Abbildungen der Seite
PDF
EPUB

books, and under which only the rents and growing profits of the lands were levied, and the prolix and inconvenient remedies given by the statute of Eliz. (a). The 25 Geo. 3. enacts, that it shall and may be lawful to and for his Majesty's Court of Exchequer, and the same Court is thereby authorized, on the application of his Majesty's attorney-general, in a summary way, by motion to the same Court, to order that the right, title, estate and interest of any debtor to his Majesty, his heirs and successors; and the right, title, estate and interest of the heirs and assigns of such debtor, in any lands, tenements or hereditaments which have been or shall hereafter be extended under and by virtue of any such writ of extent or diem clausit extremum as aforesaid, or so much thereof as shall be sufficient to satisfy the debt for which the same shall have been so extended, shall be sold in such manner as the said Court shall direct; and that when a purchaser or purchasers shall be found, the conveyance of the lands, tenements or hereditaments so decreed to be sold, shall be made to the purchaser or purchasers, by his Majesty's Remembrancer, in the said Court of Exchequer, or his deputy, under the direction of the said Court, by a deed of bargain and sale, to be inrolled in the same Court; and that from and after the making of such conveyance, and the inrolment thereof as aforesaid, the bargainee or bargainees in such conveyance, and his or their heirs, executors, administrators and assigns, shall have, hold and enjoy the lands, tenements and hereditaments therein comprised, for his and their own respective use and benefit, not only against the extent of the Crown, but also against such debtor of the Crown, or the surety or sureties for such debtor, and all persons claiming under such debtor, or the surety or sureties, unless by a title paramount to, and available in law against such extent as aforesaid: and all monies which shall become payable from any such purchaser or purchasers as aforesaid, shall be paid, accounted for and applied towards discharge of the debt due to the Crown, and of all costs and expenses which shall be incurred by the Crown in enforcing the payment of such debt, in such manner as the said Court of Exchequer shall from time to time order and appoint; and if, after payment of the whole debt to the Crown, and of all costs and

(a) See 13 Eliz. c. 4. s. 2. 27 Eliz. c. 3. s. 2. 39 Eliz. c. 7.

expenses

expenses incurred in enforcing the payment thereof, there shall be any surplus of the monies arising from any such sale, the said surplus shall belong to the same person or persons as would be entitled to the lands, tenements or hereditaments sold, if there had not been a sale thereof, and shall accordingly be paid to such person or persons, under the order and direction of the said Court of Exchequer, upon motion or petition to the said Court, to be made upon such notice to the Crown, and to be supported by such affidavits or other proofs, as to the said Court shall from time to time seem just and reasonable." And by the 2d sect. the Court of Exchequer is enabled to order the production of title deeds.

By virtue of this statute the express leave of the Court must be obtained before the defendant's lands can be sold, and the Court seems to possess a species of legal discretion in granting this leave. The lands are to be sold " in such manner" as the Court shall direct, and the Court will not make an order for the sale, if goods sufficient to pay the debt have been seized, under the extent (a).

It is observable also, that the party's lands are to be sold only to the amount of the debt.

As before observed an equity of redemption may be taken under the extent (b), but the Court will protect the interests of the mortgagee. The mortgagor's interest alone should be disposed of, and the mortgagee is entitled to notice of the inotion, on an order to sell it (c). If the whole estate be sold and the proceeds of the sale paid into Court, the Crown will not be allowed on motion to satisfy the mortgagee, but the Court will order a reference to the deputy remembrancer to ascertain what is due on the mortgage (d). So in the case of a claim of dower (e): or where it is necessary and just that the exact sum due to the Crown for principal and interest, &c. should be ascertained (ƒ).

(e) 3 Price, 40. S. C. in West, 177. 225.

(b) Ante, sect. 5, Lands.

(c) 1 Price, 207. 2 Price, 67.

(d) Ibid.

(e) Ibid. 71.

(f) Ibid.

SECT.

SECT. VIII.

Costs.

WITH respect to costs, the general rule is, as observed by Sir Wm. Blackstone (a), that "the King (and any person suing to his use (b)), shall neither pay nor receive costs; for, besides that he is not included under the general words of the statutes relative to costs, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them." It seems that the statute 43 Geo. 3. c. 46. s. 5. which enacts, "that in every action in which the plaintiff shall be entitled to levy under an execution against the goods of any defendant, such plaintiff may also levy the poundage fees and expenses of the execution, over and above the sum recovered by the judgment," does not extend to the Crown. For none of the many statutes respecting costs and poundage have ever been held to extend to the Crown, where it has not been specially named; and this statute has no words which would embrace the Crown more than the several statutes anterior to this: and besides, the extent is not an action, but an execution (c).

