SECT. II.

To what degrees Debts may be seized on Extents in aid.

It seems from the older authorities that the King may, on process of extent prosecuted at his instance, and for his benefit, seize the debts due to his debtor, &c. in infinitum, i. e. to the remotest degree (a). It is not, however, so clear to what degree the Crown debtor may use the process by extent. According to the antient books, debts cannot in such case be seized beyond the third degree, counting the Crown debtor as one of them (b); and consequently only the debtor of the debtor to the Crown debtor could in such case be reached. But in the King v. Lushington (c), the Court of Exchequer held, that the Crown debtor is not to be counted as one of the degrees, and therefore the process may be used even to the fourth degree, counting him, or to the third, omitting him. In that case Austen and Co. were the original Crown debtors, Boldero and Co. were indebted to Austen and Co., the Lushingtons to Boldero and Co., and Miss Dehany to the Lushingtons; and on an extent against the Lushingtons, which had issued after extents against Austen and Co. and Boldero and Co., the debt due from Miss Dehany to the Lushingtons had been seized; and the Court held that this debt had been properly seized, and that on the ground that the Crown debtor was not to be counted in reckoning the degrees.

SECT. III.

What Crown Debtor may issue an Extent in aid.

BEFORE the statute 57 Geo. 3. c. 117., the doctrine of extents in aid for the benefit of the Crown debtor, had been carried to an almost unqualified length, and there were but few Crown debtors who were not entitled to convert to their own private

(a) Hardr. 405. Com. Dig. tit. Dette,

G. 15.

(b) Lane, 111, 12. Parker, 16, 259. (c) 1 Price, R. 95.

benefit

benefit, a species of execution which should be confined to the Crown. The unjust effect this frequently had on the funds of a debtor by affording an undue preference called loudly for a remedy, which was accordingly provided by the legislature.

By the above-mentioned statute, it is enacted, (Section 4.), "that from and after the passing thereof it shall not be lawful for any person or persons, companies or societies of persons, corporate or not corporate, who shall or may be indebted to his Majesty by simple contract only; nor for any such person or persons, companies or societies, who shall or may be indebted to his Majesty by bond for answering, accounting for, and paying any particular duty or duties, or sum or sums of money, which shall arise or become due and payable to his Majesty from such person or persons, companies or societies respectively, for and in respect, and in the course of his or their particular trades, manufactories, professions, businesses or callings; nor for any sub-distributor of stamps who shall have given bond to his Majesty; nor for any person who shall have given bond to his Majesty, either jointly or separately, as a surety only for some other debtor to his Majesty, until such surety shall have made proof of a demand having been made upon him on behalf of his Majesty, in consequence of the non-performance of the conditions of the bond by the principal, and then only to the amount of the said demand; to sue out and prosecute any extent or extents in aid, by reason or on account of any such debt or debts to his Majesty respectively, for the recovery of any debt or debts due to such person or persons, companies or societies, or to such sub-distributor of stamps or surety as aforesaid; and that all and every commissioner and commissioners to find debts, extent and extents in aid, and other proceedings which shall be so issued or instituted at the instance of or for such simple contract or bond debtor or debtors respectively, and all proceedings thereupon shall be null and void: Provided always, that nothing herein contained shall extend or be construed to extend to preclude or prevent any persons who shall or may become debtor or debtors to his Majesty by simple contract only, by the collection or receipt of any money arising from his Majesty's revenue for his Majesty's use, from applying for and suing out any commission or commissions, extent or extents in aid, in case one or more of such persons shall be bound to

his Majesty by bond or specialty of record in the said Court of Exchequer, for answering, securing, paying over or accounting for to his Majesty, the particular duties or sums of money which shall constitute the debt that may be so then due, from such person or persons to his Majesty (a); any thing hereinbefore contained to the contrary notwithstanding. "Provided, nevertheless, and be it further enacted, that no extent in aid shall be issued on any bond given by any person or persons as a surety or sureties for the paying or accounting for any duties which may become due to his Majesty from any body or society, whether incorporated or otherwise, carrying on the business of insurance, against any risques either of fire or of any other kind whatever (b).”

SECT. IV.

For what Sum an Extent in aid may be issued.-Affidavit and

Fiat.

