Page:Prerogatives of the Crown.djvu/288

26H EAienls. [Cb. XII. Pt. I. Sec. L dence of the debt before the jury, except the affidavit, whicb is prepared for the purpose of obtaining the immediate extent- On this affidavit, and this affidavit alone, usually, if not uni~ versally, the jury find the debt («). If witnesses duly summon- ed refuse to attend, or to answer proper questions, the Court will grant an attachment {b ). The statute 1 Hen. 8. c. 8. s. 2. {c) enacts " that every escheator and commissioner shall sit in convenient and open places, according to the statutes theretofore made. And that the said escheators and commissioners shall suffer every person to give evidence openly in their presence, to such inquest as shall be taken before any of them, upon pain of forty pounds." Upon this provision, which seems to be confirmatory of the common law, it is considered that the inquisition is irregular^ if secretly and clandestinely taken, and that on the taking of the inquisition on the extent, a stranger has a right to prove hi* property in the goods seized (d). The Crown cannot be a sufferer by this doctrine, as a melius inquirendum may issue if the finding of the jury be dissatisfactory. At all events, per- sons interested may appear on the execution of the writ and cross-examine the Crown witnesses: and as observed by C^ B. Thomson, " it would be hard to put the parties to the ex- pense and trouble of traversing the inquisition ; and irrepara- ble injury maybe done, when, if the evidence had been suffered to proceed, and had the question proposed been allowed to be put, the truth of the matter would have been shewn (^)." Simple contract debts, and specialties, not included in the (a) West, 22. (b) Parker, 269. Witness cannot refuse to answer a question which might render him liable to the Crown civilly for a debt, 46 Geo. 3. c. 37. (c) That the statute applies to inqui- sitions before sheritis. 4 Co. 58, a. (rf) Bunb. f 33. This doubted in 3 Price, 454. As to the testimony of the claimant himself, 1 Fowl. 160. 6 Bac. Ab. 129, 30. (e) The King r. Bickley, Exch. Sit- tings, after M. T. Ifil6. The facts of this case are reported in West on Extents, p. 69, and the judgment in the Appen- 3 dix, p. 330. S. C. in 3 Price 454. It ap- pears that the Court didnotdecideon the express point in Bunbury, but held the inquisition irregular specifically on tha ground that the under-sheriff had re- fused to suffer a cross-examination of one of the Crown's witnesses, on a question which related not only to the property in the goods seized being in a stranger, but brought under consideration the character in which the defendants had the goods and related to their possession of them. But C. B. Thomson seemed to approve of the decision in Bunbury. Sec S. C. 3 Price's R.. 463. statute