Page:Prerogatives of the Crown.djvu/383

Ch. XIII. Hec. IIL] Traverse.-^Reskting Extents. 363 leave the defendant to that remedy (a) : still it would be unjust to deny him a mode of taking advantage of the irregularity, by which considerable expense and delay are avoided. Where either course of proceeding is open to the defendant, it is in general advisable to move in the first instance, instead of de- murring, because if the motion be decided against the claim- ant, he may still plead ; whereas after argument on demurrer, the judgment is usually final {b). ' 2. Irregularities not apparent on the face of the record, generally arise out of the proceedings before the sheriff and jury, on the taking of the inquisition under the commission, or of that under the extent ; as that insufficient evidence was considered by them sufficient. As in these cases the defect cannot be pointed out by a demurrer, it not being apparent on the face of the proceedings, the defendant may, and if he mean to take the objection must {c), indeed apply to the Court by motion, which should however be supported by an affidavit of the circumstances. If the Court entertain doubts respect- ing the facts on either side, they will in some cases direct a feigned issue to ascertain them {d). Where a stranger is the party moving on account of some extraneous defect, he must it seems shew his title to the property seized by affidavit (e) ; but it appears that any man may as amicus curtce, and without an affidavit, move to set aside extents to which there are ob- vious objections {/). It seems that a motion to set aside an extent should be made as early as possible, the general rule being that an irregularity in practice is waived by the party being knowingly so inactive as to lead his opponent to suppose that he does not mean to take advantage of it, by which he is or might be induced to proceed (g). The motion comes too late after the party has obtained time to plead {h). But it may be made before the appearance and claim are entered, and the assignees of a bank- («) Bunb. 33. (/) Hardr. 85, 99. 2 Manning, (b) West, 182. Tidd, 6th ed. 607, 9. (c) 4 Price, R. 11. In which case (g) 2 Manning, C06. 1 East, 77. the prerogative process was not main- Tidd, 6th ed. 95i. 6 Taunton, 7. 1 tainabie according to the practice of the Marsh, R. 403. .S. C. 2 Snaith, 391 . Court. (h) 3 Price, 38. But stJll he may (rf) 2 Manning, 609. demur if the objections appear on the {e) West, 183. iaceof the record. rupt