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the conusor on a statute merchant or statute staple, which were instruments having peculiar properties in favour of trade (a). The writ of extent as a Crown process, appears to be founded on the statute of 35 Hen. 8. c. 59 (b). By the 55th section of that statute, it is enacted, "that all and every suit and suits, which thereafter should be had, made, or taken of, for or upon any debt or duties, which thereafter should grow or be due to the King, in the several offices and courts of his Exchequer, duchy of Lancaster, augmentations of the revenues of his Crown, surveyors general of his manors, lands and tenements, master of the wards and liveries, and courts of the first fruits and tenths, or in any of them, or by reason or authority of any of them, should be severally sued in such one of the said courts and offices, in the which court and office, or by reason of the which court and office, the same debt or duty should grow or become due, or in the which office or court the recognizance, obligation or specialty should be or remain; and that every such several suit and suits should be made in every of the said several offices and courts, under the several seals of the said several courts, by capias, extendi facias, subpoena, attachments and proclamations of allegiance, if need should require, or any of them, or otherwise, as unto the said several courts should be thought by their discretions expedient for the speedy recovery of the King's debts. And that the said Court of Exchequer, and all and every of the said Courts, should have whole and full authority and power, to hear and determine all and every such suit and suits, as thereafter should be taken, commenced and pursued for the intent above specified; and thereupon to award, make and do execution by and upon the body, lands and goods of the party or parties that should be so condemned accordingly."

Statutes merchant, statutes staple, and recognizances in the nature of statute staple, are now out of use. But the powers and energies of those instruments are still in force in favour of

(a) Hob. 60. 2 Rol. Ab. 475. 2 Wms. Saund. 70, b.

(b) See Bunb. 233. West. 332, 3, &c. 2 Manning, Pr. 513. 4 T. R. 412. per Ashhurst, J. As to this statute in general. See 2 Bla, Rep. 1295. The

reader will observe, on perusing the following pages on this difficult subject, that the author derived considerable assistance from Mr. West's work on extents.

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the Crown. And since the statute of Hen. 8. the writ of extendi facias or extent, by which the sheriff is authorized in one writ to take person, goods, lands and debts, has been the constant execution at the suit of the Crown, against its own immediate debtor.

The writ of extent, as a prerogative process, is of two descriptions: one, called an extent in chief, issues for the benefit of the Crown against the Crown debtor, or his debtor, on the principle that the King is entitled to the debts due to his debtor; the other is called an extent in aid, and is issued against the debtors of the Crown debtor, at the instance and for the benefit of the latter.

Extents in chief are also of two descriptions: the one is called an immediate extent, that is, an extent which issues without the intervention of a scire facias, on an affidavit that the Crown debt is in danger; the other is an extent, which is the ultimate process of execution on a Crown judgment, obtained on a scire facias or other action, there being no affidavit that the Crown debt is in danger. The immediate extent is founded on the words in the 33 Hen. 8. which give the Court of Exchequer power to issue an extent, &c. " if (as is established by the affidavit of the debt being in danger) need shall require, or otherwise as to the court shall be thought, by its discretion (a), expedient (which discretion is evinced and expressed by the fiat of the Court or a Baron) for the speedy recovery of the King's debts."

Extents in chief are either issued against the immediate Crown debtor or against the debtor to such debtor. In the latter case the extent is called an extent in chief in the second degree. An extent is first sued out against the Crown's immediate debtor; on that extent an inquisition is held, under which debts due to the Crown debtor are found and seised into the Crown's hands. A second extent then issues on that finding against the debtor to the Crown debtor, under which second extent also an inquisition is taken, by which the debts

(a) "As to the statute 33 Hen. 8, I think that does not leave it to our discretion to alter the course and nature. of proceedings, or to do a thing that

was never done before, and may be of mischievous consequence." Per Baron Comyns, Stra. 760.

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due to that debtor are found and seised into the Crown's hands. A third extent then issues against the party so found to be a debtor by the preceding inquisition, and so on to the fourth degree, &c.

PART I.-Extents in chief.

SECT. I.-Commission to find Debts, and Inquisition thereon and herein of Debts due to the Crown.

It would be contrary to the first principles of law and justice, to issue process of execution before it is ascertained what debt is due to the Crown, and such debt become a debt on record. It may, therefore, be laid down, as a general rule, that till the debt, not being per se of record, be ascertained, and become a record by a commission and proceeding thereon, the Crown is not entitled to process of execution, unless in cases of danger, or insolvency, when an immediate extent may be issued, subject to the rules which will be mentioned. The Crown has no election on this subject. It is bound strictly by this principle.