THE 57 Geo. 3. c. 117. s. 1. after reciting that extents in aid have, in many cases, been issued for the levying and recovering of larger sums of money than were due to his Majesty, by the debtors on whose behalf such extents were issued, and that it was expedient to prevent such practice in future, enacts, “That upon the issuing of every extent in aid, on behalf of any debtor to his Majesty, after the passing of the Act, his Majesty's Court of Exchequer at Westminster, or the Chancellor of his Majesty's Exchequer, or Lord Chief Baron, or other Baron of the said Court, granting the fiat for the issuing of such extent in aid, shall cause the amount of the debt, or sum of money, due or claimed to be due to his Majesty, to be stated and specified in the said fiat; and that in all cases in which the debt or debts found due to the debtor of his Majesty, shall be equal to or exceed the debt stated and specified in the said fiat as afore

(a) It should seem, that since this Act, the bond to the Crown must be forfeited before the extent in aid can be issued by the obligor. See 1 Price, 202.

(b) As to extents in aid of sureties in general. See 2 Manning, Pr. 565, &c. 1 Wightw. 1.

said, the amount of the debt so stated and specified in the said fiat, shall be indorsed upon the writ, and the writ so indorsed shall be deemed to be, and be, the authority and direction to the sheriff or other officer who shall execute such writ, in making his levy and executing the same, as to the amount to be levied and taken under the said writ; and that in all cases in which the debt or debts found due to the debtor to his Majesty, shall be of less amount than the debt stated and specified in the said fiat as aforesaid, the amount of such debt or debts found due to such debtor to his Majesty, shall be indorsed upon the writ, and the writ so indorsed shall be deemed to be, and be, the authority and direction to the sheriff, or other officer, who shall execute the said writ, in making his levy and executing the same, as to the amount to be levied and taken under the said writ; and that the money levied, taken, recovered, or received, under or by virtue of every such extent in aid so prosecuted and issued, shall be, by order of the said Court, paid over to and for his Majesty's use, towards satisfaction of the debt so due to his Majesty as aforesaid."

There is some difference between the affidavit for an extent in aid, and the affidavit for the extent against the original debtor to the Crown, which we have already considered (a). In the affidavit for an extent against the original debtor to the Crown, it is necessary to swear to the fact of the debt being due, as the affidavit is the only evidence of that fact; no evidence of the debt being laid before the jury, on finding the commission, according to the present practice, but the affidavit. But on the taking of the inquisition under the first extent, on which the debt due to the Crown debtor is found, evidence of that debt is always laid before the jury; and, therefore, all that is necessary to swear in the affidavit for the extent in chief in the second degree is, that the defendant was found indebted under the inquisition, (which is, in fact, merely identifying the defendant with the party found to be indebted under the inquisition,) and that he is insolvent. As to the allegation of insolvency, the observations made on that part of the affidavit for the extent in the first degree, will of course apply here, and to every affidavit for an extent (b).

The affidavit which is necessary to obtain an extent in aid

(a) Ante, 277.

(b) West, 243.

Y

states

states-1st, The debt due to the Crown from the Crown debtor, who is the prosecutor of the extent in aid. 2dly, It states the debt due to the Crown debtor from his debtor, who is the defendant under the extent in aid. 3rdly, That such debt is in danger of being lost from the insolvency of the defendant. 4thly, That the debt due to him is a debt originally and bona fide due to him without trust. 5thly, That it has not been put in suit in any other Court. And, 6thly, That the Crown debtor is thereby less able to pay the debt due to the Crown. If the debt be by bond, it sets out the penal part of the bond; and, as has been before mentioned, usually proceeds to state, that the obligor has received money, for which the party is accountable by the condition of the bond (a).

1. The necessity of the allegation of the debt due to the Crown, from the prosecutor of the extent, which allegation is not required in the affidavit for an extent, in the second or other degree, for the benefit of the Crown, is apparent, from this consideration, that on the latter extent there has been already an affidavit of the debt due to the Crown, in order to obtain the first extent; but on the extent in aid, for the benefit of the Crown debtor, there is no affidavit or proof of the debt to the Crown, till the affidavit is made for the extent in aid.

2 & 3. With respect to the allegation of the debt from the defendant to the Crown debtor, and the danger of its being lost, the observations which have been before made on those points, as to the extent in chief, will apply to this affidavit for an extent in aid (b).

4 & 5. The allegations that the debt due to the Crown debtor is a just debt, originally and bonâ fide due and without trust, and that it has not been put in suit in any other Court, are rendered necessary by the rules of the 15 Car. I. by one of which it is ordered, "that no debts be assigned to the King, nor found by inquisition for the King's debtors or accomptants in aid, save such as are originally due to them bonâ fide, without any manner of trust, and according to the directions and instructions hereafter following, viz. he who desireth any debt or debts to be found by the inquisition in his aid, shall take this oath the said B. maketh oath the day and year above written, that he is justly indebted unto A. one of the farmers of

(a) West, 275, 6. 2 Manning, 575.

(b) Ante, 277.