dorsed upon the writ, such overplus shall be paid into the exchequer, together with the amount indorsed upon the writ; and the court shall, upon any summary application, make such order for the return, disposal, or distribution of such surplus, or any part thereof, as shall appear to be proper. § 2.

Nothing in this act shall affect, either at law or in equity, any demand of the person to whom such debt shall have been due, when seized into his majesty's hands, or his assignees, executors, or administrators, as to the remaining part of such debt, or any other debt seized or sued for under such extent, but still remaining unpaid either in the whole or in part; but it shall be lawful to demand, sue for, and recover the remainder, or any other debts, by the like process as if no such extent in aid had issued. §3.

No person who shall be indebted to his majesty by simple contract only; nor who shall be indebted to his majesty by bond, for answering any particular duties, or sums of money which shall become due to his majesty; nor any sub-distributor of stamps, who shall have given bond; nor any person who shall have given bond to his majesty, either jointly or separately, as a surety only for some other debtor, until such surety shall have made proof of a demand having been made upon him on behalf of his majesty, in consequence of the nonperformance of the conditions of the bond by the principal, and then only to the amount of the said demand; shall sue out any extent in aid, for the recovery of any debt due to such persons, or sub-distributor of stamps, or surety, as aforesaid: but nothing herein shall extend to prevent any persons who shall become debtors to his majesty by simple contract only, by the collection of any money arising out of his majesty's revenue, from applying for and suing out any commission, or extents in aid, in case one or more such persons shall be bound to his majesty by bond or specialty of record in the Exchequer, for answering for the particular duties or sums which shall constitute the debt that may be then so due from such persons. §4.

No extent in aid shall be issued on any bond given by any persons as sureties for paying any duties which may become due to his majesty from any society, incorporated or otherwise, carrying on the business of insurance against any risk of fire, or any other kind. § 5.

Any persons imprisoned under extents in aid may apply to the barons of the Exchequer, or to any baron in vacation, for discharge, giving one month's previous notice in writing to the person to whom they owed the debt, stating the ground of such application, and an enumeration of all the property, debts, and effects whatsoever in their own possession, or in the possession of any other person for their use; and the court, or baron, may order such persons to be brought before them to be examined upon oath and if such persons shall make a full disclosure of all their property, or it shall otherwise appear reasonable that they should be no longer imprisoned, the court or baron may order a writ of supersedeas quoad corpus to be issued for their liberation; but no such liberation shall be deemed to satisfy such extent in aid, except as to such imprisonment, or the debt seized by virtue thereof. 6.

All writs of execution must be sued out within a year and a day after the judgment is entered. Yet, however, the court will grant a writ of scire facias for the defendant to shew cause why the judgment should not be revived, to which he may plead such matter as he has to allege; or the plaintiff may still bring an action of debt, founded on this dormant judgment.

CHAPTER XXIII.

Process of a Suit in the Court of Chancery.

THE first commencement in a suit of Chancery is by preferring a bill to the lord chancellor in the style of a petition, "Humbly complaining, sheweth to your lordship, your orator, A.B. that, &c. in tender consideration whereof, and for that your orator is wholly without remedy at the common law," relief is therefore prayed at the chancellor's hands, and also process of subpæna against the defendant to compel him to answer upon oath to all the matters charged in the bill. And if it be to quiet the possession of lands, to stay waste, or to stop proceedings at law, an injunction is also prayed in the nature of an interdictum by the civil law, commanding the defendant to cease.

