leave the defendant to that remedy (a): still it would be unjust to deny him a mode of taking advantage of the irregularity, by which considerable expense and delay are avoided. Where either course of proceeding is open to the defendant, it is in general advisable to move in the first instance, instead of demurring, because if the motion be decided against the claimant, he may still plead; whereas after argument on demurrer, the judgment is usually final (6). 2. Irregularities not apparent on the face of the record, generally arise out of the proceedings before the sheriff and jury, on the taking of the inquisition under the commission, or of that under the extent; as that insufficient evidence was considered by them sufficient. As in these cases the defect cannot be pointed out by a demurrer, it not being apparent on the face of the proceedings, the defendant may, and if he mean to take the objection must (c), indeed apply to the Court by motion, which should however be supported by an affidavit of the circumstances. If the Court entertain doubts respecting the facts on either side, they will in some cases direct a feigned issue to ascertain them (d). Where a stranger is the party moving on account of some extraneous defect, he must it seems shew his title to the property seized by affidavit (e); but it appears that any man may as amicus curiæ, and without an affidavit, move to set aside extents to which there are obvious objections (f). It seems that a motion to set aside an extent should be made as early as possible, the general rule being that an irregularity in practice is waived by the party being knowingly so inactive as to lead his opponent to suppose that he does not mean to take advantage of it, by which he is or might be induced to proceed (g). The motion comes too late after the party has obtained time to plead (h). But it may be made before the appearance and claim are entered, and the assignees of a bank (a) Bunb. 33. (b) West, 182. Tidd, 6th ed. (c) 4 Price, R. 11. In which case the prerogative process was not maintainable according to the practice of the Court. (d) 2 Manning, 609. (e) West, 183. (S) Hardr. 85, 99. 2 Manning, 607, 9. (g) 2 Manning, 606. 1 East, 77. Tidd, 6th ed. 954. 6 Taunton, 7. 1 Marsh, R. 403. S. C. 2 Smith, 391. (h) 3 Price, 38. But still he may demur if the objections appear on the face of the record. rupt rupt have been allowed to move to set aside an extent, even after a venditioni exponas has issued, no claim having been entered, and it appearing that there had not been an unreasonable delay (a). It seems also that objections to the process itself, but not informalities in the execution of it, may be taken advantage of by motion after appearance (b). In every case it is a question for the discretion of the Court, under the peculiar circumstances, whether a reasonable degree of diligence has been exercised, and whether the opposite party has been prejudiced by the delay. The Court will not in general try a matter of fact on affidavits (c), and therefore the only case in which the defendant would be allowed to deny the debt 'on affidavit, seems to be where the question is as to the legal effect of facts which neither party disputes (d). The inquisition may be set aside pro tanto only, as for a part of the debt, the residue of the inquisition and extent remaining effective (e). A new writ may be resorted to (ƒ). There are other motions besides those to set aside the proceedings which the defendant or claimant on the extent may sometimes have occasion to make, as that debts collected by the sheriff under the extent (the payment of which he has not the power to enforce (g),) be paid by him into the hands of the deputy remembrancer, to be laid out pendente lite in the funds: or in Exchequer bills, or in such manner as the Court shall direct, as the money would otherwise be likely to lie unproductive for some time (h). It seems, that the right of the Crown to the money when disputed, remains in abeyance till judgment, and consequently, that the consent of the Crown to the object of the motion is unnecessary (i). The party, too, sometimes moves to pay the debt, for which the extent issued, into the receipt of the Exchequer; or that the sheriff, who has levied money, shall pay the debt out of the money in his hands into the receipt of the Exchequer, and that on such payment an amoveas manus do issue; and it would seem, that this may be done at any period of the currency of the extent, and the Court will permit this to be done, provided the Crown is not placed in a worse situation by such payment than that in which it would be on recovering judgment. Therefore, where goods and lands were seized under an extent, and the goods, according to the appraised value in the extent, were more than sufficient to pay the debt, the Court allowed the party to pay the debt into the receipt of the Exchequer, without costs, because the Crown, if it succeeded, could not have recovered costs on the sale of the goods, and as they were sufficient to satisfy the debt, the sale of the lands on which costs are in general attainable could not have been allowed (a). On the same principle, however, if lands only are seized, the defendant must also pay costs into Court; but in such case poundage is not an item of costs, it not being due on the sale of lands (b). If a greater sum than is due be levied under an extent, or if costs or poundage be levied where they are not payable, the Court will on motion order them to be refunded (c). 