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liament, the customs on wood, goods, and tonnage and poundage, amounted only to 40,688., which may be taken as equal to about 250,000l. of money at its present value. But another reason also presents itself for limiting our observations to more recent periods; for, although regulations connect ed with this subject are to be found in the statute-book certainly as far back as Edward I., yet it is the statute of 33 Henry VIII. cap. 9, on which extents at the suit of the crown are founded ; and whatever may be thought of the character of Henry or of his government, yet the tenour of that statute affords a strong presumption that the courts thereby created for the king's lands (and which in the 1st of Mary were united to the Exchequer) were intended to take cognizance only of debts bona fide due immediately to the king; and that the extensions of the process which have since arisen have been unwarranted encroachments.
That the temptation afforded to individuals speedily produced abuse, we have indeed convincing evidence in the privy seal of 12 Jac. I. (1614), which in the strongest terms acknowledges and condemns the practices by which the "prerogative had been made an instrument of oppression and greefe to his loving subjects," and "the commerce, intercourse, and dealing between men and men greatly hindered;" nor could James's love of power, or high notions of prerogative, render him insensible to these evils, or to the duty of correcting them. Notwithstanding this royal and wholesome inter
ference, however, we find that in 1639, 15 Car. I., it became expedient to frame rules in the Court of Exchequer, apparently for the remedy of similar inconveniences : since which time, your committee observe with concern, that the issue of this prerogative process has increased in a degree inconsistent with the equitable spirit of the Bankrupt Laws, and the ease of the subject, and peculiarly illsuited to the state of things produced by that extended commerce of which this country so justly boasts.
At what particular time the law acquired that latitude of interpretation, of which some individuals have not scrupled to avail themselves with such mischievous effect, does not exactly appear. That sudden and excessive growth of the issue of these writs, which alarmed and irritated the whole country, did not occur until 1815: their previous use having been almost wholly confined to the department of stamps, out of which alone nearly half of all issued since the year 1806 have proceeded. From the accounts in the appendix, it will appear, that the whole number of extents in aid issued from the office (the king's remembrancer's), from 1803 to 1814, both inclusive, had been only 207, or less than 15 per annum, of which the majority, probably, had a legitimate object, i. e. the recovery from the parties of monies which really belonged to the public, and might otherwise have been lost.
Of the multitude which have lately been granted, a very small proportion can pretend to this 2 B2 character,
character, but have been obtained for the purpose of gaining an unjust priority in the recovery of private debts, in direct contradiction to the law, as formerly laid down; and an inspection of the documents will yield the strongest presumption, that many persons have procured themselves to be made crown debtors, with the express and sole view of abusing the power they surreptitiously obtained.
The avowed object of these writs being to obtain this preference over all other creditors in the division of an insolvent's effects, in defiance, as your committee think, of the common dictates of justice, and of the intention of all the laws respecting bankrupts, it is of their very nature to inflict hardship; without this they do not attain their end: but in order better to illustrate the full effect of the process, it will be expedient shortly to trace it from its commencement, leaving the more full detail to be collected from the minutes of evidence.
The crown debtor, suing for the process in his favour, must first record his own debt; if it be on bond, by the exhibition of that Lond; if otherwise,* by a commission, as it is called, composed of two persons, one of whom is generally a clerk in the Remembrancer's office, and the other the under sheriff, or his clerk, who receive one guinea each for their return; on this the extent issues against the crown debtor, which
* It appears to be the soundest opinion that no other debtor could claim it at all. See Erid. p. 22, et al. App. No. 4. Bunbury.
however may properly be termed collusive, as it is not only done at his own request, for his own exclusive advantage, on evidence furnished by himself only, but the words directing the seizure of his body, goods, and lands, are omitted in the warrant. The debts due to this crown debtor are then found by an inquisition or inquiry, made before the sheriff and a jury summoned for that purpose; when the vivá voce testimony, or even the affidavit of the creditor himself, or of a third person (often without any examination), is accepted as sufficient proof of the debts, though the debtor not only has no notice to attend to make objections, but, unless by accident, has no means of knowing any thing of the proceeding against him: and the jury seem to be of a description most incompetent to perform any duty of delicacy or difficulty; men whose office is considered as wholly formal; who rely on the direction of the under sheriff, or some one in his employ, generally acting as their foreman; and of whose quality a proper estimate may be formed from their receiving one shilling each from the prosecutor on giving their verdict, and in cases where "they have had any extraordinary trouble, sometimes a guinea being thrown among them."
