upon the authority of this case, that the statute of limitations or bankruptcy, &c. might be pleaded as against a debt due to the Crown debtor, seized under an extent. The defendant, too, sometimes traverses the debt alleged to be due from the Crown debtor to the Crown.

The technical rules as to pleadings and other proceedings in the case of the Crown will be fully considered in the next chapter. With respect to costs and poundage, &c. the observations before made as they relate to the extent in chief, may be here referred to (a).

Equity does not in general afford any remedy to the defendant on an extent in aid against the prosecutor of the extent on the ground that he has sufficient assets to pay the Crown without resorting to the writ, &c. (b). And as between debtors to the Crown in different degrees no one of them has an equitable claim to be relieved from any part of the debt which must consequently fall on some of the others (c). But if the King's debt be levied on his debtors' tenants, of course, the rents are satisfied by such levy, and the matter may be specially shewn in an avowry (d).

There is a peculiar or special writ of extendi facias which is issued in the event of the death of the Crown debtor, and is called a diem clausit extremum; as it recites the death of the party.

By the writ of diem clausit extremum, the sheriff is commanded to inquire, by means of a jury, when and where the Crown debtor died; and what goods and chattels, debts, credits, specialties, and sums of money, and what lands (e), the said debtor had at the time of his death, &c. and to take and seize them into the King's hands, &c. (f). It will be observed that the form of the writ is in substance like that of the extent in ordinary cases; and the diem clausit extremum and the ordinary extent are governed in general by the same rules (g). It seems that the diem clausit extremum is founded on the

(a) Ante, 310 and 312.

(b) 8 Ves. Jun. 241.

(c) 1 Price's Rep. 96.

(d) 16 Vin. Ab. 520. tit. Prerogative, I.

(e) As to the sale of them, see ante, 307.

129.

(f) West, on Extents, Appendix, See as to the old writ of diem. cl. extr. Staundf. Prær. Regis, 51. c. 17. (g) 2 Manning, Pr. 519. 5 Price, If not issued within a year after the death. Ibid. F. N. B. 253, C. Staundf. ubi supra.

295.

common

common law prerogative right of the Crown to priority (a). However that may be, it is provided by Magna Charta, c. 18. that "if any one holding of us lay-fee, die, and our sheriff or bailiff do shew our letters patent of our summons for a debt which the dead man did owe to us; it shall be lawful to our sheriff or bailiff to attach and inventory all the goods and chattels of the dead, being found in the lay-fee, to the value of the same debt, by the view of lawful men; yet so that nothing thereof shall be taken away, until there be paid unto us the debt clearly made to appear; and the residue shall be left to the executors to perform the testament of the dead; and if nothing be owing unto us by him, all the chattels shall go to the use of the dead, saving to his wife and his children their reasonable parts."

Upon this statute the diem clausit extremum may be issued (without waiting for an executor or administrator (b)) against the deceased debtor's estate, in every case in which an extent might have issued against him if he were alive (c). But in order to support the writ the deceased must have died indebted to the King (d); and before the writ issues such debt must be of record (e): but it is sufficient if, having died indebted to the King by simple contract, the debt due from the deceased be found by inquisition after his death (f). In order however to maintain this writ against the property of a deceased debtor of the Crown debtor, it is necessary, on the wording of Magna Charta, that the debt from the deceased be found by inquisition in his life-time (g).

An executor in administering the assets must first discharge the King's debt (h); nor can he retain even for his own bond. debt against the Crown's simple contract debt (i). But a payment by an executor or administrator of a bond debt is good against a Crown debt not of record, of which the personal

representative was not aware (a). And it seems funeral charges, expenses of probate, or taking out letters of administration, shall be first defrayed (b).

The remedy by ouster le main if the diem clausit extremum be unfounded will be considered in the next chapter (c).

SECT. III.

Scire Facias, to repeal Grants, &c.

THE scire facias to repeal, or revoke, unfounded or improvident grants of the Crown (d), is another prerogative process which requires consideration. The King is, generally speaking, bound by his grants; but this is only when they are not contrary to law either in themselves; or void for uncertainty or deception; or unjust as injurious to the rights and interests of third persons (e). In these cases the King jure regio, for the advancement of justice and right, may repeal his own grant (f). As if the King grant what by law he is restrained from granting (g): or the grant be obtained by fraud or a false suggestion (h): or be uncertain (i). So if an officer be guilty of acts which create a forfeiture of his office (k).

(a) 3 Price, R. 122. 1 Rol. Ab. 926. S. pl. 1. Per Choke, if the King's debt, in such case, be not of record, then it cannot be pleaded in bar; aliter, if it is. 21 E. 4. fol. 21. pl. 2. 1 Anderson, 129. But see Moor, 193. A judgment recovered against the testator, shall be preferred by the executor to a bond assigned to the King after testator's death. Lane, 65, aliter, if the judgment had been recovered against the executor. Attorney-General v. Hart, Trin. 1686, in Sccio. MSS. Bingham on Execution, 212, note. Where, after the death of B, a bond entered into by him to A, the Crown creditor is seized under an extent against the obligee, the executor of B. may pay a judgment creditor of his testator in preference to the Crown debt; the lat

ter not being of record before testator's
death, Anon. 2 Rol. Ab. 159.
And see
Parker, 260.

