ant to appear and plead thereto, or an extent to issue. If the defendant appear, then another four-day rule is given for him to plead, or an extent to issue; but if the defendant do not appear on the first rule, or appearing does not plead on the second rule, process of extent issues without any judgment on the scire facias. But judgments have been entered up for the King, on the defendant's default in not appearing, or in not pleading after appearance (a). And it is an indulgence in the court, that they do not enter up judgment; for if the judg ment were entered, then the Court would be concluded, though perhaps the defendant had no notice of the debt (b). Where the scire facias is returnable on the last day of term, a rule may be given to appear by the sealing day after such term; and, in default thereof, proceedings may be had as where there are days in term for giving such rules (c).

The defendant may obtain six weeks' further time to plead after the expiration of the four days, on a motion of course on the signature of counsel; and may, on affidavit of special circumstances, obtain further time after the expiration of the six weeks, by motion in court, on affidavit of special circumstances (d).

SECT. III.

Form, Teste, Issuing, and Return, &c.

Of Extents in chief.

THE extent, after reciting the bond, or the finding of the simple contract debt by the inquisition, taken by virtue of the commissioners, directs the sheriff (e) to omit not, &c., but to enter, &c., and take the defendant, and to inquire, on the oaths of good and lawful men, &c. what lands and tenements, and of what yearly values, the said defendant now hath, (if the extent be on a simple contract debt,) or had (if the extent be on a bond) on

the day of, (the date of the bond before recited,) or at any time since; and what goods and chattels, and of what sorts and prices, and what debts, credits, specialties, and sums of money, the said defendant, or any person or persons to his use, or in trust for him, hath in his bailiwick, and to appraise and extend all and singular the said goods and chattels, lands and tenements, &c. and to take and seize the same into the King's hands (a).

It then directs the sheriff to summon witnesses, and to return the writ. Then follows a proviso, that the sheriff should not sell the goods and chattels till he should be otherwise commanded; and it concludes (if on a simple contract), "by the said commission and inquisition, by warrant of Mr. Baron by the said Act of Parliament, made in the 33d year of the reign of the late King Hen. 8. and by the Barons (a)."

If the extent be on a bond, it concludes, " by the writing obligatory aforesaid, by the aforesaid Act of Parliament, &c. by warrant of Mr. Baron , and by the Barons."

The extent is tested by the Chief Baron, signed by the King's Remembrancer, and sealed with the Exchequer seal (b). If the extent be on a bond, it is not necessary (whatever may be the decision with respect to the question of issuing an extent against the obligor, in a bond to the Crown, before the bond be payable,) to set out any breach of the condition of the bond in the extent. It is sufficient in the extent, as it is in a declaration, or sci. fa., to set out the penal part of the bond, and the defendant must shew the condition in his defence, and all the forms are so (c). Where the debtor is already in custody, the extent may contain a clause of habeas corpus cum causá (d).

The writ of extent may be tested in vacation, for it issues out of the equity side of the Exchequer, which is always open; but cannot be tested before, though it may be tested on the day of the date of the Baron's fiat, which is the authority on which it issues, the fiat being in effect an award of execution (e). It

(a) West, 55.

(b) This is directed by statute 33 Hen. 8.

(c) See Tremaine, 637. Brown, 416, Tidd's Appendix. West, 57, and Ap

pendix, 18.

(d) Dyer, 197, a. 2 Manning, 517, 533.

(e) Stra. 749. Bunb. 164. 8 Rep. 171.

must

must be returnable on a general return day in Term; and, at least when the capias clause is introduced, is irregular if a Term intervene between the teste and the return (a). A mistake in the teste may be rectified, it appears, by the Baron's fiat (b).

The writ may be issued in vacation, and before the commission, when necessary is returnable, though not, it seems, before it is actually returned and filed (c).

Any number of extents may issue into different counties at the same time. Before or after the return of the first extent, any number of extents may issue with the same teste as the first extent, i. e. of the date of the fiat. If they issue before the return of the first extent, they may issue as a matter of course; if they do not issue till after the return of the first extent, a motion must be made in Court, on affidavit, of special circumstances (d), before they can issue. It seems, that the affidavit ought at least to state, that the effects seized under the first extent are insufficient to pay the debt.

