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his Majesty's customs, &c. and that the same debt is a just and true debt, originally due to the said A., bonâ fide without any manner of trust, and that the said debt hath not been put in suit in any other Court, and that he hath not received the same nor any part thereof, except so much, &c.; and that C. is justly indebted to him the said B., originally and bonâ fide without trust; and that C. is much decayed in his estate, so that unless a speedy course be taken against the said C., the said debt by him owing is in great danger to be lost."

And though these rules have been said by the Court in some instances to be obsolete, yet that observation must be confined to such of these rules as do not appear to have been acted upon; but where the practice shews that they have been adhered to, in those points they are still considered as binding. And as far as respects the allegations at present under consideration, all the affidavits for extents in aid, prove that these rules have been adhered to, and these allegations considered necessary ingredients on the affidavit (a).

With respect to the allegation in the affidavit, that the debt to the Crown debtor is due "originally and bona fide and without trust," it is said to have been decided in the case of the King v. Mainwaring (6), that this express allegation is not indispensable; but it seems that this decision is only applicable to cases in which it is evident that the debt could not be a trust debt, or not originally due to the prosecutor of the extent, and is not applicable to cases where the debt might been a trust debt, and not originally due to the prosecutor of the extent (c). It has been the uniform practice to insert this allegation in the affidavit, and the practice of inserting the other allegation, viz. that the debt had not been put in suit, was, in the case of the King v. Boyes (d), considered to be decisive of the necessity of such allegation. And it seems perfectly clear that an extent in aid cannot be maintained for a debt which is not originally bona fide due to the prosecutor of the extent, but which has been assigned to him for the purpose of enabling him to use the Crown process for the recovery of it (e).

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With respect to the allegation in the affidavit that the debt has not been put in suit, it may be observed, that it is doubtful on the rule of Court whether that allegation applies to the debt which is sought to be recovered by the extent in aid. However, it has always been usual in affidavits for extents in aid, to state that the debt for which the extent in aid issues, has not been put in suit; and the practice is the best interpreter of the rule. And accordingly in two different cases lately, the Court of Exchequer has held, that if a debt has before been sued for either, by proceeding in equity, or by attachment in the Lord Mayor's Court, an extent in aid should not issue for it (a).

6. As to the allegation, that the prosecutor of the extent is less able to satisfy his Majesty, it is apprehended that the omission of this allegation would not be material. For the words themselves seem to have no more meaning than that which must necessarily follow from the facts stated in the affidavit, viz. that the prosecutor of the extent is indebted to the Crown, and the defendant to the prosecutor of the extent (b).

In order to procure the fiat for the extent in aid, for the benefit of the subject, the course of proceeding at present in practice, is this (c): a commission and inquisition in the case of a simple contract debt to the Crown are engrossed; the statement of the debt to the Crown from the prosecutors being taken in each of these proceedings from the affidavit; an extent pro formâ against the Crown debtor, and inquisition thereon, are also engrossed, the statement of which is likewise taken from the affidavit; the commission and inquisition thereon, the extent pro formâ and the inquisition thereon, are then laid before the jury, together with the affidavit; and on that affidavit, which is the only evidence, they find the inquisitions as before engrossed. The commission and inquisition thereon, and the extent pro formá, and the inquisition thereon, with the affidavit, are then taken to a Baron of the Court or the Chancellor of the Exchequer; and he indorses his initials

(a) 2 Price, 379. West, 282, &c. But may abandon scire facias and proeeed by immediate extent if insolvency, 3 Price, 288.

(b) See Phillips v. Shaw, 8 Ves. Jun. 241.

(c) West, 288.

on

on the commission, which, as before-mentioned, is the warrant for its issuing, and signs his fiat for the extent in aid at the foot of the affidavit, at the same time.

If the Crown debtor be a debtor by bond, then of course no commission issues; but the affidavit and extent pro formá, and the inquisition thereon merely, are laid before the jury, on which affidavit, as the only evidence, the jury find the facts already stated in the inquisition. For the extent in aid for the Crown, there is usually but one fiat, namely that for the extent in aid, which is the second extent, it not being very usual to grant a fiat for the first extent, i. e. the extent pro formá, though that is sometimes done.

It has been the practice of late for the Barons to grant fiats for extents in aid of bond debtors to the Crown, on the affidavit merely, without the production of the bond. The rule of Court 3 W. and M. by which "it was ordered that one of the Barons of the Court be attended with the bond, wherein the party is indebted to the King, before any extent do issue to find debts in aid, without specialty in the vacation time; and that no extents do issue in the term time to find any debts in aid without specialty, but by motion in open Court," being one of those rules which has been considered as obsolete. But some of the Barons have lately signified that the bond should be produced (a).