With respect to the question, what is a debt of record? it seems, that at common law, there is no exception in the case of a Crown debt from the general rules prevalent on this subject in common cases. There are, however, some few excep

tions by statute.

By the statute 33 Hen. 8. c. 39. s. 50. it is enacted, "That all obligations and specialties, which shall be made for any cause or causes touching, or in anywise concerning, the King's most royal Majesty, or his heirs, or to his or their use, commodity, or behoof, shall be made to his Highness, and to his heirs, Kings, in his or their name or names, by these words, Domino regi, and to none other person or persons, to his use, and to be paid to his Highness by these words, solvend. eidem Domino regi, hæred.' vel executoribus suis, with other words used and accustomed in common obligations; and that all such obligations and specialties so to be made, shall be good and effectual in the law to all purposes and intents, and shall be of the same nature, kind, quality, force and effect, to all intents and purposes as the writings obligatory taken and acknowledged

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acknowledged according to the statute of the staple at Westminster had, at any time before the making of that Act, been taken, used, exercised, and executed against any lay person."

This statute, it will be remarked, gives the effect of records to those bonds only which are made for any cause concerning the King, and in the form therein prescribed; and it is, therefore, doubtful whether an obligation to the King, not saying 'hæred.' vel exec. 'suis,' is within the statute (a). It is, however, held, that a bond to the King, to be paid "to his heirs or successors," or conditioned "to account for monies received either on account of the excise, or on the private account of the obligee," or with a condition for causes touching the King, without shewing by what particular authority, or officer of the Crown, it was taken, is within the statute (b). And where the bond is within the statute, the remedy by extent is given to the King, though the bond be made not to him, but to another for his use (c)

Debts due from tax-collectors have, in certain cases, the effect of debts of record, it being enacted, by the statute 43 Geo. 3. c. 99. s. 41. that "whenever any money of the duties therein mentioned shall be detained in the hands of any collector, and the same or any part thereof cannot be recovered by or under the warrant or authority of the respective commissioners, or the said respective commissioners shall neglect to issue such warrant, then such part thereof which cannot be so recovered, which shall have arisen from the said duties, shall be recoverable as a debt upon record to the King's Majesty, his heirs and successors, with all costs and charges attending the same."

With respect, however, to simple contract debts, and bonds, and other specialties, not within the statute of 33 Hen. 8. the first step towards rendering such debts and bonds, records, on which an extent may be issued, is the issuing a commission, (which seems to be necessary as well by the equity of the sta

(a) Moore, 193. 1 Anderson, 129. Com, Dig. Dette, 9.

(b) Bunb. 58. 2 Brown, Parl. Cases, 575.

Lill. Ent. 423. West's Appeudix, 323. It is a quare whether a bond to the King, with condition to answer and pay the revenues of the duchy of

Cornwall to the Prince, is within this statute?

(c) 4 T. R. 413, 4. Bonds given by governors of proprietary colonies, for observing acts of trade, should be given in pursuance of the statute of Hen. 8. 1 Chalmers' Coll. Op. 259.

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tute of Westminster (a), as by express authority (b),) under which an inquisition is held to find the debt, and when returned, such inquisition becomes matter of record (c).

The commission is issued by the clerk in Court of the Crown, and is directed to two commissioners, whom it empowers to inquire, as well on the oaths of good and lawful men, &c. as by the testimony on oath of any other credible persons, (and as some of the precedents, &c. run, "by all other ways, means, and methods, whatsoever,") whether the defendant be not indebted to his Majesty in any and what sums of money, and to return the inquisition taken thereon at the return of the commission; and it also commands the sheriff (of Middlesex), in his character of sheriff, to cause a jury to attend before the commissioners; and it empowers the commissioners to summon before them witnesses, and it concludes "by warrant indorsed, and by the Barons (d).”

The "warrant indorsed," at the conclusion of the commission, is an indorsement of his name on the commission by a Baron, or the Chancellor of the Exchequer, and is the fiat or authority for its issuing. And although in practice, it seems, that the commission is not taken to the Baron to be indorsed, till after the inquisition has been taken on it, when the commission is taken to him for his indorsement, and the extent and affidavit for his fiat at the same time (e); still, if no application has been made for the warrant, and none has been obtained, the proceedings are irregular (f). The commission is vested in the name of the Chief Baron, and signed by the King's remembrancer, and sealed with the Exchequer seal. It may be issued and tested in the vacation, but must be returnable in Term (g).

The defendant is not entitled to notice of the execution of the commission on the extent; but, it seems, the Court will, on application, make an order that reasonable notice be given (h).

The usual, if not universal, practice is, to adduce no evi

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