This bill must call all necessary parties, however remotely concerned in interest, before the court, otherwise no decree can be made to bind them; and must be signed by counsel, as a certificate of its decency and propriety. For it must not contain matter either scandalous or impertinent; if it do, the defendant may refuse to answer it, till such scandal or impertinence is expunged; which is done upon an order to refer it to one of the officers of the court, called a master in chancery, of whom there are twelve, including the master of the rolls. The master is to examine the propriety of the bill; and if he report it scandalous or impertinent, such matter must be struck out, and the defendant shall have his costs, which ought of right to be paid by the counsel who signed the bill. When the bill is filed in the office of the six clerks, if an injunction be prayed therein, it may be had at various stages of the cause, according to the circumstances of the case. If the bill be to stay execution upon an oppressive judgment, and the defendant do not put in his answer within the stated time allowed by the rules of the court, an injunction will issue of course; and when the answer comes in, the injunction can only be continued upon a sufficient ground appearing from the answer itself. But if an injunction be wanted to stay waste, or other injuries of an equally urgent nature, then, upon the filing of the bill, and a proper case supported by affidavits, the court will grant an injunction immediafely, to continue till the defendant has put in his answer, and till the court shall make some further order concerning it: and when the answer comes in, whether it shall then be dissolved or

continued till the hearing of the cause, is determined by the court upon argument.

But, upon common bills, as soon as they are filed, process of subpæna is taken out; which is a writ commanding the defendant to appear and answer to the bill, on pain of 1007. But this is not all: for if the defendant, on service of the subpoena, do not appear within the time limited by the rules of the court, and plead, demur, or answer to the bill, he is then said to be in contempt ; and the respective processes of contempt are in successive order awarded against him, The first is an attachment, which is a writ in the nature of a capias, directed to the sheriff, and commanding him to attach, or take up the defendant, and bring him into court.

If the sheriff return that the defendant non est inventus, then an attachment with proclamations issues; which, besides the ordinary form of attachment, directs the sheriff, that he cause public proclamations to be made throughout the county, to summon the defendant, upon his allegiance, personally to appear and answer.

If this be also returned with a non est inventus, and he still stands out in contempt, a commission of rebellion is awarded against him, for not obeying the king's proclamations, according to his allegiance; and four commissioners therein named, or any of them, are ordered to attach him, wheresoever he may be found in Great Britain, as a rebel and contemner of the king's laws and government, by refusing to atend his sovereign when required.

If, upon this commission of rebellion, a non est inventus is returned, the court then sends a serjeant-at-arms in quest of him; and if he elude the search of the serjeant also, then a sequestration issues to seize all his personal estates, and the profits of his real, and to detain them, subject to the order of the court. After an order for a sequestration issued, the plaintiff's bill is to be taken pro confesso, and a decree to be made accordingly. So that the sequestration does not seem to be in the nature of process to bring in the defendant, but only intended to enforce the performance of the decree.

If the defendant be taken upon any of this process, he is to be committed to the Fleet, or other prison, till he puts in his appearance or answer, or performs whatever else this process is issued to enforce, and also clears his contempts by paying the costs which the plaintiff has incurred thereby. For the same kind of process is issued out in all sorts of contempts, during the progress of the cause, if the parties in any point refuse or neglect to obey the order of the court.

The process against a body corporate is by distringas, to distrain them by their goods and chattels, rents and profits, till they shall obey the summons or directions of the court. And if a peer

be a defendant, the lord chancellor sends a letter missive to him to request his appearance, together with a copy of the bill; and if he neglect to appear, then he may be served with a subpœna; and if he continue still in contempt, a sequestration issues out immediately against his lands and goods, without any of the mesne process of attachments, &c. which are directed only against

the person, and therefore cannot affect a lord of parliament. The same process issues against a member of the House of Commons, except only that the lord chancellor sends him no letter missive.

The ordinary process before mentioned cannot be sued out till after service of the subpoena, for then the contempt begins; otherwise he is not presumed to have notice of the bill; and therefore, by absconding to avoid the subpæna, a defendant might have eladed justice, till the 5 Geo. II. c. 25. which enacts, that where the defendant cannot be found to be served with process of subpœna, and absconds to avoid being served therewith, a day shall be appointed him to appear to the bill of the plaintiff, which is to be inserted in the London Gazette, read in the parish-church where the defendant last lived, and fixed up at the Royal Exchange; and if the defendant do not appear upon that day, the bill shall be taken pro confesso.

But if the defendant appear regularly, and take a copy of the bill, he is next to demur, plead, or answer.

