Exch. of Pleas, ceiving this species of evidence upon the execution of the 1841. REGINA V. RYLE. commission to find debts.] The question is, what has been the usage as far as it can be traced? If we can find no time in which this species of evidence has not been received, the question then arises, whether it is so illegal that it must necessarily be put an end to. It is a strong argument against its illegality, that it has existed so long. But why is not an affidavit legal evidence before a jury for this purpose? It is said it is hearsay evidence; but it is not so; it is a statement upon oath made by a party respecting the debt, not vivâ voce, but sworn before a competent authority. That is not hearsay evidence, the witness being examined upon oath. But then it is said you must take the first species of evidence, and not secondary; but this is not secondary: it is a positive statement upon oath that such a person is indebted to the Crown, the deponent stating the facts which constitute the debt. That is not secondary evidence. It is true, that in every cause where there are contested questions, and where the matter is to be laid before a jury, the practice has been universal to examine witnesses vivâ But this is a process simply to put the Crown's debt on record, or put the Crown in a situation to sue for it. If the Crown do not proceed by sci. fa., and the Court think that the writ of extent ought to issue, then the entering the debt on record is in no way binding on the party, who may traverse the debt. There is, therefore, nothing illegal in this practice, and no ground for interfering with it. voce. Lord ABINGER, C. B.--I am of opinion that this rule ought to be discharged. The objection taken on the part of the defendant is founded upon the proceeding on the inquest, under a commission of this Court, to find whether a debt was due from him to the Crown; and it is stated, that in order to support the existence of that debt, no other evidence was adduced before the jury than an affidavit of debt, and that that was illegal evidence. Now I am at a loss 1841. REGINA บ. RYLE. to know upon what authority, either of statute or of com- Exch. of Pleas, mon law, it is to be said that in an ex-parte proceeding of this kind, an affidavit is illegal evidence. We have not had brought before us any authority or case to shew that upon inquisitions of various natures that were issued before, evidence of affidavits, or even, in many instances, hearsay evidence, was excluded. The notion of legal evidence on trials before juries, in our law, is the effect of long practice and usage, the decision of Judges, and the practice at Nisi Prius, which has grown into a system, and which forms a part, and a very important part, of the law of the land. But where is the analogy that binds us to apply that practice to ex-parte proceedings on inquests for particular purposes, which are mere matter of form? There is no case that decides that, on inquests to be taken under provisions of this nature, there shall be none but vivâ voce evidence, or none but that which, in common-law trials before juries, may be considered as legal evidence. I do not apprehend, therefore, that the application is. well founded, when it assumes that this affidavit was not legal evidence, and that it was not competent for the jury to found their verdict upon it. I think that it was. When we find that the practice for so many ages has been consistent with the present form, that alone is sufficient evidence, I think, to shew that, till the practice is altered by special authority, we ought not to interpose to alter it. Such being the case, let us see what is the object of this inquiry. The debts due to the Crown are to be recovered by certain forms of process, but there has been an understanding which is in some measure technical, though I admit the force of it from long usage, and nothing else, that there can be no debt of the Crown upon which process can issue, except it be a debt on record. Upon what is that rule founded? Upon nothing but usage. One does not see any principle why the Crown should not be able to Exch. of Pleas, proceed for the recovery of a debt in the same way as a 1841. REGINA V. RYLE. subject, but a usage has grown up which we do not disturb, that the debts of the Crown must be found by recordmust be on the records of the Court, before the process can issue from this Court to enforce them. Formerly that process called upon the party to appear, and to contest his debt in the suit. The statute of the 33 Hen. 8 was passed for the purpose of giving the Crown a more rapid procedure, and for the very purpose of securing the debt before the party should have time to abscond or make away with his goods. The process by scire facias would give him that opportunity. The legislature, therefore, in the time of Henry the 8th, passed this act for the purpose of authorising the Court of Exchequer, or any other Court in which the King's debt is entered on record, to issue an immediate process for execution, a