Some exceptions to the general common law rule, that the Crown is not entitled to costs, have however been justly introduced by the legislature; and it would be but reasonable that the Crown should in all cases be entitled to its expenses, which sometimes exceed the amount of the debt.

1. The statute of extents, 33 Hen. 8. c. 39. s. 54. enacts, that "the King in all suits hereafter to be taken in or upon any obligation or specialties made or thereafter to be made to the King, or any to his use, shall have and recover his just debts, costs and damages, as other common persons use to do in suits and pursuits for their debts."

This statute does not it will be perceived relate to simple contract debtors; even when their debts are rendered records by the inquisition on the commission to find debts: but is con

(a) 3 Bla. Com. 400. 1 Anstr. 50. 7 T. R. 367. Costs on Quo Warranto. 9 Ann. c. 20. s. 5. 1 Burr. 402, 407, 8.

(b) Stat. 24 Hen. 8. c. 8.
(c) See 7 T. R. 567. West, 238.

fined to debts by bond or other specialty originally made to the King or to any one to his use (a).

66

2. In all cases where lands are sold by virtue of the 25 Geo. 3. c. 35. the monies produced by the sale are as we have just seen to be applied towards discharge of the debt due to the Crown, and of all costs and expenses which shall be incurred by the Crown in enforcing the payment of such debt." It is frequently therefore important for the Crown that the defendant's lands should be seized and sold under the extent, and, as before observed, if the defendant apply to pay the debt into Court, he must pay costs too, if, under the circumstances, the Crown would on succeeding be entitled to sell the party's lands. But the Court will not compel him to pay costs into Court with the debt, if the goods seized, on the sale whereof no costs are in general allowable, be sufficient, though there be lands also; because it is a rule that the defendant's lands shall not be sold if the goods are sufficient, and the Court will not make an exception to this rule merely that the Crown may get its costs (b). It seems that the Crown may, by extending its debtor's lands only, secure its costs, though the defendant is amply supplied with goods.

On the sale of lands under an extent, the sheriff is not entitled to poundage (c), and therefore it cannot constitute an item of costs payable by the defendant to the Crown.

3. By the statute 43 Geo. 3. c. 99. s. 41. collectors of taxes are in certain cases liable to costs in proceedings at the suit of the Crown.

A Crown solicitor's bill of costs may be taxed (d), by the deputy remembrancer (e). If costs are levied when not due, the Court will on motion order them to be refunded (ƒ).

(a) 1 Price, 434. But when the Court grant any indulgence, they sometimes make it a condition that costs shall be paid. Hardr. 136. (b) Aute, 309.

(c) Post, 312, 314.
(d) West, 230.
(e) 3 Price, 280.
(f) 1 Price, P. 448.

SECT.

SECT. IX.

Poundage.

Ar common law, poundage was not due on an extent. But it is enacted, by the 3 Geo. 1. c. 15. s. 3. that "All sheriffs who shall levy any debts, duties, or sums of money, whatsoever, except post fines, due or thereafter to become due to the King's Majesty, his heirs or successors, by process to them directed, upon the summons of the pipe or green wax, or by levari facias, out of the Court of Exchequer, shall from time to time, for their care, pains, and charges, and for their encouragement therein, have an allowance upon their accounts, of twelvepence out of every twenty shillings, for any sum not exceeding one hundred pounds, so by them levied or collected; and the sum of sixpence only for every twenty shillings, over and above the first one hundred pounds; and for all debts, duties, and sums of money, except post fines, due or to become due to his Majesty, his heirs and successors, by process on fieri facias and extent, issuing out of any of the offices of the Court of Exchequer, the sum of one shilling and sixpence out of every twenty shillings, for any sum not exceeding one hundred pounds, so by them levied or collected; and the sum of twelve pence only for every twenty shillings over and above the first one hundred pounds. Provided always, such sheriff shall duly answer the same upon this account, by the general sealing day of such Term, in which he ought to be dismissed the Court, or in such time to which he shall have a day granted, to finish his said accounts, by warrant signed by the Lord Chief Baron, or one of the Barons of the coif of the said Court for the time being, and not otherwise."

And by section 13, "For preventing of oppressions and injuries, which may happen to his Majesty's subjects, by the abuse of sheriffs, bailiffs, and others, employed in levying and collecting any debts, duties, or sums of money, due or thereafter to become due to his Majesty, his heirs or successors, by process of the Court of Exchequer;" it is enacted, that "No sheriff, under-sheriff, bailiff, or other person, employed in levying or collecting any of the said debts, duties, or sums of money, shall take, ask, or receive any fee, gratuity, or reward, whatso

« ZurückWeiter »