A demurrer in equity is nearly of the same nature as a demurrer in law; being an appeal to the judgment of the court, whether the defendant shall be bound to answer the plaintiff's bill; as, for want of sufficient matter of equity therein contained; or where the plaintiff, upon his own shewing, appears to have no right; or where the bill seeks the discovery of a thing which may cause a forfeiture of any kind, or may convict a man of any criminal misbehaviour. For any of these causes a defendant may demur to the bill; and if, on demurrer, the defendant prevail, the plaintiff's bill shall be dismissed; if the demurrer be overruled, the defendant is ordered to answer.

A plea may be either to the jurisdiction, shewing that the court has no cognizance of the cause; or to the person, shewing some disability in the plaintiff, as by outlawry, excommunication, and the like; or it is in bar, shewing some matter wherefore the plaintiff can demand no relief, as an act of parliament, a fine, a release, or a former decree. And the truth of this plea the defendant is bound to prove, if put upon it by the plaintiff. But as bills are often of a complicated nature, and contain various matters, a man may plead as to part, demur as to part, and answer to the residue. But no exceptions to formal minutiæ in the pleadings will be here allowed; for the parties are at liberty, on the discovery of any errors in form, to amend them.

An answer is the most usual defence that is made to a plaintiff's bill. It is given in upon oath, or the honour of a peer or peeress; but where there are amicable defendants, their answer is usually taken without oath by consent of the plaintiff.

If the defendant live within twenty miles of London, he must be sworn before one of the masters; if farther off, there may be a commission to take his answer in the country, where the commissioners administer him the usual oath; and then the answer being sealed up, either one of the commissioners carries it up to the

P

court; or it is sent by a messenger, who swears he received it from one of the commissioners, and that the same has not been opened or altered since he received it.

An answer must be signed by counsel, and must either.deny or confess all the material parts of the bill; or it may confess and avoid, that is, justify or palliate the facts. If one of these be not done, the answer may be excepted to for insufficiency, and the defendant be compelled to put in a more sufficient answer. A defendant cannot pray any thing in this his answer, but to be dismissed the court; if he have any relief to pray against the plaintiff, he must do it by an original bill of his own, which is called a cross bill.

After answer put in, the plaintiff, upon payment of costs, may an.end his bill, either by adding new parties, or new matter, or both, upon the new lights given him by the defendant: and the defendant is obliged to answer afresh to such amended bill. But this must be before the plaintiff has replied to the defendant's answer, whereby the cause is at issue; for afterwards, if new matter arise, which did not exist before, he must set it forth by a supplementary bill.

There may be also a bill of revivor, when the suit is abated by the death of any of the parties, in order to set the proceedings again in motion, without which they remain at a stand.

And there is likewise a bill of interpleader; where a person who owes a debt or rent to one of the parties in a suit, but, till the determination of it, he knows not to which, desires that they may interplead, that he may be safe in the payment. In this last case it is usual to order the money to be paid into court, for the benefit of such of the parties to whom, upon hearing, the court shall decree it to be due. But this depends upon circumstances; and the plaintiff must also annex an affidavit to his bill, swearing that he does not collude with either of the parties..

If the plaintiff find sufficient matter confessed in the defendant's answer to ground a decree upon, he may proceed to the hearing of the cause upon bill and answer only. But in that case he must take the defendant's answer to be true in every point; otherwise the course is, for the plaintiff to reply generally to the answer, averring his bill to be true, certain, and sufficient, and the defendant's answer to be directly the reverse; which he is ready to prove, as the court shall award. Upon which the defendant rejoins, averring the like on his side; which is joining issue upon the facts in dispute. To prove which facts, is the next

: concern.

This is done by examination of witnesses, and taking their depositions in writing. And for that purpose interrogatories are framed, or questions in writing; which, and which only, are to be proposed to, and asked of, the witnesses in the cause. These interrogatories must be short and pertinent; not leading ones (as, "Did not you see this?" or, "Did not you hear that?" for if