capias, extendi facias, or a subpoena. But that statute has provided a remedy for all possible inconvenience that might result; for it enacts, by the 79th section, "that if any person or persons of whom any such debt or duty is or at any time hereafter shall be demanded or required, 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 or persons ought not to be charged or chargeable to or with the same, and the same causes or matters so alleged, pleaded, declared, or shewed, be sufficiently proved in such one of the said Courts as he or they shall be impleaded, sued, vexed, or troubled for the same, 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 all and every person and persons that shall be so impleaded, sued, vexed, or troubled for the same." That clause allows the party to plead to the extent, or to apply by summary motion, which is very often done, to the Court, for the pur 1841. REGINA v. RYLE. pose of shewing good grounds to discharge him from that Exch. of Pleas, process, and the Court often act upon it; and hence, as as well in law as in equity and good conscience, the Court has an equitable jurisdiction, in all cases of process of this sort, to enter upon the whole merits of the case, and to discharge the party, if, upon equity and good conscience, he ought to be discharged. Therefore no detriment arises to the subject. This is a mere form to put the debt upon record, in order to authorize the issuing of the process. That being the case, I see no inconvenience, I see no prejudice, I see no injustice whatever arising to the individual, from the form being pursued according to the ancient practice. But we are told that the case of Rex v. Hornblower is an authority the other way. If I could consider that case as an unequivocal authority the other way,-though it has never been acted upon,-it would undoubtedly deserve very grave consideration; but I think I cannot take it as any authority at all. In the first place, the case was discussed by counsel only on behalf of the private prosecutor, the interest of the Crown not being supported by the Crown. In the next place, when I look at the reasoning of the counsel and the judgment of the learned Judges, I do not find any satisfactory grounds assigned for the decision; far from it, because in that case, looking at the particular circumstances, nobody could doubt that the evidence before the inquest was perfectly legal, and would be competent evidence to prove a debt before a Judge and jury impanelled to try it; it was an affidavit of the debtor that he owed the Crown the debt, which would be evidence before any jury at any time. The Lord Chief Baron says, "It is impossible that we can interfere in the manner proposed on the part of the defendant; we are called upon by this motion merely to determine whether the objections which have been made to this extent are well founded, in other words, to say whether the extent has been well issued 1841. REGINA v. RYLE. Exch. of Pleas, or not. I am clearly of opinion that it has been improperly issued, because the fiat upon which it was obtained was founded on an inquisition improperly taken, and therefore it must be set aside." He gives, therefore, no reasons at all, but in as far as he incorporates the reasons of the advocate, they are evidently inconsistent with reason or with justice. Then I do not find that Mr. Baron Graham gives any reason; he only says that he is of opinion that the inquisition is not properly found. Mr. Baron Wood gives no reason. He says, "There ought to be an affidavit made, to be produced before the Judge, and an inquisition must be taken before a jury." Whether he means an affidavit to justify the issue of the extent, I do not know, but he does not give any answer to the question about the commission; he enters in no degree into the reasoning about it. The judgment of Mr. Baron Garrow is given at greater length, and I observe, that though he coincides with the rest of the Court, he gives reasons which I cannot conceive were properly reported. He says this:-"The nature of the process requires that it should be strictly correct in all its stages. The seizure of a defendant's person and effects is, in most instances, the first intimation that he has of it; the party, who may be in fact a very responsible person, cannot hear, generally speaking, except from information or by accident, that on the taking of the inquisition against him no witness was examined before the jury, and that the only evidence given of any debt being due from him was an affidavit of this description; that is stated to have been the course pursued on the present occasion; and although it has been objected that the affidavit of the facts is founded on information and belief, yet, in the present case, I think that is quite sufficient, because the party has in such cases seldom any better means of knowledge." Therefore he seems to have thought the affidavit was sufficient, but he does not enter into the reasoning in support of it at all. There is nothing stated about the |