
    *DECEMBER TERM 1842.
    JUDGES PRESENT. Smith, Baker, Lomax, Christian, Scott, Douglass, Leigh, Wilson, Duncan, Johnston, Fry, Robertson, Clopton, Bayly.
    
    The Commonwealth v. Cook.
    December 1842.
    Indictment—Perjury—Insolvents Swearing to Schedule.—Indictment against an insolvent debtor for perjury In swearing to a schedule which did not discover certain debts owing to him. held had on demurrer, for not averring that he well knew and remembered that the omitted debts were then justly due and owing to him.
    John Cook was indicted, in the circuit superior court of Pendleton county, at May term 1841, for perjury in falsely swearing to a schedule delivered in by him tinder the act for the relief of insolvent debtors, 1 Rev. Code, ch. 134, l 31, p. 536, 7. The indictment charged that the defendant did wilfully, corruptly and falsely swear that the schedule contained to the best of his knowledge and remembrance, a full account of all his estate and such debts as were owing to him, when in truth certain debts owing to him (which were described in the indictment) “were not embraced or included in '«the said schedule so subscribed and delivered by the said Cook, and the said Cook then and there well knew and remembered that the said schedule did not contain the said debts.” But there was no averment that the defendant knew or remembered that the debts omitted in the schedule were owing to him.
    The defendant demurred to the indictment: whereupon, with his consent, the court adjourned to this court the question, What judgment ought to be given upon the demurrer?
    A written argument of the case was submitted by R. Gray for the defendant.
    
      
      See monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   SMITH, J.,

delivered the resolution of the court.—Without deciding, or meaning to express an opinion, upon any other question raised or arising in this cause, we are all of opinion that the indictment is fatally defective in not averring that the defendant, at the time of giving in the schedule and taking the oath, well knew and remembered that the debts charged to be improperly omitted in the said schedule were then justly due and owing to him. The court is therefore of opinion and doth decide, that the demurrer to the indictment ought to be sustained. _  