Ex parte NEWTON. Nov. 13, 1813. Commis sioners have founded a HIS Petition raised a Question of Practice, whether Depositions, the Depositions, upon which Commissioners in the upon which Country had founded their Report, upon a Subject of Enquiry referred to them, ought to be filed with the Report in the Bankrupt Office, or left in the Custody of the Assignees. The Depositions were not annexed to or incorporated in the Report, or referred to as forming Part of it; and the Officers of the Bankrupt Office had there fore refused to file them. Report, upon a Re ference to them, are Proceedings in the Bank ruptcy, and The Lord CHANCELLOR. These Examinations are Proceedings in the Bankruptcy, as such, to and should remain therefore with those who have the be left in the' Custody of the Proceedings; where, if necessary, a Party Custody of entitled to inspect them may have an Order for that Pur- the Assigpose. The Report alone is all that should be filed in nees. the Bankrupt Office. It was at Length agreed between the Parties, that the Depositions should be sealed up and left at the Bankrupt Office. The filing of an Affida vit in Bank ruptcy is the Bankrupt Another Point raised was, as to what constituted the Office: it is filing of an Affidavit. there within the Reach of the Lord Chancellor, should the Purposes of Justice at any Time require the Production of it. Nov. 16, 1813. Ex parte NEWTON. The Lord CHANCELLOR. I have always understood the filing of an Affidavit to be the swearing and carrying of it into the Office; when an Affidavit has been brought into the Office it will never, I trust, in future be suffered to be withdrawn upon any Pretext. If an Affidavit has been read without having been filed in the Office, I might have some Difficulty in compelling the Reproduction of it, if the Purposes of Justice required it. Sir Samuel Romilly, in Support of the Petition. Mr. Montague, contra. In the Matter of BALDWIN. R. Cook moved that a clerical Error in a Com MR mission might be corrected, and certain Words omitted might be inserted, and the Commission resealed; at the same Time expressing a Doubt, whether the Error and Omission in Question were such as to render any Alteration or Resealing necessary. The Error was " Balwin," instead of " Baldwin," and omitting to describe him as surviving Partner of a Person deceased. The Lord CHANCELLOR. It is idem sonans; and the Omission of his Description as surviving Partner is the Omission of a mere Surplusage. Ex parte Ex parte PRESTON.-In the Matter of PRESTON. TH HIS was an Application by a Bankrupt to supersede his Commission, upon an Objection to the following Act of Bankruptcy. Nov. 19, 1813. It is not an Act of Bankruptcy for a Debtor to cause himself to be denied to a Creditor Preston being indebted to Popple in £100 and upwards, accidentally met him in the Street; Popple pressed him for Payment. Preston said, Come and dine with me on Sunday, and I will settle with you. Popple went on Sunday; when a Servant of Preston, by his Desire, he being the Debtor's calling by then at Home, told Popple, that he was gone out to Dinner, and Popple went away. The Servant then told her Master what had taken Place, and he approved of it. Sir Samuel Romilly and Mr. Barber, in Support of the Petition. Mr. Hart and Mr. Johnson, contra. The Lord CHANCELLOR. The Act of Bankruptcy on which this Commission is grounded is a Denial to a Creditor on a Sunday. I am of Opinion, after great Consideration of this Subject, that if the Petitioner did appoint Sunday to pay the Money, it is not an Act of Bankruptcy in him, to cause himself to be denied to a Creditor on that Day. This Commission, therefore, must be superseded at the Expense of the Petitioning Creditor. Appoint ment, for Payment, on a Sunday. Nov. 30. Ex parte LINCOLN'S INN HALL. 1814. Ex parte TEMPLE.-In the Matter of TEMPLE, A Bankrupt TH HE Commissioners, at the Expiration of the fortyis not, by two Days, enlarged the Time for the Bankrupt's Virtue of the passing his last Examination and extended his Protection, Commis- Upon one of the Days previous to the Expiration of such sioners' Pro- enlarged Time, but not while in Attendance before the tection, pri- Commissioners, or on his Way to or from them, he was vileged from arrested under a Writ of Extent at the Suit of the Crown, Arrest at the for a Debt due to the Commissioners of Excise. He Suit of the now petitioned that he might be discharged from such Crown, un less he be in Arrest, with his Costs and Expenses to be paid by the actual Attendance before them; and the Ex ception seems to in clude a fair Allowance of Time for going and returning, Officer who had executed the Writ, or by such other Mr. Wakefield, in Support of the Petition, cited Ex parte Russell, Mr. Montague, for the Assignees, supported the Bankrupt's Application, upon the Ground that his Detention in Custody would interfere with his Examination and the Interests of the Creditors under the Commission, Sir Arthur Piggott and Mr. Hall resisted the Applįcation; contending that the Crown was not within the Provisions of the Bankrupt Statutes; and that the Principles of Common Law, as acted upon in Ex parte Russell, carried the Protection no farther than while the Bankrupt was in Attendance actually before the Com missioners. The Lord CHANCELLOR. My present Opinion is, that the Bankrupt is not pro tected 1814. Ex parte In the Matter of TEMPLE. tected in this Case. Lord Hardwicke decided in Er parte Dick (a), and I observe that I followed it in Ex parte Russell(b), that the Crown was not within the Statutes in Bankruptcy. I should require a great Deal - TEMPLE,— to satisfy me that the Crown is bound by Implication (c), when all judicial Proceedings, both upon Practice and Principle, have established the contrary. The Case of Ex parte Russell carried this no farther, than that the Bankrupt was protected from an Extent at the Suit of the Crown, while in actual and bona fide Attendance before the Commissioners. Neither the Facts nor the Judgment in that Case admit the Inference, that the Crown is bound by the Statutes in Bankruptcy. I carefully stated, that the Crown was not bound, and the Relief was given upon the Principles of Common Law, protective of a Witness attending a Court of Law, in Aid of the Administration of Justice. I took the Circumstance of his having been before the Commissioners, and his waiting during their Adjournment, as one Attendance; that he was as much protected, in the Room to which he had retired, as a Witness walking about Westminster Hall, until he shall be called into the Witness Box. Whatever Doubts may have existed, it is now quite clear that a Witness attending Arbitrators under a Reference, by Rule of Court, is entitled to his Protection, and that not by the Statute, but by Common Law (d). Except by the Stat. 5 Geo. II. there was nothing to restrain a Creditor from arresting his Bankrupt Debtor during the forty-two Days: by Common Law he was (a) 2 Black. Rep. 1142. (b) 1 Rose's Cases, 278. Vide Ex parte Ross, and the Cases in the Note, 260. ibid. and the next Case, p. 24, Post. (c) Note to Ex parte Wood, 18 Ves. Rep. 1. (d) Bail attending to justify are protected from Arrest on mesne Process. Rimmer v. Green. 1 Maule and Selwyn. R. 638. at |