It will have been remarked that the statute of Hen. 8. before mentioned (a), allows the debtor to allege, plead, declare or shew any sufficient matter in law, "reason or good conscience," in discharge of the debt. Several old cases (b) are to be met with, in which parties have been relieved under equitable circumstances, in pursuance of the provisions of this enactment; though it is difficult to lay down any precise rule or criterion on this point (c). The claim to relief may be brought forward either by pleading to the extent (d), or by bill in the Exchequer (e), or by motion to the Court of Exchequer, who possess an equitable jurisdiction over extents (ƒ). 2. In the case of pleadings by strangers claiming title paramount the interest of the Crown, the debt due from the Crown debtor cannot be disputed. The pleadings or traverse in this case are not founded on the statute of Hen. 8. (g). Their foundation has been already mentioned (h). In this case the party must, as before observed (i), not only shew his own title, but traverse that of the Crown, i. e. of the party against whom the extent issued, or confess and avoid it. If a bad title be found for the Crown on the face of the inquisition, the party may, it seems, demur without traversing or shewing title (k). If found against the claimant, it seems to be peremptory (l). But it seems he may afterwards have a petition (m). As to the replication or demurrer, on the part of the Crown, it will be remembered that the Crown cannot be non-prossed (n); and consequently a rule to plead would be ineffectual and cannot be given. But the Court in the exercise of their legal and equitable jurisdiction in cases of this nature, will order judgment to be entered for the defendant, as if his plea were confessed, if the attorney-general will not on application enter a nolle prosequi, or proceed within a reasonable time (a). The Crown has various prerogatives in replying to its defendant's traverse or plea (b). In cases where the right of property is in dispute, the claimant, as we have just seen, must not only state his own title, but should traverse that of the Crown. In this case the Crown has the option of maintaining its own title, without noticing the defendant's: or, without noticing the defendant's traverse of the Crown title, the King may merely dispute the title set up by the claimant (c). And it appears that the King may in a manner reply double, by maintaining not only his own title, but disputing also that set up by the traverser; and it is also usual for the Crown to confess and avoid, and traverse also (d). So if the plea allege several facts, the King may traverse all of them (e): and if several of the King's titles be traversed, he need not maintain all of them (f). And though no estoppel can exist against the Crown (g), the traverser may be concluded by the King replying matter of estoppel (h). During the term in which issue has been joined with the Crown, but not in a subsequent term, the Crown may waive the issue and take another, or demur (i). But the defendant cannot waive his plea, and plead the general issue without the consent of the attorney-general (k); though he may enter a (a) Parker, 50. On extents in aid judgment is moved for if the Crown does not reply before the end of the third entire term. 2 Manning, 603. (b) As to replying in abatement, 2 Manning, 600. (c) Bro. Prerog. pl. 65, 78. Staundf. Pre. 65, a. Vin. Ab. Prerog. Q. 5. Com. Dig. Prerog. D. 75, 85. Sav. 67. 2 Cro. 481. Sav. 64. 2 Vez. 541. Ante, 357. But it seems necessary for the Crown to reply to the fresh matter set up in bar by the defendant, where the Crown title is not on record by office, &c. as in the case of an information for a penalty, &c. Vaugh. 64. 16 Vin. Ab. 538. 6 Com. Dig. 74. And in Vaugh. 62. it is on this ground laid down: "that where the King's title appears to be no more than a bare BB sugestion, (that is, not material,) the (f) Staundf. Prerog. 65, a. (i) Staundf. Prerog. 65, a, b. Vaugh. (k) Cro. Car, 347. 2 Rol. 41. retraxit retraxit generally, even after the replication (a). The Crown cannot depart from an issue actually joined on its own title, to traverse the party's title (b). If issue has not been joined, the Crown may, even in a subsequent term, waive his replication or demurrer (c), and may amend at any time, on paying costs (d). By not demurring to collateral and formal objections to the traverse, and taking an issue in fact, which is found against the King, the Crown waives its right to take advantage of them (e). The replication is bad if it amount substantially to a departure from the extent or inquisition, instead of supporting it according to the ordinary rules of pleading (ƒ). It is usual for the Attorney-General to confess the plea where it is evidently true: affidavit of the facts being sometimes previously made (g). A confession by the AttorneyGeneral in a matter of fact binds the King, but not it seems in the case of a confession of a matter of law, the traverse being bad in law (h). The replication is always signed by the Attorney-General: during the vacancy of that office by the Solicitor-General (i). The rule to rejoin is, like the rule to plead (k), entered on the back of the extent; and is a four day rule. Further time to rejoin may be obtained if necessary. 