1834. Ex parte BARDWELL. of VENABLES. presence of the whole Subdivision Court abided, showed the whole story to be unsatisfactory-if that single question had shown a prevarication, a direct contradiction— if that question had elicited an answer unsatisfactory to In the matter all the preceding questions which they might have compressed into their single question-if that had been unsatisfactory, then the proceeding might have been regular; because, strictly speaking, the opinion of the three commissioners would have been formed on what had passed before themselves, and on that only. (a) But, in fact, their judgment was formed upon the answers given in their absence to questions put in their absence; and all they knew was, that he acknowledged having been asked those questions and having given those answers. It appears to me that the statute intended to give the party under examination the security of three judges being present, presiding over his examination, and forming their opinion upon hearing and seeing him answer the questions put. If it be only conceivable that they might have come to a different conclusion, from being personally present, from that to which reading the deposition led them, it is enough, provided that difference be in favour of the party committed. Nothing, indeed, in the manner of his deposition, could be a ground for concluding against him, because the record of his examination must contain enough to show that he was deservedly committed; and if the written testimony prove nothing against him, his manner of giving it personally is quite immaterial. It is enough to show that a difference might exist between the whole Subdivision Court assisting at the examination and one commissioner taking it in the absence of the other two, who (a) Ex parte Atkinson, 2 Gl. & J. 208. 1834. Ex parte BARDWELL. In the matter of VENABLES. only hear the witness acknowledge it. The provision of the act appears to be intended to give him the benefit of such a possibility. But further, if those two commissioners had been present, it is also possible some further questions might have been suggested by the colleagues of the single commissioner which would have drawn forth answers favourable to the witness, and of that possibility also the act seems to intend to give him the advantage. It is true the seventh section, upon which I think this construction ought to be imposed, does not explicitly direct the examination to be re-commenced by the Subdivision Court; it uses the word "adjourned" in a way that has probably introduced the practice of only continuing the further examination before the three, beginning where the single commissioner had left off. The party is to be brought up, according to the act, within three days, before the Subdivision Court, "to which such examination shall be adjourned." This, and the consideration that in almost every case the reading over the former examination, and giving the party full opportunity of retracting or altering or explaining it, has probably appeared sufficient to satisfy the exigency of the statute, and to make the difference which I have pointed out to appear so inconsiderable as rather to seem a matter of form than of substance;—that I take to have been the origin of this practice. Nor should I, upon the other provisions of the statute, have been disposed to put so large a construction, or to correct any practice that might have grown up, or rather begun to take root, under a more liberal interpretation of the words; but when the matter in question is the power of commitment, it behoves us to enlarge whatever tends to throw guards around the liberty of the subject, and to construe most strictly whatever confers the authority to imprison. That is the ordinary and sound rule of construction. The seventh section expressly prohibits one judge from committing; and although it does not say in terms that the whole inquiry shall be conducted by all who concur in pronouncing the sentence, yet I think that, in soundness of construction, it must be held to mean, that they who alone have the authority to make the order shall all join in the inquiry out of which the order is to spring, and not rest satisfied with taking from one of their number the report of an inquiry conducted by him before they were called in, and then, as it were, adhibiting their authority to give his opinion legal effect. It must be their order, as well as his, in substance as well as in form. I consider that this is sufficient, on the present occasion, to vitiate the commitment. Undoubtedly I am empowered, where a warrant is bad in point of form, to remand, if on the merits the prisoner appear to be properly committed (a); but I do not consider this a defect of such a kind as ought to be thus supplied; and I find, that in a case ex parte Cassidy, 2 Rose, 217, in which Lord Eldon having a doubt passing over his mind whether he had a right (the words of the act empowering and requiring to commit if the Court shall think there be an error in form, but yet that the party in substance appeared to be rightly committed,) to neglect that power which was given, he considered what the nature of the objection was, and being of opinion that it was a flaw, but more important than could have been contemplated by the legislature when they made this act, his Lordship discharged the prisoner, although that was perhaps more near a formal objection than the objection. I now take to the present commitment. I have, therefore, no doubt that I am not called upon, and I shall (a) 6 G. 4. c. 16. s. 39. 1834. Ex parte BARDWELL. In the matter of VENABLES. 1834. Ex parte BARDWELL. In the matter of VENABLES. A prisoner regularly committed by a commissioner to the messen ger, and subsequently irregu larly committed by the Subdi not exercise the power of keeping the prisoner in custody. I shall discharge the prisoner on this ground-on this ground alone, desiring it to be most distinctly understood that it is on this ground, and on this ground alone, that I order him to be discharged. Mr. Pepys asked, that the witness might have all his costs out of the estate. The LORD CHANCELLOR :-The prisoner was brought up regularly before the Subdivision Court, and the irregularity did not begin till the moment the warrant of commitment was made. I had a doubt at one time whether I should not have been justified in putting the matter back to that stage in which I think all was regular, namely, to the stage of the commitment by the one commissioner; but on more carefully looking into remanded to the the act, I do not think I should be justified in so doing, custody of the therefore I must give the witness the costs from that time, to be paid by the assignees, who will recoup themselves out of the estate, which I understand to be sufficient. vision Court, is not, on a dis charge under habeas corpus, messenger. Prisoner discharged. His costs from the time of commitment by the Subdivision Court, to be paid by the assignees. (a) L. C. March 19, THIS 1834. An agreement for a lease is not annulled by the bankruptcy of the intended lessee. MORGAN v. RHODES. was an appeal from a decree of the Vice-Chancellor, who had determined that the bankruptcy of the lessee exonerated the lessor from an agreement for a lease. The material facts, as stated by the Lord Chancellor in his judgment, are as follow: (a) See Turner v. Hibbert, post. Rhodes, on the 23d of February 1822, agreed with Auckland to grant him a lease for ninety-seven years of certain premises at 201. per annum rent, upon which Auckland agreed to build six houses. This building was, with the rent reserved, the consideration of the intended lease; he agreed to erect, build, and completely finish fit for habitation six messuages on or before the 1st of March 1823, besides other things immaterial to the present question. Auckland sold his interest in the agreement as to three of the messuages to Mrs. Morgan for 6007., and an improved ground-rent; 2047. was immediately paid, and Auckland afterwards became bankrupt. This suit was for a specific performance of Rhodes' agreement with Auckland to grant a lease of these three houses, upon Mrs. Morgan performing her part of the agreement, and having an account of what was due to her. The Vice-Chancellor dismissed the bill on the ground of Auckland's bankruptcy, and this was an appeal from his Honor's decision. The Solicitor General (a) and Mr. Jacob, for the appellants, cited Crosby v. Tooke (b), in which the Lord (a) Sir C. Pepys. (b) Crosby v. Tooke. A person named Pitmore had entered into an agreement with the defendant Tooke to take the lease of a certain farm. Before the lease had been executed Pitmore became insolvent, and the plaintiff, Crosby, entered into possession of the farm as his assignee. The defendant proceeded to eject the plaintiff, who obtained an injunction to restrain him; this injunction was afterwards dissolved by the Vice Chancellor, on the ground that The present was a motion 1834. MORGAN v. RHODES. L. C. Feb. 23, 28, 1833. An agreement for a lease is not annulled by the insolvency of the intended lessor. |