or one of the statutes made and now in force concerning bankrupts, and did adjudge and declare the said John Crowley bankrupt accordingly ; And whereas the major 514 2 SWANS. 3. CROWLEV'S CASE 515 part of the said commissioners did cause notice to be given in the London Gazette, that the said John Crowley was thereby required to surrender himself to the said commissioners in the said commission named, or the major part of them, on the 15th day of April 1815, on the 22d day of April 1815, on the 20th day of May 1815, at one of the clock in the afternoon on each of the said days, on the 8th day of July 1815, at ten o'clock in the forenoon on that day, on the 26th day of [3] August, 1815, at ten o'clock in the forenoon on that day, on the 2d day of December 1815, at one o'clock in the afternoon on that day, on the 24th day of February 181C, at one o'clock in the afternoon on that day, on the 4th day of June, instant, at ten o'clock in the forenoon on that day, on the 18th day of June, instant, at twelve o'clock, at Guildhall, London, in order to finish his examination, and to make a full disclosure and discovery of his estate and effects ; and being then and there duly sworn and required by us to make such disclosure and discovery, we, being the major part of the commissioners in the said commission named, whose hands and sales are hereunto subscribed and set, having first respectively taken the oath above mentioned, appointed to be taken by commissioners of bankrupts, did cause the following questions to be propounded to him the said John Crowley, that is to say ; On the 4th day of June last, when you appeared before the commissioners at Guildhall to pass your last examination, you had no accounts ready to present to them ; you then requested the commissioners to adjourn your last examination, undertaking to produce your accounts to your assignees on Thursday then next ensuing ; on the 14th of June you were brought up to be examined before the commissioners, and upon being asked whether you had produced your accounts to your assignees, you stated that you had not and could not, because your books and papers were in the possession of a friend of yours, a Mr. Hamilton, at No. 122, in the London Road, to whom you had delivered them since your bankruptcy, who refused to redeliver them to you ; the commissioners have since that time issued their summons to bring Hamilton before them, but it appears, from the deposition of the messenger, that although he waited on Saturday night till between twelve and one o'clock for the return of Hamilton to his lodging, and went again to his [4] lodging at eight o'clock on Monday morning, that he was not able personally to serve Hamilton, who had returned home after the time above stated on Saturday night, and had gone out again before the messenger arrived again on the Monday morning ; it likewise appears to the commissioners, from the deposition of their messenger, that a woman in the house had informed Mr. Hamilton, that the messenger had been there, who replied he knew what he wanted, but that all the proceedings were illegal, and there was an end of it : Have you any accounts now to produce to the commissioners, or any further reason to give why you do not produce them '( Answer. I have no accounts to produce, and 1 have no further reason to give why I do not produce them, except that I have two petitions before the Chancellor to supersede this commission ; the first, upon the grounds of a commission being now in force against me, bearing date in 1808 ; and the second, of no act of bankruptcy to this commission ; but still am ready to render every account possibly in my power to the commissioners : which answer of the said John Crowley not being satisfactory to us the said commissioners, these are therefore to will and require and authorise you, immediately upon receipt hereof, to take unto your custody the body of the said John Crowley, and him safely convey to his Majesty's prison of the King's Bench, and him there to deliver to the marshal, keeper, or warden of the said prison, who is hereby required and authorised, by virtue of the commission and statute aforesaid, to receive the said John Crowley into his custody, and him safely keep and detain, without bail or mainprize, until such time as he shall submit himself to us the said commissioners, or the major part of the commissioners by the said commission named and authorised, and full answer make to our or their satisfaction, to the question so put to him as aforesaid ; and for your so doing this shall be your sufficient warrant. To /. W. our mes-[5]-senger, or W. B. his assistant, and to the marshal, keeper, or warden of his Majesty's prison of the King's Bench, or to his deputy there." July 10. The bankrupt at his own instance being brought up by writ of habeas corpus, Mr. Base, for the assignees, objected that the writ had issued improvidently. In Jenkes's case (July 1676. Cited 3 Bl. Com. 132. Reported 6 Howell's State Trials, 1189) Lord Nottingham, after great research, decided that the Lord Chancellor cannot issue a writ of habeas corpus at common law in vacation. The bankrupt 516 ceowlry's case 2SWAKS. e. having remained in prison since June 1SIG, without any previous application for his liberation, is not entitled to a writ under the habeas corpus act (,'il Car. 2, c. 2), the fourth section of which provides, that any person wilfully neglecting, by the space of two whole terms after his imprisonment, to pray a habeas corpus for his enlargement, shall not have any habeas corpus to be granted in vacation time in pursuance of that act. The bankrupt therefore is not entitled to the writ either tit common law, or under the statute. Serjeant Onsltnv'x act (50 Geo. 3, c. 100) leaves the law unchanged in this respect. July 13. On this day Sir tiamuel Ramilly and Mr. Cullen were heard in support of the writ.- The objection that this court cannot issue a writ of habeas corpus at the common law in vacation, rests on a passage in Blackstone's Commentaries (vol. 3, p. 132), who states that in Jenkes's case, Lord Nottingham refused the writ, [6] because no precedent could be found where the Chancellor had granted it in vacation. Biackstone refers to Lord Nottingham's manuscripts, of which some few copies are in private hands, hut the only printed account of Jenkes's case is contained in the State Trials (vol. G, p. 1189). It there appears, that Jenkes having been committed to prison by the Privy Council, during the long vacation, for a speech uttered by him on the hustings at Guildhall, a motion was made on his behalf at one of the sales after Trinity term I67(i, for a hafiean corpus, on the authority of Lord (Joke, ('2 Inst. 53 ; 4 Inst. 88, L82, 290), " but the Lord Chancellor, making light of the Lord Coke's opinion, saying that Lord Coke was not infallible, and slighting all that Mr. Jenkes's counsel offered, over-ruled the matter, denying to grant the writ." (0 Howell's State Trials, 11%.) High as is the reputation of Lord Nottingham, his decision in this instance cannot be supported by principle or authority...
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