said J. R. for the recovery of the debt so due and owing to her majesty as aforesaid the same is in danger of being and will be lost. Sworn &c. Or, In the Exchequer. officer of excise and C. D. of H. H. is clerk to B. B. attorney at law severally make oath and say: and first this deponent A. B. for himself saith that E. F. and G. A. of by their bond or writing obligatory sealed with their seals bearing date &c. became held and firmly bound &c. [reciting bond and conditions]; and this deponent further saith that on the day of A. D. 18 the said E. F. and G. A. had and received of and from this deponent the sum of £ of the money of our said sovereign lady the Queen; and this deponent further saith that the said E. F. and G. A. or either of them have not well and truly paid or caused to be paid unto &c. [as in bond] but have wholly omitted and neglected so to do contrary to the condition of the said bond or writing obligatory; and this deponent further saith that the said sum of £now wholly due and owing to her majesty by them the said E. F. and G. A.; and this deponent C. D. for himself saith that the said E. F. and G. A. are greatly decayed in their credit and circumstances and have stopped payment as this deponent hath been informed and verily believes [or "hath lately offered and are about to make an assignment of their estate and effects for the benefit of their creditors as this deponent hath been informed and verily believes"] and that a fiat in bankruptcy hath been issued against the said E. F. and G. A. for the purpose of their being adjudged and declared bankrupts; and this deponent A. B. further saith that he verily believes that unless some method more speedy than the ordinary course of proceeding at law be had against the said E. F. and G. A. for the recovery of the said money the same is in danger of being lost. Sworn &c. Affidavit for Extent in Chief in the 2nd Degree. In the Exchequer. gentleman maketh oath and saith that on the A. B. C. D.. day of last a writ of extent directed to the Sheriff of the county of W. was issued out of this honourable Court against C. D. of for the sum of £ due to her majesty; and this deponent further saith that by an inquisition indented taken it was found (amongst other things) by the said jury of the county of W. day of and on the day of taking the said inquisition T. S. at was indebted to the said C. D. in the sum of £- for &c. and which said debt of £ due and owing from the said T. S. the said Sheriff of the county of W. then and there seized into her majesty's hands as by the said inquisition will more fully appear; and this deponent further saith that the said T. S. is greatly decayed in his credit and circumstances and &c. [as before]. Affidavit for Extent in Aid. A. B. of merchant maketh oath and saith that he this deponent by his bond or writing obligatory stands justly and truly indebted to our sovereign lady the Queen in the sum of £- -; and this deponent further saith that C. D. of is justly and truly indebted to this deponent in the sum of £for &c.; and this deponent further saith that the said C. D. is greatly decayed in his credit and circumstances and hath informed this deponent that he was unable to pay the said debt; and this deponent further saith that the said debt is a debt originally and bona fide due and owing unto him without any manner of trust, and that the same hath not been sued for in any other Court; and that unless &c. [as ante, p. 219]. Fiat for Extent in Chief. Upon reading this affidavit and also a commission and inquisition taken thereon let a writ or writs of immediate extent issue against the within-named E. F. and G. A. for the recovery of the within-mentioned sum of £ the usual proviso. Dated the day of 18-. with F. POLLOCK. Writ of Extent in Chief. Victoria &c. to the Sheriff of day greeting: Whereas E. F. and G. A. of by their writing obligatory sealed with their seals bearing date the of A.D. 18- became jointly and severally bound to us in the sum of £-of good and lawful money of Great Britain payable at a day now past which said sum of money they have not nor hath either of them yet paid or caused to be paid to us as we are informed: And we being willing to be satisfied the same with all the speed we can as is just do command you that you omit not by reason of any liberty in your bailiwick but enter the same and take the said E. F. and G. A. by their bodies wherever they shall be found in your bailiwick and keep them safely and securely in prison till we shall be fully satisfied the said debt; and that as well by the oaths of good and lawful men of your bailiwick as by the oaths and testimony of any other good and lawful men by whom the truth may be the better known as by all other lawful means you diligently inquire what lands and tenements and of what yearly values the said E. F. and G. A. or either of them had in your bailiwick on the said day of A.D. 18- on which day they first became our debtors as aforesaid or at any time since; and what goods and chattels and of what sorts and prices and what debts credits specialties and sums of money the said E. F. and G. A. or either of them or any person or persons to their or either of their use or in trust for them or either of them now hath or have in your bailiwick; and that all and singular such goods and chattels lands and tenements debts credits specialties and sums of money in whose hands soever the same now are you diligently appraise and extend on the oaths of the said good and lawful men and do take and seize the same into our hands there to remain until we shall be fully satisfied the