dence of the debt before the jury, except the affidavit, which is prepared for the purpose of obtaining the immediate extent. On this affidavit, and this affidavit alone, usually, if not universally, the jury find the debt (a). If witnesses duly summoned refuse to attend, or to answer proper questions, the Court will grant an attachment (b). The statute 1 Hen. 8. c. 8. s. 2. (c) enacts "that every escheator and commissioner shall sit in convenient and open places, according to the statutes theretofore made. And that the said escheators and commissioners shall suffer every person to give evidence openly in their presence, to such inquest as shall be taken before any of them, upon pain of forty pounds." Upon this provision, which seems to be confirmatory of the common law, it is considered that the inquisition is irregular, if secretly and clandestinely taken, and that on the taking of the inquisition on the extent, a stranger has a right to prove his property in the goods seized (d). The Crown cannot be a sufferer by this doctrine, as a melius inquirendum may issue if the finding of the jury be dissatisfactory. At all events, per sons interested may appear on the execution of the writ and cross-examine the Crown witnesses: and as observed by C. B. Thomson," it would be hard to put the parties to the expense and trouble of traversing the inquisition; and irreparable injury may be done, when, if the evidence had been suffered to proceed, and had the question proposed been allowed to be put, the truth of the matter would have been shewn (e).” Simple contract debts, and specialties, not included in the (a) West, 22. (b) Parker, 269. Witness cannot refuse to answer a question which might render him liable to the Crown civilly for a debt, 46 Geo. 3. c. 37. (c) That the statute applies to inquisitions before sheriffs. 4 Co. 58, a. (d) Bunb. 233. This doubted in 3 Price, 454. As to the testimony of the claimant himself, 1 Fowl. 160. 6 Bac. Ab. 129, 30. (e) The King v. Bickley, Exch. Sittings, after M. T. 1816. The facts of this case are reported in West on Extents, p. 69, and the judgment in the Appen 3 dix, p. 330. S. C. in 3 Price 454. It appears that the Court did not decide on the express point in Bunbury, but held the inquisition irregular specifically on the ground that the under-sheriff had refused to suffer a cross-examination of one of the Crown's witnesses, on a question which related not only to the property in the goods seized being in a stranger, but brought under consideration the character in which the defendants had the goods and related to their possession of them. But C. B. Thomson seemed to approve of the decision in Bunbury. See S. C. 3 Price's R. 463. statute statute 33 Hen. 8. should be found by the inquisition; and should it seems be stated and explained therein with some degree of legal form and certainty (a). The inquisition, being an office not of information but of entitling (b), is bad if argumentative, or if it be not direct and positive, so that no certain traverse can be taken on it (c); as where the inquisition stated, that a manor was holden, &c. " as it appeareth by, &c. (d)," and facts, not evidence, should be found (e). The inquisition may however find a particular estate, without tracing its origin, so that the precision of a plea is not necessary in these cases (ƒ). And on the rule utile per inutile non vitiatur, if the necessary facts be. properly stated, the finding of a mere matter of law, may be rejected as surplusage (g). As the inquisition is engrafted on, and becomes part of the record, it may for defects of this nature on the face of it, be demurred to, or set aside on motion to the Court. Where a part of the debt on which the inquisition is founded is invalid, the inquisition may be set aside pro tanto only (h). And the quashing an inquisition will not it seems preclude the Crown from taking an inquisition on a new writ of extent of the teste of that quashed (i). With respect to the nature of the debts to be found under the inquisition, the general criterion seems to be whether the demand is of such a nature that an action might be maintained against the debtor, were the debt due to a subject (k).. It being now held that an action is sustainable for monies. which lie in account, and though there be complicated cross accounts (), it seems that such monies may be found, as debts under the inquisition. So that the antient Crown proceeding by a distringas ad computandum, on the finding of the jury, is disused (m). (a) West, ch. 5. 3 Price, 269. (8) See ante, this ch. (c) See 3 Price, 269, 274. (d) 13 Co. 72. Inquisition set aside for not saying in what county taken; for saying diversa messuagia, without naming them; for not stating in what county lands lie. Jones IER Memorande, tit. Inquisitio. (e) 3 Price, 269. (S) 2 Manning, 535, notes (c) and (d). (g) 2 Manning, 535. Pleader, S. 28. Com. Dig. (m) 2 Manning, Pr. 527, 530, 541... West, 26, 33. Whether the defendant can have credit given him depends on the right to set off against the Crown, as to which see post, ch. 13. s. 3. div. 3. With respect to a receiver of the King's money, the rights of the Crown are in some respects of a more peculiar nature. The general rule is, that if a man receive the King's money (as a collector of taxes, &c.), knowing it to be so, he may be treated as an accountant or debtor to the King, though he received the money bona fide without any, or under an insufficient, appointment from the Crown: otherwise if he do not know it to be the King's money (a). The leaning is against constructive receipts of the King's money, therefore where A. being the receiver of the King's money, drew a bill on B. payable to the excise, expressing that' it was the King's money, and