We have already noticed the point whether or not the traverser is to be considered in the nature of a plaintiff or defendant (a) and the judgment on a traverse (b); the granting the lands to the traverser, &c. (c); together with the protection afforded to persons holding inferior interests and claims on lands, to which the King is entitled by office (d), have also been explained. Pleadings, and other proceedings on ordinary occasions, in the case of the Crown, and in particular in the event of a traverse of an office, will be now considered in noticing the mode of resisting extents upon inquisitions or offices. Extents (e) are founded on offices under which the Crown claims certain property. There is nothing peculiar to traverses to offices on extents; and the law respecting such traverses is equally applicable in the case of traverses to other offices. "If," says Gilbert (f), " any will plead in discharge of the extent, or of the debts, he must traverse upon a particular roll, the whole matter of charge to which he pleadeth; and upon plea put in, the party who prosecutes for the King, must procure the attorney-general to demur or reply, as the case requireth. This traversing of offices upon extent, seems to come in by 34 Edw. 3. c. 14. and 36 Edw. 3. c. 13. (g).” The mode of resisting extents and proceedings thereon, may be considered in the following order: 1. Appearing to extents and claiming property. 2. Motions to set aside extents, to pay money, &c. 3. Pleadings on extents, &c. 4. Trial and proceedings incident thereto. 5. Judgment. 6. Execution. 7. Error. 1. Appearing to Extents and claiming Property. It is a principle of law that no one can traverse the King's title without shewing title in himself (h). Wherefore it has always been a rule in the Court of Exchequer, that no one shall be allowed to plead to an extent, that is to traverse the inquisition, or can have a locus standi in Court, till he has claimed property. (a) Ante, 354, 5. (b) Ante, 347. (e) Ante, 261. (f) Excheq. 171. (g) Ante, 356. (c) Ante, 253. (d) Ante, 340. (h) Staundford, Prerog. 63, a. On the return day of the extent, the following rule to apand claim is indorsed on the back of the extent (a). pear "It is this day ordered by the Court, that if no one shall appear and claim the property of the several goods and chattels, lands and tenements, debts, credits, specialties and sums of money, particularly mentioned and described in the inquisition, and several schedules hereto annexed," (varying the description according to the property seized)" on or before this day se'nnight, a writ of venditioni exponas do issue to sell the same." "Fowler." If the extent should not be actually returned till after the return day, the rule, it should seem, cannot be given till the writ is actually returned. This rule is always drawn up for "this day se'nnight," i. e. it is a six day rule, not accounting Sunday, whether intervening or at the end. If there should not be time to give this rule in term, it is given for the sealing-day, or seal-day, as it is indifferently called after term (b). The general seal-day, which for the purposes of sealing and issuing the King's process, and for filing and delivering over informations in matters of revenue, is considered as the fictitious last day of term, is always appointed, at the discretion of the Court, on the last day of every term. In the issuable terms, from the increase of the revenue business, the seal-day has been appointed on the Friday month after the term. In Michaelmas Term it is appointed within a day or two of Christmas day, and in Easter Term it is appointed on the Friday before Whitsunday; but for the precise days on which the general seal-day is appointed, reference must be had to the minute book of the register, in which it is always noted the last day of every term (c). If the defendant mean to dispute the debt, or a third person wish to claim the property, he must (d) appear and claim before the expiration of this rule and enter his appearance and claim. (a) West, 174. 2 Manning, 533. (b) R. T. 2 Jac. 2. West, Appendix, 128. Manning, App. 232. (c) Fowler's Equity Practice of the Exchequer, vol. 2. p. 4. West, 175. 127. on on the back of the writ, either in his own name or in the name of one of the sworn clerks of the King's remembrancer's office in which the return is filed (a). The form usually is "A. B. appears and claims all and singular the goods and chattels, lands and tenements, debts, credits, specialties, and sums of money," (varying the description according to the property claimed,) “taken and seized under and by virtue of a writ of immediate extent issued against for the sum The 36 E. 3. c. 13. (b), upon which the traverse upon extents is founded, directs that the claimant be heard without delay. It seems also that the subject as a matter of right may enter his claim at any time (c): though a strict adherence to the rule may be necessary to prevent a sale, unless the Court interpose (d), and as before observed (e), the claimant cannot insist on a lease of the land unless he claim within a month. At all events however, if a party do not appear and put in his claim within the time limited by the rule, the Court will it seems admit him to appear and claim afterwards, on an affidavit of special circumstances. Accordingly in a late case (ƒ) where the claim had been entered in the