If the teste be prior to the death of the defendant, the extent may, like any other execution (e), be issued against his effects after his death, on the ground that the fiat, with reference to which the teste is generally, if not invariably, inserted, binds his effects from the day on which it is dated (ƒ). And, as we shall hereafter observe, even an action at the suit of the Crown, does not abate by the death of the defendant (g).

If an extent be set aside for any irregularity, which does not effect the fiat, a new extent, tested as of the date of the fiat, may be issued (h). And from this it appears, that it is generally useless for the defendant to move to set aside an extent for any formal defect in it subsequent to the fiat, since a new extent of the same teste as the first may be issued, even if the defendant succeed in setting the first aside. But this observation does not apply to the case where a stranger moves to set aside an extent, under which his property has been improperly taken (i).

It appears to have been recently decided, that an extent may be issued on an inquisition and fiat of eight years' old, and that no new affidavit or fiat is requisite, nor is any proceeding by scire facias, or otherwise, necessary to revive such extent (a). As, however, the Court of Exchequer possess a discretionary power in these cases, and extreme hardship must generally ensue from this doctrine, it might perhaps have been as well to require at least a fresh affidavit of the continued insolvency of the defendant, and that an application should be made to the Court for leave to issue the extent by analogy to the case of executions, on old warrants of attorney(b). The ground of the decision, namely, that from the moment of the return of the inquisition, the debt becomes a debt of record, against which no time runs, and that where the King is a party a scire facias is not necessary to revive the record, is however indisputably true, though this application of it may perhaps be doubtful. And, as before observed, a scire facias seems necessary before seizure, if a year and a day have elapsed after office found (c). After that period, a presumption of payment might fairly be made.

Where a joint debt has been found, the death of one of the defendants, in the interval between the fiat and extent, does not vitiate the proceedings (d).

Though the sheriff need not file his return in the King's Remembrancer's office until the quarto die post of the return day, his power is determined on the actual return day (e). For a * false return the remedy is, by information in the Exchequer, in the name of the Attorney-General (ƒ).

SECT. IV.

When Immediate Extent may issue.-Affidavit to obtain it; and fiat thereon.

THE rule is, that simple contract debts and specialties, not included in the statute of Hen. 8. being rendered records by the return of the inquisition; and bonds within that statute, and certain other debts, being of themselves on the footing of records; the Crown may (without issuing a scire facias) on the wording of the statute 33 Hen. 8. c. 39. s. 55. issue an immediate extent, on an affidavit of the debt, and that it is in danger of being lost, in consequence of the insolvency or needy circumstances of the debtor, and on the fiat of a Baron (a). The immediate extent is founded on the presumption that the Crown would be prejudiced by the delay attending the ordinary proceeding by scire facias.

We have already considered in what cases an extent may be issued, especially with reference to the instances of a receiver of the Crown debt, and of the demand being grounded on a bond or bill of exchange not yet due (b).

It seems originally to have been held, that on a bond or recognizance to the King, for the performance of covenants, or other collateral things, a scire facias should always first issue, and not an immediate extent. But it was afterwards decided, and seems to be law, that on an affidavit of danger, and that the condition of the bond is broken, an immediate extent may issue in every case, as well where the bond is for the payment of a sum certain, as where it is for the perform⚫ance of covenants or other collateral acts (c).

The commission to find simple contract debts is always, as before observed, returnable in term; but the immediate extent for a simple contract debt, which extent is founded on the inquisition taken under that commission, may, and constantly

(a) Ante, Extents in general, and sect. 1. This is different from the writ of extent, as a final process, or process of execution, after a judgment in favor of the Crown, either in a seire facias or other action; or on a

judgment for a penalty, when, and not before, an extent, as final process issues without any affidavit. 2 Manning, 517, 521, 526, n. g. 574.

(b) Ante, s. 1.
(c) West, 47, 8.

does,