said debt according to the form of the statute made for the recovery of such our debts: And lest this our command should not be fully executed we further command and empower you by these presents to summon before you such persons as you shall think proper and carefully examine them in the premises and that you distinctly and openly make appear to the barons of our Exchequer at W. on the day of next in what manner you shall have executed this our command and that you then have there this writ: Provided that what goods and chattels you shall seize into our hands by virtue hereof you do not sell or cause to be sold until we shall otherwise command you. Witness Sir Frederick Pollock Knt. at W. the day of in the - year of our reign. By the remembrance rolls; by the said act of parliament made in the thirty-third year of the reign of the late King Henry the Eighth ; by warrant of our chief baron; and by the barons. VINCENT. Liberate.a Victoria &c. to the Sheriff of greeting: Whereas C. D. [as in last]. And you have returned to us that the said C. D. was not found in your bailiwick after our writ was delivered to you but that you have taken into our hands all the lands and tenements goods and chattels of the said C. D. in your bailiwick and caused them to be extended and appraised according to the tenor of our writ aforesaid to wit messuages which are appraised at £- &c. [as in the return]. Therefore we command you that you deliver to the said A. B. all the lands and tenements goods and chattels aforesaid by you so taken into our hands if he will have them by the extent and appraisement aforesaid to hold according to the form of the ordinance aforesaid until he shall be satisfied of his debt aforesaid: And in what manner &c. The writ of extent in chief commands the Sheriff to enter Exigencies liberties (if need be); to take the body; to find by inquisition of of writ. a A Liberate must issue to enable the Bing. 152. Sheriff to deliver; Giles v. Grover, 9 How Crown debts affect lands, &c. How executed. Arrest. twelve men, what lands and tenements, with their yearly value, C. D. had in the Sheriff's bailiwick on the day he first became the Queen's debtor, or at any time since; and also what lands and tenements, with their yearly values, he had in the bailiwick at the time of issuing the writ; also, to find, by like inquisition, what goods and chattels, and of what sort and price; his debts, credits, specialties, and sums of money, in his own right, or any one in trust for him; that he extend and appraise the same, and seize them into his hands; with the usual proviso, mentioned in the baron's fiat, as to the goods and chattels, viz. to seize, but not to sell them, until otherwise commanded. Such are the substantial requirements of the writ. It may be well to repeat here the statement respecting the binding force of Crown debts, upon the lands and goods of Crown debtors, for if it be kept steadily in view, neither the Sheriff nor the jury will have any difficulty, as to the time to which their attention must be directed in finding the property. Debts of record bind the debtor's lands, from the time of his becoming debtor to the Crown, and this by the common law. Debts not of record bind his lands, from the time they are entered into, by the 33 Hen. 8, c. 39, s. 50.a At common law (and the Crown is not affected by the Stat. of Frauds), the goods of the debtor are bound from the teste of the writ.b On receipt of the writ, the Sheriff issues his summons to the defendant, and to all his debtors, to appear and disclose the nature of their property, debts, &c.; likewise, to all other persons, on pain of attachment, who can give the required information. He also summons a jury of twelve men, as in other cases. The capias clause is not usually enforced. If enforced, he cannot be admitted to bail; the statute of bail bonds not extending to the Crown. And a bankrupt may be arrested, during his ordinary privilege, because the prerogative of the Crown is not affected by the Bankrupt Act. So, if arrested, after discharge under the Insolvent Debtors' Act, he will not, on that account, be released from custody.e Where the Sheriff had over and above the person of the debtor seized property more than sufficient to cover the demand, he was discharged. A party in custody under this writ was allowed voluntarily to escape, but was retaken, and restored into the same custody, and under the same writ held, that he was rightly in custody, and was not entitled to his discharge. The foundation of this decision was, that the Crown is not affected by the laches of its own officers. What is meant What may by lands, tenements, goods, and chattels, needs no explanation. But a word or two as to his debts. They comprehend money in be seized. : : a Ante, p. 158 and see Reg. v. Ellis, c West, 303. dEx parte Temple, 2 Rose, 22. e Rex v. Seton, 8 Price, 671; Reg. v. Bennison, 1 D. & L. 613. f Rex v. Kinnear, 3 Price, 536. Reg. v. Renton, 2 Exch. 216. the defendant's possession ; debts by simple contract, or by specialty, although not due, the Sheriff must seize. Any one is in privity with the Crown who knows that the money which he receives is the money of the Crown. It seems, that on an extent in chief, the Crown may seize debts found to be due to its debtor ad infinitum; but, on an extent in aid, not beyond the third degree, counting the Crown debtor as one of the degrees. The Crown cannot avoid an equitable mortgage; or the lien of a factor; or of a wharfinger; or a bona fide assignment in trust for creditors; a mortgage, or pledge;h or any other similar assignment, or