Page:Prerogatives of the Crown.djvu/384

364 Traverse.— Resisting Ea^tents, [Ch.XIILSec.III. rupt have been allowed to move to set aside an extent, even after a venditioni exponas has issued, no claim having been entered, and it appearing that there had not been, an unrear- sonable delay («). It seems also that objections to the process itself, but not informalities in the execution of it, may be taken advantage of by motion after appearance (Z>). In every case it is a question for the discretion of the Court, under the pecu- liar circumstances, whether a reasonable degree of diligence has been exercised, and whether the opposite party has been prejudiced by the delay. The Court will not in general try a matter of fact on affida- vits (c), and therefore the only case in which the defendant would be allowed to deny the debt on affidavit, seems to be where the question is as to the legal effect of facis which neither party disputes {d). ' The inquisition may be set aside pro tanto only, as for a part of the debt, the residue of the inquisition and extent remaining effective {e). A new writ may be resorted to {/). There are other motions besides those to set aside the pro- ceedings which the defendant or claimant on the extent may sometimes have occasion to make, as that debts collected by the sheriff under the extent (the payment of which he has not the power to enforce (g),) be paid by him into the hands of the deputy remembrancer, to be laid out pendente lite in the funds or in Exchequer bills, or in such manner as the Court shall direct, as the money would otherwise be likely to lie unpro- ductive for some time {h). It seems, that the right of the Crown to the money when disputed, remains in abeyance till judgment, and consequently, that the consent of the Crown to the object of the motion is unnecessary (/). The party, too, sometimes moves to pay the debt, for which the extent issued, into the receipt of the Exchequer ; or that the sheriff, who has levied money, shall pay the debt out of the money in his hands into the receipt of the Exchequer, and that on such payment an amoveas ma7iits do issue ; and it would seem, that this may be done at any period of the currency of (rt) West, 184. ((?) 1 Anstr. 192. Hughes, Ext. 178. (i) 3 Price, 288, 290. 2 Manning, (/) Ante, 258, 271. 3 Price, 269. 401. (Sr) Ante, 3,06. (c) See Tidd, 5th ed. 187. (A) 1 Price, k. 301. (rf) West, 184, 5. 2 Manning, 605. (^ West, 186. the