4. Trial; and Proceedings incident thereto. Issue being joined, the next step is for the Crown to issue a venire () to try it by a jury. This process may be issued into any county by the prerogative of the King who may try an issue where he pleases (m). But issues on extents are always tried in Westminster (n). (a) Brown, P. E. 541. (b) Ante, 369, note (c). (c) 2 Rol. R. 41. Cro. Car. 347. Vaugh. 65. Hardr. 455. Pl. Com. 322, a. Sir T. Jones, 9, 10. (d) 3 Anstr. 714. ante, 310. As to waiving the count in an information of intrusion, &c. ante, 334. (e) Dyer, 228, b. The Court will not direct a second argument in a cause argued during the absence of the Solicitor-General, merely to hear him. Price, 5. (f) Trem. P. C. 594. (g) See Bunb. 102. pl. 62. (h) Hardr. 170. Com. Dig. Prerog. D. 85. (i) 4 Burr. 2572. (1) See Tidd's Append. tit. Extents. (m) 1 Sid. 412. 1 Ventr. 17. Parker, 189. 2 Price, 113. (n) West, 216. If the defendant live at a distance, or 40 miles from town, 10 days' notice of trial is proper: otherwise 6 days (a). If the Crown will not proceed to trial, the defendant after waiting has no other remedy (b) than by application to the equitable jurisdiction of the Court (c); and the Court will give judgment for the defendant or claimant if the Crown will not on application proceed in a reasonable time (d). On extraordinary occasions of delay the Court will order the Crown officers to shew cause why the effects should not be returned to the party (e). But though there is in strictness no positive mode of compelling the Crown to proceed to trial, it appears to be the better opinion that after a distringas and jury returned upon it, the Attorney-General cannot stay the trial (ƒ). Notice of trial having been duly given, the Crown enters the record, and the cause is called on as usual (g). The Crown has the privilege of trying its causes at nisi prius, or in bank. Trial at nisi prius shall not be granted, unless the Attorney-General consent (h): and it shall be there and not in bank if he require it, even upon an indictment removed by certiorari (i). Where there are distinct issues by different defendants in fact and in law, the Crown may try which it chooses before the other (k). Whether or not the traverser may be nonsuited has been doubted (1). On demurrer being found against him it is peremptory (m): though he still has his petition (n). The verdict is as in ordinary cases (o). It may be general or special. And, as in verdicts between subject and subject, a verdict in the case of the Crown may aid a case defectively stated. The postea being returned a four day (p) rule for judgment is given to allow the traverser to move in arrest of judgment, &c. as in other cases. The party has also the privilege of pleading (in lieu of the remedy by auditá querela, which is not maintainable against the Crown (a)), any matter as a release, &c. arising after verdict and between the award of execution (b). 5. Judgment. If the King succeed either upon verdict or nonsuit (c), the judgment (which need not however be drawn up unless error be brought, as the King is already in possession under the extent), is that the subject take nothing by his traverse (d). The judgment for the traverser against the King is universally, that the King's hands be amoved and the party be restored, &c. (e). A peculiar prerogative of the King may here be noticed, namely, that if in any suit between subject and subject a clear title in the King appear, (that is, it seems, be admitted between the parties (ƒ),) the Court may ex officio (g) give judgment for him on such title; though the Crown were not a party to the suit (h). And the Crown may interpose to take an issue for the purpose of eliciting a title (i). Nor will Chancery decree against the Crown on a title apparent on the record, though not insisted on at the hearing (k). But if only a presumption of title appear for the Crown, the Court will in some cases proceed to give judgment in the action, but will suspend execution until the party has interpleaded with the King (). Jenk. 303. pl. 67. See post, ch. 16. that the judges are one of the King's councils. (h) Jenk. 25. pl. 47; 219. pl. 65. F. N. B. 38. Cro. Car. 590. Plowd. 243. 5 Bac. Ab. 570. Ante, 244. 2 Barn. and Ald. 269, 70; arg. (i) Cro. Car. 589. Hob. 126. 1 Anderson, 53. pl. 131. (k) 3 Ves. 424. In Admiralty, 3. Price R. 97. (1) Trin. 29 Edw. 1. Scaccario, 42, 3. Case. Memoranda in Adau Penreth's |