The extent prevails in favour of the Crown against a mere previous agreement with a third person, for the sale of the defendant's estate, though part of the purchase-money has been paid, because the conveyance not having been executed, the fee still remained in him (a). It seems also to be a general rule, that an equitable mortgage by deposit of title deeds will not hold against an extent (b). It will not at all events if such deposit be made by an accountant of the Crown in the hands of one who has an opportunity of knowing that the depositor is or may become a debtor of the Crown (c). Debts and Credits. The sheriff is also to seize debts and credits due to the defendant, and specialties his property, which leads us to the 6th Section. SECT. VI. Of seizing the Debts, Specialties, and Credits of the Crown Debtor, and herein of Extents in Chief, in the second degree, i. e. against Debtors to the Crown Debtor. UNDER the extent, it is the duty of the jury to inquire respecting the debts due from third persons to the Crown debtor, and his credits and specialties. The jury should in their inquisition find, and state, any special matter respecting such property, and such finding vests the debtor's rights and interests in the Crown; and though the seizure be nominal, the King is thereupon entitled to adopt measures against the defendant's debtors. And though extents in aid are properly limited in this respect, it seems, that the Crown may proceed against the debtors to those against whom the extent is issued, for its benefit, in infinitum, that is, to the remotest degree (d). It seems, that debts due to the defendant are bound as goods are from the fiat or teste of the extent, and not merely (a) Rex v. Snow, 1 Price, R. 220, note (b). (b) Rex v. Benson, Ibid. note (c). (c) Ibid. 216. (d) Hardr. 404. Com. Dig. tit. Dette, G. 15. Gilb. Hist. Excheq. 178. from from the caption of the inquisition under which they are found. This at least has been decided in a case where the defendant had become a bankrupt, and the debt had been assigned by the commissioners to the assignees, between the teste of the writ and caption of the inquisition (a). It has been subsequently held, that inquisitions are bad which merely state that the debt was due to the Crown debtor, on the teste of the writ, omitting "necnon die captionis inquisitionis (b)." Mr. West observes (c), that the distinction to be collected from these two cases seems to be this: "That payment of a debt to the Crown debtor, after the issuing of the extent, and before the caption of the inquisition, will discharge a party paying without notice of the Crown process; and, therefore, it is necessary that the inquisition should state that the party was indebted at both periods. But a mere assignment of the debt to the assignees of a bankrupt between the teste of the extent and caption of the inquisition, will not discharge the debtor as against the Crown." It is, however, apprehended, that if the debt is in one case bound from the fiat or teste of the writ, it would be in the other, and that the extent would over-reach even a bona fide payment, after the teste and before the caption, as it does boná fide alienations and sales of goods during that period. At least the contrary does not seem to be proved by the decisions, that the inquisition must state that the debt is due on the day of the finding. That statement may be necessary, in order to shew, that the debt is not destroyed by the operation of other circumstances than payment, and it is easy to conceive that there may be other events transpiring after the teste, which would destroy the debt, even as against the Crown. It should seem, that though the defendant has been paid the money, yet as that payment would, if the general effect here attached to the former decision be correct, be effectless, at least as against the Crown, the inquisition might correctly state, that the money was still due. No substantial legal reason can be assigned why debts should not be bound from the teste of the writ, as well as goods. In either case hardships may occur. And if the Crown can be bound by a subsequent payment of the debts, it seems (a) 7 Vin. Ab. 104. 1 Atk. 262. Bingham, 216. West, 327. (b) Bunb. 265. 2 Price, 396. West, 163 and 329. difficult difficult to prove why it should not equally be bound by an actual assignment of it, under a commission of bankrupt; for the Crown, as already observed, is in general bound by an actual assignment under a commission of bankrupt, if such assignment be executed before the teste of the writ. It is clear at the present day, that debts due to the Crown debtor on simple contract, may be seized under the extent (a); and the general rule seems to be, that any debt or credit due to the Crown debtor, for which the latter might maintain debt, covenant or indebitatus assumpsit, and which would support proceedings at the suit of the Crown against its immediate debtor if due from him, may be seized under the inquisition; as sums due on, and which lay in, account (b): and a liability, in futuro, on a bond, bill, or note, &c. then in existence, may be found on the inquisition (c); but process cannot, in general, be issued thereon, till the instrument be due (d). Nor can it issue at all, unless the debt be found