3. Pleadings on Extents, &c. The appearance and claim being entered, a four-day rule to plead is given on the back of the writ. Further time (usually six weeks) to plead may be obtained on a motion of course under counsel's hand; and, on affidavit of special circumstances, further additional time may on motion be gained, at the expiration of the period allowed in the first instance. Pleas to extents are either-1st, By the party against whom the extent issued, whether he be the original Crown debtor, or a debtor in the second degree (d), and by persons claiming in some representative character under them; or, 2dly, By strangers claiming a property in the effects seized, without objecting to the debt. In the former case, the statute 33 Hen. 8. c. 39. s. 79. seems to afford a very extensive and just remedy for the subject, and has on that account been called the statute of equity. (a) 3 Price, R. 40. As to costs, ante, 310. If doubt as to amount of debt, a summons may it seems be obtained for the particulars of it. 2 Man ning, 607, 8. note q. (b) Ante, 311. It pro vides, vides, "that if any person, of whom any such (a) debt or duty shall be demanded or required (b), allege, plead, declare or shew, in any of the said Courts, good, perfect, and sufficient cause, and matter in law, reason, or good conscience, in bar or discharge of the said debt or duty; or why such person ought not to be charged or chargeable to or with the same; and the same cause or matter so alleged, pleaded, declared or shewed, sufficiently proved in such one of the said Courts as he shall be impleaded, sued, vexed, or troubled for the same, that then the said Courts, and every of them, shall have full power and authority to accept, adjudge, and allow the same proof, and wholly and clearly to acquit and discharge every person that shall be so impleaded, sued, vexed, or troubled for the same." With respect to the subject-matter (c) of defence to the debt on which the extent is founded, there is nothing very peculiar in the case of pleading to Crown process. The defendant's inability to plead the statute of limitation, a set off (d), bankruptcy (e), insolvency (f), solvit post diem (g), the statute of frauds, or any other defence given by statutes, by which the King, not being named, is not bound (h), forms substantially the only exception from the general law of pleading defences to debts between subject and subject. The defendant in the case of an extent, may plead non est factum, or performance (¿), if the Crown claim a debt on a specialty; and, in the case of a simple contract debt, though it become a record by the inquisition (k), the defendant, under the general issue, non indebitatus modo et forma (1), may dispute the debt, or give in evidence any defence, except those above mentioned. Nor could the Crown, before the statute 58 Geo. 3. c. 93. (m), enforce the (a) It relates to all debts due to the Crown. 7 Co. R. 19. (b) It will be observed, that the clause only extends to pleadings by Crown debtor, not to pleadings by a stranger claiming property and not disputing the debt. (c) Form of pleading, see the Entries, and West, 194, &c. Tidd's App. tit. Extent. (d) Rex v. Copland, Hughes, 204. 1 Price, 23. West, 199. Post. 368, n. (c). (g) 1 Price, 23. (h) By what statutes the King is bound, post, ch. 382 to 384. (i) Trem. 584, 608. (4) Ibid. 199. Trem. Pl. Cr. 583. payment payment of a bill of exchange, tainted with usury in its original formation. The effects being seized as the property of the defendant, it is of course unnecessary for him to claim in his pleadings any property in them. He merely disputes the Crown debt; if that be unfounded, his right to the property remains or reverts to him as a matter of course. But where third persons claim in a representative capacity, under the defendant, as assignees of the defendant, a bankrupt, they must deduce title from him; and in such case the assignees must shew, separately, every fact entitling them to maintain the character they assume (a). It is however highly worthy of observation, that where the extent is not against the immediate Crown debtor, but against his debtor, or other debtor in the third or other degree, such debtor in the second, third or other degree, may, in disputing the debt due from him (the party pleading) to the Crown debtor, set up any defence, whether given by statute or not, which he might have insisted upon if he were sued by his immediate creditor, the Crown debtor (b). As in the case of an extent by the Crown against B. who owed money to A., the Crown debtor, B. may plead a set off, &c. to the debt due from him (B.) to A. And the reason is, that the Crown in seizing the debts due to its debtor, cannot be in a better situation with respect to the right to such debt, than the Crown debtor himself; a better remedy only, not a better right, is claimed by the King (c). The debtor in the second or third degree may also contest the right of the Crown to issue an extent, on the debt alleged to be due from the Crown debtor. In no case can a defendant plead double or several matters in the case of the Crown, under the statute 4 and 5 Ann, c. 16. (d). But he may plead separately to distinct parts of the inquisition; or plead as to one part, and demur to another distinct and independent matter (e). And where the Crown claims by two or more distinct titles, each must be traversed (f): otherwise where there are two inquisitions finding the same title (g). |