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Exch. of Pleas, has stopped payment, and is in embarrassed and insolvent circumstances, and that unless some method more speedy than the ordinary course of proceeding at law be forthwith had against the said John Ryle for the recovery of the debt so due and owing to her Majesty as aforesaid, the same is in danger of being lost." The jury found that the defendant was indebted to the Crown in the sum mentioned in the affidavit, and thereupon a Judge's fiat was obtained for a writ of immediate extent to issue, which was issued accordingly.

Cowling had obtained a rule, calling upon the AttorneyGeneral to shew cause why the inquisition, and all the subsequent proceedings taken thereunder, should not be set aside for irregularity.

The affidavit of Mr. Hobbs, who for twenty years has acted as a commissioner upon commissions to find debts due to the Crown, stated, in answer to the application, that whenever it had been found inconvenient or impossible to obtain, in time to make the proceedings available, the attendance of witnesses to give vivâ voce evidence, the jury had found the debt upon affidavit only; and that he believed this has been the invariable practice from the most ancient period up to the present time.

The Solicitor General and Waddington shewed cause.It will be contended on the part of the defendant, that as the evidence used before the jury was an affidavit only, and no witness was examined vivâ voce, the proceeding was irregular and contrary to practice; for that, as the jury were empanelled under the commission to inquire whether or not a debt was due to the Crown, no evidence could be legal but that which was given by witnesses vivâ voce upon oath; and the case of Rex v. Hornblower (a) will be relied upon. That, however, was the case of an extent

(a) 11 Price, 29.

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in aid, and no such decision has been come to in the case Exch. of Pleas, of an extent in chief. But even in the case of an extent in aid, according to the practice of this Court, and the established course of proceeding with respect to Crown debts, the course pursued on this occasion was the proper one. It appears not only upon the affidavit filed in this case, but is admitted in the case of Rex v. Hornblower, to have been of very long usage. The object of finding the debt under the commission is merely to have the debt entered of record. The Crown can have no writ against the body or the goods of the debtor, without first applying to a judge upon an affidavit of debt, that the party is insolvent, and the debt is in danger. In order to issue an extent, it is necessary that the debt should be entered of record; but the inquiry under the commission is purely an ex-parte proceeding, and the party has no notice to attend, nor can he, nor has he ever been known to attend the inquiry; nor, if any witness were examined vivâ voce, could he cross-examine him. The debt is not conclusively found by the inquiry before the jury under the commission, but the party is at liberty to traverse the debt in the proceedings which subsequently take place. If it could be shewn that any grievance resulted from the practice, or that any advantage would be obtained by the party in having the witness examined vivâ voce, it might be a reason against the continuance of the practice, and for an alteration of it by the legislature; but that cannot be suggested. When the extent is issued, and the inquisition is held by the sheriff and a jury, the party may attend and traverse the debt; he is not bound by the preliminary proceeding. [Parke, B.-In Rex v. Hornblower, the Court placed some reliance upon the language of the commission.] There is nothing whatever in the form of the commission to render it necessary to examine the witnesses vivâ voce. All that is required is, that the jury are to be satisfied by testimony on oath. The commissioners are to inquire" on

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Mr. West, in his book on Exalthough he says that no length He says (a), "No notice is given