and seized on the inquisition, upon the first extent (e). If the debtor to the Crown debtor have accepted a bill for the debt, drawn by the latter in favor of a third person, or payable to the Crown debtor, and which he has indorsed over; or have drawn a bill on a third for the debt in favor of the crown debtor, which has been acperson, cepted by the drawee, and such bills are not due at the time of the inquisition, the debt cannot be found under it (ƒ). On the same principle, that which the defendant could not alien, cannot be taken on the extent; as an annuity created in favour of the defendant, but subject to be suspended, in case of any act done to change or alien (g). Under an extent against one, the whole of the debts due to that one and another may be seized, but the other creditor seems to have a remedy, by proceedings in equity against the Crown for an account (h). The form of the extent shews that under an extent against several, the debts due to any one may be seized. So if one of the obligees in a bond be outlawed, the duty being intire is vested in the Crown, and the King cannot have a partner with him (a). But in favor of commerce, under an extent against one of several partners, only the interest and share of that one can be taken (b). Under the extent against the Crown debtor, the debts due to him are merely found by the inquisition, which amounts to a seizure in law. The sheriff cannot compel payment; that is effected by a scire facias or immediate extent, which are issued in the same manner and subject to the same rules, as are applicable in the case of an extent against the immediate Crown debtor. When the debts due to the Crown debtor are seized, that is, are found under the inquisition taken on the extent against the Crown debtor, they become debts to the Crown; and, if due (c), the same process may issue against the person owing them, as against the original debtor to the Crown, and the debtor to the King's debtor stands in the same situation. The ordinary mode of proceeding also for debts due to the King's debtor, is by "scire facias (d)," and where the debts are small, the Court may order a receiver to collect them, and pay them to the Deputy Remembrancer (e). But if, on an extent against the King's debtor, the inquisition find that B. is indebted to him, on return of the inquisition and affidavit made, that the money in B.'s hands is in danger, an immediate extent shall issue against B. (ƒ); even though there be reason to suppose that the King's debtor became so with intent to strip the rest of B.'s creditors. So if it be found by inquisition against a Receiver-General, that he has paid money over to A., an immediate extent may issue against A., for this is the King's money (g). It is held, that upon affidavit of debt and a Baron's fiat, an immediate extent may issue against the debtors to the Crown debtor, before the extent under which they are found to be debtors to the Crown debtor, is returnable (h); though it must (a) Ibid. Bro. Joint Ten. 34, 39. Oblig. 50; Forfeiture, 16. Plowd. 243, 259, 323. (b) Wightw. 50. ante, ch. 11. s. 3. (c) Ante, 305. (d) As to which see ante, sect. 2. (e) Bunb. 293. (f) Ibid. 24. 3 Price, 299. (h) Rex v. Pearson, 3 Price, 299. West, 242. be actually returned (a) before the second extent can issue. As soon as this debt due from the debtor to the Crown debtor, is recorded by the return of the inquisition under which it is found, the proceedings for the recovery of such debt are substantially the same as for the recovery of the debt to the Crown from its original debtor. SECT. VII. Venditioni exponas.-Order for Sale of Defendant's Lands, &c. Ir in pursuance of the rule which will be mentioned in the ensuing chapter, and in which the mode of resisting extents will be considered, no one appear and defend, a venditioni exponas issues; and under it all the defendant's goods, against which alone it is directed, may be sold, though their value far exceed the amount of the debt; unless the writ be indorsed to sell the amount of the debt only, as it sometimes is (b). No motion need be made to the Court to authorize the issuing of the writ, but the defendant is entitled to notice of the intended sale (c). The sheriff is to sell for the best price he can, and at least for that price at which the goods were appraised, and to have the proceeds of the sale before the Barons to be paid to them to the use of the Crown (d). If the sheriff cannot sell the goods for the appraised price, he should return that fact; and then a venditioni exponas issues for him to sell pro optimo pretio, without reference to the appraisement. The sheriff must make a return of the whole sum produced by the sale, when the Court will order it to be paid over, deducting poundage; and he must move the Court for any extra allowance to which he may be entitled (e). The sale of lands seized under an extent at the suit of the Crown, is, at the present day, regulated by the statute 25 Geo. 3. c. 35. which abolished the common law proceeding by a levari facias, concerning which much is to be found in the old (a) Rex . Pearson, 3 Price, 299. West, 242. (b) West, 219, 220. 2 Manning, Pr. 553, 4. As to sale on extents in aid, X 2 see post, pt. 2. s. 5. (c) Ibid. 2 Price's R. 155. (e) Price's R. 205. West, 220. |