name of the assignee the Court on motion that a claim might be entered in the name of the bankrupt for the purpose of avoiding the necessity and expence of proving the bankruptcy and proceedings thereon, granted a rule to shew cause which was afterwards made absolute, no cause being shewn. So where the clerk in court accidentally omitted to enter the claim in due time (g). Of course the party against whom the extent issued may appear for the purpose of denying the debt: and there are few, if any instances in which others claiming any property or interest in the lands or chattels seized, and having a legal (h) title may not come in and interplead with the Crown. The statute 2 and 3 E. 6. c. 8. protecting the interests of others in lands, has been already mentioned (i). So a mortgagee though (a) 2 Manning, 585, 590. Ibid. Appendix, 282, 6, 7. (6) Ante, 356, and note (h). (c) Y. B. 13 Ed. 4. 8. (d) And see Manning, 586. (e) Ante, 255, 6. 36 Ed. 3. c. 13. See Bunb. 25; What security usually taken. (ƒ) Rex v. Aspinall, H. T. 57 Geo. 3. West, 178. (g) 3 Price, R. 38, note. (h) Ante, 303. () Ante, 350. he has not had possession (a), or a party holding a statute merchant and possessed of the land by virtue thereof (b); or a party with whom the extendee has contracted (c); or whose goods he has wrongfully taken (d); may appear and claim. The interest claimed by a stranger must however be distinct from that of the party against whom the extent issues; it must be a property and interest to which he may be restored (e). When a term is extended the reversioner, having no interest during the existence of the prior chattel interest seized, cannot claim (ƒ): nor can a creditor suing the extendee move to set aside the extent if it cannot delay the creditor's execution, he not having obtained judgment (g). In cases where a common (h) or profit apprendre in the lands of the extendee is claimed by a stranger under the 2 and 3 Ed. 6. c. 8 (i). and such interest is not found by the inquisition, as it is better to effect if possible, a traverse is under that statute the proper course of proceeding. Different parties may appear and claim different parts, or the same parts, of the property seized (4): and one joint tenant may sue without his companion (1). Where there are various conflicting claims, the Crown has the prerogative power of deferring the establishment of its title till the parties have interpleaded among each other, when perhaps the Crown claim may be rendered more evident (m). (a) Bunb. 104. pl. 163. Stone v. Evans, Woodff. 5th ed. and 7 East, 340, 1. note. 3 Campb. 394. 1 B. and A. 593. (b) Bunb. 123. Where, on an inquisition, a man was found possessed of a term jure uxoris, and after his death it was sold on a venditioni exponas, the widow was permitted to plead to the inquisition, though she had defended an ejectment brought by the purchaser, and filed a bill in Chancery. Bunb. 220. (c) 7 Ves. 261. (d) 2 Manning, 588. (e) P. 15 H. 7. fol. 6, b. (f) 50 Ass. 324, pl. 5. Fitz. Traverse, 33. 2 Manning, 587. (g) See 2 Price, R. 156. 2. Motions to set aside extents;—to pay money, &c. These motions may be made either in term time on any day except Monday or Thursday (Fridays and Saturdays are the usual days (a)); or they may be made at the sittings after term (now usually held in Gray's Inn Hall), which are always appointed by the Court on the last day of every term, except Easter term, when, on account of the shortness of the vacation, the Thursday next after the last day of that term is always fixed as a day for motions only (b). It is usual to give (to the clerks in Court, not to the solicitors immediately employed (c)) two days previous notice of a motion to set aside an extent (d): and it is highly reasonable that the opposite party should be provided with the means of resisting the application. But on pressing occasions, towards the end of the term, the Court will sometimes direct that short notice of motion for the next day be accepted (e). And no notice is necessary where the party moves for a rule to shew cause merely (f). And the writ ought to be brought into Court by the officer of the Court before the motion is made, where the objection arises upon the face of the extent (g). 1. Even such of the proceedings as do not form a part of the record, as the affidavit of the debt and insolvency, may be set aside on motion for any insufficiency apparent on the face of them. It is highly reasonable that this remedy should be open to the defendant, as of course only such statements as constitute a part of the record can be traversed or demurred to. This summary remedy by motion to the Court, is also allowed the defendant where the proceedings on record are on the face of them defective: as where a sufficient debt is not stated, or the inquisition is argumentative, &c. (h). For, though a demurrer on account of such defects in the record is decidedly sustainable, and where the point is doubtful, the Court will (a) 2 Manning, 610. (b) 1 Fowler's Eq. Pr. Excheq. 284. West, 179. (c) 1 Price, 385. (d) Ibid. 2 Manning, 610. (c) 1 Price, 117. Questions of irregularity settled by deputy remembrancer, who may give costs. Manning, App. 233. 2 V. 606. (f) Rex v. Collingbridge, Dec. 17, 1816. West, 179. S. C. but not S. P. 3 Price, 280. (g) 1 Price, R. 395. (h) 3 Price, 288. See ante, 268. as to the validity of the inquisition. |