Exch. of Pleas, the oaths of good and lawful men, and by the testimony on oath of other credible persons." This affidavit is evidence upon oath; it is not necessary that it should be stated vivâ voce before a jury. tents, admits the practice, of time can legalize it. to the defendant of the execution of this commission; and the usual, if not universal practice is, to adduce no evidence of the debt before the jury, except the affidavit which is prepared for the purpose of obtaining the immediate extent. On this affidavit, and this affidavit alone, usually, if not universally, the jury find the debt." The affidavit of Mr. Hobbs confirms this statement, and shews that notwithstanding the decision of Rex v. Hornblower, this has continued to be the universal practice to the present time. [Parke, B.-Certainly, that decision has never been acted upon.] It has never been acted upon, because the impression was that it was an erroneous decision, come to without properly investigating the grounds upon which this mode of proceeding was adopted. This proceeding is founded on the statute of 33 Hen. 8, c. 39, which regulates the proceedings to recover debts due to the Crown. The 55th sect. enacts, "that all and every suit and suits, which hereafter shall be had, made, or taken of, for, or upon any debt or duties which heretofore hath grown or been due, or that hereafter shall grow or be due, to the king, in the several offices and courts of his exchequer, Duchy of Lancaster, augmentations of the revenues of his crown, surveyors-general of his manors, lands, and tenements, master of the wards and liveries, and court of the first fruits and tenths, or in any of them, or by reason or authority of any of them, shall be severally sued in such one of the said courts and offices, in which court and office, or by reason of the which court and office, the same

(a) Page 22.

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debt or duty did first grow or become to be due, or here- Exch. of Pleas, after shall grow or become due, or in the which office and court the recognisance, obligation, or speciality is or shall be or remain. And every such several suit and suits shall be made in every of the said several offices and courts, under the several seals of the said several courts, by capias, extendi facias, subpoena, attachments, and proclamations of allegiance, if need shall require, or any of them, or otherwise as unto the said several courts shall be thought by their discretions expedient for the speedy recovery of the king's debts." Now this has been thought a proper and expedient mode of commencing the suit, and it is the only mode in which the debt could be recovered, viz. by making the mode of commencing the suit a secret and exparte proceeding. The distinction between the inquisition to find debts and the inquisition taken before the sheriff was not adverted to in Rex v. Hornblower, and the arguments there used apply very well to the latter inquisition taken before the sheriff, by which the party is to be concluded, but are perfectly inapplicable to the former, which is a matter of form, necessarily ex-parte, and of which the party has not and cannot have notice, because giving notice to the debtor would at once destroy the whole effect of the proceeding, and render it useless and unavailing. This preliminary proceeding comes to nothing, unless it turns out that the Crown is entitled, on the debt being traversed by the debtor upon the inquisition before the sheriff. One or two of the judges, in Rex v. Hornblower, seemed to think that there is an express rule of the English law which cannot be dispensed with, requiring that where a jury is summoned, the witnesses should be summoned and produced before them: but there is no such rule, and there are many cases, even of issues joined at common law, and where courts of equity direct issues to be tried, in which the personal appearance of the witnesses is dispensed with, and their depositions are received in evidence. And those

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Exch. of Pleas, are cases of a contest between litigating parties: but here, if the witnesses were produced, the party has no right to appear or cross-examine them. There are very few cases on this subject to be found in the books; the first is in the reign of Chas. II., The Attorney-General v. Sparrow (a) ; but in that case it does not appear upon what evidence the debt was found. In Rex v. Knight (b) it does appear that it was upon affidavit; and the affidavit having been objected to, the objection was overruled.

Cresswell and Cowling, in support of the rule. This affidavit was not proper evidence to be laid before the jury. From the form of the commission itself, it may be inferred that it was not intended that such evidence should be received. It empowers the commissioners to inquire "as well on the oaths of good and lawful men of the county of Middlesex, by whom the truth may be the better known, as by the testimony of any other credible person or persons." If the meaning of that be that they are to summon a jury, and that the jury are to decide for the commissioners, then the jury surely ought to have before them the credible person or persons. The commissioners have no power to summon and examine them in private, and lay before the jury the result of that examination. If it be contended that the commissioners have power to inquire not only through a jury, but by any other means, then they need not lay the affidavit before the jury at all, provided they, the commissioners, are satisfied. But if they are to inquire through the medium of the inquest, then they are to summon before the jury persons who are to be there examined on their corporal oaths, and the jury are to ascertain whether the evidence of those persons is satisfactory. The effect of the inquest is to give the Crown a judgment against the body, lands, and goods of the debtor: the debt (b) Bunbury, 318.

(a) Hardr. 227.