(b) 1 Rol. Ab. 926, S. pl. 1.
(c) Post, 348.

(d) Ante, 250, as to scire facias on in-
quests of office in general: and ante,
271, as to scire facias on extents.
(e) See post, ch. 16. s. 1 and 3.
(ƒ) Inst. 88.

(g) Ibid. 3 Bla. Com. 260. Though if the patent be void in itself, non concessit may it seems be pleaded without a scire facias. 2 Rol. Ab. 191, S. pl. 2. (h) Ibid. Bro. Patent, 14; Petition, 11. 11 Rep. 74, b. 2 Rol. Ab. 191, T. Dyer, 197.

(i) 5 Bac. Ab. Prerogative, 602.

(k) Dyer, 197, b; 198, a; 210, 211. Ante, 85. as to forfeitures of offices.

If

If a Crown grant prejudice and affect the rights of third persons, the King is by law bound on proper petition to him, to allow a subject to use his royal name, to repeal it in a scire facias (a). And it is said that in such case the party prejudiced may, upon the inrolment of the grant in Chancery, have a scire facias to repeal it, as well as the King (b); as in the instance of an unfounded patent for an invention, or where the specification is incorrect (c). So in the case of a grant of a mart or fair, &c. whereby another antient mart or fair is prejudiced (d). Where the same thing is granted twice the first patentee is entitled to a scire facias to repeal the subsequent grant(e): but the second patentee is not, though his right be superior (f).

The scire facias may be prosecuted in the Petty Bag Office in Chancery, for the patent is a record there (g). So it may be in the King's Bench (h). A memorial is presented to the Crown for a scire facias, whereupon his Majesty's warrant is obtained to the attorney-general to sue it, and the attorneygeneral grants his fiat thereon (¿).

On the scire facias the defendant is summoned to appear, which affords him an opportunity of so doing, and of pleading any defence he may have, or of demurring (k) if the matter alleged be insufficient to repeal the grant; on which proceedings are taken, as in ordinary instances of that description, at the suit of the Crown (1). If no defence be set up, the judgment (which, if it be for the King, is that the letters patent and the inrolment be revoked, vacated, &c.) may be either by confession or by default, if the defendant be returned warned, or upon two nihils (m). No costs are payable to the Crown or prosecutor on a scire facias to repeal letters patent (n).

(a) Bro. Ab. tit. Scire Facias, 69, 185. 2 Ventr. 344. 3 Bla. C. 260, 1. (b) 6 Mod. 229. 2 Saund. 72. q. (c) See ante, 193. as to patents. (d) Dyer, 276, b. 3 Lev. 220. 2 Ventr. 344.

(e) 4 Inst. 88. Dyer, 137, b. 198, a. 2 Rol. Ab. 191, U. pl. 2.

(ƒ) Dyer, 276, b. 277, a. 2 Saund.

72, p.

(g) Ibid. 4 Inst. 88. 3 Lev. 223.

(h) 4 Inst. 72. As to the form, &c. 2 Saund. 72, q. Tidd's Appendix.

(i) 2 Rich. Prac. C. P. 391, and 398. Hands on Patents. (k) 3 Lev. 221.

(4) See post, ch. 13.

(m) Dyer, 197, b. 198, a. 2 Rol Ab. 192, X. pl. 1.

(n) 7 Term Rep. 367. Ante, 310; as to costs in general at the suit of the Crown.

SECT.

SECT. IV.

Information.

ANOTHER prerogative process is by information, filed in the Exchequer, at the instance of the King's attorney-general. This is wholly different from the criminal proceeding by information in the King's Bench, in which the object is the punishment of some public offence. The prerogative remedy here treated of, is in the nature of a civil action at the suit of the Crown, and is instituted for the purpose of obtaining satisfaction in damages for some injury to Crown possessions, or to recover money due to, or goods claimed by, the King. The information is not founded on any writ, but merely on the intimation of the attorney-general; upon which the party is put to answer, and trial is had as in ordinary cases (a).

Informations are, generally speaking, of three descriptions. 1. Informations of intrusion. 2. Of debt. 3. In rem.

An information of intrusion is in the nature of an action of trespass, quare clausum fregit (b), and is usually brought against the tortfeasor, or if dead, his executor (c), for trespass committed on the lands of the King (d); as by entering thereon without title, holding over after a Crown lease is determined, taking the profits, cutting down timber, and the like (e).

The information of intrusion into land states (ƒ), that the attorney-general gives the Court to "understand and be informed" that certain land (the particular species or quality of which need not be described (g)), ought to be in the hands and possession of the King, in right of his Crown of England, &c. Nevertheless the defendant contriving the disinherison of his Majesty with force and arms to in and upon his possession, entered, intruded and made ingress, and with cattle depastured, &c. Wherefore the said atttorney-general of our said lord the King (who for our said lord the King in this behalf prosecuted), for our said lord the King, prays the con