charge, upon the goods before the process of the Crown attaches. But they may be taken, subject to such liabilities as the debtor has created. So things in custodia legis by distress, or under a fieri facias, before sale, may be taken under this writ, for no inception of an execution can bar the Crown. h not sell. The Sheriff has no power, by virtue of this writ, to levy or Sheriff can receive the debts, found on the inquisition. He is merely to seize only seize, them. The seizure is merely nominal; the finding, through the medium of the jury, is the seizure-it is a seizure in law. The seizure is the inception of the execution, delivery under a liberate being the completion, analogous to the sale under a fi. fa.k The Sheriff must, as to witnesses, questions, &c., conduct the Inquisition. inquiry properly, otherwise the Court will quash the inquisition.1 The inquisition may be adjourned, or another holden before the return day of the writ, to find property not found by the first; in which case, both inquisitions are returned to the Court. An immediate extent, and an extent in chief, in the second or in Several any degree, are to be satisfied before an extent in aid of a prior writs, prioteste; m inter se, according to their teste." Juryman's Oath. You shall well and truly inquire what lands and tenements and of what yearly value C. D. had in my bailiwick on the day of in the year of the reign of her present Majesty on which day he was found indebted to her Majesty or at any time since and what goods and chattels and of what sorts and values and of what debts credits specialties and sums of money the said C. D. or any person or persons to his use or in trust for him now hath or have in my said bailiwick and that you appraise such goods and chattels so that I may extend seize and take the same into her Majesty's hands until her Majesty shall be fully satisfied the sum of £- due to her Majesty upon an extent directed to me tested the - day of in the year of her reign. So help you God. rity of. Return.a The within-named C. D. is not found in my bailiwick. The residue of the execution of this writ appears in the inquisition hereto annexed. Inquisition.b The answer of &c. W. (to wit.) An inquisition indented taken at the house of known by the name or sign of the in the said county the day of in the year of the reign of our sovereign lady Victoria by the grace of God of the U. K. of Great Britain and Ireland Queen defender of the faith &c. before me Sheriff of the said county by virtue of H. M.'s writ of extent to me directed and to this inquisition annexed on the oaths of A. B. [here name the twelve jurors] honest and lawful men of my bailiwick who being chosen tried and sworn on their oath say that C. D. in the said writ named on the day of in the year aforesaid that is to say at the time of issuing the writ was possessed of the goods and chattels following that is to say [here state the goods] as of his own goods and chattels and the said jurors do appraise and value the same at the sum of £ -; all which said goods and chattels I the said Sheriff have seized and taken into H. M.'s hands: And the jurors aforesaid upon their oath aforesaid further say that of &c. was on &c. indebted to the said C. D. in £- for &c. and that of &c. was on &c. indebted to the said C. D. in £- for &c. all which said debts sum and sums of money I the said Sheriff have taken and seized into H. M.'s hands: And the jurors aforesaid upon their oath aforesaid further say that the said C. D. on the seised in his demesne as of fee of and in &c. with the appurtenances thereto belonging situate and being at in the parish of in the said county and in the occupation of of the clear yearly value of £- in all issues beyond reprizes which I the said Sheriff have seized and taken into H. M.'s hands; and that said C. D. hath not any other or more goods or chattels debts credits specialties or sums of money or any other or more lands or tenements in my bailiwick to the knowledge of the said jurors which can be extended appraised or seized into her Majesty's hands. In witness whereof as well I the said Sheriff as the said jurors to this inquisition have set our seals the day year and place above-mentioned. day of A. D. J. B. was As the Sheriff's power, under this writ, is not to sell lands and goods, but simply to seize; and as his power, on an extent against the Crown debtor, is not to collect or levy the debts due to him, but simply to seize, it follows, that he is not entitled (even if he should receive such debts) to poundage.c On the return of the extent, a rule or order is entered on the back of it by the prosecutor's clerk in Court. "If no one shall a The Sheriff may return non est inventus, and that the debtor hath no goods or lands, Dalt. 234; or cepi corpus, and the seizure of the lands, ibid.; or that the debtor is a clerk, ibid.; or that the lands, &c., are already extended, or that another is in by descent, for that they are not to be put out of possession without a scire facias, Fitz. Ret. 112; or that a third party has possession of the goods: see Reg. v. Austin, 10 M. & W. 692. A return that he has delivered such lands without saying there are no other lands is bad, Brownl. 37. b See ante, p. 199. If lands, &c., are taken, they must be properly described; and it should appear how they came to be the defendant's property. So, if debts are found, it should be stated for what; as for goods sold, money lent, &c.; if bills or notes, their dates, by whom drawn, accepted, indorsed, &c., should appear, and how they became the debtor's property. c Tidd's Pr. 1057. |