remitted to B., who accepted the bill, an indiscriminate mass of bills and cash, not to answer the bill in question in particular, but upon a general running account between A. and B. it was determined that B. could not be considered a receiver of the specific money of the King (b). In general, debts due from a receiver of the King's money, are on the footing of simple contract debts only, and are not records; but in the case of collectors of taxes, debts due from them are, as before observed (c), sometimes to be considered as of record. In cases where bonds, bills of exchange or promissory notes, have been given to the Crown or its agents, it is frequently a most important matter of investigation whether or not either of the parties to such instruments can be considered a receiver of the specific money of the King, for the Crown never relinquishes its claims on such receiver, and may issue an extent against him before the bill or note (and it seems before a bond (d), whether given immediately to the Crown or not) has become due (e). This claim on the actual receiver of its money is however peculiar, and where the Crown holds bonds, bills or notes against parties who cannot be considered receivers of the specific money of the Crown, it is clear that such parties are not liable to proceedings by extent, &c. till the instrument be due (ƒ). And in a late case (g) it was held that a plea to an extent in aid, stating that the defendant had accepted a bill drawn upon him by the original debtor, and which did not become due till the day after the inquisition was taken, is good, although the defendant had refused payment,. and the original debtor to the Crown had been obliged to take it up. It would be rank injustice to permit the Crown by a prerogative anticipation of the forfeiture of a bond, or maturity of an acceptance, or note, to fall suddenly on a party, who, having no public money in his hands, had no reason to expect summary proceedings, and who naturally deferred providing funds to answer demands then only in abeyance, till the time for payment arrived. Where the receiver is the drawer or acceptor of a bill which is not due, the extent is against him in his character of receiver, and not of drawer or acceptor. As an unsettled balance between partners will not support an action by one against the other, such an interest cannot be seised as a debt, or returned under an inquisition to find debts (a). If the Crown be dissatisfied with the finding of the jury, as to the defendant's property in the goods seised under the extent, a melius inquirendum or further inquiry, under the same commission, may be issued (b). SECT. II. Of the Scire Facias to justify the issuing of the Extent in chief. THE general rule is, that an extent being process of execution, cannot issue without a scire facias (founded on the inquisition which renders the debt a debt of record), to bring the defendant into Court and afford him an opportunity of pleading any defence he may have. And the Crown has no election in this respect, so that unless in case of insolvency, justifying an immediate extent, a scire facias is absolutely necessary; and where the defendant becomes insolvent, pending the proceeding by scire facias, it is usual to abandon the extent and resort to a scire facias (c). This, and not the revival of the suit, is the (a) 2 Manning, 527, 548. (b) 2 Ves. 555. 8 Rep. 168. Ante, 258. (c) 3 Price, R. 292, 296. ground ground on which a scire facias is in general necessary, previous to the issuing of extents. As no time runs against the King, a scire facias is, generally speaking, unnecessary to revive proceedings at his Majesty's suit (a). When bonds for the performance of covenants are assigned to the King, a scire facias is necessary as the first process (b). There is an exception under the statute 33 Hen. 8. as we have already seen, if the debt be in danger of being lost and that fact be verified by affidavit. In such case an immediate extent, which is in the nature not of an action but of an execution, may be issued; but if no such affidavit can be made, a scire facias must be issued, the Crown debt being of record either as a judgment or recognizance, or as a bond within the 33 Hen. 8. or as any other specialty or a simple contract debt, recorded by inquisition under a commission. The scire facias is under the seal of the Court of Exchequer, and signed by the King's Remembrancer, and tested by the Lord Chief Baron. It recites the inquisition, or the bond, or recognizance, &c. and commands the sheriff to warn the defendant to appear before the Barons on a day certain, to shew cause why the debt should not be levied. The scire facias, though it may be sued out in vacation, must be tested in term, And therefore a scire facias cannot be sued out in vacation, on an inquisition taken under an extent which has been sued out, and is consequently tested in that vacation; because as the scire facias, if sued out in vacation, must be tested as of the antecedent term, and must recite the inquisition in such case as the foundation of it, it would appear in such case that the scire facias was sued out before the inquisition on which it was founded, was taken. And the Court quashed such a scire facias on motion (c), and ruled that the objection could not be got rid of by a special memorandum upon the record, shewing the day on which the scire facias was really issued. If the sheriff warn the defendant, he returns scire feci (d). If he do not warn him, he returns nihil (e), in which last case a second scire facias issues. On the return of scire feci or of two nihils, a four-day rule is given on the writ for the defend (a) 2 Salk. 603. 1 Price, 295. (d) Tremaine, 609. West, 317. (e) Tremaine, 609. ant |