After the proof of the debt, by this evidence, and before such a jury, an affidavit is made in which the following particulars are stated; viz.
1st. The debt due to the crown: 2d. The debt due to the crown debtor by his debtor :
3d. That such debtor is in bad circumstances, and the debt in danger of being lost :
4th. That it is a debt originally due to him, and without trust :
5th. That it has not been sued for elsewhere:
6th. That by not recovering it, the crown debtor would be less able to pay the crown. On each of these points a few observations may be expedient :
1st. The statement of the debt to the crown.-As the real object throughout is solely the advantage of the individual, so he can in most cases make this debt appear larger or smaller, as may best suit his purpose, especially if it be a bond debt; by stating either the whole sum for which he is bound, or that portion only which is due or demandable at the time.*
2dly. The debt due to the crown debtor. This being taken on his own evidence, without any means of contravening it, instances are not wanting of persons resorting to an extent in aid as the shortest mode to obtain payment of a disputed account for which, indeed, it affords facilities which no other process will give.
3dly. "That the debt is in danger, unless means more speedy than the common course of law can be resorted to."
Formerly this made little or no difference, because on proof of any debt due to the crown, however small, a man might procure an extent in aid against his debtor for any debt, however large; but this gross absurdity, as well as injustice, having been remedied by the act just passed, it may now become, in some cases, of consequence to prove the debt to the crown as largely as possible; and it will be seen in the Appen. dix, that a sub-distributer of stamps has called himself a bond-debtor to the crown in 1,200l. when his sale or distribution
varied from only about 4001. to less than 8001. per annum.—Evid. p. 21.
This part of the affidavit, though implying the injury done to the other creditors, and therefore justifiable only on the strong presumption, at least, that the public interest would suffer from the loss, is deemed indispensable in all cases; and, therefore, when the private creditor is anxious to secure himself at all events, it is not wonderful that the assertion should sometimes be hazarded on slight grounds; accordingly it has been stated, on the loosest evidencemere assertion of hearsay; and the "fiat," with all its destructive consequences, has been granted on no better foundation. It has happened, that after all the mischief has been accomplished, and the man ruined, the extent itself has been set aside for want of sufficient proof on this necessary point.
4thly. That the debt is originally due to the party without trust. Your committee must doubt if this can be truly sworn, when, at the request of a man holding a bill of exchange, a bond debtor to the crown consents to take it of him, knowing at the time that the party to pay it is insolvent; and when the matter comes before the court, rather chooses to abandon it than proceed to trial. The transfer of debts for this purpose, by taking bills of exchange, has been frequent notwithstanding this deposition.
5thly. That the debt has not been put in suit in any other court; a proceeding rarely necessary.