No motion in Court is now necessary in term time, in order to procure an extent in aid for any debts, whether by simple contract or otherwise, though the 5th of the rules 15 Car. and the rule 3 W. and M. formerly required a motion in Court for an extent in aid, for a simple contract debt (b).

SECT. V.

Form of.--What may be taken.- Motions.-Pleading.—Costs.Poundage, &c.

THE form of an extent in aid is the same as that against the Crown debtor, with the exception of the recital of the debt. Under an extent in aid, the sheriff is to take the body, goods,

(a) West, 290.

(b) Ibid. 291. 2 Price, 15.

lands,

lands, debts, credits, specialties, and sums of money, of the defendant, in the same manner as under an extent against the Crown's first debtor; the goods, debts, &c. of the debtor of the Crown debtor, being bound in the same manner as the goods, debts, &c. of the Crown debtor, on the first extent; and all the observations before made in this particular, with respect to the first extent in chief, will apply to the extent in the second degree. But with respect to the lands of the Crown debtor's debtor, which the sheriff is directed to seize, under the extent in chief in the second degree, they, of course, are bound merely from the recording of the debt from the Crown's debtor's debtor to the Crown debtor under the inquisition; unless, indeed, the debt due to the Crown debtor be by judgment or recognizance, in which cases the Crown of course takes the lien of the plaintiff in the judgment, or conusee in the recognizance, on the land of the defendant or the conusor, which they had at the time of the judgment entered, or recognizance acknowledged. But by 57 Geo. 3. c. 117. s. 1. before cited, the officer is to seize only to the amount of the debt due to the Crown debtor. The defendant's body may be taken under an extent in aid; but the 57 Geo. 3. c. 117. s. 6. affords such defendant relief, by enabling him to apply to the Court of Exchequer for his discharge, on giving a month's notice to his creditor, and making a true disclosure of his property, and the Court has a discretion to discharge him quoad such his imprisonment.

Besides the motions which may be made against an extent for the benefit of the Crown, and which will be considered in the next chapter, the defendant on an extent in aid may, it seems, move to set it aside, on the ground that no debt was due to the Crown from the alleged Crown debtor. It may also be moved, to set it aside the extent in aid, on the ground of the insufficiency of the affidavit on which it is founded, or that the party fraudulently procured himself to become a debtor to the Crown, for the purpose of using the Crown process (a), or that the prosecutor of the extent in aid sued it in breach of good faith, &c. (b).

The Court will not (c), in exercise of its equitable jurisdiction over extents, grant a writ of amoveas manus, to release property seized under an extent in aid against a debtor in a more

(a) West, 295, 6.
(b) West, 297.

(c) 1 Price, R. 96.

remote

remote degree, on the ground that the debt which had been found on the original commission to be due to the King's debtor has been subsequently satisfied, by the payment of bills of exchange deposited with him for the securing that debt; if it appear that those bills were not the bona fide property of the person depositing them, who thereby committed a breach of trust; because the Court will consider, that the real proprietors of the bills have a paramount claim on the person with whom they had been so deposited, if he has been satisfied his debt by other means.

It is provided by the 57 Geo. 3. c. 117. s. 2. that if on an extent in aid on behalf of the Crown debtor, there be levied and produced more than the sum due to the Crown debtor, the overplus shall be paid into the Court of Exchequer, with the principal sum indorsed on the writ, and the Court may, on summary application, make such order for the return, disposal, or distribution, of any such surplus, or any part thereof, as shall

appear proper.

In pleading to an extent in aid (a), it is apprehended that the defendant may plead any matter which would be a good defence, as against his creditor, i. e. the Crown debtor, and which would shew, that on the day on which the inquisition was taken no debt was due to the latter from him. As that the debt due to the Crown debtor is, in respect of bonds, bills, or notes, not yet arrived at maturity (b); or that the defendant on the extent in aid, gave the Crown debtor a bill for the debt which became due after the day on which the inquisition was taken, though it has been subsequently taken up by the Crown debtor (c). So, in the King v. Copland (d), it was held, that on an extent in aid, the defendant might plead a set-off of sums due from the Crown debtor to himself. And the Chief Baron there said, "as to the set-off, it is true, you cannot set-off as against the Crown; but qu. if this is so. It is a mistake in terms so to call it. He (i. e. the Crown debtor) is to collect his is the balance. It is a debt due between subject and subject." It would seem (e), both upon principle and

own debt, and that

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