6thly. That important clause called the quo minus, which lies at the foot of the whole, whereby the party swears, that if he cannot recover
this debt he will be the less able to satisfy his debt to His Majesty. That prima facie this was, and must have been, the real foundation of granting the aid desired, is selfevident the words themselves, in perfect consistency with the obvious intention, afford irrefragable proof of it; and yet the common practice is to grant the writ when this is not believed on the one side, nor even pretended to be true on the other; nay, where even the insinuation of its truth would be treated as an affront, at least, if not as a libel. On what grounds, then, is it defended? First, on the quibble, that of what ever surplus a man may be possessed beyond what is required for the discharge of his debts, every diminution of that surplus brings him nearer, and consequently makes him more liable to, actual insolvency; and that therefore if he cannot be said to be actually less able at the moment, he may be less able at some future time; i. e. supposing a man worth 10,000l. surplus, to make the affidavit in order to prevent a loss of 501. it may be said that a surplus of 9,950l. will exteris paribus, be sooner exhausted by misfortune or accident than one of 10,000l. But another plea, of a nature quite different, is also offered; viz. that the words are merely formal in this case, as well as when used in common suits between subjects in the same court; and therefore ought so to be regarded, and to be dispensed with entirely. *
This opinion seems to be in some degree countenanced by the fact, that though this allegation has by some been deemed absolutely necessary, yet in practice it was omitted in many of the affidavits on which
obvious reply is, that in other suits the words are known and acknowledged to be employed merely to bring the plea into that court which is peculiarly the King's; and no prerogative advantage being afforded to either party, the use of verbal forms is wholly indifferent and innocent; whereas in the present case they are used on a pretext, known to be untrue, to work a real wrong. Your committee cannot but be of opinion that both excuses are equally unsatisfactory: that the oath ought to be materially altered, so as to make it really what it seems: or if there be any solid and substantial objection to the alteration (of which your committee are not aware), that it would be better to abandon it altogether, than to suffer it to remain a casuistical snare for perjury, and an opprobrium to the administration of justice.
On this affidavit however, and the previous legal proceedings, loose and unsatisfactory as they are at best, and often hurried through with all the expedition of a race, to defeat that equitable division of the property which a rival commission of bankrupt is seeking to effect, does an extent in aid issue; and against a person, not a debtor to the crown, sometimes not so even in the second degree; but it may be against a solvent man, unfortunately indebted to one who chooses to believe him insolvent, and who has sufficient ingenuity to set himself up as a crown debtor. The execution is of the severest kind :-every thing, down to the minutest article of his property, is
writs were granted in the last year; but as the omission was unnoticed, the grants wight have been made only through inadvertence.
then seized; his books, papers, and accounts by which he might be enabled to dispute his creditors' demands, or to enforce his own, are carried off and withheld from him. Nor is this all; his person too* (which a common execution, after having taken the property, would leave untouched) may be thrown into gaol, and kept there at the discretion of that very creditor by whose oppressive conduct such a waste of his property may be occasioned, as alone to produce that very insolvency, on the alle gation of which, as previously existed, the whole process
founded; and neither can a commission of bankruptcy or an insolvent act release him. Nor is this mere imagination: it appears to your committee, that, as far as respects the debtor, the whole is realized in at least one case detailed in the Appendix.
Your committee apprehend that enough has been stated to point out the extreme oppression often worked by this mode of procedure on the unfortunate debtor who is the object of it, and the injustice committed towards his other creditors. It remains to inquire into the validity of the reasons urged for the maintenance of any portion of the practice, which are all contained in the one sweeping phrase, the security of the revenue. One indeed of the witnesses has spoken of "the right of the subject to claim the benefit of this prerogative, that the solvency of the crown debtor may be sup
• It seems, by rule 3, 15 Charles L. that the person could not be taken unless by special order made in open court, nor any debts without specialty; if so, the late practice is an encroachment.
ported;" but as it has been allowed, and even maintained by the most respectable authority, that in these cases the prerogative is only another name for the public interest, a certain and unexceptionable standard to which to refer is thereby furnished. Is the revenue hereby secured? Is the public interest advanced? Of the numerous cases which have of late been brought within public observation (and a small portion only of which could be inserted in the Appendix) this does not appear to have been the object in one single instance; in very few can it be shown to have been even incidentally or probably served; and in several, the interest of the individual prosecutor of the extent has been pursued to the absolute injury of that very revenue, for the safety of which, exclusively, the process was originally instituted. To the former part of this statement the solicitors of the Revenue Boards bear the most unequivocal testimony; and the cases mentioned, besides others which might have heen produced, afford decisive proof of greater loss than the whole list can supply of probable advantage. Indeed it seems scarcely doubtful whether the whole process for private debts might not be abolished, without any disadvantage to the public interest; while it will be worth consideration how far any supposed benefit may be outweighed by the evils attendant on continuing the practice. The ruin of unfortunate debtors, the injury of innocent and unsuspecting creditors, and the extensive injury wrought among the community at large, by the breach of good faith, and the consequent destruction of that ho